[Federal Register Volume 79, Number 24 (Wednesday, February 5, 2014)]
[Proposed Rules]
[Pages 6859-6871]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02394]


=======================================================================
-----------------------------------------------------------------------

LEGAL SERVICES CORPORATION

45 CFR Part 1626


Restrictions on Legal Assistance to Aliens

AGENCY: Legal Services Corporation.

ACTION: Further notice of proposed rulemaking.

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

SUMMARY: This further notice of proposed rulemaking (FNPRM) proposes 
modifications to the rule under consideration by the Operations and 
Regulations Committee (Committee) of the Legal Services Corporation 
(LSC or Corporation) Board of Directors (Board). The FNPRM revises 45 
CFR Part 1626, which governs restrictions on legal assistance to 
aliens. LSC seeks comments limited to the revisions to Sec.  1626.4(c) 
and the proposed program letter to replace the Appendix to Part 1626. 
Additional information on the requests for comments is located in the 
SUPPLEMENTARY INFORMATION section.

DATES: Comments on Sec.  1626.4(c) and the proposed Program Letter 
replacing the Appendix to Part 1626 are due March 7, 2014.

ADDRESSES: Written comments must be submitted to Stefanie K. Davis, 
Assistant General Counsel, Legal Services Corporation, 3333 K Street 
NW., Washington, DC 20007; (202) 337-6519 (fax) or 
1626rulemaking@lsc.gov. Electronic submissions are preferred via email 
with attachments in Acrobat PDF format. Written comments sent to any 
other address or received after the end of the comment period may not 
be considered by LSC.

FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General 
Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 
20007, (202) 295-1563 (phone), (202) 337-6519 (fax), 
1626rulemaking@lsc.gov.

SUPPLEMENTARY INFORMATION: 

I. General Authorities, Impetus for Rulemaking, and Existing Rules

    LSC's current appropriation restrictions, including those governing 
the assistance that may be provided to aliens, were enacted in 1996 and 
have been reincorporated annually with amendments. Section 504(a)(11) 
of the FY 1996 LSC appropriation prohibits the Corporation from 
providing funds to any person or entity (recipient) that provides legal 
assistance to aliens other than those covered by statutory exceptions. 
Sec. 504(a)(11), Public Law 104-134, Title V, 110 Stat. 1321, 1321-54 
(1996).
    In subsequent years, Congress expanded eligibility to discrete 
categories of aliens. In 1997, Congress passed the Kennedy Amendment, 
which allowed LSC recipients to use non-LSC funds to provide related 
legal assistance to aliens who were battered or subjected to extreme 
cruelty in the United States by family members. Sec. 502(a)(2)(C), 
Public Law 104-208, Div. A, Title V, 110 Stat. 3009, 3009-60 (1996). 
Congress limited the type of assistance that recipients could provide 
to ``legal assistance directly related to the prevention of, or 
obtaining relief from, the battery or cruelty described in'' 
regulations issued pursuant to VAWA (hereinafter ``related 
assistance''). Sec. 502(b)(2), Public Law 104-208, Div. A, Title V, 110 
Stat. 3009-60. Congress renewed the Kennedy Amendment in the FY 1998 
reincorporation and modification of the LSC appropriation restrictions. 
Sec. 502(a)(2)(C), Public Law 105-119, Title V, 111 Stat. 2440, 2511 
(1997). Thereafter, LSC's annual appropriation has incorporated the FY 
1998 restrictions by reference. See, e.g., Public Law 113-6, Div. B, 
Title IV, 127 Stat. 198, 268 (2013) (LSC FY 2013 appropriation). The 
next expansions of eligibility came through the passage of the Victims 
of Trafficking and Violence Protection Act of 2000 (TVPA) and its 
progeny. Public Law 106-386, 114 Stat. 1464 (2000) (22 U.S.C. 7101 
note). Through the TVPA, Congress directed the Board of Directors of 
LSC, along with Federal benefits granting agencies, to ``expand 
benefits and services to victims of severe forms of trafficking in 
persons in the United States, without regard to the immigration status 
of such victims.'' Sec. 107(b)(1)(B), Public Law 106-386, 114 Stat. 
1475 (22 U.S.C. 7105(b)(1)(B)). Congress passed the Trafficking Victims 
Protection Reauthorization Act (TVPRA) in 2003, which made certain 
family members of victims of severe forms of trafficking (``derivative 
T-visa holders'') eligible to receive legal services from LSC-funded 
recipients. Sec. 4(a)(2)(B)(i), Public Law 108-193, 117 Stat. 2875, 
2877 (2003) (22 U.S.C. 7105(b)(1)(B)).
    In January 2006, Congress passed the Violence Against Women and 
Department of Justice Reauthorization Act of 2005 (VAWA 2005). VAWA 
2005 further amended section 502(a)(2)(C) of the FY 1998 LSC 
appropriation to expand the categories of aliens to whom recipients may 
provide related assistance by adding aliens who (1) are victims of 
sexual assault or trafficking in the United States; or (2) qualify for 
U-visas under section 101(a)(15)(U) of the Immigration and Nationality 
Act (INA).

[[Page 6860]]

Sec. 104, Public Law 109-162, 119 Stat. 2960, 2978 (2006). The U-visa 
provision of the INA allows aliens who are victims of one or more of 
the crimes listed therein and who may assist in law enforcement 
investigations or prosecutions related to such crimes, or who are 
family members of such victims, to remain in the United States for a 
limited period. 8 U.S.C. 1101(a)(15)(U). Additionally, VAWA 2005 
removed the Kennedy Amendment's restriction on the use of LSC funds to 
provide representation to aliens who are eligible for services under 
VAWA 2005. Sec. 104(a)(1)(A), Public Law 109-162, 119 Stat. 2979-80. 
The amended text of section 502 is not codified, but the pertinent 
portion is available at http://www.lsc.gov/about/lsc-act-other-laws/violence-against-women-act-public-law-109-162-2006.
    The final expansion of eligibility occurred in 2007. The FY 2008 
LSC appropriation amended section 504(a)(11) of the FY 1996 LSC 
appropriation to extend eligibility for assistance to forestry workers 
admitted to the United States under the H-2B temporary worker provision 
in section 101(a)(15)(H)(ii)(b) of the INA. Sec. 540, Public Law 110-
161, Div. B, Title V, 121 Stat. 1844, 1924 (2007).
    LSC last revised Part 1626 in 1997. After the alienage restrictions 
were enacted in 1996, LSC adopted an interim rule to implement the 
restrictions. 61 FR 45750, Aug. 29, 1996. While this rule was pending 
for comment, Congress passed the Kennedy Amendment. LSC subsequently 
revised Part 1626 to implement the Kennedy Amendment. 62 FR 19409, Apr. 
21, 1997, amended by 62 FR 45755, Aug. 29, 1997. In 2003, LSC added a 
list of documents establishing the eligibility of aliens for legal 
assistance from LSC grant recipients as an appendix to Part 1626. 68 FR 
55540, Sept. 26, 2003. The appendix has not been changed since 2003.
    After 1997, LSC apprised recipients through program letters of 
certain statutory changes expanding alien eligibility for legal 
assistance provided by LSC-funded recipients. Program Letter 02-5 (May 
15, 2002) (TVPA); Program Letter 05-2 (Oct. 6, 2005) (TVPRA; superseded 
Program Letter 02-5); Program Letter 06-2 (Feb. 21, 2006) (VAWA 2005). 
The final rule would incorporate the policies set forth in Program 
Letters 05-2 and 06-2. Both letters will be superseded upon publication 
of the final rule and will be removed from the ``Current Program 
Letters'' page of LSC's Web site.

