Adjustment of Status to That of Person Admitted for Permanent Residence: Interview

DEPARTMENT OF JUSTICE

8 CFR Part 245

[INS No. 1373-95]

RIN 1115-AD12

Adjustment of Status to That of Person Admitted for Permanent

Residence: Interview

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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

SUMMARY: This final rule adopts without change an interim rule

published in the Federal Register by the Immigration and Naturalization

Service (the Service) on November 2, 1992, which allows the Service to

determine when interviews are needed to adjudicate applications for

adjustment of status to that of a lawful permanent resident alien. This

action is considered necessary to promote more efficient adjudications

and convenience to the public.

EFFECTIVE DATE: December 26, 1996.

FOR FURTHER INFORMATION CONTACT:

Gerard Casale, Senior Adjudications Officer, Immigration and

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

20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

Section 245 of the Immigration and Nationality Act (the Act)

provides that the status of certain aliens in the United States may be

adjusted to that of lawful permanent residents at the discretion of the

Attorney General under such regulations as she may prescribe. This

process, known as adjustment of status, is governed by section 245 of

the Act and 8 CFR part 245. Pursuant to 8 CFR 245.6, an applicant over

the age of 14 is generally required to be interviewed by an officer of

the Service.

On November 2, 1992, the Service published an interim rule with

request for public comments in the Federal Register, at 57 FR 49374-

49375. The rule revised 8 CFR 245.6 to allow the Service to conduct

interviews only in cases where it determines that an interview is

necessary. The rule also eliminated a provision allowing interviews to

be waived for persons who had applied before November 20, 1990, for

adjustment of status under the Cuban Adjustment Act of November 2,

1996, since that specific provision was no longer needed.

The interim rule became effective on November 2, 1992. Interested

persons were invited to submit written comments regarding the interim

rule on or before December 2, 1992. The Service received five written

comments regarding the rule. Since the closing of the period for public

comment, no new factors have affected the stated basis for the interim

rule. Meanwhile, significant increases in total application receipts

have underscored the need for promoting efficient use of adjudications

resources. The following discussion summarizes the issues involved in

the interview determination rule, including those raised by the

commenters, and the conclusions reached by the Service.

Fraud

Traditionally, the interview of applicants for adjustment of status

has been seen as an important element in the Service's ability to

detect and deter fraud. On that account, one commenter opposed the

change to selective interviewing. Citing reports indicating a

significant number of fraudulent marriages connected with petitions for

immigration benefits, he concluded that the prospect of an interview

deters additional persons from fraudulently claiming eligibility for

lawful permanent resident status. The Service shares this interest in

avoiding the creation of opportunities for fraud. However, the

conversion to select interviewing does not assure any particular

applicants that they will not be interviewed and does not limit the

Service's ability to interview a particular applicant for permanent

resident status. Interviews of a significant number of applicants,

particularly those claiming eligibility based on a recent marriage,

will continue. In fact, the Service intends to conduct interviews in

all cases in which

[[Page 59826]]

it is likely that the interview would disclose a basis for

ineligibility.

The possibility that fraudulent claims would be increased by the

combination of selective interviewing and the direct mailing of

adjustment applications to the four service centers was another

consideration. A commenter suggested that service center adjudicators,

who do not conduct interviews, lack the experience of working on

suspect cases and the knowledge of fraud patterns prevalent in

particular localities, and therefore would be unable to identify those

applications for which an interview is needed. The Service's view is

that adjudicators at the service centers have sufficient experience and

training in the detection of fraudulent claims to eligibility for

immigration benefits and that they will continue to apply this

knowledge in determining when interviews are not necessary. For

example, when processing petitions to remove the conditions imposed on

persons who obtained permanent residency based on a recent marriage

during the past several years, the responsibility for assessing the

risk of fraud has been assigned to service center adjudicators, who

refer suspect cases to local offices for interview. Service center

adjudicators also recently handled a large number of applications for

adjustment of status under the Chinese Student Protection Act of 1992

in a similar manner.

