[Federal Register Volume 65, Number 58 (Friday, March 24, 2000)]
[Rules and Regulations]
[Pages 15835-15846]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 00-7204]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3, 212, 240, 245, 274a, and 299
[INS No. 1963-98; AG Order No. 2294-2000]
RIN 1115-AF33
Adjustment of Status for Certain Nationals of Haiti
AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.
ACTION: Final rule.
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SUMMARY: This rule implements section 902 of the Haitian Refugee
Immigration Fairness Act of 1998 (HRIFA) by establishing procedures for
certain nationals of Haiti 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: This final rule is effective March 24, 2000.
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
[[Page 15836]]
Immigration Review: Chuck Adkins-Blanch, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2400, Falls Church, VA 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION:
What are the Basic Provisions of Section 902 of HRIFA and the
Interim Regulations Published on May 12, 1999?
On October 21, 1998, the President signed into law a Fiscal Year
1999 Omnibus Appropriations Act, Public Law 105-277 (112 Stat. 2681).
Division A, title IX of that statute, the Haitian Refugee Immigration
Fairness Act of 1998 (HRIFA), contained a provision, section 902, that
allows certain nationals of Haiti to adjust their status to that of
lawful permanent resident. On May 12, 1999, the Department of Justice
(Department) published an interim rule, with requests for comments,
that implemented section 902 of HRIFA. See 64 FR 25756.
Section 902 of HRIFA provides that the Attorney General shall
adjust the status of certain Haitian nationals who are physically
present in the United States to that of lawful permanent resident. In
order to be eligible for benefits under HRIFA, an applicant must:
Be a national of Haiti who was present in the United
States on December 31, 1995;
Have been physically present in the United States for a
continuous period beginning not later than December 31, 1995, and
ending not earlier than the date the application for adjustment is
filed (not including any absence or absences amounting to 180 days or
less in the aggregate);
Properly file an application for adjustment before April
1, 2000;
Be admissible to the United States under all provisions of
section 212(a) of the Immigration and Nationality Act (the Act), 8
U.S.C. 1182(a), except those provisions specifically excepted by HRIFA;
and
Fall within one of the five classes of persons described
in section 902(b)(1) of HRIFA.
The five classes described in section 902(b)(1) of HRIFA are:
(1) Haitian nationals who filed for asylum before December 31,
1995;
(2) Haitian nationals who were paroled into the United States prior
to December 31, 1995, after having been identified as having a credible
fear of persecution, or paroled for emergent reasons or reasons deemed
strictly in the public interest;
(3) Haitian national children who arrived in the United States
without parents and have remained without parents in the United States
since such arrival;
(4) Haitian national children who became orphaned subsequent to
arrival in the United States; and
(5) Haitian children who were abandoned by their parents or
guardians prior to April 1, 1998, and have remained abandoned since
such abandonment.
How Many Comments Were Received from Interested Parties in Response
to the Interim Rule?
A total of 46 comments were received during the comment period.
Commenters included Members of Congress, the mayor of a major city,
representatives of a number of nongovernmental organizations, private
attorneys, and other interested individuals. The Department appreciates
the contributions of all individuals and groups who submitted comments.
What Comments Were Submitted and how is the Regulation Being
Changed as a Result?
The issues raised by the commenters generally fell into 17 areas:
1. Issues Pertaining to Eligibility Under the Statute, but not Related
to Immigrant Visa Waivers
A number of commenters requested that the Department extend the
time period for submission of applications by principal applicants
beyond the March 31, 2000, deadline set by statute. Such action would
require new legislation, as it is clearly beyond the rulemaking
authority of the Department.
Other commenters, recognizing that such change would exceed the
Department's authority, requested that the Department not reject any
applications as improperly filed during the final 30 days of the filing
period because of a lack of documentation to establish eligibility. In
light of the relatively short filing period, the Department finds this
suggestion to be both reasonable and within its rulemaking authority.
Accordingly, 8 CFR 245.15(c)(2) has been revised to provide that an
Application to Register Permanent Residence or Adjust Status (Form I-
485) submitted to either the Nebraska Service Center or the Immigration
Court by a principal applicant seeking adjustment of status under HRIFA
will not be rejected as improperly filed as long as it has been
properly completed and signed by the applicant, identifies the
applicant as a HRIFA principal applicant, and is accompanied by either
the correct fee or a request for a fee waiver.
Some commenters felt that any Haitian who entered the United States
prior to December 31, 1995, or who has been living in the United States
since December 31, 1995, and any family members of such an individual,
should be allowed to adjust his or her status to that of permanent
resident. Although the Department understands the desire of the
commenters to have the benefits of permanent residence extended to as
many persons as possible, the suggestion is contrary to the statute,
which requires that principal applicants fall within one of the five
categories set forth above, be admissible to the United States, and
meet all other statutory requirements. Accordingly, this suggestion
cannot be adopted.
Some commenters wanted the regulations to provide that upon being
granted lawful permanent residence, any HRIFA applicants who arrived in
the United States after being paroled from the U.S. Naval Base at
Guantanamo Bay, Cuba (Guantanamo Bay), would immediately become
eligible to apply for United States citizenship. This suggestion cannot
be adopted because the Act specifically requires an alien to reside in
the United States for a specific period ``after being lawfully admitted
for permanent residence.'' See Sec. 316(a)(1) of the Act, 8 U.S.C.
1427(a)(1). In the rare instances in which the Immigration and
Naturalization Service (Service or INS) has recorded the date of
admission for permanent residence as other than the actual date the
application for such status was granted, it has only done so in
accordance with explicit statutory authority.
Some commenters suggested that the regulations provide that any
Haitian national who entered the United States prior to December 31,
1995, and who applied for asylum prior to December 31, 1997, should be
eligible for adjustment under HRIFA. This suggestion is contrary to
statute and beyond the rulemaking authority of the Department; it
therefore cannot be adopted.
Finally, some commenters suggested that any asylum application that
was mailed to the Service by December 31, 1995, but rejected as not
properly filed, be considered to have been timely filed for HRIFA
purposes. Congress could have opened the category to those who ``filed
or attempted to file'' the application, or more simply to those who
``submitted'' the application. Instead, Congress required that the
applicant have ``filed for asylum before December 31, 1995,'' in order
to fall
[[Page 15837]]
within this category. Accordingly, the Department will consider only
those asylum applications that were properly filed by the deadline
established by statute. The Service's long-standing regulation, 8 CFR
103.2(a)(7), which concerns the proper filing of petitions, will not be
revised. The suggestion will not be adopted.
2. Issues Pertaining to Eligibility Under the Statute and Related to
Immigrant Visa Waivers
A number of commenters suggested that the Department either
automatically waive those grounds of inadmissibility relating to
medical conditions (especially HIV/AIDS infection) and fraud
violations, or provide a more generous waiver provision such as that
accorded to refugees and asylees adjusting status to lawful permanent
residence under section 209 of the Act. 8 U.S.C. 158.
Section 902(a)(1)(B) of HRIFA states that, in order for the
Attorney General to grant permanent residence under HRIFA, the
applicant must be admissible to the United States. The specific grounds
under which an alien may be found inadmissible to the United States are
set forth in section 212(a) of the Act. 8 U.S.C. 1182(a). While HRIFA
provides that five of these specific grounds of inadmissibility shall
not apply to HRIFA applicants, it does not exempt them from the grounds
pertaining to either inadmissibility under medical grounds, which is
discussed in section 212(a)(1)(A), 8 U.S.C. 1182(a)(1)(A), or
inadmissibility under grounds pertaining to misrepresentation, which is
discussed in section 212(a)(6)(C), 8 U.S.C. 1182(a)(1)(C). Without
statutory authority to waive grounds of inadmissibility, the Attorney
General may not grant permanent residence to an inadmissible alien.
