[Federal Register Volume 76, Number 167 (Monday, August 29, 2011)]
[Rules and Regulations]
[Pages 53764-53806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20990]
[[Page 53763]]
Vol. 76
Monday,
No. 167
August 29, 2011
Part III
Department of Homeland Security
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8 CFR Parts 1, 100, et al.
Immigration Benefits Business Transformation, Increment I; Final Rule
Federal Register / Vol. 76 , No. 167 / Monday, August 29, 2011 /
Rules and Regulations
[[Page 53764]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 1, 100, 103, 204, 207, 208, 209, 211, 212, 213a, 214,
223, 235, 236, 238, 240, 241, 244, 245, 245a, 248, 264, 265, 270,
274a, 287, 292, 299, 301, 310, 312, 316, 319, 320, 322, 324, 325,
328, 329, 330, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341,
342, 343, 343a, 343b, 343c, 392, and 499
[CIS No. 2481-09; DHS Docket No. USCIS-2009-0022]
RIN 1615-AB83
Immigration Benefits Business Transformation, Increment I
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule; request for comments.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations to enable U.S. Citizenship and Immigration Services (USCIS)
to migrate from a paper file-based, non-integrated systems environment
to an electronic customer-focused, centralized case management
environment for benefit processing. This transformation process will
allow USCIS to streamline benefit processing, eliminate the capture and
processing of redundant data, and reduce the number of and automate its
forms. This transformation process will be a phased multi-year
initiative to restructure USCIS business processes and related
information technology systems. DHS is removing references to form
numbers, form titles, expired regulatory provisions, and descriptions
of internal procedures, many of which will change during
transformation. DHS is also finalizing interim rules that permitted
submission of benefit requests with an electronic signature when such
requests are submitted in an electronic format rather than on a paper
form and that removed references to filing locations for immigration
benefits. In addition, in this rule DHS is publishing the final rule
for six other interim rules published during the past several years,
most of which received no public comments.
DATES: Effective date: This rule is effective November 28, 2011.
Comment date: Written comments must be submitted on or before
October 28, 2011.
ADDRESSES: You may submit comments, identified by DHS docket number
USCIS-2009-0022 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: You may submit comments directly to USCIS by e-
mail at [email protected]. Include DHS docket number USCIS-2009-
0022 in the subject line of the message.
Mail: Sunday Aigbe, Chief, Regulatory Products Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 20 Massachusetts Avenue, NW., Suite 5012, Washington, DC
20529-2020. To ensure proper handling, please reference DHS docket
number USCIS-2009-0022 on your correspondence. This mailing address may
be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory
Products Division, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 20 Massachusetts Avenue, NW., Suite
5012, Washington, DC 20529-2020. Contact Telephone Number is (202) 272-
8377.
FOR FURTHER INFORMATION CONTACT: Dan Konnerth, Policy Chief, Office of
Transformation Coordination, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 633 Third St., NW., Washington, DC
20529-2210. Contact Telephone Number is (202) 233-2381.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Introduction
B. Authority
C. USCIS Transformation Initiative
D. How Transformation Will Work
E. Other Regulatory Changes Necessary for the Transformation
Initiative
III. The Changes Made by This Rule
A. Removing References to Form Numbers and Form Titles
B. Removing References to Position Titles Within USCIS
C. Replacing ``Service'' With More Specific Component Names and
Removing References to Particular USCIS Offices
D. Removing Information About Procedures for Filing and Internal
Processing of Benefit Requests
E. Removing Obsolete and Expired Regulatory Provisions;
Correcting and Updating Provisions Affected by Statutory Changes
F. Revising or Reorganizing Sections or Paragraphs for Clarity
and Consistency and To Remove Duplicative Information
IV. Discussion of Comments Received in Response to the April 29,
2003, Interim Rule
V. Discussion of Other Interim Final Rules Being Finalized
A. Application for Refugee Status; Acceptable Sponsorship
Agreement Guaranty of Transportation, RIN 1615-AA24
B. Adjustment of Status for Certain Syrian Nationals Granted
Asylum in the United States, RIN 1615-AA57
C. Eliminating the Numerical Cap on Mexican TN Nonimmigrants,
RIN 1615-AA96
D. Allocation of Additional H-1B Visas Created by the H-1B Visa
Reform Act of 2004, RIN 1615-AB32
E. Classification of Certain Scientists of the Commonwealth of
Independent States of the Former Soviet Union and the Baltic States
as Employment-Based Immigrants, RIN 1615-AB14
F. Revoking Grants of Naturalization, RIN 1615-AA30
VI. Discussion of Comments Received in Response to the June 5, 2009,
Interim Rule
VII. Regulatory Requirements
A. Administrative Procedure Act
B. Unfunded Mandates Reform Act of 1995
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866
E. Executive Order 13132
F. Executive Order 12988 Civil Justice Reform
G. Paperwork Reduction Act
H. Regulatory Flexibility Act
I. Public Participation
Interested persons are invited to submit written data, views, or
arguments on all aspects of this rule. Comments that will provide the
most assistance to USCIS in developing these procedures will reference
a specific portion of this rule, explain the reason for any recommended
change, and include data, information, or authority that support the
recommended change.
Instructions: All submissions must include the component name and
DHS docket number USCIS-2009-0022. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Products Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Avenue, NW., Suite 5012, Washington, DC 20529-2020.
II. Background
A. Introduction
U.S. Citizenship and Immigration Services (USCIS) receives
approximately six million immigration benefit requests each year,
comprised of more than fifty types of applications and petitions. USCIS
historically accepted paper applications and depended on paper files.
These applications and
[[Page 53765]]
paper files were the only means for USCIS to adjudicate applications
and petitions and that paper-based process, by contemporary standards,
was inefficient. Until recently, USCIS processed on paper all
immigration benefits, verified the identity of applicants, and provided
other government agencies with the information required to quickly
identify criminals and possible terrorists.
USCIS is modernizing its processes and systems in light of the
development of technology to accommodate and encourage greater use of
electronic data submission, to include e-filing and electronic
interaction. USCIS will not eliminate paper filing at this time but
will convert the data from paper filing to an electronic medium when
the completed form is received. USCIS will then operate in an
electronic environment fostering greater operational efficiency,
provide transparency, and improve access to information through online
accounts for those who do business with USCIS.
The Department of Homeland Security (DHS) and USCIS began the
transformation of USCIS operations by eliminating regulatory references
to filing locations for immigration benefits, thereby permitting USCIS
to more rapidly adjust filing locations to meet demand and operational
needs and to provide that information on petition and application forms
and through other means, such as on the USCIS Web site. See Removing
References to Filing Locations and Obsolete References to Legacy
Immigration and Naturalization Service; Adding a Provision to
Facilitate the Expansion of the Use of Approved Electronic Equivalents
of Paper Forms, 74 FR 26933 (June 5, 2009) (``Filing Location Rule'').
DHS is expanding on the Filing Location Rule by affording
additional flexibility for applicants and petitioners to file, and for
USCIS to receive and process, benefit requests, biometrics, and
supporting documentation in an electronic environment. For example,
amendments in this rule to 8 CFR 103.2(a)(1) (relating to filing), 8
CFR 103.2(a)(7) (relating to receipt dates), and 8 CFR 103.8 (relating
to delivery of notices) each replace language geared solely to paper
files and benefit requests with language that is equally applicable in
a paper or electronic environment.
B. Authority
The Government Paperwork Elimination Act (GPEA), Public Law 105-
277, tit. XVII, section 1703, 112 Stat. 2681, 2681-749 (Oct. 21, 1998),
44 U.S.C. 3504 note, provides that, when possible, Federal agencies use
electronic forms, electronic filing, and electronic submissions to
conduct agency business with the public. GPEA establishes the means for
the use and acceptance of electronic signatures. This rule will
significantly enhance the ability of USCIS to fully implement GPEA. The
Homeland Security Act of 2002, Public Law 107-296, section 102, 116
Stat. 2135 (Nov. 25, 2002), 6 U.S.C. 112, and the Immigration and
Nationality Act of 1952, as amended (INA or Act), section 103, 8 U.S.C.
1103, charge the Secretary of Homeland Security with administration and
enforcement of the immigration and naturalization laws. DHS implemented
an electronic signature provision for immigration benefit filings with
USCIS in 2003. Electronic Signature on Applications for Immigration and
Naturalization Benefits, 68 FR 23010 (April 29, 2003). The Secretary
promulgates this final rule under the broad authority to administer the
Department of Homeland Security, and the authorities provided under the
Homeland Security Act of 2002, the immigration and nationality laws,
and other delegated authority.
DHS is also adding new fees to the USCIS fee regulations as
required by recent legislation. Effective August 13, 2010, Public Law
111-230 imposes additional fees on certain H-1B and L-1 nonimmigrants.
124 Stat. 2485 (Aug. 13, 2010); New 8 CFR 103.7(b)(1)(v).
C. USCIS Transformation Initiative
USCIS is engaged in an enterprise-wide transformation effort to
implement new business processes and to improve service, operational
efficiency, and national security. USCIS's new operational environment
will employ online accounts, such as those used by many private sector
organizations.
Applicants and petitioners will be able to access individualized
accounts that will provide electronic access to information on how to
apply for benefits, allow easier filing, and permit applicants and
petitioners, and their representatives, to track the status of open
applications and petitions. Applicants and petitioners will be able to
use a secure USCIS Internet Web site to access accounts ``on-demand''
in an electronic service environment available at all times.
USCIS will develop new automated case management tools to access
data electronically, prevent the loss of information, and provide
adjudicators with a comprehensive view of an alien's immigration
history. USCIS's electronic environment will facilitate and expedite
information collection, reduce benefit fraud and result in more
consistent and efficient decisions. USCIS is supplementing existing
paper filing options by adding more user-friendly electronic filing
options.
USCIS will improve many of its internal security, operational
efficiency, and public service capabilities as transformation proceeds.
USCIS will first allow the creation of accounts for various applicants,
followed by enhanced e-filing and case management capabilities, and
then improve reporting and Freedom of Information Act (FOIA), 5 U.S.C.
552, tools. Once deployed, these tools will be applied and made
available to the immigrant, humanitarian, and nonimmigrant applicant
populations.
USCIS's transformation to an electronic environment is based on
three objectives and long-term benefits: enhanced national security and
integrity of filings, public service, and operational efficiency.
USCIS's transformation will use modern electronic audit and
investigative methods to improve national security and integrity by
identifying potential fraud and other risks by effectively collecting,
analyzing and sharing information used to verify an alien's or other
individual's identity and eligibility for various immigration benefits.
USCIS will use a more complete picture of an alien's immigration
history by analyzing information across benefit applications, thus
exposing those attempting to perpetrate fraud or who are otherwise
ineligible for immigration benefits. For example, an applicant's or
beneficiary's marital or employment history in an existing agency file
or in another pending application may provide relevant information that
differs from the information in the application or petition being
adjudicated. A responsible and transparent approach toward the handling
of such personal information protects the rights of individuals and
organizations interacting with USCIS and thereby fosters their trust
and cooperation. At the same time, this approach facilitates authorized
sharing of information with partner components of DHS--such as U.S.
Customs and Border Protection (CBP) and U.S. Immigration and Customs
Enforcement (ICE)--in a secure environment that better protects against
unauthorized disclosures. This approach will facilitate authorized
sharing of information with partner agencies--such as the Department of
State (DOS) and the Department of Justice (DOJ). In addition,
electronic transmission and storage of information is faster, less
costly and more secure than the physical movement of paper files.
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USCIS will improve public service by adjudicating requests for
benefits more accurately and quickly, and by providing more timely and
accurate information about immigration benefits and the status of
benefit requests. Applicants, petitioners, and their representatives
will have access to relevant forms, instructions, case status, and
other actions and information through online accounts that organize
information and transactions to meet their needs. DHS will continue to
ensure the confidentiality of its immigration records in accordance
with the requirements of the law, including the Privacy Act, 5 U.S.C.
552a,\1\ and 8 CFR 208.6. USCIS's transformation to an electronic
environment will enable it to become an innovative and agile
organization that better understands its workload and best uses all
available resources, investing in its people and infrastructure to
ensure cost-effective and consistent results.
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\1\ The Privacy Act grants United States citizens and lawful
permanent residents the right to access and amend their records. DHS
policy, as a matter of discretion, permits nonimmigrant aliens
equivalent ability to access and correct records. Memorandum for
Directorate and Component Leadership from Hugo Teufel III, Chief
Privacy Officer, DHS Privacy Policy Regarding Collection, Use,
Retention, and Dissemination of Information on Non-U.S. Persons,
Memorandum 2007-1 (January 19, 2007), found at http://www.dhs.gov/xlibrary/assets/privacy/privacy_policyguide_2007-1.pdf.
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D. How Transformation Will Work
USCIS adopted a ``person-centric'' business approach to
transformation based on establishing various types of individual and
organizational accounts. The key to this approach is encouraging
individual applicants, petitioners, beneficiaries, organizations, legal
representatives, and others who interact with USCIS to access their own
online accounts. Applicants, petitioners, and others will be able to
electronically submit benefit requests with supporting documentation,
access status information regarding pending benefit requests, change
their addresses and contact information, obtain FOIA-related materials,
and comply with some registration requirements of the Immigration and
Nationality Act.
USCIS's transformation will create an end-to-end electronic
adjudicative process encompassing an alien's entire immigration
lifecycle, unlike the current process that uses multiple systems and
focuses on each individual benefit request. Data initially provided by
account holders will be reused, if appropriate, to reduce data entry
required for subsequent benefit requests. Additional and revised data
will be used to update and enhance account information. Account data
submitted to support various immigration benefit transactions will be
verified, where feasible and appropriate, through links to other
internal and external data systems, potentially reducing the need for
applicants and petitioners to provide certain forms of supporting
evidence and reducing potential requests for evidence from USCIS.
USCIS's transformation will eventually affect all aspects of USCIS
benefit processing operations and technology. This operational concept
is intended to standardize processes across USCIS operations relating
to case intake, biometrics, background checks, adjudication,
scheduling, and notifications. USCIS benefit adjudication operations
will be changed incrementally from a paper- and hard copy file-based
process to an electronic process, making it possible to process benefit
requests more efficiently. With the implementation of these
improvements, USCIS will enhance the overall process.
E. Other Regulatory Changes Necessary for the Transformation Initiative
DHS anticipates that additional regulatory changes will be required
over the next several years as the transformation of USCIS to an
electronic environment progresses. DHS expects, for example, to revise
regulations pertaining to filing and handling of immigrant benefit
requests to lead to computer system enhancements applied to immigrant
applications and benefits. DHS will not make transformation-related
changes to 8 CFR part 214 at this time, but will publish a separate
rulemaking to address business transformation as well as reorganizing
and simplifying that part.
III. The Changes Made by This Rule
DHS is amending those parts of chapter I of 8 CFR that regulate
affidavits of support, citizenship and naturalization, employment
authorization, nonimmigrant benefits (other than part 214) and related
waivers, permanent resident documents, refugee and asylum processing,
Temporary Protected Status, and travel documents. These amendments are
best understood by the changes effected, rather than as individual
amendments to the regulations.
A. Removing Form Title and Number References, and Adding Filing
Definitions
DHS is removing references to form numbers and form titles. At this
time, USCIS will continue to accept paper submission of most
applications, petitions, and benefit requests, although it will phase
out references to mandatory use of specific forms for specific purposes
in the regulations. Mandating in regulations specific form numbers
reduces USCIS's ability to modify its business processes to reflect
filing procedures in an electronic environment. Form names and numbers
will continue to exist for reference purposes but will not be
specifically referenced in the regulations. This rule is an early step
in the transformation process and purposely does not remove all form
references from all regulations affecting USCIS procedures at this
time. Forms identified by number will continue to appear until other
parts of DHS regulations are amended to address transformation
requirements. The list of prescribed forms will be removed from 8 CFR
parts 299 and 499, although USCIS will continue to refer to form
numbers on its Internet Web site, at http://www.uscis.gov, and public
information telephone scripts. DHS components ICE, and CBP will
likewise continue to refer to form numbers on their Internet Web sites,
http://www.ice.gov, and http://www.cbp.gov.
In most instances, DHS is removing form names and numbers by
replacing the form reference with a generic statement, such as ``the
form designated by USCIS.'' Removal of these references from a
paragraph or section in some instances, however, requires changes which
cannot be achieved through replacement of a term or phrase. In those
instances, the entire paragraph is revised.
DHS is removing references to the specific forms known by form
numbers: AR-11, G-28, G-325, I-90, I-94, I-102, I-129, I-130, I-131, I-
191, I-192, I-193, I-212, I-290B, I-407, I-512, I-539, I-551, I-566, I-
589, I-590, I-601, I-602, I-607, I-644, I-688, I-730, I-765, I-797, I-
797A, I-797B, I-821, I-854, I-864, I-864A, I-864P, I-865, I-907, I-914,
I-917, I-918, N-300, N-400, N-426, N-565, N-600, and N-643. This list
is not intended to be exhaustive, nor are all references to the listed
forms removed by this final rule. Additional references to these and
other USCIS forms will be phased out in subsequent rules. DHS is not
removing references to forms that primarily affect the functions of DHS
components other than USCIS.
Enumerating OMB control numbers for USCIS information collection
requirements in regulations is no longer necessary and, therefore, 8
CFR 100.7 is being removed. OMB control numbers continue to be
displayed on USCIS forms pursuant to the Paperwork
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Reduction Act, 44 U.S.C. 3512, and on the USCIS Internet Web site.
DHS is adding new definitions for ``application,'' ``petition,''
and ``benefit request'' to transition from ``forms'' to either paper or
electronic instruments used to seek various immigration benefits. The
terms ``application'' and ``petition'' are used together, separately,
and interchangeably in many sections of chapter I of the 8 CFR and this
rule does not affect every reference to those terms. The term ``benefit
request'' is often used in the sections amended by this rule in place
of application or petition in the interest of economy of words, to
reduce the ambiguity and confusion resulting from the constant use of
both terms, improve readability, and to add flexibility for describing
what a particular capability may be called when it is converted to an
electronic interaction. No substantive change results from defining
these terms in this rule.
As the USCIS transformation initiative progresses, electronic
versions of forms and digital images of supporting documents will
largely replace paper forms and documents for adjudication and records
retention purposes. USCIS will specify the process and standards for
the transmission of electronic benefit requests and supporting
documents on its Internet Web site, but it is intended that these
standards will accommodate the technology in most home and public
computers so as to be widely accessible.
DHS is adding a definition of ``form instructions'' to establish
that the term refers to the most recent, approved version of such
instructions available through the USCIS Internet Web site, regardless
of the fact that other editions of these instructions may exist and be
in circulation through other sources. Whether published in paper form
or on the USCIS web site, all form and form instructions will continue
to comply with Paperwork Reduction Act requirements, including public
notice and comment periods. 44 U.S.C. 3507. In addition to traditional
instructions appended to a USCIS form, the term as defined by this rule
encompasses the process information (e.g., filing locations,
instructions on the process for submission of supporting documents)
that USCIS publishes on its Internet Web site in addition to those
traditional instructions, and may also include non-form and non-
substantive guidance such as appendices, exhibits, guidebooks, or
manuals.
USCIS does not publish its Registration for Classification as
Refugee, Form I-590, with instructions for the U.S. Refugee Admissions
Program (USRAP), for general public use. Access to the USRAP is managed
by DOS, and implemented by its overseas processing entities (OPEs).
OPEs assist targeted populations of refugee applicants with preparation
of the Registration for Classification as Refugee. As such, the term
``form instructions'' includes process information that USCIS publishes
about the USRAP.
DHS is adding a definition for the terms ``execute'' or
``executed'' when referring to completion of an application or petition
to request a benefit to ensure consistency across paper and electronic
media.
B. Removing References to Position Titles Within USCIS
Wherever possible, DHS is removing references to official position
titles used within DHS or used in the past by the former Immigration
and Naturalization Service (INS). These titles include director,
district director, and commissioner as well as position descriptions
such as examiner or adjudicator. Both position titles and delegated
authority to perform specific duties assigned to USCIS employees are
subject to change, potentially rendering regulatory references
inaccurate or delaying implementation of planned operational changes.
DHS is revising those titles and position descriptions with USCIS, DHS,
or other component names, as appropriate and necessary to provide DHS
with the operational flexibility required to facilitate adjudication in
an electronic environment. DHS is also replacing obsolete references to
the Attorney General, substituting the Secretary where appropriate.
DHS is, for example, amending 8 CFR 103.7(d) by removing the
specific titles of USCIS employees who are designated to certify
official immigration records. DHS and USCIS will delegate authority to
appropriate officials who may be required to fulfill this
responsibility.
C. Replacing ``Service'' With More Specific Component Names and
Removing References to Particular USCIS Offices
The definition of ``Service'' in newly designated 8 CFR 1.2 is
amended to provide flexibility and promote the goals of transformation.
The regulations in chapter I of the 8 CFR contain provisions that, to
varying degrees, govern facets of all of the immigration components of
DHS--CBP, ICE, and USCIS. Where DHS has determined that the section
being amended by this rule applies only to USCIS, that defined acronym
is inserted to replace the previously named office, position, title, or
component. Where the section pertains to an action that may have been
taken by INS, or a function that is the purview of or shared with
another component, the term ``the Service'' is retained or inserted.
Thus, ``the Service'' in 8 CFR may refer to any immigration-related
component of DHS, including USCIS, ICE, or CBP. As DHS does not purport
to revise every paragraph within 8 CFR, the absence of a change to an
existing usage of ``Service'' in a particular context does not
necessarily indicate a position with respect to component authority in
that context. Similarly, remaining references to the former Immigration
and Naturalization Service and the acronym INS are replaced by more
accurate terms.
D. Removing Information About Procedures for Filing and Internal
Processing of Benefit Requests
Some parts of the regulations include details of the internal
processing and handling of benefit requests or descriptions relating to
submission of paper versions of benefit request forms. Administrative
filing requirements, locations, and procedures will not be prescribed
in regulations but will be outlined in more flexible methods of
conveying instructions. This modification will not change eligibility
criteria or evidentiary standards. See, e.g., 8 CFR 212.7(a)(3) (``* *
* If the application is approved the director shall complete Form I-607
for inclusion in the alien's file.''). See also 8 CFR
214.2(l)(5)(ii)(E), (``* * * The consular officer shall also endorse
all copies of the alien's Form I-129S with the blanket L-1 visa
classification and return the original and one copy to the alien. When
the alien is inspected for entry into the United States, both copies of
the Form I-129S shall be stamped to show a validity period not to
exceed three years and the second copy collected and sent to the
appropriate Regional Service Center for control purposes.'') These
details are not essential to the regulations, do not add substantive
requirements or impose limitations, and unnecessarily burden the text
of the regulations. To the extent that this information is required to
be published, 5 U.S.C. 552(a)(1)(A), (B), DHS will publish an
organization and functions rule in part 2 of 8 CFR. DHS is removing
these types of provisions because they are subject to change during
transformation and because such information is more appropriately
included within field manuals and other instructional materials that
USCIS can readily revise and describe in more detail.
[[Page 53768]]
Terms such as ``in writing,'' ``written decision,'' and ``written
notice'' have not been removed because an electronic transmission
constitutes a valid writing. GPEA provides: ``Electronic records
submitted or maintained in accordance with procedures developed under
this title, or electronic signatures or other forms of electronic
authentication used in accordance with such procedures, shall not be
denied legal effect, validity, or enforceability because such records
are in electronic form.'' Public Law 105-277, tit. XVII, section 1707,
112 Stat. at 2681-751 (Oct. 21, 1998) . GPEA defines electronic
signature as ``* * * a method of signing an electronic message that
identifies and authenticates a particular person as the source of the
electronic message; and indicates such person's approval of the
information contained in the electronic message.'' Id. Thus, as
provided in GPEA, a notice on the status of a request for benefits, a
request for additional evidence, and a notice of approval or denial of
a request for benefits may be effected by electronic communication if
that method is requested by the person who has requested the benefit,
notwithstanding a regulatory provision that requires such notice to be
``in writing.'' Nonetheless, for clarity's sake, 8 CFR 103.8 provides
that electronic delivery of notices suffices in appropriate
circumstances. See new 8 CFR 103.8.
E. Removing Obsolete and Expired Regulatory Provisions; Correcting and
Updating Provisions Affected by Statutory Changes
DHS is also removing regulatory provisions that have expired
because of statutory lapses or self-executing time limits, or that are
obsolete, and to make non-discretionary corrections to provisions
affected by statutory amendments or extensions of time. In addition,
DHS revises obsolete statutory and regulatory citations.
DHS is adding three paragraphs to USCIS fee regulations to reflect
statutory fees which are already collected but which were not
previously included in regulations. See new 8 CFR 103.7(b)(1)(i)(CCC)-
(EEE). The additions provide the $1500 or $750 fee for filing certain
H-1B petitions required by the American Competitiveness and Workforce
Improvement Act (ACWIA), the additional fee of $500 for filing certain
H-1B and L petitions established by Section 426 of the Visa Reform Act
of 2004, and the additional $150 fee for H-2B petitions required by the
Real ID Act of 2005. See, respectively, INA section 214(c)(9)(B), 8
U.S.C. 1184(c)(9)(B); INA section 214(c)(12)(C), 8 U.S.C.
1184(c)(12)(C); INA section 214(c)(13)(C), 8 U.S.C. 1184(c)(13)(B).
These fees are used, generally, for training, scholarships, and fraud
detection and prevention. INA sections 286(s), (v), 8 U.S.C. 1356(s),
(v). USCIS determines liability for both of these fees and calculates
the amount due through a series of questions on the H and L petition
form. The determination process is unchanged by this rulemaking.
Provisions are also added to prescribe a fee of $2000 for certain H-1B
nonimmigrants or $2250 for certain L-1 nonimmigrants as required by
recent legislation. Public Law 111-230, section 402, 124 Stat. 2488
(Aug. 13, 2010). Fees collected pursuant to these sections are
deposited in the General Fund of the Treasury. Id, at section 402(c).
DHS is not required to publish these fees in the CFR since the statute
is clear in requiring their collection and use. Nevertheless, most
USCIS stakeholders know to refer to 8 CFR 103.7 for the proper USCIS
fees, and DHS believes it is a better practice to make sure that these
statutorily mandated fees are also clearly delineated along with the
fees established administratively by DHS through rulemaking.
Section 209.1(f) is a companion provision to match the existing
provision in 8 CFR 209.2(b), which sets out the process and standards
for asylees seeking adjustment of status who require a waiver of
inadmissibility. Since both refugees and asylees applying for
adjustment of status are subject to identical standards for waivers of
inadmissibility these standards are now reflected in this section
addressing both types of applicants. INA section 209(c), 8 U.S.C.
1159(c).
Since the statutory cap on adjustment by asylees has been removed,
the text referencing that cap--at 8 CFR 209.1(a)(1)(vi) and the
sentence that follows--are removed. For the same reason, 8 CFR
209.2(a)(2) is revised by removing the last three sentences of the
paragraph. See Public Law 109-13, tit. I, section 101(g), 119 Stat. 302
(May 11, 2005), 8 U.S.C. 1101 note.
DHS is revising 8 CFR 209.2(d) to clarify that a medical
examination, including compliance with vaccination requirements, is
required of asylees applying for adjustment of status. The vaccination
supplement no longer exists as a stand-alone document but rather is
incorporated into the medical examination. Form instructions provide
detailed guidance regarding the medical examination requirement.
DHS is removing 8 CFR 212.8 and 212.9, relating to nonpreference
investor visas and to former third and sixth preference employment-
based visas, because the provisions are obsolete. The provisions of the
Act that provided for these visas were repealed by section 111 of the
Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978 (Nov. 29,
1990).
DHS is removing 8 CFR 212.11, which regards the admissibility of an
alien who has been convicted of a violation of a law relating to a
controlled substance because it is redundant. This section provided
that in determining the admissibility of an alien who has been
convicted of a violation of any law relating to a controlled substance,
the term controlled substance as used in section 212(a)(23) of the Act
shall mean the same as that referenced in the Controlled Substances
Act, 21 U.S.C. 801, et seq. Section 212(a)(2) of the Act governs
inadmissibility for criminal acts and Section 212(a)(2)(A)(i)(I)
specifically includes violations of the Controlled Substance Act. INA
section 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II).
DHS revised Section 244.17 to reflect current policies and
procedures for re-registration of TPS beneficiaries.
DHS is removing 8 CFR 245.1(e)(2) as obsolete. This section
provided for the adjustment of status of certain nonimmigrant
registered nurses in accordance with the Immigration Nursing Relief Act
of 1989, Public Law 101-238, 103 Stat. 2099 (Dec. 18, 1989), 8 U.S.C.
1182 note. The application period for this provision ended on March 20,
1995, and USCIS no longer has pending applications related to this
provision. This regulation also makes related conforming changes to 8
CFR 245.1(g)(1) and 245.2(a)(5)(ii).
Section 245.9 is removed. This section provided for adjustment of
status for certain Chinese nationals pursuant to the Chinese Student
Protection Act, Pub. L. 102-404, 106 Stat. 1969 (Oct. 9, 1992). The
application period for this provision ended June 30, 1994, and USCIS no
longer has pending applications related to this provision. Id.
Section 245.12 is removed. This section provided for adjustment of
status for certain Polish and Hungarian parolees pursuant to section
646 of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Public Law 104-208, 110 Stat. 3009 (Sep. 30, 1996). Persons
eligible for benefits under this provision must have been paroled into
the U.S. prior to December 31, 1991. USCIS has not received
applications pursuant to this section for several years and is unlikely
to receive any in the future. Public Law 104-208, 110 Stat. 3009 (Sep.
30, 1996).
[[Page 53769]]
Section 245.13 is removed. This section provided for adjustment of
status for certain nationals of Nicaragua and Cuba pursuant to section
202 of the Nicaragua Adjustment and Central American Relief Act, Public
Law 105-100, 111 Stat. 2160, 2193 (Nov. 19, 1997). The application
period for benefits under this provision ended April 1, 2000. USCIS no
longer has pending applications pursuant to this provision. Id.
Section 245.20 is removed . This section provided for adjustment of
status of Syrians granted asylum under the Syrian Adjustment Act,
Public Law 106-378, 114 Stat. 1442 (Oct. 27, 2000). Eligibility under
this provision required entry prior to Dec. 31, 1991. USCIS no longer
has pending applications pursuant to this provision and is unlikely to
receive any in the future.
Section 245.21 is revised because the Consolidated Appropriations
Act of 2005 amended the Indochinese Parolee Act to eliminate the 3-year
filing window and 5,000 visa limit.