II. Procedural Background

    As a result of the numerous amendments to the alien eligibility 
provisions of the FY 1996 LSC appropriation, the Corporation determined 
that rulemaking to update Part 1626 was appropriate. On April 14, 2013, 
the Operations and Regulations Committee (the Committee) of the LSC 
Board of Directors (the Board) recommended that the Board authorize 
rulemaking to conform Part 1626 to statutory authorizations. On April 
16, 2013, the Board authorized the initiation of rulemaking.
    Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a 
proposed rule amending Part 1626 with an explanatory rulemaking options 
paper. On July 22, 2013, the Committee recommended that the Board 
approve the proposed rule for notice and comment rulemaking. On July 
23, 2013, the Board approved the proposed rule for publication in the 
Federal Register for notice and comment. LSC published the notice of 
proposed rulemaking (the NPRM) in the Federal Register on August 21, 
2013. 78 FR 51696, Aug. 21, 2013. The comment period remained open for 
sixty days and closed on October 21, 2013.
    On January 23, 2014, the Committee considered the draft final rule 
for publication. After hearing from staff and stakeholders about 
changes to section 1626.4(c) in the final rule and the possible 
consequences of those changes, the Committee voted to recommend 
delaying final consideration of the rule pending an opportunity for 
public comment on those changes. On January 25, 2014, the Board voted 
to proceed with a further notice of proposed rulemaking. LSC is seeking 
comment on only that section of the final rule and does not anticipate 
revising the rest of the rule.
    All of the comments and related memos submitted to the LSC Board 
regarding this rulemaking are available in the open rulemaking section 
of LSC's Web site at http://www.lsc.gov/about/regulations-rules/open-rulemaking. After the effective date of the rule, those materials will 
appear in the closed rulemaking section at http://www.lsc.gov/about/regulations-rules/closed-rulemaking

III. Discussion of Comments and Regulatory Provisions

    LSC received fifteen comments in response to the NPRM. Eight 
comments were submitted by LSC-funded recipients, four were submitted 
by non-LSC funded non-profit organizations, and three were submitted by 
individuals. All of the comments are posted on the rulemaking page of 
LSC's Web site: www.lsc.gov/about/regulations-rules. Most commenters 
supported the revisions to conform Part 1626 to the statutes expanding 
eligibility for legal services to certain crime victims, victims of 
severe forms of trafficking, and H-2B forestry workers. LSC received 
the greatest number of comments in response to the three issues the 
Corporation specifically sought comment on: The distinction between the 
VAWA 2005 and TVPA definitions of ``trafficking,'' the geographic 
location of the predicate activity for eligibility, and the geographic 
location of the victim.

Organizational Note

    In the final rule, definitions that the proposed rule placed in 
section 1626.4(c) would be moved to section 1626.2. As a result, 
paragraphs (d) through (g) of section 1626.4 would be relabeled as 
paragraphs (c) through (f). In the following discussion of the comments 
and the changes to the proposed rule, the relabeled paragraphs will be 
referred to by the number to be used in the final rule, except where 
the proposed rule is explicitly referenced.

Specific Areas in Which LSC Requested Comments

1. LSC Specifically Sought Comment on Whether the VAWA Term 
``Trafficking'' Differed From the TVPA/TVPRA/INA Term ``Severe Forms of 
Trafficking,'' and, if so, How the Terms Are Different and What 
Evidence LSC Recipients Should Rely on in Distinguishing Between These 
Two Terms

    LSC received seven comments in response to this request. Of the 
seven, one observed a trend of linking the VAWA and INA definitions of 
trafficking to the TVPA term ``severe forms of trafficking'' and 
suggested that the term ``severe forms of trafficking'' should control 
all uses of the term ``trafficking.'' The other six commenters 
generally agreed that the VAWA 2005 term ``trafficking'' differs from 
the term ``severe forms of trafficking'' used in the TVPA and the INA. 
All six of those commenters believed that ``trafficking'' as used in 
VAWA 2005 is a broader term than the TVPA's ``severe forms of 
trafficking.'' This belief applied to both the plain term 
``trafficking'' in VAWA 2005 and the qualifying crime of trafficking 
for purposes of U-visa eligibility under section 101(a)(15)(U) of the 
INA. One commenter noted that ``the term `trafficking' was included in 
the U-visa provisions to cover forms of human trafficking'' in which 
persons

[[Page 6861]]

were being trafficked, but would have difficulty meeting the ``severe 
forms of trafficking'' standard to obtain eligibility for benefits 
under the TVPA. By making trafficking a crime for which individuals 
could qualify for related legal assistance or a U-visa, the commenter 
continued, Congress extended ``protection and help [to] both the 
trafficking victims who could meet the severe forms test and those who 
could not.''
    Commenters differed, however, in how they believed LSC should 
account for the difference in definitions. Five commenters recommended 
that LSC adopt VAWA 2005's broader term ``trafficking'' over the TVPA's 
``severe forms of trafficking.'' A sixth commenter asserted that in 
determining eligibility, ``a LSC funded organization should be able to 
rely on the applicable state statute which would make the applicant 
eligible for a U visa or the federal statute which defines `severe form 
of trafficking,' whichever is broader. Moreover, LSC funded 
organizations should be able to rely on any evidence that supports the 
applicable definition in a particular case.''
    In order to qualify for a U-visa, an alien must be a victim of at 
least one of the types of criminal activity listed in section 
101(a)(15)(U)(iii) of the INA. The listed crimes, which include 
``trafficking,'' must ``violate[ ] the laws of the United States or 
occur[ ] in the United States (including in Indian country and military 
installations) or the territories and possessions of the United 
States[.]'' 8 U.S.C. 1101(a)(15)(U)(i)(IV). Neither the INA nor VAWA 
2005 defines the term ``trafficking.''
    The TVPA also fails to define ``trafficking,'' although it does 
define and use the terms ``severe forms of trafficking in persons'' and 
``sex trafficking.'' 22 U.S.C. 7102. The TVPA defines ``sex 
trafficking'' as ``the recruitment, harboring, transportation, 
provision, or obtaining of a person for the purpose of a commercial sex 
act.'' 22 U.S.C. 7102(9). ``Severe forms of trafficking in persons'' 
means (a) ``sex trafficking in which a commercial sex act is induced by 
force, fraud, or coercion, or in which the person induced to perform 
such act has not attained 18 years of age;'' or (b) ``the recruitment, 
harboring, transportation, provision, or obtaining of a person for 
labor or services, through the use of force, fraud, or coercion for the 
purpose of subjection to involuntary servitude, peonage, debt bondage, 
or slavery.'' 22 U.S.C. 7102(8). The TVPA does not reference state, 
tribal, or territorial laws that criminalize trafficking.
    LSC agrees with the commenters that the VAWA term ``trafficking,'' 
incorporating as it does crimes that would constitute trafficking if 
they violated state or federal law, is broader than both ``sex 
trafficking'' and ``severe forms of trafficking in persons'' as defined 
in the TVPA. Indeed, ``trafficking'' as used in VAWA 2005 would include 
both sex trafficking and severe forms of trafficking in persons, as 
both are defined as crimes by a federal law, the TVPA. For purposes of 
eligibility for services under section 1626.4, LSC would retain the 
proposed definitions of ``victim of trafficking'' and ``victim of 
severe forms of trafficking'' with minor revisions to track the 
relevant statutes more closely. The reason for using these definitions 
is that victims of trafficking under VAWA 2005 and victims of severe 
forms of trafficking under the TVPA are eligible for differing types of 
legal assistance. Trafficking victims eligible under VAWA may receive 
legal assistance related to battery, cruelty, sexual assault, or 
trafficking and other specified crimes, while victims of severe forms 
of trafficking under the TVPA may receive any legal assistance that is 
not otherwise restricted and is within the recipient's priorities. It 
is therefore important to retain the distinction between the two in 
order to ensure that individuals receive the legal assistance that is 
appropriate for their basis of eligibility.
    LSC also sought comment on the types of evidence that recipients 
should rely on to distinguish between victims of trafficking under VAWA 
2005 and victims of severe forms of trafficking under the TVPA. Only 
one commenter responded to this request, stating that the organization 
was unclear about what kind of information LSC sought. The commenter 
also stated that ``recipients should be able to rely on the definition 
in the statute that is applicable to the crime involved and evidence 
that meets that definition.'' In response to this comment, LSC would 
revise proposed section 1626.4(e), renumbered as section 1626.4(d) in 
the final rule, to separate the evidence that may be presented by 
individuals eligible for legal assistance under VAWA 2005 from forms of 
evidence that may be presented by victims of severe forms of 
trafficking under the TVPA. For individuals who claim eligibility based 
on being a victim of trafficking under VAWA 2005, section 1626.4(d)(2) 
would incorporate the list used in proposed section 1626.4(e). LSC 
notes that this list is nonexclusive, and that recipients may accept 
other types of credible evidence. Evidence may also include an 
application for a U-visa or evidence that the individual was granted a 
U-visa.
    Section 1626.4(d)(3) would set forth the types of evidence that are 
unique to victims of severe forms of trafficking. These forms of 
evidence include a certification letter issued by the U.S. Department 
of Health and Human Services (HHS) or, in the case of a minor victim of 
severe forms of trafficking, an interim or final eligibility letter 
issued by HHS. Recipients may also call the HHS trafficking 
verification line at (202) 401-5510 or (866) 401-5510 to confirm that 
HHS has issued an alien a certification letter. HHS is the only federal 
agency authorized to certify victims of severe forms of trafficking to 
receive public benefits or to issue eligibility letters to minors. It 
is important to note that minors do not need to have an eligibility 
letter to be eligible for services. Recipients only need to determine 
that a minor meets the definition of a victim of severe forms of 
trafficking in 22 U.S.C. 7105(b)(1)(C).

