Applicant Processing for Family Unity Benefits

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 242, 264, 274a, and 299

[INS No. 1414-91]

RIN 1115-AC39

Applicant Processing for Family Unity Benefits

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule adopts with amendments the interim rule which

was published by the Immigration and Naturalization Service on February

25, 1992, implementing the provisions of the Family Unity Program

created by the Immigration Act of 1990 which provides a means by which

certain eligible aliens may obtain permanent resident status. This rule

also provides voluntary departure and work authorization for certain

eligible immigrants.

EFFECTIVE DATE: December 21, 1995.

FOR FURTHER INFORMATION CONTACT: Jack Hartsoch, Office of Service

Center Operations, Immigration and

[[Page 66063]]

Naturalization Service, 425 I Street NW., Room 3040, Washington, DC

20536, telephone (202) 514-3156.

SUPPLEMENTARY INFORMATION: On November 29, 1990, the Immigration Act of

1990, Pub. L. 101-649 (IMMACT 90), was enacted. Section 301 of IMMACT

90 provides for relief from deportation, and the granting of employment

authorization, to an eligible immigrant who is the spouse or unmarried

child of a legalized alien granted temporary or permanent resident

status pursuant to section 210 or 245A of the Immigration and

Nationality Act (the Act), or permanent resident status under section

202 of the Immigration Reform and Control Act of 1986 (Cuban/Haitian

Adjustment). This new program supersedes the administrative Family

Fairness policy which began in November 1987. That policy allowed

district directors to exercise the Attorney General's authority to

defer deportation proceedings of certain family members of legalized

aliens where compelling or humanitarian factors existed. On August 31,

1991, the Immigration and Naturalization Service (Service) published in

the Federal Register at 56 FR 42948 a proposed rule to implement the

provisions of section 301 of IMMACT 90, as it relates to the Family

Unity Program. Subsequently, on February 25, 1992, the Service

published in the Federal Register an interim rule at 57 FR 6457-6472

with request for comments. The interim rule as published on February

25, 1992 is adopted as final with amendments to 8 CFR parts 242 and

274a only. This final rule reflects the amendment to section 206 made

by the Immigration and Nationality Technical Corrections Act of 1994,

Public Law 103-416, Sec. 206, 108 Stat. 4305, 4311-12 (1994). This rule

also provides status under Sec. 242.5 for children born to mothers

granted status under the Family Unity Program who are authorized to

depart and reenter the United States.

Comments

The discussion that follows summarizes the public comments

submitted in response to the interim rule and explains the revisions

adopted in the final rule.

Residency Since May 5, 1988

The interim rule provided that a qualifying family member would be

eligible for Family Unity Program benefits if he or she had been in the

United States on May 5, 1988, and had resided in the United States

since that date. Several commenters asserted that no basis existed for

the continuous residency requirement. They did not believe that this

requirement had any statutory basis and that it was irrelevant whether

an alien actually continued to remain in the United States after May 5,

1988.

Section 301(f) of IMMACT 90 states as follows:

Nothing in this section shall be construed as authorizing an

alien to apply for admission to, or to be admitted to, the United

States in order to obtain benefits under this section.

The statute now requires an applicant to have entered the United

States before May 5, 1988, in the case of a relationship to a legalized

alien described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of

IMMACT 90, or as of December 1, 1988, in the case of a relationship to

a legalized alien described in subsection (b)(2)(A), and also prohibits

the admission of an alien for the purposes of obtaining Family Unity

Program benefits. The Service interprets these two provisions as

requiring an applicant for Family Unity Program benefits to have

continuously resided in the United States since May 5, 1988, in the

case of a relationship to a legalized alien described in subsection

(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90, or as of December

1, 1988, in the case of a relationship to a legalized alien described

in subsection (b)(2)(A). Further, the purpose of the Family Unity

Program is to prevent the separation of families, and to provide a

means by which qualifying family members already in the United States

in illegal status can eventually apply for permanent resident status.

The underlying administrative Family Fairness policy supports this

premise. The Service created the Family Fairness policy as a means of

precluding the separation of family members by deferring their

deportation. The purpose of the policy was to allow family members to

reside together in the United States until they could acquire legal

status. Whether relating to the Family Fairness policy or the Family

Unity Program, once a family member no longer resides with the family,

the reason for which the status was granted no longer exists.

