Adjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility

Federal RegisterJul 23, 1997

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 245 and 274a

[INS No. 1676-94]

RIN 1115-AD83

Adjustment of Status to That of Person Admitted for Permanent

Residence; Temporary Removal of Certain Restrictions of Eligibility

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This second interim rule responds to public comments on the

first interim rule and also implements various provisions of the

Illegal Immigration Reform and Immigration Responsibility Act of 1996.

This rule amends the Immigration and Naturalization Service regulations

to reflect the new surcharge required of certain persons in the United

States who are seeking to apply for adjustment of status pursuant to

section 245(i) of the Immigration and Nationality Act. This rule also

amends the list of persons prohibited from applying for adjustment of

status by adding two new categories that were created by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996. In

addition, this interim regulation enables the Immigration and

Naturalization Service to complete adjudication of timely filed section

245(i) adjustment applications after September 30, 1997.

DATES: Effective Date: This rule is effective July 23, 1997.

Comment Date: Written comments must be submitted on or before

September 22, 1997.

ADDRESSES: Written comments must be submitted, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street NW, Room 5307, Washington, D.C.

20536. To ensure proper handling, please reference the INS number 1676-

94 on your correspondence. Comments are available for public inspection

at this location by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT: Gerard Casale, Staff Officer,

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

Washington, D.C. 20536, Telephone (202) 514-5014 or Lisa Rainville,

Center Adjudications Officer, Vermont Service Center, Immigration and

Naturalization Service, 75 Lower Welden Street, St. Albans, VT 05479-

0001, Telephone (802) 527-3114.

SUPPLEMENTARY INFORMATION:

Background

Under the Immigration and Nationality Act (the ``Act''), an alien

seeking to immigrate to the United States normally must obtain an

immigrant visa at a United States embassy or consulate abroad. Section

245 of the Act, however, allows certain persons who are physically

present in the United States to adjust status to that of lawful

permanent resident. Section 245(a) of the Act limits eligibility for

adjustment to aliens who have entered the United States after having

been inspected and admitted or paroled by an immigration officer.

Section 245(c) of the Act, in turn, bars the adjustment of most

applicants who have been employed in the United States without

authorization; who have not complied with the terms of their

nonimmigrant visa; or who are among certain classes of nonimmigrants

whose basis for admission precludes them from eligibility for

adjustment of status. Many intending immigrants who were physically

present in the United States and were ineligible for adjustment of

status under the provisions of section 245(a) and 245(c) of the Act had

been obliged to depart the United States to obtain immigrant visas and

seek admission to the United States as lawful permanent residents. This

resulted in an increased burden on United States consulates and

embassies abroad. Additionally, aliens physically present in the United

States who sought lawful permanent resident status were required to

incur the expense and inconvenience of applying for an immigrant visa

at a United States consulate or embassy abroad.

Public Law 103-317

To address these problems, Congress enacted section 506(b) of the

Department of Commerce, Justice, State, the Judiciary and Related

Agencies Appropriations Act, 1995, Pub. L. 103-317 (August 26, 1994).

Section 506(b) of Pub. L. 103-317 added a new section 245(i) to the Act

which allows certain persons already in the United States to adjust

status, despite the provisions of sections 245 (a) and (c) of the Act,

upon payment of a fee in addition to the base filing fee for an

adjustment of status application. Section 245(i) of the Act does not,

however, waive other grounds of ineligibility enumerated elsewhere in

section 245. The provisions of section 245(i) apply only to

applications filed on or after October 1, 1994, and before October 1,

1997. See section 506(c) of Pub. L. 103-317. It should be emphasized

that, despite enactment of section 245(i) of the Act, adjustment of

status remains the exception, and not the rule, to the normal process

of immigrant visa issuance. See 59 FR 51091-100.

On October 7, 1994, the Immigration and Naturalization Service (the

``Service'') published an interim rule with request for comments which

established procedures for filing for adjustment of status pursuant to

the provisions of section 245(i) of the Act. See 59 FR 51091-100. The

interim rule took effective retroactively on October 1, 1994.

Interested persons were invited to submit written comments on or before

December 6, 1994. After publication of the interim rule on October 7,

1994, the Service received seven written comments during the comment

period.

On September 30, 1996, President Clinton signed the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (the

``IIRIRA'') into law. Among other changes, effective September 30,

1996, the IIRIRA established two new groups of aliens who are

ineligible to adjust status under section 245(a) of the Act. The

present rule, which contains regulatory changes to 8 CFR part 245

mandated by statutory amendments to sections 245(c) and 245(i) of the

Act, is being published as a second interim rule to provide the public

an opportunity to comment on the Service's interpretation of the new

[[Page 39418]]

law as well as on the provisions of the first interim rule that remain

in effect.

Comments

The following discussions summarizes the issues which were raised

by the commenters in response to publication of the first interim rule

and explains the Service's position on those issues.

Conclusion of Application Period

One commenter asserted that the provisions of section 245(i) should

apply to all applications properly filed before October 1, 1997, rather

than only those applications which have been adjudicated by that date.