2. LSC Specifically Sought Comment on the Geographic Location in Which 
the Predicate Activity Takes Place

    LSC proposed to interpret the VAWA 2005 phrase ``victim of 
trafficking in the United States'' and the TVPA phrase ``victim of 
severe forms of trafficking in the United States'' to require that an 
alien be trafficked into or experience trafficking within the United 
States to be eligible for legal assistance from LSC-funded recipients. 
LSC believed that this interpretation was necessary because LSC read 
the qualifier ``in the United States'' to apply to the activity of 
trafficking, rather than to the victim of trafficking.
    With regard to the geographical restriction as it applied to 
trafficking under VAWA 2005, LSC received eight comments. One commenter 
simply stated that LSC's interpretation was correct. Seven commenters 
disagreed with LSC's proposed interpretation, arguing in all instances 
that ``in the United States'' modified ``victim of trafficking'' or 
``victim of severe forms of trafficking,'' rather than just 
``trafficking.'' Of the commenters who disagreed with LSC's 
interpretation, four linked the VAWA 2005 language to the language in 
section 7105(b)(1)(B) of the TVPA authorizing LSC and federal benefits 
granting agencies to expand benefits and services to ``victims of 
severe forms of trafficking in the United States[.]'' These commenters 
understood the phrase ``in the United States'' to ``refer to the 
location of the victim, rather than the location of the abuse,'' and 
relied on the heading of section

[[Page 6862]]

7105(b), ``Victims in the United States,'' in support of their reading. 
One commenter noted that trafficking is a qualifying crime for U-visa 
eligibility, and that section 101(a)(15)(U) of the INA does not require 
that an alien have been a victim of one of the qualifying crimes within 
the United States to be eligible to receive a U-visa. Two commenters 
noted that VAWA 2005 authorizes the use of LSC funds to provide legal 
assistance to both ``victims of sexual assault or trafficking in the 
United States'' and aliens who qualify for a U-visa, which they 
asserted meant that even if LSC's interpretation were correct, LSC-
funded recipients could still provide assistance to aliens who were 
victims of sexual assault or trafficking outside the United States 
because both crimes are qualifying crimes under section 
101(a)(15)(U)(iii). The last commenter opposing LSC's interpretation 
observed that the VAWA 2005 amendments to section 502 made that section 
``internally inconsistent.'' The commenter remarked that VAWA 2005 
created two categories of eligibility--one for victims of battery, 
extreme cruelty, sexual assault, or trafficking ``in the United 
States,'' and one for aliens qualified for U-visa status, which 
specifically contemplates that qualifying crimes are those that 
``violated the laws of the United States or occurred in the United 
States (including in Indian country and military installations) or the 
territories and possessions of the United States[.]'' 8 U.S.C. 
1101(a)(15)(U)(i)(IV). Because trafficking is a qualifying crime for U-
visa eligibility, the commenter continued, VAWA 2005 appears to treat 
trafficking inconsistently. Finally, the commenter noted that by 
treating trafficking as requiring activity to occur in the United 
States, but not placing the same requirement on sexual assault and 
domestic violence, which are also qualifying crimes for U-visa 
eligibility, the regulation is unnecessarily internally inconsistent.
    The same seven commenters likewise opposed LSC's proposed 
interpretation of the TVPA term ``victims of severe forms of 
trafficking in the United States.'' Most of the commenters pointed to 
the plain language of the TVPA and the INA in support of their 
argument. First, they noted that the TVPA definition of ``severe form 
of trafficking in persons'' does not include a geographical limitation 
to trafficking activities that occur in the United States. Second, they 
assert that the title of section 107(b) of the TVPA, ``Victims in the 
United States,'' makes clear that it is the victims, rather than the 
activities, that must be in the United States. 22 U.S.C. 7105(b). 
Finally, they relied on the INA criteria for T-visa eligibility. In 
order to qualify for a T-visa, an alien must be a victim of a severe 
form of trafficking in persons; must be willing to cooperate with law 
enforcement, unable to cooperate due to physical or psychological 
trauma, or be under the age of 18; and must be ``physically present in 
the United States . . . on account of such trafficking, including 
physical presence on account of the alien having been allowed entry 
into the United States for participation in investigative or judicial 
processes associated with an act or a perpetrator of trafficking[.]'' 8 
U.S.C. 1101(a)(15)(T).
    LSC has considered all comments and has reviewed the relevant 
section of the INA, section 101(a)(15)(T). Section 101(a)(15)(T)(i)(II) 
requires that to qualify for a T visa, an alien must be a victim of 
severe forms of trafficking and be ``physically present in the United 
States, American Samoa, or the Commonwealth of the Northern Mariana 
Islands, or at a port of entry thereto, on account of such trafficking, 
including physical presence on account of the alien having been allowed 
entry into the United States for participation in investigative or 
judicial processes associated with an act or a perpetrator of 
trafficking[.]'' 8 U.S.C. 1101(a)(15)(T)(i)(II). The United States 
Citizenship and Immigration Service's (USCIS) information page for T 
nonimmigrant status reflects this language in a simplified form, 
stating that in order to be eligible for a T-visa, an alien must be 
``in the United States, American Samoa, the Commonwealth of the 
Northern Mariana Islands, or at a port of entry due to trafficking[.]'' 
Victims of Human Trafficking: T Nonimmigrant Status, www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status (emphasis added). The INA clearly 
requires that a victim of severe forms of trafficking be present in the 
United States as a result of trafficking activity in order to qualify 
for immigration relief, but it does not require that the trafficking 
itself occur within the United States.
    It would be inconsistent with the plain language of the INA, VAWA 
2005, and the TVPA and its progeny to require that an alien have been 
trafficked into or within the United States to qualify for legal 
assistance from an LSC-funded recipient. For this reason, and for the 
reasons stated by the commenters, LSC would revise the language in 
proposed section 1626.4(d)(1) to remove the requirement that an alien 
have been subjected to trafficking activity in the United States in 
order to be eligible to receive legal assistance from an LSC recipient.
    LSC would also make two technical amendments to proposed section 
1626.4(d). The first would rename proposed section 1626.4(d) 
``Relationship to the United States,'' and section 1626.4(d)(1) 
``Relation of activity to the United States.'' LSC would make these 
changes to reflect that although the criminal activity giving rise to 
eligibility under VAWA does not need to occur in the United States, the 
crime must have violated the laws of the United States. The second 
change would restate in section 1626.4(d)(1) the language from section 
101(a)(15)(U)(i)(IV) of the INA that a listed crime must have violated 
the laws of the United States or occurred within the United States in 
order to be a qualifying crime for purposes of U-visa eligibility.