The statutory authority to grant waivers of medical grounds of
inadmissibility is contained in section 212(g) of the Act, 8 U.S.C.
1182(g), and the authority to grant waivers of grounds of
inadmissibility pertaining to misrepresentation is contained in section
212(i) of the Act. 8 U.S.C. 1182(i). Both of these sections set forth
waiver eligibility criteria mandating that, among other things, the
applicant have a qualifying relative who is a citizen or lawful
permanent resident of the United States. Unfortunately, many HRIFA
applicants who are inadmissible under section 212(a)(1) or section
212(a)(6)(C) of the Act do not have such qualifying relatives, and are
therefore ineligible for these waivers.
Some commenters suggest that the authority contained in section 209
of the Act, 8 U.S.C. 1159, enables the Department to grant waivers of
inadmissibility to HRIFA applicants. In so doing, a number of them
quote a portion of paragraph (c) of that section. The entire paragraph
provides:
(c) The provisions of paragraphs (4), (5), and (7)(A) of section
1182(a) of this title shall not be applicable to any alien seeking
adjustment of status under this section [i.e., section 209 of the
Act], and the Attorney General may waive any other provision of such
section (other than paragraph (2)(C) or subparagraph (A), (B), (C),
or (E) of paragraph (3)) with respect to such an alien for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest.
8 U.S.C. 1159(c) (emphasis added).
When read in its entirety, it is clear that the waiver provision
contained in section 209(c) of the Act applies only to aliens who are
adjusting status under that section, not to aliens applying for
adjustment of status under other provision of law, including HRIFA. The
Department does not have the statutory authority to make this change.
Accordingly, this suggestion cannot be adopted.
3. Other Waiver Issues
An applicant who is able to meet the statutory requirements set
forth in sections 212(g) and 212(i) of the Act for grounds of
inadmissibility pertaining to a medical condition or to fraud or
willful misrepresentation must also show that his or her case warrants
approval as a matter of discretion. In exercising such discretionary
authority, adjudicating officers and immigration judges must take into
account all factors--whether positive and negative--bearing on the
case, and determine which factors carry significant weight and which do
not.
A number of commenters have requested that in adjudicating the
waiver application, the adjudicating officer or immigration judge take
into account certain factors pertaining to the manner of the
applicant's arrival in the United States or to conditions in the
applicant's homeland. Specifically, commenters requested that for
persons who were paroled into the United States from Guantanamo Bay for
the purpose of receiving treatment of an HIV or AIDS condition, the
fact that their arrival in the United States was the direct result of a
government decision to provide such treatment should be viewed as a
significant positive factor. Likewise, with regard to those applicants
who used counterfeit documents to travel from Haiti to the United
States, many commenters asked that the Department take into
consideration the general lawlessness and corruption that was
widespread in Haiti at the time of the alien's departure, the
difficulties in obtaining legitimate departure documents at that time,
and other factors peculiar to Haiti during that period that may have
induced the alien to commit fraud or make willful misrepresentations.
Although these factors would probably have been taken into account by
the adjudicating officer or immigration judge regardless of the
inclusion or exclusion of any specific language in the regulations, the
Department feels that the inclusion of such language in the final rule
will facilitate a general understanding of the importance of these
factors in making the discretionary decision, and the suggestion has
been adopted.
4. The Fee for Filing an Application
Some commenters requested that the Department provide a reduced fee
level for families filing two or more applications for adjustment of
status under the HRIFA program.
The fees charged under the HRIFA program are the same as those
charged all other adjustment applicants and (on an individual case
basis) the regulations already allow persons who are unable to pay the
specified fees to request a waiver of the filing fee. Upon
consideration of all factors, it was determined that it was not
appropriate to provide a reduced fee level for HRIFA applicants in
general.
5. Documentation in General
A number of commenters made suggestions regarding the documentation
required for proof of eligibility and the manner and timeframe in which
that documentation is to be submitted. Some commenters suggested that
the regulations should not require submission of proof of
unavailability of primary evidence (e.g., a birth certificate) before
accepting secondary evidence (e.g., a baptismal record or a consistent
prior claim). Conversely, other commenters suggested that the standard
should call for the submission of the ``best evidence available.'' In
considering applications and petitions for benefits under the Act, the
Department's policy has generally been that the applicant should
submit, and the adjudication should be based on, the best evidence
available. In determining whether a particular type of evidence is
generally available from foreign countries, the Department is guided by
the information contained in Volume 9, Part IV, Appendix C of the
Department of State's Foreign Affairs
[[Page 15838]]
Manual (FAM), which reports that birth certificates, marriage records,
divorce records, death certificates, and adoption certificates are all
generally available from Haiti. This is not to say, as it could be said
about any country in the world, that in an individual case, a
particular record may not have become lost or destroyed, or be
otherwise unavailable. For this reason, the Department requires an
applicant to submit proof of the unavailability of primary
documentation from Haiti before considering secondary evidence. In
short, the only way of knowing that secondary evidence is the ``best
evidence available,'' and is therefore acceptable documentation, is to
first establish that the primary evidence is unavailable. However, with
regard to applications for adjustment of status under HRIFA, there is a
very significant factor that complicates the application of the ``best
evidence available'' standard: the March 31, 2000, HRIFA deadline for
the filing of applications by principal applicants. Because of this
deadline, the Department has determined that it is best to temper this
standard so as to allow applicants to file for adjustment of status
using secondary evidence as long as they also submit evidence that they
have requested the primary evidence from an official recordkeeper
(e.g., the Haitian National Archives). This approach will avoid the
risk of persons being unable to apply for adjustment under HRIFA, while
at the same time ensuring the integrity of the documentation. In
instances in which the primary documentation arrives prior to the
applicant's interview with an immigration officer or hearing before an
immigration judge, the applicant would present the primary
documentation at such interview or hearing. Where the documentation
does not arrive prior to the interview or hearing, the interviewing
officer or presiding judge would make a determination whether to make a
decision based on the evidence available or to continue the case until
the primary documentation arrives.
Some commenters were under the mistaken impression that the
regulations, see, e.g. 8 CFR 245.15(i), always require that a Form I-94
be submitted as proof of entry. If the alien is in possession of the
Form I-94, he or she should submit it, but if the alien never received
or lost the Form I-94, it cannot be submitted. Where it is crucial that
the applicant establish the date of arrival, as with children who
arrived without parents, secondary documents may be submitted (such as
transportation company records or an affidavit) in lieu of a missing or
nonexistent Form I-94. The regulations have been amended to clarify
this point. However, the applicant is still required to meet the
requirements set forth in 8 CFR 245.15(i) pertaining to documenting
when the applicant's physical presence in the United States began.
Some commenters suggested that the Department allow applicants to
submit a list of documents already known to be in their Service files.
While the regulations already contain this provision, the relevant
provision in 8 CFR 245.15(m) has been revised to eliminate possible
confusion on this issue.