Therefore, the Service will retain the continuous residency

requirement. In order to determine if the applicant has maintained a

continuous residence in the United States since May 5, 1988, in the

case of a relationship to a legalized alien described in subsection

(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90, or as of December

1, 1988, in the case of a relationship to a legalized alien described

in subsection (b)(2)(A), the Service will consider the factors set

forth in Matter of Huang, 19 I&N 749, 753 (BIA 1988). In Huang, the

Board of Immigration Appeals enumerated several factors which should be

considered in determining whether an alien is returning from a

temporary visit abroad, thereby retaining his continuous residency in

the United States. These factors include the duration of the alien's

absence from the United States; the location of the alien's family

ties, the alien's property holdings, and job; and the intention of the

alien with respect to both the location of his actual home and the

anticipated length of his excursion. Matter of Quijencio, 15 I&N 95, 97

(BIA 1974); Matter of Castro, 14 I&N Dec. 492 (BIA 1973); Matter of

Montero, 14 I&N 399, 400 (BIA 1973).

The Service will not interpret ``continuous residence'' as

requiring ``continuous physical presence.'' A qualifying family member

who meets the requirements of the Family Unity Program will be granted

a 2-year period of voluntary departure. Voluntary departure is a form

of relief from deportation and is available only to persons already in

the United States.

Legalized Aliens/Applications After May 5, 1988

The interim rule provides that an alien who filed a legalization

application on or before May 5, 1988, will be treated as having been a

legalized alien as of May 5, 1988, for purposes of the Family Unity

Program.

Section 301(a) of IMMACT 90 states as follows:

The Attorney General shall provide that in the case of an alien

who is [a qualified immigrant and the spouse or unmarried child of a

legalized alien] as of May 5, 1988 * * *. [Emphasis added]

.Several commenters believe that the statute was never intended to

exclude family members of legalized aliens who filed after May 5, 1988,

from the Family Unity Program. They note that the filing deadline for

the Special Agricultural Worker Program did not occur until November

30, 1988. They believe that an alien who filed a timely application

after May 5, 1988, but before November 30, 1988, should also be treated

as a legalized alien for purposes of the Family Unity Program.

Congress has acted to resolve this issue. Section 206(a) of the

Immigration and Nationality Technical Corrections Act of 1994, Pub. L.

103-416, 108 Stat. at 4311, amends section 301 of IMMACT 90 to

distinguish the legalization program under section 245A of the Act and

the Cuban-Haitian adjustment provision in section 202 of

[[Page 66064]]

IRCA from the SAW program under section 210 of the Act. The Family

Unity Program eligibility date for relatives of aliens legalized under

the SAW program is now December 1, 1988, to correspond to the filing

deadline for that program. This amendment is reflected in this final

rule.

Children Born After May 5, 1988

The Service recognizes that the situation may arise where a child

may be born abroad to an alien granted voluntary departure status and

advance authorization to travel under the Family Unity Program.

Although there is no provision in the statute to provide status to the

child, it is also true that the intent of the statute was to enable

specific family members to reside together in the United States.

Therefore, although the child cannot qualify for benefits under the

Family Unity Program, the Service will provide for the granting of

voluntary departure under 8 CFR 242.5, to a child of a legalized alien

residing in the United States, who was born during an authorized

absence of the mother who is currently either a legalized alien or a

beneficiary of the Family Unity Program. This provision will also

include children born to aliens residing in the United States, who were

denied status in the Family Unity Program and granted voluntary

departure status under 8 CFR 242.5, where the other parent is a

legalized alien residing in the United States.

Waivers

Several commenters sought clarification regarding the availability

of existing waivers of deportability for applicants for the Family

Unity Program. The interim regulation reflects the statute in making

aliens who are deportable under certain grounds ineligible for the

Family Unity Program benefits. However, an alien who has been granted

any available waiver is not deportable and is not ineligible for the

Family Unity Program. The final rule is modified to clarify that

existing waivers are applicable to applicants for the Family Unity

Program.

Response to Notice of Intent To Deny

One commenter suggested that the Service should allow an applicant

for Family Unity Program benefits to submit a good faith request for an

extension of time to submit a response to a notice of intent to deny.

An applicant may request more time to respond to a notice to deny.

However, the Service's decision whether or not to grant the request is

discretionary. To ensure consistency with application procedures in

other Service programs, the provisions in this rule are consistent with

the general requirements and procedures for applications and petitions

in 8 CFR part 103.