Upon further consideration of this issue, the Service is persuaded that

the commenter's position represents the best reading of these statutory

provisions. The first interim regulation provided that, in order to

meet the October 1, 1997, sunset date provided in section 506(c) of

Pub. L. 103-317, section 245(i) applications should be filed at the

earliest possible date to ensure complete processing prior to October

1, 1997. Read together, sections 245(i)(1) of the Act and 506(c) of

Pub. L. 103-317, however, provide that an alien may apply to the

Attorney General for adjustment of status under section 245(i) through

September 30, 1997, and that the Attorney General ``may'' accept such

an adjustment application through September 30, 1997. Section 245(i)(2)

of the Act and section 506(c) of Pub. L. 103-317, in turn, specifically

provide that the Attorney General may adjust an alien's status under

section 245(i) of the Act only through September 30, 1997. Finally,

section 506(d) of Pub. L. 103-317, requires the Service to conduct full

fingerprint identification checks through the FBI for all individuals

over 16 years of age who adjust status pursuant to section 245(i) of

the Act.

In drafting the first interim regulation, the Service adopted the

position that, based on the language of section 245(i)(2) of the Act

and section 506(c) of Pub. L. 103-317, its authority to complete

processing of any properly filed section 245(i) adjustment application

would lapse on the October 1, 1997, sunset date. If left to stand, the

first interim rule, in effect, would have precluded an alien from

filing an application for adjustment of status through September 30,

1997, as is mandated in section 506(c) of Pub. L. 103-317, since the

normal period of time necessary to complete full fingerprint

identification checks on adjustment applicants may be 120 days or more.

Upon further consideration, the Service now believes that the first

interim rule is incompatible with the language of section 506(c) of

Pub. L. 103-317 and section 245(i)(1) of the Act, which specifically

permit an alien to apply for adjustment under section 245(i) through

September 30, 1997. In making this determination, the Service is aware

that, upon expiration of section 245(i)(2) of the Act on October 1,

1997, the Attorney General no longer will have the explicit authority

to adjust an alien's status under section 245(i) of the Act. We

nevertheless conclude that, based on the statutory scheme, Congress

gave the Service the implicit authority to complete processing of all

adjustment applications which were properly filed in accordance with

section 245(i)(1) of the Act prior to the October 1, 1997, sunset. Not

only was Congress aware that the Service, as a practical matter, is

unable to complete processing of an application for adjustment of

status on the date such application is received, but Congress also

specifically mandated that the Service not act upon section 245(i)

applications until a ``full'' background check has been conducted on

the adjustment applicant. See section 506(d) of Pub. L. 103-317.

Clearly, Congress did not intend to permit the filing of what would in

effect be a meaningless section 245(i) adjustment application,

accompanied with, in most cases, a substantial additional surcharge,

which the Service would be required to deny soon thereafter because of

the passage of the October 1, 1997, sunset date.

In short, this second interim rule reconciles any potential

inconsistency between sections 245 (i)(1) and (i)(2) of the Act based

on section 506(c) of Pub. L. 103-317 by specifically permitting the

filing of section 245(i) applications through September 30, 1997, in

accordance with section 245(i)(1) of the Act, while recognizing the

Service's implicit authority to complete processing of such properly

filed applications, even when that processing takes place after

September 30, 1997. This second interim rule therefore revises 8 CFR

245.10(c) to allow the filing of adjustment applications pursuant to

section 245(i) of the Act through September 30, 1997.

Applications Submitted to the Service After September 30, 1997

The statutory authority for granting benefits, as well as for

collecting the surcharge, under section 245(i) of the Act ends on

September 30, 1997. See section 506(c) of Pub. L. 103-317. By law, the

Service may not a grant the benefits of section 245(i) of the Act to

aliens who attempt to file a new application for adjustment of status

under that subsection after September 30, 1997. All applications for

adjustment of status filed pursuant to section 245 of the Act which are

submitted after September 30, 1997, must be adjudicated pursuant to

section 245(a) of the Act. Therefore, in cases where an applicant

attempts to file a new section 245(i) adjustment after September 30,

1997, the Service will retain the base filing fee, return any

surcharge, and adjudicate the application pursuant to section 245(a) of

the Act.

Readjustment of Lawful Permanent Residents

One commenter noted the language in the preamble to the first

interim regulation which states that (a) person who is currently a

lawful permanent resident * * * continues to be ineligible for

adjustment.'' See 59 FR 51093. The commenter asserted that this

statement was contrary to established case law and added that the

statute does not preclude lawful permanent residents from adjusting

status under section 245 of the Act. Contrary to this comment, a lawful

permanent resident generally may not ``adjust'' to the same status he

or she already holds. The Service recognizes, however, that there

exists at least one limited exception to this general rule in the

context of an alien in deportation proceedings. See Matter of

Gabryelsky, 20 I & Dec. 750 (BIA 1993) (allowing an alien to

``bootstrap'' eligibility for relief under section 245 and 212(c) of

the Act). This should not be construed, however, to mean that any

lawful permanent resident, whether or not in proceedings, may apply for

adjustment of status under section 245 of the Act. First, the language

of the statute itself makes it clear that there is no absolute right to

adjustment of status. On the contrary, the Attorney General ``may''

adjust an alien's status ``to'' that of an alien lawfully admitted for

permanent residence. It is, therefore, within the Attorney General's

discretion to determine if it is appropriate to grant such status. In

this regard, the Service believes it would be an inappropriate use of

its limited resources to accord the same privilege, i.e., permanent

residence, to an alien currently holding permanent resident status. In

any event, an alien, if otherwise eligible, may change the basis of his

or her permanent residence by abandoning such status and obtaining an

immigrant visa abroad. Finally, we note that the reference in section

245(a) of adjustment ``to that of an alien lawfully admitted for

permanent residence'' clearly demonstrates that Congress intended

aliens to adjust from a different

[[Page 39419]]

immigration status. Accordingly, the Service will not adopt the

commenter's suggestion.