3. LSC Specifically Sought Comment Regarding Whether an Alien Must Be 
Physically Present in the United States To Receive Legal Assistance

    LSC proposed that aliens eligible to receive legal assistance under 
one of the anti-abuse statutes would be eligible for such assistance 
regardless of whether they were present in the United States. LSC 
reasoned that the anti-abuse statutes, viewed collectively, did not 
require an alien to be present in the United States to be eligible to 
receive legal assistance. LSC received eight comments on this issue. 
Seven commenters agreed with LSC's proposed position. One commenter 
opposed.
    The seven commenters responding in support of LSC's position 
generally noted that the position was consistent with section 
101(a)(15)(U) of the INA, which contemplates that an alien who 
qualifies for U-visa relief may have been a victim of a qualifying 
crime that occurred outside the United States. One commenter pointed 
out that Congress amended VAWA to allow eligible victims to file 
petitions for relief from outside the United States. Another commenter 
remarked that victims of abuse may find themselves outside the United 
States for reasons related to the abuse if suffered here, and that the 
legal assistance provided by an LSC-funded recipient may be essential 
to ensuring that the victims are able to petition successfully for 
legal status.
    The commenter opposing LSC's proposal first argued that LSC is 
improperly ``tying the removal of geographical presence in with the new 
applicability of assistance to aliens

[[Page 6863]]

receiving U visas.'' The commenter believed that the ability of aliens 
who were victims of qualifying crimes that occurred outside the United 
States to apply for U-visa relief from outside the United States ``has 
no bearing on territorial requirements for individuals receiving 
assistance from the VAWA amendments.'' Secondly, the commenter argued 
that allowing recipients to represent aliens not present in the United 
States would significantly increase the case work of LSC recipients and 
would likely lead to the expenditure of scarce resources in pursuit of 
frivolous petitions for immigration relief. None of the LSC recipients 
who commented on the NPRM indicated that they were unable to serve 
adequately aliens eligible under the anti-abuse statutes or were 
otherwise compromising their representation of other eligible clients.
    LSC continues to believe that the proposed language is consistent 
with USCIS's interpretation of the U-visa provisions and with 
Congressional intent in removing the requirement that an alien have 
been a victim of battery, extreme cruelty, or sexual abuse in the 
United States. As discussed in the preceding section, however, the VAWA 
2005 amendment to section 502(a)(2)(C) of the FY 1998 LSC appropriation 
is internally inconsistent with respect to whether victims of 
trafficking must be in the United States in order to be eligible for 
benefits. This is because the U-visa provision of the INA, which 
includes trafficking as a qualifying crime, contemplates that the 
trafficking may occur outside the United States, see 8 U.S.C. 
1101(a)(15)(U)(i)(IV) (``the criminal activity described in clause 
(iii) violated the laws of the United States or occurred in the United 
States . . . .''), while the amendment to section 502(a)(C) uses the 
phrase ``victim of . . . trafficking in the United States.'' Sec. 
104(a), Public Law 109-162, 119 Stat. 2960, 2979.
    Because the modifier ``in the United States'' must be given some 
meaning, LSC is interpreting the VAWA 2005 term ``victim of . . . 
trafficking in the United States'' to mean that an alien who is seeking 
legal assistance as a victim of trafficking under VAWA does not need to 
show that the trafficking activity occurred in the United States, but 
must be present in the United States to be eligible for assistance. 
This reading is consistent with the reading that LSC is applying to the 
term ``victim of severe forms of trafficking in the United States'' in 
the TVPA.
    Section 101(a)(15)(T)(i)(II) of the INA, discussed above, requires 
a victim of severe forms of trafficking to be present in the United 
States on account of such trafficking in order to be eligible for a T-
visa. ``On account of such trafficking'' includes, but is not limited 
to, having been allowed entry to assist law enforcement in the 
investigation and prosecution of an act or perpetrator of trafficking. 
8 U.S.C. 1101(a)(15)(T)(i)(II). LSC believes that this language also 
includes a victim of severe forms of trafficking abroad who flees into 
the United States to escape the trafficking. Under these circumstances, 
the victim is in the United States ``on account of such trafficking,'' 
and would be eligible for LSC-funded legal assistance.
    Based on the comments received and the subsequent review of the 
INA, LSC would modify the language in proposed section 1626.4(d), 
renumbered as section 1626.4(c), to reflect the distinction between 
eligibility for victims of trafficking who qualify for a U-visa and 
those who are eligible under VAWA or under the TVPA. LSC would add 
subsection 1626.4(c)(2), ``Relationship of alien to the United 
States,'' to describe the circumstances under which an alien must be 
present in the United States to be eligible for legal assistance under 
the anti-abuse statutes. Section 1626.4(c)(2)(i) would state that 
victims of battery, extreme cruelty, or sexual abuse, or who are 
qualified for a U-visa, do not need to be present in the United States 
to receive legal assistance from LSC-funded recipients. Section 
1626.4(c)(2)(ii) would address victims of severe forms of trafficking, 
who must be present in the United States on account of such trafficking 
to be eligible for LSC-funded legal assistance. Finally, Section 
1626.4(c)(2)(iii) would address victims of trafficking under VAWA, who 
only need to be present in the United States to be eligible for 
assistance.
    During the Committee meeting on January 23, 2014, LSC heard 
concerns from stakeholders. Two primary concerns were identified 
regarding the modified language in Section 1626.4(c)(2). The first 
concern was that the distinctions between victims of trafficking under 
VAWA, aliens qualified for a U-visa on the basis of trafficking, and 
victims of severe forms of trafficking under the TVPA in the final rule 
could have unintended consequences. The second concern was that the 
explicit reference to a presence requirement for victims of trafficking 
and severe forms of trafficking could be interpreted as precluding 
recipients from continuing to provide legal assistance to client 
victims of trafficking in the event the client left the United States 
after the commencement of services.
    With respect to the first concern, stakeholders stated that while 
they had supported the language in the proposed rule, which did not 
contain a presence requirement for aliens eligible under any of the 
anti-abuse statutes, they were concerned that the field had not been 
given an opportunity to react to the language requiring that certain 
victims of trafficking be present in the United States to be eligible 
for LSC-funded legal assistance. They requested an additional 
opportunity to comment on the changes to Section 1626.4(c).
    LSC believes that the distinctions drawn in Section 1626.4(c) are 
consistent with the interpretations of VAWA, the INA, and the TVPA that 
the agencies responsible for administering those statutes have adopted. 
However, LSC understands that these interpretations may not be the only 
reasonable interpretations. As a result of the discussion, the 
Committee recommended postponing consideration of the final rule to 
provide an opportunity for public comment on the changes to Section 
1626.4(c). The comment period will be open for thirty days and run 
concurrently with the comment period for the proposed program letter to 
replace the Appendix to Part 1626.
    LSC seeks comments regarding the interpretation of the phrase ``in 
the United States'' as it applies to the eligibility for services of 
victims of trafficking under VAWA and victims of severe forms of 
trafficking under the TVPA. LSC specifically requests comments on the 
application of the term that LSC has proposed in Section 1626.4(c)(2). 
Additionally, LSC specifically requests comments about whether the term 
``in the United States'' as used in the VAWA amendments to section 502 
of the FY 1996 LSC appropriation act applies solely to the qualifying 
crime of trafficking; to the qualifying crimes of battery, extreme 
cruelty, sexual assault, and trafficking; or to victims of the 
qualifying crimes, regardless of whether the crime itself occurred in 
the United States.
    With respect to the second concern, Section 1626.4(c) would apply 
to the initial determination of an alien's eligibility for legal 
assistance under the anti-abuse statutes. Once services have commenced, 
a client's subsequent departure from the United States does not 
necessarily render the client ineligible to continue receiving 
services. Consistent with the Corporation's longstanding policy, the 
specific circumstances presented by the client's situation will 
determine whether representation may continue if the client is absent 
from the United States.

[[Page 6864]]

LSC determined in Program Letter 2000-2 that temporary absence from the 
United States does not change eligibility for aliens covered by the 
Section 1626.5 presence requirement. Similarly, LSC determined that the 
H-2A presence requirement does not require a client to continue to be 
in the United States beyond the H-2A employment in order to continue 
receiving legal assistance. See LSC Board of Directors Meeting, 
November 20, 1999, 49, http://go.usa.gov/B3D9 (implementing the 
recommendations of the Erlenborn Commission Report, http://go.usa.gov/B3Tj).

