[Federal Register Volume 66, Number 106 (Friday, June 1, 2001)]
[Rules and Regulations]
[Pages 29661-29682]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-13669]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 100, 103, 236, 245a, 274a and 299

[INS No. 2115-01; AG Order No. 2430-2001]
RIN 1115-AG06


Adjustment of Status Under Legal Immigration Family Equity (LIFE) 
Act Legalization Provisions and LIFE Act Amendments Family Unity 
Provisions

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule implements section 1104 of the Legal 
Immigration Family Equity Act (LIFE Act) and the LIFE Act Amendments by 
establishing procedures for certain class action participants to become 
lawful permanent residents of this country. Persons who may be eligible 
to adjust under section 1104 of the LIFE Act and its Amendments are 
aliens who have filed for class membership with the Attorney General, 
before October 1, 2000, in one of three legalization lawsuits: (1) 
Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. 
Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS); (2) League of 
United Latin American Citizens v. INS, vacated sub nom. Reno v. 
Catholic Social Services, Inc., 509 U.S. 43 (1993) (LULAC); or (3) 
Zambrano v. INS, vacated, 509 U.S. 918 (1993) (Zambrano).
    This interim rule also implements section 1504 of the LIFE Act 
Amendments by providing for a stay of removal and work authorization 
for certain spouses and unmarried children of those aliens eligible to 
adjust under section 1104 of the LIFE Act.
    This rule is necessary to ensure that those aliens eligible to 
apply for benefits under the provisions of the LIFE Act and LIFE Act 
Amendments are able to do so in a timely manner.

[[Page 29662]]


DATES: Effective date: This interim rule is effective June 1, 2001.
    Comment date: Written comments must be submitted on or before July 
31, 2001.

ADDRESSES: Please submit written comments to Richard A. Sloan, 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW, Room 4034, Washington, DC 
20536. To ensure proper handling, please reference INS No. 2115-01 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Elizabeth N. Lee or Suzy Nguyen, 
Assistant Directors, for matters relating to LIFE Legalization; 
Elizabeth N. Lee or Rebecca Peters, for matters relating to Family 
Unity; Office of Adjudications, Immigration and Naturalization Service, 
425 I Street NW, Room 3214, Washington, DC 20536, telephone (202) 514-
3228.

SUPPLEMENTARY INFORMATION: This supplemental information section is 
organized as follows:

Legal Immigration Family Equity (LIFE) Act Legalization Provisions

1. Definitions
2. Eligibility
3. Ineligibility and grounds of inadmissibility
4. Filing and applications
5. During pendency of application
6. Proof of eligibility
7. Decisions, appeals, motions, and certifications

LIFE Act Amendments Family Unity Provisions

1. Eligibility
2. Description of program
3. Ineligible aliens
4. Filing
5. Protection from removal and eligibility for employment
6. Travel outside the United States
7. Termination of Family Unity benefits

Legal Immigration Family Equity (LIFE) Act Legalization Provisions

Definitions

What Are the Legalization Provisions of the LIFE Act?
    On December 21, 2000, President Clinton signed into law the Legal 
Immigration Family Equity Act (LIFE Act), Title XI of H.R. 5548, 
enacted by reference in Public Law 106-553 (Dec. 21, 2000), and the 
LIFE Act Amendments, Title XV of H.R. 5666, enacted by reference in 
Public Law 106-554 (Dec. 21, 2000), which provides for numerous 
different immigration benefits. Section 1104 of the LIFE Act and its 
Amendments (LIFE Legalization) allow certain eligible aliens to apply 
for adjustment of status to that of a lawful permanent resident (LPR) 
under a modified version of section 245A of the Immigration and 
Nationality Act (Act) (8 U.S.C. 1255a). Aliens who are eligible to 
apply for adjustment under LIFE Legalization are only those who, before 
October 1, 2000, had filed with the Attorney General a written claim 
for class membership in the CSS, LULAC, or Zambrano legalization class 
action lawsuits. In order to qualify for adjustment, aliens must 
establish that they entered the United States before January 1, 1982, 
and thereafter resided in continuous unlawful status through May 4, 
1988. Aliens must also establish that they were continuously physically 
present in the United States from November 6, 1986, through May 4, 
1988. Furthermore, aliens must demonstrate basic citizenship skills. 
Finally, aliens must be otherwise admissible to the United States under 
the Act. LIFE Legalization also provides for a stay of removal or 
deportation and work authorization for eligible aliens under this law 
while their adjustment applications are pending.
What Are the Family Unity Provisions of the LIFE Act?
    Section 1504 of the LIFE Act Amendments provides that the Attorney 
General may not remove certain spouses and children of aliens eligible 
to adjust under LIFE Legalization and shall grant employment 
authorization to those eligible spouses and children for the period of 
time in which they have been afforded Family Unity protection. The 
exact scope of the Family Unity provisions of the LIFE Act Amendments 
is discussed later in this interim rule.
What Are the Provisions of Section 245A of the Act?
    On November 6, 1986, President Reagan signed into law the 
Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603. 
Section 201 of IRCA created a ``legalization'' program under section 
245A of the Act, that allowed for certain aliens to apply for 
adjustment to temporary resident status, and later to LPR status. To be 
eligible, an alien needed to establish that he or she entered the 
United States before January 1, 1982, and that he or she resided 
continuously in the United States in an unlawful status since such date 
through the date that his or her application for temporary resident 
status was filed. Aliens who entered the United States without 
inspection and certain nonimmigrants were eligible to apply under the 
IRCA. The legalization program had a 1-year application period that 
began on May 5, 1987, and ended on May 4, 1988.
What Modifications Do the LIFE Legalization Provisions Make to Section 
245A of the Act?
    LIFE Legalization made several notable modifications to section 
245A of the Act (8 U.S.C. 1255a). First, aliens who applied for 
legalization benefits under IRCA first needed to apply for adjustment 
to lawful temporary resident status. Subsequent to this adjustment, 
these aliens were required to apply for adjustment to LPR status. In 
contrast, those eligible aliens applying for adjustment of status under 
LIFE Legalization will be submitting applications to adjust to LPR 
status directly. There is no provision or requirement for first 
adjusting to lawful temporary resident status.
    Second, sections 245A (c)(1) through (c)(4) of the Act allowed for 
qualified designated entities (QDEs) to forward applications for 
adjustment of status under section 245A of the Act to the Immigration 
and Naturalization Service (Service), provided the alien had consented 
to such action. The LIFE Legalization provisions have no such QDE 
provision. Accordingly, all applications for adjustment of status under 
LIFE Legalization must be filed by the alien, or by his or her 
representative, directly to the Service.
    Third, section 245A(c)(7) of the Act provided for the allocation of 
up to $3 million of the application fees for section 245A of the Act to 
immigration-related unfair employment practices programs. The LIFE 
Legalization provisions specifically prohibit the use of any funds 
collected through this program to be used in such a manner.
    Fourth, section 245A(f)(4)(C) of the Act prohibited any court from 
having jurisdiction over any cause or action or claim by, or on behalf 
of, any person asserting an interest under section 245A of the Act 
unless that person had actually filed or attempted to file an 
application under section 245A of the Act. This section does not apply 
to an alien eligible for adjustment under LIFE Legalization, effective 
November 6, 1986.
    Fifth, section 245A(h) of the Act provided a 5-year prohibition on 
newly legalized aliens from receiving certain public welfare 
assistance. The LIFE Legalization provisions specifically state that 
section 245A(h) does not apply to those aliens who adjust to LPR status 
under LIFE Legalization. Although aliens who have adjusted their status 
under the LIFE Legalization provisions are exempt from the bar on 
public assistance under Section 245A(h), they

[[Page 29663]]

remain subject to the restrictions on access to benefits set forth in 
the Personal Responsibility and Work Opportunity Reconciliation Act of 
1996 (Welfare Reform Act), as amended (Public Law 104-193, 110 Stat. 
2105). The Welfare Reform Act, as amended, establishes restrictions on 
access to federal, state, and local public benefits by aliens, 
including lawful permanent residents. 8 U.S.C. 1601 through 1625. 
Aliens who adjust to permanent residency under LIFE Legalization are 
encouraged to contact the relevant benefit-granting agency for 
information about their eligibility for specific public benefit 
programs. See also, Notice, Interim Guidance on Verification of 
Citizenship, Qualified Alien Status and Eligibility Under Title IV of 
the Personal Responsibility and Work Opportunity Reconciliation Act of 
1996, 62 FR 61344; Notice, Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996; Interpretation of ``Federal Public 
Benefit,'' 63 FR 41658.
    Sixth, LIFE Legalization provides for the same confidentiality 
provisions as the IRCA, with the exception that information furnished 
by an eligible alien pursuant to any applications filed under LIFE 
Legalization may be used by the Attorney General for purposes of 
rescinding LPR status pursuant to 8 CFR part 246.
    In many other respects the provisions of LIFE Legalization are 
identical to those contained in section 245A of the Act. Accordingly, 
where applicable, much of the regulatory language contained in this 
interim rule is taken from 8 CFR 245a.3 (Application for adjustment 
from temporary to permanent resident status).
What Are the Three Pertinent Legalization Class Action Lawsuits CSS, 
LULAC, and Zambrano About?
    The three class action lawsuits listed in LIFE Legalization 
involved claims by aliens who were unsuccessful in applying for 
legalization under section 245A of the Act enacted in 1986. The aliens 
in CSS, LULAC, and Zambrano argued that either their claims were denied 
or that they were discouraged from applying.

Eligibility

How is an Alien Eligible for Adjustment to LPR Status Under LIFE 
Legalization?
    First, an alien must prove that he or she, before October 1, 2000, 
filed a written claim with the Attorney General for class membership in 
the CSS, LULAC, or Zambrano legalization class action lawsuits in order 
to be considered an eligible alien for adjustment to LPR status under 
LIFE Legalization. Applicants who were denied class membership in the 
CSS, LULAC, or Zambrano legalization class action lawsuits by the 
Service are still eligible to apply for adjustment of status under LIFE 
Legalization.
    Second, an eligible alien must then submit evidence to establish 
the following five requirements--that he or she:
    1. Properly files an application for adjustment under LIFE 
Legalization;
    2. Entered the United States before January 1, 1982, and resided 
continuously in the United States in an unlawful status since that date 
through May 4, 1988;
    3. Was continuously physically present in the United States during 
the period from November 6, 1986, through May 4, 1988;
    4. Is not inadmissible to the United States for permanent residence 
under any provisions of the Act; and
    5. Establishes basic citizenship skills as required.

Ineligibility and Grounds of Inadmissibility

Who Is Ineligible for Adjustment Under LIFE Legalization?
    As under IRCA, LIFE Legalization specifies that any otherwise 
eligible alien who has ever been convicted of a felony or of three or 
more misdemeanors in the United States is ineligible to adjust status 
under LIFE Legalization. Further, any alien who has ever assisted in 
the persecution of any person or persons on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion is ineligible to adjust status under LIFE Legalization. There 
are no waivers available for the grounds of ineligibility described in 
this paragraph.
    The LIFE Legalization provisions further specify that section 
241(a)(5) of the Act (8 U.S.C. 1231(a)(5)) does not apply to an alien 
adjusting under LIFE Legalization. Section 241(a)(5) of the Act 
provides for the reinstatement of a removal order against any alien who 
illegally re-enters the United States after having been removed or 
after having departed voluntarily under an order of removal. It also 
bars any alien whose removal order has been reinstated from receiving 
any relief under the Act.
    All aliens must establish that they are admissible under section 
212(a) of the Act (8 U.S.C. 1182(a)). Sections 212(a)(5) (labor 
certification requirements) and 212(a)(7)(A) (documentation 
requirements for immigrants) are not applicable to LIFE Legalization 
applicants. Any alien who is inadmissible under other provisions of 
section 212(a) of the Act is not eligible for adjustment to LPR status 
under section 245A of the Act (8 U.S.C. 1255a). A waiver for 
humanitarian purposes, to assure family unity, or when it is otherwise 
in the public interest is available for some, but not all, grounds of 
inadmissibility. In addition, the LIFE Legalization provisions also 
allow for waivers for those aliens inadmissible pursuant to sections 
212(a)(9)(A) and 212(a)(9)(C) of the Act (aliens previously removed and 
aliens unlawfully present after previous immigration violations). The 
following grounds of inadmissibility under section 212(a) of the Act, 
however, may not be waived:
    1. Sections 212(a)(2)(A) and (B) of the Act, crimes involving moral 
turpitude and controlled substances;
    2. Section 212(a)(2)(C) of the Act, controlled substance 
traffickers;
    3. Section 212(a)(3) of the Act, security and related grounds; and
    4. Section 212(a)(4) of the Act, aliens likely to become a public 
charge.
    In determining whether the alien is likely to become a public 
charge, and would therefore be inadmissible under section 212(a)(4) of 
the Act, there is a Special Rule that is discussed in this interim rule 
at 8 CFR 245a.18(d). In short, the Special Rule allows the Service to 
look at an alien's employment history when determining whether he or 
she is likely to become a public charge.