Family Unity

Section 245(i) of the Act and 8 CFR 245.10(b) provide that spouses

and unmarried children who are under the age of 21 of aliens who were

legalized and special agricultural workers programs are exempt from

payment of the additional sum, provided those individuals were

qualified for, and had properly applied for, benefits under the Family

Unity program. See section 301 of the Immigration Act of 1990, Pub. L.

101-649. One commenter suggested that the first interim rule should

clearly specify that persons whose voluntary departure status under the

Family Unity program had expired are covered by this provisions. The

Service agrees that the statute and regulations require only that such

persons are qualified for and have applied for Family Unity benefits.

Those persons whose voluntary departure status under the Family Unity

program has expired remain exempt from paying the additional sum

specified in 8 CFR 245.10(b). It is, therefore, not necessary to amend

the regulation.

The same commenter contends that persons eligible for benefits

under the Family Unity program who had not yet filed Form I-817,

Application for Voluntary Departure under the Family Unity Program,

should be allowed to apply for that program concurrently with their

application for adjustment of status. The commenter asserted that

requiring applicants to file Form I-817 and obtain a receipt before

applying the adjustment of status is inefficient for the Service and

inconvenient for applicants.

The statutory language limits the exemption of payment of the

additional sum of those applicants ``who * * * applied for benefits

under'' the Family Unity program. This explicit use of the past tense

precludes consideration of persons who have yet to file and be

determined eligible for benefits under the Family Unity Program.

Accordingly, there has been no change to the rule in response to this

comment.

Another commenter disagreed with the language of 8 CFR

245.10(b)(3), which exempts from payment of the additional sum an

applicant who is ``(t)he child of a legalized alien, is unmarried and

less than 21 years of age'' and who was qualified for and had properly

applied for benefits under the Family Unity program. The commenter

asserted that this definition is too restrictive, contending that

section 245(i)(1)(i) of the Act extends benefits to any applicant who

``as of May 5, 1988, was the unmarried child (under the age of 21)'' of

legalized alien and had applied for benefits under the Family Unity

program.

The Service disagrees with the commenter for the following reasons.

The Service recognizes that Congress, in establishing the Family Unity

program under section 301 of the Immigration Act of 1990 (IMMACT 90),

intended, in part, to ensure that families of legalized aliens are able

to remain together until such time as their dependents become

statutorily eligible to apply for permanent resident status in the

United States. In particular, Congress recognized that such dependents

must wait a significant period of time in order for a visa number to

become available. Section 301 of IMMACT 90, however, did not address

the question of what fee such person must pay in order to apply for

adjustment of status. The fee issue, instead, was specifically

addressed in section 245(i)(1) of the Act, which clearly provides that

the alien must have been an unmarried child both in 1988 as well as at

the time he or she applies for permanent resident status in order to be

exempt from payment of the surcharge. Further, requiring payment of the

surcharge from offspring over the age of 21 years if they wish to

remain permanently in this country is in no way contrary to Congress'

intent to ensure family unification. For this reason, the Service

cannot accept the commenter's suggestion, and will continue to follow

the plain language of section 245(i)(1)(i) of the Act.

Payment of Additional Sum

One commenter asserted that the first interim regulation required

applicants to submit a sum in excess of that required by statute. The

first interim regulation requires applicants to submit the standard

application fee plus an additional sum equal to five times that fee.

The commenter contended that section 245(i) requires applicants to

submit the ``penalty'' portion of the filing fee in lieu of the

standard filing fee for adjustment of status applications.

Section 245(i)(1)(b)(iii) of the Act states that ``(t)he sum

specified herein shall be in addition to the fee normally required for

the processing of an application under this section'' (emphasis added).

The placement of this sentence within a subparagraph of the statute may

have caused some confusion. Nonetheless, the statute refers to this

additional amount not as a ``fee'' but as a ``sum'' which is to

accompany the application and fee under section 245(i). The Service has

no discretion to alter this statutory provision.

One commenter objected to 8 CFR 103.7(c)(1), which states that

``[t]he payment of the additional sum . . . may not be waived except as

directed in section 245(i).'' The commenter contended that section

245(i) of the Act does not address the issue of fee waivers and argued

that the Service should take ``the standard regulatory approach to

fees'' found in 8 CFR 103.7(c). Section 245(i) of the Act, however,

specifically lists which categories of applicants are not required to

submit the additional sum. Unlike the case of other types of petitions

and applications filed with the Service, under the plain language of

section 245(i) of the Act, the additional sum is specifically mandated

by statute. Absent specific statutory authority to waive the surcharge,

the Service, therefore, may not waive the additional sum. Accordingly,

the Service will not adopt the commenter's suggestion.

Technical Revision to 8 CFR 103.7(c)(1)

This second interim regulation modifies the final sentence of 8 CFR

103.7(c)(1) by removing the words ``except as directed in section

245(i) of the Act.'' As one commenter noted, the first regulation is

misleading in that it implies that a statutory exemption of the

surcharge equates to a waiver of payment of such surcharge. This

technical change clarifies that, under the plain language of the

statute, persons listed in section 245(i)(1) (i) through (iii) of the

Act are exempt from payment of the surcharge, and the Service lacks

discretionary authority to waive the surcharge. Since, to date, the

Service has not required payment of the surcharge from the individuals

listed in section 245(i)(1) (i) through (iii), this technical change,

as a practical matter, will have no adverse effect on such persons.