Parts 264 and 265 are revised to encompass management of
fingerprinting, registration, and address reporting requirements in an
electronic environment and to remove obsolete references.
This rule adds 8 CFR 316.6 and revises 8 CFR 316.5, 8 CFR 322.2,
and 8 CFR 341.5 to conform to the amendments to the Act by the National
Defense Authorization Act (NDAA 2008), Public Law 110-181, 122 Stat. 3
(Jan. 28, 2008). The NDAA 2008 provides certain immigration benefits
for any qualifying spouse or child of a member of the Armed Forces.
Specifically, the NDAA 2008 amended section 319(e) of the Act; 8 U.S.C.
1430(e), to allow certain spouses of members of the Armed Forces to
count any qualifying time abroad as continuous residence and physical
presence in the United States for purposes of naturalization and to
permit such naturalization to occur outside the United States. INA
section 319(e), 8 U.S.C. 1430(e); INA section 322(d), 8 U.S.C. 1433(d);
8 U.S.C. 1443a.
This rule revises 8 CFR 319.3 to conform to the amendments to the
INA by the National Defense Authorization Act (NDAA 2004), Public Law
108-136, 117 Stat. 1565 (Nov. 24, 2003), which provides certain
immigration benefits relating to the naturalization of any qualifying
surviving child or parent of a member of the Armed Forces.
Specifically, NDAA 2004 provides for the naturalization of any
qualifying surviving child or parent of a member of the Armed Forces
who dies during a period of honorable service, a benefit only
previously afforded to surviving spouses. INA section 319(d), 8 U.S.C.
1430(d).
This rule revises 8 CFR 322.3 to conform to the various legislative
amendments to the Act. Specifically, 8 CFR 322.3(a) was revised to
conform to the 21st Century Department of Justice Appropriations
Authorization Act, Public Law 107-273, enacted on November 2, 2002,
which amended section 322 of the Act to allow U.S. citizen grandparents
and U.S. citizen legal guardians to apply for naturalization on behalf
of a child born and residing outside of the United States. Public Law
107-273, 116 Stat. 1758 (Nov. 2, 2002); see INA section 322, 8 U.S.C.
1433(a). Such an application by the U.S. citizen grandparent or U.S.
citizen legal guardian can be made within 5 years of the death of a
U.S. citizen parent of a child who could otherwise have been the
beneficiary of an application for naturalization under section 322 of
the Act. See Id. This change will conform the regulations to
legislation and current practice.
In addition, current 8 CFR 322.3(a) requires the citizen parent
(or, as appropriate, grandparent or guardian) to include with the
application a request concerning when the applicant would like to have
the child's naturalization interview scheduled. The form instructions
elicit the information needed to schedule the interview. Therefore,
there is no need for a separate provision on this point in 8 CFR
322.3(a).
This rule revises 8 CFR 322.3(b) to conform to the amendments to
the Act made by the Intercountry Adoption Act of 2000, Public Law 106-
279, which added a definition of certain adoptees to section
101(b)(1)(G) of the Act on October 6, 2000. 114 Stat. 825 (Oct. 6,
2000). The new definition describes children adopted in a foreign state
that is a party to the Hague Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption of May 22, 1993. INA
section 101(b)(1)(G), 8 U.S.C. 1101(b)(1)(G). That definition under
section 101(b)(1)(G) of the Act corresponds to the visa categories IH-3
and IH-4 and became effective when the Hague Adoption Convention
entered into force in the United States on April 1, 2008. See id. USCIS
implemented the Intercountry Adoption Act by publishing an interim
rule, ``Classification of Aliens as Children of United States Citizens
Based on Intercountry Adoptions Under the Hague Convention,'' on
October 4, 2007. See 72 FR 56831 (Oct. 4, 2007). The additional changes
in this rule conform to the requirements codified on that date and
which have been followed since April 1, 2008.
In addition, several expired and obsolete naturalization-related
regulatory provisions have been removed, including 8 CFR: 312.3(a)
(standardized citizenship testing), 329.5 (natives of the Philippines
with active duty service during World War II), 332.2 (establishment of
photographic studios), 334.16-334.18 (naturalization petitions),
335.11-335.13 (naturalization petitions), 338.11 and 338.12
(naturalization court processes), 339.2(c) (reports relating to
petitions filed prior to October 1, 1991), and 340.1 (reopening of a
naturalization application by a district director pursuant to section
340(h) of the Act).
In 8 CFR 312.3, paragraph (a) is removed because the ``standardized
citizenship testing'' for applicants for naturalization ended on August
30, 1998. See 63 FR 25080 (May 6, 1998).
Section 329.5 is removed because the filing period for submitting
an application for naturalization under section 405 of the Immigration
Act of 1990, the corresponding statutory naturalization authority,
expired on February 3, 1995. See 8 CFR 329.5(e).
Sections 334.16-334.18, 335.11-335.13, and 339.2(c) are removed
because they relate to any ``petition for naturalization'' filed prior
to October 1, 1991. Such petitions were under the jurisdiction of the
naturalization court until that date. See 8 CFR 310.4; INA section 310,
8 U.S.C. 1421.
F. Revising or Reorganizing Sections or Paragraphs for Clarity and
Consistency, and To Remove Duplicative Information
DHS is reorganizing 8 CFR part 1 (Definitions) and 8 CFR part 103
(Immigration Benefits, Biometric Requirements, Availability of
Records), without substantive change. The reorganization of these
sections does not introduce new obligations, requirements, or
procedures. The reorganization is designed to simplify and rearrange
existing regulatory requirements in a manner which is easier for the
public to identify and understand. This rulemaking also removes
regulatory provisions which repeat statutory or other regulatory
information or which restate filing information that USCIS routinely
includes in its form instructions. None of the changes made effect a
substantive change in the law. DHS is also reorganizing certain parts
of 8 CFR without substantive change. DHS intends, in the recodification
of these regulations, to conform to the understood policy, intent, and
purpose of the original regulations, with such
[[Page 53770]]
amendments and corrections as will remove ambiguities, contradictions,
and other imperfections.
The regulations pertaining to filing and adjudication of
immigration benefits are contained in 8 CFR 103.2. That section also
incorporates the specific requirements contained in USCIS form
instructions. See 8 CFR 103.2(a)(1). Repeating or paraphrasing parts of
this information within other regulations that relate to specific
benefits is unnecessary, possibly confusing, and may be inaccurate.
Such repetition can lead the reader to conclude that a provision is
somehow uniquely applicable to that particular benefit type. For
example, ``* * * The director shall consider all the evidence submitted
and such other evidence as he or she may independently require to
assist his or her adjudication'' is repetitive information found within
another regulation. See 8 CFR 214.2(h)(9)(i). Or, ``* * * A copy of a
document submitted in support of a visa petition filed pursuant to
section 214(d) of the Act and this paragraph may be accepted, though
unaccompanied by the original, if the copy bears a certification by an
attorney, typed or rubber-stamped, in the language set forth in Sec.
204.2(j) of this chapter. However, the original document shall be
submitted if requested by the Service'' is both repetitive and
inaccurate because the referenced paragraph and procedure no longer
exist. See also 8 CFR 214.2(k)(1).
This rule organizes 8 CFR part 103 into four subparts: subpart A--
Applying for Benefits, Surety Bonds, Fees; subpart B--Biometric
Requirements; subpart C--Reserved; and subpart D--Availability of
Records.
Section 103.1 is removed. The delegation of authority, formerly
found in 8 CFR 103.1(a), was redundant of authority specified in 8 CFR
2.1. Section 103.2(a) is revised, primarily to describe alternate
procedures for electronic submission of benefit requests with digital
images of supporting documentation. With the definition of ``benefit
request'' added in 8 CFR part 1, the terms ``application'' and
``petition'' are being replaced by the term ``benefit request'' to
reduce possible confusion regarding the use of specific paper versions
of forms traditionally required to apply for benefits. As stated
earlier, the terms ``petition'' and ``application'' are not being
replaced throughout the rest of this chapter I and will be accorded the
meaning now ascribed to them in 8 CFR part 1. Although this paragraph
was recently revised, the additional changes made by this rule will
clarify filing procedures for both the current environment and the
electronic environment.
Section 103.2, paragraph (a)(7) is revised to describe
establishment and recordation of filing dates for benefit requests in
an electronic environment. That paragraph had previously described
procedures that reflected regular mail, hand delivery, and internal
actions of USCIS for physically handling paper, such as stamping files
with dates by hand. Specific internal procedures for determining how
receipt dates and times are to be associated with a particular benefit
request for which date and time are appropriate, or even essential,
will be established for requests that will be received electronically,
in paper format, or both. USCIS realizes that the date of filing is
very important when a benefit request has a deadline or a date-specific
impact on eligibility. Such benefit requests are not affected by this
rule because the date the benefit request is received by USCIS will
still be recorded in the system. While the internal process for
recording the date when a request is received or complete will not be
promulgated, the ability of filers of a benefit request to obtain a
definitive receipt date will not be affected by removing the
requirement for USCIS to stamp receipt dates.
In addition, 8 CFR 103.2(a)(7) is revised to eliminate possible
inconsistency with 8 CFR 103.2(a)(1), clarifying that USCIS may reject
a benefit request if data have not been entered in required fields.
Further, 8 CFR 103.2(a)(7)(iii) is added to codify the current policy
that there is no appeal when a case is rejected in accordance with this
section. In USCIS parlance, the term ``rejected'' means that the
benefit request and fee payment are returned for failure to comply with
all filing requirements without being fully considered, and can be re-
filed when properly completed, while ``denied'' means that the request
is fully adjudicated and considered, and the applicant is determined
ineligible for the benefit sought. Appeals of rejections are generally
returned without consideration. Therefore, this change is only
clarifying and has no substantive effect.
Section 103.2(b)(1) is revised to update terminology and to clarify
that every applicant or petitioner must remain eligible for the benefit
request at the time of adjudication and that every benefit request must
be submitted with all prescribed supporting documentation. USCIS
longstanding policy and practice, as well as a basic tenet of
administrative law, is that the decision in a particular case is based
on the administrative record that exists at the time the decision is
rendered. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
(1972). Thus, the granting of any benefit request by DHS is not based
solely on what is provided at the time of the initial request and is
contingent on the fact that circumstances will not change during the
processing of a benefit request in such a way so as to render the
applicant ineligible. This change will reduce any confusion that may
exist for those who believe that eligibility is based solely on what is
provided at the time of the initial request and instead will clarify
that eligibility is subject to change if circumstances change while
processing occurs. This clarification may be especially important in
the transformed electronic environment. This revision is not a
substantive change in eligibility criteria and is thus appropriate for
this final rule.
Sections 103.2, paragraphs (b)(4) and (b)(5) are revised to refer
applicants and petitioners to form instructions and other sources for
information on the format in which supporting documentation must be
submitted. It is generally unnecessary to specify the form that an
evidentiary document must be in unless a higher degree of authenticity
is required than a photocopy or reasonably legible facsimile. The form
instructions for a benefit request will clearly spell out when a copy,
original, certified, notarized, or other specific type of document is
required to meet the applicable evidentiary standard. In its
transformation initiative, DHS wants to accept and use scanned or
electronic documents whenever possible and believes that this approach
will also be the most convenient method for the public. As stated,
regulatory provisions that reflect a paper application process impede
that goal. Allowing a digital format instead of a copy would not affect
a person's eligibility for a benefit. Thus, this change is made without
prior public comment.
This rule also eliminates express reference to Form G-884,
currently used to request the return of original documents, and advises
the public to follow USCIS instructions for requesting such documents.
Eliminating reference to a specific form promotes greater regulatory
flexibility and better accommodates future processing efficiencies.
USCIS anticipates using the current form for several years during the
transformation process and will continue to provide instructions for
requesting the return of paper documents retained in DHS files through
its Internet Web site, the USCIS
[[Page 53771]]
Customer Service Center, or other methods. See new 8 CFR 103.2(b)(4).
Section 103.3 is amended by revising the term ``shall file'' to
read ``must submit'' and revising the phrase ``with the office where
the unfavorable decision was made'' to read ``as indicated in the
applicable form instructions'' in the last sentence in paragraph
(a)(2)(i). This change will make this section more consistent with the
changes made and terminology used in the Filing Location Rule. The word
``shall'' is less clear than ``must'' so substituting ``must''
clarifies the provision without changing the clear meaning. While the
terms ``file'' and ``filing'' are not changed throughout 8 CFR by this
rule, the amendment is apt in this instance for clarity because the
term ``file'' seems to imply a paper environment, as opposed to
``submit,'' which lends itself more clearly to both paper and
electronic submissions. The provision requiring submission to a certain
office location is removed in favor of form instructions which, as
defined in this rule, will provide the flexibility to centralize or
otherwise shift appeals based on future needs and developments. No
substantive change is made to eligibility requirements.
As transformation progresses, USCIS develops system interfaces with
other government information systems, reducing reliance on various
forms of documentation currently supplied by benefit applicants. For
example, proof of military service is more readily obtained by USCIS
directly from the Department of Defense than from the applicant.
Section 103.2, paragraph (b)(5) has been amended to clarify that USCIS
may waive submission of documentation that it may obtain through direct
interfaces.
Section 103.5a is redesignated as 103.8 and revised. This revision
provides for electronic delivery of notices instead of paper notices in
appropriate circumstances at the petitioner's or applicant's request.
Absent such a request, a mailed paper notice remains the default option
at this time. Amendments to the descriptions of routine and personal
service used for delivery of notices now include a specific provision
for the use of electronic media for such purposes. For consistency of
process, this rule amends other sections to remove specific
requirements of notice and instead cross references the notice and
service provisions in 8 CFR 103.8.
Section 103.5b is redesignated as 103.9 and revised. References to
Form I-824, currently used to request further action on an approved
benefit request, are removed. As transformation progresses, it is
envisioned that the need for this form will diminish because account
holders will request the services currently provided by the form by
accessing their own accounts.
Section 103.7, paragraph (d) is amended to remove specific
references to officials authorized to certify immigration records. This
change will give USCIS flexibility to delegate authority for this
activity to various officials as necessary for efficiency.
Section 103.2, paragraph (e), relating to fingerprint requirements,
is revised and redesignated as sections 103.16 and 103.17. These
sections have been reorganized and revised to reflect that most USCIS
biometric collection is now accomplished digitally at USCIS offices.
Paragraph (c) of 8 CFR 103.2, explaining the consequences of failure to
provide biometric information, must be read in conjunction with 8 CFR
103.2(b)(13), which provides standard exceptions for such failure. This
regulation removes references to specific offices where applicants must
report for biometrics collection to allow USCIS greater flexibility for
handling such matters. USCIS will continue to provide such information
through other means.
Newly designated 8 CFR 103.17 describes biometric service fee
collection requirements formerly described in 8 CFR 103.2(e). Revisions
to this section more clearly reflect existing regulatory requirements
regarding the authorized collection of biometrics.
Sections 103.8 through 103.11 and sections 103.21 through 103.36,
which pertain to Freedom of Information and Privacy Act requests, are
removed because they are outdated. Current DHS policies and procedures
on these subjects are contained in 6 CFR part 5. New 8 CFR 103.42 has
been added to direct readers to the DHS regulations.
Regulations relating to submission and consideration of benefit
requests are located at 8 CFR 103.2(a)(1) (general filing
instructions), 8 CFR 103.2(b)(1) (demonstrating eligibility for the
benefit), 8 CFR 103.2(b)(16)(ii) (consideration of evidence in
discretionary decisions), and in the form instructions such as for Form
I-129 ``* * * By signing this form you have stated, under penalty of
perjury (28 U.S.C. 1746) that all information and documentation
submitted with this form are true and correct. You have also authorized
the release of any information from your records that USCIS may need to
determine eligibility for the benefit you are seeking and consented to
USCIS verification of such information.'' Accordingly, because
processing and handling information which is broadly applicable to all
USCIS benefit types is set forth in both 8 CFR 103.2 and in the
instructions to various forms, USCIS is removing such information from
regulations governing consideration of specific benefits.
Section 207.1(a) is revised to instruct prospective applicants to
``submi[t] an application, including biometric information, in
accordance with form instructions.'' The term ``form instructions'' is
in turn defined in 8 CFR 1.2 as those prescribed by USCIS on its
official Internet Web site currently, notwithstanding other versions in
circulation, and may also include non-form guidance such as appendices,
exhibits, guidebooks, or manuals. In the context of the U.S. Refugee
Admissions Program (USRAP), USCIS does not publish its Form I-590, with
instructions, for general public use. Instead, access to the USRAP is
managed by the DOS, and implemented by its contracted overseas
processing entities (OPEs). OPEs assist targeted populations of refugee
applicants with preparation of the Form I-590. As such, the term ``form
instructions,'' as defined in 8 CFR 1.2 and used in 8 CFR 207.1(a),
does not refer to traditional instructions appended to a USCIS form,
but rather the process information that USCIS publishes about the
USRAP.
Sections 207.1, paragraphs (b) and (c) are revised by consolidating
the existing firm resettlement rule in paragraph (b) and removing
paragraph (c). To emphasize the legal relevance of the firm
resettlement analysis, this revision moves the third sentence of
original paragraph (b) to the forefront. This consolidated provision
more clearly articulates that the ``considerations'' enumerated in new
paragraphs (b)(1) through (b)(3) apply to the firm resettlement
analysis generally and not, as may be misconstrued from the existing,
bifurcated structure, only to an analysis of whether an applicant is
``not firmly resettled.'' No substantive changes are made by these
structural modifications of the firm resettlement rule.
Re-numbered paragraph 207.2(a) has also been re-titled from
``hearing'' to ``interview,'' to better reflect the nature of USCIS
interaction with refugee applicants. No substantive change is intended.
Section 207.7(d) is amended by eliminating an outdated,
transitional, alternative date (February 28, 2000) for measuring the 2-
year deadline by which such petitions must be filed; there is no change
to the discretionary extension for humanitarian reasons. Lastly, in
anticipation of future processing efficiencies afforded by
transformation, this rule eliminates an express
[[Page 53772]]
requirement that ``separate'' petitions be filed for each qualifying
family member, in favor of guidance that petitioners file ``in
accordance with the form instructions.'' USCIS contemplates retaining
in the ``form instructions'' the requirement that ``separate''
petitions be filed for each qualifying family member, until such time
that USCIS has in place transformed systems to promote additional
processing efficiencies such as consolidating petitions for qualifying
family members. This change will accommodate the adoption of such
efficiencies without need for a future rulemaking.
Section 207.7(f)(3) is amended by adding an opening phrase to the
last sentence, ``[f]or a derivative inside or arriving in the United
States.'' While this section, entitled ``Benefits,'' applies to both
paragraphs (f)(1) (derivative in the United States) and (f)(2)
(derivative outside the United States), the last sentence was added to
clarify that the benefit of employment authorization, incident to
refugee status, becomes available to overseas beneficiaries, not upon
approval of the family petition, but upon travel and their admission
into the United States as refugees.
Section 208.1(b) is revised by replacing ``The Director of
International Affairs'' with ``The Associate Director of USCIS Refugee,
Asylum, and International Operations (RAIO)'' where it first appears
and with ``Associate Director of RAIO'' in later references. Similarly,
section 208.2(a) is revised by replacing ``Office of International
Affairs'' in the title with ``Refugee, Asylum, and International
Operations (RAIO),'' and by replacing ``the Office of International
Affairs'' wherever it appears with ``RAIO.'' As stated earlier this
rule removes specific officers' titles, functions, and authorities
where possible, and employee authorities are generally established
pursuant to 8 CFR section 2.1. However, DHS has determined that the
roles, functions, and authorities of asylum officers and who they
report to are sufficiently distinct as provided in the INA so as to
preclude substitution of USCIS for those titles where they appear in
the Code of Federal Regulations. For example, INA section 235(b)(1)(E),
8 U.S.C. 1225(b)(1)(E), under the expedited removal statute, defines
``asylum officer'' as an ``* * * immigration officer who (i) has had
professional training in country conditions, asylum law, and interview
techniques comparable to that provided to full-time adjudicators of
applications under section 208, and (ii) is supervised by an officer
who meets the conditions described in clause (i) and has had
substantial experience adjudicating asylum applications.'' Retaining
these titles is not expected to impair USRAP and RAIO from applying the
principles of transformation to their operations in the future.
Section 208.5(b)(1)(ii) is revised to perfect an amendment made in
the Filing Location Rule. In that rule, 8 CFR 208.4(b) was revised by
referring applicants to the instructions on the Form I-589 for specific
filing information and thereafter by eliminating specific instructions
contained in former sections 208.4(b)(1)-(5). This rule implements a
conforming amendment to that earlier revision by removing the phrase
``pursuant to Sec. 208.4(b)'' in the last sentence of 8 CFR
208.5(b)(1)(ii).
Moreover, the Filing Location Rule replaced the term ``district
director'' with ``DHS office'' in two locations. With the elimination
of the reference to the ``district director'' in former 8 CFR
208.4(b)(5) (relating to asylum applications filed with the district
director), the remaining reference to ``the DHS office'' in new 8 CFR
208.5(b)(1)(ii) lacks an anchor to an earlier reference. To avoid
confusion as to whether a specific DHS office is empowered under this
provision, 8 CFR 208.5(b)(1)(ii) is revised by replacing ``the DHS
office'' with simply ``DHS'' wherever it appears.
Section 208.7(c) is amended by replacing a mandatory requirement
(if applicable) to submit ``proof that he or she has continued to
pursue his or her asylum application before an immigration judge or
sought administrative or judicial review.'' In anticipation of future
system efficiencies afforded by transformation that may allow USCIS to
gather the data directly from the Executive Office for Immigration
Review (EOIR) within the Department of Justice and federal courts,
USCIS is modifying this provision by replacing the mandatory production
requirement with more flexible text: ``* * * USCIS may require that an
alien establish * * *''. Until such time that system improvements are
in place, USCIS will continue to require production of such evidence
and will communicate such requirements through form instructions, as
defined in 8 CFR 1.2.
Section 208.21(c) is amended by removing an outdated, transitional,
alternative date (February 28, 2000) for measuring the 2-year deadline
by which such petitions must be filed; there is no change to the
discretionary extension for humanitarian reasons. Lastly, in
anticipation of future processing efficiencies afforded by
transformation, this rule eliminates an express requirement that
``separate'' petitions be filed for each qualifying family member, in
favor of ``in accordance with the form instructions.'' USCIS
contemplates retaining in the ``form instructions'' the requirement
that ``separate'' petitions be filed for each qualifying family member,
until such time that USCIS has in place transformed systems to promote
additional processing efficiencies such as consolidating petitions for
qualifying family members.
Section 208.21(d) is revised similar to section 208.21(c) and for
the same reasons.
Section 209.1(c) is amended by removing the last clause relating to
a vaccination supplement completed by a designated civil surgeon. USCIS
recently consolidated the separate vaccination supplement and record of
the medical examination into one form, Report of Medical Examination
and Vaccination Record. Thus the language referring to a separate
supplement is outdated. Relevant guidance will continue to be available
in form instructions. This language is also deleted in anticipation of
future processing efficiencies wherein civil surgeons may have online
accounts through which they may submit reports directly to USCIS
instead of completing paper forms.
Section 209.2(e) is revised by removing the first two sentences of
the original paragraph, retaining only the last sentence. In the
original paragraph, there was an internal inconsistency between the
first sentence (requiring interview of all applicants) and the third
sentence (allowing USCIS to determine whether an interview was
warranted). This revision retains only the sentence that allows USCIS
to determine on a case-by-case basis whether an interview is warranted.
This result is consistent with the companion paragraph at existing 8
CFR 209.1(d) (refugee adjustment interviews) and current USCIS
practice.
Section 209.2(f) is revised for purposes of plain language. To
align with the companion paragraph at 8 CFR 209.1(e), text was added
stating that USCIS will notify a denied applicant of the right to renew
an adjustment request in removal proceedings before EOIR. Otherwise, no
substantive change is intended.
Section 223.2 is reorganized and revised for clarity in addition to
removing references to forms. The revision also clarifies existing
authority to accept and process requests for refugee travel documents
overseas.
Several paragraphs within 8 CFR part 264 are revised and
reorganized for
[[Page 53773]]
clarity. Section 264.1 (registration and fingerprinting requirements)
is revised and reorganized, removing obsolete instructions, general
information duplicated in 8 CFR 103.2, and fingerprinting requirements
now described in 8 CFR 103.16. Section 264.5, paragraph (d)
(replacement of permanent resident cards for conditional residents) is
revised to remove information included on the form instructions for
Form I-90. New 8 CFR 264.5(h) is added to replace information
previously located in 8 CFR 264.1(h). Section 264.6 is revised to
remove obsolete instructions and for clarity.
IV. Discussion of Comments Received in Response to the April 29, 2003,
Interim Rule
DHS published an interim rule with request for comments revising 8
CFR 103.2(a)(2) to permit submission of benefit requests with an
electronic signature when such requests are submitted in an electronic
format rather than on a paper form. Electronic Signature on
Applications and Petitions for Immigration and Naturalization Benefits,
68 FR 23010 (April 29, 2003). That rule implemented the electronic
filing and the acceptance of electronic signatures requirement of GPEA
and meet the requirements of section 461 of the Homeland Security Act
of 2002 for a study of the feasibility of online filing and to
establish an electronic tracking system for applications in order to
provide applicants with access to the status of their applications.
Public Law 107-296 title IV, subtitle E, section 461, 118 Stat. 2202
(Nov. 22, 2002), 6 U.S.C. 278.
USCIS received 13 public comments relating to the interim rule.
Virtually all commenters supported the use of electronic signatures and
urged USCIS to do more to promote a more robust and user-friendly
electronic filing environment. Several of the commenters made specific
proposals recommending enhancements to the current limited electronic
filing procedures available to applicants and petitioners. Various
commenters suggested enhancements to the electronic filing process,
such as acceptance of credit cards for electronic payment, re-use of
data for subsequent transactions, interfaces and compatibility with
commercial immigration software, standards for electronic submission of
supporting documents, provisions for attorney-client electronic
collaboration in the preparation of benefit requests, improvements to
current biometric collection procedures, and protection of the privacy
of data. DHS encourages these types of comments in response to this
rulemaking. The comments will not be addressed here individually
because they exceed the scope of the interim rule, which was limited to
the electronic signature process. The broad subject of the comments,
electronic filing of USCIS benefit requests, will be more fully
addressed as the USCIS transformation progresses.
Several commenters raised concerns about the security of electronic
signatures and described the pros and cons of various existing
technologies. The interim rule did not specify the technology which
will be employed by USCIS for the capture and verification of
electronic signatures. As the transformation initiative is implemented,
USCIS will explore alternatives and adopt an appropriate solution which
is fully compliant with DHS security standards and ensures privacy.
Therefore, no changes are made to the interim rule as a result of the
comments received and the interim rule is adopted as final without
change.
V. Discussion of Other Interim Final Rules Being Finalized
USCIS conducted a review of current and past agency regulatory
activities and identified six interim rules for which no public
comments were received and which were never completed as final
rulemakings. Because some of the provisions of these interim rules are
now either expired or further modified by this rulemaking, DHS is
adopting them as final and, where appropriate, removing or revising the
regulatory language. The interim rules that are adopted as final
include:
Application for Refugee Status; Acceptable Sponsorship
Agreement Guaranty of Transportation, 64 FR 27660 (May 21, 1999);
Adjustment of Status for Certain Syrian Nationals Granted
Asylum in the United States, 66 FR 27445 (May 17, 2001);
Eliminating the Numerical Cap on Mexican TN Nonimmigrants,
69 FR 11287 (March 10, 2004);
Allocation of H-1B Visas Created by the H-1B Visa Reform
Act of 2004, 70 FR 23775 (May 5, 2005);
Classification of Certain Scientists of the Commonwealth
of Independent States of the Former Soviet Union and Baltic States as
Employment-Based Immigrants, 70 FR 21129 (April 25, 2005); and
Revoking Grants of Naturalization, 65 FR 17127 (March 31,
2000).
A summary of, the legal authority for, the public comments received
on, and the changes made to each of these interim rules is as follows:
A. Application for Refugee Status; Acceptable Sponsorship Agreement
Guaranty of Transportation, RIN 1615-AA24
This interim rule required that all sponsorship agreements be
secured before an applicant is granted admission as a refugee at a U.S.
port-of-entry (POE). This is a separate decision from whether or not
such persons can be admitted to the U.S. in refugee status. This rule
permits advantageous treatment for applicants for refugee status who
have their eligibility interviews with a DHS officer scheduled before a
sponsorship agreement has been secured.
This rule implemented section 702 of the Immigration Act of 1990
(IMMACT 90), Public Law 101-649, 104 Stat. 4978 (Nov. 29, 1990). It
allowed a U.S. citizen, a lawful permanent resident petitioner, or an
alien applicant for permanent resident status to seek an exemption from
the general prohibition against approval of immigration benefits based
upon a marriage entered into while the beneficiary or applicant was
under deportation, exclusion or related judicial proceedings. The rule
established procedures to allow persons with bona fide marriages to
obtain immigration benefits without complying with the two year foreign
residency requirements instituted by the Immigration Marriage Fraud
Amendments of 1988 (IMFA). This rule amended 8 CFR 204.2 and 245.1.
USCIS is not modifying these provisions in the current rule.
The Act authorized the Attorney General to admit refugees to the
United States under certain conditions. INA section 207, 8 U.S.C. 1157.
There is no requirement for an applicant to have secured sponsorship in
advance of a determination that he or she meets the Act's definition of
refugee. INA section 101(a)(42), 8 U.S.C. 1101(a)(42). This rule
clarified that sponsorship is a requirement separate and apart from the
determination that an applicant is classified as a refugee.
USCIS received no comments on this interim final rule.
The interim rule amended 8 CFR 207.2. That section is revised
further by this rule to accommodate transformation by removing form
numbers, job titles, extraneous provisions, and internal procedure.
USCIS has not changed the substance of the provisions added by the
interim rule.
B. Adjustment of Status for Certain Syrian Nationals Granted Asylum in
the United States, RIN 1615-AA57
This rule provided adjustment of status to lawful permanent
residents for
[[Page 53774]]
certain nationals of Syria. The interim rule discusses the eligibility
requirements and sets forth procedures for the application of persons
wanting to adjust their status.
The Act provides that all aliens granted asylum are eligible to
apply for adjustment of status 1 year after being granted asylum,
subject to a maximum of 10,000 per year. INA section 209, 8 U.S.C.