Denied Cases

The Service initially proposed an administrative appeal procedure.

However, upon further review, this procedure was eliminated in the

interim rule. One commenter believed that the Service should not have

eliminated the administrative appeal process.

The Service set forth its reasons for eliminating the proposed

administrative appeal process in the Supplementary Information to the

interim rule published at 57 FR 6459-6460. The Service adheres to that

reasoning and will not adopt an administrative appeal procedure.

Issuance of Orders To Show Cause (OSC)

A commenter was concerned that the Service would issue an OSC (Form

I-221) while a Family Unity Program application is pending. The Service

will not issue an OSC during the pending adjudication of an Application

for Voluntary Departure Under the Family Unity Program (Form I-817),

unless the OSC is based on a paragraph in section 241(a) of the Act

which would render the applicant ineligible for the Family Unity

Program.

Several commenters believed that having applicants placed in

deportation proceedings as a result of a failure to meet basic

eligibility requirements, such as residence by the required date, is a

severely disproportionate consequence and a waste of Service resources,

as the denied applicants are likely to be eligible for a second

preference visa petition and will eventually be allowed to immigrate to

the United States. The commenters recommended that the Service continue

the policy under the administrative Family Fairness policy of not

issuing OSCs in denied cases, except in egregious cases such as a

serious criminal conviction.

However, as was discussed in the Supplementary Information to the

interim rule, the Service must fulfill its enforcement responsibility

under the Act. Therefore, this provision will remain as it is in the

interim rule.

Several commenters proposed that the issuance of an OSC be delayed

for 90 days after a second denial. They pointed out that the only way

an alien may appeal a denial of Family Unity Program benefits would be

to file a complaint against the Service in district court alleging

abuse of discretion. Further, the commenters allege that the Service is

making it difficult for the alien to bring these charges when it will

only delay issuance of the OSC for the first denial. The commenters

conclude that, in order to balance the removal of the proposed

administrative appeals process, the Service should allow applicants

more time after a second denial to seek judicial review.

The Service believes that granting a 90-day grace period after

every denial before issuing an OSC might simply encourage a person to

file repeated applications with the sole intent to protract the

adjudication process and delay the issuance of an OSC. The Service

believes that ample safeguards exist in the current procedure to enable

an applicant to perfect an application and/or appeal a denial of

benefits. Denied applicants will have at least 90 days from the first

denial to refile a second application before the Service will issue an

OSC. If the application is denied again, the applicant may still seek

judicial review before the district court. Therefore, the final rule

will not be amended to allow for a delayed issuance of an OSC after a

second denial.

Release From Detention/Administrative Closure/Automatic Stay of

Deportation

Several commenters suggested that the regulations provide that a

demonstration of prima facie eligibility for Family Unity Program

benefits should result in:

(1) The alien's release from detention on his or her own

recognizance;

(2) Administrative closure of the deportation proceedings, provided

a final administrative order of deportation has not been issued; and

(3) An automatic stay of deportation for a person with a final

deportation order.

These commenters asserted that this would promote an efficient use

of the budgets of the Service and the Executive Office for Immigration

Review (EOIR) to be faithful to Congress' intent and would promote

uniformity in national enforcement practice.

The Service may currently consider the requests of release from

detention and stays of deportation on a case-by-case basis for Family

Unity Program applicants under sections 242 and 243 of the Act. The

Service is without authority to consider a request for administrative

closure of a deportation proceeding.

Concurrent Jurisdiction of EOIR

Several commenters believe it would be helpful to have a provision

stating that EOIR has concurrent jurisdiction with the Service in cases

where an

[[Page 66065]]

applicant has been denied Family Unity Program benefits and is in

deportation proceedings. The commenters suggest that the reference to

judicial review in the interim rule includes the possibility of seeking

review before an immigration judge.

The statute does not provide for administrative review of the

Service's denial of Family Unity Program benefits. If an alien's

application for Family Unity Program benefits is denied, he or she may

still request relief from deportation in the form of voluntary

departure in a deportation hearing before an immigration judge. Such a

request would be made pursuant to section 244 of the Act and would be a

separate determination from that made by the Service pursuant to

section 301 of the Immigration Act of 1990. An immigration judge's

denial of voluntary departure in deportation proceedings could then be

appealed to the Board of Immigration Appeals and the Federal circuit

court of appeals.

