Adjustment of Status to That of Person Admitted for Permanent Residence: Conditional Residents and Fiance(e)s

SUMMARY: This proposed rule would clarify that an alien remains

ineligible for adjustment of status after termination of conditional

resident status. It would also modify provisions regulating the

adjustment of status of a nonimmigrant fiance(e) to reflect the current

statute and to allow adjustment of status based on a marriage occurring

more than 90 days after admission. The clarification concerning

adjustment of status after termination of conditional residency is

necessary in view of the determination by the Board of Immigration

Appeals' (the Board) finding that the current regulations do not

prohibit the adjustment of status of an alien whose conditional

resident status has been terminated. Matter of Stockwell, 20 I&N Dec.

309 (BIA 1991). This proposed rule would also ensure compliance with

the existing statute and eliminate hardships to certain persons who

were unable to marry until after the expiration of the alien spouse's

period of admission as a nonimmigrant fiance(e).

DATES: Written comments must be submitted on or before October 21,

1996.

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 the INS number 1353-91 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:

Rita A. Arthur, Senior Immigration Examiner, Adjudications Branch,

Immigration and Naturalization Service, 425 I Street, NW., Room 3214,

Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: The Immigration Marriage Fraud Amendments of

1986 (IMFA), Pub. L. 99-639, November 10, 1986, were enacted to combat

fraud perpetrated by aliens who marry only to obtain immigration

benefits. The IMFA amended the Immigration and Nationality Act (the

Act) by adding a new section 216, which imposes an initial 2-year

period of conditional residency on a person who acquired permanent

resident status based on a recent marriage. It also provides a

comprehensive procedure by which a conditional resident may have these

conditions removed following approval of a petition filed jointly with

the citizen or lawful permanent resident spouse, or after approval of a

waiver of the joint petitioning requirement. Section 216 of the Act

further mandates termination of the conditional resident's status if he

or she fails to comply with the requirements for removal of the

conditions at the end of the 2-year period, or if it is found that the

marriage was entered into for the purpose of obtaining immigration

benefits or is otherwise determined to be ``improper,'' as defined in

section 216(b) of the Act. Section 216 of the Act also allows an alien

whose status has been terminated to ask the immigration judge to review

this decision during deportation proceedings.

The IMFA also revised the Act by adding a new section 245(d). This

section bars an alien who was granted permanent residence on a

conditional basis under section 216 of the Act from adjusting status

under section 245 of the Act. This bar prevents a conditional resident

from circumventing the requirements and restrictions of section 216 of

the Act by filing a new application for adjustment of status.

In Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), the Board of

Immigration Appeals (the Board) determined that the bar to adjustment

of status provided in section 245(d) of the Act no longer applies after

an alien's conditional residency has been terminated. The Board based

this decision, which is binding on the Immigration and Naturalization

Service (the Service), on its interpretation of the Service's

implementing regulations.

In its majority decision, the Board state: ``While the statutory

language seems to leave open the question of whether the bar [of

section 245(d) of the Act] extends to an alien whose status as a

conditional permanent resident has been terminated, we agree * * * that

the Service's own implementing regulation clearly applies the bar in

section 245(d) only to aliens currently holding conditional permanent

resident status.'' Stockwell, supra, slip opinion at 4-5.

The Board also issued a dissenting opinion, which concluded that

the section 245(d) bar to adjustment continues after termination of

conditional residency. This opinion, while acknowledging that the

regulation could be read to apply only to those aliens currently in

conditional status, points out that: ``* * * the [language of section

245(d) of the Act] does not restrict its application to aliens who are

admitted on a conditional basis and remain in that status. The language

clearly prohibits the Attorney General from adjusting the status of any

alien who has been admitted on a conditional basis under section 216.''

``The majority does not challenge the clarity of the statute.

Rather, it relies on the regulation promulgated at 8 CFR

Sec. 245.1(b)(12) (1991) [subsequently redesignated as 8 CFR

245.1(c)(5) 1995]. * * *''

``[T]he regulation issued by the Immigration and Naturalization

Service can be read to apply only to those aliens who are currently in

conditional status. However, that is not the only reasonable

construction of the regulation. The regulation does not address the

eligibility for adjustment of status of those aliens whose conditional

status has been terminated. Where the statute prohibits such

adjustment, and the regulation does not address it, the statute should

be applied. In any case the regulation should be construed in a manner

that is consistent with the statute, The regulation can reasonably be

construed as not having addressed

[[Page 43029]]

the situation of a conditional permanent resident whose status has been

terminated. Moreover, it would frustrate the deterrent purpose of the

statute to permit the adjustment of the status of an alien whose status

as a conditional permanent resident has been terminated because of

failure to comply with the requirements of section 216.''

