Classification of Certain Scientists of the Commonwealth of Independent States of the Former Soviet Union and the Baltic States as Employment-Based Immigrants

SUMMARY: This rule amends the Immigration and Naturalization Service

(``the Service'') regulations by revising the procedures which

establish eligibility of certain scientists and engineers from the

former Soviet Union for permanent residence under the Soviet Scientists

Immigration Act of 1992. This rule is necessary to clearly identify

those scientists who qualify under that law for permanent resident

status, thereby preventing their migration into the employ of hostile

governments seeking to develop weapons that can threaten the world's

security.

DATES: This interim rule is effective October 19, 1995. Written

comments must be submitted on or before December 18, 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, Attn: Public Comment Clerk. To ensure proper handling, please

reference INS number 1602-92 on your correspondence. Comments are

available for public inspection at this location by calling (202) 514-

3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT:

Michael Straus, Senior Adjudications Officer, Immigration and

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

20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION: The Soviet Scientists Immigration Act of

1992 (SSIA), Public Law 102-509, dated October 24, 1992, provides that

up to 750 immigrant visas may be allotted under section 203(b)(2)(A) of

the Immigration and Nationality Act (Act) to eligible scientists of the

independent states of the former Soviet Union and the Baltic states, by

virtue of their expertise in nuclear, chemical, biological or other

high-technology fields or their current work on nuclear, chemical,

biological or other high-technology defense projects. The provisions of

the SSIA will terminate on October 24, 1996, or when the Immigration

and Naturalization Service has approved a total of 750 petitions on

behalf of eligible scientists, whichever date is earlier.

This rule amends Sec. 204.10 which was added by an interim rule,

published in the Federal Register on May 27, 1993, at 58 FR 30699-

30701. This rule establishes petitioning procedures and eligibility

requirements for obtaining SSIA benefits. The Service has concluded

that revisions of the previous interim rule are necessary to improve

the visa petition process, thereby furthering the goal of preventing

hostile governments from employing these scientists with expertise in

weapons of mass destruction. The amendments introduced in this rule

reflect not only the written comments received during the comment

period which ended on June 28, 1993, but also comments offered

afterward by private parties and discussions with government officials

interested or involved in the adjudication of petitions under the

previous interim rule. Because these revisions introduce significant

changes in the previous interim rule, the Service is soliciting public

comments. The revisions developed in response to particular issues as

well as a discussion of the public comments are summarized and

discussed below.

Jurisdiction Over an SSIA Petition

One commenter suggested that scientists who leave the territory of

the former Soviet Union after the SSIA's enactment should be allowed to

apply directly for an SSIA immigrant visa at any U.S. embassy or

consulate abroad, without Service approval of a petition, and also be

granted an automatic waiver of travel document requirements. A U.S.

Embassy or consulate, which is under the authority of the Secretary of

State, has no authority to adjudicate an SSIA petition. Under section 4

of the SSIA, the Attorney General has the exclusive responsibility for

adjudicating SSIA visa petitions; this authority has not been delegated

to the Secretary of State. The decision to waive documentary

requirements is wholly within the discretion of the Embassy or

consulate where the immigrant visa application is pending.

The legislative history indicates that the SSIA was intended ``to

speed the process and remove existing obstacles'' with respect to the

immigration of qualified scientists from the former Soviet Union. See

Statement of Senator Brown in 138 Cong. Rec. S1249 (daily ed. Feb. 6,

1992). The interim rule allowed applicants, who were in the United

States and eligible to apply for adjustment of status under section 245

of the Act, the option of filing Form I-140, Immigrant Petition for

Alien Worker, concurrently with Form I-485, Application to Register for

Permanent Residence or Adjust Status, either at a service center, or at

the local district office having jurisdiction over the alien

applicant's place of residence in the United States.