6. Documenting Haitian Nationality
A number of commenters felt that it was not reasonable for the
Department to require applicants under HRIFA to submit evidence of
nationality. Many felt that any ``evidence'' of nationality already
contained in the alien's file (including the applicant's prior claims
of Haitian nationality) should be more than sufficient to prove that
the applicant is Haitian. Additionally, some commenters stated that it
is unreasonable to require the applicant to submit evidence of the
unavailability of a document before the Service or Immigration Court
will accept secondary evidence in lieu of that document. Finally, some
commenters expressed concerns that children born in Guantanamo Bay of
Haitian parents would be unable to document either Haitian or Cuban
nationality.
It is important to note that the submission of evidence of
nationality with the application for adjustment is a standard
requirement for all applicants for adjustment and not a special
requirement placed upon applicants under HRIFA. Likewise, it is
standard practice to require evidence of the unavailability of a
document of record before considering secondary evidence. (As
previously stated, the Department of State's FAM reports that such
documents are generally available in Haiti.) Furthermore, files that
were created upon an alien's arrest or submission of an application for
benefits may contain no documentary evidence of nationality, but may
refer to the alien's (perhaps self-serving) statement of nationality.
Despite some commenters' contention to the contrary, while rare, it is
not unheard of for a non-Haitian alien to falsely claim to be Haitian
when it is to his or her advantage. Accordingly, every prior claim to
Haitian nationality cannot automatically be presumed to be valid.
However, even considering all of these factors, the Department is
willing to concede that, in light of the relatively short filing period
provided in the statute, it will be difficult--if not impossible--for
many bona fide applicants to obtain the normally required documentation
in time to file an application for adjustment before the March 31,
2000, deadline. Accordingly, the Department is making a number of
changes to the regulation that it believes will significantly
alleviate, if not eliminate, this problem.
First, as previously stated, the regulations will now allow an
applicant to file the application without the birth record being
included in the application package, if the applicant presents evidence
that he or she is attempting to obtain the birth record. Once the birth
record has been received, such applicant would present it at his or her
interview before a Service officer or hearing before an immigration
judge.
Second, the regulations will allow the Service or Immigration Court
to consider secondary evidence of nationality, if the applicant submits
evidence that he or she has unsuccessfully attempted to obtain the
standard documentation. Such an unsuccessful attempt to obtain the
standard documentation may be shown by submitting a photocopy of a
letter from the applicant to the keeper of records requesting the
document in question. If the primary evidence is received prior to the
interview or hearing, the applicant can present it at that time;
otherwise, the adjudicating officer or judge may make a determination
based on the secondary evidence. The secondary evidence which may be
taken into consideration could include baptismal and other religious
records, passports, and evidence or statements already contained in the
alien's Service file. However, it must also be noted that all
determinations as to the weight and credibility to be given to the
secondary evidence rest with the adjudicating officer or judge.
With regard to those children born in Guantanamo Bay, there are at
least three methods by which an applicant could document his or her
birth. First, the United States Naval authorities issued a certificate
of live birth to the parents of each child born on that naval base.
Second, the records of the Service would reflect the place of birth as
being at Guantanamo Bay. Third, the records of the voluntary agency
that assisted in the family's resettlement would also show that the
applicant was born at the U.S. Naval Base at Guantanamo Bay. Any of
these records could be used in support of an application for adjustment
under HRIFA.
[[Page 15839]]
7. Documenting Presence in the United States on December 31, 1995
Some commenters contend that the statutory requirement contained in
section 902(b)(1) that limits the benefits of HRIFA to nationals of
Haiti who were ``present in the United States on December 31, 1995,''
also applies to those who had been present in the United States at some
time before that date but had left and were not here on that specific
date. This contention is based on the commenters' interpretation of the
requirement in section 902(b)(2) of HRIFA that the applicant must have
been physically present in the United States for a continuous period
beginning not later than December 31, 1995, but allows for absences of
up to 180 days in the aggregate during that period. The commenters
interpret the phrase ``beginning not later than December 31, 1995,'' as
applying not only to the period of continuous presence, but also to the
absences. This would have been a logical interpretation if section
902(b)(1) of HRIFA had allowed applicants to have been present ``on or
before December 31, 1995,'' but it does not. The only way to read both
sections in concert is that persons who departed prior to December 31,
1995, and were not physically present on that date are ineligible for
benefits under HRIFA as principal applicants.
8. Documenting Presence in the United States Since December 31, 1995
Many commenters were concerned that the rough guideline for
documenting continuity of presence (one document for each 90-day
period) would be impossible for many bona fide applicants to meet due
to cultural norms unique to Haitians. Others contended that due to
other factors unique to Haitians, such as political, financial and
geographical constraints, it is unlikely that any Haitians departed
from the United States and returned since December 31, 1995, and that
even a rough guideline of one document for each 90 days is excessive. A
few commenters argued that the Department should provide a more
generous guideline of one document for each 180 days, since the statute
allows applicants to have been outside the United States for up to 180
days without breaking continuity of presence.
Because the statute allows an applicant to be outside the United
States for up to 180 days in the aggregate without breaking continuity
of presence, not absences of up to 180 days each, the Department finds
that the argument that the guideline should be set at 180 days is
without merit. However, the Department has determined that the
guideline that had been intended to ease the burden on applicants by
assisting them in gauging how much documentation to submit has instead
become a hindrance that may result in some applicants believing that,
without a certain minimum amount of documentation, they are ineligible
to apply for or receive the benefit of adjustment of status under
HRIFA. Accordingly, the guideline is being removed from the regulations
and applicants should simply submit sufficient documentation to satisfy
the adjudicating officer or immigration judge that they have maintained
continuous presence in the United States within the meaning of the
statute. The adjudicating officer or immigration judge retains the
right to request additional documentation should the evidence submitted
by the applicant prove insufficient to meet his or her burden of proof.
9. Definition of the Term ``Parole''
Several commenters suggested that all Haitians released from
Service custody before December 31, 1995, including those released on
bond or on their own recognizance pursuant to section 242(a)(1) of the
Act, 8 U.S.C. 1252(a), as it was in effect at that time, should qualify
as ``parolees'' under HRIFA. In support of this suggestion, these
commenters cited an April 19, 1999, Service policy memorandum. That
memorandum concerned the eligibility of certain Cuban nationals for
adjustment of status under the Cuban Adjustment Act, despite their
having arrived at a place other than a designated port-of-entry. It has
no impact on the eligibility of a person seeking to adjust status under
HRIFA as a Haitian national who was paroled in the United States prior
to December 31, 1995. The April 19, 1999, memorandum provided in
pertinent part that the ``release of an applicant for admission from
custody [pursuant to section 236 of the Act], without resolution of his
or her admissibility, is a parole.'' (emphasis added.) The release from
custody of someone other than an applicant for admission (e.g., an
overstay) does not constitute a parole. In the HRIFA context, an alien
who had entered the United States without inspection, was detained by
the Service, and was later released prior to December 31, 1995, cannot
be seen as having been paroled into the United States because the alien
was not an applicant for admission at the time of his or her release.
The treatment of aliens present without inspection as applicants for
admission was introduced to the immigration laws as a result of the
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) in September 1996. These statutory
reforms applied prospectively only. See IIRIRA section 309(c)(1).
Accordingly, this suggestion will not be adopted.