``It may be argued that, in promulgating the regulation, the

Service interpreted the statute to apply only to aliens currently in a

conditional status. Since the specific question of the applicability of

the statute to aliens whose status has been terminated was not

addressed, such an argument is purely speculative.'' Stockwell, supra,

slip opinion at 8-9 (Morris, dissenting).

In promulgating this regulatory provision, the Service did not

intend to limit applicability of the bar in section 245(d) of the Act

to aliens currently holding conditional permanent resident status. Such

a stance, by allowing a conditional resident to circumvent the

requirements and restrictions of section 216 of the Act by filing a new

request for adjustment of status after the Service terminated

conditional residency, would have been contrary to the purpose of IMFA.

It would also have discounted the clear language of section 245(d) of

the Act, and would have ignored the fact that Congress has provided a

comprehensive procedure that permits a conditional resident to seek

removal of the conditions imposed by section 216 of the Act.

However, 8 CFR 245.1(c)(5) does not explicitly state that the bar

continues after termination of conditional residency. The proposed

revision of 8 CFR 245.1(c)(5) would resolve the misunderstanding

concerning this matter. It would supersede the Board's interpretation

in Matter of Stockwell by amending 8 CFR 245.1(c)(5) to clarify that an

alien admitted for permanent residence on a conditional basis under

section 216 of the Act remains ineligible for adjustment of status

under section 245 of the Act even after termination of status under

section 216 of the Act. Since the regulation would be promulgated by

the Attorney General under authority granted by section 103 of the Act,

it would provide binding rules of decision for the Executive Office for

Immigration Review, including the Board and the Immigration Courts, as

well as the Service.

The proposed rule would also address the effect of termination of

conditional status under section 216A of the Act on the bar to

adjustment provided in section 245(f) of the Act. Sections 216A and

245(f) of the Act, added by the Immigration Act of 1990 (IMMACT), Pub.

L. 101-649, November 29, 1990, relate to conditional status for certain

alien entrepreneurs and contains language similar to that of sections

216 and 245(d) of the Act. To avert possible future misunderstandings,

the Service proposes to amend 8 CFR 245.1(c)(5) to also clarify that

section 245(f) of the Act continues to prohibit the adjustment of

status under section 245 of the Act of an alien entrepreneur who has

been granted permanent residence on a conditional basis after his or

her status has been terminated under section 216A of the Act.

In addition to prohibiting the adjustment of status of a

conditional resident under section 245(a), IMFA also amended provisions

of the Act relating to the acquisition of permanent residence by

persons who entered the United States as nonimmigrant fiance(e)s of

United States citizens. A review of the IMFA legislative history shows

that Congress intended for these aliens, after they marry, to seek

permanent resident status under the adjustment of status provision of

section 245 of the Act. H. Rep. No. 906, 99th Cong. 2d Sess. at 11

(1986). Despite this intent, the actual text of section 3(c) of IMFA

made these aliens ineligible for adjustment. Congress corrected this

anomaly by enacting the Immigration Technical Corrections Act of 1988

(the Technical Corrections Act), Pub. L. 100-525, October 24, 1988. The

amendments made by section 7(b) of the Technical Corrections Act allow

an alien fiance(e) and his or her minor children to obtain permanent

residence, but only as a result of the marriage of the fiance(e) to the

citizen petitioner, and only as a conditional permanent resident under

section 216 of the Act.

The Service published a final rule implementing IMFA on August 10,

1988, in the Federal Register at 53 FR 30011-30023. A few months later,

Congress enacted the Technical Corrections Act. The Service proposes in

this rule to amend 8 CFR 245.1(c)(6) to align its wording more closely

with the language of the statute as amended by the Technical

Corrections Act. The proposed revision would explicitly state that

these aliens are subject to the conditions imposed by section 216 of

the Act and clarify the applicability of paragraph (c)(6) to the

alien's minor children as well as to the principal alien.

The proposal would also bar adjustment of an alien who was admitted

under section 101(a)(15)(K) of the Act unless the alien would become a

conditional permanent resident within 24 months of the date of the

marriage. This restriction is necessary because section 245(d) of the

Act prohibits the adjustment of status of an alien fiance(e) or child

of a fiance(e) admitted under section 101(a)(15)(K) of the Act except

to that of an alien lawfully admitted to the United States for

permanent residence on a conditional basis under section 216 of the

Act. Section 216 of the Act provides permanent residence on a

conditional basis only for an alien who becomes a permanent resident

within 24 months of the date of the qualifying marriage.