General Comments

    Comments not directed at a specific question or section of the 
regulations are discussed below.

LSC's Objective Regarding Inclusion of Eligible Aliens

    LSC received comments during the open comment period and during the 
January 23, 2014 Committee meeting pertaining to the criteria that LSC 
established for determining the eligibility of victims of trafficking 
for legal assistance by LSC-funded entities and the inclusion or 
exclusion from eligibility of certain categories of aliens. LSC is 
addressing each of those comments in the discussion of the section 
giving rise to the comments. As an overall policy, LSC has drafted the 
regulation to give effect to Congress's intent that certain categories 
of aliens should be eligible to receive legal services from LSC 
recipients. In some cases, such as for victims of qualifying crimes 
under VAWA or H-2 visa holders, those services are limited to 
assistance related to the basis for eligibility. LSC's policy is to 
permit LSC recipients to provide all categories of eligible aliens with 
procedural assistance in the form of legal services to pursue the 
substantive rights, such as immigration relief, that Congress has given 
them.

Establishing Requirements for Recipient Compliance With VAWA 2005

    One commenter expressed concern that the regulatory language used 
to expand eligibility to the categories of aliens covered by VAWA 2005 
was too weak. The commenter stated that VAWA 2005 and its subsequent 
reauthorization acts generally contain provisions requiring DHS to 
issue regulations and entities receiving funding through VAWA 2005 to 
take certain actions within prescribed time limits after passage of the 
statute. The commenter recommended that LSC revise the final rule to 
require that recipients
     Include in their next funding or renewal of funding 
applications a copy of their written plans for implementing the changes 
called for in the final rule;
     Identify and consult with domestic violence, sexual 
assault, and victim services programs working to serve immigrant crime 
victims in the recipient's service area; and
     Submit with each funding application a copy of the 
recipient's plan implementing section 1626.4, including a statement of 
the work the recipient has done to conduct outreach to, consult with, 
and collaborate with victim services providers with expertise providing 
assistance to underserved populations.
    VAWA 2005 amended section 502 of the FY 1996 LSC appropriation to 
authorize LSC recipients to provide legal assistance, using LSC funds 
or non-LSC funds, to alien victims of battery, extreme cruelty, sexual 
assault, or trafficking in the United States, and aliens qualified for 
a U-visa. VAWA 2005 does not require LSC to undertake any actions to 
implement the expanded authority, nor does it require LSC funding 
recipients to provide legal assistance to the new categories of 
eligible aliens. Because VAWA 2005 places no obligations on either LSC 
or its recipients and contains no timeframes within which they must 
take action, LSC would not place implementation requirements on its 
recipients.

Publication of Interlineated Statute

    One commenter recommended that LSC should publish an interlineated 
statute showing the changes to section 502 of the FY 1996 LSC 
appropriation made by VAWA 2005 and republish an updated version each 
time it is amended. LSC publishes interlineated versions of the 
relevant statutes on the LSC Web site (http://www.lsc.gov/about/lsc-act-other-laws/lsc-appropriations-acts-committee-reports) and updates 
the page as necessary to reflect changes to the statutes. LSC believes 
that its practice of posting the interlineated statutes on its Web site 
addresses the commenter's recommendation and is sufficient to address 
changes to the laws affecting LSC and its recipients until the 
Corporation can undertake any necessary rulemaking.

Correcting Incorrect References

    One commenter noted that the NPRM incorrectly referred to the 
``Customs and Immigration Service,'' rather than the agency's proper 
name, ``Citizenship and Immigration Service.'' The references would be 
corrected.

Extension of the Comment Period

    Four commenters recommended that LSC extend the comment period to 
allow other interested organizations the opportunity to comment. The 
commenters were three LSC-funded recipients and one national non-
profit. Commenters stated that they had learned of the rulemaking 
shortly before the close of the comment period and that they believed 
the complex nature of the issues raised by the rulemaking required 
additional time to develop proper responses.
    LSC does not believe an extension of the comment period for the 
August 21, 2013 NPRM is warranted. The comment period was open for 
sixty days, and recipients were advised of the rulemaking via email the 
day the NPRM was published in the Federal Register. For the three 
specific questions on which LSC sought comment, commenters 
overwhelmingly reached the same conclusion. On the other issues for 
which comments were received, commenters generally made the same 
recommendation. None of the four commenters requesting an extension 
identified any specific issue they intended to address if given 
additional time to respond. For these reasons, LSC does not believe it 
is necessary to reopen the comment period; however, as discussed 
previously, LSC is seeking public comments on revisions to Section 
1626.4(c) only.

Section-by-Section Discussion of Comments and the Final Rule

Proposed 1626.2 Definitions

    1. Comment: One commenter stated that the list of anti-abuse 
statutes in section 1626.2(f) was incomplete. The commenter recommended 
adding the battered spouse waiver in the Immigration and Nationality 
Act (INA), 8 U.S.C. 1186a(c)(4)(C), the 2013 VAWA reauthorization, and 
the 2005, 2008, and 2013 reauthorizations of the TVPA to the list.
    Response: As a matter of law, LSC does not have the authority to 
extend eligibility for legal assistance provided by LSC-funded 
recipients to aliens eligible for the battered spouse waiver under 8 
U.S.C. 1186a(c)(4)(C). Of the statutes reauthorizing VAWA and the TVPA, 
only the 2005 VAWA reauthorization and the TVPRA of 2003 affected the 
eligibility of certain aliens to receive legal assistance from LSC-
funded providers. LSC will revise the references to VAWA and the TVPA 
to

[[Page 6865]]

indicate that LSC considers those statutes, as amended, as the anti-
abuse statutes.
    LSC would make several changes to section 1626.2. In the final 
rule, LSC would move the definitions of ``battered or extreme 
cruelty,'' ``victim of sexual assault or trafficking,'' ``victim of 
severe forms of trafficking,'' and ``qualifies for immigration relief'' 
to section 1626.2 from proposed section 1626.4(c) to consolidate 
definitions in Part 1626 for ease of reference and delete proposed 
section 1626.4(c). LSC believes that removing the definitions from the 
operational text of section 1626.4 will improve the readability and 
comprehensibility of the rule.
    With respect to the definition of ``battered or extreme cruelty,'' 
LSC would reinstate the definition used in existing subsection 
1626.2(f) in the final rule. LSC determined that the cross-reference to 
agency regulations defining the term did not clarify or add anything to 
the existing definition and could result in confusion if agencies 
differed in their definitions of the term.
    The Corporation would also insert a definition for the term 
``certification.'' ``Certification'' is a term created by the TVPA and 
is defined at 22 U.S.C. 7105(b)(1)(E). Certification refers to the 
determination made by the Secretary of HHS that an individual was 
subjected to severe forms of trafficking, is willing to provide all 
reasonable assistance to law enforcement in the investigation or 
prosecution of a trafficker, and has either filed a bona fide 
application for a T-visa that has not been rejected or has been granted 
continued presence to assist law enforcement by DHS.
    In the final rule, LSC would make a technical amendment to the 
definition of ``victim of sexual assault.'' In the NPRM, proposed 
section 1626.4(c)(2)(i) defined ``a victim of sexual assault'' as an 
individual ``subjected to any conduct included in the definition of 
sexual assault or sexual abuse in VAWA, including but not limited to 
sexual abuse, aggravated sexual abuse, abusive sexual contact, or 
sexual abuse of a minor or ward[.]'' However, the term ``sexual abuse'' 
is not defined in VAWA, and the VAWA definition of ``sexual assault'' 
does not track the examples provided in the proposed definition. To 
avoid confusion, LSC would revise the definition to remove the 
reference to a definition of ``sexual abuse'' in VAWA and adopt by 
incorporation the VAWA definition of ``sexual assault.''
    Finally, LSC would alphabetize the definitions in section 1626.2 
for ease of reference.

Proposed 1626.3 Prohibition

    LSC received no comments on the proposed technical corrections to 
this section.

