Adjustment of Status for Certain Nationals of Nicaragua and Cuba

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 240, 245, 274a and 299

[INS NO. 1893-97; AG Order No. 2154-98]

RIN 1115-AF04

Adjustment of Status for Certain Nationals of Nicaragua and Cuba

AGENCY: Immigration and Naturalization Service, Justice, and Executive

Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

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

SUMMARY: This interim rule implements section 202 of the Nicaragua

Adjustment and Central American Relief Act (NACARA) by establishing

procedures for certain nationals of Nicaragua and Cuba who have been

residing in the United States to become lawful permanent residents of

this country. This rule allows them to obtain lawful permanent resident

status without applying for an immigrant visa at a United States

consulate abroad and waives many of the usual requirements for this

benefit.

DATES: Effective date: This interim rule is effective June 22, 1998.

Comment date: Comments must be submitted on or before July 20,

1998.

ADDRESSES: Please submit written comments, original and two copies,to

the Director, Policy Directives and Instructions Branch, Immigration

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

20536. To ensure proper handling, please reference INS No. 1893-97 on

your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

For matters relating to the Immigration and Naturalization Service--

Suzy Nguyen, Adjudications Officer, Office of Adjudications,

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

Washington, DC 20536, telephone (202) 514-5014; For matters relating to

the Executive Office for Immigration Review--Margaret M. Philbin,

General Counsel, Executive Office for Immigration Review, 5107 Leesbury

Pike, Suite 2400, Falls Church, VA 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

How Does Section 202 of NACARA Affect Nicaraguan and Cuban

Nationals?

The Nicaraguan Adjustment and Central American Relief Act (NACARA),

enacted as title II of the District of Columbia Appropriations Act,

1998, Pub. L. 105-100 (111 Stat. 2160, 2193), was signed into law on

November 19, 1997. As amended, section 202 of NACARA allows certain

Nicaragua and Cuban nationals who are physically present in the United

States to adjust status to that of lawful permanent resident. In order

to be eligible for benefits under NACARA, an applicant must be a

national of Nicaragua or Cuba; must be admissible to the United States

under all provisions of section 212(a) of the Immigration and

Nationality Act (the Act), other than those provisions specifically

excepted by NACARA; must have been physically present in the United

States for a continuous period beginning not later than December 1,

1995, and ending not earlier than the date the application for

adjustment is filed (not counting absences totaling 180 days or less);

and must properly file an application before April 1, 2000. In

addition, certain family members of NACARA beneficiaries are also

eligible for adjustment of status under NACARA.

What Are the Benefits of NACARA?

An alien seeking adjustment of status under NACARA is not subject

to a number of the requirements to which aliens seeking adjustment

under section 245 of the Act may be subject.

First, a NACARA applicant is not required to have been inspected

and admitted or paroled into the United States.

Second, a NACARA applicant is not subject to any of the barriers to

adjustment contained in section 245(c) of the Act (e.g., the bars

against aliens who have accepted or continued in unauthorized

employment, aliens who remained in the United States longer than

authorized, and aliens admitted as crewmen, in transmit without visa,

or under the visa waiver pilot program). Consequently, an alien who

would otherwise be ineligible under section 245(c) may apply for

adjustment under NACARA.

Third, NACARA applicants are not subject to the immigrant visa

preference system requirements contained in sections 201 and 202 of the

Act. Hence, neither the worldwide quota restrictions nor the per-

country quota restrictions apply.

Fourth, applicants need not demonstrate that they are not

inadmissible under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of

section 212(a) of the Act in order to adjust status under section 202

of Public Law 105-100. Accordingly, NACARA allows an otherwise

qualified applicant to adjust status under NACARA notwithstanding

inadmissibility for likelihood of becoming a public charge, for failure

to obtain a labor certification, for failure to meet certain

requirements applicable to foreign-trained physicians, for failure to

meet certain standards for foreign health-care workers, for entering or

remaining in the country illegally, for violating documentary

requirements relating to entry as an immigrant, or for accruing more

than 180 days of unlawful presence prior to the alien's last departure

or removal.

Fifth, unlike those seeking to adjust status under other provisions

of law, a NACARA applicant who has been paroled into the United States

and is now in exclusion or removal proceedings before an immigration

judge is not barred from filing an application for adjustment of status

under the provisions of NACARA while in such proceedings.

What Are the NACARA Requirements Regarding Continuous Physical

Presence in the United States

Under the terms of NACARA, eligible applicants must have been

physically present in the United States continuously since December 1,

1995. However, they may have been outside of the United States for

periods not to exceed 180 days in the aggregate between December 1,

1995, and the date of adjustment of status. A NACARA applicant shall

not be considered to

[[Page 27824]]

have failed to maintain continuous physical presence in the United

States by reason of any absences for periods that do not exceed 180

days in the aggregate. Furthermore, the 180-day cumulative period shall

be tolled during an absence authorized pursuant to issuance of an

Authorization for Parole of an alien into the United States (Form I-

512).

How Can a NACARA Applicant Prove Continuous Physical Presence in

the United States?

A NACARA applicant must establish two aspects of physical presence

in the United States: commencement on or prior to December 1, 1995, and

continuity since that date.

Under section 202(b)(2)(A) of Pub. L. 105-100, as amended, an

applicant may prove commencement of continuous physical presence in the

United States by demonstrating that on or before December 1, 1995, he

or she:

(i) Applied to the Attorney General for asylum;

(ii) was issued an order to show cause under section 242 or 242B of

the Immigration and Nationality Act (as in effect prior to April 1,

1997);

(iii) was placed in exclusion proceedings under section 236 of such

Act (as in effect prior to April 1, 1997);

(iv) Applied for adjustment of status under section 245 of such

Act;

(v) Applied to the Attorney General for employment authorization;

(vi) Performed service, or engaged in a trade or business, within

the United States which is evidenced by records maintained by the

Commissioner of Social Security; or

(vii) Applied for any other benefit under the Immigration and

Nationality Act by means of an application establishing the alien's

presence in the United States prior to December 1, 1995.

Normally, such demonstration will be made through submission of a

photocopy of a Government-issued document. In some cases, the alien may

submit other evidence demonstrating one or more of the above actions,

which may be verified through Government records.

Section 202(b)(2)(B) of NACARA also permits, but does not require,

the Attorney General to provide by regulation for additional methods by

which an applicant could prove commencement of continuous physical

presence in the United States. The Department of Justice (Department)

is availing itself of this authority to allow a NACARA applicant to

submit, as evidence of commencement of physical presence in the United

States, other documentation issued by state and local authorities (such

as school, hospital, police, and public assistance records). The

Department believes that these evidentiary options may well provide

sufficient opportunities for qualified applicants to establish

commencement of physical presence in the United States without

encouraging fraudulent applications. However, in order to ensure that

no significant group of eligible aliens is precluded from establishing

eligibility for NACARA benefits, the Department is soliciting public

comments on the need for any additional methods of establishing

commencement of physical presence in the United States and suggestions

as to what those additional methods should be, including whether the

documentary standards listed in 8 CFR 245.13(e)(3) for demonstrating

continuity of physical presence should also be applied to the

requirement for demonstrating commencement of physical presence.

Commenters are encouraged to explain which classes of aliens would

benefit from the proposal, and how the proposal could be implemented

without severely compromising the integrity of the adjudicative

process.

