Conditions on Nonimmigrant Status: Disclosure of Information

SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service (``the Service'') regulations by removing the current

regulatory language conditioning an alien's nonimmigrant status on his

or her providing full and truthful information requested by the

Service, regardless of the requested information's materiality. This

proposed regulation would clarify that a nonimmigrant's maintenance of

status is conditioned on, among other things, the provision of all

information deemed necessary to ensure that the alien has acquired, and

is maintaining, lawful nonimmigrant status during the entire period of

his or her stay, or that the alien is eligible to receive a benefit

under the Immigration and Nationality Act (``the Act''). This rule

addresses the concern expressed by the court in Romero v. I.N.S., 39

F.3d 977 (9th Cir. 1994), that, under the current wording of the

regulations, the Service may elicit information unrelated to that

required to ensure the alien's continued eligibility for nonimmigrant

status or benefits under the Act.

DATES: Written comment must be submitted on or before August 13, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions, Immigration and

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

20536, Attention: Public Comment Clerk. To ensure proper handling,

please reference INS Number 1732-95 on your correspondence.

FOR FURTHER INFORMATION CONTACT: Miriam Jawitz Hetfield, Senior

Adjudications Officer, Nonimmigrant Branch, Immigration and

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

20536, telephone: (202) 514-5014.

SUPPLEMENTARY INFORMATION: Section 214(a)(1) of the Act provides that

the Attorney General may by regulation prescribe the length and the

conditions of a nonimmigrant alien's stay, in order to ensure that the

nonimmigrant will depart from the United States at the expiration of

the period of admission or upon failure of the nonimmigrant to maintain

nonimmigrant status. Under section 241(a)(1)(C)(i) of the Act, a

nonimmigrant who fails to maintain nonimmigrant status, or to comply

with the conditions of such status, is deportable.

Under current 8 CFR 214.1(f), a condition of an alien's

nonimmigrant status is that he or she provide full and truthful

information requested by the Service, ``regardless of whether or not

the information requested was material.'' The Service promulgated this

regulation to ensure that it is furnished with the information

necessary to perform its statutory function of regulating the admission

and control of nonimmigrants, to ensure compliance with the Act, and to

locate and deport those nonimmigrant aliens who have violated their

status. 44 FR 65726-65727. It was the opinion of the Service, in

promulgating this regulation, that, to meet this responsibility, it is

necessary to have information which ``possibly may not be considered

material in the strict legal connotation of the term.'' Id. at 44 FR

65727. Despite such broad language, the current regulation was intended

to require the provision of only information bearing a reasonable

relationship to the Service's above-described responsibility in

prescribing the conditions of a nonimmigrant's stay. Id.

On November 3, 1994, the court in Romero v. I.N.S., 39 F.3d 977

(9th Cir. 1994), invalidated the parenthetical phrase in current 8 CFR

214.1(f), ``(regardless of whether or not the information requested was

material).'' In Romero, the Service charged the plaintiff with

violating section 241(a)(1)(C)(i) of the Act for failing to maintain

nonimmigrant status, contending that she had not disclosed certain

information requested by a Service officer. Specifically, in response

to a question by a Service officer, the plaintiff stated that she had

not informed another alien that someone could help that alien obtain an

extension of nonimmigrant status for money. The Service officer sought

this information in connection with an investigation of alleged

corruption among customs officers. The immigration court found that, in

making this statement, the plaintiff had provided a Service officer

with false information in violation of 8 CFR 214.1(f), and therefore

was deportable under section 241(a)(1)(C)(i) of the Act. In ordering

that the case be remanded for withdrawal of the order of deportation,

the Romero court found that the statement the plaintiff made to the

Service officer was not material in any way to the alien's immigration

status, but related only to a criminal investigation of other persons.

The court held that, as currently worded, the disclosure requirement of

8 CFR 214.1(f) is inconsistent with the purpose of the enabling

statute, section 214(a)(1) of the Act, which is to ensure that the

alien is eligible for nonimmigrant status or immigration benefits.

This proposed regulatory change would clarify that a nonimmigrant's

maintenance of status and/or continued receipt of immigration benefits

is conditioned on the alien fully and truthfully disclosing all

information he or she possesses, or reasonably should have knowledge

of, which the Service deems material in order to ensure that the alien

is eligible for nonimmigrant status and/or immigration benefits under

the Act. This regulation does not give the Service the authority to

require disclosure of information in the hope that it might uncover

information to be used for another purpose, such as an investigation of

another person or persons. For information to be deemed ``material''

for purposes of this regulation, there must exist a reasonable

connection between the information sought and the determination of

whether an alien is eligible under the Act for nonimmigrant status or

immigration benefits. In this regard. ``material'' information includes

that information which, if known to the Service, would be predictably

capable of

[[Page 30189]]

affecting a decision regarding whether an alien has violated a

condition of his or her nonimmigrant stay or eligibility for benefits.

See Kungys v. United States, 485 U.S. 759, 771 (1988).

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 clarifies that a

nonimmigrant's status in this country is conditioned on, among other

things, his or her providing full and truthful disclosure of all

information deemed necessary to ensure that the alien has acquired, and

is maintaining, lawful nonimmigrant status during the entire period of

his or her stay, or to ensure that the alien is eligible to receive any

other benefit under the Act. Any impact this proposed regulation will

have on small business entities, therefore, will be negligible.

Executive Order 12866

This proposed 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 waived 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.

Paperwork Reduction Act

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 214

Administrative practice and procedure, Aliens, Reporting and

recordkeeping requirements.

Accordingly, part 214 of chapter I of title 8 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

1. 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.

2. In Sec. 214.1, paragraph (f) is revised to read as follows:

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

status.

* * * * *

(f) Disclosure of information. (1) A condition of a nonimmigrant's

admission and maintenance of status in the United States is that he or

she fully and truthfully disclose all information deemed by the Service

to be material in determining whether the nonimmigrant:

(i) Is eligible for, and/or is maintaining the nonimmigrant status

in which the alien was admitted or to which the alien has changed under

section 248 of the Act, or

(ii) Is eligible to receive any benefit under the Act.

(2) Willful failure by a nonimmigrant to provide full and truthful

disclosure of such material information when requested by a Service

officer constitutes a failure to maintain nonimmigrant status under

section 241(a)(1)(C)(i) of the Act.

* * * * *

Dated: March 4, 1996.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-15169 Filed 6-13-96; 8:45 am]

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