10. Issues Pertaining to Applications Submitted by Children
A number of commenters felt that the Department's interpretation of
``child without parents in the United States'' was too restrictive and
undercut the legislative intent. Others mistakenly believed that the
Department adopted this position in order to combat possible fraud. In
fact, the Department had simply taken the common meaning of the phrase
since no definition was provided by the statute. According to the
commenters, the focus should be on whether there has been a sustainable
parent-child relationship between the child and his or her parents in
the United States. In other words, who has or has had parental control
over the child since his or her arrival into the United States? The
Department agrees that this interpretation better reflects the
legislative intent behind the provisions concerning children without
parents. Therefore, the regulations have been amended by placing commas
before and after the phrase ``without parents'' in 8 CFR
245.15(b)(1)(iii)(A).
A number of commenters felt that the regulations unnecessarily and
onerously require children to show proof of their manner of arrival.
Some commenters were under the mistaken impression that the regulations
required that a Form I-94 be submitted in all cases. Where an applicant
must establish his or her date of arrival, as with children who arrived
without parents, the Form I-94 should be submitted whenever possible.
However, as explained earlier, if the Form I-94 is not available,
secondary documents may be submitted instead. In the case of a child
arriving without parents, the secondary evidence may include the
child's declaration which may be supported by other documentation
(e.g., his or her attendance record at school shortly after the claimed
date of arrival). The regulations have been amended to clarify this
point.
A number of commenters made suggestions regarding the documentation
and level of proof required to prove eligibility as an orphaned or
abandoned child. Some commenters suggested that an applicant's
declaration of orphanage should be sufficient proof of orphanage or
abandonment. Several commenters wanted secondary evidence to be
[[Page 15840]]
accepted as proof of orphanage or death of parents (e.g., declarations,
news articles, and publications). Other commenters suggested that the
Department should allow any probative evidence which might be submitted
to state, local, or other authority to establish orphanage or
abandonment. The Department agrees that, where primary evidence (e.g.,
official state or court documents) is unavailable, secondary evidence
may be submitted to prove orphanage. Accordingly, the regulations have
been modified to reflect many of these suggestions.
A number of commenters felt that a broader and more general
definition of orphan should be used. Some commenters wanted to include
as an orphan a child who has been irrevocably released by his or her
sole or surviving parent who is unable to provide support. This is
particularly relevant with regard to Haitian children who have had one
of their parents disappear due to the actions of the former government
of Haiti or due to tragedy at sea. The Department agrees and has so
amended the regulation at Sec. 245.15(a). The regulation now allows an
otherwise eligible child to qualify for to qualify for classification
as an orphan under section 902(b)(1)(C)(ii) of HRIFA if (1) the child
has lost one parent through death or through disappearance, (2)
competent Haitian authorities have certified that parent to be presumed
dead, (3)the sole remaining parent is incapable of providing the proper
care, and (4) the sole remaining parent has, in writing, irrevocably
released the child for immigration to the United States. However, this
amended regulation pertains only to applications filed under HRIFA and
has no bearing on applications or petitions filed under the Act, such
as petitions for classification under section 101(b)(1)(F) of the Act,
where the surviving parent provision only pertains if the other parent
is deceased.
One commenter believed that HRIFA should not be read as limiting
orphans to those who lost their parents while under 21 years old.
While, by common definition, the term ``orphan'' only applies to a
child, and not to an adult, who has lost his or her parents, section
902(b)(1)(C) of HRIFA includes a unique set of qualifications on
applicants seeking status based on orphanage. Those qualifications
provide that the applicant must have been unmarried and under 21 years
old at the time of his or her arrival in the United States and on
December 31, 1995, and that he or she ``became orphaned subsequent to
arrival in the United States.'' Because it is possible for someone who
became 21 years old after December 31, 1995, and was later orphaned to
still meet the language of the statute, the regulations will be amended
in this regard. However, this amended regulation pertains only to
applications filed under HRIFA and has no bearing on applications or
petitions filed under the Act.
Many commenters felt that the provision for abandoned children
should be guided by the best interest of the child. A number of
commenters wanted the Department to accept a broader array of evidence,
besides official state, local, or court records, to prove the issue of
abandonment. These suggestions include school records and declarations
by the child (or Service records) indicating nonresidence or
nonrelationship with the parents. One commenter suggested that if a
child has been left by his or her parents with a relative, that should
be sufficient to constitute abandonment along with notarized statements
stating such. Other commenters wanted to allow any probative evidence
which might be submitted to state, local, or other authority to
establish abandonment. Several commenters suggested that runaway
children should be considered abandoned, especially where the child ran
way due to the home environment. A number of commenters urged the
Department to adopt the standard of abandonment as defined by the law
in Florida, where, if the parent or guardian of a child ``makes no
provision for the child's support and makes no effort to communicate
with the child, * * * [the] situation is [deemed] sufficient to evince
a willful rejection of parental obligations.'' F.S. 1997, Sec. 39.01.
Other commenters suggested that the guidelines for abandonment
established by the individual state having jurisdiction over the child
should be adopted. The Department agrees that a broader category of
evidence to prove abandonment should be allowed. Accordingly, the
Department will apply the laws governing abandonment established by the
individual state where the child resides, or resided at the time of the
abandonment. The regulations have been amended to reflect this change.
A number of commenters wanted the Department to allow a dependent
(of a HRIFA principal) to qualify for HRIFA benefits if he or she was a
child on the date of HRIFA's enactment (October 21, 1998), or,
alternatively, to toll the child's age as of October 21, 1998, until
the date when his or her adjustment application is adjudicated. The
Department will not accommodate this request. The Department has
consistently held that an applicant must be eligible for the benefit
being sought at the time of adjudication of the application, not on
some prior date. See, Matter of Hernandez-Puente, 20 I & N Dec. 335,
337 (BIA 1991) (citing cases). The Department reaffirms this
interpretation that benefits such as adjustment cannot be granted nunc
pro tunc, which is essentially what the commenters have suggested.
11. Local Police Clearances
One commenter requested that the regulations provide a general
exemption from the local police clearance requirement for persons who
live or have lived in locations where the local authorities have made a
blanket decision not to issue such clearances for immigration purposes,
insofar as it relates to time periods when the applicant resided in
that locale. The commenter listed New York City as an example of such a
location. In the interest of reducing unnecessary burdens on both the
applicants and on the local authorities, this suggestion has been
adopted.
12. Reinstatement of Removal
Some persons expressed concerns about the applicability of section
241(a)(5) of the Act. 8 U.S.C. 1231. This section provides that:
(5) Reinstatement of removal orders against aliens illegally
reentering. If the Attorney General finds that an alien has reentered
the United States illegally after having been removed or having
departed voluntarily, under an order of removal, the prior order of
removal is reinstated from its original date and is not subject to
being reopened or reviewed, the alien is not eligible and may not apply
for any relief under this Act [chapter], and the alien shall be removed
under the prior order at any time after the reentry.
In versions codified under the United States Code, the final
sentence refers to any relief under ``this chapter'' instead of ``this
Act.'' This difference has resulted in some persons believing that the
relief which affected persons are barred from seeking is only that
relief provided under section 241 of the Act, not relief provided under
other sections of the Act. A brief explanation is in order.
The language of HRIFA, as enacted by Congress, is the official text
of the Act. When the laws enacted by Congress are codified in the U.S.
Code, that codification is not ``positive law.'' The titles of the U.S.