The NACARA statute is silent as to the methods by which an

applicant may demonstrate the continuity of his or her physical

presence in the United States. By regulation, the Department is hereby

providing that a NACARA applicant may demonstrate continuity of

physical presence in the United States through the submission of one or

more documents issued by any governmental or non-governmental

authority. Such documentation must bear the name of the applicant, have

been dated at the time it was issued, and bear the signature of the

issuing authority. In some cases, a single document may suffice to

establish continuity for the entire post-December 1, 1995, period,

while in other cases the alien may need to submit a number of

documents. For example, a college transcript or an employment record

may show that an applicant attended school or worked in the United

States throughout the entire post-December 1, 1995, period. On the

other hand, an applicant would need to submit a number of monthly rent

receipts or electric bills to establish the same continuity of

presence. While the Department neither requires nor wants the applicant

to submit documentation to show presence on every single day since

December 1, 1995, there should be no significant chronological gaps in

the documentation, either. Generally, a gap of 3 months or less in

documentation is not considered significant. Furthermore, if the

applicant is aware of documents already contained in this or her

Immigration and Naturalization Service (Service) file that establish

physical presence, he or she may merely list those documents, giving

the type and date of the document. Examples of such documents might

include a written copy of a sworn statement given to a Service officer,

the transcript of a formal hearing, and a Record of Deportable/

Inadmissible Alien (Form I-213).

How Does an Applicant Establish Admissibility?

The grounds of inadmissibility specified in paragraphs (4) (public

charge), (5) (lack of labor certification), (6)(A) (illegal entry),

(7)(A) (immigrant not in possession of an immigrant visa or other valid

entry document), and (9)(B) (unlawful presence) of section 212(a) of

the Act do not apply to NACARA applicants. Additionally, a Nicaraguan

or Cuban national present in the United States who has been ordered

excluded, deported, or removed from, or who has agreed to depart

voluntarily from, the United States may apply for adjustment of status

under NACARA.

If a NACARA applicant is inadmissible to the United States under

one of the grounds of inadmissibility contained in section 212(a) of

the Act other than those specifically excepted by NACARA, but is

eligible for an individual waiver of that ground of inadmissibility, he

or she may file an application for the waiver concurrently with his or

her application for adjustment of status. Adjustment of status may not

be granted unless the waiver has first been approved.

How Do the Provisions of NACARA Affect Dependents of Nicaraguan and

Cuban Nationals?

The provisions of NACARA also apply to certain dependents. To

receive NACARA benefits as a dependent of a NACARA beneficiary, an

alien would have to be a national of either Nicaragua or Cuba (but need

not necessarily be of the same nationality as the principal

beneficiary--a Cuban dependent could qualify through a Nicaraguan

principal beneficiary and vice versa); would have to be the spouse,

child (i.e., under 21 years of age and unmarried), or unmarried son or

daughter (i.e., 21 years of age or older) of a NACARA principal

beneficiary at the time of the principal beneficiary's adjustment of

status to that of permanent resident; and would have to be admissible

to the United States under section 212(a) of the Act (other than those

provisions specifically excepted by NACARA). NACARA dependents must be

physically present in the United States in order to apply

[[Page 27825]]

and must properly file an application before April 1, 2000.

Additionaly, an unmarried son or daughter, other than a child as

defined in section 101(b)(1) of the Act, would have to have been

physically present in the United States continuously since December 1,

1995 (not counting absences totaling 180 days or fewer). Although many

qualifying dependents of NACARA principal beneficiaries would be able

to receive NACARA benefits in their own right, some would only be able

to qualify under the dependent provisions. Examples of otherwise

eligible persons who could only qualify as dependents would include a

spouse or child who arrived in the United States between December 1,

1995, and the principal beneficiary's filing date, and a spouse or

child who had been absent for an aggregate of more than 180 days.

How Are Dependents Who Do Not Meet NACARA Requirements Affected?

A family member who is unable to qualify for NACARA adjustment of

status on his or her own, or as a dependent under the provisions of

NACARA, may eventually become eligible for lawful permanent resident

status under other provisions of the Act. Examples of such individuals

would include a dependent who is not a national of Nicaragua or Cuba, a

spouse or child whose relationship to the principal applicant is not

established until after the principal applicant is granted permanent

resident status, and an unmarried son or daughter over the age of 21

who entered the United States after December 1, 1995. Upon becoming a

permanent resident, a NACARA beneficiary could file a visa petition to

accord such a dependent immigrant classification under section

203(a)(2) of the Act, thereby enabling the dependent who is not

eligible for NACARA benefits to seek immigration to the United States

through the normal family-based immigration process.

What Happens if an Applicant Is Already in Exclusion, Deportation,

or Removal Proceedings, or Has a Motion To Reopen or Motion To

Reconsider Pending Before the Immigration Court or the Board of

Immigration Appeals (Board)?

Proceedings Pending Before the Executive Office for Immigration Review

(EOIR)

Persons who have proceedings pending before an Immigration Court or

the Board, or persons who have a pending motion to reopen or reconsider

filed on or before May 21, 1998, shall remain within the jurisdiction

of EOIR for the purpose of consideration of applications for adjustment

of status under section 202 of NACARA.

Proceedings Pending Before an Immigration Judge

If an alien (other than an arriving alien who has not been paroled

into the United States) is in exclusion, deportation, or removal

proceedings before an immigration judge, or if an alien has a motion to

reopen or motion to reconsider filed on or before May 21, 1998 pending

before an immigration judge, jurisdiction over an application for

adjustment of status under section 202 of NACARA shall lie with the

Immigration Court. The procedure for filing an application for

adjustment under NACARA is described below. If an alien who is not

clearly ineligible for adjustment of status under section 202 of NACARA

and who has a pending motion to reopen or motion to reconsider files an

application for adjustment of status under section 202 of NACARA, the

immigration judge shall reopen the alien's proceedings for

consideration of the adjustment application. Applications shall be

subject to the filing requirements of 8 CFR 3.11 and 3.31.

Proceedings Pending Before the Board

If an alien who is not clearly ineligible for adjustment of status

under section 202 of NACARA has a pending appeal with the Board, the

Board shall remand the proceedings to the immigration judge for the

sole purpose of adjudicating the application for adjustment. The Board

shall so remand the case regardless of whether the alien has already

filed an application for adjustment of status under NACARA. Further, if

an alien has a pending motion to reopen or motion to reconsider filed

with the Board on or before May 21, 1998, the Board shall reopen and

remand the proceedings to the immigration judge for the sole purpose of

adjudicating an application for adjustment of status under section 202

of NACARA.

If upon remand the immigration judge denies the application, or the

alien fails to file an application for adjustment under section 202 of

NACARA, the immigration judge shall return the case to the Board by

certification. This will allow the Board to consider the denial of the

NACARA application as well as all other outstanding issues from the

previously pending appeal or motion. The alien shall not be required to

file another Notice of Appeal to the Board of Immigration Appeals of

Decision of Immigration Judge (Form EOIR-26), or to pay an appeal

filing fee because the immigration judge's certification of the denial

to the Board will automatically transfer the immigration judge's

decision to the Board.

May an Alien Who Is in Proceedings Before an Immigration Court or

the Board of Immigration Appeals Apply for Adjustment of Status

Before the Service?

Yes, under certain circumstances. An alien who is in exclusion,

deportation, or removal proceedings before an Immigration Court or the

Board may move to have the proceeding administratively closed for the

purpose of filing an application for adjustment under NACARA. If the

Service concurs in such motion, the Immigration Court or the Board, as

appropriate, will administratively close the proceedings. Such closure

would permit recalendaring of the closed proceedings if, for example,

the alien fails to file an application for adjustment of status under

NACARA before April 1, 2000, or the Service denies any application for

adjustment of status filed by the alien under NACARA. Should the

Service deny the application of status filed by the alien under NACARA.

Should the Service deny the application, or the alien fail to file the

application before April 1, 2000, the Service will move to recalendar

the proceedings and the proceedings will be recalendared by the

Immigration Court or the Board, as appropriate. In the case of an

application denied by the Service, the alien could seek reconsideration

of the denied adjustment application in such recalendared proceedings.