Filing and Applications

May an Alien Who is Already in Exclusion, Deportation, or Removal 
Proceedings, or Who has a Motion To Reopen or Motion To Reconsider 
Pending Before the Immigration Court or the Board of Immigration 
Appeals (Board) Apply for LIFE Legalization Adjustment With the 
Service?
    Yes, an alien who has a proceeding pending before the Immigration 
Court or the Board, or who has a motion to reopen or a motion to 
reconsider filed with the Immigration Court or the Board, may still 
file an application for LIFE Legalization adjustment of status with the 
Service. However, the alien must also request that the Immigration 
Court or the Board, whichever has jurisdiction, administratively close 
proceedings, or indefinitely continue any pending motion to reopen or 
reconsider in order to allow the alien to proceed with a LIFE 
Legalization application. In the request to administratively close the 
matter or indefinitely continue the motion, the alien must include 
documents establishing prima facie eligibility for

[[Page 29664]]

relief, and proof that the LIFE Legalization application has already 
been filed with the Service. The Service must consent before the matter 
is administratively closed.
What Happens if an Applicant is the Subject of a Final Order of 
Exclusion, Deportation, or Removal?
    Jurisdiction over LIFE Legalization applicants lies only with the 
Service. Thus, an eligible alien who is the subject of a final order of 
exclusion, deportation, or removal may file such application with the 
Service. The filing of a LIFE Legalization adjustment application 
during the application period stays the execution of any final order of 
exclusion, deportation, or removal. This stay shall remain in effect 
unless the district director who seeks to execute the order makes a 
final determination that the application does not present a prima facie 
claim to LIFE Legalization eligibility on certain criminal grounds and 
serves the applicant with a written decision explaining the reason for 
this determination.
How Does an Alien Apply for Adjustment of Status Under LIFE 
Legalization?
    An alien must file Form I-485, Application to Register Permanent 
Residence or Adjust Status, during the 1-year application period 
beginning June 1, 2001, and ending May 31, 2002, along with all 
required documentary evidence and appropriate fee(s). An additional 
instruction form, Supplement D, LIFE Legalization Supplement to Form I-
485 Instructions, will assist applicants with the application process.
When and Where Should the Application be Filed?
    LIFE Legalization authorizes the Attorney General to provide a 1-
year application period for LIFE Legalization applicants to file for 
adjustment. The application period begins on June 1, 2001, and ends on 
May 31, 2002. Pursuant to existing regulations at 8 CFR 103.2(a)(7), 
applications filed with the Service are considered to be ``received'' 
on the date of actual receipt in a Service office.
    Because of the particular nature of the LIFE Legalization program, 
and the high anticipated volume of applications by the deadline date, 
the Service is making a special exception to the requirements at 8 CFR 
103.2(a)(7). For purposes of LIFE Legalization only, the Service will 
implement a postmark rule that is patterned directly on the Internal 
Revenue Service (IRS) regulations at 26 CFR 301.7502-1. The IRS rules 
provide an established set of standards for determining the timeliness 
of mail, whether mailed from within the United States or from abroad. 
Any LIFE Legalization application that is postmarked by the United 
States Post Office on or before the deadline date will be considered to 
be timely filed, regardless of the date it is actually received by the 
Service. In the case where a postmark is illegible or missing, the 
Service will consider the application to be timely filed if it is 
received by June 3, 2002, if the application was mailed from within the 
United States, or by June 14, 2002, if the application was mailed from 
abroad. Applications that are postmarked after May 31, 2002, will be 
untimely and will be denied. To avoid the risk that an application may 
be postmarked after May 31, 2002, applicants within the United States 
might consider sending applications via United States registered or 
certified mail.
    All applications for adjustment of status under LIFE Legalization 
must be submitted by mail to: United States Immigration and 
Naturalization Service, Post Office Box 7219, Chicago, IL 60607-7219. 
Applications may not be submitted to any other Service location.
Can an Alien Submit an Application for Adjustment of Status Under LIFE 
Legalization if He or She Is Outside the United States?
    Yes, an applicant for LIFE Legalization may apply for adjustment of 
status from outside the United States. An applicant filing for LIFE 
Legalization from abroad must mail an application along with all 
required documentary evidence and appropriate fee(s) to: United States 
Immigration and Naturalization Service, Post Office Box 7219, Chicago, 
IL 60607-7219. Applications may not be submitted to any consular post. 
As with domestic applicants, the Service is making a special exception 
to the requirements at 8 CFR 103.2(a)(7). Any LIFE Legalization 
application that is postmarked on or before May 31, 2002, will be 
considered to be timely filed, regardless of the date it is actually 
received by the Service. In the case where a postmark is illegible or 
missing, and the application was mailed from abroad, the Service will 
consider the application to be timely filed if it is received by June 
14, 2002. Applications that are postmarked after May 31, 2002, or 
applications that have illegible or no postmarks and are received after 
June 14, 2002, will be untimely and will be denied. If an application 
has both a foreign postmark and a postmark subsequently made by the 
United States Post Office, the Service will disregard the postmark made 
by the United States Post Office. The Service will then consider the 
foreign postmark when determining the timeliness of the filing of the 
application. LIFE Legalization provisions do not provide applicants 
outside the United States with a means to enter the United States in 
order to apply for adjustment under LIFE Legalization. Upon review of 
applications from abroad, the Service will notify applicants of any 
further evidence required and/or what further steps need to be taken.
How Will the Service Evaluate the Evidence Submitted?
    In all cases, any doubts as to the existence, authenticity, 
veracity, or accuracy of the documentation shall be resolved by the 
official Government record, with Service records having precedence over 
the records of other agencies. Furthermore, adjudications will be made 
according to the weight of the evidence. It shall be the responsibility 
of the applicant to obtain and submit copies of the records of any 
other Government agency that the applicant desires to be considered in 
support of his or her application.
What Forms and Other Documents Should Be Filed?
    Each applicant for LIFE Legalization adjustment of status benefits 
must file a separate Form I-485, accompanied by the required 
application fee(s) and supporting documents. As discussed later, 
applicants are encouraged to file applications for employment 
authorization and advance parole, if desired, with their Form I-485. 
Applicants should complete Part 2 (Application Type) of Form I-485 by 
checking box ``h--other'' and writing ``LIFE Legalization'' next to 
that block. Each application must be accompanied by:
    1. Application fee;
    2. Fingerprinting fee;
    3. Proof of identity;
    4. A completed Form G-325A, Biographic Information Sheet, if the 
applicant is between the age of 14 and 79;
    5. A report of medical examination;
    6. Two photographs as described in the Form I-485 instructions;
    7. Evidence as described in 8 CFR 245a.14 to establish that before 
October 1, 2000, the alien filed with the Attorney General a written 
claim for class membership in the CSS, LULAC, or Zambrano lawsuit;
    8. Evidence as described in 8 CFR 245a.15 to prove continuous 
residence in an unlawful status since prior to

[[Page 29665]]

January 1, 1982, through May 4, 1988, in the United States;
    9. Evidence as described in 8 CFR 245a.16 to prove continuous 
physical presence between November 6, 1986, and May 4, 1988, in the 
United States; and
    10. Evidence as described in 8 CFR 245a.17 to establish the 
applicant's citizenship skills.
    It is noted that LIFE Legalization specifies that any alien who is 
a male who is at least 18 years of age, but not yet 26 years of age is 
required to register under the Military Selective Service Act. 50 
U.S.C. 453(a). Once a Form I-485 has been accepted by the Service, any 
LIFE Legalization applicant required to register under the Military 
Selective Service Act will have his name, current address, Social 
Security number, date of birth, and the date the Form I-485 was filed 
forwarded to the Selective Service System. If the LIFE Legalization 
applicant has already registered with the Selective Service System, the 
Selective Service will check its records to avoid any duplication.
Must the Applicant Be Fingerprinted?
    Yes, unless the applicant is under 14 years of age or over 75 years 
of age. Upon receipt of the application, the Service will instruct the 
applicant regarding procedures for obtaining fingerprints through one 
of the Service's Application Support Centers (ASCs) or authorized 
Designated Law Enforcement Agencies (DLEAs) chosen specifically for 
that purpose. Those instructions will direct the applicant to the ASC 
or DLEA nearest the applicant's home and advise the applicant of the 
date(s) and time(s) fingerprinting services may be obtained. Applicants 
should not submit fingerprint cards as part of the initial filing. If 
the applicant must be fingerprinted, he or she must submit the fee of 
$25 to cover fingerprinting costs at the time the Form I-485 is filed.
Is There a Fee for Filing This Application?
    Yes, those aliens applying for adjustment of status under LIFE 
Legalization will be required to pay an application fee of $330. The 
Service recognizes that this is a higher fee than the current Form I-
485 application fee; however, the provisions of section 245A of the Act 
allowed for the Service to provide for a schedule of fees to be charged 
for the filing of applications under section 245A of the Act. 8 U.S.C. 
1255a(c)(7). Moreover, section 245A(g)(3) of the Act, which was not 
modified by LIFE Legalization, provides that regulations issued 
pursuant to section 245A of the Act may be prescribed to take effect on 
an interim final basis if the Attorney General determines, as is the 
case here, that it is necessary in order to implement that section in a 
timely manner. As will be discussed later in this interim rule, the 
Service determined that $330 represents the full cost of processing the 
Form I-485 for LIFE Legalization.
Can Someone Else Sign the Application if the Applicant is a Child or a 
Person Who is Mentally Incompetent?
    In accordance with 8 CFR 103.2(a)(2), an application may be signed 
by a parent or legal guardian if the applicant is under 14 years of 
age, and by a legal guardian if the applicant is mentally incompetent. 
However, an applicant who is under age 14 is not precluded from signing 
the application if he or she is capable of understanding the 
significance of the attestation.

During Pendency of Application

What Other Benefits Are Eligible Aliens Entitled to During the 
Application Process?
    Until a final determination is made on their application, eligible 
aliens in the United States who present a prima facie application for 
adjustment to LPR status under LIFE Legalization:
    1. May not be deported or removed from the United States;
    2. Are entitled to employment authorization; and
    3. In accordance with procedures set forth in these regulations, 
may return to the United States following brief, casual, and innocent 
trips abroad.
    For these reasons, all LIFE Legalization applicants who are in the 
United States, and who desire to work and/or travel abroad, are 
encouraged to submit a Form I-765, Application for Employment 
Authorization, and a Form I-131, Application for Travel Document, with 
appropriate fees, at the time the Form I-485 is submitted.
Can an Applicant Be Authorized to Work While His or Her LIFE 
Legalization Adjustment Application Is Pending?
    Yes, an alien who establishes a prima facie claim for LIFE 
Legalization will be granted employment authorization. In determining a 
prima facie claim, the Service will verify that the applicant applied 
for class membership in the CSS, LULAC, or Zambrano lawsuit before 
October 1, 2000, and that the applicant presents, on the face of the 
application package, all of the eligibility requirements. An applicant 
for adjustment is able to apply for, and be granted, an extension of 
any such employment authorization if he or she remains eligible. An 
applicant for adjustment of status under LIFE Legalization who wishes 
to obtain initial employment authorization, or employment authorization 
renewals, during the pendency of the adjustment of status application, 
may file a Form I-765 with the Service. Further, if the applicant has 
already received employment authorization under any other provision of 
the Act, that employment authorization will not be affected by the 
filing of an application for adjustment of status under LIFE 
Legalization.
What is the Service's Policy on Travel Outside the United States by a 
LIFE Legalization Applicant Who Applied From Within the United States 
While His or Her LIFE Legalization Adjustment Application is Pending?
    LIFE Legalization applicants wishing to travel outside the United 
States while their adjustment applications are pending should apply for 
``advance parole'' on Form I-131, Application for Travel Document. The 
Form I-131 must be mailed to: United States Immigration and 
Naturalization Service, Post Office Box 7219, Chicago, IL 60607-7219. 
If an alien travels abroad and returns to the United States with a 
grant of advance parole, the Service will presume that the alien is 
entitled to return to the United States. Further, a LIFE Legalization 
applicant who departs the United States will not be subject to the 
provisions of section 212(a)(9)(B) of the Act (8 U.S.C. 1182(a)(9)(B)) 
(aliens unlawfully present in the United States who seek to reenter the 
United States). A LIFE Legalization applicant returning to the United 
States from travel abroad without a grant of advance parole may be 
subject to removal proceedings and may have to process or/and await his 
or her adjustment application from outside the United States. This is 
discussed in the regulations at 8 CFR 245a.13(a)(3), (e)(2), and (e)(3) 
in this interim rule.

Proof of Eligibility

How Does an Alien Establish That He or She Applied for Class Membership 
in the CSS, LULAC, or Zambrano Class Action Lawsuit?
    Aliens who had applied for class membership in CSS, LULAC, or 
Zambrano before October 1, 2000, were required to submit various forms 
of written applications for class membership to the Service including, 
but not limited to, a Form I-687, Application for Status as a Temporary 
Resident--Applicants under Section 245A of the Immigration and

[[Page 29666]]

Nationality Act, as amended, a ``Questionnaire for class member 
applicants,'' and supporting documentation. The Service reviewed the 
application and evidence submitted, and made a determination on whether 
the alien qualified for class membership. A written notification was 
then sent to the alien, and/or his or her representative, informing 
them of the Service's decision. If the alien was determined to be a 
class member under CSS, LULAC, or Zambrano, the alien was entitled to 
employment authorization.
    An alien filing a LIFE Legalization application should submit as 
many of the documents involved in the process previously described as 
necessary to establish that he or she had applied for class membership 
in the CSS, LULAC, or Zambrano lawsuit before October 1, 2000. These 
documents should, at a minimum, include the alien's full name, A-
number, and date(s). The following documents, for example, may be 
submitted:
    1. Employment authorization document (EAD) based on the class 
membership;
    2. Service notification granting or denying the class membership;
    3. Questionnaire for class member applicants in CSS, LULAC, or 
Zambrano;
    4. Service document(s) pursuant to the class membership application 
(e.g., Parole Authorization, or denial of such, Order to Show Cause, 
Notice to Appear, Final Order of Removal, Request for Evidence (RFE), 
or Form I-687 submitted with the class membership application); or
    5. Any other relevant documents.
    The Service will check its databases and files to verify the 
alien's claim. If it can be verified that the alien had in fact applied 
for class membership, the Service will notify him or her of its 
determination and grant employment authorization (if applied for by the 
alien).
What Does it Mean To Prove Continuous Residence in an Unlawful Status 
Since Prior to January 1, 1982, Through May 4, 1988, in the United 
States?
    As required by IRCA and again of LIFE Legalization applicants, the 
applicant must provide evidence that he or she entered the United 
States before January 1, 1982, either as a nonimmigrant or without 
inspection. Under LIFE Legalization, the applicant must also provide 
evidence that he or she thereafter resided in continuous unlawful 
status through May 4, 1988. An eligible alien who entered the United 
States as a nonimmigrant before January 1, 1982, must establish that:
    1. His or her authorized period of admission as a nonimmigrant 
expired before January 1, 1982, through the passage of time and that he 
or she resided continuously in the United States in an unlawful status 
since that date through May 4, 1988; or
    2. His or her unlawful status was known to the Government before 
January 1, 1982, and that he or she resided continuously in the United 
States in an unlawful status since that date through May 4, 1988.
How Does an Alien Establish That His or Her Unlawful Status Prior to 
January 1, 1982, Was ``Known to the Government''?
    Known to the Government means that, prior to January 1, 1982, 
documents existed in one or more Federal Government agencies' files 
such that when such documentation is taken as a whole, it warrants a 
finding that the alien's status in the United States was unlawful. See 
Mater of P-, 19 I&N Dec. 823 (Comm. 1988). Further, any absence of 
mandatory annual and/or quarterly registration reports from Federal 
Government files does not warrant a finding that the alien's unlawful 
status was ``known to the Government.'' See Matter of H-, 20 I&N Dec. 
693 (Assoc. Comm. 1993). (Under section 265 of the Act (8 U.S.C. 1305), 
nonimmigrants were required to register with the Service by January 30 
of each year and to notify the Service of their address at the end of 
each 3-month period.)
What Does it Mean To Prove Continuous Physical Presence Between 
November 6, 1986, and May 4, 1988, in the United States?
    Contained in IRCA and required of LIFE Legalization applicants, 
evidence must be provided to establish their continuous physical 
presence in the United States from November 6, 1986, through May 4, 
1988.
Can an Alien be Absent Between November 6, 1986, and May 4, 1988, From 
the United States and Still be ``Continuously Physically Present'' in 
the United States?
    Yes, so long as such absences were brief, casual, and innocent or 
were pursuant to a Service-authorized advance parole. ``Brief, casual, 
and innocent'' means temporary, occasional trips abroad as long as the 
purpose of the absence from the United States was consistent with the 
policies reflected in the immigration laws of the United States. 
Whether an absence is brief, casual, and innocent is a factual question 
appropriate for case-by-case analysis in consideration of the meaning 
of the phrase. Brief refers to the temporal length of the absence, and 
must not be so long as to reduce the significance of the whole period 
of continuous physical presence. See Kamheangpatiyooth v. INS, 597 F.2d 
1253, 1256-1257 (9th Cir. 1979). Casual is interpreted to mean 
performed without regularity, occasionally. See Castrejon-Garcia v. 
INS, 60 F.3d 1359, 1363 (9th Cir. 1995). Innocent refers to the purpose 
of the absence from the United States, and whether that purpose was 
consistent with or contrary to a policy reflected in the immigration 
laws. See Catholic Social Services v. Meese, 685 F. Supp. 1149, 1158 
(E.D. Cal. 1988).
    If an alien was absent from the country pursuant to an advance 
parole, this absence will not be considered as having interrupted his 
or her continuous physical presence. Brief, casual, and innocent 
absences from the United States are not limited to absences with 
advance parole.
    A single absence from the United States of more than 30 days or an 
aggregate of all absences exceeding 90 days shall not be deemed to be a 
brief, casual, and innocent absence unless the alien had advance parole 
or the alien can establish that due to emergent reasons, his or her 
return to the United States could not be accomplished within the time 
period(s) allowed.
Will an Applicant Who Establishes a Prima Facie Case of Eligibility be 
Required To Appear for an Interview?
    If a LIFE Legalization applicant appears eligible for the benefit, 
an interview will be required as, at a minimum, the applicant must 
demonstrate a minimal understanding of ordinary English and a knowledge 
and understanding of the history and government of the United States as 
required under section 312(a) of the Act (8 U.S.C. 1423). If an 
applicant fails to appear for an interview, his or her LIFE 
Legalization adjustment application may be denied for lack of 
prosecution. If an applicant is determined to be statutorily 
ineligible, his or her LIFE Legalization adjustment application may be 
denied without interview.
    As stated earlier, the LIFE Legalization provisions require 
applicants to demonstrate basic citizenship skills as specified in 
section 312(a) of the Act (relating to minimal understanding of 
ordinary English and a knowledge and understanding of the history and 
government of the United States). Therefore, during their interview, 
LIFE Legalization applicants