Since the interim rule has been in effect, service centers have

been able to promptly adjudicate SSIA petitions. By handling greater

numbers of these specialized cases than district offices, the service

centers have developed expertise in adjudicating these petitions. This

expertise has enabled them to promptly determine whether the alien has

a bonafide claim to SSIA benefits. The service centers are also better

equipped to capture and report required data concerning the number of

approved SSIA petitions. By centralizing the adjudication of SSIA

petitions at service centers, the Service can achieve enhanced

coordination with other government agencies which may have pertinent

information related to a petition. Accordingly, this interim rule

provides that the service centers will adjudicate all SSIA petitions,

unless specifically designated for local filing by

[[Page 54028]]

the Associate Commissioner for Examinations.

Definition of Eligible Scientist

One commenter objected to the requirement in the interim rule that

the alien establish exceptional ability in the field, contending that

the SSIA does not require a showing of exceptional ability. Section

4(a) of the SSIA provides that ``the Attorney General shall designate a

class of * * * scientists, based on their level of expertise, as aliens

who possess `exceptional ability' in the sciences for purposes of

section 203(b)(2)(A) of the Act.'' Although, as noted by the commenter,

section 4(a) of the SSIA allows allocation of visa numbers from the

employment-based second category, it also refers to the ``level of

expertise'' relating to exceptional ability. The language of section

4(a) of the SSIA plainly requires exceptional ability in the sciences,

as determined by the alien's field of expertise. As noted in the

previous interim rule, because these scientists constitute a

specialized group, the criteria to establish exceptional ability is

limited. If an SSIA applicant satisfies the evidentiary criteria in 8

CFR 204.10(e)(2), he or she meets the exceptional ability requirement.

Two commenters asserted that the interim rule should be expanded to

include aliens involved in non-defense projects and that eligibility

should not be limited to scientists with expertise related to a defense

project. Section 2(3)(B) of the SSIA defines eligible scientists as

those who have expertise either in nuclear, chemical, biological, or

other high technology fields, or who are working on nuclear, chemical,

biological, or other high-technology defense projects. The previous

interim rule provided that the petitioner present evidence that the

alien has expertise in the specific field as it relates to a defense

project. The Service agrees that the rule should be clarified to

reflect that the expertise need not be related to a specific defense

project, as long as the expertise is in nuclear, chemical, biological,

or other high-technology defense fields having clear application to

weapons of mass destruction. However, as mentioned in the preamble to

the previous interim rule, the SSIA and the legislative history clearly

indicate that not every scientist from the former Soviet Union is meant

to benefit from this provision. Senator Brown stated that the SSIA

covers those scientists who ``have specialized in weapons of mass

destruction.'' See 138 Cong. Rec. S1249 (daily ed. Feb. 6, 1992). The

phrase ``expertise in other high technology fields'' in the previous

interim rule may have been misin- terpreted. Congress intended to limit

eligibility under the SSIA to scientists or engineers having expertise

clearly applicable to the development or use of weapons of mass

destruction. For example, a scientist who, in the course of conducting

medical research, has developed a bio-chemical agent which can be used

in biological warfare may, under center circumstances, be able to

establish eligibility for classification under the SSIA. On the other

hand, a nuclear power plant engineer who cannot clearly demonstrate the

requisite statutory expertise would be ineligible for SSIA

classification. This interim rule will, therefore, be amended to

clarify these matters. This rule amends the definition of eligible

independent states and Baltic scientists to include scientists or

engineers who have expertise in a high-technology field which is

clearly applicable to the design, development, and production of

ballistic missiles, nuclear, biological, chemical, or other high-

technology weapons of mass destruction, or who are working on, the

design, development, and production of ballistic missiles, nuclear,

biological, chemical, or other high-technology weapons of mass

destruction.

One commenter suggested that the definition under Sec. 204.10(d)

should include scientists involved in research related to the design,

development, and production of ballistic missiles. The commenter was of

the opinion that the inclusion of the word ``research'' would help to

prevent Service adjudicators from interpreting the qualifying

activities as being exclusive. The original interim rule cites ``the

design, development, and production of ballistic missiles'' as an

example of the expertise possessed by the intended beneficiaries of

this legislation; namely, ``scientists who have specialized in

developing weapons of mass destruction.'' That example, however, is not

an exclusive test for eligibility. Neither the May 27, 1993, interim

rule nor this interim rule would deny SSIA benefits to a scientist

whose work has clear applicability to the development of such weapons,

whether that work is characterized as ``research,'' ``design,'' or any

other appropriate term.