What Happens if an Applicant Is the Subject of a Final Order of

Removal?

An alien who is the subject of a final order of removal, and who

has never filed an application for adjustment of status under section

202 of NACARA with the Immigration Court, must file such application

with the Service. However, if such alien has a motion to reopen or a

motion to reconsider filed on or before May 2, 1998 pending before an

Immigration Court or the Board, then the application for adjustment

must be filed with the Immigration Court or with the Board, as

appropriate. The mere filing of an application for adjustment of status

under section 202 of NACARA with the Service or the referral of a

denied application to an immigration judge does not stay the execution

of the final order of removal. To request that execution of the final

order be stayed by the Service, the alien must file an Application for

Stay of Removal (Form I-246), following the procedures set

[[Page 27826]]

forth in 8 CFR 241.6. If the application is referred to the immigration

judge, and the Service does not grant a stay of execution of the final

order, the alien must request that the immigration judge or Board

specifically grant a stay of execution of the final order of removal

pursuant to 8 CFR 245.13(d)(5)(ii).

When Can an Application Be Filed?

The application period for NACARA benefits begins June 22, 1998 and

ends on March 31, 2000.

What Forms and Other Documents Should Be Filed?

Each applicant for NACARA adjustment of status benefits must file a

separate Application to Register Permanent Residence or Adjust Status

(Form I-485), accompanied by the required application fee and

supporting documents described below. NACARA applicants should complete

Part 2 (Application Type) of that form by checking box ``h--other'' and

writing ``NACARA--Principal'' or ``NACARA--Dependent'' next to that

block. Each application filed must be accompanied by the required

initial evidence: (1) a birth certificate or other record of birth; (2)

two photographs as described in the Form I-485 instructions; (3) a

completed Biographic Information Sheet (Form G-325A) if the applicant

is between 14 and 79 years of age; (4) a report of medical examination;

(5) if the applicant is at least 14 years of age, a local police

clearance from each jurisdiction where the alien has resided for six

months or longer since arriving in the United States; (6) a copy of the

applicant's Arrival-Departure Record (Form I-94) or other evidence of

inspection and admission or parole into the United States, if

applicable; (7) one or more of the documents described in section

202(b)(2) of NACARA and 8 CFR 245.13(e)(2) to establish commencement of

physical presence in the United States; and (8) one or more of the

documents described in 8 CFR 245.13(e)(3) to establish continuity of

physical presence in the United States. In addition, the applicant must

submit a statement showing all departures from and arrivals in the

United States since December 1, 1995. Finally, if the alien is applying

as the spouse, child, or unmarried son or daughter of another NACARA

beneficiary, the applicant must submit evidence of the relationship

(for example, a marriage certificate).

Must the Applicant Be Fingerprinted?

Yes. Upon receipt of the application, the Service will instruct the

applicant regarding procedures for obtaining fingerprints through one

of the Service's Application Support Centers (ASCs) or authorized

Designated Law Enforcement Agencies (DLEAs) chosen specifically for

that purpose. Those instructions will direct the applicant to the ASC

or DLEA nearest the applicant's home, and advice the applicant of the

date(s) and time(s) fingerprinting services may be obtained. Applicants

should not submit fingerprint cards as part of the initial filing.

Is There a Fee for Filing This Application?

NACARA adjustment of status applications must be submitted with the

fee required by 8 CFR 103.7(b)(1) for Form I-485 (currently $130 for

applicants 14 years of age or older, and $100 for applicants under age

14). If the application is submitted to the INS Texas Service Center,

the fee must also be submitted to that center. If the application is

submitted to an Immigration Court or the Board of Immigration Appeals,

the fee must be submitted to the appropriate local office of the

Service in accordance with 8 CFR 3.31. An applicant who is deserving of

the benefits of section 202 of NACARA and is unable to pay the filing

fee may request a fee waiver in accordance with 8 CFR 103.7(c).

How and Where Should the Application Be Filed?

If the applicant is not in exclusion, deportation, or removal

proceedings before an Immigration Court or the Board of Immigration

Appeals, the application and attachments must be submitted by mail to:

USINS Texas Service Center, P.O. Box 851804, Mesquite, TX 75185-1804.

If the applicant is in proceedings pending before an Immigration Court

or the Board of Immigration Appeals, or if the applicant has a motion

to reopen or motion to reconsider filed on or before May 21, 1998

pending before an Immigration Court or the Board, the application and

attachments must be submitted to the Immigration Court with

jurisdiction over the case or to the Board if the Board has

jurisdiction. In such cases, the fee should be submitted to the Service

pursuant to 8 CFR 3.31, as provided above. It should be noted that if

the motion to reopen or motion to reconsider is filed after May 21,

1998, jurisdiction over any application for adjustment of status under

NACARA lies with the Service, not with EOIR.

Applications for adjustment of status under NACARA may not be

submitted to any other Service locations or to any consular posts.

Will an Applicant Filing an Application for Adjustment of Status

Under NACARA With the Service Be Required to Appear Before the

Service for an Interview?

The decision whether to require an interview is solely within the

discretion of the Service. The Service may elect to waive the interview

of the applicant. If the application is adjudicated without interview,

a notice of the decision will be mailed to the applicant. If an

interview is required, the application will be forwarded to the local

Service office having jurisdiction over the applicant's place of

residence. The applicant will be notified of the date and time to

appear for the interview. If an applicant fails to appear for an

interview, the application may be denied in accordance with existing

regulations.

Can an Applicant Be Authorized To Work While the Application Is

Pending?

An unexpired authorization to accept employment under another

provision of the Act will not be invalidated by the filing of an

application for adjustment of status under NACARA or by the

administrative closure of the exclusion, deportation, or removal

proceeding to pursue relief pursuant to NACARA. Furthermore, an

applicant for adjustment under NACARA is not precluded from applying

for, and being granted, an extension of any such employment

authorization for which he or she remains eligible. Any applicant for

adjustment of status under NACARA who wishes to obtain initial

employment authorization, or continued employment authorization when

his or her prior authorization expires, during the pendency of the

adjustment of status application may file an Application for Employment

Authorization (Form I-765), in accordance with the instructions on the

form. With limited exceptions, the interim rule provides that

employment authorization will not be granted until the application for

adjustment has been pending for 180 days. This approach is in keeping

with section 202(c)(3) of NACARA, which mandates approval of employment

authorization if the adjustment application ``is pending for a period

exceeding 180 days,'' and has not been denied, and which authorizes,

but does not mandate, approval of employment authorization if the

application has been pending for fewer than 180 days. Under the interim

rule, the Department will authorize employment for applicants whose

cases have been pending for fewer than 180 days only if the

[[Page 27827]]

applicant applies for work authorization and adjustment at the same

time. In addition, the Service record must contain evidence that the

applicant is a national of Nicaragua or Cuba who had applied to the

Service for an immigration benefit, or had been placed in deportation

or exclusion proceedings, not later than December 1, 1995, as provided

in paragraphs (1)(A)(i) through (v) and (vii) of section 202(b) of

NACARA, unless the record also shows that the applicant is clearly

ineligible for adjustment of status under NACARA (e.g., the applicant

has been convicted of an aggravated felony). The potential benefits of

filing for adjustment of status and employment authorization

concurrently will be emphasized during public information sessions that

the Service will hold with local community groups. The Department

believes that limited employment authorization to these circumstances

and to circumstances in which 180 days have elapsed since the filing of

the application will both: (1) discourage fraudulent applications filed

simply as a way to gain work authorization, and (2) permit employment

more promptly for those whose applications appear likely to be granted.

However, in publishing this interim rule the Department solicits the

views of interested parties on this topic.