[[Page 29667]]

will be required to demonstrate a minimal understanding of ordinary 
English and a knowledge and understanding of the history and government 
of the United States as required under section 312(a) of the Act.
    In lieu of the above, to meet the requirement, an applicant may 
instead submit: (1) A high school diploma; (2) a general educational 
development diploma (GED); or (3) a certification on letterhead 
stationery from a state recognized, accredited learning institution in 
the United States that the applicant is attending or has attended such 
institution. The course of study at such learning institution must be 
for a period of one academic year (or the equivalent thereof according 
to the standards of the learning institution) and the curriculum must 
include at least 40 hours of instruction in English and United States 
history and government.

Decisions, Appeals, Motions, and Certifications

When Will an Applicant Know That a Final Determination has Been Made on 
His or Her Adjustment Application?
    The applicant will be notified in writing of the Service's decision 
on his or her adjustment application. If the application is approved, 
the applicant will be so advised and will also be advised of the 
delivery of his or her Form I-551, Permanent Resident Card, and of the 
process for obtaining temporary evidence of alien registration. If the 
application is denied, the applicant will be notified of the Service's 
decision and the reason(s) for denial. The applicant will also be 
notified of his or her appellate rights. If the application was denied 
because the Service was unable to verify a prima facie claim for LIFE 
Legalization, the applicant will neither be eligible for, nor entitled 
to, employment authorization or advance parole. If the reasons for the 
denial do not include inability to verify application for class 
membership in the CSS, LULAC, or Zambrano lawsuit or failure to present 
a prima facie claim for LIFE Legalization, and the applicant appeals 
the denial and was entitled to employment authorization and advance 
parole at the time of the decision of denial, he or she will continue 
to be eligible to apply for and be entitled to employment authorization 
and advance parole until a final decision is made on his or her appeal.
What Documentation Will be Issued if the Adjustment Application Is 
Approved at the Time of the Interview?
    If, at the time of the interview, the Service officer conducting 
the interview determines that the application is approvable, the 
applicant will receive temporary evidence of LPR status. A Form I-551 
will be mailed to the applicant at a later date; therefore, the 
applicant must maintain possession of any temporary evidence of LPR 
status until receipt of the Form I-551.
What Documentation Will Be Issued If, at the Time of the Interview, the 
Service Determines That the Adjustment Application Cannot Be Approved?
    If the application cannot be approved at the time of the interview, 
and further review of the application and supporting documents is 
required, the applicant will be notified in writing of any subsequent 
decision rendered by the Service. Applicants should keep this notice 
for their records. If the application has been approved, a Form I-551 
will be mailed separately to the applicant. To obtain temporary 
evidence of LPR status, the applicant may present the original approval 
notice and his or her passport or other photo identification at his or 
her local Service office. The local Service office will issue temporary 
evidence of LPR status after verifying the approval of the adjustment 
of status application. If the applicant is not in possession of a 
passport in which such temporary evidence may be endorsed, he or she 
should also submit two photographs meeting the specifications described 
in the instructions to the Form I-485 so that the Service may prepare 
and issue temporary evidence of LPR status.
What Happens if the Application Is Denied?
    Whenever an application for adjustment of status under LIFE 
Legalization is denied, the alien, and his or her attorney or 
representative, shall be given written notice stating the specific 
reason(s) for the denial. The denial shall also contain advice to the 
alien that he or she may appeal the decision, and shall provide 
instructions on when and where the appeal must be filed. The alien 
shall be advised that he or she may submit additional evidence, and a 
supporting brief, with the appeal. The notice of denial shall 
additionally provide a notice to the alien that if he or she fails to 
file an appeal from the decision, the notice of denial will serve as a 
final notice of ineligibility.
What Is the Appeals Process?
    All appeals from decisions of denials of applications under LIFE 
Legalization must be filed on Form I-290B, Notice of appeal to the 
Administrative Appeals Unit (AAU). Appeals filed from within the United 
States must be filed with the Service office that denied the 
application within 30 days of the date the decision was mailed. Any 
appeal that is received subsequent to this 30-day period will not be 
accepted for processing and the decision of denial will be considered 
to be a final notice of ineligibility. If an applicant's last known 
address of record was outside the United States, and the notice of 
denial was mailed to that foreign address, then the appeal must be 
received within 60 days of the date the decision was mailed. Any appeal 
from abroad that is received subsequent to this 60-day period will not 
be accepted for processing and the decision of denial will be 
considered a final notice of ineligibility.
    All appeals must be properly completed and must be accompanied by 
the appropriate fee of $110. Upon receipt of an appeal, the 
administrative record will be forwarded to the Administrative Appeals 
Office (AAO) for review and decision. The decision on appeal will be 
provided to the alien, and his or her attorney or representative, in 
writing, and if the appeal is dismissed, it shall include a final 
notice of ineligibility. No further administrative appeal shall lie 
from this decision, nor may the application be filed or reopened before 
an Immigration Court or the Board of Immigration Appeals during 
exclusion, removal, or deportation proceedings.
    If the appeal is sustained, and the application approved, the alien 
will be advised in writing of the decision and of the process for 
obtaining temporary evidence of alien registration. A Form I-551 will 
be mailed separately to the alien.
How Did the Service Decide That the LIFE Legalization Application Fee 
Should Be $330?
    The Service believes that it is reasonable to identify a current 
application whose process is similar to the requirements outlined under 
LIFE Legalization in order to select an appropriate fee to charge 
applicants under LIFE Legalization. Aliens filing LIFE Legalization 
applications are applying to adjust their status to that of LPR. The 
current Service application whose process is most similar to the LIFE 
Legalization process is the Form I-485, which is currently used by 
other

[[Page 29668]]

aliens to adjust their status to that of LPR. In developing fees, the 
Service must comply with guidance provided in the Office of Management 
and Budget (OMB) Circular A-25. This guidance directs Federal agencies 
to charge the ``full cost'' of providing benefits when calculating fees 
that provide a special benefit to recipients. Section 6(d) of OMB 
Circular A-25 defined ``full cost'' as including ``all direct and 
indirect costs to any part of the Federal Government of providing a 
good, resource, or service.'' Therefore, the Service referred to its 
most recent fee review--the FY 2000 ``Immigration Examinations Fee 
Account Review.'' This review conducted an in-depth analysis of both 
direct and indirect costs using an activity-based costing methodology. 
The fee review identified the current full cost of the Form I-485 to be 
$330. The Service determined that a $330 fee for the Form I-485 would 
underwrite the Service's processing and administrative costs incurred 
in the Form I-485 adjudication process, such as staffing, training of 
Service personnel, and adjudication of applications. The Service will 
thus use $330 for the fee for LIFE Legalization applications until the 
next biennial fee review, as required by the Chief Financial Officers 
Act of 1990, Public Law 101-576, 104 Stat. 2838. The Service will make 
the fee review available to the public upon request.

LIFE Act Amendments Family Unity Provisions

Eligibility

Who is Eligible for LIFE Act Amendments Family Unity Benefits?
    Aliens who might benefit from the Family Unity provisions of the 
LIFE Act Amendments are those who:
    1. Are currently in the United States;
    2. Are the spouse or unmarried child of an alien who is eligible 
for adjustment under LIFE Legalization; and
    3. Entered the United States before December 1, 1988, and were 
residing in the United States on such date.
    Section 1504 of the LIFE Act Amendments extends immigration 
benefits to an alien ``who is the spouse or unmarried child'' of an 
alien described in section 1104 of the LIFE Act. The LIFE Act 
Amendments, however, do not refer to a specific date on which that 
familial status is to be determined. Consistent with the purpose of the 
Family Unity program to provide temporary protection to keep families 
together that are on a path to legalize their status under the Act, the 
Service takes the position that an eligible spouse who was married to 
an eligible principal alien on the date of enactment, December 21, 
2000, but has since divorced, should no longer be entitled to Family 
Unity benefits after the divorce becomes final. On the other hand, a 
newly-married spouse would be able to get Family Unity benefits, if 
otherwise eligible, even if he or she was not married to the principal 
alien on December 21, 2000.
    A more difficult issue, however, arises when an alien ``ages-out'' 
when he or she reaches his or her 21st birthday because he or she no 
longer meets the Act's definition of a ``child'', see 8 U.S.C. 
1101(b)(1). As section 1504(b) of the LIFE Act Amendments describes an 
eligible child as an alien who ``is'' the unmarried child of an alien 
described in section 1104(b) of the LIFE Act, it is not apparent from 
the face of the statutory language that Family Unity protection can be 
extended to aliens who were children on December 21, 2000, but who 
``age-out'' of the Act's definition of child by virtue of reaching 
their 21st birthday. Congress's precise intention is not clear in this 
regard, although the limited legislative history available states that 
the objective was to ensure that family members ``are treated in the 
same manner as the family members of those who adjusted their status 
under IRCA.'' Joint Memorandum Concerning the Legal Immigration Family 
Equity Act of 2000 and the LIFE Act Amendments of 2000, 146 Cong. Rec. 
S11851 (Dec. 15, 2000). However, the language of section 1504 is 
different from section 301 of the Immigration Act of 1990 (IMMACT 90), 
Public Law 101-649, 104 Stat. 4978, 5029, which specifically referred 
to status as a child as of a particular date in the past.
    Given the need to implement an interpretation of the statute that 
is consistent as it applies to both spouses and children, and in view 
of the interpretation of other provisions of the immigration laws 
relating to a child who ``ages-out'' upon reaching the age of 21, the 
Department interprets section 1504(b) of the LIFE Act Amendments to 
require the requisite familial status (the spousal or child 
relationship) both at the time when the application for Family Unity 
benefits is adjudicated and thereafter. If the familial status does not 
exist at the time of adjudication the alien will not be eligible for 
Family Unity benefits. If the status as a spouse or child exists at the 
time of adjudication, but ceases to exist thereafter, the alien will no 
longer be eligible for Family Unity benefits. Similarly, an alien who 
ceases to be an unmarried child because of the alien's marriage is no 
longer eligible.
    The fact that an alien is ineligible for Family Unity benefits 
under section 1504 of the LIFE Act Amendments solely because he or she 
has reached the age of 21 after December 21, 2000, or for other 
reasons, does not mean that the alien necessarily will be removed from 
the United States. The Service has in place guidance for the exercise 
of prosecutorial discretion that provide for the assessment, on a case-
by-case basis, of whether seeking the removal of a particular alien 
serves a substantial Federal enforcement interest. Factors to be 
considered include, among others, humanitarian concerns (including 
family ties in the United States) and whether there is a legal avenue 
available for the alien to regularize his or her status if not removed 
from the United States. Whether an alien who is no longer eligible for 
Family Unity benefits is eligible for employment authorization depends 
upon whether the alien falls within one of the classes of aliens 
authorized employment in 8 CFR 274a.12. The Service is also considering 
whether to seek clarification of the scope of the Family Unity benefit 
as applied to ``age-out'' children through statutory amendment.
    The LIFE Act Amendments also authorize the Attorney General to 
parole aliens who are no longer physically present in the United States 
into the United States so that they may obtain benefits under the LIFE 
Act Amendments Family Unity provisions. The Service is in the process 
of developing the specific procedures for implementing this provision 
of the LIFE Act Amendments. As such, the details will be discussed in a 
separate rulemaking at a later time. The parole provisions only apply 
to eligible family members of an alien who has already been granted 
LIFE Legalization, and do not apply to LIFE Legalization applicants or 
their families.