Code are organized into ``chapters,'' and so when an Act of Congress is
codified it is referred to as a ``chapter'' of the Code. The
[[Page 15841]]
Immigration and Nationality Act is codified as Chapter 12 of Title 8 of
the U.S. Code. Accordingly, the Immigration and Nationality Act
provides that an alien subject to section 241(a)(5) of the Act is
barred from any relief provided under any provision of the Act.
Some commenters contend that section 241(a)(5), which was added to
the Act by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3546, applies only to
an alien ordered removed from the United States in post-IIRIRA
proceedings, and not to an alien ordered excluded and deported, or
ordered deported, from the United States in pre-IIRIRA proceedings.
These commenters fail to take into account section 309(d)(2) of IIRIRA
which states that ``any reference in law to an order of removal shall
be deemed to include a reference to an order of exclusion and
deportation or an order of deportation.'' Id. at sec. 309(d)(2).
Other commenters are under the impression that the Department holds
that, when a person who departed the United States with an advance
parole (Form I-512) returns to the United States, he or she is re-
entering illegally and is subject to section 241(a)(5) of the Act.
These commenters may be confusing advance parole with the separate
requirement that someone who departs the United States while under an
order of exclusion, deportation, or removal obtain permission to
reapply for admission after removal, even if that person receives an
advance parole document. (This ``permission to reapply'' issue is
discussed in section 15 of this preamble on advance parole.) The
Department would not, without more, view a return to the United States
pursuant to an advance parole as an illegal reentry that would trigger
the provisions of section 241(a)(5) of the Act.
13. Stay of Removal
Some commenters suggested that the regulation should provide for an
automatic stay of removal which would take effect upon the filing of
the application for adjustment of status under HRIFA. The Department
considered this issue when drafting the interim rule and concluded that
it would not be appropriate.
The Department feels that the Attorney General should have the
flexibility of denying stay of removal requests where there are
overriding negative factors. Since the statute calls for regulations
which allow the HRIFA applicant to apply for (or ``seek'') a stay of
deportation, removal, or exclusion, rather than to be granted or
receive such stay, it is clear that the Department's interim regulation
on this point is within the scope of what is intended by the statute.
Accordingly, this suggestion will not be adopted.
14. Procedural Issues
A number of commenters made suggestions pertaining to the
procedures by which the Department adjudicates HRIFA applications and
otherwise administers the program. Some wanted the Service to make more
frequent use of the interview waiver option and clarify unresolved
issues through written correspondence. However, the decision on whether
to waive an interview is made solely on a case-by-case basis and is
wholly dependent on whether the adjudicating officer is satisfied that
the application is approvable (or deniable) without further
examination. In making his or her determination, the officer takes into
consideration the information submitted by the applicant (which may
include that submitted in response to a request for additional evidence
from the Service), information contained in the alien's file, and all
other pertinent information at the officer's disposal. The suggestion
will not be adopted.
Some commenters wanted any applications postmarked by March 31,
2000, to be considered to have been properly filed, even if received at
the Nebraska Service Center after that date. The Service has long held
that an application may only be considered properly filed when it is
received in a Service office, provided it is properly signed and
executed and the requisite fee is attached. See e.g. 8 CFR 103.2(a)(7).
The Department sees no reason to hold HRIFA applications to a different
standard.
Finally, some commenters wanted the regulations to specify that the
Service must provide notice of the cancellation of an order of
exclusion, deportation, or removal, or a notice of termination of
removal, deportation or removal proceedings, in addition to the notice
of approval, whenever adjustment of status is granted to an alien who
is subject to such order or in such proceedings. While the Service will
endeavor to provide such notification, the fact remains that the
regulations already provide that regardless of whether such
notification is sent (or if sent, received), upon final approval of the
application for adjustment of status under HRIFA by the Service or the
Executive Office for Immigration Review (EOIR) (depending on which
agency has jurisdiction), any pending order of exclusion, deportation
or removal is canceled and any pending exclusion, deportation, or
removal proceedings are terminated. Adding a regulatory requirement
that separate notification to that effect be issued could only add
confusion and raise questions as to whether the order had been canceled
or the proceedings had been terminated.
15. Advance Parole for Persons Outside the United States
A number of interested parties submitted comments regarding
procedures involved in authorizing parole for persons who either have
applied for adjustment of status or wish to travel to the United States
in order to apply for adjustment of status. Section 245.15(t)(1) of
Title 8 of the Code of Federal Regulations sets forth procedures for
persons who have already filed for adjustment of status and wish to
depart from and return to the United States. Additionally, that
provision sets forth procedures for otherwise eligible persons who are
outside the United States and wish to be paroled into the country in
order to file the application for adjustment of status. For purposes of
clarity, these will be referred to as ``t-1 parole'' and ``t-2 parole''
in this discussion.
Some commenters wanted t-1 parole authorization to be automatic for
all persons who apply for adjustment of status under HRIFA. Upon
consideration, the Department finds that this suggestion is likely to
create more problems than it would solve. Many applicants under the
HRIFA program are not in possession of acceptable travel documents and
encouraging them to travel without first obtaining advance parole is
likely to result in increased difficulties at ports-of-entry and
departure both here and abroad. If this suggestion were to be adopted,
it would also be all but impossible to determine which returning
applicants had filed bona fide applications and which had filed mala
fide or frivolous ones. The lack of a recognized advance parole
document would considerably exacerbate problems for the applicants, as
well as for government and airline officials, and would inevitably
result in bona fide applicants being stranded outside the country. The
Department has decided not to adopt this suggestion.
Some commenters wanted the Department to extend the time during
which the alien can travel to the United States after receiving an
advance t-2 parole authorization beyond the current 60 days. The
Department feels that under all but the most abnormal circumstances, a
60-day period should be sufficient for this purpose. The
[[Page 15842]]
Department also notes that if the recipient feels that he or she will
need additional time to obtain travel documents and exit permits, he or
she can request that the Service Officer-in-Charge in Port-au-Prince
delay issuance of the advance parole document until a later date.
Accordingly, this suggestion has not been adopted.
Some commenters wanted the 60-day t-2 parole issued upon the
alien's arrival to be ``automatically extended'' upon the filing of the
application for adjustment. This suggestion cannot be adopted for at
least three reasons. First, technically, a parole is not extended,
although at the completion of a parole, one option available to the
district director having jurisdiction over the alien's residence in the
United States is to reparole the alien if such action is warranted in
accordance with the statutory requirements set forth in section
212(d)(5) of the Act. 8 U.S.C. 1182(d)(5). Second, the purpose of the
t-2 parole is to allow the alien to file the application for adjustment
of status under HRIFA, and that purpose has been accomplished once the
alien files the application for adjustment. Any decision to reparole
the alien would have to be made (by that district director) once the
applicant for adjustment requests reparole through his or her local
immigration office and presents his or her receipt for filing the
application for adjustment at the Nebraska Service Center. Third, even
if the other objections were overcome, the technology does not
currently exist to provide for automatic reparole, and the cost of
developing such technology would not be warranted by the relatively
small number of persons who would benefit from it.