Proposed 1626.4 Aliens Eligible for Assistance Under Anti-Abuse Laws

    As stated earlier in this preamble, LSC would delete proposed 
section 1626.4(c) and move the definitions contained therein to section 
1626.2. Proposed subsections 1626.4(d) through (g) will be renumbered 
as subsections 1626.4(c) through (f) in the final rule.

Proposed 1626.4(a)(2) Legal Assistance to Victims of Severe Forms of 
Trafficking and Certain Family Members

    Paragraph (a)(2) would incorporate the policies established in 
Program Letter 02-5 and Program Letter 05-2. Individuals eligible for 
legal assistance under the TVPA and the 2003 TVPRA include individuals 
applying for certification as victims of severe forms of trafficking 
and certain family members seeking immigration relief under section 
101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii)).

Proposed 1626.4(b)(2) Types of Cases Constituting ``Related Legal 
Assistance''

    1. Comment: One commenter suggested that LSC include within 
``related legal assistance'' assistance ensuring that clients are 
protected by the privacy and confidentiality provisions of VAWA 2005 
and are able to access the protections and benefits of education laws, 
including access to post-secondary educational grants and loans. 
According to the commenter, ``a significant component of effective 
representation of sexual assault victims and domestic violence victims 
in many cultural communities is ensuring privacy and confidentiality.'' 
Additionally, ``access to educational benefits and remedies under 
education laws to address the subsequent problems that stem from the 
abuse and accommodations sexual assault survivors may need in the 
educational context'' is an integral part of helping immigrant victims 
of sexual assault to move on with their lives, to stay in school, and 
to settle successfully in the United States.
    By email dated November 25, 2013, LSC sought additional information 
from the commenter explaining the types of related legal assistance the 
commenter believed LSC recipients could provide in the context of VAWA 
confidentiality and privacy provisions. The commenter responded by 
email on December 13, 2013 with examples of assistance. The examples 
included ``preventing discovery of shelter records or mental health 
records of a victim in a custody, protection order, or criminal court 
proceeding,'' ``assistance with change of identity for crime victims 
who are witnesses eligible to participate in victim protection 
programs,'' and keeping information about the victim's immigration 
status and information contained in a victim's application for 
immigration relief under VAWA, 8 U.S.C. 1101(a)(15)(T), or 8 U.S.C. 
1101(a)(15)(U), out of a family court case.
    Response: LSC would retain the language in the proposed rule. LSC 
intended the examples of ``related legal assistance,'' including the 
list in the parenthetical, to be illustrative rather than exhaustive. 
LSC understands that there may be types of assistance, including 
assistance protecting confidentiality and privacy rights or ensuring 
access to education, that may constitute ``related legal assistance.'' 
The key factor for recipients to consider in determining whether a 
requested service is ``related legal assistance'' is the connection 
between the assistance and the purposes for which assistance can be 
given: escaping abuse, ameliorating the effects of the abuse, or 
preventing future abuse. To the extent that ensuring clients are 
protected by the privacy and confidentiality provisions of VAWA and the 
protections and benefits of education laws is necessary to help the 
clients escape, ameliorate the effects of, or prevent future abuse, 
legal assistance to secure those protections and benefits would 
constitute ``related legal assistance.''

Proposed 1626.4(c) Definitions of Categories of Eligible Aliens Under 
Anti-Abuse Statutes

    As stated in the discussion of section 1626.2, LSC would delete 
this section and move the definitions to section 1626.2.

Proposed 1626.4(e) Evidentiary Support

    1. Comment: LSC received four comments regarding the types of 
evidence that recipients may consider in support of a showing that an 
alien is eligible for legal assistance under one of the anti-abuse 
statutes. All of the comments supported the use of the list of 
evidentiary types taken directly from VAWA.
    Response: LSC would retain the proposed text of section 1626.4(e) 
with respect to types of evidentiary support.
    2. Comment: One commenter recommended that LSC revise proposed 
paragraphs (e) and (f) to ``clearly state that where programs may 
represent

[[Page 6866]]

individuals without regard to their citizenship or immigration status . 
. . programs are not required to inquire into the citizenship or 
immigration status of these clients.'' Another commenter similarly 
suggested that LSC should include language in the final rule shifting 
the eligibility focus at intake from citizenship or eligible alien 
status to victimization.
    Response: LSC would retain the language of the proposed rule. VAWA 
2005 authorizes, rather than requires, LSC funds to be used to 
represent victims of battery, extreme cruelty, sexual assault, and 
trafficking, or aliens who are qualified for a U-visa. Recipients are 
responsible for setting their own priorities and may choose not to 
prioritize the types of assistance that are authorized under VAWA 2005. 
LSC believes that recipients should retain the discretion to conduct 
their intake processes in the ways that they determine are the most 
effective at identifying clients who are eligible for services and 
whose cases are within the recipients' priority areas.
    LSC reminds recipients that Advisory Opinion AO-2009-1008 addressed 
the question whether recipients must determine the immigration status 
of aliens who qualify for assistance under one of the anti-abuse 
statutes. In that opinion, the Office of Legal Affairs stated that once 
a recipient determined that an individual has a legal need that would 
qualify for the exceptions of the anti-abuse statutes to the alienage 
requirement, the recipient does not need to inquire into the 
citizenship or immigration status of that individual. The final rule 
does not affect the validity of the conclusion stated in AO-2009-1008.
    3. Comment: Two commenters recommended revising the examples of 
changes in eligibility in section 1626.4(e). One recommended including 
examples of when an alien's eligibility for legal assistance may change 
from eligibility under an anti-abuse statute to eligibility by reason 
of the alien's immigration status and vice versa in the preamble to the 
final rule. The other recommended removing or revising the examples in 
section 1626.4. The commenter believed that the examples provided in 
proposed section 1626.4(e) were ``problematic'' because they suggested 
that an individual whose application for status was rejected would 
subsequently be deemed ineligible to receive legal assistance under the 
anti-abuse statutes or they were too vague about which component of the 
Department of Homeland Security (DHS) made the determination of 
ineligibility and at which stage of review the determination of 
ineligibility was made. The commenter also opined that the requirement 
in the draft rule and in Program Letter 06-2 that recipients terminate 
representation of an individual once DHS issued a final denial of the 
individual's petition for a U-visa is without basis in law. The 
commenter reasoned that the VAWA 2005 amendment to section 502 of the 
FY 1996 LSC appropriation based eligibility for services on an 
individual's ``qualifying'' for a U-visa, which the commenter stated 
``arguably applies when there is a need for corrected documents or 
there is after-acquired evidence.''
    Response: LSC would remove the examples from the text of the 
regulation. However, LSC wishes to clarify two points in response to 
the comments. The existing regulation defines ``rejected'' as ``an 
application that has been denied by DHS and is not subject to further 
administrative appeal. In the example of the ``final denial'' of a 
petition for a U-visa, LSC did not intend to create ambiguity and 
should have used the regulatory term ``rejected.''
    With respect to subsequent eligibility, LSC did not intend the 
examples to suggest that an individual whose application for status was 
rejected because of insufficient or incomplete evidence would be 
ineligible for related legal assistance at a later date if the 
individual returned with additional evidence that he or she was a 
victim of battery or extreme cruelty, sexual assault, trafficking, or 
one of the qualifying crimes for a U-visa. The example was intended 
only to explain how an individual's eligibility for services may change 
when the application in connection with which the individual qualified 
for services is rejected.
    LSC is sensitive to the difficulties that alien victims of abuse 
may have in developing and documenting credible evidence of the abuse. 
For purposes of eligibility, however, LSC's policy is that once the 
petition for a U-visa upon which an individual was determined to be 
eligible for services has been rejected and no further avenues of 
appeal are available for that petition, the individual must be deemed 
not qualified for a U-visa and the recipient must terminate 
representation consistent with applicable rules of professional 
responsibility unless there is another basis upon which the alien can 
be found eligible. The individual may be found eligible for services 
based on qualifying for a U-visa at a later time if the individual can 
provide additional evidence supporting his or her claim for 
eligibility.
    LSC would remove the statement at the end of proposed section 
1626.4(e) that recipient staff should review the evidence presented at 
intake to support an individual's basis for eligibility under the anti-
abuse statutes. Upon further consideration, LSC determined that this 
sentence was unduly prescriptive about how recipients assess 
eligibility and appeared to set up a different rule for reviewing 
eligibility under the anti-abuse statutes. Recipients should have 
mechanisms in place for evaluating a client's continued eligibility for 
services, regardless of the basis of eligibility

