[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