1159. Pub. L. 106-378, 114 Stat. 825 (Oct. 27, 2000), waived the annual
limit for a group of Jewish Syrian nationals who were allowed to depart
Syria and enter the United States after December 31, 1991, and who were
subsequently granted asylum in the United States.
No public comments were received.
This final rule removes 8 CFR 245.20 which was added by the interim
rule. That provision is obsolete because no eligible applicants remain.
C. Eliminating the Numerical Cap on Mexican TN Nonimmigrants, RIN 1615-
AA96
This interim rule eliminated the annual numerical cap on Mexican
Professionals under the North American Free Trade Agreement (NAFTA). It
also eliminated the petition for a Mexican-based NAFTA professional and
the corresponding labor condition application (LCA) requirement.
Mexican citizens who come to the U.S. under a TN classification must
apply directly to DOS for a visa. DOS will then adjudicate the alien's
eligibility for TN classification. Upon approval and issuance of a
visa, the alien may then apply for admission to the United States.
These changes to the regulations are consistent with NAFTA's
requirement that the annual numerical cap and petition provisions for
Mexican professionals sunset by January 1, 2004.
On December 17, 1992, the United States, Canada and Mexico signed
the North American Free Trade Agreement (NAFTA), which entered into
force on January 1, 1994. Public Law 103-182, title I, section 101, 107
Stat. 2061 (1993), 19 U.S.C. 3311. NAFTA allows for the temporary entry
of qualified businesspersons from each of the parties to the agreement.
See Public Law 103-182, title III, section 341(a), 107 Stat. 2116
(1993), 19 U.S.C. 3401. Professionals under the NAFTA are admitted to
the United States as Trade NAFTA (TN) nonimmigrant aliens. INA section
214(e), 8 U.S.C. 1184(e). In Appendix 1603.D.4 of NAFTA, NAFTA
established an annual numerical ceiling of 5,500 on Mexican TN
admissions for a period of 10 years. NAFTA Appendix 1603.D.4, INA
section 214(e)(4), (5), 8 U.S.C. 1184(e)(4), (5). The interim rule
eliminated the annual numerical cap for citizens of Mexico seeking a TN
visa as required by expiration of the 10-year period. Id.
No public comments were received.
This rule finalizes the interim rule without change.
D. Allocation of Additional H-1B Visas Created by the H-1B Visa Reform
Act of 2004, RIN 1615-AB32
This interim rule implemented changes made by the Omnibus
Appropriations Act for Fiscal Year 2005 to the numerical limits of H-1B
nonimmigrant visa category and the fees for filing of H-1B petitions.
It also: (1) Informed the public of procedures USCIS used to allocate
in fiscal year 2005, as well as for the future fiscal years starting
with fiscal year 2006; (2) amended and clarified the process that USCIS
will use in the future in allocating all petitions subject to numerical
limitations under the Act; and (3) alerted the public about additional
fees that must accompany certain H-1B petitions.
An H-1B nonimmigrant is an alien employed in a specialty occupation
or a fashion model of distinguished merit and ability. INA section
101(a)(15)(H), 8 U.S.C. 1101(a)(15)(H); 8 CFR 214.2(h)(4). A specialty
occupation requires theoretical and practical application of a body of
specialized knowledge and attainment of a bachelor's or higher degree
in the specific specialty as a minimum qualification for entry into the
United States. Id. The Act provides that the number of nonimmigrants
who may be issued H-1B visas or granted H-1B status may not exceed
65,000 per fiscal year. INA section 214(g), 8 U.S.C. 1184(g). The
65,000 cap does not include H-1B employees of institutions of higher
education, nonprofit research organizations, or governmental research
organizations. The H-1B Visa Reform Act of 2004 added a third exception
to the 65,000 limit, by providing that an additional 20,000 visas would
be available for an alien who has earned a master's or higher degree
from a United States institution of higher education. Omnibus
Appropriations Act for Fiscal Year 2005, Public Law 108-447, div. J,
title IV, 118 Stat. 2809 (Dec. 8, 2004); INA section 214(g)(5)(C), 8
U.S.C. 1184(g)(5)(C). This law also raised the American Competitiveness
and Workforce Improvement Act of 1998 fee (ACWIA) to $1,500 or $750,
depending on the size of the employer, and imposed a $500 fraud
prevention and detection fee (fraud fee) on certain employers filing H-
1B petitions. Id; INA section 214(c)(9), 8 U.S.C. 1184(c)(9). These
fees are required in addition to the base USCIS filing fee.
No public comments were received.
This rule finalizes the interim rule without change.
E. Classification of Certain Scientists of the Commonwealth of
Independent States of the Former Soviet Union and the Baltic States as
Employment-Based Immigrants, RIN 1615-AB14
This interim rule codified the new sunset date of September 30,
2006, for the Soviet Scientists Immigration Act of 1992 (SSIA). The
SSIA allowed USCIS to allot visas to eligible scientists or engineers
of the independent states of the former Soviet Union and the Baltic
states with expertise in nuclear, chemical, biological, or other high-
technology field or defense projects. The rule also codified a new
numerical limit of 950 visas (excluding spouses and children if
accompanying or following to join).
The SSIA provided that up to 950 immigrant visas may be allotted to
eligible scientists or engineers of the independent states of the
former Soviet Union and the Baltic states if the scientists or
engineers had expertise in nuclear, chemical, biological or other high
technology fields or were working on such high technology defense
projects, as defined by the Attorney General. Public Law 102-395, title
VI, section 610, 106 Stat. 1874 (Oct. 6, 1992); INA section
203(b)(2)(A), 8 U.S.C. 1153(b)(2)(A). This program expired on October
24, 1996. The Foreign Relations Authorization Act, Fiscal Year 2003
reinstated the program and, among other changes not applicable to this
interim rule, provided that it would expire 4 years from the date of
enactment. Public Law 107-228, div. B, title XIII, section 1304(d), 116
Stat. 1437 (Sept. 30, 2002); INA section 203(b)(2)(A), 8 U.S.C.
1153(b)(2)(A).
No public comments were received.
This rule removes provisions pertaining to the SSIA because they
have expired. 8 CFR 204.10.
F. Revoking Grants of Naturalization, RIN 1615-AA30
This rule amended the process by which the Service would
administratively reopen and revoke a grant of naturalization. This
interim rule changed the burden of proof that the Service would use in
revocation proceedings and made other changes to the administrative
process. 65 FR 17127 (March 31, 2000).
The Secretary has sole authority to grant a person naturalization
as a United States citizen. INA section 310(a), 8 U.S.C. 1421(a). The
Act also provides
[[Page 53775]]
DHS with the authority ``to correct, reopen, alter, modify, or vacate
an order naturalizing [a] person'' as a United States citizen. INA
section 340(h), 8 U.S.C. 1451(h). The interim rule was promulgated
under this authority.
No public comments were received.
This rule removes regulations that were invalidated on July 20,
2000, by the Ninth Circuit Court of Appeals in a nationwide class
action lawsuit. Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en
banc). That decision held that the Attorney General lacked the
statutory authority to promulgate regulations permitting revocation of
citizenship of a naturalized citizen through administrative
proceedings. Id. See also INA sections 310(a), 340(a), (h), 8 U.S.C.
1421(a), 1451(a), (h). The government did not seek Supreme Court review
of that decision, thus USCIS is precluded from using those regulations
to revoke naturalization. This rule removes the applicable regulations
from 8 CFR 340.10.
VI. Discussion of Comments Received in Response to the June 5, 2009,
Interim Rule
On June 5, 2009, DHS published an interim rule in the Federal
Register ``Removing References to Filing Locations and Obsolete
References to Legacy Immigration and Naturalization Service; Adding a
Provision To Facilitate the Expansion of the Use of Approved Electronic
Equivalents of Paper Forms.'' The rule revised many sections of the 8
CFR, many of which are further revised by this rulemaking.
USCIS received only three comments in response to this rulemaking:
one from an immigration practitioner, one from an organization of
immigration practitioners, and one from an organization representing
businesses which frequently rely on international personnel. A
discussion of those comments follows.
One commenter noted that the revision to 8 CFR 214.2(l)(2)(i)
apparently unintentionally added to the petitioner's burden by
requiring that ``the petitioner shall advise * * * whether a previous
petition has been filed for the same beneficiary * * *'' whereas the
original language stated ``the petitioner shall advise * * * whether it
has filed a petition for the same beneficiary.'' (Emphasis in
original). Although this change was inadvertent and not intended to
affect any right, the requirement as revised is entirely consistent
with both the INA and the current form instructions. The Act limits the
amount of time an alien can spend in the United States as an L-1 or H
nonimmigrant (not just for a particular petitioner). See section
214(c)(2)((D) of the Act, 8 U.S.C. 1184.2(c)(2)(D). The current Form I-
129, Supplement L, question 2 requires submission of copies of USCIS-
issued documents relating to periods of H or L stay in the United
States during the past seven years. It does not limit such submission
to documents relating to the current petitioner. Accordingly, USCIS has
not adopted the commenter's suggestion that we revert to the prior
language.
The commenter made an additional comment regarding the omission of
the word ``of'' from the first sentence in 8 CFR 214.2(l)(2)(ii). USCIS
appreciates notification by the commenter of the typographical error
which will be corrected in this rule. As previously discussed, 8 CFR
part 214 will be reorganized in a future transformation-related
rulemaking.
Another commenter suggests that USCIS avail itself of the
opportunity to revise 8 CFR 212.7 to reflect the fact that K
nonimmigrants may apply for a waiver only pursuant to section 212(d)(3)
of the Act and that such persons may only apply for a waiver under
section 212(h) or 212(i) of the Act at the time of application for
adjustment of status. The commenter noted that both the regulation and
form instruction for Form I-601, Application for Waiver of Ground of
Inadmissibility, are incorrect. USCIS appreciates the comment and the
commenter's suggestions may be addressed in a future rulemaking or with
a form revision. However, the interim rule was limited to removing
filing jurisdiction limitations from regulations. Thus the commenter's
suggestion exceeds the scope of the changes made and will not be
adopted in this rulemaking.
The final commenter addressed the removal of filing jurisdictions
from regulations. The commenter expresses its concern that an
accelerated process for changing filing locations could have an adverse
impact on the public. The commenter was especially concerned about
situations involving statutory or regulatory deadlines for filing where
the public may have insufficient notice of the proposed change.
The same commenter, while supportive of USCIS' transformation
efforts, offered several suggestions to minimize the potential adverse
impacts of this rulemaking. The commenter recommended that, at each
place the regulations are amended, to direct the public to
``instructions on the form,'' and that USCIS add a phrase to explain
that form instructions will be available on line, that any change to
the filing instructions will be provided to the public by formal
announcement no less than 30 days in advance of the change, and that
when a filing jurisdiction changes, USCIS offices formerly designated
to receive such filings continue to accept them for at least 180 days
after the effective date of the change.
USCIS understands and appreciates the commenter's concerns. We
realize that numerous changes in filing instructions and locations may
be confusing. It is our intent to reduce filing locations and
complexity, and change them less often, not more. In the case of time-
sensitive benefit requests, USCIS will keep such factors in mind when
making changes and make adjustments to the change schedule so as to not
result in missing a deadline because of the filing location change.
The commenter suggested that the preamble language describing the
USCIS National Customer Service Center (NCSC) as a source of
information regarding filing locations be removed because its
membership has not gotten consistently reliable information from this
source. The commenter recommended that USCIS customer service
representatives be directed to consult the online form instructions
before offering any advice to applicants regarding filing location.
USCIS regrets any incorrect information that may be provided and always
endeavors to provide the NCSC staff with information regarding filing
requirements so questions may be answered. USCIS encourages the public
to report possible erroneous or outdated messages so that they may be
corrected. No change to the interim rule is made as a result of this
comment.
The commenter also suggests that information about changes to form
and filing instructions be posted in a consistent and prominent
location on USCIS Web site along with a chronological list of all
changes to form instructions, including filing location changes. As the
interim rule stated, filing locations are provided on USCIS form
instructions. The current official version of the form and instructions
are the versions on the USCIS Internet Web site for forms, http://www.uscis.gov/forms. Also, the USCIS home page will alert the public
and stakeholders of any recent or planned filing location changes. In
addition, USCIS will continue to publicize filing location changes with
press releases. Additional suggestions for improving the Web site and
information sharing are welcome.
The commenter also suggested that regulations mandate a 180-day
transition period for filing location changes, during which USCIS would
[[Page 53776]]
accept such benefit requests at both the prior and new filing location.
USCIS works to ensure that benefit requests are not rejected as a
result of abrupt changes in filing location. USCIS announces filing
changes well in advance and generally includes a transition period
considering all factors and circumstances surrounding the change.
However, forwarding mail from offices that formerly handled requests to
the new office is very expensive and an inefficient use of USCIS fee
revenue. USCIS will provide as much lead time as possible before making
filing changes and will implement the changes in such a way so as to
minimize the impacts of the change. However, a 180 day implementation
period for each filing change is impracticable and will not be adopted.
The commenter also expressed a concern that USCIS intends to stop
producing and distributing a paper version of its form instructions. As
transformation continues, the filing of paper forms is expected to
decrease substantially as USCIS expects electronic means to become the
preferred filing method. As was the goal of GPEA and has been the
experience of other Federal agencies that provide electronic filing
options, in the future certain forms or requests may lend themselves to
a totally electronic submission with no paper option. Nevertheless, at
this time, as stated elsewhere in this preamble, USCIS will continue to
provide paper versions of most forms and instructions as well as
portable document format or other electronic versions through its
Internet Web site. Further, the electronic versions of form
instructions will parallel the written form instructions precisely, so
the method chosen should cause no inconsistencies in benefit
eligibility or adjudication.
The commenter also suggested that USCIS provide access to earlier
versions of forms and instructions. Following a form's revisions, USCIS
often provides that previous version of the form are acceptable until
further notice or for a prescribed period. However, when changes are
made to a form because eligibility criteria are changed by law or
regulation, the previous version of a form may be outdated, incomplete,
and unacceptable. Further, for ease of administration and consistency
in adjudication, USCIS prefers to receive the most current version so
the employee reviewing the form knows where to look for the required
data elements. Thus USCIS sees little value in providing previous
versions of forms as a general policy or requirement, and the
commenter's suggestion has not been adopted.
The commenter also suggested that any elimination of
geographically-based jurisdiction should be coupled with a new model
for determining such jurisdiction. The interim rule gave USCIS greater
flexibility to alter filing locations, but it does not change how
internal responsibilities for adjudicating benefit requests are
prescribed. For many benefit requests, notwithstanding their removal
from the CFR, filing locations will seldom or not change. USCIS will
continue to make changes in filing, appearance or jurisdictional
requirements with the convenience of and service to applicants,
petitioners, and beneficiaries as a primary concern. Thus, in response
to this comment, methods of determining jurisdiction are not revised in
this rule.
VII. Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act (APA) requires DHS to provide
public notice and seek public comment on substantive regulations. See 5
U.S.C. 553. The APA, however, excludes certain types of regulations and
permits exceptions for other types of regulations from the public
notice and comment requirement. DHS issues this rule without providing
the opportunity for prior notice and comment for the reasons described
below. DHS nevertheless invites comments on this rule and will consider
all timely comments submitted during the public comment period as
described in the ``Public Participation'' section.
Removal of form numbers and titles, position titles, and procedural
guidance, and reorganization and clarification of 8 CFR. The
Administrative Procedure Act (APA) excepts from the prior notice and
opportunity for comment requirements ``* * * rules of agency
organization, procedure or practice.'' 5 U.S.C. 553(b)(A). This rule
removes form numbers and titles, position titles, and procedural
guidance, reorganizes and clarifies parts of 8 CFR, and makes changes
such as removing Form I-129, district director, instructions for
retaining copies of documents, and instructions for forwarding of
files. Accordingly, to the extent that this rule adopts rules of agency
organization, procedure or practice, those portions of the rule are
excepted from the notice-and-comment requirements under 5 U.S.C.
553(b)(A).
Remove and update outdated provisions. This rule removes provisions
of 8 CFR where statutory authorization has expired, corrects provisions
required by statutory amendments or extensions, removes extraneous or
outdated provisions, and corrects erroneous references. For example,
this rule removes references to the Irish Peace Process Cultural and
Training Program Act because that law was repealed in 2005 and removes
nonpreference investor visas and third and sixth preference employment-
based visas because authorization for these visas was repealed in 1990.
This rule is a ministerial action necessary to conform regulations with
law. Therefore, advance public notice and an opportunity for public
comment is unnecessary and not in the public interest. See 5 U.S.C.
553(b)(3)(B).
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
D. Executive Orders 13563 and 12866
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office
[[Page 53777]]
of Management and Budget has not reviewed it under Executive Order
12866.
There will be no additional costs incurred by any individual or
business as a result of the changes in this rule. The rule will clarify
and revise existing regulations and does not alter the regulations in a
significant manner. Once transformation is complete, USCIS applicants,
petitioners, representatives, and others will realize a significant
savings in time and effort when submitting immigration benefit
requests, seeking case status information, and communicating with
USCIS.
E. Executive Order 13132
This rule 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.
F. Executive Order 12988 Civil Justice Reform
Section 3(c) of Executive Order 12988 requires Executive agencies
to review regulations in light of applicable standards in section 3(a)
and section 3(b) to determine whether they are met or it is
unreasonable to meet one or more of them. DHS has completed the
required review and determined that, to the extent permitted by law,
this final rule meets the relevant standards of Executive Order 12988.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting and recordkeeping
requirements inherent in a rule. Public Law 104-13, 109 Stat. 163 (May
22, 1995). This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act.
H. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small businesses, small
governmental jurisdictions, and small organizations during the
development of their rules. When an agency makes changes effective
through a final rule for which notice and comment are not necessary,
the RFA does not require an agency to prepare a regulatory flexibility
analysis. Accordingly, USCIS has not prepared a regulatory flexibility
analysis.
List of Subjects
8 CFR Part 1
Administrative practice and procedure, Immigration.
8 CFR Part 100
Organization and 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 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 207
Immigration, Refugees, Reporting and recordkeeping requirements.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 209
Aliens, Immigration, Refugees.
8 CFR Part 211
Immigration, Passports and visas, Reporting and recordkeeping
requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 213a
Administrative practice and procedure, Aliens, Immigrants.
8 CFR Part 223
Immigration, Refugees, Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 238
Air Carriers, Aliens, Government contracts, Maritime carriers.
8 CFR Part 240
Administrative practice and procedure, Immigration.
8 CFR Part 241
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 244
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 245a
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 264
Reporting and recordkeeping requirements.
8 CFR Part 265
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 270
Administrative practice and procedure, Aliens, Employment, Fraud;
Penalties.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 287
Immigration, Law enforcement officers.
8 CFR Part 292
Administrative practice and procedure, Immigration, Lawyers,
Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
8 CFR Part 301
Citizenship and naturalization, Reporting and recordkeeping
requirements.
[[Page 53778]]
8 CFR Part 310
Citizenship and naturalization, Courts.
8 CFR Part 312
Citizenship and naturalization, Education.
8 CFR Part 316
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 319
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 320
Citizenship and naturalization, Infants and children, Reporting and
recordkeeping requirements.
8 CFR Part 322
Citizenship and naturalization, Infants and children, Reporting and
recordkeeping requirements.
8 CFR Part 324
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 325
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 328
Citizenship and naturalization, Military personnel, Reporting and
recordkeeping requirements.
8 CFR Part 329
Citizenship and naturalization, Military personnel, Veterans.
8 CFR Part 330
Reporting and recordkeeping requirements, Seamen.
8 CFR Part 332
Citizenship and naturalization, Education, Reporting and
recordkeeping requirements.
8 CFR Part 333
Citizenship and naturalization.
8 CFR Part 334
Administrative practice and procedure, Citizenship and
naturalization, Courts, Reporting and recordkeeping requirements.
8 CFR Part 335
Administrative practice and procedures, Citizenship and
naturalization, Courts, Reporting and recordkeeping requirements.
8 CFR Part 336
Administrative practice and procedure, Citizenship and
naturalization, Courts, Reporting and recordkeeping requirements.
8 CFR Part 337
Citizenship and naturalization, Courts.
8 CFR Part 338
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 339
Citizenship and naturalization, Courts.
8 CFR Part 340
Citizenship and naturalization, Law enforcement.
8 CFR Part 341
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 342
Administrative practice and procedure, Citizenship and
naturalization.
8 CFR Part 343
Citizenship and naturalization.
8 CFR Part 343a
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 343b
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 343c
Archives and records, Citizenship and naturalization, Courts.
8 CFR Part 392
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 499
Citizenship and naturalization.
Accordingly, the interim rules published at 68 FR 23010, on April
29, 2003; 64 FR 27660 on May 21, 1999; 66 FR 27445 on May 17, 2001; 69
FR 11287 on March 10, 2004; 70 FR 23775 on May 5, 2005; 70 FR 21129 on
April 25, 2005; and 65 FR 17127 on March 31, 2000 are adopted as final
without change, and chapter I of title 8 of the Code of Federal
Regulations is amended as follows.
0
1. Part 1 is revised to read as follows:
PART 1--DEFINITIONS
Sec.
1.1 Applicability.
1.2 Definitions.
1.3 Lawfully present aliens for purposes of applying for Social
Security benefits.
Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Pub. L.
107-296, 116 Stat. 2135; 6 U.S.C. 1 et seq.
Sec. 1.1 Applicability.
This part further defines some of the terms already described in
section 101 and other sections of the Immigration and Nationality Act
(66 Stat. 163), as amended, and such other enactments as pertain to
immigration and nationality. These terms are used consistently by
components within the Department of Homeland Security including U.S.
Customs and Border Protection, U.S. Immigration and Customs
Enforcement, and U.S. Citizenship and Immigration Services.
Sec. 1.2 Definitions.
As used in this chapter I, the term:
Act or INA means the Immigration and Nationality Act, as amended.
Aggravated felony means a crime (or a conspiracy or attempt to
commit a crime) described in section 101(a)(43) of the Act. This
definition applies to any proceeding, application, custody
determination, or adjudication pending on or after September 30, 1996,
but shall apply under section 276(b) of the Act only to violations of
section 276(a) of the Act occurring on or after that date.
Application means benefit request.
Arriving alien means an applicant for admission coming or
attempting to come into the United States at a port-of-entry, or an
alien seeking transit through the United States at a port-of-entry, or
an alien interdicted in international or United States waters and
brought into the United States by any means, whether or not to a
designated port-of-entry, and regardless of the means of transport. An
arriving alien remains an arriving alien even if paroled pursuant to
section 212(d)(5) of the Act, and even after any such parole is
terminated or revoked. However, an arriving alien who was paroled into
the United States before April 1, 1997, or who was paroled into the
United States on or after April 1, 1997, pursuant to a grant of advance
parole which the alien applied for and obtained in the United States
prior to the alien's departure from and return to the United States,
will not be treated, solely by reason of that grant of parole, as an
arriving alien under section 235(b)(1)(A)(i) of the Act.
Attorney means any person who is eligible to practice law in, and
is a member in good standing of the bar of,
[[Page 53779]]
the highest court of any State, possession, territory, or Commonwealth
of the United States, or of the District of Columbia, and is not under
any order suspending, enjoining, restraining, disbarring, or otherwise
restricting him or her in the practice of law.
Benefit request means any application, petition, motion, appeal, or
other request relating to an immigration or naturalization benefit,
whether such request is filed on a paper form or submitted in an
electronic format, provided such request is submitted in a manner
prescribed by DHS for such purpose.
Board means the Board of Immigration Appeals within the Executive
Office for Immigration Review, Department of Justice, as defined in 8
CFR 1001.1(e).
Case, unless the context otherwise requires, means any proceeding
arising under any immigration or naturalization law, Executive Order,
or Presidential proclamation, or preparation for or incident to such
proceeding, including preliminary steps by any private person or
corporation preliminary to the filing of the application or petition by
which any proceeding under the jurisdiction of the Service or the Board
is initiated.
CBP means U.S. Customs and Border Protection.
Commissioner means the Commissioner of the Immigration and
Naturalization Service prior to March 1, 2003. Unless otherwise
specified, references after that date mean the Director of U.S.
Citizenship and Immigration Services, the Commissioner of U.S. Customs
and Border Protection, and the Director of U.S. Immigration and Customs
Enforcement, as appropriate in the context in which the term appears.
Day, when computing the period of time for taking any action
provided in this chapter I including the taking of an appeal, shall
include Saturdays, Sundays, and legal holidays, except that when the
last day of the period computed falls on a Saturday, Sunday, or a legal
holiday, the period shall run until the end of the next day which is
not a Saturday, Sunday, or a legal holiday.
Department or DHS, unless otherwise noted, means the Department of
Homeland Security.
Director or district director prior to March 1, 2003, means the
district director or regional service center director, unless otherwise
specified. On or after March 1, 2003, pursuant to delegation from the
Secretary of Homeland Security or any successive re-delegation, the
terms mean, to the extent that authority has been delegated to such
official: asylum office director; director, field operations; district
director for interior enforcement; district director for services;
field office director; service center director; or special agent in
charge. The terms also mean such other official, including an official
in an acting capacity, within U.S. Citizenship and Immigration
Services, U.S. Customs and Border Protection, U.S. Immigration and
Customs Enforcement, or other component of the Department of Homeland
Security who is delegated the function or authority above for a
particular geographic district, region, or area.
EOIR means the Executive Office for Immigration Review within the
Department of Justice.
Executed or execute means fully completed.
Form when used in connection with a benefit or other request to be
filed with DHS to request an immigration benefit, means a device for
the collection of information in a standard format that may be
submitted in paper format or in an electronic format as prescribed by
USCIS on its official Internet Web site. The term Form followed by an
immigration form number includes an approved electronic equivalent of
such form as may be prescribed by the appropriate component on its
official Internet Web site.
Form instructions means instructions on how to complete and where
to file a benefit request, supporting evidence or fees, or any other
required or preferred document or instrument with a DHS immigration
component. Form instructions prescribed by USCIS or other DHS
immigration components on their official Internet Web sites will be
considered the currently applicable version, notwithstanding paper or
other versions that may be in circulation, and may be issued through
non-form guidance such as appendices, exhibits, guidebooks, or manuals.
ICE means U.S. Immigration and Customs Enforcement.
Immigration judge means an immigration judge as defined in 8 CFR
1001.1(l).
Immigration officer means the following employees of the Department
of Homeland Security, including senior or supervisory officers of such
employees, designated as immigration officers authorized to exercise
the powers and duties of such officer as specified by the Act and this
chapter I: aircraft pilot, airplane pilot, asylum officer, refugee
corps officer, Border Patrol agent, contact representative, deportation
officer, detention enforcement officer, detention officer, fingerprint
specialist, forensic document analyst, general attorney (except with
respect to CBP, only to the extent that the attorney is performing any
immigration function), helicopter pilot, immigration agent
(investigations), immigration enforcement agent, immigration
information officer, immigration inspector, immigration officer,
immigration services officer, investigator, intelligence agent,
intelligence officer, investigative assistant, special agent, other
officer or employee of the Department of Homeland Security or of the
United States as designated by the Secretary of Homeland Security as
provided in 8 CFR 2.1.
Lawfully admitted for permanent residence 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. Such status terminates upon entry
of a final administrative order of exclusion, deportation, or removal.
Petition. See Benefit request.
Practice means the act or acts of any person appearing in any case,
either in person or through the preparation or filing of any brief or
other document, paper, application, or petition on behalf of another
person or client before or with DHS.
Preparation, constituting practice, means the study of the facts of
a case and the applicable laws, coupled with the giving of advice and
auxiliary activities, including the incidental preparation of papers,
but does not include the lawful functions of a notary public or service
consisting solely of assistance in the completion of blank spaces on
printed DHS forms, by one whose remuneration, if any, is nominal and
who does not hold himself or herself out as qualified in legal matters
or in immigration and naturalization procedure.
Representation before DHS includes practice and preparation as
defined in this section.
Representative refers to a person who is entitled to represent
others as provided in 8 CFR 292.1(a)(2) through (6) and 8 CFR 292.1(b).
Respondent means an alien named in a Notice to Appear issued in
accordance with section 239(a) of the Act, or in an Order to Show Cause
issued in accordance with 8 CFR 242.1 (1997) as it existed prior to
April 1, 1997.
Secretary, unless otherwise noted, means the Secretary of Homeland
Security.
[[Page 53780]]
Service means U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, and/or U.S. Immigration and Customs
Enforcement, as appropriate in the context in which the term appears.
Service counsel means any immigration officer assigned to represent
the Service in any proceeding before an immigration judge or the Board
of Immigration Appeals.
Transition program effective date as used with respect to extending
the immigration laws to the Commonwealth of the Northern Mariana
Islands means November 28, 2009.
USCIS means U.S. Citizenship and Immigration Services.
Sec. 1.3 Lawfully present aliens for purposes of applying for Social
Security benefits.
(a) Definition of the term an ``alien who is lawfully present in
the United States.'' For the purposes of 8 U.S.C. 1611(b)(2) only, an
``alien who is lawfully present in the United States'' means:
(1) A qualified alien as defined in 8 U.S.C. 1641(b);
(2) An alien who has been inspected and admitted to the United
States and who has not violated the terms of the status under which he
or she was admitted or to which he or she has changed after admission;
(3) An alien who has been paroled into the United States pursuant
to section 212(d)(5) of the Act for less than 1 year, except:
(i) Aliens paroled for deferred inspection or pending removal
proceedings under section 240 of the Act; and
(ii) Aliens paroled into the United States for prosecution pursuant
to 8 CFR 212.5(b)(3);
(4) An alien who belongs to one of the following classes of aliens
permitted to remain in the United States because DHS has decided for
humanitarian or other public policy reasons not to initiate removal
proceedings or enforce departure:
(i) Aliens currently in temporary resident status pursuant to
section 210 or 245A of the Act;
(ii) Aliens currently under Temporary Protected Status (TPS)
pursuant to section 244 of the Act;
(iii) Cuban-Haitian entrants, as defined in section 202(b) of Pub.
L. 99-603, as amended;
(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L.
101-649, as amended;
(v) Aliens currently under Deferred Enforced Departure (DED)
pursuant to a decision made by the President;
(vi) Aliens currently in deferred action status;
(vii) Aliens who are the spouse or child of a United States citizen
whose visa petition has been approved and who have a pending
application for adjustment of status;
(5) Applicants for asylum under section 208(a) of the Act and
applicants for withholding of removal under section 241(b)(3) of the
Act or under the Convention Against Torture who have been granted
employment authorization, and such applicants under the age of 14 who
have had an application pending for at least 180 days.