Clarification of Instructions to Supplement A to Form I-485

One of the commenters indicated that the instructions which

accompany Supplement A to Form I-485 ``seem to suggest that an

applicant must be the approved beneficiary of a valid unexpired visa

petition in order to file the form.'' Supplement A clearly does not

limit eligibility for adjustment of status to an applicant who is the

beneficiary of an approved immigrant visa petition. The instructions to

the form specify only that an applicant ``have an immediately available

immigrant visa number.'' This language echoes section 245(i)(2)(B) of

the Act, which requires ``an immigrant visa [to be] immediately

available to the alien at the time the application is filed.''

Furthermore, apart from its instructions,

[[Page 39420]]

Supplement A lists a broad spectrum of grounds for eligibility for

adjustment of status. Accordingly, no change has been made to the rule

as a result of this recommendation.

Interview Waivers

One commenter requested that the Service incorporate language

regarding interview waivers into the regulation. However, as the same

commenter noted, 8 CFR 245.6 currently allows for a waiver of the

interview for adjustment of status applications. Applications filed

under section 245(i) of the Act are adjudicated in accordance with the

regulations at 8 CFR part 245, which already contain provisions

authorizing immigration officers to waive the interview under certain

specified circumstances. Further regulatory language relating to

interview waivers would be redundant. Accordingly, the Service will not

adopt the commenter's suggestion.

Adjustment as a Means of Relief From Deportation

One commenter urged the Service to clarify that prospective

immigrants who qualify for adjustment under section 245(i) may file

such an application while they are in deportation proceedings. (While

no new deportation cases may be brought after March 31, 1997, section

309(c) of the IIRIRA permits the continuation of deportation

proceedings initiated prior to April 1, 1997.) However, under 8 CFR

242.17(a), respondents in deportation proceedings are already permitted

to apply for adjustment of status under section 245 of the Act.

Additional regulatory language to that effect would, therefore, be

redundant. Accordingly, the rule has not been changed in response to

this recommendation. It should be noted that the Service published an

interim rule on March 6, 1997, effective April 1, 1997, that

implemented certain changes to the removal process resulting from the

IIRIRA. See 62 FR 10312. The March 6, 1997, regulation provides for

adjustment of status in certain circumstances, where appropriate,

during removal proceedings.

Fingerprint Checks

One commenter noted that section 506(d) of Pub. L. 103-317 requires

fingerprint checks for all applicants for adjustment of status under

section 245(i) of the Act who are more than 16 years of age. The

commenter suggested that this provision should be included in the

regulations to avoid confusion. However, fingerprint checks are covered

by 8 CFR 264.1, a regulation not covered by the present rulemaking.

While this point is well taken, the Service intends to address this

matter in a separate rulemaking. Accordingly, the regulation has not

been changed as a result of this comment.

Pending Applications and the Chinese Student Protection Act

A number of commenters were concerned about the impact of the first

interim regulation on individuals who applied for adjustment of status

under the Chinese Student Protection Act (CSPA), as well as dependents

of CSPA applicants. One commenter suggested that the regulations at 8

CFR 245.1 should be amended to remind Service officers that qualifying

family members who are following to join immigrants who adjusted status

under the CSPA retain the priority date of a CSPA principal. As the

commenter observed, however, the issue of priority dates for late-

arriving dependents of CSPA principals has already been addressed at 8

CFR 245.9(m). Because statutory and regulatory provisions are already

in place for late-arriving dependents of CSPA applicants, there is no

need to promulgate further regulations merely to refer interested

parties to existing provisions.

Several commenters observed that the provisions of section 245(i)

``shall take effect on October 1, 1994.'' The commenters asserted that,

because of this wording, the provisions of section 245(i) should apply

not only to applications filed after October 1, 1994, but to any

adjustment application pending on that date. They urged the Service to

allow applicants for adjustment of status to file motions to reopen or

reconsider under section 245(i) of the Act.

The language of section 245(i), however, clearly states that a

prospective immigrant under this section ``may apply'' for adjustment

of status. This wording is prospective and not retroactive. Because

section 245(i) became effective on October 1, 1994, the plain language

of the statute limits the application of section 245(i) to applications

for adjustment of status filed on or after October 1, 1994. Therefore,

the Service cannot apply the provisions of section 245(i) to

applications filed prior to October 1, 1994, or to motions to reopen or

reconsider such applications.

A number of these commenters argued that, although applicants who

entered without inspection were ineligible for adjustment of status

under the CSPA, the provisions of section 245(i) should apply

retroactively to any CSPA application pending as of October 1, 1994.

One commenter noted that, whole most aliens with pending adjustment of

status applications could simply file a new application under section

245(i), CSPA applicants cannot file a new application because of the

CSPA's statutory filing deadline of June 30, 1994. Another commenter

urged the Service to reopen or reconsider denied CSPA applications

under section 245(i) because ``[t]he INS unlawfully stopped advance

paroles for Chinese nationals'' who had entered without inspection. As

stated previously, the provisions of section 245(i) apply only to

applications filed on or after October 1, 1994. Further, had Congress

intended any special consideration for CSPA applications, such

provisions would have been incorporated into the statute. Accordingly,

the provisions of the rule have not been changed in response to these

comments.

IIRIRA

Surcharge Increased by Congress

Section 376(a) of the IIRIRA increased the amount of the additional

sum for applicants seeking the benefits of section 245(i) of the Act

from five times the fee required for processing of applications under

this section ($650) to $1,000. The regulations are, therefore, amended

to reflect the change in the additional fee.