Some commenters wanted the regulations to extend the authority of
the Director of the Nebraska Service Center to adjudicate advance t-2
parole requests. That authority currently expires on March 31, 2000. It
must be noted that the authority to approve this type of parole request
normally lies with the District Director in Mexico City for anyone in
the Western Hemisphere, but not at a United States port-of-entry. The
authority was extended to the Director of the Nebraska Service Center
primarily because of the anticipated volume of requests under the HRIFA
program. A decision will be made sometime during March 2000 as to
whether both the Director of the Nebraska Service Center and the
Director in Mexico City should have such authority, or if such
authority should be vested solely with the District Director at Mexico
City. Regardless of whether the authority of the Director of the
Nebraska Service Center is extended beyond March 31, 2000, the District
Director in Mexico City will continue to have such authority. It should
also be noted that the Service can extend the authority of the Director
of the Nebraska Service Center to issue such parole authorizations
through an internal Service memorandum. It need not be done through the
rulemaking process. See 8 CFR 2.1. However, should the authority of the
Nebraska Service Center to issue such parole authorizations be
extended, the Service will publish a notice to that effect in the
Federal Register.
Finally, an explanation is in order regarding the effect of
departure from the United States while under an order of exclusion,
deportation, or removal, including situations in which the alien first
obtains an advance parole authorization, Form I-512. A Form I-512 is a
document which authorizes an immigration officer to parole the bearer
into the United States upon inspection at a port-of-entry. It neither
contains nor connotes any special benefits for the bearer at the point
of his or her departure from the United States. Whenever an alien who
is under an outstanding order of exclusion, deportation, or removal
departs from the United States, he or she effects or executes that
order. This is true regardless of whether he or she is in possession of
an I-512 authorizing a parole upon his or her return. Once the
exclusion, deportation, or removal order has been executed, an alien
must apply for and be granted permission to reapply (Form I-212) before
he or she embarks or reembarks for his or her return travel to the
United States. Failure to obtain such permission results in the alien
being inadmissible to the United States and, therefore, ineligible for
adjustment of status in the United States.
16. Employment Authorization Documents
Some commenters felt that the Service should automatically extend
the work authorization for persons who had been granted Deferred
Enforced Departure (DED) under the Presidential directive to the
Attorney General of December 23, 1997. That order allowed the Service
to grant DED status, with work authorization, to eligible applicants
until December 22, 1998. Shortly before December 22, 1998, the
Department published a notice in the Federal Register which explained
that although it could not extend the DED program itself, it was
extending the validity of the affiliated Employment Authorization
Documents (EADs) for another year (until December 22, 1999) to give the
Department time to promulgate regulations and eligible applicants an
opportunity to apply for both adjustment of status and new EADs (as
adjustment applicants). The Service recently published a notice in the
Federal Register, at 64 FR 71151, which re-extended the validity of
these EADs until September 30, 2000. Because this matter has been
addressed by separate action, it will not be addressed here.
17. Comments Relating to the Procedures of the Executive Office for
Immigration Review.
Many commenters suggested that Haitians eligible for HRIFA relief
should be permitted to administratively close their cases without the
concurrence of the Service. Currently, those aliens in proceedings
before the Immigration Court or Board of Immigration Appeals (Board)
may move to have these proceedings administratively closed for the
purpose of filing an application for adjustment under HRIFA with the
Service; however, the Service must concur with the administrative
closure of the case.
The Department has decided not to change this procedure because it
is established law that has been applied to other types of proceedings
and not just those involving HRIFA-eligible aliens. Administrative
closure is a convenience that allows for the removal of a case from the
calendar in appropriate situations. An immigration judge or the Board
may not administratively close a case if it is opposed by either party.
See Matter of Lopez-Barrios, 20 I & N Dec. 203, 204 (BIA 1990). The
Department does not find that aliens applying for HRIFA are in a
substantially different position from other aliens requesting
administrative closure of their cases. Therefore, an exception to the
rule is not warranted.
Two groups suggested that the interim rule limits motions to reopen
an EOIR decision denying HRIFA relief after a failure to appear by
confining the motions to current reopening and rescission standards.
They argue that reopening and rescission standards for certain
applicants with final exclusion and deportation orders are improper
because aliens with pre-IMMACT 90 deportation cases or aliens in
exclusion proceedings predating IIRIRA's fusion of exclusion and
deportation are subject to the ``reasonable cause'' standard for
reopening or rescission of a case before EOIR.
The Department chose to apply current rescission and reopening
standards in this particular situation because it has created a new
proceeding applicable exclusively to HRIFA-only relief. Rescission or
reopening in 8 CFR
[[Page 15843]]
245.15(s)(4) refers to 8 CFR 245.15(s)(1), and only discusses the
situation involving aliens with final orders who applied for adjustment
of status under section 902 of HRIFA with the Service, were denied that
relief by the Service, and were then referred to the Immigration Court
on Form I-290C for adjudication of their eligibility for such relief.
The rescission or reopening of proceedings under 8 CFR 245.15(s)(4)
refers exclusively to the HRIFA-only proceeding and not the original
deportation or exclusion proceeding. Accordingly, the standard for
determining whether an alien is eligible for rescission or reopening
under this subsection refers not to the original proceeding and the old
standard, but rather to the new proceedings and the current standard.
Because the Department created this new type of proceeding, it
considered it appropriate to choose a standard consistent with recent
reopening standards for removal proceedings put in place by Congress.
Are Any Other Changes Being Made to The Regulation?
Section 245.15(d)(4) has been revised to clarify that in
establishing the relationship between a principal beneficiary and a
dependent beneficiary, the standards of documentation set forth in 8
CFR 204.2 apply. No other changes are being made to the regulation,
with the exception of minor editorial corrections.
It has come to the Department's attention that the application of
current regulations (8 C.F.R. 103.2(a)(7)) and practice to HRIFA
applications filed with fee waiver requests may inadvertently result in
certain applicants later being deemed to have missed the application
deadline due to no fault on the part of the applicant. Currently an
application submitted with a fee waiver request is not considered
properly filed and does not retain a receipt date until the fee waiver
is granted. In cases where a fee waiver is denied, the application is
returned to the applicant with instructions to resubmit the application
with the appropriate fee at which time the application will be
considered properly filed and will be assigned a receipt date. Thus,
under current regulations and practice were the Service or Immigration
Court to deny a request for a waiver of the HRIFA application fee after
March 31, 2000, and return the application, the alien could not file
another application with the fee because the filing deadline would have
already passed. Given the statutorily mandated filing deadline of March
31, 2000, the Department believes that it would be appropriate to
modify the regulations with respect to this group of cases to avoid a
potentially harsh and irreversible result. Accordingly, the regulations
are being amended to afford an applicant whose HRIFA fee waiver request
is denied the opportunity to submit the required fee within 30 days of
notice that the fee waiver request was denied and thereby maintain a
timely filing date.
In addition, in a case over which the Board has jurisdiction, an
application received by the Board before April 1, 2000, that has been
properly signed and executed is considered to be filed before the
statutory deadline without payment of the fee or submission of a fee
waiver request. Upon remand by the Board, the payment of the fee or a
request for a fee waiver is made upon submission of the application to
the Immigration Court in accordance with 8 CFR 240.11(f). The
regulations are being amended to afford an applicant whose HRIFA
adjustment fee waiver request is denied the opportunity to submit the
required fee within 30 days of the notice that the fee waiver request
was denied. If the required fee is not paid within 30 days, the
applicant will no longer be considered to have filed a timely HRIFA
adjustment application.