Proposed 1626.4(f) Recordkeeping

    1. Comment: Two commenters opposed the requirement in proposed 
paragraphs (f)(1) and (f)(2) that if an alien provides a visa or visa 
application as evidence to support his eligibility for legal services 
under the anti-abuse statutes, the recipient must keep a copy of the 
document in its files. One commenter noted that the requirement was a 
change in LSC policy, which currently does not require applicants to 
keep copies of immigration documents to prove alien eligibility. The 
other commenter stated that such a requirement is contrary to 
``motivations and the direction of the evolution of federal VAWA 
confidentiality law.'' The commenter described the confidentiality 
provisions of VAWA as protecting not only the information contained 
within a VAWA, T, or U visa application, but also as preventing a third 
party from obtaining information about the existence of such 
applications except in certain carefully circumscribed cases.
    Response: LSC agrees with these comments. In the final rule, LSC 
would replace proposed subparagraph (f) with language substantially 
similar to existing subsection (b): ``Recipients are not required by 
Sec.  1626.12 to maintain records regarding the immigration status of 
clients represented pursuant to this section.'' The Corporation would 
include a sentence in the final rule stating that if an alien presents 
an immigration document as evidence of eligibility under the anti-abuse 
statutes, recipients shall document eligibility under the anti-abuse 
statutes by making a note in the client's file stating that the 
recipient has seen the visa or the application for a visa that supports 
the recipient's claim for eligibility and identifying the type of 
document, the applicant's alien registration number (``A number''), the 
date of the document, and the date of the review. The note should be 
signed by the staff member who reviewed the document. LSC understands 
the confidentiality

[[Page 6867]]

concerns that this approach may raise; however, recipients must be able 
to document the basis for an individual's eligibility. In the event an 
alien presents an immigration document, LSC believes that documenting 
the basis for eligibility by recording the type of immigration document 
presented is reasonable and accommodates the commenters' concern.

Proposed Section 1626.4(g) Changes in Basis for Eligibility

    Because LSC would delete paragraph (c), this subsection would be 
relocated to paragraph (f). No other changes would be made to this 
subsection.

Proposed 1626.5 Aliens Eligible for Assistance Based on Immigration 
Status

    1. Comment: LSC received four comments regarding proposed section 
1626.5(e). The proposed change to this section updated the reference to 
withholding of removal under section 243(h) of the INA to section 
241(b)(3) of the INA to reflect the transfer of the provision from one 
section of the INA to the other. The comments were substantially 
similar in their recommendation and rationale. The commenters 
recommended that persons granted withholding of deportation under prior 
section 243(h) of the INA should not be removed from the regulation 
because some persons are still subject to deportation proceedings or 
orders of deportation and cannot obtain withholding of removal under 
section 241(b)(3) of the INA.
    Response: LSC made this change to the rule to reflect an update to 
the INA. Further research showed that Congress intended individuals 
with orders of exclusion or deportation to be treated the same as 
individuals with orders of removal. In the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 (IIRIRA), Congress 
recharacterized the actions of deportation (expulsion from the United 
States) and exclusion (barring from entry into the United States) into 
a single action--removal. Sec. 304, Public Law 104-208, Div. C, Tit. 
III, 110 Stat. 3009-589 (1996) (8 U.S.C. 1229a) (establishing ``removal 
proceedings'' as the proceedings in which an immigration judge would 
decide the admissibility or deportability of an alien); see also 8 
U.S.C. 1229(e)(2) (defining ``removable'' to mean that an alien is 
either inadmissible under section 212 of the INA or deportable under 
section 237 of the INA); Sec. 308, Public Law 104-208, Div. C, Tit. 
III, 110 Stat. 3009-614-3009-625 (amending various sections of the INA 
to change references to ``deportation'' or ``exclusion'' to 
``removal''). Section 309(d)(2) of IIRIRA explicitly states that for 
carrying out the purposes of the INA, ``any reference in law to an 
order of removal shall be deemed to include a reference to an order of 
exclusion and deportation or an order of deportation.'' Sec. 309(d)(2), 
Public Law 104-208, Div. C, Tit. III, 110 Stat. 3009-627 (8 U.S.C. 1101 
note).
    LSC does not believe that, when Congress passed IIRIRA, it intended 
to bar individuals granted withholding of deportation under prior 
section 243(h) of the INA from continued eligibility for legal services 
from an LSC-funded recipient. Rather, the various provisions in IIRIRA 
consolidating ``deportation'' and ``exclusion'' under the umbrella of 
``removal,'' combined with the deeming provision in section 309(d)(2), 
suggest that Congress intended the rights, remedies, and obligations 
attending deportation and exclusion to carry over to removal. 
Consequently, LSC would accept the comment and would revise section 
1626.5(e) to restore the references to individuals who received 
withholding of deportation under prior INA section 243(h).
    2. Comment: The same four commenters recommended that LSC include 
in section 1626.5 ``withholding of removal under the Convention Against 
Torture (CAT)'' and ``deferral of removal under CAT'' as bases for 
eligibility. Their reasons for the recommendation were twofold. First, 
withholding and deferral of removal under the CAT are ``extremely 
similar'' to withholding of deportation or removal under either prior 
section 243(h) or current section 241(b) of the INA because each type 
of withholding is intended to prevent an individual from being 
involuntarily returned to a country where his or her life or freedom 
would be endangered. The second reason was a practical one--that 
individuals may not have documentation specifying which type of 
withholding of removal they have received. The commenters stated that 
USCIS uses the same code for all three types of withholding.
    Response: LSC is sensitive to the fact that individuals who have 
obtained withholding of removal under the CAT may need legal assistance 
in much the same way that individuals who have received withholding of 
removal under section 243(h) of the INA or deportation under prior 
section 241(b) of the INA do. However, Congress has not authorized LSC 
to extend eligibility to individuals who have obtained withholding of 
removal under the CAT. Because LSC has neither the authority nor the 
discretion to extend eligibility for LSC-funded legal assistance to 
these individuals, LSC would retain the text from the proposed rule.
    LSC would make a technical amendment to section 1626.5(c). The 
first sentence of the section states that an alien who has been granted 
asylum by the Attorney General under Section 208 of the INA is eligible 
for assistance. LSC would insert the phrase ``or the Secretary of DHS'' 
to reflect the fact that Section 208 of the INA, 8 U.S.C. 1158, has 
been amended to give the Secretary of DHS the authority to grant 
asylum, in addition to the Attorney General. Sec. 101(a)(1), (2), 
Public Law 109-13; 119 Stat. 231, 302 (2005).

Proposed 1626.6 Verification of Citizenship

    No comments were received on the proposed changes to this section.

Proposed 1626.7 Verification of Eligible Alien Status

    LSC received comments on the proposal to remove the appendix to 
Part 1626 and publish the contents as a program letter or equivalent 
document, which will be discussed in the section on the appendix. LSC 
received no comments on the other proposed changes to this section.

Proposed 1626.8 Emergencies

    No comments were received on the proposed changes to this section.