The new 245(i) surcharge in the amount of $1,000 applies to all

applications properly filed with this Service on or after the end of

the 90-day period beginning on the date of enactment. The section

245(i) fee increase, therefore, became effective on December 29, 1996,

for applications for adjustment of status under section 245(i) of the

Act which were properly filed in accordance with 8 CFR 103.2(a) on or

after that date. Under new 8 CFR 245.10(f), if at any time during the

pendency of the adjustment application, the application is determined

to be subject to the section 245(i) surcharge, and the application is

not accompanied by the required amount (i.e., base fee of $130 plus

$1,000 surcharge), the Service will afford the alien an opportunity to

amend the application in accordance with 8 CFR 245.10(d). If the alien

elects to amend such an application, he or she will be credited for the

$130 base filing fee that was submitted with the initial adjustment

application and, therefore, will be required to submit only the $1,000

surcharge amount and Supplement A to Form I-485.

Section 245(c)(6) of the Act

Under the IIRIRA, Congress amended section 245(c)(6) of the Act by

changing the reference to section 241(a)(4)(B) to

[[Page 39421]]

section 237(a)(4)(B) of the Act. Section 237(a)(4)(B) of the Act

renders any alien who has engaged, is engaged, or at any time after

admission engages in any terrorist activity, as defined in section

212(a)(3)(B)(iii) of the Act, ``deportable.'' Under section 245(c)(6),

persons who are deportable under section 237(a)(4)(B) of the Act are

ineligible to adjust status under section 245(a) of the Act. This

second interim regulation reflects the position of the Service that any

person who is deportable under section 237(a)(4)(B) of the Act is also

ineligible to adjust status under section 245(i) of the Act.

New Section 245(c)(7) of the Act

Section 375 of the IIRIRA, which took effect on September 30, 1996,

amended section 245(c) of the Act by adding two new groups of aliens to

the list of those who are ineligible to adjust status under section

245(a) of the Act. The first group, described in new section 245(c)(7)

of the Act, consists of any alien beneficiary of an employment-based

immigrant visa petition who is not in a lawful nonimmigrant status at

the time she or he applies for adjustment of status. In enacting new

section 245(c)(7) of the Act, Congress changed preexisting law by

rendering aliens who are legally permitted to remain in the United

States, such as parolees, but who are not among the classes of

nonimmigrants defined in section 101(a)(15) or other provisions of the

Act, ineligible to adjust status under section 245(a) of the Act on the

basis of an approved employment-based immigrant petition. This second

interim rule amends 8 CFR 245.1(b) to add such aliens to the group of

people currently ineligible for adjustment of status. It should be

noted, however, that the section 245(c)(7) bar to adjustment does not

apply to aliens who were in a lawful nonimmigrant status at the time

they applied for adjustment of status, subsequently departed from the

United States, and then reentered this country pursuant to an approved

advance parole.

New Section 245(c)(8) of the Act

Section 375 of the IIRIRA also added a new section 245(c)(8) to the

Act, which renders ``any alien who was employed while the alien was an

unauthorized alien as defined in section 274A(h)(3) [of the Act] or who

has otherwise violated the terms of a nonimmigrant visa'' ineligible to

adjust status pursuant to section 245(a) of the Act. With respect to

the employment of an alien at a particular time, section 274A(h)(3) of

the Act defines the term ``unauthorized alien'' as an alien who is not

either an alien lawfully admitted for permanent residence or authorized

to be so employed under the Act or by the Attorney General.

Except as noted below with regard to immediate relatives and

certain special immigrants, the Service interprets new section

245(c)(8) of the Act as rendering an alien ineligible to adjust status

to permanent resident under section 245(a) of the Act if she or he at

any time engaged in unauthorized employment or violated nonimmigrant

status while physically present in the United States. This second

interim rule amends 8 CFR 245.1(b) accordingly by adding any alien who

has violated the terms of a nonimmigrant visa to the list of persons

currently ineligible to adjust status under section 245(a) of the Act.

In addition, since the statute does not state that the violation of the

terms of a nonimmigrant visa or the unauthorized employment must have

occurred during a particular time period, this rule similarly places no

time restrictions on when such a violation must have occurred. For this

reason, this rule provides that any such violation of the terms of a

nonimmigrant visa or unauthorized employment, either before or after

the filing of Form I-485, will render an alien ineligible to adjust

status under section 245(a) of the Act. Thus, as described below, under

new section 245(c)(8) of the Act, an alien seeking employment during

the pendency of his or her adjustment application must fully comply

with the requirements of section 274A of the Act and 8 CFR part 274a.

Clarification of the Term ``Otherwise Violated the Terms of a

Nonimmigrant Visa'' in New Section 245(c)(8) of the Act

For purposes of section 245(c)(8) of the Act, an alien will not be

deemed to have ``otherwise violated the terms of a nonimmigrant visa''

merely by filing an application for adjustment of status, provided that

such filing was in accordance with 8 CFR 103.2(a) and occurred prior to

the expiration of the alien's nonimmigrant status. Further, for

purposes of section 245(c)(8) of the Act, an alien will not be deemed

to have ``otherwise violated the terms of a nonimmigrant visa'' if: (a)

The alien's failure to maintain status was through no fault of his or

her own or for technical reasons, as defined in 8 CFR 245.1(d)(2); (b)

the alien was granted a change of nonimmigrant status pursuant to 8 CFR

248.1(b); (c) the alien was granted an extension of nonimmigrant stay

pursuant to current Operations Instructions 214.1 or any previous

analogous Operations Instructions; (d) the alien was granted an

extension of nonimmigrant stay based on a timely filed extension

application which the Service approved after the alien's authorized

nonimmigrant period of stay expired; or (e) the alien was granted

reinstatement to student status pursuant to 8 CFR 214.2(f)(16) on the

basis of circumstances beyond the student's control.