Employment Authorization

Several commenters proposed that the Service apply the same

practice to the Family Unity Program as was applied to the Legalization

Program and the administrative Family Fairness policy regarding

employment authorization, for example, granting interim employment

authorization for the time period between the granting of the

application and the issuance of the employment authorization document

(EAD) at a local Service office. Several commenters suggested that such

interim work authorization should be stamped directly onto the receipt

notice, with the period of validity to coincide with the EAD

appointment date plus 90 days.

The Service's position regarding the issue of providing interim

work authorization to Family Unity Program applicants remains

unchanged. The Service has determined that a uniform procedure for

issuance of EADs is necessary. Further, interim work authorization is

less secure and presents enforcement problems. For the above reasons

and those set forth in the interim rule, the Service will not authorize

interim employment for the period between the granting of an

application for Family Unity Program benefits and the issuance of an

EAD. Instead, the applicant may apply on Form I-765 for issuance of an

EAD, concurrently with Form I-817. To file Form I-765 at a Service

Center, the applicant must include two (2) ADIT-style photographs.

Identify Document for Employment Authorization

The interim rule, at 8 CFR 242.6(e)(5), contained the language,

``issued by legitimate agency of the United States or a foreign

government,'' when referring to an identity document the alien must

present at the time of filing for an application for an EAD. Some

commenters expressed concern that the language could be construed too

narrowly to preclude State or local government-issued identification

documents (whether domestic or foreign), and recommended that the final

language of the rule clarify that identification documents will be

accepted if they have been issued by smaller scale government sources,

provided they are legitimate.

The intent of this requirement is to ensure that a person appearing

at the local district office to obtain an EAD establish that he or she

is the person granted Family Unity Program benefits before being given

the EAD. The final rule clarifies this point.

Reference on Forms I-688B and I-551

One commenter requested that the Employment Authorization Card,

Form I-688B, and the Alien Registration Receipt Card, Form I-551,

include a reference to section 301 of IMMACT 90 to assist in

identifying participants in this program.

The Form I-688B does have a reference to the Family Unity Program.

Section 274a.12(a)(13) is used exclusively for the Family Unity

Program. The Form I-551 reflects the section of law under which the

alien immigrated but does not directly indicate the alien's previous

participation in the Family Unity Program.

Continuing Relationship Requirement

One commenter requested a clarification regarding the continuing

relationship requirement, specifically the definitions of ``child'' and

``spouse.''

The definition of ``child'' is the same as is defined in section

101(b)(1) of the Act, with the exception that the alien will not lose

eligibility for the Family Unity Program by virtue of having attained

the age of 21 after May 5, 1988, in the case of a relationship to a

legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of

section 301 IMMACT 90, or as of December 1, 1988, in the case of a

relationship to a legalized alien described in subsection (b)(2)(A).

The definition of ``spouse'' includes the term as described in section

101(a)(35) of the Act. The term ``spouse'' is also described in

decisions relating to the petitioning process for sections 201(b) and

203(a)(2) of the Act. There is no special definition of spouse

associated with this rule.

In the interim rule, at Sec. 242.6(c)(1)(ii), an eligible immigrant

is required to also be eligible for family-sponsored second preference

immigrant status under section 203(a)(2) of the Act based on the same

relationship. One commenter believed that the ``based on the same

relationship'' phrase should not be included in the promulgation of

final regulations and that marital status on May 5, 1988, and not any

time thereafter, be the relevant determination of eligibility. The

commenter concluded that the disqualification is inconsistent with the

purposes of the Family Unity Program.

Pursuant to section 301 paragraphs (a) and (b)(1) of the

Immigration Act of 1990, the required relationship to a legalized alien

must have existed on May 5, 1988, in the case of a relationship to a

legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of

section 301 IMMACT 90, or as of December 1, 1988, in the case of a

relationship to a legalized alien described in subsection (b)(2)(A).

The issue is whether that relationship must continue in order for

eligibility to continue, or whether the alien granted benefits under

the Family Unity Program should be allowed to retain those benefits

even if the required relationship changes.

The purpose of the Family Unity Program is to provide a transition

for specific family members of legalized aliens to family-sponsored

second preference immigrant status. If benefits under the Family Unity

Program were retained even after a required relationship ended by

marriage, divorce, or death, and the person became ineligible for

family-sponsored second preference classification, the alien could

potentially remain in the Family Unity Program without a means to

become a permanent resident. This would go far beyond Congress' intent

for the program and would be inconsistent with section 205 of the Act.

