Adjustment of Status to That of Person Admitted for Permanent Residence

Federal RegisterSep 30, 1997

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 245

[EOIR No. 119I; A.G. ORDER No. 2117-97]

RIN 1125-AA20

Adjustment of Status to That of Person Admitted for Permanent

Residence

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

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

SUMMARY: This interim rule enables the Executive Office for Immigration

Review to complete adjudication of timely filed section 245(i)

adjustment applications after September 30, 1997.

Dates: Effective Date: This rule is effective September 30, 1997.

Comment Date: Written comments must be received on or before December

1, 1997.

ADDRESSES: Please submit written comments to Margaret M. Philbin,

General Counsel, Executive Office for Immigration Review, 5107 Leesburg

Pike, Suite 2400, Falls Church, Virginia, 22041.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel, Executive Office for Immigration

Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041,

telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION: On August 26, 1994, Congress enacted the

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

Agencies Appropriations Act of 1995, Pub. L. 103-317. Section 506(b) of

this law added a new section 245(i) to the Immigration and Nationality

Act (the Act) which allows certain persons already in the United States

to adjust

[[Page 51000]]

status, despite the provisions of section 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.

On July 23, 1997, the Immigration and Naturalization Service

(Service) published an interim rule with request for comments (62 FR

39417) concerning adjustment of status applications filed pursuant to

section 245(i) of the Act. The supplementary information to the interim

rule reiterates that 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. By law, benefits may not

be granted pursuant to section 245(i) of the Act to aliens who attempt

to file anew 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.

This interim rule is published in order that all applications for

adjustment of status filed pursuant to section 245(i) be adjudicated in

a consistent manner. Since applications for adjustment of status may be

adjudicated by either the Service or the Executive Office for

Immigration Review (EOIR) (which includes the Immigration Courts and

the Board of Immigration Appeals), this interim rule enables the

Executive Office for Immigration Review to complete adjudication of

timely filed section 245(i) adjustment applications after September 30,

1997, and makes it clear that neither the Service nor EOIR may approve

an application 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. However, both the Service and EOIR may

complete adjudication of timely filed section 245(i) adjustment

applications after September 30, 1997.

The implementation of this rule as an interim rule, with provisions

for post-promulgation public comment, is based upon the ``good cause''

exceptions found at 5 U.S.C. 553 (b)(B) and (d)(3). The reasons and the

necessity for immediate implementation of this interim rule without

prior notice and comment are as follows: Immediate implementation of

this rule will ensure that all applications for adjustment of status

filed pursuant to section 245(i) are adjudicated in the same manner and

will avoid any delay in the processing of these applications.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Attorney General certifies

that this rule affects only those aliens who are applying to adjust

their status under section 245(i) of the Immigration and Nationality

Act. Therefore, this rule does not have a significant economic impact

on a substantial number of 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 one 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 $110 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

The Attorney General has determined that this rule is not a

significant regulatory action under Executive Order No. 12866, and

accordingly this rule has not been reviewed by the Office of Management

and Budget.

Executive Order 12612

This rule has no federalism implications warranting the preparation

of a Federalism Assessment in accordance with Executive Order No.

12612.

Executive Order 12988

This rule meets the applicable standards provided in sections 3(a)

and 3(b)(2) of Executive Order No. 12988.

List of Subjects in 8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

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

Regulations is amended as follows:

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

PERMANENT RESIDENCE

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

follows:

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

Sec. 245.10 [Amended]

2. In Sec. 245.10 paragraphs (c) and (f) are revised to read as

follows:

* * * * *

Office for Immigration Review may approve an application 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 either the Service or the Executive Office for

Immigration Review will 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, either the Service will issue a written notice

advising the alien of the denial of the application for adjustment of

status, or the Executive Office for Immigration Review will deny the

application for adjustment of status.

* * * * *

(f) Completion of processing of pending applications. (1) 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 or by the Executive Office for Immigration

Review, 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 or the Executive Office for Immigration Review 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:

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

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

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

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