(b) Non-issuance of a Notice to Appear and non-enforcement of
deportation, exclusion, or removal orders. An alien may not be deemed
to be lawfully present solely on the basis of DHS's decision not to, or
failure to:
(1) Issue a Notice to Appear; or
(2) Enforce an outstanding order of deportation, exclusion or
removal.
PART 100--STATEMENT OF ORGANIZATION
0
2. The authority citation for part 100 continues to read as follows:
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Sec. 100.7 [Removed]
0
3. Section 100.7 is removed.
PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS
0
4. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135; 6 U.S.C. 1 et
seq.; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8
CFR part 2.
0
5. The heading for part 103 is revised as set forth above.
0
6. In part 103, Sec. Sec. 103.1 through 103.10 are designated under
the following subpart A heading:
Subpart A--Applying for Benefits, Surety Bonds, Fees
Sec. 103.1 [Removed and Reserved]
0
7. Section 103.1 is removed and reserved.
0
8. Section 103.2 is amended by:
0
a. Removing the phrases ``petition or application'' and ``application
or petition'' and adding in its place the phrase ``benefit request'';
and by removing the phrase ``petitions and applications'' and adding in
its place the phrase ``benefit requests'' whenever they appear in the
following places:
0
i. Paragraph (a)(2);
0
ii. Paragraph (a)(3);
0
iii. Paragraph (a)(7)(ii);
0
iv. Paragraph (b)(6);
0
v. Paragraph (b)(7);
0
vi. Paragraph (b)(8)(i);
0
vii. Paragraph (b)(8)(ii);
0
viii. Paragraph (b)(8)(iii);
0
ix. Paragraph (b)(9) introductory text;
0
x. Paragraph (b)(9)(ii);
0
xi. Paragraph (b)(10)(i);
0
xii. Paragraph (b)(10)(ii);
0
xiii. Paragraph (b)(11);
0
xiv. Paragraph (b)(12);
0
xv. Paragraph (b)(13)(i);
0
xvi. Paragraph (b)(13)(ii);
0
xvii. Paragraph (b)(14);
0
xviii. Paragraph (b)(15); and
0
xix. Paragraph (b)(18); and
0
b. Revising the section heading;
0
c. Revising paragraph (a)(1);
0
d. Revising the term ``BCIS'' to read ``USCIS'' in paragraph (a)(2)
last sentence;
0
e. Revising the term ``Sec. 1.1(f)'' to read ``Sec. 1.2'' in
paragraph (a)(3) first sentence;
0
f. Revising paragraph (a)(6);
0
g. Revising paragraph (a)(7)(i) and adding paragraph (a)(7)(iii);
0
h. Revising paragraph (b)(1);
0
i. Revising paragraph (b)(4);
0
j. Revising the phrase ``by submitting a properly completed and signed
Form G-884 to the adjudicating USCIS office'' to read ``in accordance
with instructions provided by USCIS'' in paragraph (b)(5) last
sentence;
0
k. Revising the term ``application, petition'' to read ``benefit
request'' in paragraph (b)(7) last sentence;
0
l. Revising the term ``in writing'' to read ``communicated by regular
or electronic mail'' in paragraph (b)(8)(iv) first sentence;
0
m. Revising the second sentence in paragraph (b)(17)(i);
0
n. Revising paragraph (b)(19); and
0
o. Removing paragraph (e).
The revisions and addition read as follows:
Sec. 103.2 Submission and adjudication of benefit requests.
(a) Filing. (1) Preparation and submission. Every benefit request
or other document submitted to DHS must be executed and filed in
accordance with the form instructions, notwithstanding any provision of
8 CFR chapter 1 to the contrary, and such instructions are incorporated
into the regulations requiring its submission. Each benefit request or
other document must be filed with fee(s) as required by regulation.
Benefit requests which require a person to submit biometric information
must also be filed with the biometric service fee in 8 CFR 103.7(b)(1),
for each individual who is required to provide biometrics. Filing fees
and biometric service fees are non-refundable and, except as otherwise
[[Page 53781]]
provided in this chapter I, must be paid when the benefit request is
filed.
* * * * *
(6) Where to file. All benefit requests must be filed in accordance
with the form instructions.
(7) Receipt date. (i) Benefit requests submitted. A benefit request
which is not signed and submitted with the correct fee(s) will be
rejected. A benefit request that is not executed may be rejected.
Except as provided in 8 CFR parts 204, 245, or 245a, a benefit request
will be considered received by USCIS as of the actual date of receipt
at the location designated for filing such benefit request whether
electronically or in paper format. The receipt date shall be recorded
upon receipt by USCIS.
* * * * *
(iii) Rejected benefit requests. A benefit request which is
rejected will not retain a filing date. There is no appeal from such
rejection.
(b) Evidence and processing. (1) Demonstrating eligibility. An
applicant or petitioner must establish that he or she is eligible for
the requested benefit at the time of filing the benefit request and
must continue to be eligible through adjudication. Each benefit request
must be properly completed and filed with all initial evidence required
by applicable regulations and other USCIS instructions. Any evidence
submitted in connection with a benefit request is incorporated into and
considered part of the request.
* * * * *
(4) Supporting documents. Original or photocopied documents which
are required to support any benefit request must be submitted in
accordance with the form instructions.
* * * * *
(17) * * *
(i) * * * These records include alien and other files, arrival
manifests, arrival records, Department index cards, Immigrant
Identification Cards, Certificates of Registry, Declarations of
Intention issued after July 1, 1929, Permanent Resident Cards, or other
registration receipt forms (provided that such forms were issued or
endorsed to show admission for permanent residence), passports, and
reentry permits. * * *
* * * * *
(19) Notification of decision. The Service will notify applicants,
petitioners, and their representatives as defined in 8 CFR part 1 in
writing of a decision made on a benefit request. Documents issued based
on the approval of a request for benefits will be sent to the applicant
or beneficiary.
* * * * *
Sec. 103.3 [Amended]
0
9. Section 103.3 is amended by:
0
a. Revising the term ``shall file'' to read ``must submit'' and
revising the phrase ``with the office where the unfavorable decision
was made'' to read ``as indicated in the applicable form instructions''
in the last sentence in paragraph (a)(2)(i); and
0
b. Revising the term ``Sec. 103.9(a) of this part'' to read ``8 CFR
103.10(e)'' in paragraph (c) last sentence.
Sec. Sec. 103.8 through 103.11 [Removed]
0
10. Sections 103.8 through 103.11 are removed.
Sec. 103.5a [Redesignated as Sec. 103.8]
0
11. Section 103.5a is redesignated as Sec. 103.8.
0
12. Newly redesignated Sec. 103.8 is amended by:
0
a. Revising the section heading;
0
b. Revising the paragraph (a) heading;
0
c. Revising paragraphs (a)(1);
0
d. Removing the ``.'' at the end of paragraph (a)(2)(iv), and adding a
``; or'' in its place; and by
0
e. Adding paragraph (a)(2)(v).
The revisions and addition read as follows:
Sec. 103.8 Service of decisions and other notices.
* * * * *
(a) Types of service--(1) Routine service. (i) Routine service
consists of mailing the notice by ordinary mail addressed to the
affected party and his or her attorney or representative of record at
his or her last known address, or
(ii) If so requested by a party, advising the party of such notice
by electronic mail and posting the decision to the party's USCIS
account.
(2) * * *
(v) If so requested by a party, advising the party by electronic
mail and posting the decision to the party's USCIS account.
* * * * *
Sec. 103.5b [Redesignated as Sec. 103.9]
0
13. Section 103.5b is redesignated as Sec. 103.9.
0
14. Section 103.7 is amended by:
0
a. Revising the term ``BCIS'' to read ``USCIS'' wherever that term
appears in paragraph (a)(1);
0
b. Adding new paragraphs (b)(1)(i)(CCC), (DDD), and (EEE).
The revisions and addition read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(CCC) American Competitiveness and Workforce Improvement Act
(ACWIA) fee. $1500 or $750 for filing certain H-1B petitions as
described in 8 CFR 214.2(h)(19) and USCIS form instructions.
(DDD) Fraud detection and prevention fee. $500 for filing certain
H-1B and L petitions, and $150 for H-2B petitions as described in 8 CFR
214.2(h)(19).
(EEE) Public Law 111-230 fee. Petitioners who are required to
submit the Fraud Detection and Prevention Fee described in paragraph
(b)(1)(i)(DDD) of this section are also required to submit an
additional $2000 for an H-1B petition or an additional $2250 for an L-1
petition if:
(1) The petitioner employs 50 or more persons in the United States;
(2) More than 50 percent of those employees are in H-1B or L-1
status; and
(3) The petition is filed prior to the expiration of section 402 of
Public Law 111-230.
* * * * *
0
15. Newly redesignated Sec. 103.9 is revised to read as follows:
Sec. 103.9 Request for further action on an approved benefit request.
(a) Filing a request. A person may request further action on an
approved benefit request as prescribed by the form instructions.
Requests for further action may be submitted with the original benefit
request or following the approval of such benefit.
(b) Processing. The request will be approved if the requester has
demonstrated eligibility for the requested action. There is no appeal
from the denial of such request.
Sec. 103.12 [Removed]
0
16. Section 103.12 is removed.
Sec. 103.37 [Redesignated as Sec. 103.10]
0
17. Section 103.37 is redesignated as Sec. 103.10.
0
18. Newly redesignated Sec. 103.10 is amended by:
0
a. Redesignating paragraphs (g), (h), and (i) as paragraphs (b), (c),
and (d) respectively;
0
b. Revising the term ``paragraph (f) of this section'' to read
``paragraph (c) of this section or 8 CFR 1003.1(h)(2)'' in newly
redesignated paragraph (c)(2); and by
0
c. Adding paragraph (e).
The addition reads as follows:
Sec. 103.10 Precedent decisions.
* * * * *
(e) Precedent decisions. Bound volumes of designated precedent
[[Page 53782]]
decisions, entitled ``Administrative Decisions under Immigration and
Nationality Laws of the United States,'' may be purchased from the
Superintendent of Documents, U.S. Government Printing Office. Prior to
publication in volume form, current precedent decisions are available
from the Department of Justice, Executive Office for Immigration
Review's Virtual Law Library at: http://www.justice.gov/eoir/vll/libindex.html.
0
19. Section 103.16 is added under an added subpart B heading to read as
follows:
Subpart B--Biometric Requirements
Sec. 103.16 Collection, use and storage of biometric information.
(a) Use of biometric information. Any individual may be required to
submit biometric information if the regulations or form instructions
require such information or if requested in accordance with 8 CFR
103.2(b)(9). DHS may collect and store for present or future use, by
electronic or other means, the biometric information submitted by an
individual. DHS may use this biometric information to conduct
background and security checks, adjudicate immigration and
naturalization benefits, and perform other functions related to
administering and enforcing the immigration and naturalization laws.
(b) Individuals residing abroad. An individual who is required to
provide biometric information and who is residing outside of the United
States must report to a DHS-designated location to have his or her
biometric information collected, whether by electronic or non-
electronic means.
0
20. Section 103.17 is added under subpart B to read as follows:
Sec. 103.17 Biometric service fee.
(a) Required fees. DHS will charge a fee, as prescribed in 8 CFR
103.7(b)(1), for collecting biometric information at a DHS office,
other designated collection site overseas, or a registered State or
local law enforcement agency designated by a cooperative agreement with
DHS to provide biometric collection services, to conduct required law
enforcement checks, and to maintain this biometric information for
reuse to support other benefit requests. Requests for benefits must be
submitted with the biometric service fee for all individuals who are
required to submit biometric information and a biometric services fee
and who reside in the United States at the time of filing for the
benefit.
(b) Non-payment of biometric service fee. (1) If a benefit request
is received by DHS without the correct biometric service fee, DHS will
notify the applicant, petitioner, and, when appropriate, the applicant
or petitioner's representative, of the deficiency, and no further
action will be taken on the benefit request until payment is received.
Failure to submit the correct biometric service fee in response to a
notice of deficiency within the time allotted in the notice will result
in denial of the benefit request. There is no appeal from the denial of
a benefit request for failure to submit the correct biometric service
fee. A motion to reopen a benefit request denied for failure to submit
the correct biometric service fee will be granted only on proof that:
(i) The correct biometric service fee was submitted at the time of
filing the benefit request;
(ii) The correct biometric service fee was submitted in response to
the notice of deficiency within the time allotted in the notice; or
(iii) The notice of deficiency was sent to an address other than
the address on the benefit request or the notice of representation, or
the applicant or petitioner notified DHS, in writing, of a change of
address or change of representation subsequent to filing and before the
notice of deficiency was sent and the DHS notice of deficiency was not
sent to the new address.
(2) If the reason for the deficiency in the biometric service fee
is that a check or financial instrument used to pay the biometric
service fee is returned as not payable, the remitter must be allowed 14
calendar days to pay the fee and any associated service charges. If the
fee and charges are not paid within 14 calendar days, the benefit
request will be denied.
Sec. Sec. 103.20-103.36 [Removed and Reserved]
0
21. Sections 103.20 through 103.36 are removed.
Subpart C--[Reserved]
0
22. Add reserved subpart C.
0
23. Sections 103.38 through 103.41 are designated under the following
subpart D heading:
Subpart D--Availability of Records
* * * * *
0
24. In Sec. 103.41, paragraph (c) is revised to read as follows:
Sec. 103.41 Genealogy request fees.
* * * * *
(c) Manner of submission. The application and fee must be submitted
in accordance with form instructions.
0
25. Section 103.42 is added under subpart D to read as follows:
Sec. 103.42 Rules relating to the Freedom of Information Act (FOIA)
and the Privacy Act.
Immigration-related regulations relating to FOIA and the Privacy
Act are located in 6 CFR part 5.
PART 204--IMMIGRANT PETITIONS
0
26. The authority citation for part 204 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255, 1641; 8 CFR part 2.
Sec. 204.3 [Amended]
0
27. Section 204.3 is amended by:
0
a. Revising the term ``Sec. 103.2(e) of this chapter'' to read ``8 CFR
103.16'' and the terms ``the Service'' and ``The Service'' to read
``USCIS'' wherever the terms appear in paragraph (c)(3); and by
0
b. Revising the term ``BCIS'' to read ``USCIS'', the term ``Form I-
600'' to read ``petition'', and the term ``I-600A'' to read ``advance
processing request'' wherever the terms appear in paragraph (h)(3)(ii).
Sec. 204.4 [Amended]
0
28. Section 204.4 is amended by:
0
a. Revising the term ``Sec. 103.2(e) of this chapter to read ``8 CFR
103.16'' in the second sentence in paragraph (d)(1); and by
0
b. Removing the phrase ``, Form I-360,'' in the last sentence in
paragraph (d)(1).
Sec. 204.6 [Amended]
0
29. In Sec. 204.6, paragraph (l) is removed and reserved.
Sec. 204.10 [Removed and Reserved]
0
30. Section 204.10 is removed and reserved.
Sec. 204.302 [Amended]
0
31. In Sec. 204.302, paragraph (b), first sentence, is amended by
revising the term ``8 CFR 1.1(i), (j) and (m),'' to read ``8 CFR 1.2''.
Sec. 204.310 [Amended]
0
32. In Sec. 204.310, paragraph (b), first sentence, is amended by
revising the term ``8 CFR 103.2(e)'' to read ``8 CFR 103.16''.
PART 207--ADMISSION OF REFUGEES
0
33. The authority citation for part 207 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR
part 2.
0
34. Section 207.1 is revised to read as follows:
[[Page 53783]]
Sec. 207.1 Eligibility.
(a) Filing. Any alien who believes he or she is a refugee as
defined in section 101(a)(42) of the Act, and is included in a refugee
group identified in section 207(a) of the Act, may apply for admission
to the United States by submitting an application, including biometric
information, in accordance with the form instructions, as defined in 8
CFR 1.2.
(b) Firmly resettled. Any applicant (other than an applicant for
derivative refugee status under 8 CFR 207.7) who has become firmly
resettled in a foreign country is not eligible for refugee status under
this chapter I. A refugee is considered to be ``firmly resettled'' if
he or she has been offered resident status, citizenship, or some other
type of permanent resettlement by a country other than the United
States and has traveled to and entered that country as a consequence of
his or her flight from persecution. Any applicant who claims not to be
firmly resettled in a foreign country must establish that the
conditions of his or her residence in that country are so restrictive
as to deny resettlement. In determining whether or not an applicant is
firmly resettled in a foreign country, the officer reviewing the matter
shall consider the conditions under which other residents of the
country live:
(1) Whether permanent or temporary housing is available to the
refugee in the foreign country;
(2) Nature of employment available to the refugee in the foreign
country; and
(3) Other benefits offered or denied to the refugee by the foreign
country which are available to other residents, such as right to
property ownership, travel documentation, education, public welfare,
and citizenship.
(c) Immediate relatives and special immigrants. Any applicant for
refugee status who qualifies as an immediate relative or as a special
immigrant shall not be processed as a refugee unless it is in the
public interest. The alien shall be advised to obtain an immediate
relative or special immigrant visa and shall be provided with the
proper petition forms to send to any prospective petitioners. An
applicant who may be eligible for classification under sections 203(a)
or 203(b) of the Act, and for whom a visa number is now available,
shall be advised of such eligibility but is not required to apply.
0
35. Section 207.2 is revised to read as follows:
Sec. 207.2 Applicant processing.
(a) Interview. Each applicant 14 years old or older shall appear in
person before an immigration officer for inquiry under oath to
determine his or her eligibility for admission as a refugee.
(b) Medical examination. Each applicant shall submit to a medical
examination as required by sections 221(d) and 232(b) of the Act.
(c) Sponsorship. Each applicant must be sponsored by a responsible
person or organization. Transportation for the applicant from his or
her present abode to the place of resettlement in the United States
must be guaranteed by the sponsor.
0
36. Section 207.3 is revised to read as follows:
Sec. 207.3 Waivers of inadmissibility.
(a) Authority. Section 207(c)(3) of the Act sets forth grounds of
inadmissibility under section 212(a) of the Act which are not
applicable and those which may be waived in the case of an otherwise
qualified refugee and the conditions under which such waivers may be
approved.
(b) Filing requirements. An applicant may request a waiver by
submitting an application for a waiver in accordance with the form
instructions. The burden is on the applicant to show that the waiver
should be granted based upon humanitarian grounds, family unity, or the
public interest. The applicant shall be notified in writing of the
decision, including the reasons for denial if the application is
denied. There is no appeal from such decision.
0
37. Section 207.4 is revised to read as follows:
Sec. 207.4 Approved application.
Approval of a refugee application by USCIS outside the United
States authorizes CBP to admit the applicant conditionally as a refugee
upon arrival at the port within four months of the date the refugee
application was approved. There is no appeal from a denial of refugee
status under this chapter.
0
38. Section 207.5 is revised to read as follows:
Sec. 207.5 Waiting lists and priority handling.
Waiting lists are maintained for each designated refugee group of
special humanitarian concern. Each applicant whose application is
accepted for filing by USCIS shall be registered as of the date of
filing. The date of filing is the priority date for purposes of case
control. Refugees or groups of refugees may be selected from these
lists in a manner that will best support the policies and interests of
the United States. The Secretary may adopt appropriate criteria for
selecting the refugees and assignment of processing priorities for each
designated group based upon such considerations as reuniting families,
close association with the United States, compelling humanitarian
concerns, and public interest factors.
0
39. Section 207.7 is amended by:
0
a. Revising the term ``U.S. Attorney General'' to read ``Secretary'' in
paragraph (b)(5);
0
b. Revising paragraph (d);
0
c. Removing the last two sentences in paragraph (e); and
0
d. Revising paragraph (f).
The revisions read as follows:
Sec. 207.7 Derivatives of refugees.
* * * * *
(d) Filing. A refugee may request accompanying or following-to-join
benefits for his or her spouse and unmarried, minor child(ren) (whether
the spouse and children are inside or outside the United States) by
filing a petition in accordance with the form instructions. The
petition may only be filed by the principal refugee. Family members who
derived their refugee status are not eligible to request derivative
benefits on behalf of their spouses and child(ren). A petition must be
filed for each qualifying family member within 2 years of the refugee's
admission to the United States, unless USCIS determines that the filing
period should be extended for humanitarian reasons. There is no time
limit imposed on a family member's travel to the United States once the
petition has been approved, provided that the relationship of spouse or
child continues to exist and approval of the petition has not been
subsequently revoked. There is no fee for this petition.
* * * * *
(f) Approvals. (1) Spouse or child in the United States. When a
spouse or child of a refugee is in the United States and the petition
is approved, USCIS will notify the refugee of such approval. Employment
will be authorized incident to status.
(2) Spouse or child outside the United States. When a spouse or
child of a refugee is outside the United States and the petition is
approved, USCIS will notify the refugee of such approval. USCIS will
send the approved petition to the Department of State for transmission
to the U.S. Embassy or Consulate having jurisdiction over the area in
which the refugee's spouse or child is located.
(3) Benefits. The approval of the petition shall remain valid for
the duration of the relationship to the refugee and, in the case of a
child, while the child is under 21 years of age and unmarried, provided
also that the
[[Page 53784]]
principal's status has not been revoked. However, the approved petition
will cease to confer immigration benefits after it has been used by the
beneficiary for admission to the United States as a derivative of a
refugee. For a derivative inside or arriving in the United States,
USCIS will issue a document reflecting the derivative's current status
as a refugee to demonstrate employment authorization, or the derivative
may apply, under 8 CFR 274a.12(a), for evidence of employment
authorization.
* * * * *
0
40. Section 207.9 is revised to read as follows:
Sec. 207.9 Termination of refugee status.
The refugee status of any alien (and of the spouse or child of the
alien) admitted to the United States under section 207 of the Act will
be terminated by USCIS if the alien was not a refugee within the
meaning of section 101(a)(42) of the Act at the time of admission.
USCIS will notify the alien in writing of its intent to terminate the
alien's refugee status. The alien will have 30 days from the date
notice is served upon him or her in accordance with 8 CFR 103.8, to
present written or oral evidence to show why the alien's refugee status
should not be terminated. There is no appeal under this chapter I from
the termination of refugee status by USCIS. Upon termination of refugee
status, USCIS will process the alien under sections 235, 240, and 241
of the Act.
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
41. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Pub. L.
110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.
Sec. 208.1 [Amended]
0
42. Section 208.1 is amended by:
0
a. Revising in the last sentence of paragraph (a)(1) the term ``8 CFR
parts 3 and 103, where applicable'' to read ``8 CFR parts 103 and 1003,
as applicable''; and
0
b. Revising in paragraph (b) the term ``The Director of International
Affairs'' to read ``The Associate Director of USCIS Refugee, Asylum,
and International Operations (RAIO)''.
Sec. 208.2 [Amended]
0
43. Section 208.2 is amended in paragraph (a) by revising the paragraph
heading to read: ``Refugee, Asylum, and International Operations
(RAIO)'' and by revising the terms ``the Office of International
Affairs'' and ``The Office of International Affairs'' to read: ``RAIO''
wherever they appear.
Sec. 208.5 [Amended]
0
44. Section 208.5 is amended by:
0
a. Removing the phrase ``, pursuant to Sec. 208.4(b),'' in the last
sentence of paragraph (b)(1)(ii);
0
b. Revising the phrase ``The DHS office'' to read ``DHS'' and by
revising the phrase ``the DHS office'' to read ``DHS'' in paragraph
(b)(1)(ii); and
0
c. Revising the term ``Attorney General'' to read ``Secretary'' in
paragraph (b)(2).
0
45. Section 208.7 is amended by:
0
a. Revising the phrase ``submit a Form I-765, Application for
Employment Authorization'' to read ``request employment authorization''
in paragraph (a)(1), first sentence;
0
b. Revising the term ``Form I-765'' to read ``employment authorization
request'' in paragraph (a)(1), last sentence;
0
c. Revising the phrase ``the Service'' to read ``USCIS'' in paragraph
(a)(2), first sentence;
0
d. Revising the phrase ``the Commissioner'' to read ``USCIS'' in
paragraph (b), introductory text; and
0
e. Revising paragraph (c), introductory text.
The revision reads as follows:
Sec. 208.7 Employment authorization.
* * * * *
(c) Supporting evidence for renewal of employment authorization. In
order for employment authorization to be renewed under this section,
the alien must request employment authorization in accordance with the
form instructions. USCIS may require that an alien establish that he or
she has continued to pursue an asylum application before an immigration
judge or sought administrative or judicial review. For purposes of
employment authorization, pursuit of an asylum application is
established by presenting one of the following, depending on the stage
of the alien's immigration proceedings:
* * * * *
Sec. 208.9 [Amended]
0
46. In Sec. 208.9, paragraph (b) is amended by removing the phrase
``electronically or through any other means designated by the Attorney
General''.
Sec. 208.10 [Amended]
0
47. Section 208.10 is amended by revising the term ``the Office of
International Affairs'' to read ``USCIS'' in the third sentence.
Sec. 208.12 [Amended]
0
48. In Sec. 208.12, paragraph (a) is amended by revising the term
``the Office of International Affairs, other Service offices,'' to read
``other USCIS offices''.
Sec. 208.14 [Amended]
0
49. In Sec. 208.14, paragraph (b) is amended by revising the term
``Office of International Affairs'' to read ``RAIO''.
0
50. Section 208.21 is amended by revising paragraphs (c) and (d) to
read as follows:
Sec. 208.21 Admission of the asylee's spouse and children.
(c) Spouse or child in the United States. When a spouse or child of
an alien granted asylum is in the United States, but was not included
in the asylee's application, the asylee may request accompanying or
following-to-join benefits for his or her spouse or child, regardless
of the status of that spouse or child in the United States, in
accordance with the form instructions. The petition must be filed by
the asylee for each qualifying family member within 2 years of the date
in which he or she was granted asylum status, unless it is determined
by USCIS that this period should be extended for humanitarian reasons.
Upon approval of the petition, USCIS will notify the asylee of such
approval. Employment will be authorized incident to status. To
demonstrate employment authorization, USCIS will issue a document
reflecting the derivative's current status as an asylee, or the
derivative may apply, under 8 CFR 274a.12(a), for evidence of
employment authorization. The approval of the derivative benefits
petition shall remain valid for the duration of the relationship to the
asylee and, in the case of a child, while the child is under 21 years
of age and unmarried, provided also that the principal's status has not
been revoked. However, the approved petition will cease to confer
immigration benefits after it has been used by the beneficiary for
admission to the United States as a derivative of an asylee.
(d) Spouse or child outside the United States. When a spouse or
child of an alien granted asylum is outside the United States, the
asylee may request accompanying or following-to-join benefits for his
or her spouse or child(ren) by filing a separate petition for each
qualifying family member in accordance with the form instructions. A
petition for each qualifying family member must be filed within 2 years
of the date in which the asylee was granted asylum, unless USCIS
determines that the filing period should be extended for
[[Page 53785]]
humanitarian reasons. When a petition is approved, USCIS will notify
the asylee of such approval. USCIS will also send the approved petition
to the Department of State for transmission to the U.S. Embassy or
Consulate having jurisdiction over the area in which the asylee's
spouse or child is located. The approval of the petition shall remain
valid for the duration of the relationship to the asylee and, in the
case of a child, while the child is under 21 years of age and
unmarried, provided also that the principal's status has not been
revoked. However, the approved petition will cease to confer
immigration benefits after it has been used by the beneficiary for
admission to the United States as a derivative of an asylee.
* * * * *
0
51. Section 208.24 is amended by:
0
a. Revising paragraph (a) introductory text;
0
b. Revising paragraph (b) introductory text; and by
0
c. Revising the term ``Sec. 3.2 or Sec. 3.23 of this chapter'' to
read 8 CFR 1003.2 and 8 CFR 1003.23'' and by revising the term ``the
Service'' to read ``USCIS'', wherever the term appears in paragraph
(f).
The revisions read as follows:
Sec. 208.24 Termination of asylum or withholding of removal or
deportation.
(a) Termination of asylum by USCIS. Except as provided in paragraph
(e) of this section, an asylum officer may terminate a grant of asylum
made under the jurisdiction of USCIS if, following an interview, the
asylum officer determines that:
* * * * *
(b) Termination of withholding of deportation or removal by USCIS.
Except as provided in paragraph (e) of this section, an asylum officer
may terminate a grant of withholding of deportation or removal made
under the jurisdiction of USCIS if the asylum officer determines,
following an interview, that:
* * * * *
0
52. Section 208.30 is amended by revising paragraph (d)(3) to read as
follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
* * * * *
(d) * * *
(3) The alien may be required to register his or her identity.
* * * * *
Sec. 208.31 [Amended]
0
53. In Sec. 208.31, paragraph (a) is amended by revising the term
``The Service'' to read ``USCIS'' in the last sentence.
PART 209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED
ASYLUM
0
54. The authority citation for part 209 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252,
1282; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.
0
55. Section 209.1 is amended by:
0
a. Revising paragraph (a)(1);
0
b. Revising paragraph (b);
0
c. Removing from paragraph (c) last sentence the phrase ``, by
submitting with the adjustment of status application a vaccination
supplement, completed by a designated civil surgeon in the United
States'';
0
d. Revising paragraphs (d) and (e); and
0
e. Adding paragraph (f).
The revisions read as follows:
Sec. 209.1 Adjustment of status of refugees.
* * * * *
(a) Eligibility. (1) Every alien in the United States who is
classified as a refugee under 8 CFR part 207, whose status has not been
terminated, is required to apply to USCIS one year after entry in order
for USCIS to determine his or her admissibility under section 212 of
the Act, without regard to paragraphs (4), (5), and (7)(A) of section
212(a) of the Act.
* * * * *
(b) Application. Upon admission to the United States, every refugee
entrant will be notified of the requirement to submit an application
for permanent residence one year after entry. An application for the
benefits of section 209(a) of the Act must be submitted along with the
biometrics required by 8 CFR 103.16 and in accordance with the
applicable form instructions.
* * * * *
(d) Interview. USCIS will determine, on a case-by-case basis,
whether an interview by an immigration officer is necessary to
determine the applicant's admissibility for permanent resident status
under this part.
(e) Decision. USCIS will notify the applicant in writing of the
decision on his or her application. There is no appeal of a denial, but
USCIS will notify an applicant of the right to renew the request for
permanent residence in removal proceedings under section 240 of the
Act. If the applicant is found to be admissible for permanent residence
under section 209(a) of the Act, USCIS will approve the application,
admit the applicant for lawful permanent residence as of the date of
the alien's arrival in the United States, and issue proof of such
status.