In essence, this regulation applies the same rules to the Family

Unity Program which are applicable to persons with approved family-

sponsored immigrant petitions in similar circumstances. If a marriage

to a petitioner ends, or the unmarried son or daughter of a lawful

permanent resident petitioner marries, approval of an immigrant

petition based upon that relationship is automatically revoked, and

that petition may no longer be used as a basis for immigration.

[[Page 66066]]

Therefore, if the legalized alien's child marries, or if the

legalized alien's marriage to the spouse ends through divorce or death,

neither the child nor the spouse can retain benefits under the Family

Unity Program because of the termination of the relationship by which

he or she qualified.

Petition/Extension Application

In order to obtain an extension of voluntary departure, section

242.6(e)(7) of the interim rule requires that a petition for family-

sponsored immigrant status be filed on behalf of the applicant during

the initial period of voluntary departure. Several commenters asserted

that this requirement is unnecessary.

The Service recognizes that the statute does not specifically

require that an immigrant petition be filed in order to obtain an

extension of voluntary departure; however, since the intent of the

program is to provide a bridge to permanent residence, it is reasonable

to require the family member to at least file the second-preference

petition. Further, this regulation will assist the Service in moving

toward closure of the need for the Family Unity Program, and provide

lawful permanent resident status for the participants of the Family

Unity Program. The requirement continued from the interim rule is being

modified so as to relate only to those applicants whose petitioning

family member is a lawful permanent resident and thereby eligible to

file the petition.

Extension/Demonstration of Continued Eligibility

Several other commenters suggested that the rule be modified to

require a person seeking Family Unity Program benefits to demonstrate

continued eligibility only from the date of execution of the prior

Family Unity Program application. The commenters conclude that this

would streamline the extension process and save time and resources for

both the Service and the applicants. Several commenters also suggested

that such simplification should result in a reduced fee.

The final rule will be amended to reflect that the applicant for an

extension will not be required to submit evidence already submitted.

However, the applicant will be required to submit evidence of

continuing eligibility since the first application for the Family Unity

Program was submitted. The applicant will also be required to notify

the Service of any changes relating to the first application.

Two commenters suggested that an applicant for voluntary departure

under the Family Unity Program only be required to submit a simple

half-page extension form or a Form I-817 by itself, along with a

reduced fee. Since activities such as mail distribution, fee

receipting, data entry, records verification, adjudication, and

notification are associated with the processing of any form, the fee

will remain the same.

The Service is committed to charging a fee that accurately reflects

costs. The Service will continue to use the form created for this

program, Form I-817, Application for Voluntary Departure Under the

Family Unity Program. The fee is consistent with 31 U.S.C. 9701 and the

guidelines of the Office of Management and Budget in OMB Circular A-25,

for an application for an initial grant of family unity benefits and

for an application to extend family unity benefits.

Condition/Status

In the interim rule, an alien who is granted advance authorization

to travel outside the United States and who returns to the United

States in accordance with such authorization, and who is found not to

be excludable under section 301(a)(1) of IMMACT 90, shall be inspected

and admitted in the same immigration condition the alien had at the

time of departure for the remainder of the 2-year voluntary departure

previously authorized under the Family Unity Program. One commenter was

troubled about the use of the term ``condition'' instead of ``status''

for persons who depart and return on advance parole.

To avoid an appearance that the Service is not following the

statute, the word ``status'' will be used in the final rule. If the

person was in status at the time of departure, the alien will be placed

in status upon return to the United States. Conversely, if the person

was out of status upon departure, the alien will be out of status upon

his or her return. Thus, existing sections of the Act, such as section

245, are unaffected by section 301 of IMMACT 90. If an alien was

ineligible to adjust status upon departure, the alien will be

ineligible to adjust status upon return.

Visa Processing

One commenter requested clarification regarding the processing of

immigrant petitions. Section 301 of IMMACT 90 is not affected by

procedures relating to immigrant petitions.

Confidentiality

One commenter suggested that the Service adopt a relation providing

for confidentiality for the Family Unity Program application,

prohibiting the use of information gathered for the Family Unity

program in establishing deportability.

The Immigration Reform and Control Act required confidentiality in

clear statutory language. No such provision was made in the enabling

statute for the Family Unity Program.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, 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 significant economic impact on a substantial number of

small entities because the rule relates solely to individual

immigration benefits.