Another commenter was of the opinion that requiring supporting

testimony from recognized experts is impractical because the defense

industry in the former Soviet Union remains shrouded in secrecy and

persons may face sanctions for revealing information on defense-related

projects. According to several commenters and representatives of

interested government agencies, some scientists who are most qualified

for the benefits of the SSIA currently live under constraints of

censorship which hinder them from submitting full documentation of

their qualifications, or from procuring testimonials from qualified

authorities in their countries.

In order to provide additional opportunities for qualified

scientists who may be unable to obtain the necessary written testimony

from experts, this rule allows for consultation with other government

agencies having expertise in defense matters. The applicant must submit

a statement as to how he or she qualifies under the SSIA. In evaluating

the claimed qualifications of beneficiaries in such circumstances, the

Service may consult other United States Government agencies having

expertise in defense matters including, but not limited to, the

Department of Defense, the Department of State, and the Central

Intelligence Agency. In these cases the Service may, in the exercise of

administrative discretion, accept a favorable report in lieu of the

documentation prescribed in Sec. 204.10(e)(2) (ii) or (iii).

The previous interim rule at Sec. 204.10(e)(2) prescribed certain

documentation to establish a beneficiary's qualifications for

classification under the SSIA. The required documentation included

written testimony regarding the alien's qualifications from either two

recognized national or international experts in the same field or from

an official of an agency of the United States Government. Two

commenters found this documentary requirement to be excessively

restrictive. One commenter suggested that the rule be revised to allow

an applicant to submit an opinion from any credible, competent witness,

such as a university professor or an individual from private industry

who is an expert in the field, or other documentary evidence, such as a

true copy of the alien's university diploma, evidence of secret

clearance from the former Soviet Government, or a detailed declaration

by the alien. The Service does not agree with the recommendation that

the documentary requirements should be relaxed. In adjudicating SSIA

visa petitions, the service has identified certain problems which need

to be addressed to ensure that only qualified scientists are approved

under the SSIA. Among other things, the current economic difficulties

confronting weapons systems scientists of the former Soviet Union also

affect much larger numbers of aliens who are not qualified under the

SSIA. The Service has received written statements submitted on behalf

of unqualified

[[Page 54029]]

individuals which, on their face, indicate that the alien has expertise

in nuclear, biological, chemical, or other fields involving weapons of

mass destruction. Therefore, additional evidence is required. One

commenter suggested that the ``Trudavaya Knizhka,'' an official work

document from the former Soviet Union which summarizes one's work

experience, be considered acceptable evidence. The Service agrees that

the ``Trudavaya Knizhka'' is an important and relevant document. In

addition, the applicant should present other relevant documentation,

such as evidence of significant awards or publications. This interim

rule requires the alien to submit the ``Trudavaya Knizhka,'' evidence

of significant awards or publications, and other comparable evidence.

If the alien lacks any of these documents, he or she must explain why

they are not available.

This rule also regularizes the processing of requests made to

United States Government agencies for written testimonials and enhances

the reliability of endorsements issued by government agencies. This

rule provides that the authority of a United States Government agency

to issue endorsements regarding a Soviet scientist's qualifications is

vested in the agency's ``head or duly appointed designee.'' The

authority to make certifications under this provision is presumed to be

vested exclusively in the agency head, unless that agency notifies the

Commissioner of the Immigration and Naturalization Service in writing

of other officials to whom that authority has been delegated. Each

agency that chooses to participate in this program retains the right to

determine its own review procedures.

Because the SSIA waives the job offer requirement in section

203(b)(2)(A) of the Act, the Service determined that the labor

certification requirement is also waived in the case of an eligible

scientist. To properly identify eligible scientists, the Service

requires an orderly statement of their qualifications. The information

contained in Part B of the Department of Labor Form ETA 750,

Application for Alien Employment Certification, which lists the alien's

qualifications and experience, will clarify and expedite the

adjudication of an SSIA petition. The petition shall also include a

supplementary statement of the beneficiary's relevant experience within

the past 10 years. The Form ETA 750 Part B can be prepared either by

the alien or by the petitioner.