(f) Inadmissible Alien. An applicant who is inadmissible to the
United States as described in 8 CFR 209.1(a)(1), may, under section
209(c) of the Act, have the grounds of inadmissibility waived by USCIS
except for those grounds under sections 212(a)(2)(C) and 212(a)(3)(A),
(B), (C), or (E) of the Act for humanitarian purposes, to ensure family
unity, or when it is otherwise in the public interest. An application
for the waiver may be requested with the application for adjustment, in
accordance with the form instructions.
0
56. Section 209.2 is amended by:
0
a. Revising the term ``the director'' to read ``USCIS'' whenever that
term appears in paragraph (a)(2);
0
b. Removing the undesignated paragraph at the end of paragraph (a)(1);
0
c. Removing the second, third, and last sentences in paragraph (a)(2);
and
0
d. Revising paragraphs (b) through (f).
The revisions read as follows:
Sec. 209.2 Adjustment of status of aliens granted asylum.
* * * * *
(b) Inadmissible Alien. An applicant who is not admissible to the
United States as described in 8 CFR 209.2(a)(1)(v), may, under section
209(c) of the Act, have the grounds of inadmissibility waived by USCIS
except for those grounds under sections 212(a)(2)(C) and 212(a)(3)(A),
(B), (C), or (E) of the Act for humanitarian purposes, to ensure family
unity, or when it is otherwise in the public interest. An application
for the waiver may be requested with the application for adjustment, in
accordance with the form instructions. An applicant for adjustment
under this part who has had the status of an exchange alien
nonimmigrant under section 101(a)(15)(J) of the Act, and who is subject
to the foreign resident requirement of section 212(e) of the Act, shall
be eligible for adjustment without regard to the foreign residence
requirement if otherwise eligible for adjustment.
(c) Application. An application for the benefits of section 209(b)
of the Act may be filed in accordance with the form instructions. If an
alien has been placed in removal, deportation, or exclusion
proceedings, the application can be filed and considered only in
proceedings under section 240 of the Act.
(d) Medical examination. For an alien seeking adjustment of status
under section 209(b) of the Act, the alien shall
[[Page 53786]]
submit a medical examination to determine whether any grounds of
inadmissibility described under section 212(a)(1)(A) of the Act apply.
The asylee is also required to establish compliance with the
vaccination requirements described under section 212(a)(1)(A)(ii) of
the Act.
(e) Interview. USCIS will determine, on a case-by-case basis,
whether an interview by an immigration officer is necessary to
determine the applicant's admissibility for permanent resident status
under this part.
(f) Decision. USCIS will notify the applicant in writing of the
decision on his or her application. There is no appeal of a denial, but
USCIS will notify an applicant of the right to renew the request in
removal proceedings under section 240 of the Act. If the application is
approved, USCIS will record the alien's admission for lawful permanent
residence as of the date one year before the date of the approval of
the application, but not earlier than the date of the approval for
asylum in the case of an applicant approved under paragraph (a)(2) of
this section.
PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS
0
57. The authority citation for part 211 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8
CFR part 2.
0
58. Section 211.1 is amended by:
0
a. Revising paragraph (b)(3); and
0
b. Removing paragraph (d).
The revision reads as follows:
Sec. 211.1 Visas.
(b) * * *
(3) If an immigrant alien returning to an unrelinquished lawful
permanent residence in the United States after a temporary absence
abroad believes that good cause exists for his or her failure to
present an unexpired immigrant visa, permanent resident card, or
reentry permit, the alien may file an application for a waiver of this
requirement with the DHS officer with jurisdiction over the port of
entry where the alien arrives. To apply for this waiver, the alien must
file the designated form with the fee prescribed in 8 CFR 103.7(b)(1).
If the alien's permanent resident card was lost or stolen and the alien
has been absent for less than one year, rather than the waiver
application the alien must apply for a replacement card as described in
8 CFR 264.5. In the exercise of discretion, the DHS officer who has
jurisdiction over the port of entry where the alien arrives may waive
the alien's lack of an immigrant visa, permanent resident card, or
reentry permit and admit the alien as a returning resident if DHS is
satisfied that the alien has established good cause for the alien's
failure to present an immigrant visa, permanent resident card, or
reentry permit. Filing a request to replace a lost or stolen card will
serve as both application for replacement and as application for waiver
of passport and visa, without the obligation to file a separate waiver
application.
* * * * *
Sec. 211.2 [Amended]
0
59. In Sec. 211.2, paragraph (b) is amended in the second sentence by
revising the phrase ``file Form I-193, Application for Waiver of
Passport and/or Visa'', to read ``apply on the form specified by
USCIS''.
0
60. Section 211.3 is amended by:
0
a. Revising the section heading; and
0
b. Revising the term ``Form I-551'' to read ``a permanent resident
card'' whenever the term appears in the first sentence.
The revision reads as follows:
Sec. 211.3 Expiration of immigrant visa or other travel document.
* * * * *
Sec. 211.5 [Amended]
0
61. Section 211.5 is amended by:
0
a. Revising the phrase ``Form I-551 or I-688 shall become'' to read
``the alien's permanent resident card becomes'' in the last sentence in
paragraph (b); and
0
b. Revising the term ``on Form I-90'' to read ``in accordance with 8
CFR 264.5'' in the last sentence of paragraph (c).
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
62. The authority citation for part 212 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note (Pub.
L. 108-458, Sec. 7209, 118 Stat. 3638; Public Law 110-229, tit.
VII, 122 Stat. 754; 8 CFR part 2.
Sec. 212.1 [Amended]
0
63. In Sec. 212.1, paragraph (n) is removed and reserved.
Sec. 212.2 [Amended]
0
64. Section 212.2 is amended by revising the term ``the Form I-212'' or
``Form I-212'' to read ``the application'' wherever it appears in the
following places:
0
a. Paragraph (b)(1);
0
b. Paragraph (b)(2);
0
c. Paragraph (e), in the last sentence;
0
d. Paragraph (f);
0
e. Paragraph (i)(1) introductory text; and
0
f. Paragraph (i)(2).
0
65. Section 212.2 is further amended by:
0
a. Revising the term ``sections 212(a)(17) and 212(d)(3)(A) of the Act
and Sec. 212.4 of this part'' to read ``sections 212(a)(9)(A) and
212(d)(3)(A) of the Act and 8 CFR 212.4'' in the second sentence of
paragraph (b)(1);
0
b. Revising the phrase ``Form I-212, Application for Permission to
Reapply for Admission into the United States after Deportation or
Removal,'' to read ``an application on the form designated by USCIS
with the fee prescribed in 8 CFR 103.7(b)(1), in accordance with the
form instructions,'' in the last sentence of paragraph (b)(1);
0
c. Revising the phrase ``an application on Form I-212'' to read ``the
application on the form designated by USCIS with the fee prescribed in
8 CFR 103.7(b)(1), in accordance with the form instructions'' in
paragraph (c)(1)(ii);
0
d. Revising the phrase ``the Form I-212 to the Service office with
jurisdiction over the area within which the consular officer is
located'' to read ``the application to the designated USCIS office'' in
paragraph (c)(2);
0
e. Revising the phrase ``Form I-212'' to read ``the waiver request on
the form designated by USCIS'' in the first sentence in paragraph (d);
0
f. Revising the phrase ``Form I-601, Application for Waiver of Grounds
of Excludability, must be filed simultaneously with the Form I-212'' to
read ``he or she must file both waiver requests simultaneously on the
forms designated by USCIS with the fees prescribed in 8 CFR 103.7(b)(1)
and in accordance with the form instructions'' in the last sentence in
paragraph (d).
0
g. Revising the phrase ``Form I-212, Application for Permission to
Reapply'' to read ``the application on the form designated by USCIS''
in the second sentence in paragraph (e);
0
h. Revising the phrase ``file Form I-212'' to read ``apply on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions'' in the first sentence in
paragraph (g)(1) introductory text;
0
i. Removing the last sentence in paragraph (g)(1) introductory text;
0
j. Removing paragraphs (g)(1)(i) and (ii);
0
k. Revising the term ``8 CFR 245.15(t)(2)'' to read ``8 CFR
245.15(t)(2) or 8 CFR 245.13(k)(2)'' in the first sentence of paragraph
(g)(2);
[[Page 53787]]
0
l. Revising the phrase ``Form I-212 or Form I-601 concurrently with the
Form I-131, Application for Travel Document'' to read ``waiver form
concurrently with the parole request'' in the first sentence in
paragraph (g)(2);
0
m. Removing the last sentence in paragraph (g)(2); and by
0
n. Revising the phrase ``section 212(a)(16) or (17) of the Act'' to
read ``section 212(a)(9)(A) of the Act'' in the second sentence of
paragraph (j).
Sec. 212.3 [Amended]
0
66. In Sec. 212.3, paragraph (a) is amended by revising the phrase
``Form I-191, Application for Advance Permission to Return to
Unrelinquished Domicile'' to read ``the form designated by USCIS with
the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form
instructions''.
Sec. 212.4 [Amended]
0
67. Section 212.4 is amended by:
0
a. Revising the term ``Form I-192 to the district director in charge of
the applicant's intended port of entry prior to the applicant's arrival
in the United States'', to read ``the form designated by USCIS with the
fee prescribed in 8 CFR 103.7(b)(1), and in accordance with the form
instructions'' in the first sentence in paragraph (b);
0
b. Removing the term ``of Form I-854, Inter-Agency Alien Witness and
Informant Record,'' in the first sentence of paragraph (j)(1); and
0
c. Revising the phrase ``the Commissioner shall'' to read ``USCIS
will'' in the first sentence in paragraph (j)(1);
0
d. Revising the phrase ``The Commissioner'' or ``the Commissioner'' to
read ``USCIS'' wherever the term appears in the second and third
sentences in paragraph (j)(1); and
0
e. Revising the phrase ``the Commissioner'' to read ``USCIS'' in the
second sentence in paragraph (j)(2).
Sec. 212.5 [Amended]
0
68. In Sec. 212.5, paragraph (f) is amended by revising the term
``Form I-512'' to read ``an appropriate document authorizing travel''.
0
69. Section 212.7 is amended by:
0
a. Revising the section heading;
0
b. Revising the paragraph (a)(1);
0
c. Revising paragraph (a)(3);
0
d. Revising in paragraph (a)(4), fourth sentence, the phrase
``deportable in a deportation proceeding'' to read ``deportable in
deportation proceedings or removable in removal proceedings'';
0
e. Revising the paragraph (b)(1);
0
f. Removing paragraph (b)(3);
0
g. Revising in the first sentence in paragraph (b)(4)(i) the phrase
``section 212(a) (1) or (3) (because of mental retardation or because
of a past history of mental illness)'' to read ``section
212(a)(1)(A)(iii) of the Act'' and the phrase ``an executed Form I-601
to the consular or Service office'' to read ``a waiver request'';
0
h. Removing the last sentence in paragraph (b)(4)(i);
0
i. Redesignating paragraphs (b)(4) and (5) as paragraphs (b)(2) and
(3), respectively;
0
j. Revising the term ``Form I-612'' to read ``the form designated by
USCIS'' in paragraph (c)(5);
0
k. Revising the term ``the Service'' to read ``USCIS'' in the last
sentence in paragraph (c)(9)(vi) introductory text;
0
l. Removing the phrase ``with the Service'' in the first sentence in
paragraph (c)(9)(vi)(B); and
0
m. Revising the term ``Form I-797 (and/or I-797A and I-797B)'' to read
``the USCIS approval notice'' in paragraph (c)(9)(vi)(B)(1).
The revisions read as follows:
Sec. 212.7 Waiver of certain grounds of inadmissibility.
(a) Filing and adjudication of waivers under sections 212(g), (h),
or (i) of the Act. (1) Application procedures. Any alien who is
inadmissible under sections 212(g), (h), or (i) of the Act who is
eligible for a waiver of such inadmissibility may file on the form
designated by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1) and
in accordance with the form instructions. When filed at the consular
section of an embassy or consulate, the Department of State will
forward the application to USCIS for a decision after the consular
official concludes that the alien is otherwise admissible.
* * * * *
(3) Decision. USCIS will provide a written decision and, if denied,
advise the applicant of appeal procedures in accordance with 8 CFR
103.3.
* * * * *
(b) Section 212(g) waivers for certain medical conditions. (1)
Application. Any alien who is inadmissible under section
212(a)(1)(A)(i), (ii), or (iii) of the Act and who is eligible for a
waiver under section 212(g) of the Act may file an application as
described in paragraph (a)(1) of this section. The family member
specified in section 212(g) of the Act may file the waiver application
for the applicant if the applicant is incompetent to file the waiver
personally.
* * * * *
Sec. 212.8 [Removed and Reserved]
0
70. Section 212.8 is removed and reserved.
Sec. 212.9 [Removed and Reserved]
0
71. Section 212.9 is removed and reserved.
0
72. Section 212.10 is revised to read as follows:
Sec. 212.10 Section 212(k) waiver.
Any applicant for admission who is in possession of an immigrant
visa, and who is inadmissible under section 212(a)(5)(A) or
212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver
under section 212(k) of the Act. If the application for waiver is
denied, the application may be renewed in removal proceedings before an
immigration judge as provided in 8 CFR part 1240.
Sec. 212.11 [Removed and Reserved]
0
73. Section 212.11 is removed and reserved.
Sec. 212.14 [Amended]
0
74. Section 212.14 is amended by:
0
a. Revising the phrase ``a completed Form I-854, Inter-Agency Alien
Witness and Informant Record,'' to read ``an application for S
nonimmigrant status on the form designated for such purposes'' in
paragraph (a)(1)(i);
0
b. Revising the phrase ``a completed Form I-854'' to read ``the
completed application'' in the first sentence of paragraph (a)(2)(iii);
0
c. Revising the phrase ``Form I-854 requesting'' to read ``completed
application for'' in the second sentence of paragraph (a)(2)(iii); and
0
d. Revising the phrase ``a Form I-854'' to read ``the application'' in
paragraph (a)(2)(iii), last sentence.
Sec. 212.15 [Amended]
0
75. Section 212.15 is amended by:
0
a. Revising the phrase ``shall submit Form I-905, Application for
Authorization to Issue Certification for Health Care Workers'' to read
``must apply on the form designated by USCIS in accordance with the
form instructions'' in the first sentence of paragraph (j)(1)
introductory text;
0
b. Revising the phrase ``As required on Form I-905, the'' to read
``The'' in the last sentence of paragraph (j)(1), introductory text;
0
c. Revising the term ``shall submit Form I-905'' to read ``must apply''
in the first sentence of paragraph (j)(2)(i);
0
d. Revising the phrase ``shall submit Form I-905, Application for
Authorization to Issue Certification for Health Care Workers with the
appropriate fee contained in 8 CFR 103.7(b)(1)'' to read ``must apply
on the form designated by USCIS with the fee prescribed in 8 CFR
103.7(b)(1) and in
[[Page 53788]]
accordance with the form instructions'' in the first sentence in
paragraph (j)(2)(ii);
0
e. Revising the phrase ``After receipt of Form I-905, USCIS shall, in
all cases,'' to read ``USCIS will'' in paragraph (j)(3)(i);
0
f. Removing the phrase ``to the Associate Commissioner for
Examinations'' from paragraph (j)(3)(iii);
0
g. Revising the phrase ``a Form I-905 requesting,'' to read ``a request
for'' in the second sentence of paragraph (l); and
0
h. Revising the term ``Form I-905'' to read ``the request'' in the
second sentence of paragraph (m)(2) introductory text.
Sec. 212.16 [Amended]
0
76. Section 212.16 is amended by
0
a. Revising the term ``Form I-192'' to read ``the request on the form
designated by USCIS'', by revising the term ``the Service'' to read
``USCIS'', and by revising the phrase ``completed Form I-914
application package'' to read ``application'' in paragraph (a);
0
b. Revising the terms ``the Commissioner'', ``The Service'', and ``the
Service'' to read ``USCIS'' wherever those terms appear in paragraph
(b); and by
0
c. Revising the term ``The Commissioner'' to read ``USCIS'' in
paragraph (d).
0
77. Section 212.17 is amended by:
0
a. Revising paragraph (a); and by
0
b. Revising the term ``Form I-192'' to read ``the waiver'' wherever the
term appears in paragraph (b).
The revision reads as follows:
Sec. 212.17 Applications for the exercise of discretion relating to U
nonimmigrant status.
(a) Filing the waiver application. An alien applying for a waiver
of inadmissibility under section 212(d)(3)(B) or (d)(14) of the Act
(waivers of inadmissibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14), in
connection with a petition for U nonimmigrant status being filed
pursuant to 8 CFR 214.14, must submit the waiver request and the
petition for U nonimmigrant status on the forms designated by USCIS in
accordance with the form instructions. An alien in U nonimmigrant
status who is seeking a waiver of section 212(a)(9)(B) of the Act, 8
U.S.C. 1182(a)(9)(B) (unlawful presence ground of inadmissibility
triggered by departure from the United States), must file the waiver
request prior to his or her application for reentry to the United
States in accordance with the form instructions.
* * * * *
PART 213A--AFFIDAVITS OF SUPPORT ON BEHALF OF ALIENS
0
78. The authority citation for part 213a continues to read as follows:
Authority: 8 U.S.C. 1183a; 8 CFR part 2.
Sec. 213a.1 [Amended]
0
79. Section 213a.1 is amended by:
0
a. Revising in the definition of household income the phrase ``signed a
U.S. Citizenship and Immigration Services (USCIS) Form I-864A,
Affidavit of Support Contract Between Sponsor and Household Member'' to
read ``signed the form designated by USCIS for this purpose'';
0
b. Revising in the definition of household size, in the second sentence
in paragraph (1), the term ``Form I-864'' to read ``affidavit of
support'', wherever the term appears;
0
c. Revising in the definition of joint sponsor the term ``a Form I-
864'' to read ``an affidavit of support'';
0
d. Revising in the definition of sponsor the term ``a Form I-864'' to
read ``an affidavit of support''; and
0
e. Revising in the definition of substitute sponsor the term ``a Form
I-864'' to read ``the affidavit of support'' and the term ``the Form I-
130 or I-129F'' to read ``a relative or fianc[eacute](e) petition''.
0
80-82. Section 213a.2 is amended by:
0
a. Revising paragraphs (a)(1)(i) through (a)(1)(v)(A);
0
b. Revising the phrase ``Form I-864 or Form I-864A'' to read
``affidavit of support or required affidavit of support attachment
form'' in the first sentence of paragraph (a)(1)(v)(B);
0
c. Revising the phrase ``Form I-864 and any Form I-864A'' to read
``affidavit of support and any required affidavit of support
attachment'' in the last sentence of paragraph (a)(1)(v)(B);
0
d. Revising the phrase ``the Form I-130 or Form I-600 immigrant visa
petition (or the Form I-129F petition, for a K nonimmigrant seeking
adjustment)'' to read ``relative, orphan or fianc[eacute](e) petition''
in the first sentence of paragraph (b)(1);
0
e. Revising the phrase ``in Form I-864P Poverty Guidelines'' to read
``the Poverty Guidelines'' in paragraph (c)(2)(i)(A);
0
f. Revising the term ``Form I-864'' to read ``affidavit of support'' in
paragraph (c)(2)(iii)(A)(2);
0
g. Revising paragraph (c)(2)(iii)(C);
0
h. Revising the phrase ``filed USCIS Form I-407, Abandonment of Lawful
Permanent Resident Status'' to read ``abandoned permanent resident
status, executing the form designated by USCIS for recording such
action'' in paragraph (e)(2)(i)(C);
0
i. Revising the phrase ``Form I-864 or Form I-864A'' to read ''
affidavit of support and any required attachments'' wherever the term
appears in paragraph (f);
0
j. Revising the phrase ``the signed Form(s) I-864 (and any Form(s) I-
864A)'' to read ``any relevant affidavit(s) and attachments'' in
paragraph (g)(1); and
0
k. Revising paragraphs (g)(2)(i) and (ii).
0
l. Section 213a.2 is further amended by revising the terms ``Form I-
864'', ``the Form I-864'', and ``a Form I-864'' to read ``an affidavit
of support'' wherever those terms or phrases appear in the following
places:
0
i. Paragraph (b), introductory text;
0
ii. Paragraph (b)(1);
0
iii. Paragraph (b)(2);
0
iv. Paragraph (c)(1)(ii)(B);
0
v. Paragraph (c)(2)(i)(A);
0
vi. Paragraph (c)(2)(i)(B);
0
vii. Paragraph (c)(2)(i)(C)(2);
0
viii. Paragraph (c)(2)(i)(C)(4);
0
ix. Paragraph (c)(2)(i)(D);
0
x. Paragraph (c)(2)(ii)(C);
0
xi. Paragraph (c)(2)(iii)(D);
0
xii. Paragraph (c)(2)(v);
0
xiii. Paragraph (c)(2)(vi);
0
xiv. Paragraph (d);
0
xv. Paragraph (e)(1);
0
xvi. Paragraph (e)(2)(i) introductory text;
0
xvii. Paragraph (e)(2)(i)(D);
0
xviii. Paragraph (e)(2)(ii);
0
xix. Paragraph (e)(3); and
0
xx. Paragraph (f) heading.
0
m. Section 213a.2 is further amended by revising the terms ``Form I-
864A'', ``the Form I-864A'', or ``a Form I-864A'' to read ``an
affidavit of support attachment'' wherever those terms or phrases
appear in the following places:
0
i. Paragraph (c)(2)(i)(C)(1);
0
ii. Paragraph (c)(2)(i)(C)(2);
0
iii. Paragraph (c)(2)(i)(C)(3);
0
iv. Paragraph (c)(2)(i)(C)(4);
0
v. Paragraph (c)(2)(i)(C)(5);
0
vi. Paragraph (c)(2)(i)(D);
0
vii. Paragraph (c)(2)(iii)(B) introductory text;
0
viii. Paragraph (c)(2)(v);
0
ix. Paragraph (c)(2)(vi);
0
x. Paragraph (e)(1);
0
xi. Paragraph (e)(2)(i) introductory text;
0
xii. Paragraph (e)(2)(i)(D);
0
xiii. Paragraph (e)(2)(ii);
0
xiv. Paragraph (e)(3); and
0
xv. Paragraph (f) heading.
The revisions read as follows:
Sec. 213a.2 Use of affidavit of support.
(a) Applicability of section 213a affidavit of support. (1)(i)(A)
In any case specified in paragraph (a)(2) of this section, an intending
immigrant is
[[Page 53789]]
inadmissible as an alien likely to become a public charge, unless the
qualified sponsor specified in paragraph (b) of this section or a
substitute sponsor and, if necessary, a joint sponsor, has executed on
behalf of the intending immigrant an affidavit of support on the
applicable form designated by USCIS in accordance with the requirements
of section 213A of the Act and the form instructions. Each reference in
this section to the affidavit of support or the form is deemed to be a
reference to all such forms designated by USCIS for use by a sponsor
for compliance with section 213A of the Act.
(B) If the intending immigrant claims that, under paragraph
(a)(2)(ii)(A), (C), or (E) of this section, the intending immigrant is
exempt from the requirement to file an affidavit of support, the
intending immigrant must include with his or her application for an
immigrant visa or adjustment of status an exemption request on the form
designated by USCIS for this purpose.
(ii) An affidavit of support is executed when a sponsor signs and
submits the appropriate forms in accordance with the form instructions
to USCIS or the Department of State, as appropriate.
(iii) A separate affidavit of support is required for each
principal beneficiary.
(iv) Each immigrant who will accompany the principal intending
immigrant must be included on the affidavit. See paragraph (f) of this
section for further information concerning immigrants who intend to
accompany or follow the principal intending immigrant to the United
States.
(v)(A) Except as provided for under paragraph (a)(1)(v)(B) of this
section, the Department of State consular officer, immigration officer,
or immigration judge will determine the sufficiency of the affidavit of
support based on the sponsor's, substitute sponsor's, or joint
sponsor's reasonably expected household income in the year in which the
intending immigrant filed the application for an immigrant visa or for
adjustment of status, and based on the evidence submitted with the
affidavit of support and the Poverty Guidelines in effect when the
intending immigrant filed the application for an immigrant visa or
adjustment of status.
* * * * *
(c) * * *
(2) * * *
(iii) * * *
(C) Joint sponsor. A joint sponsor must execute a separate
affidavit of support on behalf of the intending immigrant(s) and be
willing to accept joint and several liabilities with the sponsor or
substitute sponsor. A joint sponsor must meet all the eligibility
requirements under paragraph (c)(1) of this section, except that the
joint sponsor is not required to file a visa petition on behalf of the
intending immigrant. The joint sponsor must demonstrate his or her
ability to support the intending immigrant in the manner specified in
paragraph (c)(2) of this section. A joint sponsor's household income
must meet or exceed the income requirement in paragraph (c)(2)(iii) of
this section unless the joint sponsor can demonstrate significant
assets as provided in paragraph (c)(2)(iv)(A) of this section. The
joint sponsor's household income must equal at least 125 percent of the
Poverty Guidelines for the joint sponsor's household size, unless the
joint sponsor is on active duty in the Armed Forces and the intending
immigrant is the joint sponsor's spouse or child, in which case the
joint sponsor's household income is sufficient if it equals at least
100 percent of the Poverty Guidelines for the joint sponsor's household
size. An intending immigrant may not have more than one joint sponsor,
but, if the joint sponsor's household income is not sufficient to meet
the income requirement with respect to the principal intending
immigrant, any spouse and all the children who, under section 203(d) of
the Act, seek to accompany the principal intending immigrant, then the
joint sponsor may specify on the affidavit that it is submitted only on
behalf of the principal intending immigrant and those accompanying
family members specifically listed on the affidavit. The remaining
accompanying family members will then be inadmissible under section
212(a)(4) of the Act unless a second joint sponsor submits an
affidavit(s) on behalf of all the remaining family members who seek to
accompany the principal intending immigrant and who are not included in
the first joint sponsor's affidavit. There may not be more than two
joint sponsors for the family group consisting of the principal
intending immigrant and the accompanying spouse and children.
* * * * *
(g) * * *
(2)(i) To avoid inadmissibility under section 212(a)(4) of the Act,
an alien who applies for an immigrant visa, admission, or adjustment of
status as an alien who is following-to-join a principal intending
immigrant must submit a new affidavit(s) of support, together with all
documents or other evidence necessary to prove that the new affidavits
comply with the requirements of section 213A of the Act and 8 CFR part
213a.
(ii) When paragraph (g)(2)(i) of this section requires the filing
of a new affidavit for an alien who seeks to follow-to-join a principal
sponsored immigrant, the same sponsor who filed the visa petition and
affidavit of support for the principal sponsored immigrant must file
the new affidavit on behalf of the alien seeking to follow-to-join. If
that person has died, then the alien seeking to follow-to-join is
inadmissible unless a substitute sponsor, as defined by 8 CFR 213a.1,
signs a new affidavit that meets the requirements of this section.
Persons other than the person or persons who signed the original joint
affidavits on behalf of the principal sponsored immigrant may sign a
new joint affidavit on behalf of an alien who seeks to follow-to-join a
principal sponsored immigrant.
* * * * *
0
83. Section 213a.3 is revised to read as follows:
Sec. 213a.3 Change of address.
(a) Submission of address change. (1) Filing requirements. If the
address of a sponsor (including a substitute sponsor or joint sponsor)
changes while the sponsor's support obligation is in effect, the
sponsor shall file a change of address notice within 30 days, in a
manner as prescribed by USCIS on its address change form instructions.
(2) Proof of mailing. USCIS will accept a photocopy of the change
of address form together with proof of the form's delivery to USCIS as
evidence that the sponsor has complied with this requirement.
(3) Electronic notices. USCIS will provide the sponsor with a
receipt notice for an address change.
(4) Alien sponsors. If the sponsor is an alien, the sponsor must
still comply with the requirements of 8 CFR 265.1 to notify USCIS of
his or her change of address.
(b) Civil penalty. If the sponsor fails to give notice in
accordance with paragraph (a) of this section, DHS may impose on the
sponsor a civil penalty in an amount within the penalty range
established in section 213A(d)(2)(A) of the Act. Except, if the
sponsor, knowing that the sponsored immigrant has received any means-
tested public benefit, fails to give notice in accordance with
paragraph (a) of this section, DHS may impose on the sponsor a civil
penalty in an amount within the penalty range established in section
213A(d)(2)(B) of the Act. The procedure for imposing a civil penalty is
established at 8 CFR part 280.
[[Page 53790]]
Sec. 213a.4 [Amended]
0
84. Section 213a.4 is amended by:
0
a. Revising the term ``8 CFR 103.5a(a)(2)'' to read ``8 CFR
103.8(a)(2)'' in paragraph (a)(1)(i); and
0
b. Revising the phrases ``a Form I-864 or Form I-864A'' and ``the Form
I-864 or Form I-864A'' to read ``an affidavit of support'' in the first
sentence in paragraph (a)(3).
0
85. Section 213a.5 is revised to read as follows:
Sec. 213a.5 Relationship of this part to other affidavits of support.
Nothing in this part precludes the continued use of other
affidavits of support provided by USCIS in a case other than a case
described in Sec. 213a.2(a)(2). The obligations of section 213A of the
Act do not bind a person who executes such other USCIS affidavits of
support. Persons sponsoring an Amerasian alien described in section
204(f)(2) of the Act remain subject to the provisions of section
204(f)(4)(B) of the Act and 8 CFR 204.4(i), as appropriate.
PART 223--REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE
PAROLE DOCUMENTS
0
86. The authority citation for part 223 continues to read as follows:
Authority: 8 U.S.C. 1103, 1181, 1182, 1186a, 1203, 1225, 1226,
1227, 1251; Protocol Relating to the Status of Refugees, Nov. 1,
1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR part 2.
0
87. Section 223.2 is revised to read as follows:
Sec. 223.2 Application and processing.
(a) Application. An applicant must submit an application for a
reentry permit, refugee travel document, or advance parole on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions.
(b) Filing eligibility. (1) Reentry permit. An applicant for a
reentry permit must file such application while in the United States
and in status as a lawful permanent resident or conditional permanent
resident.
(2) Refugee travel document. (i) Except as provided in paragraph
(b)(2)(ii) of this section, an applicant for a refugee travel document
must submit the application while in the United States and in valid
refugee status under section 207 of the Act, valid asylum status under
section 208 of the Act or is a permanent resident who received such
status as a direct result of his or her asylum or refugee status.