Description of Program

What Is the Difference Between the Existing Family Unity Program and 
the Family Unity Provisions of the LIFE Act Amendments?
    The statutory eligibility requirements imposed on aliens in order 
to qualify for benefits under the existing Family Unity Program (FUP) 
implementing section 301 of IMMACT 90, and the LIFE Act Amendments 
Family Unity provisions are different. In order to benefit from the 
FUP, the applicant had to be the spouse or unmarried child (under the 
age of 21) of an alien who had already adjusted status to that of 
either temporary or permanent resident under section 245A of the Act (8 
U.S.C. 1255a). Also, in

[[Page 29669]]

order to qualify, the FUP applicants were required to establish entry 
into the United States before May 5, 1988, residence on that date, 
continuous residence in the United States since that date, and that a 
qualifying relationship with the legalized alien existed as of May 5, 
1988. 8 CFR 236.12. The specific eligibility requirements for aliens 
who might benefit from the LIFE Act Amendments Family Unity provisions 
will be discussed in more detail later in this interim rule. In 
general, however, aliens who might benefit from the LIFE Act Amendments 
Family Unity provisions must establish entry into the United States 
before December 1, 1988, residence in the United States on December 1, 
1988, and that a qualifying relationship with an alien who is eligible 
for adjustment of status under LIFE Legalization currently exists. 
Thus, while the old FUP is focused on unifying families that were in 
existence as of May 5, 1988, the Family Unity provisions of the LIFE 
Act Amendments serve to benefit only those families that are in 
existence after the date of enactment of the LIFE Act Amendments.
    Another difference between the two programs is that the current FUP 
regulations ban FUP beneficiaries from receiving Federal financial 
assistance. Specifically, 8 CFR 236.17 states that any spouse or child 
who receives Family Unity benefits through an alien who received lawful 
temporary residence, and who was banned from receiving certain public 
welfare assistance for a period of 5 years pursuant to section 245A(h) 
of the Act, is similarly banned from receiving certain public welfare 
assistance. The LIFE Act explicitly states that section 245A(h) of the 
Act does not apply to aliens adjusting status under LIFE Legalization. 
The inapplicability of section 245A(h) of the Act to aliens adjusting 
status under LIFE Legalization, however, does not mean that they are 
generally eligible for all public benefits. The Personal Responsibility 
and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, 
110 Stat. 2105, as amended, limits the eligibility of lawful permanent 
residents and other ``qualified aliens,'' as defined by the welfare 
reform law, for certain Federal, state, and local means-tested public 
benefits. 8 U.S.C. 1601 through 1625. Individuals are encouraged to 
contact the relevant benefit-granting agency for information about 
their eligibility for public benefit programs.

Ineligible Aliens

Who Is Ineligible for Family Unity Benefits Under the LIFE Act 
Amendments?
    Pursuant to section 1504(d) of the LIFE Act Amendments (and by 
incorporation, section 241(b)(3)(B) of the Act, 8 U.S.C. 
1231(b)(3)(B)), an alien is ineligible for Family Unity benefits if the 
Service finds or determines that:
    1. The alien has been convicted of a felony or of three or more 
misdemeanors in the United States;
    2. The alien has ordered, incited, assisted, or otherwise 
participated in the persecution of an individual because of the 
individual's race, religion, nationality, membership in a particular 
social group, or political opinion;
    3. The alien has been convicted by a final judgment of a 
particularly serious crime and is a danger to the community of the 
United States;
    4. There are serious reasons to believe that the alien has 
committed a serious nonpolitical crime outside the United States before 
the alien arrived in the United States; or
    5. There are reasonable grounds to believe that the alien is a 
danger to the security of the United States.
    It must be noted that under section 1504(a)(1) of the LIFE Act 
Amendments, an alien granted Family Unity benefits under the provisions 
of the LIFE Act Amendments may not be removed on certain grounds. The 
grounds on which such an alien may not be removed are limited to the 
following:
    1. Section 237(a)(1)(A) of the Act (8 U.S.C. 1227(a)(1)(A)) (aliens 
who were inadmissible at the time of entry or adjustment of status), 
except that the alien may be removed if he or she is inadmissible 
because of a ground listed in section 212(a)(2) (criminal and related 
grounds) or in section 212(a)(3) (security and related grounds) of the 
Act;
    2. Section 237(a)(1)(B) of the Act (aliens present in the United 
States in violation of the Act or any other law of the United States);
    3. Section 237(a)(1)(C) of the Act (aliens who violated their 
nonimmigrant status or violated the conditions of entry); or
    4. Section 237(a)(3)(A) of the Act (aliens who failed to comply 
with the change of address notification requirements).
    Consistent with the existing regulations implementing section 301 
of IMMACT 90, if an alien is removable on a ground that is not 
protected by section 1504(a)(1) of the LIFE Act Amendments, the Service 
finds that it would be inappropriate to grant Family Unity benefits to 
that alien. Accordingly, aliens in such circumstance will not be 
afforded Family Unity benefits.

Filing

How Does an Alien Who Is Present in the United States Apply for 
Benefits Under the Family Unity Provisions of the LIFE Act Amendments?
    Aliens who are eligible for benefits under the Family Unity 
provisions of the LIFE Act Amendments and who are currently residing in 
the United States should file a Form I-817. The Form I-817 must be 
submitted by mail to: United States Immigration and Naturalization 
Service, Post Office Box 7219, Chicago, IL 60607-7219. An alien who is 
eligible for benefits under the Family Unity provisions of the LIFE Act 
Amendments and files a Form I-817 on or before May 31, 2002, need only 
demonstrate that he or she has a qualifying relationship to an alien 
who is eligible to apply for LIFE Legalization. Any Form I-817 that is 
filed on or after June 1, 2002 (i.e., after the statutorily mandated 
LIFE Legalization application period has ended), must include evidence 
that the alien through whom the applicant is alleging eligibility for 
Family Unity benefits has filed a Form I-485 pursuant to LIFE 
Legalization. If a Form I-817 is submitted on or before May 31, 2002, 
but is not adjudicated until on or after June 1, 2002, the Service will 
request that the applicant submit evidence that the alien through whom 
the applicant is alleging eligibility for Family Unity benefits has 
filed a Form I-485. When the Form I-817 is filed, the alien must 
include:
    1. The required fee of $120.00;
    2. Four photographs as described in the Form I-817 instructions;
    3. Documentary evidence of his or her qualifying relationship to 
the alien eligible for adjustment of status under LIFE Legalization;
    4. Documentary evidence of his or her entry into the United States 
prior to December 1, 1988;
    5. Documentary evidence of his or her residence in the United 
States on December 1, 1988;
    6. Documentary evidence that his or her spouse or parent applied 
for class membership in the CSS, LULAC, or Zambrano lawsuit before 
October 1, 2000;
    7. If the Form I-817 is filed on or after June 1, 2002, documentary 
evidence that his or her spouse or parent has filed a Form I-485 
seeking adjustment of status under LIFE Legalization; and
    8. When required, a fingerprint fee of $25.00.
    The instructions to the Form I-817 provide examples of documents 
that can

[[Page 29670]]

be submitted by an individual to prove eligibility under these 
provisions. The instructions also advise under what circumstances a 
fingerprint fee is required.
Will the Family Unity Applicants Be Required To Appear for an 
Interview?
    Not every applicant under the Family Unity provisions of the LIFE 
Act Amendments will be required to appear before a Service officer for 
an interview. If, however, a Service officer believes that an interview 
would be necessary to review evidence of the applicant's eligibility, 
then one will be scheduled. The Family Unity applicant would be 
notified in writing of the time and place of the interview.
How Will a Family Unity Applicant Know That a Final Determination has 
Been Made on His or Her Form I-817?
    The Service will notify the applicant in writing of any decision 
made on the Form I-817. If the Form I-817 is approved, the Family Unity 
beneficiary will be so notified and will receive an employment 
authorization document (EAD). The EAD will be valid for 1 year. If the 
Form I-817 is denied, the Family Unity applicant will be so notified. 
There is no appeal from the denial of a Form I-817.
Will a Family Unity Beneficiary Receive Automatic Extensions of His or 
Her EAD at the End of the 1-Year Period?
    No, the Service will not automatically extend a Family Unity 
beneficiary's EAD upon its expiration. The Service is in the process of 
finalizing procedures that must be followed by all Family Unity 
beneficiaries to extend their EADs. These procedures will be discussed 
in a separate rulemaking at a later time.

Protection From Removal and Eligibility for Employment

Is a Family Unity Applicant Entitled to Employment Authorization While 
the Form I-817 Is Pending?
    No, the initial filing of a Form I-817 does not entitle the 
applicant to employment authorization from the Service. If and when the 
applicant's initial Form I-817 is approved, the alien will receive 
Family Unity benefits prescribed by law, including employment 
authorization.
Is the Grant of Family Unity Benefits Under the LIFE Act Amendments a 
Period of Authorized Stay Such That the Beneficiary Is Not Accruing 
Unlawful Presence Within the Scope of Section 212(a)(9)(B) of the Act?
    Yes, if an applicant is granted Family Unity benefits pursuant to 
the LIFE Act Amendments, he or she will be deemed to have received an 
authorized period of stay approved by the Attorney General. Such 
authorized period of stay will be deemed to begin as of the date the 
Form I-817 was filed. Accordingly, a Family Unity beneficiary will not 
accrue unlawful presence as long as he or she retains Family Unity 
protection. If, however, a beneficiary under the Family Unity 
provisions of the LIFE Act Amendments has his or her benefits 
terminated by the Service, the former Family Unity beneficiary will 
begin accruing unlawful presence immediately from the date of such 
termination.

Travel Outside the United States

Is a Family Unity Applicant Allowed To Travel Outside the United States 
While the Form I-817 Is Pending?
    No, any applicant who departs the United States while his or her 
Form I-817 is pending will be deemed to have abandoned the application 
and the application will be denied. If a Form I-817 is approved, the 
Family Unity beneficiary will be allowed to travel to and from the 
United States provided he or she applies for advance parole, using Form 
I-131, before departing the United States.

Termination of Family Unity Benefits

Can an Alien's Family Unity Benefits Ever Be Terminated?
    Yes, the Service may terminate Family Unity benefits whenever the 
necessity for such action comes to the attention of the Service. The 
following bases of termination are founded upon the grounds of 
ineligibility for Family Unity benefits discussed earlier in this 
interim rule. These grounds for termination include, but are not 
limited to:
    1. A determination is made that Family Unity benefits were acquired 
as the result of fraud or willful misrepresentation of a material fact;
    2. The Family Unity beneficiary commits an act or acts which render 
him or her ineligible for benefits under the LIFE Act Amendments Family 
Unity provisions; or
    3. The alien, upon whose status LIFE Act Family Unity benefits are 
based, is issued a final determination of ineligibility for LIFE 
Legalization;
    4. Failure of the alien, upon whose status LIFE Act Family Unity 
benefits are based, to apply for LIFE Legalization within the statutory 
application period;
    5. The alien, upon whose status LIFE Act Family Unity benefits are 
based, loses his or her status as a LPR;
    6. A qualifying relationship to the alien, upon whose status LIFE 
Act Family Unity benefits are based, no longer exists.
    The LIFE Act Amendments do not specifically address the subject of 
termination. However, the reference in section 1504(a)(2) of the LIFE 
Act Amendments to ``the period of time in which protection is 
provided,'' and the general principle that an agency can act through 
regulation to fill gaps in a statute in a way that reasonably gives 
effect to the statutory scheme and avoids absurd results, support the 
Service's rulemaking to ensure, for example, that a benefit that is 
improvidently granted as a result of fraud may be withdrawn. The 
grounds for termination include situations in which the principal alien 
does not apply, or is found ineligible for legalization. As the very 
name ``Family Unity'' implies, a protection that is derivatively based 
upon another alien who has an opportunity to legalize his or her 
status, no longer carries out the reasonable statutory intention if 
that alien is ineligible to legalize and lacks protection from removal. 
Rather, this would place the derivative family members in a more 
advantageous immigration position than the principal alien, yet in a 
limbo situation in which they could not be removed on certain grounds 
of deportation but would not have any prospect of adjusting their 
status to lawful permanent residence. The rule avoids this absurd 
result by filling the gap in the LIFE Act Amendments by providing 
reasonable bases and procedures for termination.
What Is the Termination Process?
    If the Service determines that an alien who received benefits 
pursuant to the LIFE Act Amendments Family Unity provisions is no 
longer eligible for such benefits, the alien will be advised in writing 
of such determination. The alien will be advised of the Service's 
intent to terminate and of the reason(s) thereof. The alien will be 
given 30 days to respond to the notice of intent to terminate and to 
submit evidence in his or her behalf. The alien will then be advised in 
writing of the Service's final determination.

Congressional Review Act

    Although this rule falls under the category of major rule as that 
term is

[[Page 29671]]

defined in 5 U.S.C. 804(2)(A), the Department finds that under 5 U.S.C. 
808(2) good cause exists for implementation of this rule on June 1, 
2001. The reason for immediate implementation is as follows: The 
provisions of Public Law 106-553, which was enacted on December 21, 
2000, require that the Service publish implementing regulations not 
later than 120 days after the date that Public Law 106-553 was enacted. 
Accordingly, the Service is required to issue regulations immediately. 
Moreover, because the application period prescribed under the LIFE Act 
for eligible aliens to apply for adjustment under section 245A of the 
Act, as modified by Public Law 106-553, does not begin until the 
Attorney General issues this regulation, and given the public interest 
in providing these important benefits and protections, the Attorney 
General has determined to issue this regulation as an interim final 
rule, effective immediately.

Interim Rule Justification

    The Service is implementing this rule on an interim final basis 
with a request for post promulgation comments. The provisions of Public 
Law 106-553 require that the Attorney General issue implementing 
regulations no later than 120 days after the date that the legislation 
was enacted on December 21, 2000. Moreover, section 245A(g)(3) of the 
Act (8 U.S.C. 1255a(g)(3)), which was not modified by Public Law 106-
553, provides that regulations issued pursuant to section 245A of the 
Act may be prescribed to take effect on an interim final basis if the 
Attorney General determines that it is necessary in order to implement 
that section in a timely manner. Because the application period 
prescribed under the LIFE Act for eligible aliens to apply for 
adjustment under section 245A of the Act, as modified by Public Law 
106-553, does not begin until the Attorney General issues this 
regulation, and given the public interest in providing these important 
benefits and protections, the Attorney General has determined that 
timely implementation of the LIFE Legalization program requires the 
issuance of this regulation on an interim final basis.

Good Cause Exception

    The foregoing statutory provisions notwithstanding, the Department 
also finds that this regulation falls within the ``good cause'' 
exception found at 5 U.S.C. 553(b)(3)(B) and (d)(3) as the immediate 
effectiveness of this rule is necessary in order to allow aliens to 
apply for these important benefits and protections at their earliest 
opportunity. Accordingly, prior notice and public comment on this 
interim rule is unnecessary and contrary to the public interest.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities because of the 
following factors. The rule applies to individuals, not small entities, 
and allows certain class action participants who entered before January 
1, 1982, to apply for adjustment of status. It, therefore, has no 
effect on small entities as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely effect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is 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 result in an effect on the economy of:
    $152,379,000 for 2001;
    $77,352,000 for 2002; and
    $34,260,000 for 2003.
    This increase is directly associated with the expected increase in 
the number of applications as a result of Public Laws 106-553 and 106-
554, and the increase in fee that is provided for in section 245A(c)(7) 
of the Act (8 U.S.C. 1255a(c)(7)). The Service projects that in fiscal 
year 2001, a total of 789,000 applications will be submitted because of 
the LIFE Act Legalization and Family Unity provisions as follows:
    300,000 Forms I-485;
    150,000 Forms I-131;
    15,000 Forms I-193;
    300,000 Forms I-765; and
    24,000 Forms I-817.
    The Service projects that in fiscal year 2002, a total of 568,000 
applications will be submitted as follows:
    100,000 Forms I-485;
    55,000 Forms I-131;
    5,000 Forms I-193;
    400,000 Forms I-765; and
    8,000 Forms I-817.
    The Service projects that in fiscal year 2003, a total of 328,000 
applications will be submitted as follows:
    100,000 Forms I-130;
    20,000 Forms I-131;
    200,000 Forms I-765; and
    8,000 Forms I-817.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Executive Order 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.