Can an Application for Adjustment of Status Be Submitted if the

Alien Is Outside the United States?

No. The statute and regulations require that an alien be physically

present in the United States in order to properly file an application.

However, the regulation does contain a special provision allowing an

otherwise eligible alien who is outside the United States to submit a

request for parole authorization. Such request would have to be

accompanied by photocopies of the documents the alien intends to file

in support of his or her claim for eligibility for adjustment of status

under NACARA if the parole authorization is granted. Parole

authorization may be granted, as a matter of discretion, if upon review

of the application for parole authorization and related documents it is

determined that the application for adjustment of status is likely to

be approved once it has been properly filed. The alien would be allowed

to file the application after being paroled into the country.

Accordingly, the alien must remain outside the United States until the

request for parole authorization is approved. Any attempt to enter the

United States without the parole authorization could result in the

alien's being found inadmissible to, and removed from, the United

States.

Can an Applicant Travel Outside the United States While the

Application Is Pending?

Nothing in NACARA authorizes the Service to allow an applicant to

re-enter the United States without proper documents. If an applicant

plans to leave the United States to go to any other country, including

Canada or Mexico, before a decision is made on his or her NACARA

adjustment application, the applicant should contact the Service to

request advance authorization for parole. If an applicant leaves the

United States without such advance authorization, action on his or her

NACARA adjustment application may be terminated and the application may

be denied. An applicant may also experience difficulty when returning

to the United States if he or she does not have such advance

authorization. Furthermore, any absence from the United States without

an advance parole authorization issued prior to departure counts toward

the 180-day aggregate time period that the applicant is allowed to be

outside the United States.

If an Alien Who Is Under a Final Order of Exclusion, Deportation,

or Removal Departs From the United States, Will the Alien Be

Effecting His or Her own Exclusion, Deportation, or Removal?

Yes. Such alien would be a ``self-deport'' and would be subject to

the inadmissibility provisions of section 212(a)(9) of the Act,

regardless of whether the alien obtained an Authorization for Parole of

an Alien Into the United States (Form I-512) prior to departure. While

being inadmissible would not preclude the alien from being paroled into

the United States, it would preclude the alien from being admitted to

the United States or being granted an adjustment of status, unless the

alien first applied for and was granted permission to reapply for

admission into the United States.

How Can an Alien Apply for Such Permission?

An Alien needing such permission may file an Application for

Permission to Reapply for Admission Into the United States After

Deportation or Removal (Form I-212), in accordance with the

instructions on that form. Form I-212 may be filed prior to the alien's

departure.

Can an Alien Who Has Not Filed the Application for Adjustment

Obtain a Form I-512?

Once this regulation becomes effective on June 22, 1998, and except

as discussed above, only the NACARA-eligible aliens who have filed an

application for adjustment of status will be able to obtain a Form I-

512. However, because some individuals may need to travel prior to that

date, on December 24, 1997, the Service issued instructions to all

local Service offices allowing district directors to issue Form I-512

to aliens who appear to be eligible for adjustment of status under

NACARA and need to travel. The interim rules provides that for aliens

who departed the United States with a Form I-512 issued pursuant to

those December 24, 1997, instructions, the 180-day cumulative period

during which an alien may be absent without breaking continuous

physical presence in the United States in tolled while the alien is

outside the United States in accordance with the conditions of the

advance parole authorization. In this fashion, the Department precludes

undue hardships for the affected individuals.

Furthermore, for those aliens who were not issued a Form I-512

because they departed before the Service could implement the December

24, 1997, instructions, the interim rule provides for the tolling of

the 180-day cumulative period from November 19, 1997, until July 20,

1998, provided the alien departed from the United States prior to

December 31, 1997. This provision extends until July 20, 1998, in order

to provide interested aliens 30 days from the effective date of the

interim regulation to file the application for parole authorization

with the Texas Service Center. As discussed above, once the application

for parole authorization has been filed the 180-day cumulative period

during which an alien is not required to be physically present in the

United States is tolled, provided the application for parole

authorization is granted. Such tolling would remain in effect until the

alien arrives in the United States with the Form I-512 issued by the

director of the Texas Service Center.

What Documentation Will Be Issued if the Adjustment Application Is

Approved?

After processing is completed, a notice of the decision will be

mailed to the NACARA applicant. Applicants should keep this notice for

their records. If the application has been approved, an alien

registration receipt card will be

[[Page 27828]]

mailed separately to the applicant. To obtain temporary evidence of

lawful permanent resident status, the applicant may present the

original approval notice and his or her passport or other photo

identification at his or her local Service office. The local Service

office will issue temporary evidence of lawful permanent resident

status after verifying the approval of the NACARA adjustment of status

application. If the applicant is not in possession of a passport in

which such temporary evidence may be endorsed, he or she should also

submit two photographs meeting Alien Documentation, Identification, and

Telecommunication System (ADIT) specifications so that the Service may

prepare and issue temporary evidence of lawful permanent residence

status. If the alien previously had been issued a final order of

exclusion, deportation, or removal, such order shall be deemed canceled

as of the date of the approval of the application for adjustment of

status. If the alien had been in exclusion, deportation, or removal

proceedings that were administratively closed, such proceedings shall

be deemed terminated as of the date of approval of the application for

adjustment of status .

What Happens if an Application Is Denied by the Service?

If the Service finds that an applicant is ineligible for adjustment

of status under NACARA, the Service will advise him or her of its

determination and of the applicant's right to seek, and the procedures

for seeking, consideration of the application by an immigration judge.

Depending on the individual case circumstances, those procedures could

take one of three different routes as follows:

(1) If exclusion, deportation, or removal proceedings had never

been commenced, the Service will issue a Notice to Appear, thereby

initiating removal proceedings during which the applicant may renew his

or her application for adjustment under NACARA before an Immigration

Court. In such proceedings, the immigration judge shall adjudicate the

renewed application.

(2) If exclusion, deportation, or removal proceedings had been

initiated and administratively closed under the procedure set forth in

8 CFR 245.13(d)(3), the Service will advise the alien of the Service's

denial of the NACARA adjustment application and will move the

Immigration Court, or the Board if at the time of administrative

closure the Board had jurisdiction over the case, to recalendar the

proceeding. The previously closed removal proceedings will then be

recalendared by the Immigration Court or the Board, as appropriate.

(3) If a final order of exclusion, deportation, or removal had been

issued, the Service, using Form I-290C, Notice of Certification, will

refer its decision to deny the NACARA adjustment application to an

immigration judge, who will adjudicate the application in proceedings

designed solely for the purpose of such adjudication.

What Happens if an Application Is Denied by the Immigration Court?

If the Immigrant Court denies the NACARA adjustment application of

an alien in exclusion, deporting, or removing proceedings before the

Immigration Court, the decision to appealed to the Board along with and

under the same procedures as all other issues before the Immigration

Court in those proceedings. If the Immigration Court denies the NACARA

adjustment application of an alien whose case was remanded to the

Immigration Court by the Board, the Immigration Court shall certify the

decision to the Board for review. If the Immigration Court denies the

NACARA adjustment application of an alien whose case was referred by

the Service for a NACARA-only inquiry, the alien shall have the right

to appeal the decision of the Board, subject to the requests for 8 CFR

parts 3 and 240 governing appeals from immigration judges to the Board,

including the requirements of filing a Notice of Appeal to the Board of

Immigration Appeals of Decision of Immigration Judge (Form EOIR-26) and

paying the filing fee.

What Happens if an Alien Fails To Appear for a Hearing Before the

Immigration Judge on a NACARA Adjustment as Applicable?