(ii) Discretionary authority to accept a refugee travel document
application from an alien not within the United States. As a matter of
discretion, the Service office with jurisdiction over a port-of-entry
or pre-flight inspection location where the alien is seeking admission,
or the overseas Service office where the alien is physically present,
may accept and adjudicate an application for a refugee travel document
from an alien who previously had been admitted to the United States as
a refugee, or who previously had been granted asylum status in the
United States, and who departed from the United States without having
applied for such refugee travel document, provided the officer:
(A) Is satisfied that the alien did not intend to abandon his or
her refugee or asylum status at the time of departure from the United
States;
(B) The alien did not engage in any activities while outside the
United States that would be inconsistent with continued refugee or
asylum status; and
(C) The alien has been outside the United States for less than 1
year since his or her last departure.
(c) Ineligibility. (1) Prior document still valid. An application
for a reentry permit or refugee travel document will be denied if the
applicant was previously issued a reentry permit or refugee travel
document which is still valid, unless it was returned to USCIS or it is
demonstrated that it was lost.
(2) Extended absences. A reentry permit issued to a person who,
since becoming a permanent resident or during the last five years,
whichever is less, has been outside the United States for more than
four years in the aggregate, shall be limited to a validity of one
year, except that a permit with a validity of two years may be issued
to:
(i) A permanent resident described in 8 CFR 211.1(a)(6) or (a)(7);
(ii) A permanent resident employed by a public international
organization of which the United States is a member by treaty or
statute, and his or her permanent resident spouse and children; or
(iii) A permanent resident who is a professional athlete who
regularly competes in the United States and worldwide.
(3) Permanent resident entitled to nonimmigrant diplomatic or
treaty status. A permanent resident entitled to nonimmigrant status
under section 101(a)(15)(A), (E), or (G) of the Act because of
occupational status may only be issued a reentry permit if the
applicant executes and submits with the application, or has previously
executed and submitted, a written waiver as required by 8 CFR part 247.
(d) Effect of travel before a decision is made. Departure from the
United States before a decision is made on an application for a reentry
permit or refugee travel document will not affect the application.
(e) Processing. USCIS may approve or deny a request for a reentry
permit or refugee travel document as an exercise of discretion. If it
approves the application, USCIS will issue an appropriate document.
(f) Effect on proceedings. Issuance of a reentry permit or refugee
travel document to a person in exclusion, deportation, or removal
proceedings shall not affect those proceedings.
(g) Appeal. Denial of an application for a reentry permit or
refugee travel document may be appealed in accordance with 8 CFR 103.3.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
88. The authority citation for part 235 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226,
1228, 1365a note, 1379, 1731-32; Pub. L. 110-229, tit. VII, 122
Stat. 754; 8 U.S.C. 1185 note (Pub. L. 108-458, Sec. 7209, 118
Stat. 3638).
Sec. 235.3 [Amended]
0
89. In Sec. 235.3, paragraph (b)(1)(i) is amended by revising the term
``Sec. 1.1(q) of this chapter'' to read ``8 CFR 1.2''.
Sec. 235.8 [Amended]
0
90. In Sec. 235.8, paragraph (e) is amended by revising the term
``Sec. 1.1(q) of this chapter'' to read ``8 CFR 1.2''.
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
0
91. The authority citation for part 236 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224,
1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part
2.
Sec. 236.2 [Amended]
0
92. In Sec. 236.2, paragraph (a) is amended by revising the term
``Sec. 103.5a(c) of this chapter'' to read ``8 CFR 103.8(c)''.
Sec. 236.16 [Amended]
0
93. Section 236.16 is amended by revising the phrase ``using Form I-
131, Application for Travel Document'' to read ``in accordance with 8
CFR
[[Page 53791]]
223.2(a)''in the first sentence and revising the phrase ``the district
director'' to read ``USCIS'' in the second sentence.
Sec. 236.18 [Amended]
0
94. In Sec. 236.18, paragraph (b) is amended by revising the term
``Sec. 103.5a of this chapter'' to read ``8 CFR 103.8(a)(2)'' wherever
that term appears.
PART 238--EXPEDITED REMOVAL OF AGGRAVATED FELONS
0
95. The authority citation for part 238 continues to read as follows:
Authority: 8 U.S.C. 1228; 8 CFR part 2.
0
96. In Sec. 238.1, paragraph (b)(2)(i) is amended by revising the term
``Sec. Sec. 103.5a(a)(2) and 103.5a(c)(2) of this chapter'' to read
``8 CFR 103.8''.
PART 240--VOLUNTARY DEPARTURE, SUSPENSION OF DEPORTATION AND
SPECIAL RULE CANCELLATION OF REMOVAL
0
97. The heading for part 240 is revised as set forth above.
0
98. The authority citation for part 240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; sections 202 and 203, Pub. L.
105-100, 111 Stat. 2160, 2193; section 902, Pub. L. 105-277, 112
Stat. 2681; 8 CFR part 2.
0
99. Section 240.67 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 240.67 Procedure for interview before an asylum officer.
(a) Fingerprinting requirements. USCIS will notify each applicant
14 years of age or older to appear for an interview only after the
applicant has complied with fingerprinting requirements pursuant to 8
CFR 103.16, and USCIS has received a definitive response from the FBI
that a full criminal background check has been completed. A definitive
response that a full criminal background check on an applicant has been
completed includes:
* * * * *
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
0
100. The authority citation for part 241 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223,
1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18
U.S.C. 4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C.
101, et seq.); 8 CFR part 2.
Sec. 241.4 [Amended]
0
101. In Sec. 241.4, paragraph (d)(2), first sentence is amended by
revising the term ``8 CFR 103.5a'' to read ``8 CFR 103.8''.
0
102. Section 241.5 is amended by revising paragraph (a)(5) to read as
follows:
Sec. 241.5 Conditions of release after removal period.
(a) * * *
(5) A requirement that the alien provide DHS with written notice of
any change of address in the prescribed manner.
* * * * *
PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES
0
103. The authority citation for part 244 continues to read as follows:
Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.
Sec. 244.3 [Amended]
0
104. Section 244.3 is amended by:
0
a. Revising the term ``the Service'' to read ``USCIS'' in the first
sentence in paragraph (b);
0
b. Removing the phrase ``of grounds of inadmissibility on Form I-601
(Application for waiver of grounds of excludability)'' in the second
sentence in paragraph (b);
0
c. Revising the term ``The Service'' to read ``USCIS'' in paragraph (c)
introductory text.
Sec. 244.4 [Amended]
0
105. In Sec. 244.4, paragraph (b) is amended by revising the term
``section 243(h)(2) of the Act'' to read ``section 208(b)(2)(A) of the
Act''.
Sec. 244.5 [Amended]
0
106. In Sec. 244.5, paragraph (a) is amended by revising the term
``the Attorney General'' to read ``DHS'' wherever the term appears.
0
107. Section 244.6 is revised to read as follows:
Sec. 244.6 Application.
(a) An application for Temporary Protected Status must be submitted
in accordance with the form instructions, the applicable country-
specific Federal Register notice that announces the procedures for TPS
registration or re-registration, and 8 CFR 103.2, except as otherwise
provided in this section, with the appropriate fees and biometric
information as described in 8 CFR 103.7(b)(1), 103.16, and 103.17.
(b) An applicant for TPS may also request employment authorization
pursuant to 8 CFR 274a. Those applicants between the ages of 14 and 65
who are not requesting authorization to work will not be charged a fee
for an application for employment authorization.
Sec. 244.7 [Amended]
0
108. Section 244.7 is amended by:
0
a. Revising the phrase ``Form I-821, Application for Temporary
Protected Status'' to read ``the form designated by USCIS with any
prescribed fees and in accordance with the form instructions'' in
paragraph (a); and
0
b. Revising the term ``Attorney General'' to read ``DHS'' in paragraph
(b).
Sec. 244.9 [Amended]
0
109. In Sec. 244.9, paragraph (a)(4) is amended by revising the phrase
``Form I-551 or Form I-94'' to read ``evidence of admission for lawful
permanent residence or nonimmigrant status''.
0
110. Section 244.10 is amended by:
0
a. Revising the section heading; and
0
b. Revising paragraphs (a), (b) (c) and (d).
The revisions read as follows:
Sec. 244.10 Decision and appeal.
(a) Temporary treatment benefits. USCIS will grant temporary
treatment benefits to the applicant if the applicant establishes prima
facie eligibility for Temporary Protected Status in accordance with 8
CFR 244.5.
(b) Temporary Protected Status. Upon review of the evidence
presented, USCIS may approve or deny the application for Temporary
Protected Status in the exercise of discretion, consistent with the
standards for eligibility in 8 CFR 244.2, 244.3, and 244.4.
(c) Denial. The initial decision to deny Temporary Protected
Status, a waiver of inadmissibility, or temporary treatment benefits
shall be in writing served in person or by mail to the alien's most
recent address provided to the Service and shall state the reason(s)
for the denial. Except as otherwise provided in this section, the alien
will be given written notice of his or her right to appeal. If an
appeal is filed, the administrative record shall be forwarded to the
USCIS AAO for review and decision, except as otherwise provided in this
section.
(1) If the basis for the denial of the Temporary Protected Status
constitutes a ground for deportability or inadmissibility which renders
the alien ineligible for Temporary Protected Status under Sec. 244.4
or inadmissible under Sec. 244.3(c), the decision shall
[[Page 53792]]
include a charging document which sets forth such ground(s).
(2) If such a charging document is issued, the alien shall not have
the right to appeal the USCIS decision denying Temporary Protected
Status as provided in 8 CFR 103.3. However, the decision will also
apprise the alien of his or her right to a de novo determination of his
or her eligibility for Temporary Protected Status in removal
proceedings pursuant to section 240 of the Act and 8 CFR 1244.18.
(d) Administrative appeal. The appellate decision will be served in
accordance with 8 CFR 103.8. If the appeal is dismissed, the decision
must state the reasons for dismissal.
(1) If the appeal is dismissed on appeal under 8 CFR 244.18(b), the
decision shall also apprise the alien of his or her right to a de novo
determination of eligibility for Temporary Protected Status in removal
proceedings pursuant to section 240 of the Act and 8 CFR 1244.18.
(2) If the appeal is dismissed, USCIS may issue a charging document
if no charging document is presently filed with the Immigration Court.
(3) If a charging document has previously been filed or is pending
before the Immigration Court, either party may move to re-calendar the
case after the administrative appeal is dismissed.
* * * * *
Sec. 244.11 [Amended]
0
111. Section 244.11 is amended by revising the term ``Sec. 3.3 of this
chapter'' to read ``8 CFR 1003''.
Sec. 244.12 [Amended]
0
112. Section 244.12, is amended by:
0
a. Revising the term ``the INS'' to read ``USCIS'' in paragraphs (a)
and (c); and
0
b. Revising the phrase ``appealed to the Administrative Appeals Unit''
to read ``pending administrative appeal'' in paragraph (d).
Sec. 244.14 [Amended]
0
113. Section 244.14 is amended by:
0
a. Revising the term ``director'' to read ``USCIS'' in paragraph (a)
heading;
0
b. Revising the term ``The director'' to read ``USCIS'' in paragraph
(a) introductory text;
0
c. Revising the term ``the district director'' to read ``USCIS'' in
paragraph (a)(2) last sentence;
0
d. Revising the term ``Attorney General'' to read ``DHS'' in paragraph
(a)(3);
0
e. Revising the term ``director'' to read ``USCIS'' in paragraph (b)
heading; and by
0
f. Revising the term ``Sec. 240.14(a)(3)'' to read ``8 CFR
244.14(a)(3)'' and the term ``Sec. 103.5a of this chapter'' to read
``8 CFR 103.8(a)(2)'' in paragraph (b)(1).
Sec. 244.16 [Amended]
0
114. In Sec. 244.16, the term ``the Department of Justice'' is revised
to read ``DHS''.
0
115. Section 244.17 is revised to read as follows:
Sec. 244.17 Periodic registration.
(a) Aliens granted Temporary Protected Status must re-register
periodically in accordance with USCIS instructions. Such registration
applies to nationals of those foreign states designated or redesignated
for more than one year by DHS. Applicants for periodic re-registration
must apply during the registration period provided by USCIS. Re-
registering applicants will not need to re-pay the TPS application fee
that was required for initial registration except that aliens
requesting employment authorization must submit the application fee for
employment authorization. The biometric service fee described in
103.7(b), or an approved fee waiver, will be required of applicants age
14 and over. By completing the application, applicants attest to their
continuing eligibility. Such applicants do not need to submit
additional supporting documents unless USCIS requests them to do so.
(b) If an alien fails to register without good cause, USCIS will
withdraw Temporary Protected Status. USCIS may, for good cause, accept
and approve an untimely registration request.
0
116. Section 244.18 is amended by revising paragraphs (b) and (d) to
read as follows:
Sec. 244.18 Issuance of charging documents; detention.
* * * * *
(b) The filing of the charging document by DHS with the Immigration
Court renders inapplicable any other administrative, adjudication or
review of eligibility for Temporary Protected Status. The alien shall
have the right to a de novo determination of his or her eligibility for
Temporary Protected Status in removal proceedings pursuant to section
240 of the Act and 8 CFR 1244.18. Review by the Board of Immigration
Appeals shall be the exclusive administrative appellate review
procedure. If an appeal is already pending before the Administrative
Appeals Office (AAO), USCIS will notify the AAO of the filing of the
charging document, in which case the pending appeal shall be dismissed
and the record of proceeding returned to the jurisdiction where the
charging document was filed.
* * * * *
(d) An alien who is determined by USCIS deportable or inadmissible
upon grounds which would have rendered the alien ineligible for such
status as provided in 8 CFR 244.3(c) and 8 CFR 244.4 may be detained
under the provisions of this chapter pending removal proceedings. Such
alien may be removed from the United States upon entry of a final order
of removal.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
117. The authority citation for part 245 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105-100,
section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112
Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.
0
118. Section 245.1 is amended by:
0
a. Revising the term to ``section 214(k)'' to read: ``section 214(l)''
in the last sentence in paragraph (c)(2);
0
b. Removing and reserving paragraph (e)(2);
0
c. Revising the third sentence in paragraph (g)(1); and by
0
d. Removing the fourth sentence in paragraph (g)(1).
The revision reads as follows:
Sec. 245.1 Eligibility.
* * * * *
(g) * * *
(1) * * * A preference immigrant visa is considered available for
accepting and processing if the applicant has a priority date on the
waiting list which is earlier than the date shown in the Bulletin (or
the Bulletin shows that numbers for visa applicants in his or her
category are current). * * *
* * * * *
Sec. 245.2 [Amended]
0
119. Section 245.2 is amended by removing the phrase ``, except when
the applicant has established eligibility for the benefits of Public
Law 101-238'' in the second sentence in paragraph (a)(5)(ii).
0
120. In Sec. 245.7, paragraph (a) is revised to read as follows:
Sec. 245.7 Adjustment of status of certain Soviet and Indochinese
parolees under the Foreign Operations Appropriations Act for Fiscal
Year 1990 (Pub. L. 101-167). (a) Application. Each person applying for
benefits under section 599E of Public Law 101-167, 103 Stat. 1195,
1263, must file an application on the form prescribed by
[[Page 53793]]
USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance
with the form instructions.
* * * * *
Sec. 245.9 [Removed and Reserved]
0
121. Section 245.9 is removed and reserved.
0
122. In Sec. 245.10, paragraph (n)(2) is revised to read as follows:
Sec. 245.10 Adjustment of status upon payment of additional sum under
Public Law 103-317.
* * * * *
(n) * * *
(2) To demonstrate physical presence on December 21, 2000, the
alien may submit copies of documents issued by the former INS or EOIR
such as arrival-departure forms or notices to appear in immigration
court.
* * * * *
0
123. In Sec. 245.11, remove the last two sentences in paragraph (f)
and add a new sentence to read as follows:
Sec. 245.11 Adjustment of aliens in S nonimmigrant classification.
* * * * *
(f) * * * The applicant may request employment authorization or
permission to travel outside the United States while the application is
pending by filing an application pursuant to 8 CFR 274a.13 or 8 CFR
223.2.
* * * * *
Sec. 245.12 [Removed and Reserved]
0
124. Section 245.12 is removed and reserved.
Sec. 245.13 [Removed and Reserved]
0
125. Section 245.13 is removed and reserved.
0
126. Section 245.15 is amended by:
0
a. Revising the phrase ``Advance Authorization for Parole (Form I-
512)'' to read ``advance parole authorization'' and revising the phrase
``Advance Authorization for Parole'' to read ``authorization'' in
paragraph (c)(4)(ii);
0
b. Revising paragraph (g)(1);
0
c. Revising paragraph (n)(1);
0
d. Revising the phrase ``the Director of the Nebraska Service Center
verifies that Service'' to read ``USCIS verifies that DHS'' and by
revising the term ``the Director may approve'' to read ``USCIS may
approve'' in the first sentence in paragraph (n)(2);
0
e. Revising the term ``the Service'' to read ``USCIS'' in the second
sentence in paragraph (n)(2);
0
f. Revising paragraph (s)(1);
0
g. Revising paragraph (t)(1);
0
h. Revising the phrase ``an Application for Travel Document (Form I-
131) with the Nebraska Service Center, at P.O. Box 87245, Lincoln, NE
68501-7245'' to read ``a request on the form designated by USCIS with
the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form
instructions'' in the first sentence of paragraph (t)(2)(i); and
0
i. Revising the term ``Form I-485'' to read ``application for
adjustment of status'' in the second sentence in paragraph (t)(2)(i).
The revisions read as follows:
Sec. 245.15 Adjustment of Status of Certain Haitian Nationals under
the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
* * * * *
(g) * * *
(1) Filing of applications with USCIS. USCIS has jurisdiction over
all applications for the benefits of section 902 of HRIFA as a
principal applicant or as a dependent under this section, except for
applications filed by aliens who are in pending immigration proceedings
as provided in paragraph (g)(2) of this section. All applications filed
with USCIS for the benefits of section 902 of HRIFA must be submitted
on the form designated by USCIS with the fees prescribed in 8 CFR
103.7(b)(1) and in accordance with the form instructions. After proper
filing of the application, USCIS will instruct the applicant to appear
for biometrics collection as prescribed in 8 CFR 103.16.
* * * * *
(n) * * *
(1) Application for employment authorization. An applicant for
adjustment of status under section 902 of HRIFA who wishes to obtain
initial or continued employment authorization during the pendency of
the adjustment application must file an application on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions. The applicant may submit the
application either concurrently with or subsequent to the filing of the
application for HRIFA benefits.
* * * * *
(s) Action of immigration judge upon referral of decision by a
notice of certification. (1) General. Upon the referral by a notice of
certification of a decision to deny the application, in accordance with
paragraph (r)(3) of this section, the immigration judge will conduct a
hearing to determine whether the alien is eligible for adjustment of
status under section 902 of HRIFA in accordance with this paragraph
(s)(1).
* * * * *
(t) * * *
(1) Travel from and return to the United States while the
application for adjustment of status is pending. If an applicant for
benefits under section 902 of HRIFA desires to travel outside, and
return to, the United States while the application for adjustment of
status is pending, he or she must file a request for advance parole
authorization on the form designated by USCIS with the fee prescribed
in 8 CFR 103.7(b)(1) and in accordance with the form instructions.
Unless the applicant files an advance parole request prior to departing
from the United States and USCIS approves such request, his or her
application for adjustment of status under section 902 of HRIFA is
deemed to be abandoned as of the moment of departure. Parole may only
be authorized pursuant to the authority contained in, and the standards
prescribed in, section 212(d)(5) of the Act.
* * * * *
0
127. Section 245.18 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (d)(1);
0
c. Revising the term ``the Service'' to read ``USCIS'' in paragraph
(d)(2); and
0
d. Revising the last sentence in paragraph (k).
The revisions read as follows:
Sec. 245.18 Physicians with approved employment-based petitions
serving in a medically underserved area or a Veterans Affairs facility.
* * * * *
(d) Employment authorization. (1) Once USCIS has approved a
petition described in paragraph (a) of this section, the alien
physician may apply for permanent residence and employment
authorization on the forms designated by USCIS with the fee prescribed
in 8 CFR 103.7(b)(1) and in accordance with the form instructions.
* * * * *
(k) * * * Such physicians may apply for advance parole on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions.
* * * * *
Sec. 245.20 [Removed and Reserved]
0
128. Section 245.20 is removed and reserved.
0
129-130. Section 245.21 is amended by:
0
a. Adding the word ``and'' at the end of paragraph (a)(3);
0
b. Removing paragraph (a)(4);
0
c. Redesignating paragraph (a)(5) as paragraph (a)(4);
0
d. Revising paragraph (b);
0
e. Revising the second sentence in paragraph (d)(1);
[[Page 53794]]
0
f. Revising paragraph (d)(2);
0
g. Revising the last sentence in paragraph (f);
0
h. Revising paragraph (h);
0
i. Revising paragraph (i);
0
j. Revising the terms, ``Service'' and ``Service's'' to read ``USCIS'''
in paragraph (j);
0
k. Removing paragraph (m); and
0
l. By revising the terms ``The Service'' and ``the Service'' to read
``USCIS'' wherever the terms appear in the following paragraphs:
0
i. Paragraph (a) introductory text;
0
ii. Paragraph (c);
0
iii. Paragraph (d) introductory text;
0
iv. Paragraph (d)(4);
0
v. Paragraph (g)(3);
0
vi. Paragraph (j);
0
vii. Paragraph (k); and
0
viii. Paragraph (l).
The revisions read as follows:
Sec. 245.21 Adjustment of status of certain nationals of Vietnam,
Cambodia, and Laos.
* * * * *
(b) Application. An applicant must submit an application on the
form designated by USCIS with the fee specified in 8 CFR 103.7(b)(1)
and in accordance with the form instructions. Applicants who are 14
through 79 years of age must also submit the biometrics service fee
described in 8 CFR 103.17.
* * * * *
(d) * * *
(1) * * * An alien who is eligible for adjustment of status under
section 586 of Public Law 106-429 may request a stay of removal during
the pendency of the application. * * *
(2) DHS will exercise its discretion not to grant a stay of
removal, deportation, or exclusion with respect to an alien who is
inadmissible on any of the grounds specified in paragraph (m)(3) of
this section, unless there is substantial reason to believe that USCIS
will grant the necessary waivers of inadmissibility.
* * * * *
(f) * * * In order to obtain a waiver for any of these grounds, the
applicant must submit an application on the form designated by USCIS
with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the
form instructions.
* * * * *
(h) Employment authorization. Applicants who want to obtain
employment authorization based on a pending application for adjustment
of status under this section may apply on the form specified by USCIS
with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the
form instructions.
(i) Travel while an application to adjust status is pending. An
applicant who wishes to travel outside the United States while the
application is pending must obtain advance permission by filing the
application specified by USCIS with the fee prescribed in 8 CFR
103.7(b)(1) and in accordance with the form instructions.
* * * * *
0
131. In Sec. 245.22, paragraph (c) is revised to read as follows:
Sec. 245.22 Evidence to demonstrate an alien's physical presence in
the United States on a specific date.
* * * * *
(c) DHS-issued documentation. An applicant for permanent residence
may demonstrate physical presence by submitting DHS-issued (or
predecessor agency-issued) documentation such as an arrival-departure
form or notice to appear in immigration proceedings.
* * * * *
PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR
TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE
IMMIGRATION AND NATIONALITY ACT
0
132. The authority citation for part 245a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1255a, and 1255a note.
0
133. The heading for part 245a is revised as set forth above.
Sec. 245a.4 [Amended]
0
134. In Sec. 245a.4, paragraph (b)(16), third sentence is amended by
revising the term ``Sec. 103.5a(b) of this Act'' to read ``8 CFR
103.8(b)''.
Sec. 245a.12 [Amended]
0
135. In Sec. 245a.12, paragraph (b) introductory text, third sentence
is amended by revising the term ``fingerprinting as prescribed in Sec.
103.2(e) of this chapter'' to read ``fingerprinting as prescribed in 8
CFR 103.16''.
Sec. 245a.37 [Amended]
0
136. In Sec. 245a.37, paragraph (b) is amended by revising the term
``Sec. 103.5a of this chapter'' to read ``8 CFR 103.8'' wherever that
term appears.
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
0
137. The authority citation for part 248 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
Sec. 248.1 [Amended]
0
138. Section 248.1 is amended by:
0
a. Revising the term ``the Service'' to read ``USCIS'' in paragraph (b)
introductory text;
0
b. Revising the term ``the Service'' to read ``USCIS'' in paragraph
(b)(1);
0
c. Revising the phrase ``The district director or service center
director shall'' to read ``USCIS will'' in the second sentence in
paragraph (c)(1);
0
d. Revising the phrase ``The district director or service center
director'' to read ``USCIS'' in the last sentence in paragraph (c)(3);
and
0
e. Removing the phrase ``before the Service'' in the last sentence in
paragraph (c)(3).
0
139. Section 248.3 is amended by:
0
a. Adding introductory text;
0
b. Revising paragraph (a);
0
c. Revising paragraph (b);
0
d. Revising the phrase ``Form I-539 and be accompanied by a Form I-566,
completed and endorsed in accordance with the instructions on that
form'' to read ``the prescribed application accompanied by the
appropriate endorsement from the Department of State recommending the
change of status'' in the second sentence in paragraph (c);
0
e. Removing and reserving paragraph (d);
0
f. Revising the term ``sections 101(a)(15)(E), (H), (I), (J), (L), or
(Q)(ii) of the Act'' to read ``sections 101(a)(15)(E), (H), (I), (J),
or (L) of the Act'' in paragraph (e)(2);
0
g. Revising the term ``the district director'' to read ``USCIS'' in the
last sentence in paragraph (f); and
0
h. Revising the phrase ``Form I-539, Application to Extend/Change
Nonimmigrant Status, with the appropriate fee, and Form I-854, Inter-
Agency Alien Witness and Informant Record, with attachments'' to read
``the forms designated by USCIS with the fee prescribed in 8 CFR
103.7(b)(1) and in accordance with the form instructions'' in paragraph
(h) introductory text.
The revisions read as follows:
Sec. 248.3 Petition and application.
Requests for a change of status must be filed on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b) and in
accordance with the form instructions.
(a) Petition by employer. An employer must submit a petition for a
change of status to E-1 treaty trader, E-2 treaty investor, H-1C, H-1B,
H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN
nonimmigrant.
(b) Application by nonimmigrant. (1) Individual applicant. Any
nonimmigrant who seeks to change status to:
(i) A dependent nonimmigrant classification as the spouse or child
of
[[Page 53795]]
a principal whose nonimmigrant classification is listed in paragraph
(a) of this section, or
(ii) Any other nonimmigrant classification not listed in paragraph
(a) of this section must apply for a change of status on his or her own
behalf.
(2) Multiple applicants. More than one person may be included in an
application where the co-applicants are all members of a single family
group and either all hold the same nonimmigrant status or one holds a
nonimmigrant status and the co-applicants are his or her spouse and/or
children who hold derivative nonimmigrant status based on the
principal's nonimmigrant status.
* * * * *
PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED
STATES
0
140. The authority citation for part 264 continues to read as follows:
Authority: 8 U.S.C. 1103, 1201, 1201a, 1301-1305; 8 CFR part 2.
0
141. Section 264.1 is amended by:
0
a. Removing the entry for Form ``I-485A'' from the table in paragraph
(a);
0
b. Removing the entries for Forms ``I-688'', ``I-688A'' and ``I-688B''
from the table in paragraph (b);
0
c. Adding the entries for ``Form I-862'' and ``Form I-863'' in proper
numerical sequence in the table in paragraph (b);
0
d. Revising paragraph (c);
0
e. Revising the term ``Service'' to read ``USCIS'' in paragraph (d);
0
f. Revising paragraph (g); and
0
g. Removing paragraphs (h) and (i).
The revisions read as follows:
Sec. 264.1 Registration and fingerprinting.
* * * * *
(b) * * *
Form No. and Class
* * * * *
Form I-862, Notice to Appear--Aliens against whom removal
proceedings are being instituted.
Form I-863, Notice of Referral to Immigration Judge--Aliens against
whom removal proceedings are being instituted.
* * * * *
(c) Replacement of alien registration. Any alien whose registration
document is not available for any reason must immediately apply for a
replacement document in the manner prescribed by USCIS.
* * * * *
(g) Registration and fingerprinting of children who reach age 14.
Within 30 days after reaching the age of 14, any alien in the United
States not exempt from alien registration under the Act and this
chapter must apply for registration and fingerprinting, unless
fingerprinting is waived under paragraph (e) of this section, in
accordance with applicable form instructions.
(1) Permanent residents. If such alien is a lawful permanent
resident of the United States and is temporarily absent from the United
States when he reaches the age of 14, he must apply for registration
and provide a photograph within 30 days of his or her return to the
United States in accordance with applicable form instructions. The
alien, if a lawful permanent resident of the United States, must
surrender any prior evidence of alien registration. USCIS will issue
the alien new evidence of alien registration.
(2) Others. In the case of an alien who is not a lawful permanent
resident, the alien's previously issued registration document will be
noted to show that he or she has been registered and the date of
registration.
Sec. 264.2 [Amended]
0
142. In Sec. 264.2, paragraph (d) is amended by revising the term ``be
fingerprinted on Form FD-258, Applicant Card, as prescribed in Sec.
103.2(e) of this chapter'' to read ``be fingerprinted as prescribed in
8 CFR 103.16.''
0
143. Section 264.5 is amended by:
0
a. Revising paragraph (a);
0
b. Revising the term ``Form I-90'' to read ``the designated form''
wherever the term appears in paragraphs (c)(1) and (2);
0
c. Revising paragraph (d) introductory text;
0
d. Revising paragraph (e);
0
e. Revising paragraph (g) and by
0
f. Adding paragraphs (h) and (i).
The revisions read as follows:
Sec. 264.5 Application for replacement Permanent Resident Card.
(a) Filing instructions. A request to replace a Permanent Resident
Card must be filed in accordance with the appropriate form instructions
and with the fee specified in 8 CFR 103.7(b)(1); except that no fee is
required for an application filed pursuant to paragraphs (b)(7) through
(9) of this section, or paragraphs (d)(2) or (4) of this section.
* * * * *
(d) Conditional permanent residents required to file. A conditional
permanent resident whose card is expiring may apply to have the
conditions on residence removed in accordance with 8 CFR 216.4 or 8 CFR
216.6. A conditional resident who seeks to replace a permanent resident
card that is not expiring within 90 days may apply for a replacement
card on the form prescribed by USCIS:
* * * * *
(e) Supporting documentation. (1) The prior Permanent Resident Card
must be surrendered to USCIS if a new card is being requested in
accordance with paragraphs (b)(2) through (5) and (b)(8) and (9) of
this section.