Executive Order 12988: Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Family Assessment

    The Attorney General has reviewed this regulation and has 
determined that it may affect family well-being as that term is defined 
in section 654 of the Treasury General Appropriations Act, 1999, Public 
Law 105-277, 112 Stat. 2681, Div. A. Accordingly, the Attorney General 
has assessed this action in accordance with the criteria specified by 
section 654 (c)(1). In this rule, the Family Unity provisions of the 
LIFE Act Amendments positively affect the stability of the family by 
providing a means for the family unit to remain intact.

Paperwork Reduction Act of 1995

    This rule provides for the use of a new Form I-485 Supplement D and 
the revision of Form I-817. These forms are considered information 
collection requirements under the Paperwork Reduction Act. Since the 
Service was required to publish regulations implementing Public Law 
106-553 within 120 days after enactment, the Service has requested and 
received emergency review and clearance by the Office of Management and 
Budget

[[Page 29672]]

(OMB) in accordance with the Paperwork Reduction Act. The emergency 
approval is only valid for 180 days.
    A regular review of this information will also be undertaken. 
Written comments are encouraged and will be accepted until July 31, 
2001. Submit comments to: Immigration and Naturalization Service, 
Policy Directives and Instructions Branch, 425 I Street NW, Room 4034, 
Washington, DC 20536. Your comments should address one or more of the 
following points.
    1. Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    2. Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    3. Enhance the quality, utility, and clarity of the information to 
be collected; and
    4. Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    The Service, in calculating the overall burden the Form I-485 
supplement D requirement will place on the public, estimates that 
approximately 400,000 applicants will apply for adjustment of status 
under LIFE Legalization. The Service has estimated that it takes 
applicants five and one quarter (5.25) hours to complete Form I-485. 
The Service also estimates that it will take the applicants 
approximately one (1) additional hour to complete the Form I-485 with 
the supplement D. As such, the Service estimates that it will take the 
applicants a total of six and one quarter (6.25) hours to complete the 
LIFE Legalization application. This amounts to 2.5 million total annual 
burden hours for the collection of this information.
    The Service, in calculating the overall burden the revised Form I-
817 requirement will place on the public, estimates that approximately 
40,000 applicants will apply for Family Unity benefits under the LIFE 
Act Amendments. The Service also estimates that it will take the 
applicants approximately two and one half (2.5) hours to complete the 
application. This amounts to 100,000 total annual burden hours for the 
collection of this information.
    Additionally, comments regarding this burden estimate or any aspect 
of these information collection requirements, including suggestions for 
reducing the burden, should be directed to the Immigration and 
Naturalization Service, Policy Directives and Instructions Branch, 425 
I Street, N.W., Room 4034, Washington, DC 20536; Attention: Richard A. 
Sloan, Director, 202-514-3291.

List of Subjects

8 CFR Part 100

    Organization of functions (Government agencies).

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 245a

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedures, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 100--STATEMENT OF ORGANIZATION

    1. The authority citation for part 100 continues to read as 
follows:

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


Sec. 100.4  [Amended]

    2. Section 100.4 is amended in paragraph (e) by adding the entry 
for the ``Missouri Service Center, Lee's Summit, Missouri'' immediately 
after the entry for ``Vermont Service Center, St. Albans, Vermont''.

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

    3. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR 14874, 
15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

    4. Section 103.2 is amended by revising the first sentence in 
paragraph (a)(7)(i), to read as follows:


Sec. 103.2  Applications, petitions, and other documents.

* * * * *
    (a) * * *
    (7) * * *
    (i) General. An application or petition received in a Service 
office shall be stamped to show the time and date of actual receipt 
and, unless otherwise specified in part 204 or part 245 or part 245a of 
this chapter, shall be regarded as properly filed when so stamped, if 
it is signed and executed and the required filing fee is attached or a 
waiver of the filing fee is granted. * * *
* * * * *
    5. Section 103.7 is amended by adding a sentence at the end of the 
entry for ``Form I-485'' in paragraph (b)(1), to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-485. * * * All applicants filing for adjustment under LIFE 
Legalization (Public Law 106-553) must pay $330.00.
* * * * *

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

    6. The authority citation for part 236 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 
sec. 303(b) of Div. C of Pub. L. No. 104-208; 8 CFR part 2.

    7. Section 236.14(a) is amended by revising the second sentence to 
read as follows:


Sec. 236.14  Filing.

    (a) * * * A Form I-817, Application for Family Unity Benefits, must 
be filed with the correct fee required in Sec. 103.7(b)(1) of this 
chapter and the required supporting documentation. * * *
* * * * *

[[Page 29673]]

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR 
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245a OF 
THE IMMIGRATION AND NATIONALITY ACT

    8. The authority citation for part 245a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1255a, and 1255a note.

    9. Sections 245a.1 through 245a.5 are designated as Subpart A.
    10. The heading for Subpart A is added to read:

Subpart A--Immigration Reform and Control Act of 1986 (IRCA) 
Legalization Provisions

    11. Subparts B and C are added to read as follows:
Subpart B--Legal Immigration Family Equity (LIFE) Act Legalization 
Provisions
Sec.
245a.10   Definitions.
245a.11   Eligibility to adjust to LPR status.
245a.12   Filing and applications.
245a.13   During pendency of application.
245a.14   Application for class membership in the CSS, LULAC, or 
Zambrano lawsuit.
245a.15   Continuous residence in an unlawful status since prior to 
January 1, 1982, through May 4, 1988.
245a.16   Continuous physical presence from November 6, 1986, 
through May 4, 1988.
245a.17   Citizenship skills.
245a.18   Ineligibility and applicability of grounds of 
inadmissibility.
245a.19   Interviews.
245a.20   Decisions, appeals, motions, and certifications.
245a.21   Confidentiality.
245a.22   Rescission.
245a.23 through 245a.29   [Reserved]
Subpart C--LIFE Act Amendments Family Unity Provisions
245a.30   Description of program.
245a.31   Eligibility.
245a.32   Ineligible aliens.
245a.33   Filing.
245a.34   Protection from removal, eligibility for employment, and 
period of authorized stay.
245a.35   Travel outside the United States.
245a.36   [Reserved]
245a.37   Termination of Family Unity Program benefits.

Subpart B--Legal Immigration Family Equity (LIFE) Act Legalization 
Provisions


Sec. 245a.10  Definitions.

    In this Subpart B, the terms:
    Eligible alien means an alien who, before October 1, 2000, filed 
with the Attorney General a written claim for class membership, with or 
without filing fee, pursuant to a court order issued in the case of:
    (1) Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno 
v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS);
    (2) League of United Latin American Citizens v. INS, vacated sub 
nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) 
(LULAC); or
    (3) Zambrano v. INS, vacated, 509 U.S. 918 (1993) (Zambrano).
    Lawful Permanent Resident (LPR) means the status of having been 
lawfully accorded the privilege of residing permanently in the United 
States as an immigrant in accordance with the immigration laws, such 
status not having changed.
    LIFE Act means the Legal Immigration Family Equity Act and the LIFE 
Act Amendments of 2000.
    LIFE Legalization means the provisions of section 1104 of the LIFE 
Act and section 1503 of the LIFE Act Amendments.
    Prima facie means eligibility is established if an ``eligible 
alien'' presents a properly filed and completed Form I-485 and specific 
factual information which in the absence of rebuttal will establish a 
claim of eligibility under this Subpart B.


Sec. 245a.11  Eligibility to adjust to LPR status.

    An eligible alien, as defined in Sec. 245a.10, may adjust status to 
LPR status under LIFE Legalization if:
    (a) He or she properly files, with fee, Form I-485, Application to 
Register Permanent Residence or Adjust Status, with the Service during 
the application period beginning June 1, 2001, and ending May 31, 2002;
    (b) He or she entered the United States before January 1, 1982, and 
resided continuously in the United States in an unlawful status since 
that date through May 4, 1988;
    (c) He or she was continuously physically present in the United 
States during the period beginning on November 6, 1986, and ending on 
May 4, 1988;
    (d) He or she is not inadmissible to the United States for 
permanent residence under any provisions of section 212(a) of the Act, 
except as provided in Sec. 245a.18, and that he or she:
    (1) Has not been convicted of any felony or of three or more 
misdemeanors committed in the United States;
    (2) Has not assisted in the persecution of any person or persons on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion; and
    (3) Is registered or registering under the Military Selective 
Service Act, if the alien is required to be so registered; and
    (e) He or she can demonstrate basic citizenship skills.


Sec. 245a.12  Filing and applications.

    (a) When to file. The application period begins on June 1, 2001, 
and ends on May 31, 2002. To benefit from the provisions of LIFE 
Legalization, an alien must properly file an application for adjustment 
of status, Form I-485, with appropriate fee, to the Service during this 
1-year application period as described in this section. All 
applications, whether filed in the United States or filed from abroad, 
must be postmarked on or before May 31, 2002, to be considered timely 
filed.
    (1) If the postmark is illegible or missing, and the application 
was mailed from within the United States, the Service will consider the 
application to be timely filed if it is received on or before June 3, 
2002.
    (2) If the postmark is illegible or missing, and the application 
was mailed from outside the United States, the Service will consider 
the application to be timely filed if it is received on or before June 
14, 2002.
    (3) If the postmark is made by other than the United States Post 
Office, and is filed from within the United States, the application 
must bear a date on or before May 31, 2002, and must be received on or 
before June 3, 2002.
    (4) If an application filed from within the United States bears a 
postmark that was made by other than the United States Post Office, 
bears a date on or before May 31, 2002, and is received after June 3, 
2002, the alien must establish:
    (i) That the application was actually deposited in the mail before 
the last collection of the mail from the place of deposit which was 
postmarked by the United States Post Office May 31, 2002; and
    (ii) That the delay in receiving the application was due to a delay 
in the transmission of the mail; and
    (iii) The cause of such delay.
    (5) If an application filed from within the United States bears 
both a postmark that was made by other than the United States Post 
Office and a postmark that was made by the United States Post Office, 
the Service shall disregard the postmark that was made by other than 
the United States Post Office.
    (6) If an application filed from abroad bears both a foreign 
postmark and a postmark that was subsequently made by the United States 
Post Office, the Service shall disregard the postmark

[[Page 29674]]

that was made by the United States Post Office.
    (7) In all instances, the burden of proof is on the applicant to 
establish timely filing of an application for LIFE Legalization.
    (b) Filing of applications in the United States. The Service has 
jurisdiction over all applications for the benefits of LIFE 
Legalization under this Subpart B. All applications filed with the 
Service for the benefits of LIFE Legalization must be submitted by mail 
to the Service. After proper filing of the application, the Service 
will instruct the applicant to appear for fingerprinting as prescribed 
in Sec. 103.2(e) of this chapter. The Director of the Missouri Service 
Center shall have jurisdiction over all applications filed with the 
Service for LIFE Legalization adjustment of status, unless the Director 
refers the applicant for a personal interview at a local Service office 
as provided in Sec. 245a.19.
    (1) Aliens in exclusion, deportation, or removal proceedings, or 
who have a pending motion to reopen or motion to reconsider. An alien 
who is prima facie eligible for adjustment of status under LIFE 
Legalization who is in exclusion, deportation, or removal proceedings 
before the Immigration Court or the Board of Immigration Appeals 
(Board), or who is awaiting adjudication of a motion to reopen or 
motion to reconsider filed with the Immigration Court of the Board, may 
request that the proceedings be administratively closed or that the 
motion filed be indefinitely continued, in order to allow the alien to 
pursue a LIFE Legalization application with the Service. In the request 
to administratively close the matter or indefinitely continue the 
motion, the alien must include documents demonstrating prima facie 
eligibility for the relief, and proof that the application for relief 
had been properly filed with the Service as prescribed in this section. 
With the concurrence of Service counsel, if the alien appears eligible 
to file for relief under LIFE Legalization, the Immigration Court or 
the Board, whichever has jurisdiction, shall administratively close the 
proceeding or continue the motion indefinitely.
    (2) If an alien has a matter before the Immigration Court or the 
Board that has been administratively closed for reasons unrelated to 
this Subpart B, the alien may apply before the Service for LIFE 
Legalization adjustment of status.
    (3) Aliens with final orders of exclusion, deportation, or removal. 
An alien, who is prima facie eligible for adjustment of status under 
LIFE Legalization, and who is subject to a final order of exclusion, 
deportation, or removal, may apply to the Service for LIFE Legalization 
adjustment.
    (c) Filing of applications from outside the United States. An 
applicant for LIFE Legalization may file an application for LIFE 
Legalization from abroad. An application for LIFE Legalization filed 
from outside the United States shall be submitted by mail to the 
Service according to the instructions on the application. The Missouri 
Service Center Director shall have jurisdiction over all applications 
filed with the Service for LIFE Legalization adjustment of status. 
After reviewing the application and all evidence with the application, 
the Service shall notify the applicant of any further requests for 
evidence regarding the application and, if eligible, how an interview 
will be conducted.
    (d) Application and supporting documentation. Each applicant for 
LIFE Legalization adjustment of status must file Form I-485. An 
applicant should complete Part 2 of Form I-485 by checking box ``h--
other'' and writing ``LIFE Legalization'' next to that block. Each 
application must be accompanied by:
    (1) The $330 application fee.
    (2) The $25 fee for fingerprinting if the applicant is between the 
ages of 14 and 75.
    (3) Evidence to establish identity, such as a passport, birth 
certificate, any national identity document from the alien's country of 
origin bearing photo and fingerprint, driver's license or similar 
document issued by a state if it contains a photo, or baptismal record/
marriage certificate.
    (4) A completed Form G-325A, Biographic Information Sheet, if the 
applicant is between the ages of 14 and 79.
    (5) A report of medical examination, as specified in Sec. 245.5 of 
this chapter.
    (6) Two photographs, as described in the instructions to Form I-
485.
    (7) Proof of application for class membership in CSS, LULAC, or 
Zambrano class action lawsuits as described in Sec. 245a.14.
    (8) Proof of continuous residence in an unlawful status since prior 
to January 1, 1982, through May 4, 1988, as described in Sec. 245a.15.
    (9) Proof of continuous physical presence from November 6, 1986, 
through May 4, 1988, as described in Sec. 245a.16.
    (10) Proof of citizenship skills as described in Sec. 245a.17.
    (e) Burden of proof. An alien applying for adjustment of status 
under this part has the burden of proving by a preponderance of the 
evidence that he or she has resided in the United States for the 
requisite periods, is admissible to the United States under the 
provisions of section 212(a) of the Act, and is otherwise eligible for 
adjustment of status under this Subpart B. The inference to be drawn 
from the documentation provided shall depend on the extent of the 
documentation, its credibility and amenability to verification as set 
forth in paragraph (f) of this section.
    (f) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. To meet his or her burden of proof, an applicant must 
provide evidence of eligibility apart from his or her own testimony. In 
judging the probative value and credibility of the evidence submitted, 
greater weight will be given to the submission of original 
documentation.
    (g) Secondary evidence. Except as otherwise provided in this 
paragraph, if the primary evidence required in this Subpart B is 
unavailable, church or school records, or other secondary evidence 
pertinent to the facts in issue, may be submitted. If such documents 
are unavailable, statements or other relevant documents may be 
submitted. In adjudicating the application for LIFE Legalization 
adjustment of status, the Service shall determine the weight to be 
given such secondary evidence. Secondary evidence may not be submitted 
in lieu of the documentation specified in paragraph (d)(3) of this 
section. However, subject to verification by the Service, if the 
evidence required to be submitted by the applicant is already contained 
in the Service's file relating to the applicant, the applicant may 
submit a statement to that effect in lieu of the actual documentation.