An alien must appear for all scheduled hearings before an

immigration judge, unless his or her appearance is waived by the

immigration judge. An alien who is in exclusion, deportation, or

removal proceedings before the immigration judge and who fails to

appear for a hearing regarding a NACARA adjustment application will be

subject to the applicable statutory and regulatory in absentia

procedures (i.e., section 242B of the Act as it existed prior to the

amendments of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) on September 30, 1996, for

deportation proceedings, and section 240 of the Act as amended IIRIRA

for removal proceedings).

What Rules of Procedure Apply in NACARA-only Hearings Conducted on

Cases Referred by the Service to the Immigration Court?

Although an alien who is placed before the immigration judge for a

NACARA-only hearing after referral on a Notice of Certification (Form

I-290) to the Immigration Court by the Service is not specifically

subject to the statutory and regulatory provisions governing exclusion,

deportation, and removal proceedings, the Department has inserted

language in this interim rule reflecting the standards in section 240

of the Act for removal proceedings, including the in absentia

procedures. Absent specific statutory direction in this area, the

procedures of section 240 of the Act were chosen because such

procedures are similar to those from the pre-IIRIRA section 242B of the

Act and indicate Congress's most recent preference for procedures

dealing with failures to appear for immigration proceedings. Use of the

language from section 240 of the Act also assures that the in absentia

procedures used for those in NACARA-only proceedings are consistent

with the in absentia procedures applicable to aliens who file NACARA

adjustment applications in ongoing removal and deportation proceedings.

As for those aliens who, upon reopening and remanding by the Board

to the Immigration Court, fail to file a NACARA adjustment application

with the Immigration Court, the immigration judge will certify the case

back to the Board for consideration of the previously pending appeal or

motion. If, prior to receiving a final order from the Board, the alien

subsequently requests as remand to file a NACARA adjustment

application, the Board shall remand the case to the Immigration Court,

unless the alien is clearly ineligible for such relief.

Good Cause Exception

The Department's implementation of this rule as an interim rule,

with provision for post-promulgation public comment, is based upon the

``good cause'' exceptions found at 5 U.S.C. 553(b)(B). Section 202 of

NACARA became effective immediately upon enactment on November 19,

1997. Publication of this rule as an interim rule will expedite

implementation of that section and allow Nicaraguan and Cuban nationals

and their spouses and children to apply for and obtain the benefits

available to applicants for adjustment of status under NACARA as soon

as possible before the statutory application deadline of April 1, 2000.

[[Page 27829]]

Regulatory Flexibility Act

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

that this rule will not, if promulgated, have a significant adverse

economic impact on a substantial number of small entities. This rule

allows certain Nicaraguan and Cuban nationals to apply for adjustment

of status; it has no effect on small entities as that term is defined

in 5 U.S.C. 601(6).

Executive Order 12866

This rule is considered by the Department of Justice to be a

``significant regulatory action'' under Executive Order 12866, section

3(f), Regulatory Planning and Review. Accordingly, this regulation has

been submitted to the Office of Management and Budget for review.

Executive Order 12612

The regulation will not have substantial direct effects on the

States, on the relationship between the National Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

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 12988

This interim rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive Order 12988.

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 will not significantly or uniquely

affect small government. Therefore, no actions were deemed necessary

under the provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act

The information collection requirements contained in this rule have

been approved for use by the Office of Management and Budget (OMB)

under the Paperwork Reduction Act. The OMB control number for this

collection is contained in 8 CFR 299.5, Display of control numbers.

List of Subjects

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 240

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 245

Alien, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements. Accordingly,

chapter I of title 8 of the Code of Federal Regulations is amended as

follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

1. The authority citation for part 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,

1362, 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3

CFR, 1949-1953 Comp., p. 1002.

2. Section 3.1 is amended by adding paragraph (b)(12) to read as

follows:

Sec. 3.1 General authorities.

* * * * *

(b) * * *

(12) Decisions of Immigration Judges on applications for adjustment

of status referred on a Notice of Certification (Form I-290C) to the

Immigration Judge in accordance with Sec. 245.13(n)(2) of this chapter

or remanded to the Immigration Court in accordance with

Sec. 245.13(d)(2) of this chapter.

* * * * *

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE

UNITED STATES

3. The authority citation for part 240 is revised to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,

1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100 (111

Stat. 2160, 2193); 8 CFR part 2.

Sec. 240.1 [Amended]

4. In Sec. 240.1, paragraph (a) is amended in the first sentence by

adding the phrase ``and section 202 of Pub. L. 105-100'' immediately

after the phrase ``and 249 of the Act''.

Sec. 240.11 [Amended]

5. In Sec. 240.11, paragraph (a)(1) is amended in the first

sentence by revising the phrase ``adjustment of status under section 1

of the Act of November 2, 1966 (as modified by section 606 of Pub. L.

104-132) or under section 101 or 104 of the Act of October 28, 1977,''

to read ``adjustment of status under section 1 of the Act of November

2, 1966 (as modified by section 606 of Pub. L. 104-208), section 101 or

104 of the Act of October 28, 1977, or section 202 of Pub. L. 105-

100,''.

Sec. 240.31 [Amended]

6. Section 240.31 is amended in the first sentence by adding the

phrase ``, including the adjudication of applications for adjustment of

status pursuant to section 202 of Pub. L. 105-100'' immediately after

the phrase ``and this chapter''.

Sec. 240.41 [Amended]

7. In Sec. 240.41, paragraph (a) is amended in the first sentence

by adding the phrase ``and section 202 of Pub. L. 100'' after ``and 249

of the Act''.

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

PERMANENT RESIDENCE

8. The authority citation for part 245 is revised to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.

105-100 (111 Stat. 2160, 2193); 8 CFR part 2.

9. Section 245.13 is added to read as follows:

Sec. 245.13 Adjustment of Status of Certain Nationals of Nicaragua and

Cuba under Public Law 105-100.

(a) Aliens eligible to apply for adjustment. An alien is eligible

to apply for adjustment of status under the provisions of section 202

of Pub. L. 105-100, if the alien:

(1) Is a national of Nicaragua or Cuba;

(2) Except as provided in paragraph (o) of this section, has been

physically present in the United States for a continuous period

beginning not later than December 1, 1995, and ending not earlier that

the date the application for adjustment is granted, excluding:

[[Page 27830]]

(i) Any periods of absence from the United States not exceeding 180

days in the aggregate; and

(ii) Any periods of absence for which the applicant received an

Advance Authorization for Parole (Form I-512) prior to his or her

departure from the United States, provided the applicant returned to

the United States in accordance with the conditions of such Advance

Authorization for Parole;

(3) Is not inadmissible to the United States for permanent

residence under any provisions of section 212(a) of the Act, with the

exception of paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If

available, an applicant may apply for an individual waiver as provided

in paragraph (c) of this section;

(4) Is physically present in the United States at the time the

application is filed; and

(5) Properly files an application for adjustment of status in

accordance with this section.

(b) Qualified family members. (1) Existence of relationship at time

of adjustment. The spouse, child, or unmarried son or daughter of an

alien eligible for adjustment of status under the provisions of Pub. L.

105-100 is eligible to apply for benefits as a dependent provided the

qualifying relationship existed when the principal beneficiary was

granted adjustment of status and the dependent meets all applicable

requirements of sections 202(a) and (d) of Pub. L. 105-100.

(2) Spouse and minor children. If physically present in the United

States, the spouse or minor child of an alien who is eligible for

permanent residence under the provisions of Pub. L. 105-100 may also

apply for and receive adjustment of status under this section, provided

such spouse or child meets the criteria established in paragraph (a) of

this section, except for the requirement of continuous physical

presence in the United States since December 1, 1995. Such application

may be filed concurrently with or subsequent to the filing of the

principal's application but may not be approved prior to approval of

the principal's application.