The proposed rule would also modify the provisions of 8 CFR

245.1(c)(6) relating to a marriage taking place more than 90 days after

the alien fiance(e)'s admission to the United States. As currently

written, paragraph (c)(6) appears to bar adjustment if the alien

fiance(e) and the citizen petitioner do not marry within 90 days of the

alien's entry. The provisions of paragraph (c)(6) were based on those

of section 101(a)(15)(K) of the Act, which require the alien and the

citizen petitioner to intend to marry within 90 days of entry in order

to qualify the alien for entry as a nonimmigrant fiance(e). Also,

section 214(d) of the Act renders the alien deportable if the couple

does not marry within 3 months of entry. Section 245(d) of the Act does

not, however, impose a time frame during which the marriage must take

place.

The proposed rule would continue to bar adjustment if the couple

fails to marry. However, prospective spouses are sometimes forced by

circumstances outside their control to delay marriage until after

expiration of the 90-day period of admission as a fiance(e). To prevent

hardship to these individuals, the proposal would allow an alien who

was admitted under section 101(a)(15)(K) of the Act as a fiance(e) or a

child of a fiance(e) to seek adjustment of status based on the delayed

marriage between the citizen petitioner and the fiance(e).

The nonimmigrant fiance(e) or child of a fiance(e) would be allowed

to apply for adjustment of status as an immediate relative of a citizen

on the basis of an approved Form I-130, Petition for Alien Relative,

filed by the citizen petitioner who had originally filed the fiance(e)

visa petition. A nonimmigrant fiance(e) seeking adjustment based on a

delayed marriage, like a nonimmigrant fiance(e) seeking adjustment

based on a timely marriage, would become ineligible for adjustment of

status if more than 24 months elapsed between the date of the marriage

and the approval of the application for adjustment of status.

[[Page 43030]]

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 would not have a significant economic

impact on a substantial number of small entities because of the

following factors: The rule would address the grant of immigration

benefits to certain individuals based on a marriage. It would also

clarify restrictions placed on future acquisition of certain

immigration benefits by individuals whose conditional permanent

resident status has been terminated. It would not have a significant

economic effect, nor would it affect small entities.

Executive Order 12866

This rule is not considered by the Department of Justice 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

The regulations proposed herein would 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.

Paperwork Reduction Act

The information collection requirement contained in this rule has

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 in 8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

Accordingly, part 145 of chapter I of title 8 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR

PERMANENT RESIDENCE

1. The authority citation for part 145 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255, and 8 CFR part 2.

Sec. 245.1 [Amended]

2. In Sec. 245.1 paragraph (c)(3) is amended by removing the word

``and'' at the end of the paragraph.

3. In Sec. 245.1, paragraph (c)(4) is amended by removing the ``.''

at the end of the paragraph and replacing it with a ``;''.

4. In Sec. 245.1, paragraph (c)(7) is amended by removing the ``.''

at the end of the paragraph, and replacing it with a ``; and''.

5. In Sec. 245.1, paragraphs (c)(5) and (c)(6) are revised to read

as follows:

Sec. 245.1 Eligibility.

* * * * *

(c) * * *

(5) Any alien who has been lawfully admitted for permanent

residence on a conditional basis under section 216 or 216A of the Act,

regardless of any other quota or nonquota immigrant visa classification

for which the alien may otherwise be eligible, and regardless of

whether the alien's conditional status has been terminated pursuant to

sections 216 or 216A of the Act;

(6) Any alien admitted to the United States as a nonimmigrant alien

fiance(e) under section 101(a)(15)(K) of the act, unless:

(i) The alien is seeking to adjust status under section 245(a) of

the Act to that of an alien lawfully admitted to the United states for

permanent residence on a conditional basis under section 216 of the

Act;

(ii) The alien is seeking adjustment based on the marriage (or, in

the case of a minor child, the marriage of the alien parent) to the

United States citizen whose approved petition pursuant to Sec. 214.2(k)

of this chapter was the basis for issuance of the alien's nonimmigrant

visa under section 101(a)(15)(K) of the Act;

(iii) The alien is seeking to adjust status within 24 months of the

date of the marriage; and

(iv) The marriage was solemnized:

(A) Within 90 days of the entry of the alien fiance1(e) into the

United States; or

(B) More than 90 days after the entry of the alien fiance(e) into

the United States if the alien spouse or child applies for and is

otherwise eligible for adjustment of status as an immediate relative on

the basis of an approved Form I-130, Petition for Alien Relative, filed

by the citizen whose approved petition pursuant to Sec. 214.2(k) of

this chapter was the basis for issuance of the alien's nonimmigrant

visa under section 101(a)(15)(K) of the Act;

* * * * *

Dated: August 13, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96-21196 Filed 8-19-96; 8:45 am]

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