Sec. 245a.13  During pendency of application.

    (a) In general. When an eligible alien in the United States submits 
a prima facie application for adjustment of status under LIFE 
Legalization during the application period, until a final determination 
on his or her application has been made, the applicant:
    (1) May not be deported or removed from the United States;
    (2) Is authorized to engage in employment in the United States and 
is provided with an ``employment authorized'' endorsement or other 
appropriate work permit; and
    (3) Is allowed to travel and return to the United States as 
described at paragraph (e) of this section. Any domestic LIFE 
Legalization applicant who departs the United States while his or her 
application is pending without advance parole may be denied re-
admission to the United States as

[[Page 29675]]

described at paragraph (e) of this section.
    (b) Determination of filing of claim for class membership. With 
respect to each LIFE Legalization application for adjustment of status 
that is properly filed under this Subpart B during the application 
period, the Service will first determine whether or not the applicant 
is an ``eligible alien'' as defined under Sec. 245a.10 of this Subpart 
B by virtue of having filed with the Service a claim of class 
membership in the CSS, LULAC, or Zambrano lawsuit before October 1, 
2000. If the Service's records indicate, or if the evidence submitted 
by the applicant with the application establishes, that the alien had 
filed the requisite claim of class membership before October 1, 2000, 
then the Service will proceed to adjudicate the application under the 
remaining standards of eligibility.
    (c) Prima facie eligibility. Unless the Service has evidence 
indicating ineligibility due to criminal grounds of inadmissibility, an 
application for adjustment of status shall be treated as a prima facie 
application during the pendency of application, until the Service has 
made a final determination on the application, if:
    (1) The application was properly filed under this Subpart B during 
the application period; and
    (2) The applicant establishes that he or she filed the requisite 
claim for class membership in the CSS, LULAC, or Zambrano lawsuit.
    (d) Authorization to be employed in the United States while the 
application is pending.
    (1) Application for employment authorization. An applicant for 
adjustment of status under LIFE Legalization who wishes to obtain 
initial or continued employment authorization during the pendency of 
the adjustment application must file a Form I-765, Application for 
Employment Authorization, with the Service, including the fee as set 
forth in Sec. 103.7(b)(1) of this chapter. The applicant may submit 
Form I-765 either concurrently with or subsequent to the filing of the 
application for adjustment of status benefits on Form I-485.
    (2) Adjudication and issuance. Until a final determination on the 
application has been made, an eligible alien who submits a prima facie 
application for adjustment of status under this Subpart B shall be 
authorized to engage in employment in the United States and be provided 
with an ``employment authorized'' endorsement or other appropriate work 
permit in accordance with Sec. 274a.12(c)(24) of this chapter. An alien 
shall not be granted employment authorization pursuant to LIFE 
Legalization until he or she has submitted a prima facie application 
for adjustment of status under this Subpart B. If the Service finds 
that additional evidence is required from the alien in order to 
establish prima facie eligibility for LIFE Legalization, the Service 
shall request such evidence from the alien in writing. Nothing in this 
section shall preclude an applicant for adjustment of status under LIFE 
Legalization from being granted an initial employment authorization or 
an extension of employment authorization under any other provision of 
law or regulation for which the alien may be eligible.
    (e) Travel while the application is pending. This paragraph is 
authorized by section 1104(c)(3) of the LIFE Act relating to the 
ability of an alien to travel abroad and return to the United States 
while his or her LIFE Legalization adjustment application is pending. 
Parole authority is granted to the Missouri Service Center Director for 
the purposes described in this section and may only be exercised 
pursuant to the standards prescribed in section 212(d)(5) of the Act. 
Nothing in this section shall preclude an applicant for adjustment of 
status under LIFE Legalization from being granted advance parole or 
admission into the United States under any other provision of law or 
regulation for which the alien may be eligible.
    (1) An applicant for LIFE Legalization benefits applying from the 
United States should file, with his or her application for adjustment, 
a Form I-131, Application for Travel Document, with fee as set forth in 
Sec. 103.7(b)(1) of this chapter. The Service shall approve the Form I-
131 and issue an advance parole document, unless the Service finds that 
the alien's application does not establish a prima facie claim to 
adjustment of status under LIFE Legalization.
    (2) If an alien travels abroad and returns to the United States 
with a grant of advance parole, the Service shall presume that the 
alien is entitled to return under section 1104(c)(3)(B) of the LIFE 
Act, unless, in a removal or expedited removal proceeding, the Service 
shows by a preponderance of the evidence, that one or more of the 
provisions of Sec. 245a.11(d) makes the alien ineligible for adjustment 
of status under LIFE Legalization.
    (3) If an alien travels abroad and returns without a grant of 
advance parole, he or she shall be denied admission and shall be 
subject to removal or expedited removal unless the alien establishes, 
clearly and beyond doubt, that:
    (i) He or she filed an application for adjustment pursuant to LIFE 
Legalization during the application period that presented a prima facie 
claim to adjustment of status under LIFE Legalization; and,
    (ii) His or her absence was either a brief and casual trip 
consistent with an intention on the alien's part to pursue his or her 
LIFE Legalization adjustment application, or was a brief temporary trip 
that occurred because of the alien's need to tend to family obligations 
relating to a close relative's death or illness or similar family need. 
A single absence from the United States of more than thirty (30) days 
or an aggregate of all absences exceeding ninety (90) days shall not be 
deemed to be a brief and casual trip unless the alien can establish 
that due to emergent reasons, his or her return to the United States 
could not be accomplished within the time period(s) allowed.
    (4) An applicant for LIFE Legalization benefits who applies for 
admission into the United States shall not be subject to the provisions 
of section 212(a)(9)(B) of the Act.
    (5) Denial of admission under this section is not a denial of the 
alien's application for adjustment. The alien may continue to pursue 
his or her application for adjustment from abroad, and may also appeal 
any denial of such application from abroad. Such application shall be 
adjudicated in the same manner as other applications filed from abroad.
    (f) Stay of final order of exclusion, deportation, or removal. The 
filing of a LIFE Legalization adjustment application on or after June 
1, 2001, and on or before May 31, 2002, stays the execution of any 
final order of exclusion, deportation or removal. This stay shall 
remain in effect until there is a final decision on the LIFE 
Legalization application, unless the district director who intends to 
execute the order makes a formal determination that the applicant does 
not present a prima facie claim to LIFE Legalization eligibility 
pursuant to Secs. 245a.18(a)(1) or (a)(2), or Secs. 245.18a(c)(2)(i), 
(c)(2)(ii), or (c)(2)(iii), and serves the applicant with a written 
decision explaining the reason for this determination. Any such stay 
determination by the district director is not appealable. Neither an 
Immigration Judge nor the Board has jurisdiction to adjudicate an 
application for stay of execution of an exclusion, deportation, or 
removal order, on the basis of the alien's having filed a LIFE 
Legalization adjustment application.

[[Page 29676]]

Sec. 245a.14  Application for class membership in the CSS, LULAC, or 
Zambrano lawsuit.

    The Service will first determine whether an alien filed a written 
claim for class membership in the CSS, LULAC, or Zambrano lawsuit as 
reflected in the Service's indices, a review of the alien's 
administrative file with the Service, and by all evidence provided by 
the alien. An alien must provide with the application for LIFE 
Legalization evidence establishing that, before October 1, 2000, he or 
she was a class member applicant in the CSS, LULAC, or Zambrano 
lawsuit. An alien should include as many forms of evidence as the alien 
has available to him or her. Such forms of evidence include, but are 
not limited to:
    (a) An Employment Authorization Document (EAD) or other employment 
document issued by the Service pursuant to the alien's class membership 
in the CSS, LULAC, or Zambrano lawsuit (if a photocopy of the EAD is 
submitted, the alien's name, A-number, issuance date, and expiration 
date should be clearly visible);
    (b) Service document(s) addressed to the alien, or his or her 
representative, granting or denying the class membership, which 
includes date, alien's name and A-number;
    (c) The questionnaire for class member applicant under CSS, LULAC, 
or Zambrano submitted with the class membership application, which 
includes date, alien's full name and date of birth;
    (d) Service document(s) addressed to the alien, or his or her 
representative, discussing matters pursuant to the class membership 
application, which includes date, alien's name and A-number. These 
include, but are not limited to the following:
    (1) Form I-512, Parole authorization, or denial of such;
    (2) Form I-221, Order to Show Cause;
    (3) Form I-862, Notice to Appear;
    (4) Final order of removal or deportation;
    (5) Request for evidence letter (RFE); or
    (6) Form I-687 submitted with the class membership application.
    (e) Any other relevant document(s).


Sec. 245a.15  Continuous residence in an unlawful status since prior to 
January 1, 1982, through May 4, 1988.

    (a) General. The Service will determine whether an alien entered 
the United States before January 1, 1982, and resided in continuous 
unlawful status since such date through May 4, 1988, based on the 
evidence provided by the alien. An alien must provide with the 
application for LIFE Legalization evidence establishing that he or she 
entered the United States before January 1, 1982, and resided in 
continuous unlawful status since that date through May 4, 1988.
    (b) Evidence.
    (1) A list of evidence that may establish an alien's continuous 
residence in the United States can be found at Sec. 245a.2(d)(3).
    (2) The following evidence may establish an alien's unlawful status 
in the United States:
    (i) Form I-94, Arrival-Departure Record;
    (ii) Form I-20A-B, Certificate of Eligibility for Nonimmigrant (F-
1) Student Status--For Academic and Language Students;
    (iii) Form IAP-66, Certificate of Eligibility for Exchange Visitor 
Status;
    (iv) A passport; or
    (v) Nonimmigrant visa(s) issued to the alien.
    (c) Continuous residence. An alien shall be regarded as having 
resided continuously in the United States if:
    (1) No single absence from the United States has exceeded forty-
five (45) days, and the aggregate of all absences has not exceeded one 
hundred and eighty (180) days between January 1, 1982, and May 4, 1988, 
unless the alien can establish that due to emergent reasons, his or her 
return to the United States could not be accomplished within the time 
period allowed;
    (2) The alien was maintaining residence in the United States; and
    (3) The alien's departure from the United States was not based on 
an order of deportation.
    (d) Unlawful status. The following categories of aliens, who are 
otherwise eligible to adjust to LPR status pursuant to LIFE 
Legalization, may file for adjustment of status provided they resided 
continuously in the United States in an unlawful status since prior to 
January 1, 1982, through May 4, 1988:
    (1) An eligible alien who entered the United States without 
inspection prior to January 1, 1982.
    (2) Nonimmigrants. An eligible alien who entered the United States 
as a nonimmigrant before January 1, 1982, whose authorized period of 
admission as a nonimmigrant expired before January 1, 1982, through the 
passage of time, or whose unlawful status was known to the Government 
before January 1, 1982. Known to the Government means documentation 
existing in one or more Federal Government agencies' files such that 
when such document is taken as a whole, it warrants a finding that the 
alien's status in the United States was unlawful. Any absence of 
mandatory annual and/or quarterly registration reports from Federal 
Government files does not warrant a finding that the alien's unlawful 
status was known to the Government.
    (i) A or G nonimmigrants. An eligible alien who entered the United 
States for duration of status (D/S) in one of the following 
nonimmigrant classes, A-1, A-2, G-1, G-2, G-3 or G-4, whose qualifying 
employment terminated or who ceased to be recognized by the Department 
of State as being entitled to such classification prior to January 1, 
1982. A dependent family member may be considered a member of this 
class if the dependent family member was also in A or G status when the 
principal A or G alien's status terminated or ceased to be recognized 
by the Department of State.
    (ii) F nonimmigrants. An eligible alien who entered the United 
States for D/S in one of the following nonimmigrant classes, F-1 or F-
2, who completed a full course of study, including practical training, 
and whose time period, if any, to depart the United States after 
completion of study expired prior to January 1, 1982. A dependent F-2 
alien otherwise eligible who was admitted into the United States with a 
specific time period, as opposed to duration of status, documented on 
Form I-94, Arrival-Departure Record, that extended beyond January 1, 
1982, is considered eligible if the principal F-1 alien is found 
eligible.
    (iii) Nonimmigrant exchange visitors. An eligible alien who was at 
any time a nonimmigrant exchange alien (as defined in section 
101(a)(15)(J) of the Act), who entered the United States before January 
1, 1982, and who:
    (A) Was not subject to the 2-year foreign residence requirement of 
section 212(e) of the Act; or
    (B) Has fulfilled the 2-year foreign residence requirement of 
section 212(e) of the Act; or
    (C) Has received a waiver for the 2-year foreign residence 
requirement of section 212(e) of the Act.
    (3) Asylum applicants. An eligible alien who filed an asylum 
application prior to January 1, 1982, and whose application was 
subsequently denied or whose application was not decided by May 4, 
1988.
    (4) Aliens considered to be in unlawful status. Aliens who were 
present in the United States in one of the following categories were 
considered to be in unlawful status:
    (i) An eligible alien who was granted voluntary departure, 
voluntary return, extended voluntary departure, or placed

[[Page 29677]]

in deferred action category by the Service prior to January 1, 1982.
    (ii) An eligible alien who is a Cuban or Haitian entrant (as 
described in paragraph (1) or (2)(A) of section 501(e) of Public Law 
96-422 and at Sec. 212.5(g) of this chapter), who entered the United 
States before January 1, 1982. Pursuant to section 1104(c)(2)(B)(iv) of 
the LIFE Act, such alien is considered to be in an unlawful status in 
the United States.
    (iii) An eligible alien who was paroled into the United States 
prior to January 1, 1982, and whose parole status terminated prior to 
January 1, 1982.
    (iv) An eligible alien who entered the United States before January 
1, 1982, and whose entries to the United States subsequent to January 
1, 1982, were not documented on Form I-94.