(3) Unmarried adult sons and daughters. An unmarried son or

daughter of an alien who is eligible for permanent residence under the

provisions of Pub. L. 105-100 may apply for and receive adjustment

under this section, provided such son or daughter meets the criteria

established in paragraph (a) of this section.

(c) Applicability of inadmissibility grounds contained in section

212(a). An applicant for the benefits of the adjustment of status

provisions of section 202 of Pub. L. 105-100 need not establish

admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of

section 212(a) of the Act in order to be able to adjust his or her

status to that of permanent resident. An applicant under section 202 of

Pub. L. 105-100 may also apply for one or more of the immigrant waivers

of inadmissibility under section 212 of the Act, if applicable, in

accordance with Sec. 212.7 of this chapter.

(d) Aliens in exclusion, deportation, or removal proceedings, and

aliens subject to a final order of exclusion, deportation, or removal.

(1) Proceedings pending before an Immigration Court. Except as provided

in paragraph (d)(3) of this section, while an alien is in exclusion,

deportation, or removal proceedings pending before an immigration

judge, or has a pending motion to reopen or motion to reconsider filed

with an immigration judge on or before May 21, 1998, sole jurisdiction

over an application for adjustment of status under section 202 of

Public Law 105-100 shall lie with the immigration judge. If an alien

who has a pending motion to reopen or motion to reconsider filed with

an immigration judge on or before May 21, 1998 files an application for

adjustment of status under section 202 of Pub. L. 105-100, the

immigration judge shall reopen the alien's proceedings for

consideration of the adjustment application, unless the alien is

clearly ineligible for adjustment of status under section 202 of Pub.

L. 105-100. All applications for adjustment of status under section 202

of Pub. L. 105-100 filed with an Immigration Court shall be subject to

the requirements of Secs. 3.11 and 3.31 of this chapter.

(2) Proceedings pending before the Board of Immigration Appeals.

Except as provided in paragraph (d)(3) of this section, in the case of

an alien who either has a pending appeal with the Board or has a

pending motion to reopen or motion to reconsider filed with the Board

on or before May 21, 1998, the Board shall remand, or reopen and

remand, the proceedings to the Immigration Court for the sole purpose

of adjudicating an application for adjustment of status under section

202 of Pub. L. 105-100, unless the alien is clearly ineligible for

adjustment of status under section 202 of Pub. L. 105-100. If the

immigration judge denies, or the alien fails to file, the application

for adjustment of status under section 202 of Pub. L. 105-100, the

immigration judge shall certify the decision to the Board for

consideration in conjunction with the applicant's previously pending

appeal or motion.

(3) Administrative closure of pending exclusion, deportation, or

removal proceedings. (i) In the case of an alien who is in exclusion,

deportation, or removal proceedings, or has a pending motion to reopen

or a motion to reconsider such proceedings filed on or before May 21,

1998, and who appears to be eligible to file an application for

adjustment of status under section 202 of Pub. L. 105-100, the

Immigration Court having jurisdiction over such proceedings or motion,

or if the matter is before the Board on appeal or by motion, the Board,

shall, upon request of the alien and with the concurrence of the

Service, administratively close the proceedings, or continue

indefinitely the motion, to allow the alien to file such application

with the Service as prescribed in paragraph (g) of this section.

(ii) In any case not administratively closed in accordance with

paragraph (d)(3)(i) of this section, the immigration judge having

jurisdiction over the exclusion, deportation, or removal proceedings

shall have jurisdiction to accept and adjudicate any application for

adjustment of status under section 202 of Pub. L. 105-100 during the

course of such proceedings.

(4) Aliens with final orders of exclusion, deportation, or removal.

An alien who is subject to a final order of exclusion, deportation, or

removal, and who has not been denied adjustment of status under section

202 of Public Law 105-100 by the immigration judge or the Board of

Immigration Appeals, may apply to the Service for adjustment of status

under section 202 of Pub. L. 105-100.

(5) Stay of final order of exclusion, deportation, or removal. (i)

With the Service. The filing of an application for adjustment under

section 202 of Public Law 105-100 with the Service shall not stay the

execution of such final order unless the applicant has filed, and the

Service has approved an Application for Stay of Removal (Form I-246) in

accordance with section 241(c)(2) of the Act and Sec. 241.6 of this

chapter.

(ii) With EOIR. When the Service refers a decision to an

immigration judge on a Notice of Certification (Form I-290C) in

accordance with paragraph (m)(3) of this section, the referral shall

not stay the execution of the final order. Execution of such final

order shall proceed unless a stay of execution is specifically granted

by the immigration judge, the Board, or an authorized Service officer.

(6) Effect on applications for adjustment under other provisions of

the law. Nothing in this section shall be deemed to allow any alien who

is in either exclusion proceedings that commenced prior to April 1,

1997, or

[[Page 27831]]

removal proceedings as an inadmissible arriving alien that commenced on

or after April 1, 1997, and who has not been paroled into the United

States, to apply for adjustment of status under any provision of law

other than section 202 of Pub. L. 105-100.

(e) Application and supporting documents. Each applicant for

adjustment of status must file an Application to Register Permanent

Residence or Adjust Status (Form I-485). An applicant should complete

Part 2 of Form I-485 by checking box ``h--other'' and writing

``NACARA--Principal'' or ``NACARA--Dependent'' next to that block. Each

application must be accompanied by:

(1) The fee prescribed in Sec. 103.7(b)(1) of this chapter;

(2) Evidence of commencement of physical presence in the United

States not later than December 1, 1997. Such evidence may consist of

either:

(i) Documentation evidencing one or more of the activities

specified in section 202(b)(2)(A) of Pub. L. 105-100, or

(ii) Other documentation issued by a Federal, State, or local

authority provided such other documentation bears the seal of such

authority, was dated at the time of issuance, and bears a date of

issuance not later than December 1, 1995. Examples of such other

documentation include, but are not limited to:

(A) A State driver's license;

(B) A State identification card issued in lieu of a driver's

license to a non-driver;

(C) A county or municipal hospital record;

(D) A public college or public school transcript; and

(E) Income tax records;

(3) Evidence of continuity of physical presence in the United

States issued by any governmental or non-governmental authority,

provided such evidence bears the name of the applicant, was dated at

the time it was issued, and bears the signature of the authorized

representative of the issuing authority. There should be no

chronological gaps in such documentation exceeding 90 days in length,

excluding periods when the applicant states that he or she was not

physically present in the United States. Such documentation need not

bear the seal of the issuing authority and may include, but is not

limited to:

(i) School records;

(ii) Rental receipts;

(iii) Utility bill receipts;

(iv) Any other dated receipts;

(v) Personal checks written by the applicant bearing a dated bank

cancellation stamp;

(vi) Employment records, including pay checks;

(vii) Credit card statements showing the dates of purchase,

payment, or other transaction; and

(viii) For applicants who have had ongoing correspondence or other

interaction with the Service, a list of the types and dates of such

correspondence or other contact that the applicant knows to be

contained or reflected in Service records;

(4) A copy of the applicant's birth certificate;

(5) A complete Biographic Information Sheet (Form G-325A), if the

applicant is between 14 and 79 years of age;

(6) A report of medical examination, as specified in Sec. 245.5 of

this chapter;

(7) Two photographs, as described in the instructions to Form I-

485;

(8) If the applicant is 14 years of age or older, a police

clearance from each municipality where the alien has resided for six

months or longer since arriving in the United States;

(9) If the applicant is applying as the spouse of another Pub. L.