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, Sec. 3(f), Regulatory

Planning and Review, and the Office of Management and Budget has waived

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

Executive Order 12612

The regulations adopted herein 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 Federalism Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service

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

Executive Order 12606 and has determined that this regulation will

enhance family well-being by providing for family unity of eligible

persons.

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. Clearance numbers are

contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations

[Government agencies], Freedom of Information, Privacy, Reporting and

[[Page 66067]]

recordkeeping requirements, Surety bonds.

8 CFR Part 242

Administrative practice and procedure, Aliens, Crime.

8 CFR Part 264

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment

penalties, Report and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

Accordingly, the interim rule amending 8 CFR parts 103, 242, 264,

274a and 299 which was published at 57 FR 6457-6462 on February 25,

1992, is adopted as a final rule with the following changes:

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE

UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

1. The authority citation for part 242 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,

1252b, 1254, 1362; 8 CFR part 2.

2. In Sec. 242.5, paragraph (a) is amended by:

a. Removing ``or'' before paragraph (a)(2)(viii);

b. Removing the ``.'' at the end of the paragraph and replacing it

with a ``; or'';

c. Adding paragraph (a)(2)(ix); and

d. Revising paragraph (a)(3) to read as follows:

Sec. 242.5 Voluntary departure prior to commencement of hearing.

* * * * *

(a) * * *

(2) * * *

(ix) who is the child of a legalized alien currently residing in

the United States, born during an authorized absence from the United

States of the mother who is:

(A) A legalized alien; or

(B) An alien currently residing in the United States under

voluntary departure pursuant to the Family Unity Program.

(3) Periods of time/employment. (i) Except for paragraphs (a)(2)

(v) through (ix) of this section, any grant of voluntary departure

shall contain a time limitation of usually not more than 30 days, and

an extension of the original voluntary departure time shall not be

authorized except under meritorious circumstances, as determined on a

case-by-case basis. Upon failure to depart, deportation proceedings

will be initiated. As an exception to the 30-day voluntary departure

period, an eligible alien under:

(A) Paragraph (a)(2)(v) of this section may be granted voluntary

departure in increments of 1 year conditioned upon the F-1 or J-1 alien

maintaining a full course of study at an approved institution of

learning, or upon abiding by the terms and conditions of the exchange

program within the limitations imposed by 22 CFR 514.23; or

(B) Paragraphs (a)(2)(vi) (A), (B), and (C) of this section may be

granted voluntary departure until the American Consul issues an

immigrant visa and, at the discretion of the district director,

issuance may be in increments of 30 days, conditioned upon continuing

availability of an immigrant visa as shown in the latest Visa Office

Bulletin and upon the alien's diligent pursuit of efforts to obtain the

visa; or

(C) Paragraphs (a)(2)(vi) (D) and (E) of this section may be

granted voluntary departure, conditioned upon the continued validity of

the approved third- or sixth-preference petition, as appropriate, and

the alien's retention of the status established in the petition for an

indefinite period until an immigrant visa is available; or

(D) Paragraphs (a)(2) (vii) and (viii) of this section may be

granted voluntary departure in increments of time, not to exceed 1

year, as determined by the district director to be appropriate in the

case; or

(E) Paragraph (a)(2)(ix) of this section may be granted voluntary

departure in increments of time, not to exceed 2 years.

(ii) An alien eligible for voluntary departure in paragraphs (a)(2)

(v) through (viii) of this section may apply for employment

authorization under the appropriate citation in Sec. 274a.12 of this

chapter.

* * * * *

3. Section 242.6 is revised to read as follows:

Sec. 242.6 Family Unity Program.

(a) General. Except as otherwise specifically provided in paragraph

(b) of this section, the definitions contained in Title 8 of the Code

of Federal Regulations shall apply to the administration of this

section.

(b) Definitions. As used in this section:

Eligible immigrant means a qualified immigrant who is the spouse or

unmarried child of a legalized alien.

Legalized alien means an alien who:

(i) Is a temporary or permanent resident under section 210 or 245A

of the Act; or

(ii) Is a permanent resident under section 202 of the Immigration

Reform and Control Act of 1986 (Cuban/Haitian Adjustment).