Sec. 245a.16  Continuous physical presence from November 6, 1986, 
through May 4, 1988.

    (a) The Service will determine whether an alien was continuously 
physically present in the United States from November 6, 1986, through 
May 4, 1988, based on the evidence provided by the alien. An alien must 
provide with the application evidence establishing his or her 
continuous physical presence in the United States from November 6, 
1986, through May 4, 1988. Evidence establishing the alien's continuous 
physical presence in the United States from November 6, 1986, to May 4, 
1988, 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.
    (b) For purposes of this section, an alien shall not be considered 
to have failed to maintain continuous physical presence in the United 
States by virtue of brief, casual, and innocent absences from the 
United States. Also, brief, casual, and innocent absences from the 
United States are not limited to absences with advance parole. Brief, 
casual, and innocent absence(s) as used in this paragraph means 
temporary, occasional trips abroad as long as the purpose of the 
absence from the United States was consistent with the policies 
reflected in the immigration laws of the United States. A single 
absence from the United States of more than thirty (30) days or an 
aggregate of all absences exceeding ninety (90) days shall not be 
deemed to be a brief, casual, and innocent absence unless the alien had 
advance parole or the alien can establish that due to emergent reasons, 
his or her return to the United States could not be accomplished within 
the time period(s) allowed.
    (c) An alien who has been absent from the United States in 
accordance with the Service's advance parole procedures shall not be 
considered as having interrupted his or her continuous physical 
presence as required at the time of filing an application under this 
section.


Sec. 245a.17  Citizenship skills.

    (a) Requirements. Applicants for adjustment under LIFE Legalization 
must meet the requirements of section 312(a) of the Act (8 U.S.C. 
1423(a)) (relating to minimal understanding of ordinary English and a 
knowledge and understanding of the history and government of the United 
States). Unless an exception under paragraph (c) of this section 
applies to the applicant, LIFE Legalization applicants must establish 
that:
    (1) He or she has complied with the same requirements as those 
listed for naturalization applicants under Secs. 312.1 and 312.2 of 
this chapter; or
    (2) He or she has a high school diploma or general educational 
development diploma (GED) from a school in the United States. A GED 
gained in a language other than English is acceptable only if a GED 
English proficiency test has been passed. (The curriculum for both the 
high school diploma and the GED must have included at least 40 hours of 
instruction in English and United States history and government). The 
applicant may submit a high school diploma or GED either at the time of 
filing Form I-485, subsequent to filing the application but prior to 
the interview, or at the time of the interview (the applicant's name 
and A-number must appear on any such evidence submitted); or
    (3) He or she has attended, or is attending, a state recognized, 
accredited learning institution in the United States, and that 
institution certifies such attendance. The course of study at such 
learning institution must be for a period of one academic year (or the 
equivalent thereof according to the standards of the learning 
institution) and the curriculum must include at least 40 hours of 
instruction in English and United States history and government. The 
applicant may submit certification on letterhead stationery from a 
state recognized, accredited learning institution either at the time of 
filing Form I-485, subsequent to filing the application but prior to 
the interview, or at the time of the interview (the applicant's name 
and A-number must appear on any such evidence submitted).
    (b) Second interview. An applicant who fails to pass the English 
literacy and/or the United States history and government tests at the 
time of the interview, shall be afforded a second opportunity after 6 
months (or earlier, at the request of the applicant) to pass the tests 
or submit evidence as described in paragraphs (a)(2) or (a)(3) of this 
section. The second interview shall be conducted prior to the denial of 
the application for permanent residence and may be based solely on the 
failure to pass the basic citizenship skills requirements.
    (c) Exceptions. LIFE Legalization applicants are exempt from the 
requirements listed under paragraph (a)(1) of this section if he or she 
has qualified for the same exceptions as those listed for 
naturalization applicants under Secs. 312.1(b)(3) and 312.2(b) of this 
chapter. Further, at the discretion of the Attorney General, the 
requirements listed under paragraph (a) of this section may be waived 
if the LIFE Legalization applicant:
    (1) Is 65 years of age or older; or
    (2) Is developmentally disabled as defined under Sec. 245a.1(v).


Sec. 245a.18  Ineligibility and applicability of grounds of 
inadmissibility.

    (a) Ineligible aliens.
    (1) An alien who has been convicted of a felony or of three or 
misdemeanors committed in the United States is ineligible for 
adjustment to LPR status under this Subpart B; or
    (2) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group, or political opinion is ineligible for 
adjustment of status under this Subpart B.
    (b) Grounds of inadmissibility not to be applied. Section 212(a)(5) 
of the Act (labor certification requirements) and section 212(a)(7)(A) 
of the Act (immigrants not in possession of valid visa and/or travel 
documents) shall not apply to applicants for adjustment to LPR status 
under this Subpart B.
    (c) Waiver of grounds of inadmissibility. Except as provided in 
paragraph (c)(2) of this section, the Service may waive any provision 
of section 212(a) of the Act only in the case of individual aliens for 
humanitarian purposes, to ensure family unity, or when the granting of 
such a waiver is otherwise in the public interest. If available, an 
applicant may apply for an individual waiver as provided in paragraph 
(c)(1) of this section without regard to section 241(a)(5) of the Act.

[[Page 29678]]

    (1) Special rule for waiver of inadmissibility grounds for LIFE 
Legalization applicants under sections 212(a)(9)(A) and 212(a)(9)(C) of 
the Act. An applicant for adjustment of status under LIFE Legalization 
who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of the 
Act, may apply for a waiver of these grounds of inadmissibility while 
present in the United States, without regard to the normal requirement 
that a Form I-212, Application for Permission to Reapply for Admission 
into the United States After Deportation or Removal, be filed prior to 
embarking or re-embarking for travel to the United States, and without 
regard to the length of time since the alien's removal or deportation 
from the United States. Such an alien shall file Form I-690, 
Application for Waiver of Grounds of Excludability Under Sections 245A 
or 210 of the Immigration and Nationality Act, with the district 
director having jurisdiction over the applicant's case if the 
application for adjustment of status is pending at a local office, or 
with the Director of the Missouri Service Center. Approval of a waiver 
of inadmissibility under section 212(a)(9)(A) or section 212(a)(9)(C) 
of the Act does not cure a break in continuous residence resulting from 
a departure from the United States at any time during the period from 
January 1, 1982, and May 4, 1988, if the alien was subject to a final 
exclusion or deportation order at the time of the departure.
    (2) Grounds of inadmissibility that may not be waived. 
Notwithstanding any other provisions of the Act, the following 
provisions of section 212(a) of the Act may not be waived by the 
Attorney General under paragraph (c) of this section:
    (i) Sections 212(a)(2)(A) and (2)(B) (crimes involving moral 
turpitude and controlled substances);
    (ii) Section 212(a)(2)(C) (controlled substance traffickers);
    (iii) Section 212(a)(3) (security and related grounds); and
    (iv) Section 212(a)(4) (public charge) except for an alien who is 
or was an aged, blind, or disabled individual (as defined in section 
1614(a)(1) of the Social Security Act). If a LIFE Legalization 
applicant is determined to be inadmissible under section 212(a)(4) of 
the Act, he or she may still be admissible under the Special Rule 
described under paragraph (d)(3) of this section.
    (d) Determination of ``likely to become a public charge'' and 
special rule. Prior to use of the special rule for determination of 
public charge under paragraph (d)(3) of this section, an alien must 
first be determined to be inadmissible under section 212(a)(4) of the 
Act. If the alien is determined to be ``likely to become a public 
charge'', he or she may still be admissible under the terms of the 
Special Rule.
    (1) In determining whether an alien is ``likely to become a public 
charge'', financial responsibility of the alien is to be established by 
examining the totality of the alien's circumstance at the time of his 
or her application for adjustment. The existence or absence of a 
particular factor should never be the sole criteria for determining if 
an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on 
the alien's age, health, family status, assets, resources, education 
and skills.
    (2) The special rule for determination of public charge under 
paragraph (d)(3) of this section is to be applied only after an initial 
determination that the alien is inadmissible under the provisions of 
section 212(a)(4) of the Act.
    (3) An alien who has a consistent employment history which shows 
the ability to support himself or herself even though his or her income 
may be below the poverty level is not excludable under paragraph 
(c)(2)(iv) of this section. The alien's employment history need not be 
continuous in that it is uninterrupted. It should be continuous in the 
sense that the alien shall be regularly attached to the workforce, has 
an income over a substantial period of the applicable time, and has 
demonstrated the capacity to exist on his or her income without 
recourse to public cash assistance. The Special Rule is prospective in 
that the Service shall determine, based on the alien's history, whether 
he or she is likely to become a public charge. Past acceptance of 
public cash assistance within a history of consistent employment will 
enter into this decision. The weight given in considering applicability 
of the public charge provisions will depend on many factors, but the 
length of time an applicant has received public cash assistance will 
constitute a significant factor. It is not necessary to file a waiver 
in order to apply the special rule for determination of public charge.
    (e) Public cash assistance and criminal history verification. 
Declarations by an alien that he or she has not been the recipient of 
public cash assistance and/or has not had a criminal record are subject 
to a verification by the Service. The alien must agree to fully 
cooperate in the verification process. Failure to assist the Service in 
verifying information necessary for proper adjudication may result in 
denial of the application.


Sec. 245a.19  Interviews.

    (a) All aliens filing applications for adjustment of status with 
the Service under this section must be personally interviewed, except 
that the adjudicative interview may be waived for a child under the age 
of 14, or when it is impractical because of the health or advanced age 
of the applicant. Applicants will be interviewed by an immigration 
officer as determined by the Director of the Missouri Service Center. 
An applicant failing to appear for the scheduled interview may, for 
good cause, be afforded another interview. Where an applicant fails to 
appear for two scheduled interviews, his or her application shall be 
denied for lack of prosecution. Applications for LIFE Legalization 
adjustment may be denied without interview if the applicant is 
determined to be statutorily ineligible.
    (b) At the time of the interview, wherever possible, original 
documents must be submitted except the following: official government 
records; employment or employment-related records maintained by 
employers, unions, or collective bargaining organizations; medical 
records; school records maintained by a school or school board; or 
other records maintained by a party other than the applicant. Copies of 
records maintained by parties other than the applicant which are 
submitted in evidence must be certified as true and correct by such 
parties and must bear their seal or signature or the signature and 
title of persons authorized to act in their behalf.
    (c) If at the time of the interview the return of original 
documents is desired by the applicant, they must be accompanied by 
notarized copies or copies certified true and correct by the alien's 
representative. At the discretion of the district director, original 
documents, even if accompanied by certified copies, may be temporarily 
retained for forensic examination by the Service.


Sec. 245a.20  Decisions, appeals, motions, and certifications.

    (a) Decisions.
    (1) Approval of applications. If the Service approves the 
application for adjustment of status under LIFE Legalization, the 
district director shall record the alien's lawful admission for 
permanent residence as of the date of such approval and notify the 
alien accordingly. The district director shall also advise the alien 
regarding the delivery of his or her Form I-551,

[[Page 29679]]

Permanent Resident Card, and of the process for obtaining temporary 
evidence of alien registration. If the alien has previously been issued 
a final order of exclusion, deportation, or removal, such order shall 
be deemed canceled as of the date of the district director's approval 
of the application for adjustment of status. If the alien had been in 
exclusion, deportation, or removal proceedings that were 
administratively closed, such proceedings shall be deemed terminated as 
of the date of approval of the application for adjustment of status by 
the district director.
    (2) Denials. The alien shall be notified in writing of the decision 
of denial and of the reason(s) therefore. If the Service intends to 
rely on adverse information of which the applicant is not aware, the 
Service will comply with Sec. 103.2(b)(16) of this chapter, and will 
not deny the application until the applicant has had the opportunity to 
respond to the adverse information. If inconsistencies are found 
between information submitted with the adjustment application and 
information previously furnished by the alien to the Service, the alien 
shall be afforded the opportunity to explain discrepancies or rebut any 
adverse information. A party affected under this part by an adverse 
decision is entitled to file an appeal on Form I-290B, Notice of appeal 
to the Administrative Appeals Unit (AAU), with required fee specified 
in Sec. 103.7(b)(1) of this chapter. Except in instances when a LIFE 
Legalization application is denied for failure to establish timely 
application for class membership in the CSS, LULAC, or Zambrano 
lawsuit, or in instances when the LIFE Legalization applicant failed to 
present a prima facie application for LIFE Legalization as defined in 
Sec. 245a.13(c), employment authorization will be granted until a final 
decision has been rendered on appeal or until the end of the appeal 
period if no appeal is filed. After exhaustion of an appeal, an alien 
who believes that the grounds for denial have been overcome may submit 
another application with fee, provided that the application is 
submitted on or before May 31, 2002.
    (b) Appeals process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations, Administrative 
Appeals Office (AAO), who is the appellate authority designated in 
Sec. 103.1(f)(3) of this chapter. Any appeal shall be submitted to the 
Service office that rendered the decision with the required fee.
    (1) If an appeal is filed from within the United States, it must be 
received by the Service within 30 calendar days after service of the 
Notice of Denial (NOD) in accordance with the procedures of 
Sec. 103.3(a) of this chapter. An appeal received after the 30 day 
period has tolled will not be accepted. The 30 day period for 
submitting an appeal begins 3 days after the NOD is mailed. If a review 
of the Record of Proceeding (ROP) is requested by the alien or his or 
her legal representative, and an appeal has been properly filed, an 
additional 30 days will be allowed for this review from the time the 
ROP is photocopied and mailed.
    (2) If an applicant's last known address of record was outside the 
United States, and the NOD was mailed to that foreign address, the 
appeal must be received by the Service within 60 calendar days after 
service of the NOD in accordance with the procedures of Sec. 103.3(a) 
of this chapter. An appeal received after the 60 day period has tolled 
will not be accepted. The 60-day period for submitting an appeal begins 
3 days after the NOD is mailed.
    (c) Motions. The Service director who denied the application may 
reopen and reconsider any adverse decision sua sponte. When an appeal 
to the AAO has been filed, the director may issue a new decision that 
will grant the benefit that has been requested. Motions to reopen a 
proceeding or reconsider a decision shall not be considered under this 
Subpart B.
    (d) Certifications. The Service director who adjudicates the 
application may, in accordance with Sec. 103.4 of this chapter, certify 
a decision to the AAO when the case involves an unusually complex or 
novel question of law or fact.
    (e) Effect of final adjudication of application on aliens 
previously in proceedings. 
    (1) Upon the granting of an application. If the application for 
LIFE Legalization is granted, proceedings shall be deemed terminated or 
a final order of exclusion, deportation, or removal shall be deemed 
canceled as of the date of the approval of the LIFE Legalization 
application for adjustment of status.
    (2) Upon the denial of an application. 
    (i) Where proceedings were administratively closed. In the case of 
an alien whose previously initiated exclusion, deportation or removal 
proceeding had been administratively closed or continued indefinitely 
under Sec. 245a.12(b)(1), the director shall make a request for 
recalendaring to the Immigration Court that had administratively closed 
the proceeding, or the Board, as appropriate, when there is a final 
decision denying the LIFE Legalization application. The Immigration 
Court or the Board will then recalendar the prior proceeding.
    (ii) Where final order was stayed. If the application for LIFE 
Legalization is denied, the stay of a final order of exclusion, 
deportation, or removal afforded in Sec. 245a.13(f) shall be deemed 
lifted as of the date of such denial.