105-100 beneficiary, a copy of their certificate of marriage and copies

of documents showing the legal termination of all other marriages by

the applicant or the other beneficiary;

(10) If the applicant is applying as the child, unmarried son, or

unmarried daughter of another (principal) beneficiary under section 202

of Pub. L. 105-100 who is not the applicant's biological mother, copies

of evidence (such as the applicant's parent's marriage certificate and

documents showing the legal termination of all other marriages, an

adoption decree, or other relevant evidence) to demonstrate the

relationship between the applicant and the other beneficiary;

(11) A copy of the Arrival-Departure Record (Form -I-94) issued at

the time of the applicant's arrival in the United States, if the alien

was inspected and admitted or paroled; and

(12) If the applicant has departed from and returned to the Untied

States since December 1, 1995, an attachment on a plain piece of paper

showing:

(i) The date of the applicant's last arrival in the United States

before or on December 1, 1995;

(ii) The date of each departure (if any) from the United States

since that arrival;

(iii) The reason for each departure; and

(iv) The date, manner, and place of each return to the United

States.

(f) Secondary evidence. If the primary evidence required in

paragraph (e)(4), (e)(9) or (e)(10 of this section is unavailable,

church or school records, or other secondary evidence pertinent to the

facts in issue, may be submitted. If such documents are unavailable,

affidavits may be submitted. The applicant may submit as many types of

secondary evidence as necessary to establish the birth, marriage, or

other event. Documentary evidence establishing that primary evidence is

unavailable must accompany secondary evidence of birth or marriage in

the home country. In adjudicating the application for adjustment of

status under section 202 of Public Law 105-100, the Service or

immigration judge shall determine the weight to be given such secondary

evidence. Secondary evidence may not be submitted in lieu of the

documentation specified in paragraphs (e)(2) and (e)(3) of this

section. However, subject to verification by the Service, if the

documentation specified in paragraphs (e)(2) and (e)(3) is already

contained in the Service's file relating to the applicant, the

applicant may submit an affidavit to that effect in lieu of the actual

documentation.

(g) Filing. The application period begins on June 22, 1998. To

benefit from the provisions of section 202 of Public Law 105-100, an

alien must properly file an application for adjustment of status before

April 1, 2000. Except as provided in paragraph (d) of this section, all

applications for the benefits of section 202 of Pub. L. 105-100 must be

submitted by mail to: USINS Texas Service Center, P.O. Box 851804,

Mesquite, TX 75185-1804. After proper filing of the application, the

Service will notify the applicant to appear for fingerprinting as

prescribed in Sec. 103.2(e) of this chapter.

(h) Jurisdiction. Except as provide din paragraphs (d) and (i) of

this section, the director of the Texas Service Center shall have

jurisdiction over all applications for adjustment of status under

section 202 of Public Law 105-100.

(i) Interview. (1) Except as provided in paragraphs (d), (i)(2),

and (i)(3) of this section, all applicants for adjustment of status

under section 202 of Pub. L. 105-100 must be personally interviewed by

an immigration officer at a local office of the Service. In any case in

which the director of the Texas Service Center determines that an

interview of the applicant is necessary, that director shall forward

the case to the appropriate local Service office for interview and

adjudication.

(2) In the case of an applicant who has submitted evidence of

commencement of physical presence in the United States consisting of

one or more of the documents specified in section 202(b)(2)(A)(i)

through (v) or section

[[Page 27832]]

202(b)(2)(A)(vii) of Pub. L. 105-100 and upon examination of the

application, including all other evidence submitted in support of the

application, all relevant Service records and all other relevant law

enforcement indices, if the director of the Texas Service Center

determines that the alien is clearly eligible for adjustment of status

under Pub. L. 105-100 and that an interview of the applicant is not

necessary, the director may approve the application.

(3) Upon examination of the application, all supporting

documentation, all relevant Service records, and all other relevant law

enforcement indices, if the director of the Texas Service Center

determines that the alien is clearly ineligible for adjustment of

status under Pub. L. 105-100 and that an interview of the applicant is

not necessary, the director may deny the application.

(j) Authorization to be employed in the United States while the

application is pending. (1) Application. An applicant for adjustment of

status under section 202 of Pub. L. 105-100 who wishes to obtain

initial or continued employment authorization during the pendency of

the adjustment application must file an Application for Employment

authorization (Form I-765), with fee as set forth in Sec. 103.7(b)(1)

of this chapter. The applicant may either submit Form I-765

concurrently with Form I-485 or wait for at least 90 days after

submission of Form I-485.

(2) Adjudication and issuance. In general, employment authorization

may not be issued to an applicant for adjustment of status under

section 202 of Pub. L. 105-100 until the adjustment application has

been pending for 180 days. However, if Service records contain one or

more of the documents specified in section 202(b)(2)(A)(i) through (v)

and (vii) of Pub. L. 105-100, evidence of the applicant's Nicaraguan or

Cuban nationality, and no indication that the applicant is clearly

ineligible for adjustment of status under section 202 of Pub. L. 105-

100, the application for employment authorization may be approved, and

the resulting document issued immediately upon verification that the

Service record contains such information. If the Service fails to

adjudicate the application for employment authorization upon expiration

of the 180-day waiting period or within 90 days of the filing of

application for employment authorization, whichever comes later, the

alien shall be eligible for interim employment authorization in

accordance with Sec. 274a.13(d) of this chapter. Nothing in this

section shall preclude an applicant for adjustment of status under Pub.

L. 105-100 from being granted an initial employment authorization or an

extension of employment authorization under any other provision of law

or regulation for which the alien may be eligible.

(k) Parole authorization for purposes of travel. (1) Travel from

and return to the United States while the application for adjustment of

status is pending. If an applicant for benefits under section 202 of

Pub. L. 105-100 desires to travel outside, and return to, the United

States while the application for adjustment of status is pending, he or

she must file a request for advance parole authorization on an

Application for Travel Document (Form I-131), with fee as set forth in

Sec. 103.7(b)(1) of this chapter and in accordance with the

instructions on the form. If the alien is either in deportation or

removal proceedings, or subject to a final order of deportation or

removal, the Form I-131 must be submitted to the Assistant Commissioner

for International Affairs; otherwise the Form I-131 must be submitted

to the director of the Texas Service Center, who shall have

jurisdiction over such applications. If any applicant departs the

United States without first obtaining an advance parole, his or her

application for adjustment of status under section 202 of Pub. L. 105-

100 is deemed to be abandoned as of the moment of his or her departure.

(2) Parole authorization for the purpose of filing an application

for adjustment of status under section 202 of Pub. L. 105-100. An

otherwise eligible applicant who is outside the United States and

wishes to come to the United States in order to apply for benefits

under section 202 of Pub. L. 105-100 may request parole authorization

for such purpose by filing an Application for Travel Document (Form I-

131) with the Texas Service Center, at P.O. Box 851804, Mesquite, TX

75185-1804. Such application must be supported by a photocopy of the

Form I-485 that the alien will file once he or she has been paroled

into the United States. The applicant must include photocopies of all

the supporting documentation listed in paragraph (e) of this section,

except the filing fee, the medical report, the fingerprint card, and

the local police clearances. If the director of the Texas Service

Center is satisfied that the alien will be eligible for adjustment of

status once the alien has been paroled into the United States and files

the application, he or she may issue an Authorization for Parole of an

Alien into the United States (Form I-512) to allow the alien to travel

to, and be paroled into, the United States for a period of 60 days. The

applicant shall have 60 days from the date of parole to file the

application for adjustment of status. If the alien files the

application for adjustment of status within that 60-day period, the

Service may re-parole the alien for such time as is necessary for

adjudication of the application. Failure to file such application for

adjustment of status within 60 days shall result in the alien being

returned to the custody of the Service and being examined as an

arriving alien applying for admission. Such examination will be

conducted in accordance with the provisions of section 235(b)(1) of the

Act if the alien is inadmissible under section 212(a)(6)(C) or

212(a)(7) of the Act, or section 240 of the Act if the alien is

inadmissible under any other grounds.