Clarification of the Term ``Unauthorized Alien'' in New Section

245(c)(8) of the Act

For purposes of section 245(c)(8) of the Act, an alien will not be

deemed to be an ``authorized alien'' as defined in section 274A(h)(3)

of the Act while his or her properly filed Form I-485 application is

pending final adjudication, if the alien has otherwise obtained

permission from the Service to engage in employment, or if the alien:

(a) Has not previously engaged in unauthorized employment at any time;

(b) was authorized, at the time of filing the adjustment application,

to be employed by his or her current employer pursuant to a

nonimmigrant classification permitting such employment; and (c) would

otherwise have been authorized to continue employment had he or she not

filed the application for adjustment of status. In all other cases,

including those in which the alien's previously granted employment

authorization expires during the pendency of the adjustment

application, the adjustment applicant must await issuance of an

employment authorization document (``EAD'') from the Service before he

or she may lawfully engage in employment. For this reason, adjustment

applicants are strongly urged to file a Form I-765 application on the

basis of 8 CFR 274a.12(c)(9) concurrently or as soon as possible after

filing the Form I-485 to avoid a lapse of employment authorization.

Further, in all cases, if the district director or service center

director denies the alien's application for adjustment of status, any

employment authorization granted to the alien on the basis of the

adjustment application will be subject to termination pursuant to 8 CFR

274a.14(b). Finally, as this second interim rule is limited to defining

who is an ``unauthorized alien'' for purposes of new section 245(c)(8)

of the Act, an alien who meets the above requirements must, like all

other adjustment applicants, obtain advance parole in order to travel

outside of the United States during the pendency of his or her

adjustment application.

[[Page 39422]]

Immediate Relatives and Certain Special Immigrants Are Exempt From the

Bar to Adjustment Under Section 245(c)(8) of the Act

By its terms, new section 245(c)(8) of the Act applies to ``any

alien'' and does not exempt any individual or group of individuals from

the bar to adjustment under section 245(a) of the Act. This provision,

however, must be harmonized with section 245(c)(2) of the Act, which

also addresses unauthorized employment and failure to maintain lawful

status, but which exempts from its bar to adjustment immediate

relatives, as defined in section 201(b) of the Act, or special

immigrants, as defined in section 101(a)(27) (H), (I), (J), or (K) of

the Act. Despite the reference to ``all aliens'' in new section

245(c)(8) of the Act, it is the position of the Service that the

language of this new section does not supersede the more specific

language of section 245(c)(2) of the Act. See 2B Sutherland Stat.

Const. section 51.02 at p. 121 (where a conflict exists the more

specific statute controls over the more general one). Under this second

interim rule, therefore, immediate relatives as defined in section

201(b) or special immigrants described in section 101(a)(27) (H), (I),

(J), or (K) of the Act who have at any time engaged in unauthorized

employment or otherwise violated the terms of a nonimmigrant status

continue to be eligible to adjust status under section 245(a) of the

Act because of the explicit language to this effect in section

245(c)(2) of the Act. As is currently the case, such individuals are

not required to pay the additional sum required for filing an

adjustment application pursuant to section 245(i) of the Act. See 8 CFR

245.1(b). These persons are still required, however, to pay the base

filing fee required of other adjustment applicants under section 245(a)

of the Act. See 8 CFR part 103.7(b)(1).

Effect of New Ground of Inadmissibility 212(a)(6) on Section 245(i) of

the Act

The IIRIRA added several new grounds of inadmissibility, including

a new section 212(a)(6) of the Act, which became effective on April 1,

1997. Under new section 212(a)(6)(A) of the Act, with certain

exceptions specified therein, aliens who are ``present in the United

States without being admitted or paroled,'' will be inadmissible to the

United States. All inadmissibility grounds are subject, however, to the

general language in the first clause of section 212(a) of the Act:

``[e]xcept as otherwise provided in this Act.'' For the following

reasons, it is the position of the Service that, despite the enactment

of this new ground of inadmissibility, aliens who are physically

present in the United States after having entered without inspection

will continue to be eligible to apply for adjustment of status under

section 245(i) of the Act through the September 30, 1997, sunset date

for section 245(i). In making this determination, we note, as a

preliminary matter, that the first clause of section 212(a) of the Act,

unlike certain other sections of the Act, contains no requirement that

another section of the Act specifically provide that an entrant without

inspection is exempt from the new ground of inadmissibility. By

contrast, in enacting other sections of the Act, when Congress has

intended such specificity, it has expressly imposed this requirement.

See e.g., section 101(a)(38) of the Act (``except as otherwise

specifically herein provided * * *''); section 245A(h)(1) of the Act

(``[u]nless specifically provided by this section or other law''). In

the absence of such a specificity requirement in the first clause of

section 212(a) of the Act, the rules of statutory construction permit

us to conclude, if otherwise warranted, that Congress intended

otherwise eligible applicants who had entered without inspection to be

``admissible'' for the limited purpose of adjusting status under

section 245(i) of the Act, even in the absence of specific language in

section 245(i) referring to section 212(a)(6)(A) of the Act.