(c) Eligibility--(1) General. An alien who is not a lawful

permanent resident is eligible to apply for benefits under the Family

Unity Program if he or she establishes:

(i) That he or she entered the United States before May 5, 1988 (in

the case of a relationship to a legalized alien described in subsection

(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90)), or as of December

1, 1988 (in the case of a relationship to a legalized alien described

in subsection (b)(2)(A) of section 301 of IMMACT 90), and has been

continuously residing in the United States since that date; and

(ii) That on May 5, 1988 (in the case of a relationship to a

legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of

section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a

relationship to a legalized alien described in subsection (b)(2)(A) of

section 301 of IMMACT 90), he or she was the spouse of unmarried child

of a legalized alien, and that he or she has been eligible continuously

since that time for family-sponsored second preference immigrant status

under section 203(a)(2) of the Act based on the same relationship.

(2) Legalization application pending as of May 5, 1988 or December

1, 1988. An alien whose legalization application was filed on or before

May 5, 1988 (in the case of a relationship to a legalized alien

described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT

90), or as of December 1, 1988 (in the case of a relationship to a

legalized alien described in subsection (b)(2)(A) of section 301 of

IMMACT 90), but not approved until after that date will be treated as

having been a legalized alien as of May 5, 1988 (in the case of a

relationship to a legalized alien described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in

the case of a relationship to a legalized alien described in subsection

(b)(2)(A) of section 301 of IMMACT 90), for purposes of the Family

Unity Program.

(d) Ineligible aliens. The following categories of aliens are

ineligible for benefits under the Family Unity Program:

(1) An alien who is deportable under any paragraph in section

241(a) of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and

(3)(A); provided that an alien

[[Page 66068]]

who is deportable under paragraph (1)(A) of such Act is also ineligible

for benefits under the Family Unity Program if deportability is based

upon an exclusion ground described in section 212(a) (2) or (3) of the

Act;

(2) An alien who has been convicted of a felony or three or more

misdemeanors in the United States; or

(3) An alien described in section 243(h)(2) of the Act.

(e) Filing--(1) General. An application for voluntary departure

under the Family Unity Program must be filed at the Service Center

having jurisdiction over the alien's place of residence. A Form I-817

(Application for Voluntary Departure under the Family Unity Program)

must be filed with the correct fee required in Sec. 103.7(b)(1) of this

chapter and the required supporting documentation. A separate

application with appropriate fee and documentation must be filed for

each person claiming eligibility.

(2) Decision. The Service Center director has sole jurisdiction to

adjudicate an application for benefits under the Family Unity Program.

The director will provide the applicant with specific reasons for any

decision to deny an application. Denial of an application may not be

appealed. An applicant who believes that the grounds for denial have

been overcome may submit another application with the appropriate fee

and documentation.

(3) Referral of denied cases for consideration of issuance of Order

to Show Cause. If an application is denied, the case will be referred

to the district director with jurisdiction over the alien's place of

residence for consideration of whether to issue an Order to Show Cause

(OSC). After an initial denial, an applicant's case will not be

referred for issuance of an OSC until 90 days from the date of the

initial denial, to allow the alien the opportunity to file a new Form

I-817 application in order to attempt to overcome the basis of the

denial. However, if the applicant is found not to be eligible for

benefits under paragraph (d)(2) of this section, the Service reserves

the right to issue an Order to Show Cause at any time after the initial

denial.

(4) Voluntary departure under Sec. 242.5 and eligibility for

employment under Sec. 274a.12(c)(12). Children of legalized aliens

residing in the United States, who were born during an authorized

absence from the United States of mothers who are currently residing in

the United States under voluntary departure pursuant to the Family

Unity Program may be granted voluntary departure under

Sec. 242.5(a)(2)(ix) for a period of 2 years.

(5) Duration of voluntary departure under Sec. 242.6. An alien

whose application for benefits under the Family Unity Program is

approved will receive a 2-year period of voluntary departure. The 2-

year period will begin on the date the Services approves the

application.

(6) Employment authorization. An alien granted benefits under the

Family Unity Program is authorized to be employed in the United States

and may apply for an employment authorization document on Form I-765

(Application for Employment Authorization). The application may be

filed concurrently with Form I-817. The application must be accompanied

by the correct fee required by Sec. 103.7(b)(1) of this chapter. The

validity period of the employment authorization will coincide with the

period of voluntary departure.