(3) Effect of departure on an outstanding warrant of exclusion,

deportation, or removal. If an alien who is the subject of an

outstanding final order of exclusion, deportation, or removal departs

from the United States, with or without an advance parole

authorization, such final order shall be executed by the alien's

departure. The execution of such final order shall not preclude the

applicant from filing an Application for Permission to Reapply for

Admission Into the United States After Deportation or Removal (Form I-

212) in accordance with Sec. 212.2 of this chapter.

(l) Approval. If the director approves the application for

adjustment of status under the provisions of section 202 of Pub. L.

105-100, the director shall record the alien's lawful admission for

permanent resident as of the date of such approval and notify the

applicant accordingly. If the alien had previously been issued a final

order of exclusion, deportation, or removal, such order shall be deemed

canceled as of the date of the director's approval of the application

for adjustment of status. If the alien had been in exclusion,

deportation, or removal proceedings that were administratively closed,

such proceedings shall be deemed terminated as of the date of approval

of the application for adjustment of status by the director. If an

immigration judge grants or if the Board, upon appeal, grants an

application for adjustment under the provisions of section 202 of Pub.

L. 105-100, the alien's lawful admission for permanent residence shall

be as of the date of such grant.

(m) Denial and review of decision. If the director denies the

application for adjustment of status under the provisions of section

202 of Pub. L. 105-100, the director shall notify the

[[Page 27833]]

applicant of the decision. The director shall also:

(1) In the case of an alien who is not maintaining valid

nonimmigrant status and who had not previously been placed in

exclusion, deportation, or removal proceedings, initiate removal

proceedings in accordance with Sec. 239.1 of this chapter during which

the alien may renew his or her application for adjustment of status

under section 202 of Pub. L. 105-100; or

(2) In the case of an alien whose previously initiated exclusion,

deportation, or removal proceeding had been administratively closed or

continued indefinitely under paragraph (d)(3) of this section, advise

the Immigration Court that had administratively closed the proceeding,

or the Board, as appropriate, of the denial of the application. The

Immigration Court or the Board will then recalendar or reinstate the

prior exclusion, deportation, or removal proceeding, during which

proceeding the alien may renew his or her application for adjustment

under section 202 of Pub. L. 105-100; or

(3) In the case of an alien who is the subject of an outstanding

final order of exclusion, deportation, or removal, refer the decision

to deny the application by filing a Notice of Certification (Form I-

290C) with the Immigration Court that issued the final order for

consideration in accordance with paragraph (n) of this section.

(n) Action of immigration judge upon referral of decision by a

Notice of Certification (Form I-290C). (1) General. Upon the referral

by a Notice of Certification (Form I-290C) of a decision to deny the

application, in accordance with paragraph (m)(3) of this section, and

under the authority contained in Sec. 3.10 of this chapter, the

immigration judge shall conduct a hearing to determine whether the

alien is eligible for adjustment of status under section 202 of Public

Law 105-100. Such hearing shall be conducted under the same rules of

procedure as proceedings conducted under part 240 of this chapter,

except the scope of review shall be limited to a determination on the

alien's eligibility for adjustment of status under section 202 of

Public Law 105-100. During such proceedings all parties are prohibited

from raising or considering any other issues, including but not limited

to issues of admissibility, deportability, removability, and

eligibility for any form of relief other than adjustment of status

under section 202 of Public Law 105-100. Should the alien fail to

appear for such hearing, the immigration judge shall deny the

application for adjustment under section 202 of Public Law 105-100.

(2) Appeal of immigration judge decision. Once the immigration

judge issues his or her decision on the application, either the alien

or the Service may appeal the decision to the Board. Such appeal must

be filed pursuant to the requirements for appeals to the Board from an

immigration judge decision set forth in Secs. 3.3 and 3.8 of this

chapter.

(3) Rescission of the decision of an immigration judge. The

decision of an immigration judge under paragraph (n)(1) of this section

denying an application for adjustment under section 202 of Public Law

105-100 for failure to appear may be rescinded only:

(i) Upon a motion to reopen filed within 180 days after the date of

the denial if the alien demonstrates that the failure to appear was

because of exceptional circumstances as defined in section 240(e)(1) of

the Act; or

(ii) Upon a motion to reopen filed at any time if the alien

demonstrates that the alien did not receive notice of the hearing in

person (or, if personal service was not practicable, through service by

mail to the alien or to the alien's counsel of record, if any) or the

alien demonstrates that the alien was in Federal or State custody and

the failure to appear was through no fault of the alien.

(o) Transition period provisions for tolling the physical presence

in the United States provision for certain individuals. (1) Departure

without advance authorization for parole. In the case of an otherwise

eligible applicant who departed the United States on or before December

31, 1997, the physical presence in the United States provision of

section 202(b)(1) of Pub. L. 105-100 is tolled as of November 19, 1997,

and until July 20, 1998.

(2) Departure with advance authorization for parole. In the case of

an alien who departed the United States after having been issued an

Authorization for parole of an Alien into the United States (Form I-

512), and who returns to the United States in accordance with the

conditions of that document, the physical presence in the United States

requirement of section 202(b)(1) of Pub. L. 105-100 is tolled while the

alien is outside the United States pursuant to the issuance of the Form

I-512.

(3) Request for parole authorization from outside the United

States. In the case of an alien who is outside the United States and

submits an application for parole authorization in accordance with

paragraph (k)(2) of this section, and such application for parole

authorization is granted by the Service, the physical presence in the

United States provisions of section 202(b)(1) of Pub. L. 105-100 is

tilled from the date the application is received at the Texas Service

Center until the alien is paroled into the United States pursuant to

the issuance of the Form I-512.

(Approved by the Office of Management and Budget under Control Number

1115-0221.)

PART 274A--CONTROL OF EMPLOYMENT OF ALIENS

10. The authority citation for part 274a continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

Sec. 274a.12 [Amended]

11. In Sec. 274a.12, paragraph (c)(9) is amended in the second

sentence by revising the term ``Employment authorization'' to read:

``Except as provided in Sec. 245.13(j) of this chapter, employment

authorization''.

Sec. 274a.13 [Amended]

12. In Sec. 274a.13, paragraph (d) is amended in the first sentence

by revising the phrase ``Sec. 274a.12(c)(8), which is governed by

paragraph (a)(2) of this section, and Sec. 274a.12(c)(9) in so far as

it is governed by Sec. 245.13(j) of this chapter''.

PART 299--IMMIGRATION FORMS

13. The authority citation for part 299 continues to read as

follows:

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

14. Section 299.1 is amended in the table by:

a. Revising the entry for Form ``I-290C'', and by

b. Adding the entry for Form ``I-485 Supplement B'' in proper

numerical sequence, to read as follows:

Sec. 299.1 Prescribed forms.

* * * * *

[[Page 27834]]

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

Edition

Form No. date Title

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

* * * *

* * *

I-290C............................ 03-01-98 Notice of Certification.

* * * *

* * *

I-485 Supplement B................ 03-01-98 NACARA Supplement to Form

I-485 Instructions.

* * * *

* * *

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

15. Section 299.5 is amended in the table by adding the entry for

Form ``I-485 Supplement B'' in proper numerical sequence, to read as

follows:

Sec. 299.5 Display of control numbers.

* * * * *

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

Currently

INS form No. INS form title assigned OMB

control No.

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

* * * *

*

I-485 Supplement B............. NACARA Supplement to 1115-0221

Form I-485

Instructions.

* * * *

*

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

Dated: May 12, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-13246 Filed 5-20-98; 8:45 am]

BILLING CODE 4410-10-M