Good Cause Exception
The Department's implementation of this final rule effective upon
publication in the Federal Register is based upon the ``good cause''
exception found at 5 U.S.C. 553(d)(3). By statute, all HRIFA principal
adjustment applicants must file their applications before April 1,
2000. Immediate implementation of this final rule is necessary to
ensure that HRIFA applicants are able to avail themselves of the
modifications made in this final rule as soon as possible before the
end of the application period. Accordingly, delaying the effective date
of this final rule for 30 days would be contrary to the public
interest.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b),
the Attorney General has reviewed this regulation and, by approving it,
certifies that this regulation will not have a significant economic
impact upon a substantial number of small entities. This rule allows
certain Haitian 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 section 3(f) of Executive Order
12866. Accordingly, this regulation has been submitted to the Office of
Management and Budget for review.
Executive Order 13132
This 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 section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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: Civil Justice Reform
This final 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 1 year, and 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.
Paperwork Reduction Act
The information collection requirement contained in this rule (Form
I-485 Supplement C) has been revised. Accordingly, it has been
submitted and approved by the Office of Management and Budget (OMB) in
accordance with the Paperwork Reduction Act. The changes to the form
are effective with the issuance of this rule.
[[Page 15844]]
Plain Language in Government Writing
The President's June 1, 1998, Memorandum published at 63 FR 31885,
concerning Plain Language in Government Writing, applies to this
proposed rule.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 212
Administrative practice and procedure, Aliens, Passports and visas,
Immigration, Reporting and recordkeeping requirements.
8 CFR Part 240
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 245
Aliens, 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, the interim rule amending 8 CFR Parts 3, 212, 240,
245, 274a, and 299, which was published at 64 FR 25756 on May 12, 1999,
is adopted as a final rule with the following changes:
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
Sec. 212.17 [Amended]
2. Section 212.7 is amended by:
a. Removing the phrase ``Sec. 245.15(l)'' and adding in its place
the phrase ``Sec. 245.15(t)'' in both the heading and the text of
paragraph (a)(1)(iii); and by
b. Removing the phrase ``Sec. 245.15(l)(2)'' and adding in its
place the phrase ``Sec. 245.15(t)(2)'' in paragraph (b)(2)(iv).
* * * * *
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
3. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.
4. Section 245.15 is amended by:
a. Revising the definitions of the terms ``Abandoned and
abandonment'' and ``Orphan and orphaned'' in paragraph (a);
b. Adding a new definition for the term ``Sole remaining parent''
at the end of paragraph (a);
c. Revising paragraph (b)(1)(iii)(A);
d. Revising paragraph (c)(2);
e. Revising paragraph (d)(4);
f. Adding two new sentences at the end of paragraph (e)(2);
g. Revising paragraph (h)(5);
h. Revising paragraph (j)(1);
i. Revising paragraph (k)(3)(i);
j. Revising paragraph (k)(3)(ii)(B);
k. Revising paragraphs (k)(4)(i) and (ii);
l. Revising paragraphs (k)(5)(i) and (ii);
m. Revising paragraph (m);
n. Amending the last sentence in paragraph (t)(2)(i) by removing
the phrase ``paragraph (f)'' and adding in its place the phrase
``paragraph (h)''; and by
o. Amending paragraph (u)(2) by removing the phrase ``paragraph
(l)(2)'' and adding in its place the phrase ``paragraph (t)(2)''.
The revised and added text reads as follows:
Sec. 245.15 Adjustment of Status of Certain Haitian Nationals under
the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
(a) * * *
Abandoned and abandonment mean that both parents have, or the sole
or surviving parent has, or in the case of a child who has been placed
into a guardianship, the child's guardian or guardians have, willfully
forsaken all parental or guardianship rights, obligations, and claims
to the child, as well as all control over and possession of the child,
without intending to transfer these rights to any specific person(s).
* * * * *
Orphan and orphaned refer to the involuntary detachment or
severance of a child from his or her parents due to any of the
following:
(1) The death or disappearance of, desertion by, or separation or
loss from both parents, as those terms are defined in Sec. 204.3(b) of
this chapter;
(2) The irrevocable and written release of all parental rights by
the sole parent, as that term is defined in Sec. 204.3(b) of this
chapter, based upon the inability of that parent to provide proper care
(within the meaning of that phrase in Sec. 204.3(b) of this chapter)
for the child, provided that at the time of such irrevocable release
such parent is legally obligated to provide such care; or
(3) The death or disappearance, as that term is defined in
Sec. 204.3(b) of this chapter, of one parent and the irrevocable and
written release of all parental rights by the sole remaining parent
based upon the inability of that parent to provide proper care (within
the meaning of that phrase in Sec. 204.3(b) of this chapter) for the
child, provided that at the time of such irrevocable release such
parent is legally obligated to provide such care.
* * * * *
Sole remaining parent means a person who is the child's only parent
because:
(1) The child's other parent has died; or
(2) The child's other parent has been certified by competent
Haitian authorities to be presumed dead as a result of his or her
disappearance, within the meaning of that term as set forth in
Sec. 204.3(b) of this chapter.
* * * * *
(b) * * *
(1) * * *
(iii) * * *
(A) Arrived in the United States without parents in the United
States and has remained, without parents, in the United States since
his or her arrival;
* * * * *
(c) * * *
(2) Proper application. The alien properly files an application for
adjustment of status in accordance with this section, including the
evidence described in paragraphs (h), (i), (j), and (k) of this
section. For purposes of Sec. 245.15 of this chapter only, an
Application to Register Permanent Residence or Adjust Status (Form I-
485) submitted by a principal applicant for benefits under HRIFA may be
considered to have been properly filed if it:
(i) Is received not later than March 31, 2000, at the Nebraska
Service Center, the Board, or the Immigration Court having
jurisdiction;
(ii) Has been properly completed and signed by the applicant;
(iii) Identifies the provision of HRIFA under which the applicant
is seeking adjustment of status; and
(iv) Is accompanied by either:
(A) The correct fee as specified in Sec. 103.7(b)(1) of this
chapter; or
[[Page 15845]]
(B) A request for a fee waiver in accordance with Sec. 103.7(c) of
this chapter, provided such fee waiver request is subsequently granted;
however, if such a fee waiver request is subsequently denied and the
applicant submits the require fee within 30 days of the date of any
notice that the fee waiver request had been denied, the application
shall be regarded as having been filed before the statutory deadline.
In addition, in a case over which the Board has jurisdiction, an
application received by the Board before April 1, 2000, that has been
properly signed and executed shall be considered filed before the
statutory deadline without payment of the fee or submission of a fee
waiver request. Upon remand by the Board, the payment of the fee or a
request for a fee waiver shall be made upon submission of the
application to the Immigration Court in accordance with 8 CFR
240.11(f). If a request for a fee waiver is denied, the application
shall be considered as having been properly filed with the Immigration
Court before the statutory deadline provided that the applicant submits
the required fee within 30 days of the date of any notice that the fee
waiver request has been denied.