The Service finds ample additional evidence of Congress' intent to

permit entrants without inspection to continue to apply for adjustment

of status under section 245(i) of the Act after April 1, 1997. First,

under the plain language of section 245(i)(1)(A) of the Act, aliens who

are physically present in the United States who entered without

inspection are specifically permitted to apply for adjustment of

status. Section 245(i)(2)(A), of the Act, however, requires that such

aliens be ``admissible'' to the United States. To deem such entrants

without inspection ``inadmissible'' would render section 245(i)(1)(A)

of the Act effectively superfluous, since it would preclude nearly all

entrants without inspection from ever obtaining approval of such

applications. On a similar note, since an applicant for adjustment of

status is assimilated to the position of an applicant for admission,

such a person must be ``admissible'' both at the time of application

and at the time of being granted adjustment of status. See 8 CFR

245.10(a)(3) (alien ``may apply'' for adjustment under section 245(i)

if not excludable); section 245(i)(2)(A) of the Act (alien must be

``admissible'' at time of adjustment). Since section 245(i)(1)(A) of

the Act expressly permits entrants without inspection to apply for

adjustment of status, Congress, in effect, has deemed such persons

``admissible'' for the single purpose of filing an adjustment

application under section 245(i) of the Act. The Service does not

believe that Congress, having thus invited such applications, intended

to create the futile situation in which most entrants without

inspection would be admissible solely for the purpose of filing an

adjustment application, but would be precluded from ever being able to

adjust status based on the same application. Finally, as a further

indication of Congress' intent to preserve the status quo with respect

to entrants without inspection, we note that Congress, in enacting the

IIRIRA, amended other portions of section 245(i) of the Act but left

standing 245(i)(1)(A) of the Act, which specifically authorizes those

who entered without inspection to apply for adjustment under the terms

of that subsection. See section 376 (a) and (b) of the IIRIRA.

General Effect of New Section 212(a)(9) of the Act on Adjustment of

Status

This second interim regulation specifically provided that new

section 212(a)(9) of the Act will not be a bar to adjustment of status

for an alien who has not yet departed from the United States. This

interpretation conforms to the plain language of the statue which

requires that an alien must depart from the United States in order to

become inadmissible under section 212(a)(9) of the Act. Such a person,

however, if otherwise within the purview of section 212(a)(9) of the

Act (for example, by virtue of having accumulated the specified periods

of unlawful presence), will be deemed inadmissible under that section

of the Act for purposes of adjustment of status if he or she has

departed from the United States and subsequently reentered the United

States by any means.

Effect of New Section 212(a)(9)(B) of the Act on Adjustment of Status

With certain exceptions, effective April 1, 1997, under new section

212 (a)(9)(B) of the Act, any alien, with the exception of a lawful

resident, who has been ``unlawfully present'' in this country (e.g.,

present beyond the period of stay authorized by the Attorney General or

present without being admitted or paroled) for a period of more than

180 days but less than 1 year, has voluntarily departed from the United

States, and again seeks admission to this country within 3 years from

the date of departure, will be

[[Page 39423]]

inadmissible to the United States. Similarly, an alien who has been

unlawfully present in the United States for 1 year or more, departs

from the United States, and again seeks admission to this country

within 10 years of the date of such departure or removal, will be

deemed inadmissible. In addition to the specific exceptions set forth

under new section 212(a)(9)(B) of the Act, no period prior to April 1,

1997, may be counted toward the period of ``unlawful presence.'' See

section 301(b)(3) of the IIRIRA. Thus, the earliest possible date an

alien could be deemed to be inadmissible under section 212(a)(9)(B) of

the Act would be September 28, 1997. As noted above, otherwise

admissible persons who have been ``unlawfully present'' for any period

of time while in this country are generally ineligible to adjust their

status under section 245(a) of the Act. Under section 245(i) of the

Act, however, such persons, if admissible, are eligible to apply for

adjustments of status upon payment, in most cases, of a substantial

surcharge fee. The Service intends to address the issues relating to

section 212(a)(9) of the Act in a separate proposed rulemaking.

Good Cause Exception

The Service's implementation of this rule as a second interim rule,

with provisions for post-promulgation public comments, is based upon

the ``good cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B), (d)(3).

See Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991).

The immediate implementation of this second interim rule without prior

notice and comment is necessary to implement statutory changes which

have already gone into effect. Consequently, there is insufficient time

to provide pre-publication notice and comment. The Service will fully

consider all comments submitted during the comment period. The Service

notes that this second interim rule continues to allow certain persons

who were previously ineligible for adjustment of status to obtain

lawful permanent residence without having to incur the high costs of

travel abroad.

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 this rule

will not have a significant adverse economic impact on a substantial

number of small entities. By temporarily removing certain restrictions

on eligibility for adjustment of status in accordance with the statute,

the rule will eliminate inconvenience to a number of individuals

currently in the United States who otherwise would be required to incur

significant monetary expenses by traveling abroad to apply for an

immigrant visa at a United States consulate or embassy. This second

interim rule will have no effect on small entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any 1 year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

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.

Executive Order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

This interim rule does not impose any new reporting or

recordkeeping requirements. The information collection requirements

contained in this rule were previously approved for use by the Office

of Management and Budget (OMB). The OMB control numbers for these

collections 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), Fees, Forms, Freedom of Information, Privacy,

Reporting and recordkeeping, Surety bonds.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

Aliens, Immigration, employment authorization and employee

requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,

15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

Sec. 103.7 [Amended]

2. In Sec. 103.7(b)(1), the entry for ``Supplement A to Form I-

485'' is amended by revising the fee of ``$650.00'' to read:

``$1,000''.

3. In Sec. 103.7, paragraph (c)(1) is amended in the last sentence

by removing the phrase ``except as directed in section 245(i) of the

Act''.