Numerical Ceiling

Section 4(c) of the SSIA provides that no more than 750 petitions

may be approved on behalf of eligible scientists. The Service may not,

therefore, accept additional petitions under the SSIA if the ceiling of

750 principal beneficiaries has been reached prior to October 25, 1996.

Accordingly, the language of Sec. 204.10(a) is amended to clarify this

matter.

All of the visa numbers issued to the scientists and to their

spouses and children under the SSIA are being deducted from the

employment-based immigrant visa quota under section 203(b)(2) of the

Act. A number of commenters and Service field offices have expressed

concern as to the method by which the numbers of immigrant visas issued

under this provision will be counted for recordation. In order to

enable the Service to count the number of visas allotted to the

principal scientist beneficiaries under this law, a new immigrant visa

code has been developed for them: ES1 in the case of a scientist

admitted from abroad, and ES6 in the case of a scientist who adjusted

status in the United States. Spouses and unmarried children of SSIA

beneficiaries will be classified as accompanying or following to join

under the employment-based second preference.

Termination Date

Section 4(d) of the SSIA states that the authority of subsection

(a), under which the Attorney General designates a class of scientists

from the former Soviet Union for purposes of section 203(b)(2)(A) of

the Act, terminates 4 years after enactment of the SSIA. The authority

to designate the class, therefore, expires on October 24, 1996. Under

the language of section 4(d) of the SSIA, the authority to classify a

qualified Soviet scientist terminates on that date. The Service may

grant an applicant SSIA classification only upon approval of the I-140

petition.

The original interim rule provided that an SSIA applicant meets the

statutory deadline by filing a petition on or before October 24, 1996.

As noted above, the statute requires the applicant to receive SSIA

classification before that date. Accordingly, this interim rule

requires that the applicant must have an SSIA petition approved on his

or her behalf on or before October 24, 1996.

The Service's implementation of this rule as an interim rule, with

provision for post-promulgation public comment, is based upon the

``good cause'' exception found at 5 U.S.C. 553(d)(3). The reasons and

the necessity for the immediate implementation of this interim rule are

as follows: The national security considerations which were discussed

in the May 27, 1993, interim rule at 58 FR 30700, apply equally to this

rule. This grave economic and military situation in the former Soviet

Union continues to raise concerns that some of the leading scientists

of the former Soviet Union may be driven ``to market their skills to

unscrupulous nations bent on developing weapons that can threaten the

world's security.'' See 138 Cong. Rec. S1249 (daily ed. Feb. 6, 1992).

The changes established in this rule, based on the Service's experience

in adjudicating SSIA petitions, are necessary to ensure that the goals

of the SSIA will be accomplished. In addition, the approaching

termination date for benefits under the SSIA increases the urgency of

implementing this rule to expedite the timely filing and adjudication

of such cases before the statute expires.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Commissioner of the

Immigration and Naturalization Service certifies that this rule will

not, if promulgated, have a significant adverse economic impact on a

substantial number of small entities. This rule merely modifies

existing regulations concerning the immigration of up to 750 scientists

from the former Soviet Union. It will not significantly change the

number of persons who immigrate to the United States. Any impact on

small business entities will be, at most, indirect and attenuated.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, section 3(f),

Regulatory Planning and Review, and the Office of Management and Budget

has waive its review process under section 6(a)(3)(A).

Executive Order 12612

This regulation will not have substantial direct effects on the

States, on the relationship between the National Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federal

Assessment.

Executive Order 12606

The Commissioner of Immigration and Naturalization Services

certifies that she has assessed this rule in light of the criteria in

Executive Order 12606

[[Page 54030]]

and has determined that it will have no effect on family well-being.

This rule contains information collection requirements which have

been approved by the Office of Management and Budget (OMB) under the

provisions of the Paperwork Reduction Act. The OMB control numbers for

these collections are contained in 8 CFR 299.5, display of control

numbers.

List of Subjects in 8 CFR Part 204

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

Accordingly, part 204 of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

PART 204--IMMIGRANT PETITIONS

1. The authority citation for part 204 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,

1255; 8 CFR part 2.