(7) Travel outside the United States. An alien granted Family Unity

Program benefits who intends to travel outside the United States

temporarily must apply for advance authorization using Form I-131

(Application for Travel Document). The authority to grant an

application for advance authorization for an alien granted Family Unity

Program benefits rests solely with the district director. An alien who

is granted advance authorization and returns to the United States in

accordance with such authorization, and who is found not to be

excludable under section 212(a) (2) or (3) of the Act, shall be

inspected and admitted in the same immigration status the alien had at

the time of departure, and provided the remainder of the 2-year

voluntary departure previously granted under the Family Unity Program.

(8) Extension of voluntary departure. An application for an

extension of voluntary departure under the Family Unity Program must be

filed by the alien on Form I-817 along with the correct fee required in

Sec. 103.7(b)(1) of this chapter and the required supporting

documentation. The submission of a copy of the previous approval notice

will assist in shortening the processing time. An extension may be

granted if the alien continues to be eligible for benefits under the

Family Unity Program. However, an extension may not be approved if the

legalized alien is a lawful permanent resident, and a petition for

family-sponsored immigrant status has not been filed in behalf of the

applicant. In such case the Service will notify the alien of the reason

for the denial and afford him or her the opportunity to file another

Form I-817 once the petition, Form I-130, has been filed in behalf of

him or her. No charging document will be issued for a period of 90

days.

(9) Supporting documentation for extension application. Supporting

documentation need not include documentation provided with the previous

application(s). The extension application need only include changes to

previous applications and evidence of continuing eligibility since the

date of the prior approval.

(f) Eligibility for Federal financial assistance programs. An alien

granted Family Unity Program benefits based on a relationship to a

legalized alien as defined in paragraph (b) of this section is

ineligible for public welfare assistance in the same manner and for the

same period as the legalized alien is ineligible for such assistance

under sections 245A(h) or 210(f) of the Act, respectively.

(g) Termination of Family Unity Program benefits.

(1) Grounds for termination. The Service may terminate benefits

under the Family Unity Program whenever the necessity for the

termination comes to the attention of the Service. Such grounds will

exist in situations including, but not limited to, those in which:

(i) A determination is made that Family Unity Program benefits were

acquired as the result of fraud or willful misrepresentation of a

material fact;

(ii) The beneficiary commits an act or acts which render him or her

inadmissible as an immigrant or ineligible for benefits under the

Family Unity Program;

(iii) The legalized alien upon whose status benefits under the

Family Unity Program were based loses his or her legalized status;

(iv) The beneficiary is the subject of a final order of exclusion

or deportation issued subsequent to the grant of benefits on any ground

of deportability or excludability that would have rendered the alien

ineligible for benefits under Sec. 242.6(d)(1) of this chapter,

regardless of whether the facts giving rise to such ground occurred

before or after the benefits were granted; or

(v) A qualifying relationship to a legalized alien no longer

exists.

(2) Notice procedure. Notice of intent to terminate and of the

grounds thereof shall be served pursuant to the provisions of

Sec. 103.5a of this chapter. The alien shall be given 30 days to

respond to the notice and may submit to the Service additional evidence

in rebuttal. Any final decision of termination shall also be served

pursuant to the provisions of Sec. 103.5a of the chapter. Nothing in

this section

[[Page 66069]]

shall preclude the Service from commencing exclusion or deportation

proceedings prior to termination of Family Unity Program benefits.

(3) Effect of termination. Termination of benefits under the Family

Unity Program, other than as a result of a final order of deportation

or exclusion, shall render the alien amendable to exclusion or

deportation proceedings under sections 236 or 242 of the Act, as

appropriate.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

4. The authority citation for part 274a continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

5. Section 274a.12 is amended by revising paragraph (c)(12) to read

as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *

(c) * * *

(12) A deportable alien granted voluntary departure, either prior

to or after a hearing, for reasons set forth in Sec. 242.5(a)(2) (v),

(vi), (viii), or (ix) of this chapter, may be granted permission to be

employed for that period of time prior to the date set for voluntary

departure including any extension granted beyond such date, if the

alien establishes an economic need to work. Factors which may be

considered in adjudicating the application for employment authorization

of such an alien granted voluntary departure include, but are not

limited to, the following:

(i) The length of voluntary departure granted;

(ii) The existence of a dependent spouse and/or children in the

United States who rely on the alien for support;

(iii) Whether there is a reasonable chance that legal status may

ensure in the near future; and

(iv) Whether there is a reasonable basis for consideration of

discretionary relief.

* * * * *

Dated: December 13, 1995.

Doris Meissner,

Commissioner.

[FR Doc. 95-30701 Filed 12-20-95; 8:45 am]

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