(2) A request to replace a Permanent Resident Card filed pursuant
to paragraph (b)(4) of this section must include evidence of the name
change such as a court order or marriage certificate.
(3) A request to replace a Permanent Resident Card in order to
change any other biographic data on the card must include documentary
evidence verifying the new data.
* * * * *
(g) Eligibility for evidence of permanent residence while in
deportation, exclusion, or removal proceedings. A person in
deportation, exclusion, or removal proceedings is entitled to evidence
of permanent resident status until ordered excluded, deported, or
removed. USCIS will issue such evidence in the form of a temporary
permanent resident document that will remain valid until the
proceedings are concluded. Issuance of evidence of permanent residence
to an alien who had permanent resident status when the proceedings
commenced shall not affect those proceedings.
(h) Temporary evidence of registration. USCIS may issue temporary
evidence of registration and lawful permanent resident status to a
lawful permanent resident alien who is departing temporarily from the
United States and has applied for issuance of a replacement permanent
resident card if USCIS is unable to issue and deliver such card prior
to the alien's contemplated return to the United States. The alien must
surrender such temporary evidence upon receipt of his or her permanent
resident card.
(i) Waiver of requirements. USCIS may waive the photograph, in
person filing, and fingerprinting requirements of this section in cases
of confinement due to advanced age or physical infirmity.
0
144. Section 264.6 is revised to read as follows:
Sec. 264.6 Application for a nonimmigrant arrival-departure record.
(a) Eligibility. USCIS may issue a new or replacement arrival-
departure record to a nonimmigrant who seeks:
[[Page 53796]]
(1) To replace a lost or stolen record;
(2) To replace a mutilated record; or
(3) Was not issued an arrival-departure record pursuant to 8 CFR
235.1(h)(1)(i), (iii), (iv), (v), or (vi) when last admitted as a
nonimmigrant, and has not since been issued such record but now
requires one.
(b) Application. A nonimmigrant may request issuance or replacement
of a nonimmigrant arrival-departure record by applying on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions.
(c) Processing. A pending application filed under paragraph (a) of
this section is temporary evidence of registration. If the application
is approved, USCIS will issue an arrival-departure document. There is
no appeal from the denial of this application.
PART 265--NOTICES OF ADDRESS
0
145. The authority citation for part 265 is revised to read as follows:
Authority: 8 U.S.C. 1103 and 1305.
0
146. Section 265.1 is revised to read as follows:
Sec. 265.1 Reporting change of address.
Except for those exempted by section 263(b) of the Act, all aliens
in the United States required to register under section 262 of the Act
must report each change of address and new address within 10 days of
such change in accordance with instructions provided by USCIS.
PART 270--PENALTIES FOR DOCUMENT FRAUD
0
147. The authority citation for part 270 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
Sec. 270.2 [Amended]
0
148. Section 270.2 is amended by revising the term ``Sec. 103.5a(a)(2)
of this chapter'' to read ``8 CFR 103.8(a)(2)'' wherever that term
appears in the following places:
0
a. Paragraph (d) and
0
b. Paragraph (i).
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
149. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
0
150. Section 274a.12 is amended by:
0
a. Revising the term ``BCIS'' to read ``USCIS'' wherever that term
appears in paragraph (a)(5);
0
b. Revising paragraph (b)(6)(iv);
0
c. Revising the term ``BCIS'' to read ``USCIS'' in paragraph (c)
introductory text;
0
d. Revising paragraph (c)(1);
0
e. Revising paragraph (c)(4); and
0
f. Removing and reserving paragraph (c)(23).
The revisions read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(6) * * *
(iv) An employment authorization document under paragraph
(c)(3)(i)(C) of this section based on a 17-month STEM Optional
Practical Training extension, and whose timely filed employment
authorization request is pending and employment authorization issued
under paragraph (c)(3)(i)(B) of this section has expired. Employment is
authorized beginning on the expiration date of the authorization issued
under paragraph (c)(3)(i)(B) of this section and ending on the date of
USCIS' written decision on the current employment authorization
request, but not to exceed 180 days; or
* * * * *
(c) * * *
(1) An alien spouse or unmarried dependent child; son or daughter
of a foreign government official (A-1 or A-2) pursuant to 8 CFR
214.2(a)(2) and who presents an endorsement from an authorized
representative of the Department of State;
* * * * *
(4) An alien spouse or unmarried dependent child; son or daughter
of a foreign government official (G-1, G-3 or G-4) pursuant to 8 CFR
214.2(g) and who presents an endorsement from an authorized
representative of the Department of State;
* * * * *
0
151. Section 274a.13 is amended by:
0
a. Revising paragraph (a);
0
b. Removing the term ``INS'' in paragraph (b); and
0
c. Revising paragraph (d).
The revision reads as follows:
Sec. 274a.13 Application for employment authorization.
(a) Application. Aliens authorized to be employed under sections
274a.12(a)(3), (4), (6) through (8), (a)(10) through (15), and (a)(20)
must file an application in order to obtain documentation evidencing
this fact.
(1) Aliens who may apply for employment authorization under 8 CFR
274a.12(c), except for those who may apply under 8 CFR 274a.12(c)(8),
must apply on the form designated by USCIS with the fee prescribed in 8
CFR 103.7(b)(1) and in accordance with the form instructions. The
approval of applications filed under 8 CFR 274a.12(c), except for 8 CFR
274a.12(c)(8), are within the discretion of USCIS. Where economic
necessity has been identified as a factor, the alien must provide
information regarding his or her assets, income, and expenses.
(2) An initial employment authorization request for asylum
applicants under 8 CFR 274a.12(c)(8) must be filed on the form
designated by USCIS in accordance with the form instructions. The
applicant also must submit a copy of the underlying application for
asylum or withholding of deportation, together with evidence that the
application has been filed in accordance with 8 CFR 208.3 and 208.4. An
application for an initial employment authorization or for a renewal of
employment authorization filed in relation to a pending claim for
asylum shall be adjudicated in accordance with 8 CFR 208.7. An
application for renewal or replacement of employment authorization
submitted in relation to a pending claim for asylum, as provided in 8
CFR 208.7, must be filed, with fee or application for waiver of such
fee.
* * * * *
(d) Interim employment authorization. USCIS will adjudicate the
application within 90 days from the date of receipt of the application,
except in the case of an initial application for employment
authorization under 8 CFR 274a.12(c)(8), which is governed by paragraph
(a)(2) of this section, and 8 CFR 274a.12(c)(9) in so far as it is
governed by 8 CFR 245.13(j) and 245.15(n). Failure to complete the
adjudication within 90 days will result in the grant of an employment
authorization document for a period not to exceed 240 days. Such
authorization will be subject to any conditions noted on the employment
authorization document. However, if USCIS adjudicates the application
prior to the expiration date of the interim employment authorization
and denies the individual's employment authorization application, the
interim employment authorization granted under this section will
automatically terminate as of the date of the adjudication and denial.
PART 287--FIELD OFFICERS; POWERS AND DUTIES
0
152. The authority citation for part 287 continues to read as follows:
Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357;
Homeland Security Act of
[[Page 53797]]
2002, Pub. L. 107-296 (6 U.S.C. 1, et seq.); 8 CFR part 2.
Sec. 287.5 [Amended]
0
153. Section 287.5 is amended by:
0
a. Removing the phrase ``as defined in 8 CFR 103.1(b)'' in paragraph
(a) introductory text;
0
b. Revising the term ``the BCIS'' to read ``USCIS'' in paragraph
(c)(1)(viii); and
0
c. Revising the term ``the BCIS'' to read ``USCIS'' in paragraph
(c)(2)(viii).
Sec. 287.7 [Amended]
0
154. In Sec. 287.7, paragraph (b)(8) is amended by revising the term
``the BCIS'' to read ``USCIS''.
PART 292--REPRESENTATION AND APPEARANCES
0
155. The authority citation for part 292 continues to read as follows:
Authority: 8 U.S.C. 1103, 1252b, 1362.
Sec. 292.1 [Amended]
0
156. Section 292.1 is amended by revising the terms ``Sec. 1.1(f) of
this chapter'' and ``8 CFR 1.1(f)'' to read ``8 CFR 1.2'' wherever the
term appears in the following places:
0
a. Paragraph (a)(1); and
0
b. Paragraph (a)(6) first sentence.
Sec. 292.3 [Amended]
0
157. Section 292.3 is amended by revising the terms ``8 CFR 1.1(f)''
and ``8 CFR 1.1(j)'', to read ``8 CFR 1.2'' in paragraph (a)(2);
0
158. Section 292.4 is amended by revising paragraph (b) to read as
follows:
Sec. 292.4 Appearances.
* * * * *
(b) A party to a proceeding and his or her attorney or
representative will be permitted to examine the record of proceeding in
accordance with 6 CFR part 5.
PART 299--IMMIGRATION FORMS
0
159. The authority citation for part 299 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR Part 2.
0
160. Section 299.1 is revised to read as follows:
Sec. 299.1 Prescribed forms.
A listing of USCIS, ICE, and CBP approved forms referenced in
chapter I can be viewed on the Office of Management and Budget Web site
at http://www.reginfo.gov. A listing of approved USCIS forms can also
be viewed on its Internet Web site.
Sec. 299.3 [Removed and Reserved]
0
161. Section 299.3 is removed and reserved.
Sec. 299.5 [Removed and Reserved]
0
162. Section 299.5 is removed and reserved.
PART 301--NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH
0
163. The authority citation for part 301 continues to read as follows:
Authority: 8 U.S.C. 1103, 1401; 8 CFR part 2.
0
164. Section 301.1 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 301.1 Procedures.
(a) * * *
(1) As provided in 8 CFR part 341, a person residing in the United
States who desires to be documented as a United States citizen pursuant
to section 301(h) of the Act may apply for a passport at a United
States passport agency or may submit an application on the form
specified by USCIS in accordance with the form instructions and with
the fee prescribed by 8 CFR 103.7(b)(1). The applicant will be notified
when and where to appear before a USCIS officer for examination on his
or her application.
* * * * *
PART 310--NATURALIZATION AUTHORITY
0
165. The authority citation for part 310 continues to read as follows:
Authority: 8 U.S.C. 1103, 1421, 1443, 1447, 1448; 8 CFR 2.1.
Sec. 310.2 [Amended]
0
166. Section 310.2, first sentence, is amended by revising the term
``The Service'' to read ``USCIS'' and the term ``Service district'' to
read ``Service district, as defined in 8 CFR 316.1,''
PART 312--EDUCATIONAL REQUIREMENTS FOR NATURALIZATION
0
167. The authority citation for part 312 continues to read as follows:
Authority: 8 U.S.C. 1103, 1423, 1443, 1447, 1448.
0
168. Section 312.1 is amended by revising paragraph (c) to read as
follows:
Sec. 312.1 Literacy requirements.
* * * * *
(c) Literacy examination. (1) Verbal skills. The ability of an
applicant to speak English will be determined by a designated
immigration officer from the applicant's answers to questions normally
asked in the course of the examination.
(2) Reading and writing skills. Except as noted in 8 CFR 312.3, an
applicant's ability to read and write English must be tested in a
manner prescribed by USCIS. USCIS will provide a description of test
study materials and testing procedures on the USCIS Internet Web site.
0
169. Section 312.2 is amended by revising paragraph (c) to read as
follows:
Sec. 312.2 Knowledge of history and government of the United States.
* * * * *
(c) History and government examination. (1) Procedure. The
examination of an applicant's knowledge of the history and form of
government of the United States must be given orally in English by a
designated immigration officer, except:
(i) If the applicant is exempt from the English literacy
requirement under 8 CFR 312.1(b), the examination may be conducted in
the applicant's native language with the assistance of an interpreter
selected in accordance with 8 CFR 312.4 but only if the applicant's
command of spoken English is insufficient to conduct a valid
examination in English;
(ii) The examination may be conducted in the applicant's native
language, with the assistance of an interpreter selected in accordance
with 8 CFR 312.4, if the applicant is required to satisfy and has
satisfied the English literacy requirement under 8 CFR 312.1(a), but
the officer conducting the examination determines that an inaccurate or
incomplete record of the examination would result if the examination on
technical or complex issues were conducted in English, or
(iii) The applicant has met the requirements of 8 CFR 312.3.
(2) Scope and substance. The scope of the examination will be
limited to subject matters prescribed by USCIS. In choosing the subject
matters, in phrasing questions and in evaluating responses, due
consideration must be given to the applicant's:
(i) Education,
(ii) Background,
(iii) Age,
(iv) Length of residence in the United States,
(v) Opportunities available and efforts made to acquire the
requisite knowledge, and
(vi) Any other elements or factors relevant to an appraisal of the
adequacy of the applicant's knowledge and understanding.
[[Page 53798]]
0
170. Section 312.3 is revised to read as follows:
Sec. 312.3 Testing of applicants who obtained permanent residence
pursuant to section 245A of the Act.
An applicant who has obtained lawful permanent resident alien
status pursuant to section 245A of the Act, and who, at that time,
demonstrated English language proficiency in reading and writing, and
knowledge of the government and history of the United States through
either an examination administered by USCIS or the INS or a
standardized section 312 test authorized by the USCIS or the INS for
use with Legalization applicants as provided in section
245A(b)(1)(D)(iii) of the Act, will not be reexamined on those skills
at the time of the naturalization interview. However, such applicant,
unless otherwise exempt, must still demonstrate his or her ability to
speak and understand English in accordance with 8 CFR 312.1(c)(1) and
establish eligibility for naturalization through testimony in the
English language.
PART 316--GENERAL REQUIREMENTS FOR NATURALIZATION
0
171. The authority citation for part 316 continues to read as follows:
Authority: 8 U.S.C. 1103, 1181, 1182, 1427, 1443, 1447; 8 CFR
part 2.
0
172. Section 316.1 is revised to read as follows:
Sec. 316.1 Definitions.
As used in this part, the term:
Application means any form, as defined in 8 CFR part 1, on which an
applicant requests a benefit relating to naturalization.
Residence in the Service district where the application is filed
means residence in the geographical area over which a particular local
field office of USCIS ordinarily has jurisdiction for purposes of
naturalization, regardless of where or how USCIS may require such
benefit request to be submitted, or whether jurisdiction for the
purpose of adjudication is relocated or internally reassigned to
another USCIS office.
Service district means the geographical area over which a
particular local field office of USCIS ordinarily has jurisdiction for
purposes of naturalization.
Sec. 316.2 [Amended]
0
173. In Sec. 316.2, paragraph (a)(5) is amended by removing the end
the phrase ``, and in which the alien seeks to file the application''.
0
174. Section 316.4 is amended by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (b); and
0
c. Redesignating paragraph (c) as paragraph (b).
The revision reads as follows:
Sec. 316.4 Applications; documents.
(a) The applicant will apply for naturalization in accordance with
instructions provided on the form prescribed by USCIS for that purpose.
* * * * *
0
175. Section 316.5 is amended by adding paragraph (b)(6) to read as
follows:
Sec. 316.5 Residence in the United States.
* * * * *
(b) * * *
(6) Spouse of military personnel. Pursuant to section 319(e) of the
Act, any period of time the spouse of a United States citizen resides
abroad will be treated as residence in any State or district of the
United States for purposes of naturalization under section 316(a) or
319(a) of the Act if, during the period of time abroad, the applicant
establishes that he or she was:
(i) The spouse of a member of the Armed Forces;
(ii) Authorized to accompany and reside abroad with that member of
the Armed Forces pursuant to the member's official orders; and
(iii) Accompanying and residing abroad with that member of the
Armed Forces in marital union in accordance with 8 CFR 319.1(b).
* * * * *
0
176. Section 316.6 is added to read as follows:
Sec. 316.6 Physical presence for certain spouses of military
personnel.
Pursuant to section 319(e) of the Act, any period of time the
spouse of a United States citizen resides abroad will be treated as
physical presence in any State or district of the United States for
purposes of naturalization under section 316(a) or 319(a) of the Act
if, during the period of time abroad, the applicant establishes that he
or she was:
(a) The spouse of a member of the Armed Forces;
(b) Authorized to accompany and reside abroad with that member of
the Armed Forces pursuant to the member's official orders; and
(c) Accompanying and residing abroad with that member of the Armed
Forces in marital union in accordance with 8 CFR 319.1(b).
PART 319--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
SPOUSES OF UNITED STATES CITIZENS
0
177. The authority citation for part 319 continues to read as follows:
Authority: 8 U.S.C. 1103, 1430, 1443.
Sec. 319.1 [Amended]
0
178. In Sec. 319.1, paragraph (a)(5) is amended by removing the phrase
``and in which the alien has filed the application''
0
179. Section 319.3 is amended by revising paragraph (a) to read as
follows:
Sec. 319.3 Surviving spouse, child, or parent of a United States
citizen who died during a period of honorable service in an active duty
status in the Armed Forces of the United States.
(a) Eligibility. To be eligible for naturalization under section
319(d) of the Act, the surviving spouse, child, or parent of a United
States citizen must:
(1) Establish that his or her citizen spouse, child, or parent died
during a period of honorable service in an active duty status in the
Armed Forces of the United States and, in the case of a surviving
spouse, establish that he or she was living in marital union with the
citizen spouse, in accordance with 8 CFR 319.1(b), at the time of the
citizen spouse's death;
(2) At the time of examination on the application for
naturalization, reside in the United States pursuant to a lawful
admission for permanent residence;
(3) Be a person of good moral character, attached to the principles
of the Constitution of the United States, and favorably disposed toward
the good order and happiness of the United States; and
(4) Comply with all other requirements for naturalization as
provided in 8 CFR 316, except for those contained in 8 CFR 316.2(a)(3)
through (6).
* * * * *
0
180. Section 319.11 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 319.11 Filing of application.
(a) General. An applicant under this part must submit an
application for naturalization in accordance with the form instructions
with the fee required by 8 CFR 103.7(b)(1). An alien spouse applying
for naturalization under section 319(b) of the Act who is described in
8 CFR 319.2 must also submit a statement of intent containing the
following information about the
[[Page 53799]]
citizen spouse's employment and future intent:
* * * * *
PART 320--CHILD BORN OUTSIDE THE UNITED STATES AND RESIDING
PERMANENTLY IN THE UNITED STATES; REQUIREMENTS FOR AUTOMATIC
ACQUISITION OF CITIZENSHIP
0
181. The authority citation for part 320 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.
0
182. Section 320.3 is amended by:
0
a. Revising paragraph (a); and
0
b. Revising paragraph (b)(1) introductory text.
The revisions read as follows:
Sec. 320.3 How, where, and what forms and other documents should be
filed?
(a) Application. Individuals who are applying for a certificate of
citizenship on their own behalf should submit the request in accordance
with the form instructions on the form prescribed by USCIS for that
purpose. An application for a certificate of citizenship under this
section on behalf of a child who has not reached the age of 18 years
must be submitted by that child's U.S. citizen biological or adoptive
parent(s), or legal guardian.
(b) Evidence. (1) An applicant under this section must establish
eligibility as described in 8 CFR 320.2. An applicant must submit the
following supporting evidence unless such evidence is already contained
in USCIS administrative file(s):
* * * * *
0
183. Section 320.5 is revised to read as follows:
Sec. 320.5 Decision.
(a) Approval of application. If the application for the certificate
of citizenship is approved, after the applicant takes the oath of
allegiance prescribed in 8 CFR 337.1 (unless the oath is waived), USCIS
will issue a certificate of citizenship.
(b) Denial of application. If the decision of USCIS is to deny the
application for a certificate of citizenship under this section, the
applicant will be advised in writing of the reasons for denial and of
the right to appeal in accordance with 8 CFR 103.3(a). An applicant may
file an appeal within 30 days of service of the decision in accordance
with the instructions on the form prescribed by USCIS for that purpose,
and with the fee required by 8 CFR 103.7(b)(1).
(c) Subsequent application. After an application for a certificate
of citizenship has been denied and the time for appeal has expired,
USCIS will reject a subsequent application submitted by the same
individual and the applicant will be instructed to submit a motion for
reopening or reconsideration in accordance with 8 CFR 103.5. The motion
must be accompanied by the rejected application and the fee specified
in 8 CFR 103.7(b)(1).
PART 322--CHILD BORN OUTSIDE THE UNITED STATES; REQUIREMENTS FOR
APPLICATION FOR CERTIFICATE OF CITIZENSHIP
0
184. The authority citation for part 322 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.
Sec. 322.1 [Amended]
0
185. Section 322.1 is amended, in the definition of ``adopted child''
by revising ``section 101(b)(1)(E) or (F)'' to read ``section
101(b)(1)(E), (F) or (G)''.
0
186. Section 322.2 is amended by:
0
a. Revising the section heading; and by
0
b. Adding paragraph (c) to read as follows:
Sec. 322.2 Eligibility.
* * * * *
(c) Exceptions for children of military personnel. Pursuant to
section 322(d) of the Act, a child of a member of the Armed Forces of
the United States residing abroad is exempt from the temporary physical
presence, lawful admission, and maintenance of lawful status
requirements under 8 CFR 322.2(a)(5), if the child:
(1) Is authorized to accompany and reside abroad with the member of
the Armed Forces pursuant to the member's official orders; and
(2) Is accompanying and residing abroad with the member of the
Armed Forces.
0
187. Section 322.3 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (a);
0
c. Revising paragraph (b)(1)(viii);
0
d. Revising paragraph (b)(1)(xi);
0
e. Revising paragraph (b)(1)(xii);
0
f. Revising paragraph (b)(1)(xiii); and
0
g. Revising paragraph (b)(2), the first sentence.
The revisions read as follows:
Sec. 322.3 Application and supporting documents.
(a) Application. A U.S. citizen parent of an alien child (including
an adopted child) may file an application for the child to become a
citizen and obtain a certificate of citizenship under section 322 of
the Act by submitting an application on the form prescribed by USCIS in
accordance with the form instructions and with the fee prescribed by 8
CFR 103.7(b)(1). If the U.S. citizen parent has died, the child's U.S.
citizen grandparent or U.S. citizen legal guardian may submit the
application, provided the application is filed not more than 5 years
after the death of the U.S. citizen parent.
(b) * * *
(1) * * *
(viii) Evidence that the child is present in the United States
pursuant to a lawful admission and is maintaining such lawful status,
or evidence establishing that the child qualifies for an exception to
these requirements as provided in 8 CFR 322.2(c) pursuant to section
322(d) of the Act. Such evidence may be presented at the time of
interview when appropriate;
* * * * *
(xi) For adopted orphans applying under section 322 of the Act, a
copy of notice of approval of the orphan petition and supporting
documentation for such petition (except the home study) or evidence
that the child has been admitted for lawful permanent residence in the
United States with the immigrant classification of IR-3 (Orphan adopted
abroad by a U.S. citizen) or IR-4 (Orphan to be adopted by a U.S.
citizen);
(xii) For a Hague Convention adoptee applying under section 322 of
the Act, a copy of the notice of approval of the Convention adoptee
petition and its supporting documentation, or evidence that the child
has been admitted for lawful permanent residence in the United States
with the immigrant classification of IH-3 (Hague Convention Orphan
adopted abroad by a U.S. citizen) or IH-4 (Hague Convention Orphan to
be adopted by a U.S. citizen); and
(xiii) Evidence of all legal name changes, if applicable, for the
child, U.S. citizen parent, U.S. citizen grandparent, or U.S. citizen
legal guardian.
(2) If USCIS requires any additional documentation to make a
decision on the application, the parents may be asked to provide that
documentation under separate cover or at the time of interview. * * *
0
188. Section 322.4 is revised to read as follows:
Sec. 322.4 Interview.
The U.S. citizen parent and the child must appear in person before
a USCIS officer for examination on the application under this section.
If the U.S. citizen parent is deceased, the
[[Page 53800]]
child's U.S. citizen grandparent or U.S. citizen legal guardian who
filed the application on the child's behalf must appear.
0
189. Section 322.5 is revised to read as follows:
Sec. 322.5 Decision.
(a) Approval of application. If the application for certificate of
citizenship is approved, after the applicant takes the oath of
allegiance prescribed in 8 CFR 337.1 (unless the oath is waived), USCIS
will issue a certificate of citizenship. The child is a citizen as of
the date of approval and administration of the oath of allegiance.
(b) Denial of application. If the USCIS decision is to deny the
application for a certificate of citizenship under this section, the
applicant will be furnished with the reasons for denial and advised of
the right to appeal in accordance with the provisions of 8 CFR
103.3(a). An applicant may file an appeal within 30 days of service of
the decision in accordance with the instructions on the form prescribed
by USCIS for that purpose, and with the fee required by 8 CFR
103.7(b)(1).
(c) Subsequent application. After an application for a certificate
of citizenship has been denied and the time for appeal has expired,
USCIS will reject a subsequent application submitted by the same
individual and the applicant will be instructed to submit a motion for
reopening or reconsideration in accordance with 8 CFR 103.5. The motion
must be accompanied by the rejected application and the fee specified
in 8 CFR 103.7(b)(1).
PART 324--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: WOMEN
WHO HAVE LOST UNITED STATES CITIZENSHIP BY MARRIAGE AND FORMER
CITIZENS WHOSE NATURALIZATION IS AUTHORIZED BY PRIVATE LAW
0
190. The authority citation for part 324 continues to read as follows:
Authority: 8 U.S.C. 1103, 1435, 1443, 1448, 1101 note.
Sec. 324.2 [Amended]
0
191. In Sec. 324.2, paragraph (b) is amended by revising the term ``N-
400, as required by Sec. 316.4 of this chapter'' to read ``the form
designated by USCIS in accordance with the form instructions and with
the fee prescribed in 8 CFR 103.7(b)(1) as required by 8 CFR 316.4''.
Sec. 324.3 [Amended]
0
192. In Sec. 324.3, paragraph (b)(1) is amended by revising the phrase
``an Application for Naturalization, form N-400, to USCIS'' to read
``an application for naturalization on the form prescribed by USCIS''.
0
193. Section 324.5 is revised to read as follows:
Sec. 324.5 Former citizen of the United States whose naturalization
by taking the oath is authorized by a private law.
A former citizen of the United States whose naturalization by
taking the oath before any naturalization court or office of USCIS
within the United States is authorized by a private law must submit an
application on the form specified by USCIS, without fee, in accordance
with the form instructions.
PART 325--NATIONALS BUT NOT CITIZENS OF THE UNITED STATES;
RESIDENCE WITHIN OUTLYING POSSESSIONS
0
194. The authority citation for part 325 continues to read as follows:
Authority: 8 U.S.C. 1103, 1436, 1443.
Sec. 325.4 [Amended]
0
195. In Sec. 325.4, paragraph (b)(3) is amended by revising the term
``Service district in the United States where the application is
filed'' to read ``Service district, as defined in 8 CFR 316.1,''.
PART 328--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
PERSONS WITH 1 YEAR OF SERVICE IN THE UNITED STATES ARMED FORCES
0
196. The authority citation for part 328 continues to read as follows:
Authority: 8 U.S.C. 1103, 1439, 1443.
0
197. Section 328.4 is revised to read as follows:
Sec. 328.4 Application and evidence.
(a) Application. An applicant for naturalization under section 328
of the Act must submit an application on the form prescribed by USCIS
in accordance with the form instructions and as provided in 8 CFR
316.4.
(b) Evidence. The applicant's eligibility for naturalization under
8 CFR 328.2(a) or (b) will be established only by the certification of
honorable service by the executive department under which the applicant
served or is serving.
PART 329--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
PERSONS WITH ACTIVE DUTY OR CERTAIN READY RESERVE SERVICE IN THE
UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES
0
198. The authority citation for part 329 continues to read as follows:
Authority: 8 U.S.C. 1103, 1440, 1443; 8 CFR part 2.
0
199. Revise Sec. 329.4 to read as follows:
Sec. 329.4 Application and evidence.
(a) Application. An applicant for naturalization under section 329
of the Act must submit an application on the form prescribed by USCIS
in accordance with the form instructions and as provided in 8 CFR
316.4.
(b) Evidence. The applicant's eligibility for naturalization under
8 CFR 329.2(a), (b), or (c)(2) will be established only by a
certification of honorable service by the executive department under
which the applicant served or is serving.
Sec. 329.5 [Removed]
0
200. Section 329.5 is removed.
PART 330--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SEAMEN
0
201. The authority citation for part 330 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443.
Sec. 330.2 [Amended]
0
202. In Sec. 330.2, paragraph (a) is amended by revising the phrase
``Application for Naturalization, Form N-400.'' to read ``application
on the form designated by USCIS.''.
PART 332--NATURALIZATION ADMINISTRATION
0
203. The authority citation for part 332 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443, 1447.
0
204. Section 332.1 is revised to read as follows:
Sec. 332.1 Designation of USCIS employees to administer oaths and
conduct examinations and hearings.
(a) Examinations. All USCIS officers are hereby designated to
conduct the examination for naturalization required under section 335
of the Act, provided that each officer so designated has received
appropriate training.
(b) Hearings. Section 336 of the Act authorizes USCIS officers who
are designated under paragraph (a) of this
[[Page 53801]]
section to conduct hearings under that section.
(c) Depositions. All USCIS officers who are designated under
paragraph (a) of this section are hereby designated to take depositions
in matters relating to the administration of naturalization and
citizenship laws.
(d) Oaths and affirmations. All USCIS officers who are designated
under paragraph (a) of this section are hereby designated to administer
oaths or affirmations except for the oath of allegiance as provided in
8 CFR 337.2.
Sec. Sec. 332.2, 332.3, and 332.4 [Removed and Reserved]
0
205. Sections 332.2, 332.3, and 332.4 are removed and reserved.
PART 333--PHOTOGRAPHS
0
206. The authority citation for part 333 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443.
0
207. In Sec. 333.1, paragraph (a) is revised to read as follows:
Sec. 333.1 Description of required photographs.
(a) Every applicant who is required to provide photographs under
section 333 of the Act must do so as prescribed by USCIS in its form
instructions.
* * * * *
0
208. Section 333.2 is revised to read as follows:
Sec. 333.2 Attachment of photographs to documents.
A photograph of the applicant must be securely and permanently
attached to each certificate of naturalization or citizenship, or to
any other document that requires a photograph, in a manner prescribed
by USCIS.
PART 334--APPLICATION FOR NATURALIZATION
0
209. The authority citation for part 334 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443.
0
210. In Sec. 334.2, paragraph (a) is revised to read as follows:
Sec. 334.2 Application for naturalization.
(a) An applicant may file an application for naturalization with
required initial evidence in accordance with the general form
instructions for naturalization. The applicant must include the fee as
required in 8 CFR 103.7(b)(1).