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

PERMANENT RESIDENCE

4. The authority citation for part 245 continues to read as

follows:

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

[[Page 39424]]

5. Section 245.1 is amended by:

a. Removing ``.'' at the end of paragraph (b)(7), and replacing it

with a ``;'';

b. Removing the ``.'' at the end of paragraph (b)(8), and replacing

it with a ``;''; and by adding paragraphs (b)(9) and (b)(10), to read

as follows:

Sec. 245.1 Eligibility.

* * * * *

(b) * * *

(9) Any alien who seeks adjustment of status pursuant to an

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

Act and who is not maintaining a lawful nonimmigrant status at the time

he or she files an application for adjustment of status; and

(10) Any alien who was ever employed in the United States without

the authorization of the Service or who has otherwise at any time

violated the terms of his or her admission to the United States as a

nonimmigrant, except an alien who is an immediate relative as defined

in section 201(b) of the Act or a special immigrant as defined in

section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of

this paragraph, an alien who meets the requirements of

Sec. 274a.12(c)(9) of this chapter shall not be deemed to have engaged

in unauthorized employment during the pendency of his or her adjustment

application.

* * * * *

6. Section 245.10 is amended by:

a. Revising paragraph (a)(6);

b. Revising paragraph (b) introductory text;

c. Revising paragraph (b)(3);

d. Revising paragraphs (c), (d) and (e); and by

e. Adding new paragraphs (f) and (g), to read as follows:

Sec. 245.10 Adjustment of status upon payment of additional sum under

Public Law 103-317.

(a) * * *

(6) Pays an additional sum of $1,000, unless payment of the

additional sum is not required under section 245(i) of the Act; and

* * * * *

(b) Payment of additional sum. An adjustment applicant filing under

the provisions of section 245(i) of the Act must pay the standard

adjustment application filing fee as specified in Sec. 103.7(b)(1) of

this chapter. Each application submitted to the Service under the

provisions of section 245(i) of the Act on or after October 1, 1994,

and before December 29, 1996, must be submitted with an additional sum

of $650. Each application submitted to the Service under the provisions

of section 245(i) of the Act on or after December 29, 1996, must be

submitted with an additional sum of $1,000. If a determination is made

by an officer of the Service on or after December 29, 1996, that an

applicant is subject to section 245(i) of the Act, and the Form I-485

is not accompanied by Supplement A to Form I-485 and, if required by

section 245(i), the additional sum of $1,000, the applicant will be

afforded the opportunity to amend the application by submitting

Supplement A, the additional sum of $1,000, if required, and any other

required documentation. However, an applicant filing under the

provisions of section 245(i) of the Act is not required to pay the

additional sum if, at the time the application for adjustment of status

is filed, the alien is:

* * * * *

(3) The child of a legalized alien, is unmarried and less than 21

years of age, qualifies for and has filed Form I-817, and submits a

copy of his or her receipt of approval notice for filing Form I-817.

Such an alien must pay the additional sum if he or she has reached the

age of 21 years at the time of filing for adjustment of status. Such an

alien must meet all other conditions for adjustment of status contained

in the Act and in this chapter.

for adjustment of status pursuant to section 245(i) of the Act if such

application was filed either before October 1, 1994, or after September

30, 1997. If an alien attempts to file an adjustment of status

application under the provisions of section 245(i) after September 30,

1997, the Service will accept the application and base filing fee, as

set forth in Sec. 103.7(b)(1) of this chapter, return the additional

sum of $1,000 to the alien, and adjudicate the application pursuant to

section 245(a) of the Act. If the alien, in such a case, is not

eligible for adjustment of status, the Service will issue a written

notice advising the alien of the denial of the application for

adjustment of status.

(d) Adjustment application filed on or after October 1, 1994, and

before October 1, 1997, without Supplement A to Form I-485 and

additional sum. An adjustment of status applicant will be allowed the

opportunity to amend an adjustment of status application filed in

accordance with Sec. 103.2 of this chapter on or after October 1, 1994,

and before October 1, 1997, in order to request consideration under the

provisions of section 245(i) of the Act, if it appears that the alien

is not otherwise ineligible for adjustment of status. The Service shall

notify the applicant in writing of the Service's intent to deny the

adjustment of status application, and any other requests for benefits

which derive from the adjustment application, unless supplement A to

Form I-485 and any required additional sum is filed within 30 days of

the date of the notice.

(e) Applications for Adjustment of Status filed before October 1,

1994. The provisions of section 245(i) of the Act shall not apply to an

application for adjustment of status that was filed before October 1,

1994. The provisions of section 245(i) of the Act also shall not apply

to a motion to reopen or reconsider an application for adjustment of

status if the application for adjustment of status was filed before

October 1, 1994. An applicant whose pre-October 1, 1994, application

for adjustment of status has been denied may file a new application for

adjustment of status pursuant to section 245(i) of the Act on or after

October 1, 1994, and before October 1, 1997, provided that such new

application is accompanied by: the required fee; Supplement A to Form

I-485; and additional sum required by section 245(i) of the Act; and

all other required initial and additional evidence.

(f) Completion of processing of pending applications. An

application for adjustment of status filed subsequent to September 30,

1994, and prior to October 1, 1997, shall be adjudicated to completion

by an officer of the Service, regardless of whether the final decision

is made after September 30, 1997. The provisions of paragraph (d) of

this section regarding amended applications shall apply to all such

applications. The Service may consider a motion to reopen or reconsider

an application for adjustment of status on the basis of section 245(i)

of the Act only if:

(1) The application for adjustment of status was filed on or after

October 1, 1994, and before October 1, 1997, and

(2) Prior to October 1, 1997, the applicant submitted Supplement A

to Form I-485, any additional sum required by section 245(i), and any