2.Section 204.10 is amended by:

a. Removing the last two sentences in paragraph (a) and adding a

new sentence in their place;

b. Revising paragraph (b);

c. Revising paragraph (d);

d. Revising paragraph (e)(2);

e. Redesignating paragraph (g) as paragraph (h);

f. Adding a new paragraph (g); and by

g. Revising newly redesignated paragraph (h) to read as follows:

Sec. 204.10 Petitions by, or for, certain scientists of the

Commonwealth of Independent States or the Baltic states.

(a) General. * * * The Service must approve a petition filed on

behalf of the alien on or before October 24, 1996, or until 750

petitions have been approved on behalf of eligible scientists,

whichever is earliest.

(b) Jurisdiction. Form I-140 must be filed with the service center

having jurisdiction over the alien's place of intended residence in the

United States, unless specifically designated for local filing by the

Associate Commissioner for Examinations. To clarify that the petition

is for a Soviet scientist, the petitioner should check the block in

part 2 of Form I-140 which indicates that the petition is for ``a

member of the professions holding an advanced degree or an alien of

exceptional ability'' and clearly print the words ``SOVIET SCIENTIST''

in an available space in Part 2.

* * * * *

(d) Definitions. As used in this section:

Baltic states means the sovereign nations of Latvia, Lithuania, and

Estonia.

Eligible independent states and Baltic scientists means aliens:

(i) Who are nationals of any of the independent states of the

former Soviet Union or the Baltic states; and

(ii) Who are scientists or engineers who have expertise in a high-

technology field which is clearly applicable to the design,

development, or production of ballistic missiles, nuclear, biological,

chemical, or other high-technology weapons of mass destruction, or who

are working on the design, development, and production of ballistic

missiles, nuclear, biological, chemical, or other high-technology

weapons of mass destruction.

Independent states of the former Soviet Union means the sovereign

nations of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,

Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and

Uzbekistan.

(e) * * *

(2) Evidence that the alien possesses exceptional ability in the

field. Such evidence shall include:

(i) Form ETA 750B, Statement of Qualifications of Alien and a

supplementary statement of relevant experience within the past ten

years; and

(ii) Written testimony that the alien has expertise in a field

described in paragraph (d) of this section, or that the alien is or has

been working on a high-technology defense project or projects in a

field described in paragraph (d) of this section, from either two

recognized national or international experts in the same field or from

the head or duly appointed designee of an agency of the Federal

Government of the United States; and

(iii) Corroborative evidence of the claimed expertise, including

the beneficiary's official Labor Record Book (Trudavaya Knizhka), any

significant awards and publications, and other comparable evidence, or

an explanation why the foregoing items cannot be submitted; or

(iv) In the case of a qualified scientist who establishes that he

or she is unable to submit the initial evidence prescribed by

paragraphs (e)(2) (ii) or (iii) of this section, a full explanation and

statement of the facts concerning his or her eligibility. This

statement must be sufficiently detailed so as to enable the Service to

meaningfully consult with other government agencies as provided in

paragraph (g) of this section.

* * * * *

(g) Consultation with other United States Government agencies. In

evaluating the claimed qualifications of applicants under this

provision, the Service may consult with other United States Government

agencies having expertise in defense matters including, but not limited

to, the Department of Defense, the Department of State, and the Central

Intelligence Agency. The Service may, in the exercise of discretion,

accept a favorable report from such agency as evidence in lieu of the

documentation prescribed in paragraphs (e)(2) (ii) and (iii) of this

section.

(h) Decision on and disposition of petition. If the beneficiary is

outside of the United States, or is in the United States but seeks to

apply for an immigrant visa abroad, the approved petition will be

forwarded by the service center to the Department of State's National

Visa Center. If the beneficiary is in the United States and seeks to

apply for adjustment of status, the approved petition will be retained

at the service center for consideration with the application for

adjustment of status. If the petition is denied, the petitioner will be

notified of the reasons for the denial and of the right to appeal in

accordance with the provisions of 8 CFR part 103.

Dated: August 24, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-25931 Filed 10-18-95; 8:45 am]

BILLING CODE 4410-10-M