* * * * *
0
211. Section 334.11 is amended by:
0
a. Revising the term ``Form N-300'' to read ``the form specified by
USCIS, in accordance with the form instructions'' in paragraph (a); and
by
0
b. Revising paragraph (b).
The revision reads as follows:
Sec. 334.11 Declaration of intention.
* * * * *
(b) Approval. If approved, USCIS will retain the application in the
file and advise the applicant of the action taken.
* * * * *
Sec. Sec. 334.16-334.18 [Removed]
0
212. Sections 334.16 through 334.18 are removed.
PART 335--EXAMINATION ON APPLICATION FOR NATURALIZATION
0
213. The authority citation for part 335 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443, 1447.
0
214. Section 335.2 is amended by:
0
a. Revising the term ``Service'' to read ``USCIS'' and the term ``Sec.
332.1 of this chapter'' to read ``8 CFR 332.1'' in paragraph (a);
0
b. Revising the terms ``The Service'' and ``Service'' to read ``USCIS''
wherever that term appears in paragraph (b) introductory text;
0
c. Revising paragraph (b)(3);
0
d. Revising the terms ``the Service officer'', ``The Service officer''
and ``the Service'' to read ``USCIS'' wherever the terms appear in
paragraph (c);
0
e. Revising paragraph (d)(2);
0
f. Revising the term ``Service'' to read ``USCIS'' wherever the term
appears in paragraph (e); and
0
g. Revising the term ``Service'' to read ``USCIS'' and the term ``Sec.
312.4 of this chapter'' to read ``8 CFR 312.4'' wherever the terms
appear in paragraph (f).
The revisions read as follows:
Sec. 335.2 Examination of applicant.
* * * * *
(b) * * *
(3) Confirmation from the Federal Bureau of Investigation that the
fingerprint data submitted for the criminal background check has been
rejected.
* * * * *
(d) * * *
(2) Service of subpoenas. Subpoenas will be issued on the form
designated by USCIS and a record will be made of service. The subpoena
may be served by any person over 18 years of age, not a party to the
case, designated to make such service by USCIS.
* * * * *
Sec. 335.3 [Amended]
0
215. Section 335.3 is amended by revising the terms ``The Service
officer'' and ``the Service officer'' to read ``USCIS'' wherever the
terms appear in the following places:
0
a. Paragraph (a); and
0
b. Paragraph (b).
Sec. 335.4 [Amended]
0
216. Section 335.4 is amended by revising the phrase ``the Service
officer designated in Sec. 332.1 of this chapter'' to read ``the USCIS
officer described in 8 CFR 332.1''.
Sec. 335.5 [Amended]
0
217. Section 335.5 is amended by revising the terms ``the Service'' and
``The Service'' to read ``USCIS'' wherever the terms appear.
0
218. Section 335.6 is amended by revising the term ``the Service'' to
read ``USCIS'' wherever the term appears in the following places:
0
a. Paragraph (a);
0
b. Paragraph (b); and
0
c. Paragraph (c).
0
219. Section 335.7 is revised to read as follows:
Sec. 335.7 Failure to prosecute application after initial
examination.
An applicant for naturalization who has appeared for the
examination on his or her application as provided in 8 CFR 335.2 will
be considered as failing to prosecute such application if he or she,
without good cause being shown, either failed to excuse an absence from
a subsequently required appearance, or fails to provide within a
reasonable period of time such documents, information, or testimony
deemed by USCIS to be necessary to establish his or her eligibility for
naturalization. USCIS will deliver notice of requests for appearance or
evidence as provided in 8 CFR 103.8. In the event that the applicant
fails to respond within 30 days of the date of notification, USCIS will
adjudicate the application on the merits pursuant to 8 CFR 336.1.
Sec. 335.9 [Amended]
0
220. Section 335.9 is amended by:
0
a. Revising the phrase ``Service office to the Service office'' to read
``USCIS office to the USCIS office'' in paragraph (a); and
0
b. Revising the term ``district director'' to read ``USCIS'' and the
term `the Service's'' to read ``USCIS''' in paragraph (b).
Sec. 335.10 [Amended]
0
221. Section 335.10 is amended by revising the terms ``the Service''
and ``the district director'' to read ``USCIS'' wherever the terms
appear.
[[Page 53802]]
Sec. Sec. 335.11 through 335.13 [Removed]
0
222. Sections 335.11 through 335.13 are removed.
PART 336--HEARINGS ON DENIALS OF APPLICATIONS FOR NATURALIZATION
0
223. The authority citation for section 336 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1443, 1447, 1448.
Sec. 336.1 [Amended]
0
224. Section 336.1 is amended by:
0
a. Revising the phrase ``the Service shall'' to read ``USCIS will'' in
the first sentence in paragraph (a); and
0
b. Revising the phrase ``may be made in person or by certified mail to
the applicant's last known address'' to read ``must be by personal
service as described in 8 CFR 103.8'' in paragraph (c).
0
225. Section 336.2 is revised to read as follows:
Sec. 336.2 USCIS hearing.
(a) The applicant, or his or her authorized representative, may
request a hearing on the denial of the applicant's application for
naturalization by filing a request with USCIS within thirty days after
the applicant receives the notice of denial.
(b) Upon receipt of a timely request for a hearing, USCIS will
schedule a review hearing, within a reasonable period of time not to
exceed 180 days from the date upon which the appeal is filed. The
review will be with an officer other than the officer who conducted the
original examination or who rendered determination upon which the
hearing is based, and who is classified at a grade level equal to or
higher than the grade of the examining officer. The reviewing officer
will have the authority and discretion to review the application for
naturalization, to examine the applicant, and either to affirm the
findings and determination of the original examining officer or to re-
determine the original decision in whole or in part. The reviewing
officer will also have the discretion to review any administrative
record which was created as part of the examination procedures as well
USCIS files and reports. He or she may receive new evidence or take
such additional testimony as may be deemed relevant to the applicant's
eligibility for naturalization or which the applicant seeks to provide.
Based upon the complexity of the issues to be reviewed or determined,
and upon the necessity of conducting further examinations with respect
to essential naturalization requirements, such as literacy or civics
knowledge, the reviewing immigration officer may, in his or her
discretion, conduct a full de novo hearing or may utilize a less formal
review procedure, as he or she deems reasonable and in the interest of
justice.
(c) Improperly filed request for hearing. (1) Request for hearing
filed by a person or entity not entitled to file. (i) Rejection without
refund of filing fee. A request for hearing filed by a person or entity
who is not entitled to file such a request must be rejected as
improperly filed. In such a case, any filing fee will not be refunded.
(ii) Request for hearing by attorney or representative without
proper Form G-28. If a request for hearing is filed by an attorney or
representative who has not properly filed a notice of entry of
appearance as attorney or representative entitling that person to file
the request for hearing, the appeal will be considered as improperly
filed. In such a case, any filing fee will not be refunded regardless
of the action taken. The reviewing official will ask the attorney or
representative to submit a proper notice of entry within 15 days of the
request. If such notice is not submitted within the time allowed, the
official may, on his or her own motion, under 8 CFR 103.5(a)(5)(i),
make a new decision favorable to the affected party without notifying
the attorney or representative. The request for hearing may be
considered properly filed as of its original filing date if the
attorney or representative submits a properly executed notice entitling
that person to file the request for hearing.
(2) Untimely request for hearing. (i) Rejection without refund of
filing fee. A request for hearing which is not filed within the time
period allowed must be rejected as improperly filed. In such a case,
any filing fee will not be refunded.
(ii) Untimely request for hearing treated as motion. If an untimely
request for hearing meets the requirements of a motion to reopen as
described in 8 CFR 103.5(a)(2) or a motion to reconsider as described
in 8 CFR 103.5(a)(3), the request for hearing must be treated as a
motion and a decision must be made on the merits of the case.
0
226. Section 336.9 is amended by:
0
a. Revising the term ``the Service'' to read ``USCIS'' in paragraph
(a);
0
b. Revising paragraph (b); and
0
c. Revising the term ``Service'' to read ``USCIS'' in paragraph (d).
The revision reads as follows:
* * * * *
(b) Filing a petition. Under these procedures, an applicant must
file a petition for review in the United States District Court having
jurisdiction over his or her place of residence, in accordance with
Chapter 7 of Title 5, United States Code, within a period of not more
than 120 days after the USCIS final determination. The petition for
review must be brought against USCIS, and service of the petition for
review must be made upon DHS and upon the USCIS office where the
hearing was held pursuant to 8 CFR 336.2.
* * * * *
PART 337--OATH OF ALLEGIANCE
0
227. The authority citation for part 337 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443, 1448; 8 CFR Part 2.
0
228. Section 337.2 is revised to read as follows:
Sec. 337.2 Oath administered by USCIS or EOIR.
(a) Public ceremony. An applicant for naturalization who has
elected to have his or her oath of allegiance administered by USCIS or
an immigration judge and is not subject to the exclusive oath
administration authority of an eligible court pursuant to section
310(b) of the Act must appear in person in a public ceremony, unless
such appearance is specifically excused under the terms and conditions
set forth in this part. Such ceremony will be held at a time and place
designated by USCIS or EOIR within the United States (or abroad as
permitted for certain applicants in accordance with 8 U.S.C. 1443a) and
within the jurisdiction where the application for naturalization was
filed, or into which the application for naturalization was transferred
pursuant to 8 CFR 335.9. Naturalization ceremonies will be conducted at
regular intervals as frequently as necessary to ensure timely
naturalization, but in all events at least once monthly where it is
required to minimize unreasonable delays. Naturalization ceremonies
will be presented in such a manner as to preserve the dignity and
significance of the occasion.
(b) Authority to administer oath of allegiance. The Secretary may
delegate authority to administer the oath of allegiance prescribed in
section 337 of the Act to such officials of DHS and to immigration
judges or officials designated by the Attorney General as may be
necessary for the efficient administration of the naturalization
program.
(c) Execution of questionnaire. Immediately prior to being
administered the oath of allegiance, each applicant must complete the
questionnaire on the
[[Page 53803]]
form designated by USCIS. USCIS will review each completed
questionnaire and may further question the applicant regarding the
responses provided. If derogatory information is revealed, USCIS will
remove the applicant's name from the list of eligible persons as
provided in 8 CFR 335.5 and he or she will not be administered the
oath.
Sec. 337.3 [Amended]
0
229. Section 337.3 is amended by revising the terms ``the Service'' and
``the district director'' to read ``USCIS'' whenever the terms appear
in the following places:
0
a. Paragraph (a) introductory text;
0
b. Paragraph (a)(4);
0
c. Paragraph (b); and
0
d. Paragraph (c).
Sec. 337.7 [Amended]
0
230. Section 337.7 is amended by revising the terms ``the Service'' and
``Service'' to read ``USCIS'' whenever the terms appear in the
following places:
0
a. Paragraph (a); and
0
b. Paragraph (b).
0
231. Section 337.8 is revised to read as follows:
Sec. 337.8 Oath administered by the courts.
(a) Notification of election. An applicant for naturalization not
subject to the exclusive jurisdiction of 8 CFR 310.2(d) must notify
USCIS at the time of the filing of, or no later than at the examination
on, the application of his or her election to have the oath of
allegiance administered in an appropriate court having jurisdiction
over the applicant's place of residence.
(b) Certificate of eligibility. (1) Exclusive jurisdiction. In
those instances falling within the exclusive jurisdiction provision of
section 310(b)(1)(B) of the Act, USCIS will notify the court of the
applicant's eligibility for admission to United States citizenship by
notifying the clerk of the court within 10 days of the approval of the
application.
(2) Non-exclusive jurisdiction. In those instances in which the
applicant has elected to have the oath administered in a court
ceremony, USCIS will notify the clerk of the court in writing that the
applicant has been determined by the USCIS to be eligible for admission
to United States citizenship upon taking the requisite oath of
allegiance and renunciation in a public ceremony. If a scheduled
hearing date is not available at the time of notification, USCIS will
notify the applicant in writing that the applicant has been approved
but no ceremony date is yet available.
(c) Preparation of lists. (1) At or prior to the oath
administration ceremony, the representative attending the ceremony will
submit to the court, in duplicate, lists of persons to be administered
the oath of allegiance and renunciation. After the ceremony, and after
any required amendments and notations have been made to the lists, the
clerk of the court will sign the lists.
(2) The originals of all court lists specified in this section will
be filed permanently in the court, and the duplicates returned by the
clerk of the court to USCIS. The same disposition will be made of any
list presented to, but not approved by, the court.
(d) Personal representation of the government at oath
administration ceremonies. An oath administration ceremony must be
attended by a representative of USCIS who will review each completed
questionnaire and may further question the applicant regarding the
responses provided. If derogatory information is revealed, the USCIS
representative will remove the applicant's name from the list of
eligible persons as provided in 8 CFR 335.5 and the court will not
administer the oath to such applicant.
(e) Written report in lieu of personal representation. If it is
impractical for a USCIS representative to be present at a judicial oath
administration ceremony, written notice of that fact will be given by
the USCIS to the court. The list of persons to be administered the oath
of allegiance and renunciation, forms, memoranda, and certificates will
be transmitted to the clerk of the court, who will submit the
appropriate lists to the court.
(f) Withdrawal from court. An applicant for naturalization not
subject to the exclusive jurisdiction of 8 CFR 310.3(d) who has elected
to have the oath administered in a court oath ceremony may, for good
cause shown, request that his or her name be removed from the list of
persons eligible to be administered the oath at a court oath ceremony
and request that the oath be administered by an immigration judge or
USCIS. Such request must be in writing to the USCIS office which
granted the application and must cite the reasons for the request.
USCIS will consider the good cause shown and the best interests of the
applicant in making a decision. If it is determined that the applicant
will be permitted to withdraw his or her name from the court ceremony,
USCIS will give written notice to the court of the applicant's
withdrawal, and the applicant will be scheduled for the next available
oath ceremony, conducted by an Immigration Judge or USCIS, as if he or
she had never elected the court ceremony.
Sec. 337.9 [Amended]
0
232. In Sec. 337.9, paragraph (a) is amended by removing the phrase
``, administered either by the Service or an immigration judge''.
PART 338--CERTIFICATE OF NATURALIZATION
0
233. The authority citation for part 338 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.
0
234. Section 338.1 is revised to read as follows:
Sec. 338.1 Execution and issuance of certificate.
(a) Issuance. When an applicant for naturalization has taken and
subscribed to the oath of allegiance in accordance with 8 CFR part 337,
USCIS will issue a Certificate of Naturalization at the conclusion of
the oath administration ceremony.
(b) Contents of certificate. The certificate must be issued to the
applicant in accordance with section 338 of the Act in his or her true,
full, and correct name as it exists at the time of the administration
of the oath of allegiance. The certificate must show, under ``country
of former nationality,'' the name of the applicant's last country of
citizenship, as shown in the application and USCIS records, even though
the applicant may be stateless at the time of admission to citizenship.
Sec. 338.3 [Amended]
0
235. Section 338.3 is amended by revising the terms ``the Service'' and
the term ``the district director'' to read ``USCIS''.
0
236. Section 338.5 is revised to read as follows:
Sec. 338.5 Correction of certificates.
(a) Application. Whenever a Certificate of Naturalization has been
delivered which does not conform to the facts shown on the application
for naturalization, or a clerical error was made in preparing the
certificate, an application for issuance of a corrected certificate may
be filed, without fee, in accordance with the form instructions.
(b) Court-issued certificates. If the certificate was originally
issued by a clerk of court under a prior statute and USCIS finds that a
correction is justified and can be made without mutilating the
certificate, USCIS will authorize the issuing court to make the
necessary correction and to place a dated endorsement of the court on
the reverse
[[Page 53804]]
of the certificate explaining the correction. The authorization will be
filed with the naturalization record of the court, the corrected
certificate will be returned to the naturalized person, and the
duplicate will be endorsed to show the date and nature of the
correction and endorsement made, and then returned to USCIS. No fee
will be charged the naturalized person for the correction.
(c) USCIS-issued certificates. If the certificate was originally
issued by USCIS (or its predecessor agency), and USCIS finds that a
correction was justified, the correction shall be made to the
certificate and a dated endorsement made on the reverse of the
certificate.
(d) Administrative actions. When a correction made pursuant to
paragraphs (b) or (c) of this section would or does result in
mutilation of a certificate, USCIS will issue a replacement Certificate
of Naturalization and destroy the surrendered certificate.
(e) Data change. The correction will not be deemed to be justified
where the naturalized person later alleges that the name or date of
birth which the applicant stated to be his or her correct name or date
of birth at the time of naturalization was not in fact his or her name
or date of birth at the time of the naturalization.
Sec. Sec. 338.11 through 338.13 [Removed and Reserved]
0
237. Sections 338.11 through 338.13 are removed and reserved.
PART 339--FUNCTIONS AND DUTIES OF CLERKS OF COURT REGARDING
NATURALIZATION PROCEEDINGS
0
238. The authority citation for part 339 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443, 1448.
Sec. 339.1 [Amended]
0
239. Section 339.1 is amended by revising the phrase ``the Service
pursuant to Sec. 338.1 of this chapter'' to read ``USCIS in accordance
with 8 CFR 338.1''.
0
240. Section 339.2 is revised to read as follows:
Sec. 339.2 Monthly reports.
(a) Oath administration ceremonies. Clerks of court will on the
first day of each month or immediately following each oath ceremony
submit to USCIS a report listing all oath administration ceremonies
held and the total number of persons issued the oath at each ceremony,
in accordance with USCIS instructions. The report will include a list
of persons attending naturalization oath ceremonies during the month,
and certified copies of any court orders granting changes of name.
(b) Petitions filed for de novo hearings. The clerk of court must
submit to USCIS a monthly report of all persons who have filed de novo
review petitions before the court. The report shall include each
petitioner's name, alien registration number, date of filing of the
petition for a de novo review, and, once an order has been entered, the
disposition.
(c) Other proceedings and orders. The clerk of court must forward
to USCIS copies of the records of such other proceedings and other
orders instituted on or issued by the court affecting or relating to
the naturalization of any person as may be required from time to time.
(d) Use of reports for accounting purposes. State and federal
courts may use the reports as a monthly billing document, submitted to
USCIS for reimbursement in accordance with section 344(f)(1) of the
Act. USCIS will use the information submitted to calculate costs
incurred by courts in performing their naturalization functions. State
and federal courts will be reimbursed pursuant to terms set forth in
annual agreements entered into between DHS and the Administrative
Office of United States Courts.
PART 340--REVOCATION OF NATURALIZATION
0
241. The authority citation for part 340 continues to read as follows:
Authority: 8 U.S.C. 1103, 1443.
Sec. 340.1 [Removed and reserved]
0
242. Section 340.1 is removed and reserved.
0
243. Section 340.2 is revised to read as follows:
Sec. 340.2 Revocation proceedings pursuant to section 340(a) of the
Act.
(a) Recommendations for institution of revocation proceedings.
Whenever it appears that any grant of naturalization may have been
illegally procured or procured by concealment of a material fact or by
willful misrepresentation, and a prima facie case exists for revocation
pursuant to section 340(a) of the Act, USCIS will make a recommendation
regarding revocation.
(b) Recommendation for criminal prosecution. If it appears to USCIS
that a case described in paragraph (a) of this section is amenable to
criminal penalties under 18 U.S.C. 1425 for unlawful procurement of
citizenship or naturalization, the facts will be reported to the
appropriate United States Attorney for possible criminal prosecution.
PART 341--CERTIFICATES OF CITIZENSHIP
0
244. The authority citation for part 341 continues to read as follows:
Authority: Pub. L. 82-414, 66 Stat. 173, 238, 254, 264, as
amended; 8 U.S.C. 1103, 1409(c), 1443, 1444, 1448, 1452, 1455; 8 CFR
part 2.
0
245. Section 341.1 is revised to read as follows:
Sec. 341.1 Application.
An application for a certificate of citizenship by or in behalf of
a person who claims to have acquired United States citizenship under
section 309(c) of the Act or to have acquired or derived United States
citizenship as specified in section 341 of the Act must be submitted on
the form designated by USCIS with the fee specified in 8 CFR
103.7(b)(1) and in accordance with the instructions on the form.
0
246. Section 341.2 is amended by:
0
a. Revising paragraph (a)(1) introductory text;
0
b. Revising the phrase ``at the district director's option'' to read
``at the discretion of USCIS'' in paragraph (b)(1);
0
c. Revising the phrase ``A district director shall assign an officer of
the Service to'' to read ``USCIS will'' in the first sentence in
paragraph (d);
0
d. Removing the phrase ``to the district director'' in the last
sentence in paragraph (d); and
0
e. Removing paragraph (g).
The revision reads as follows:
Sec. 341.2 Examination upon application.
(a) * * *
(1) When testimony may be omitted. An application may be processed
without interview if the USCIS officer adjudicating the case has in the
administrative file(s) all the required documentation necessary to
establish the applicant's eligibility for U.S. citizenship, or if the
application is accompanied by one of the following:
* * * * *
Sec. 341.3 [Amended]
0
247. Section 341.3 is amended by revising the phrase ``an officer of
the Service or a United States consular official'' to read ``a DHS or
Department of State official''.
0
248. Section 341.5 is revised to read as follows:
Sec. 341.5 Decision.
(a) Adjudication. USCIS may adjudicate the application only after
the
[[Page 53805]]
appropriate approving official has reviewed the report, findings,
recommendation, and endorsement of the USCIS officer assigned to
adjudicate the application.
(b) Approval. If the application is granted, USCIS will prepare a
certificate of citizenship and, unless the claimant is unable by reason
of mental incapacity or young age to understand the meaning of the
oath, he or she must take and subscribe to the oath of renunciation and
allegiance prescribed by 8 CFR 337 before USCIS within the United
States. Except as provided in paragraph (c), delivery of the
certificate in accordance with 8 CFR 103.2(b)(19) and 8 CFR 103.8 must
be made in the United States to the claimant or the acting parent or
guardian.
(c) Approval pursuant to section 322(d) of the Act. Persons
eligible for naturalization pursuant to section 322(d) of the Act may
subscribe to the oath of renunciation and allegiance and may be issued
a certificate of citizenship outside of the United States, in
accordance with 8 U.S.C. 1443a.
(d) Denial. If USCIS denies the application, the applicant will be
furnished the reasons for denial and advised of the right to appeal in
accordance with 8 CFR 103.3.
(e) Subsequent application. After an application for a certificate
of citizenship has been denied and the time for appeal has expired,
USCIS will reject a subsequent application submitted by the same
individual and the applicant will be instructed to submit a motion to
reopen or reconsider in accordance with 8 CFR 103.5. The motion must be
accompanied by the rejected application and the fee specified in 8 CFR
103.7.
Sec. Sec. 341.6 and 341.7 [Removed]
0
249. Sections 341.6 and 341.7 are removed.
PART 342--ADMINISTRATIVE CANCELLATION OF CERTIFICATES, DOCUMENTS OR
RECORDS
0
250. The authority citation for part 342 is revised to read as follows:
Authority: 8 U.S.C. 1103, 1453.
0
251. Section 342.2 is revised to read as follows:
Sec. 342.2 Service of notice.
The notice required by 8 CFR 342.1 must be by personal service as
described in 8 CFR 103.8(a)(2).
PART 343--CERTIFICATE OF NATURALIZATION OR REPATRIATION; PERSONS
WHO RESUMED CITIZENSHIP UNDER SECTION 323 OF THE NATIONALITY ACT OF
1940, AS AMENDED, OR SECTION 4 OF THE ACT OF JUNE 29, 1906
0
252. The authority citation for part 343 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1443, 1454, and 1455.
Sec. 343.1 [Amended]
0
253. Section 343.1 is amended in the first sentence by revising the
term ``therefor on Form N-580'' to read: ``in accordance with USCIS
instructions''.
PART 343a--NATURALIZATION AND CITIZENSHIP PAPERS LOST, MUTILATED,
OR DESTROYED; NEW CERTIFICATE IN CHANGED NAME; CERTIFIED COPY OF
REPATRIATION PROCEEDINGS
0
254. The authority citation for part 343a is revised to read as
follows:
Authority: 8 U.S.C. 1101 note, 1103, 1435, 1443, 1454, and 1455.
0
255. Section 343a.1 is amended by:
0
a. Revising the phrase ``shall apply on Form N-565 for a new paper in
lieu thereof'' to read ``must apply on the form designated by USCIS
with the fee specified in 8 CFR 103.7(b)(1) and in accordance with the
form instructions'' in paragraph (a);
0
b. Revising the phrase ``shall apply on Form N-565'' to read ``must
apply'' in paragraph (b); and
0
c. Revising paragraph (c).
The revision reads as follows:
Sec. 343a.1 Application for replacement of or new papers relating to
naturalization, citizenship, or repatriation.
* * * * *
(c) Adjudication and disposition. (1) Interview. The applicant
shall only be required to appear in person for interview under oath or
affirmation in specific cases. Those cases which necessitate an
interview enabling an officer to properly adjudicate the application at
the office having jurisdiction will be determined by USCIS.
(2) Approval. If an application for a new certificate of
naturalization, citizenship, or repatriation or a new declaration of
intention is approved, the new certificate or declaration will be
issued and delivered by personal service in accordance with 8 CFR
103.8(a)(2). If an application for a new certified copy of the
proceedings under the Act of June 25, 1936, as amended, or under
section 317(b) of the Nationality Act of 1940, or under section 324(c)
of the Immigration and Nationality Act, or under the provisions of any
private law is approved, a certified photocopy of the record of the
proceedings will be issued. If, subsequent to naturalization or
repatriation, the applicant's name was changed by marriage, the
certification of the photocopy will show both the name in which the
proceedings were conducted and the changed name. The new certified copy
will be delivered to the applicant in accordance with 8 CFR
103.8(a)(2).
(3) Denial. If the application is denied, the applicant shall be
notified of the reasons for the denial and of the right to appeal in
accordance with 8 CFR 103.3.
Sec. 343a.2 [Amended]
0
256. Section 343a.2 is amended by revising the terms ``Service'' and
``the Service'' to read ``USCIS'' and the term ``Form N-565'' to read
``an application'' wherever those terms appear.
PART 343b--SPECIAL CERTIFICATE OF NATURALIZATION FOR RECOGNITION BY
A FOREIGN STATE
0
257. The authority citation for part 343b continues to read as follows:
Authority: 8 U.S.C. 1103, 1443, 1454, 1455.
Sec. 343b.1 [Amended]
0
258. Section 343b.1 is amended by revising the term ``Form N-565'' to
read ``the form designated by USCIS with the fee specified in 8 CFR
103.7(b)(1) and in accordance with the form instructions''.
0
259. Section 343b.3 is revised to read as follows:
Sec. 343b.3 Interview.
When the application presents a prima facie case, USCIS may issue a
certificate without first interviewing the applicant. In all other
cases, the applicant must be interviewed. The interviewing officer must
provide a complete written report of the interview before forwarding
the application for issuance of the certificate.
0
260. Section 343b.4 is revised to read as follows:
Sec. 343b.4 Applicant outside of United States.
If the application is received by a DHS office outside the United
States, an officer will, when practicable, interview the applicant
before the application is forwarded to USCIS for issuance of the
certificate. When an interview is not practicable, or is not conducted
because the application is submitted directly to USCIS in the United
States, the
[[Page 53806]]
certificate may nevertheless be issued and the recommendation
conditioned upon satisfactory interview by the Department of State.
When forwarding the certificate in such a case, USCIS will inform the
Secretary of State that the applicant has not been interviewed, and
request to have the applicant interviewed regarding identity and
possible expatriation. If identity is not established or if
expatriation has occurred, the Department of State will return the
certificate to USCIS for disposition.
0
261. Section 343b.11 is revised to read as follows:
Sec. 343b.11 Disposition of application.
(a) Approval. If the application is granted, USCIS will prepare a
special certificate of naturalization and forward it to the Secretary
of State for transmission to the proper authority of the foreign state
in accordance with procedures agreed to between DHS and the Department
of State, retain the application and a record of the disposition in the
DHS file, and notify the applicant of the actions taken.
(b) Denial. If the application is denied, the applicant will be
notified of the reasons for denial and of the right to appeal in
accordance with 8 CFR 103.3.
PART 343c--CERTIFICATIONS FROM RECORDS
0
262. The authority citation for part 343c is revised to read as
follows:
Authority: 5 U.S.C. 552; 8 U.S.C. 1103.
Sec. 343c.1 [Amended]
0
263. Section 343c.1 is amended by revising the term ``Form G-641'' to
read ``the form designated by USCIS in accordance with the form
instructions''.
PART 392--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
PERSONS WHO DIE WHILE SERVING ON ACTIVE DUTY WITH THE UNITED STATES
ARMED FORCES DURING CERTAIN PERIODS OF HOSTILITIES
0
264. The authority citation for part 392 continues to read as follows:
Authority: 8 U.S.C. 1103, 1440 and note, and 1440-1; 8 CFR part
2.
0
265. In Sec. 392.2, paragraph (d)(2) is revised to read as follows:
Sec. 392.2 Eligibility for posthumous citizenship.
* * * * *
(d) * * *
(2) The certification required by section 329A(c)(2) of the Act to
prove military service and service-connected death must be requested by
the applicant on the form designated by USCIS in accordance with the
form instructions. The form will also be used to verify the decedent's
place of induction, enlistment, or reenlistment.
0
266. Section 392.3 is amended by:
0
a. Revising the term ``the Service'' to read ``USCIS'' in the last
sentence in paragraph (a)(2);
0
b. Revising paragraph (b); and
0
c. Revising paragraph (c).
The revisions read as follows:
Sec. 392.3 Application for posthumous citizenship.
* * * * *
(b) Application. An application for posthumous citizenship must be
submitted on the form designated by USCIS in accordance with the form
instructions.
(c) Application period. An application for posthumous citizenship
must be filed no later than two years after the date of the decedent's
death.
* * * * *
0
267. In Sec. 392.4, paragraphs (a) and (e) are revised to read as
follows:
Sec. 392.4 Issuance of a certificate of citizenship.
(a) Approval of application. When an application for posthumous
citizenship under this part has been approved, USCIS will issue a
Certificate of Citizenship to the applicant in the name of the
decedent.
* * * * *
(e) Replacement certificate. An application for a replacement
Certificate of Citizenship must be submitted on the form designated by
USCIS with the fee specified in 8 CFR 103.7(b)(1) and in accordance
with the form instructions.
PART 499--[REMOVED]
0
268. Part 499 is removed.
Janet Napolitano,
Secretary.
[FR Doc. 2011-20990 Filed 8-26-11; 8:45 am]
BILLING CODE 9111-97-P