Impact of the Interview Determination Program on the Adjustment

Application Filing Fee

Another issue raised by the interview determination program is

whether its efficiencies should result in a reduction in the current

fee for adjustment of status applications. One commenter reasoned that

a decrease in the number of interviews would result in the Service

spending less to process applications for adjustment of status,

yielding savings that should be passed to the public in the form of a

lower filing fee. However, the Service does not intend that the

elimination of some interviews will lessen the total resources devoted

to adjudication of applications for adjustment of status; rather, the

change will shift some workloads and costs from the district offices to

the service centers. Officer time and other resources formerly devoted

to interviewing clearly eligible applicants will be dedicated to

uncovering fraud in high-risk adjustment of status cases. Also, a

previously discussed, a significant number of applicants will continue

to be interviewed. Therefore, while the decrease in the percentage of

cases interviewed will benefit many applicants, the Service does not

expect it to change significantly the overall cost of adjudicating

adjustment applications.

Processing Time

As far as maintenance of adjudications standards allows, the

Service has an abiding interest in minimizing the time required to

complete action on adjustment of status applications. One commenter saw

the interim rule as an example of Service efforts to alleviate

adjudications backlogs and make the most of existing resources, while

another recommended that the Service issue a decision within 90 days of

receipt of the application.

Timely adjudication of requests for benefits is a Service goal, and

selective waiving of interviews will allow decisions to be issued more

quickly in routine and non-suspect adjustment of status cases. The

Service has recently introduced Customer Service Standards which aim at

completing action on adjustment applications within a shorter time.

However, since some Service offices currently have heavier caseloads in

relation to available personnel, they may incur backlogs longer than

those of other offices. Caseloads are also subject to unanticipated

surges in the number or type of applications received. Final processing

may be delayed in individual cases for other reasons outside the

adjudicator's control, as when additional time is required to await an

immigrant visa priority date, the receipt of supplementary information

from the applicant, or the completion of an investigation regarding a

questionable claim.

Applicant Request for Waiver of Interview

A question whether there would be a procedure allowing an applicant

to request a waiver of the interview has been considered. The

determination whether an interview is necessary involves evaluation of

all relevant factors concerning the application, including any special

circumstances. However, the decision will be made on the basis of the

evidence of eligibility and not an applicant's desire to avoid an

interview. The Service cannot assure an applicant in advance that no

interview will be required, since information may be received which

discloses the need for interview of an application who initially did

not appear to require it. Consequently, the INS will not adopt a

procedure to entertain advance requests to waive the interview.

The Selection of Cases

Each adjustment of status application will be reviewed on a case-

by-case basis to determine whether an interview is needed. The Service

will monitor fraud trends and the use of the interview determination

provision to provide guidelines for adjudicators.

Concern was expressed as to how the interview determination

decision would be reached, particularly if it would result in

interviews being called merely to address minor documentary

deficiencies. A minor deficiency is not, in itself, an indicator of

fraud. The Service does not plan to interview an applicant solely

because he or she neglected to submit a document which can be more

easily requested and submitted by mail.

A commenter suggested that the Service adopt a nationwide list of

specified adjustment application categories which, in her opinion,

presented a low risk of fraud and yet were consuming nearly half of the

staff time devoted to adjustment interviews in a large district office;

the time freed by waiving interviews of such cases could then be re-

directed to fraud deterrence and reduction of the waiting time for

processing applications. The Service recognizes that at any point in

time there are categories of applications which pose a generally lower

risk of fraud than others. However, it does not follow that the rule

must be altered on that account. A regulation prescribing fixed

categories of applications for which interviews must be waived would

hamper the Service's flexibility in adjusting to changes in fraud

profiles and caseloads. The existing rule, which neither specifies nor

limits the types of adjustment cases on which the interview

determination may be made, affords the Service and its adjudicating

offices the widest freedom of action to balance local needs and

priorities.

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 a significant economic impact on a substantial number of

small entities because of the following factors: This rule merely

adopts as final an interim rule which has been in effect since November

2, 1992. By removing the interview requirement, the rule has eliminated

an inconvenience to a number of individual applicants for adjustment of

status who otherwise would have been required to appear in

[[Page 59827]]

person at a Service office to be interviewed by an immigration

examiner. This rule does not have impact on small entities.

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 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.

List of Subjects in 8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

Accordingly, the interim rule amending 8 CFR part 245 which was

published at 57 FR 49374-49375 on November 2, 1992, is adopted as a

final rule without change.

Dated: October 28, 1996.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-29971 Filed 11-22-96; 8:45 am]

BILLING CODE 4410-10-M