* * * * *
(d) * * *
(4) Relationship. The qualifying relationship to the principal
alien must have existed at the time the principal was granted
adjustment of status and must continue to exist at the time the
dependent alien is granted adjustment of status. To establish the
qualifying relationship to the principal alien, evidence must be
submitted in accordance with Sec. 204.2 of this chapter. Such evidence
should consist of the documents specified in Sec. 204.2(a)(1)(i)(B),
(a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter;
* * * * *
(e) * * *
(2) * * * In considering an application for waiver under section
212(g) of the Act by an otherwise statutorily eligible applicant for
adjustment of status under HRIFA who was paroled into the United States
from the U.S. Naval Base at Guantanamo Bay, for the purpose of
receiving treatment of an HIV or AIDS condition, the fact that his or
her arrival in the United States was the direct result of a government
decision to provide such treatment should be viewed as a significant
positive factor when weighing discretionary factors. In considering an
application for waiver under section 212(i) of the Act by an otherwise
statutorily eligible applicant for adjustment of status under HRIFA who
used counterfeit documents to travel from Haiti to the United States,
the adjudicator shall, when weighing discretionary factors, take into
consideration the general lawlessness and corruption which was
widespread in Haiti at the time of the alien's departure, the
difficulties in obtaining legitimate departure documents at that time,
and other factors unique to Haiti at that time which may have induced
the alien to commit fraud or make willful misrepresentations.
* * * * *
(h) * * *
(5) Police clearances. If the applicant is 14 years old or older, a
police clearance from each municipality where the alien has resided for
6 months or longer since arriving in the United States. If there are
multiple local law enforcement agencies (e.g., city police and county
sheriff) with jurisdiction over the alien's residence, the applicant
may obtain a clearance from either agency. If the applicant resides or
resided in a State where the State police maintain a compilation of all
local arrests and convictions, a statewide clearance is sufficient. If
the applicant presents a letter from the local police agencies
involved, or other evidence, to the effect that the applicant attempted
to obtain such clearance but was unable to do so because of local or
State policy, the director or immigration judge having jurisdiction
over the application may waive the local police clearance. Furthermore,
if such local police agency has provided the Service or the Immigration
Court with a blanket statement that issuance of such police clearance
is against local or State policy, the director or immigration judge
having jurisdiction over the case may waive the local police clearance
requirement regardless of whether the applicant individually submits a
letter from that local police agency;
* * * * *
(j) * * *
(1) Evidence establishing presence. Evidence establishing the
continuity of the alien's physical presence in the United States since
December 31, 1995, may consist of any documentation issued by any
governmental or nongovernmental authority, provided such evidence bears
the name of the applicant, was dated at the time it was issued, and
bears the signature, seal, or other authenticating instrument of the
authorized representative of the issuing authority, if the document
would normally contain such authenticating instrument.
* * * * *
(k) * * *
(3) * * *
(i) Evidence, showing the date, location, and manner of his or her
arrival in the United States, such as:
(A) A photocopy of the Form I-94 issued at the time of the alien's
arrival in the United States;
(B) A copy of the airline or vessel records showing transportation
to the United States;
(C) Other similar documentation; or
(D) If none of the documents in paragraphs (k)(3)(i)(A)-(C) of this
section are available, a statement from the applicant, accompanied by
whatever evidence the applicant is able to submit in support of that
statement; and
(ii) * * *
(B) Evidence showing that the applicant's parents did not live in
the United States with the applicant. Such evidence may include, but is
not limited to, documentation or affidavits showing that the
applicant's parents have been continuously employed outside the United
States, are deceased, disappeared, or abandoned the applicant prior to
the applicant's arrival, or were otherwise engaged in activities
showing that they were not in the United States, or (if they have been
in the United States) that the applicant and his or her parents did not
reside together.
(4) * * *
(i) Evidence, showing the date, location, and manner of his or her
arrival in the United States, such as:
(A) A photocopy of the Form I-94 issued at the time of the alien's
arrival in the United States;
(B) A copy of the airline or vessel records showing transportation
to the United States;
(C) Other similar documentation; or
(D) If none of the documents in paragraphs (k)(4)(i)(A)-(C) of this
section are available, a statement from the applicant, accompanied by
whatever evidence the applicant is able to submit in support of that
statement; and
(ii) Either:
(A) The death certificates of both parents (or in the case of a
child having only one parent, the death certificate of the sole parent)
showing that the death or deaths occurred after the date of the
applicant's arrival in the United States;
(B) Evidence from a State, local, or other court or governmental
authority having jurisdiction and authority to make decisions in
matters of child welfare establishing the disappearance of, the
separation or loss from, or desertion by, both parents (or, in the case
of a child born out of wedlock who has not been legitimated, the sole
parent); or
[[Page 15846]]
(C) Evidence of:
(1) Either:
(i) The child having only a sole parent, as that term is defined in
Sec. 204.3(b) of this chapter;
(ii) The death of one parent; or
(iii) Certification by competent Haitian authorities that one
parent is presumed dead as a result of his or her disappearance, within
the meaning of that term as set forth in Sec. 204.3(b) of this chapter;
and
(2) A copy of a written statement executed by the sole parent, or
the sole remaining parent, irrevocably releasing all parental rights
based upon the inability of that parent to provide proper care for the
child.
(5) * * *
(i) Evidence, showing the date, location, and manner of his or her
arrival in the United States, such as:
(A) A photocopy of the Form I-94 issued at the time of the alien's
arrival in the United States;
(B) A copy of the airline or vessel records showing transportation
to the United States;
(C) Other similar documentation; or
(D) If none of the documents in paragraphs (k)(5)(i)(A)-(C) of this
section are available, a statement from the applicant, accompanied by
whatever evidence the applicant is able to submit in support of that
statement; and
(ii) Either:
(A) Evidence from a State, local, or other court or governmental
authority having jurisdiction and authority to make decisions in
matters of child welfare establishing such abandonment; or
(B) Evidence to establish that the applicant would have been
considered to be abandoned according to the laws of the State where he
or she resides, or where he or she resided at the time of the
abandonment, had the issue been presented to the proper authorities.
* * * * *
(m) Secondary evidence. Except as otherwise provided in this
paragraph, if the primary evidence required in 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 birth,
marriage, or other relevant events. Documentary evidence establishing
that primary evidence is unavailable must accompany secondary evidence
of birth or marriage in the home country. The unavailability of such
documents may be shown by submission of a copy of the written request
for a copy of such documents which was sent to the official keeper of
the records. In adjudicating the application for adjustment of status
under section 902 of HRIFA, 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 (i) or (j) of this section. However, subject to verification
by the Service, if the documentation specified in this paragraph or in
paragraphs (h)(3)(i), (i), (j), (l)(1), and (l)(2) of this section 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.
* * * * *
PART 274A--CONTROL OF EMPLOYMENT OF ALIENS
5. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2; Pub. L.
101-410, 104 Stat 890, as amended by Pub. L. 104-34, 110 Stat 1321.
Sec. 274a.12 [Amended]
6. In Sec. 274a.12, paragraph (c)(9) is amended in the second
sentence by removing the words ``Secs. 245.13(j) and 245.13(k) of this
chapter'' and adding in its place the words ``Secs. 245.13(j) and
245.15(n) of this chapter''.
Sec. 274a.13 [Amended]
7. In Sec. 274a.13, paragraph (d) is amended in the first sentence
by removing the words ``insofar as it is governed by Secs. 245.13(j)
and 245.15(k) of this chapter'' and adding in its place the words
``insofar as it is governed by Secs. 245.13(j) and 245.15(n) of this
chapter''.
PART 299--IMMIGRATION FORMS
8. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
9. Section 299.1 is amended in the table by revising the entry for
Form ``I-485 Supplement C'', to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------
* * * *
* * *
I-485 Supplement C............. 12-01-99 HRIFA Supplement to
Form I-485
Instructions.
* * * *
* * *
------------------------------------------------------------------------
Dated: March 17, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-7204 Filed 3-21-00; 3:47 pm]
BILLING CODE 4410-10-P