Sec. 245a.21  Confidentiality.

    (a) No person other than a sworn officer or employee of the 
Department of Justice or bureau or agency thereof, will be permitted to 
examine individual applications. For purposes of this part, any 
individual employed under contract by the Service to work in connection 
with the LIFE Legalization provisions shall be considered an employee 
of the Department of Justice or bureau or agency thereof.
    (b) No information furnished pursuant to an application for 
permanent resident status under this Subpart B shall be used for any 
purpose except:
    (1) To make a determination on the application;
    (2) For the enforcement of the provisions encompassed in section 
245A(c)(6) of the Act, except as provided in paragraphs (c) of this 
section; or
    (3) For the purposes of rescinding, pursuant to section 246(a) of 
the Act (8 U.S.C. 1256(a)), any adjustment of status obtained by the 
alien.
    (c) If a determination is made by the Service that the alien has, 
in connection with his or her application, engaged in fraud or willful 
misrepresentation or concealment of a material fact, knowingly provided 
a false statement or document in making his or her application, 
knowingly made a false statement or representation, or engaged in any 
other activity prohibited by section 245A(c)(6) of the Act, the Service 
shall refer the matter to the United States Attorney for prosecution of 
the alien and/or of any person who created or supplied a false 
statement or document for use in an application for adjustment of 
status under this Subpart B.
    (d) Information contained in granted files may be used by the 
Service at a later date to make a decision:
    (1) On an immigrant visa petition or other status filed by the 
applicant under section 204(a) of the Act;
    (2) On a naturalization application submitted by the applicant;
    (3) For the preparation of reports to Congress under section 404 of 
the Immigration Reform and Control Act of 1986; or
    (4) For the furnishing of information, at the discretion of the 
Attorney General, in the same manner and

[[Page 29680]]

circumstances as census information may be disclosed by the Secretary 
of Commerce under 13 U.S.C. 8.
    (e) Information concerning whether the applicant has at any time 
been convicted of a crime may be used or released for immigration 
enforcement or law enforcement purposes.


Sec. 245a.22  Rescission.

    (a) Rescission of adjustment of status under LIFE Legalization 
shall occur only under the procedures of 8 CFR part 246.
    (b) Information furnished by an eligible alien pursuant to any 
application filed under LIFE Legalization may be used by the Attorney 
General, and other officials and employees of the Department of Justice 
and any bureau or agency thereof, for purposes of rescinding, pursuant 
to 8 CFR part 246, any adjustment of status obtained by the alien.


Secs. 245a.23 through 245a.29  [Reserved]

Subpart C--LIFE Act Amendments Family Unity Provisions


Sec. 245a.30  Description of program.

    This Subpart C implements the Family Unity provisions of section 
1504 of the LIFE Act Amendments, Public Law 106-554.


Sec. 245a.31  Eligibility.

    An alien who is currently in the United States may obtain Family 
Unity benefits under section 1504 of the LIFE Act Amendments if he or 
she establishes that:
    (a) He or she is the spouse or unmarried child under the age of 21 
of an eligible alien (as defined under Sec. 245a.10) at the time the 
alien's application for Family Unity benefits is adjudicated and 
thereafter;
    (b) He or she entered the United States before December 1, 1988, 
and resided in the United States on such date; and
    (c) If applying for Family Unity benefits on or after June 1, 2002, 
he or she is the spouse or unmarried child under the age of 21 of an 
alien who has filed a Form I-485 pursuant to this Subpart B.


Sec. 245a.32  Ineligible aliens.

    The following categories of aliens are ineligible for Family Unity 
benefits under the LIFE Act Amendments:
    (a) An alien who has been convicted of a felony or of three or more 
misdemeanors in the United States; or
    (b) An alien who has ordered, incited, assisted, or otherwise 
participated in the persecution of an individual because of the 
individual's race, religion, nationality, membership in a particular 
social group, or political opinion; or
    (c) An alien who has been convicted by a final judgment of a 
particularly serious crime and who is a danger to the community of the 
United States; or
    (d) An alien who the Attorney General has serious reasons to 
believe has committed a serious nonpolitical crime outside the United 
States before the alien arrived in the United States; or
    (e) An alien who the Attorney General has reasonable grounds to 
believe is a danger to the security of the United States.


Sec. 245a.33  Filing.

    (a) General. An application for Family Unity benefits under section 
1504 of the LIFE Act Amendments must be filed on a Form I-817, 
Application for Family Unity Benefits, with the Missouri Service 
Center. A Form I-817 must be filed with the correct fee required in 
Sec. 103.7(b)(1) of this chapter and the required supporting 
documentation. A separate application with appropriate fee and 
documentation must be filed for each person claiming eligibility.
    (b) Decision. The Missouri Service Center Director has sole 
jurisdiction to adjudicate an application for Family Unity benefits 
under the LIFE Act Amendments. If the Service finds that additional 
evidence is required from the alien in order to properly adjudicate the 
application, the Service shall request such evidence from the alien in 
writing. The Director will provide the applicant with specific reasons 
for any decision to deny an application. Denial of an application may 
not be appealed. An applicant who believes that the grounds for denial 
have been overcome may submit another application with the appropriate 
fee and documentation.
    (c) Referral of denied cases for consideration of issuance of 
notice to appear. If an application is denied, the case will be 
referred to the district director with jurisdiction over the alien's 
place of residence for consideration of whether to issue a notice to 
appear. After an initial denial, an applicant's case will not be 
referred for issuance of a notice to appear until 90 days from the date 
of the initial denial, to allow the alien the opportunity to file a new 
Form I-817 application in order to attempt to overcome the basis of the 
denial. However, if the applicant is found not to be eligible for 
benefits under Sec. 245a.32(a), the Service reserves the right to issue 
a notice to appear at any time after the initial denial.


Sec. 245a.34  Protection from removal, eligibility for employment, and 
period of authorized stay.

    (a) Scope of protection. Nothing in this Subpart C shall be 
construed to limit the authority of the Service to commence removal 
proceedings against an applicant for or beneficiary of Family Unity 
benefit under this Subpart C on any ground of removal. Also, nothing in 
this Subpart C shall be construed to limit the authority of the Service 
to take any other enforcement action against such an applicant or 
beneficiary with respect to any ground of removal not specified in 
paragraphs (a)(1) through (a)(4) of this section. Protection from 
removal under this Subpart C is limited to the grounds of removal 
specified in:
    (1) Section 237(a)(1)(A) of the Act (aliens who were inadmissible 
at the time of entry or adjustment of status), except that the alien 
may be removed if he or she is inadmissible because of a ground listed 
in section 212(a)(2) (criminal and related grounds) or in section 
212(a)(3) (security and related grounds) of the Act; or
    (2) Section 237(a)(1)(B) of the Act (aliens present in the United 
States in violation of the Act or any other law of the United States);
    (3) Section 237(a)(1)(C) of the Act (aliens who violated their 
nonimmigrant status or violated the conditions of entry); or
    (4) Section 237(a)(3)(A) of the Act (aliens who failed to comply 
with the change of address notification requirements).
    (b) Duration of protection from removal. An alien whose application 
for Family Unity benefits under the LIFE Act Amendments is approved 
will receive protection from removal, commencing with the date of 
approval of the application. While any evidence of protection from 
removal shall be dated to expire 1 year after the date of approval, a 
grant of protection from removal under this section shall be considered 
effective from the date on which the application was properly filed.
    (c) Employment authorization. An alien granted Family Unity 
benefits under the LIFE Act Amendments is authorized to be employed in 
the United States. The validity period of the employment authorization 
document shall be dated to expire 1 year after the date of approval of 
the Form I-817.
    (d) Period of authorized stay. An alien granted Family Unity 
benefits under the LIFE Act Amendments is deemed to have received an 
authorized period of stay approved by the Attorney General within the 
scope of section 212(a)(9)(B) of the Act.

[[Page 29681]]

Sec. 245a.35  Travel outside the United States.

    (a) An alien who departs the United States while his or her 
application for Family Unity benefits is pending will be deemed to have 
abandoned the application and the application will be denied.
    (b) An alien granted Family Unity benefits under the LIFE Act 
Amendments who intends to travel outside the United States temporarily 
must apply for advance authorization using Form I-131. The authority to 
grant an application for advance authorization for an alien granted 
Family Unity benefits under the LIFE Act Amendments rests solely with 
the Service. An alien who is granted advance authorization and returns 
to the United States in accordance with such authorization, and who is 
found not to be inadmissible under section 212(a)(2) or (3) of the Act, 
shall be paroled into the United States. He or she shall be provided 
the remainder of the protection from removal period previously granted 
under the Family Unity provisions of the LIFE Act Amendments.


Sec. 245a.36  [Reserved]


Sec. 245a.37  Termination of Family Unity Program benefits.

    (a) Grounds for termination. The Service may terminate Family Unity 
benefits under the LIFE Act Amendments whenever the necessity for the 
termination comes to the attention of the Service. Such grounds will 
exist in situations including, but not limited to, those in which:
    (1) A determination is made that Family Unity benefits were 
acquired as the result of fraud or willful misrepresentation of a 
material fact;
    (2) The beneficiary commits an act or acts which render him or her 
ineligible for Family Unity benefits under the LIFE Act Amendments;
    (3) The alien, upon whose status Family Unity benefits under the 
LIFE Act were based, fails to apply for LIFE Legalization by May 31, 
2002, has his or her LIFE Legalization application denied, or loses his 
or her LPR status; or
    (4) A qualifying relationship to the alien, upon whose status 
Family Unity benefits under the LIFE Act Amendments were based, no 
longer exists.
    (b) Notice procedure. Notice of intent to terminate and of the 
grounds thereof shall be served pursuant to the provisions of 
Sec. 103.5a of this chapter. The alien shall be given 30 days to 
respond to the notice and may submit to the Service additional evidence 
in rebuttal. Any final decision of termination shall also be served 
pursuant to the provisions of Sec. 103.5a of this chapter. Nothing in 
this section shall preclude the Service from commencing removal 
proceedings prior to termination of Family Unity benefits.
    (c) Effect of termination. Termination of Family Unity benefits 
under the LIFE Act Amendments shall render the alien amenable to 
removal under any ground specified in section 237 of the Act (including 
those grounds described in Sec. 245a.34(a)). In addition, the alien 
will no longer be considered to be in a period of stay authorized by 
the Attorney General as of the date of such termination.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    12. 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. 104-134, 110 Stat. 
1321.

    13. Section 274a.12 is amended by:
    a. Revising the last sentence in paragraph (a) introductory text;
    b. Removing the word ``or'' at the end of paragraph (a)(12);
    c. Replacing the period with ``; or'' at the end of paragraph 
(a)(13);
    d. Adding paragraph (a)(14); and by
    e. Adding paragraph (c)(24).
    The revisions and additions read as follows:


Sec. 274a.12  Classes of aliens authorized to accept employment.

    (a) Aliens authorized employment incident to status. * * * Any 
alien who is within a class of aliens described in paragraphs (a)(3) 
through (a)(8) or (a)(10) through (a)(14) of this section, and who 
seeks to be employed in the United States, must apply to the Service 
for a document evidencing such employment authorization.
* * * * *
    (14) An alien granted Family Unity benefits under section 1504 of 
the Legal Immigrant Family Equity (LIFE) Act Amendments, Public Law 
106-554, and the provisions of 8 CFR part 245a, Subpart C of this 
chapter, as evidenced by an employment authorization document issued by 
the Service.
* * * * *
    (c) * * *
    (24) An alien who has filed an application for adjustment pursuant 
to section 1104 of the LIFE Act, Public Law 106-553, and the provisions 
of 8 CFR part 245a, Subpart B of this chapter. Employment authorization 
shall be granted in increments not exceeding 1 year during the period 
that the application is pending (including any period when an 
administrative appeal is pending) and shall expire on a specific date.
* * * * *

PART 299--IMMIGRATION FORMS

    14. The authority citation for part 299 continues to read as 
follows:

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

    15. Section 299.1 is amended in the table by:
    a. Adding the entry for Form ``I-485 Supplement D'' in proper 
numerical sequence; and by
    b. Revising the entries for Forms ``I-765'' and ``I-817'', to read 
as follows:


Sec. 299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
            Form No.               Edition date            Title
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
I-485 Supplement D.............        04-26-01   LIFE Legalization
                                                   Supplement to Form I-
                                                   485 Instructions.
 
*                  *                  *                  *
                  *                  *                  *
I-765..........................        04-24-01   Application for
                                                   Employment
                                                   Authorization.
 
*                  *                  *                  *
                  *                  *                  *
I-817..........................        04-26-01   Application for Family
                                                   Unity Benefits.
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------


[[Page 29682]]


    16. Section 299.5 is amended in the table by:
    a. Adding the entry for Form ``I-485 Supplement D'' in proper 
numerical sequence; and by
    b. Revising the entry for Form ``I-817'', to read as follows:


Sec. 299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                            Currently
          INS form No.               INS form title        assigned OMB
                                                           control No.
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
I-485 Supplement D.............  LIFE Legalization            1115-0239
                                  Supplement to Form I-
                                  485 Instructions.
 
*                  *                  *                  *
                  *                  *                  *
I-817..........................  Application for Family       1115-0166
                                  Unity Benefits.
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------


    Dated: May 25, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-13669 Filed 5-31-01; 8:45 am]
BILLING CODE 4410-10-P