Proposed 1626.11 H-2 Forestry and Agricultural Workers

    1. Comment: LSC received two comments in response to the proposed 
revisions to section 1626.11. LSC proposed to amend section 1626.11 to 
add H-2B forestry workers as a new category of aliens eligible for 
legal assistance from LSC-funded recipients, consistent with the FY 
2008 LSC appropriation's amendment to section 504(a)(11)(E) of the FY 
1996 LSC appropriation. Both comments supported the amendment, stating 
that the ability to represent H-2A agricultural and H-2B forestry 
workers enables recipients to engage more fully in investigating and 
enforcing labor laws, particularly wage and conditions laws. One 
commenter recommended that Congress should act to expand eligibility 
for LSC-funded legal assistance to ``all low-income workers, regardless 
of their immigration status.''
    Response: LSC appreciates the comments in support of the revisions 
to section 1626.11.
    LSC would make technical amendments to sections 1626.11(a) and (b) 
in the final rule. The original version of section 1626.11 stated that

[[Page 6868]]

agricultural workers ``admitted under the provisions of 8 U.S.C. 
1101(a)(15)(h)(ii)'' were eligible for legal assistance related to 
certain issues arising under the workers' employment contracts. 53 FR 
40194, 40196, Oct. 19, 1988 (NPRM); 54 FR 18109, 18112, Apr. 27, 1989 
(final rule). This language omitted the full relevant text of the 
statute that made nonimmigrant workers ``admitted to, or permitted to 
remain in the United States under,'' 8 U.S.C. 1101(a)(15)(h)(ii)(A) 
eligible for legal services. Sec. 305, Public Law 99-603, 100 Stat. 
3359, 3434 (1986) (emphasis added). Congress used the same ``admitted 
to, or permitted to remain in'' language when it expanded eligibility 
to H-2B forestry workers. Sec. 540, Public Law 110-161, Div. B, Title 
V, 121 Stat. 1844, 1924 (2007). This same omission was made in the NPRM 
for this rule. 78 FR 51696, 51704, Aug. 21, 2013. The omission of this 
language was an oversight and LSC would amend sections 1626.11(a) and 
(b) to include it.

Proposed Appendix to Part 1626--Examples of Documents and Other 
Information Establishing Alien Eligibility for Representation by LSC 
Programs

    1. Comment: LSC received seven comments in response to the proposal 
to remove the appendix to Part 1626 and instead publish the list of 
documents establishing alien eligibility as program letters or 
equivalent policy documents. Six commenters supported the proposal, and 
one commenter objected. The six commenters supporting the proposal 
agreed with LSC's assessment that the frequently changing nature of 
immigration documents and forms requires a more flexible means of 
disseminating up-to-date information to LSC recipients than the 
rulemaking procedure allows. One of the comments in support, however, 
recommended that LSC publish the initial program letter for public 
comment and establish a comment and feedback procedure for issuance of 
subsequent program letters. The desire for notice and comment was 
reflected in the one comment opposing the proposal. The commenter 
opposing the removal of the appendix asserted that experienced 
immigration practitioners are often in the best position to understand 
fully the types of documentation that can adequately demonstrate an 
eligible alien status. The commenter stated that because rulemaking is 
the only way to ensure an opportunity for public comment and obtaining 
public comment is consistent with LSC's policy of engaging in open 
dialogue with its stakeholders, LSC should continue publishing the list 
of documentary evidence as the Appendix to Part 1626.
    Response: LSC agrees that practitioner input is essential to 
ensuring that the list of documents and other evidence of alien 
eligibility is complete, accurate, and useful. As stated in the 
preamble to the NPRM, LSC is publishing the initial program letter 
replacing the Appendix to Part 1626 under the LSC Rulemaking Protocol. 
The Rulemaking Protocol requires the Corporation to provide a comment 
period of at least thirty days for any regulatory changes that occur 
through notice and comment rulemaking. 67 FR 69762, 69764, Nov. 19, 
2002. LSC does not intend that removal of the list of documents from 
the regulation will limit the ability of recipients to provide input 
into future versions of the list.
    The program letter replacing the Appendix to Part 1626 is being 
published for public comment along with this FNPRM. The comment period 
will be open for thirty days from the date of publication in the 
Federal Register.

List of Subjects in 45 CFR Part 1626

    Aliens, Grant programs-law, Legal services, Migrant labor, 
Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Legal Services 
Corporation proposes to revise 45 CFR part 1626 to read as follows:

PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS

Sec.
1626.1 Purpose.
1626.2 Definitions.
1626.3 Prohibition.
1626.4 Aliens eligible for assistance under anti-abuse laws.
1626.5 Aliens eligible for assistance based on immigration status.
1626.6 Verification of citizenship.
1626.7 Verification of eligible alien status.
1626.8 Emergencies.
1626.9 Change in circumstances.
1626.10 Special eligibility questions.
1626.11 H-2 forestry and agricultural workers.
1626.12 Recipient policies, procedures, and recordkeeping.

    Authority: 42 U.S.C. 2996g(e).


Sec.  1626.1  Purpose.

    This part is designed to ensure that recipients provide legal 
assistance only to citizens of the United States and eligible aliens. 
It is also designed to assist recipients in determining the eligibility 
and immigration status of persons who seek legal assistance.


Sec.  1626.2  Definitions.

    (a) Anti-abuse statutes means the Violence Against Women Act of 
1994, Pub. L. 103-322, 108 Stat. 1941, as amended, and the Violence 
Against Women and Department of Justice Reauthorization Act of 2005, 
Public Law 109-162, 119 Stat. 2960 (collectively referred to as 
``VAWA''); Section 101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U); 
and the incorporation of these statutory provisions in section 
502(a)(2)(C) of LSC's FY 1998 appropriation, Pub. L. 105-119, Title V, 
111 Stat. 2440, 2510 as incorporated by reference thereafter; the 
Victims of Trafficking and Violence Protection Act of 2000, Public Law 
106-386, 114 Stat. 1464 (``TVPA''), as amended; and Section 
101(a)(15)(T) of the Immigration and Nationality Act (``INA''), 8 
U.S.C. 1101(a)(15)(T).
    (b) Battered or subjected to extreme cruelty includes, but is not 
limited to, being the victim, of any act or threatened act of violence, 
including any forceful detention, which results or threatens to result 
in physical or mental injury. Psychological or sexual abuse or 
exploitation, including rape, molestation, incest (if the victim is a 
minor), or forced prostitution may be considered acts of violence. 
Other abusive actions may also be acts of violence under certain 
circumstances, including acts that, in and of themselves, may not 
initially appear violent but that are a part of an overall pattern of 
violence.
    (c) Certification means the certification prescribed in 22 U.S.C. 
7105(b)(1)(E).
    (d) Citizen means a person described or defined as a citizen or 
national of the United States in 8 U.S.C. 1101(a)(22) and Title III of 
the Immigration and Nationality Act (INA), Chapter 1 (8 U.S.C. 1401 et 
seq.) (citizens by birth) and Chapter 2 (8 U.S.C. 1421 et seq.) 
(citizens by naturalization) or antecedent citizen statutes.
    (e) Eligible alien means a person who is not a citizen but who 
meets the requirements of Sec.  1626.4 or Sec.  1626.5.
    (f) Ineligible alien means a person who is not a citizen and who 
does not meet the requirements of Sec.  1626.4 or Sec.  1626.5.
    (g) On behalf of an ineligible alien means to render legal 
assistance to an eligible client that benefits an ineligible alien and 
does not affect a specific legal right or interest of the eligible 
client.
    (h)(1) Qualifies for immigration relief under section 101(a)(15)(U) 
of the INA means:
    (i) A person who has been granted relief under that section;

[[Page 6869]]

    (ii) A person who has applied for relief under that section and who 
the recipient determines has evidentiary support for such application; 
or
    (iii) A person who has not filed for relief under that section, but 
who the recipient determines has evidentiary support for filing for 
such relief.
    (2) A person who ``qualifies for immigration relief'' includes any 
person who may apply for primary U visa relief under subsection (i) of 
section 101(a)(15)(U) of the INA or for derivative U visa relief for 
family members under subsection (ii) of section 101(a)(15)(U) of the 
INA (8 U.S.C. 1101(a)(15)(U)). Recipients may provide assistance for 
any person who qualifies for derivative U visa relief regardless of 
whether such a person has been subjected to abuse.
    (i) Rejected refers to an application for adjustment of status that 
has been denied by DHS and is not subject to further administrative 
appeal.
    (j) Victim of severe forms of trafficking means any person 
described at 22 U.S.C. 7105(b)(1)(C).
    (k) Victim of sexual assault or trafficking means:
    (1) A victim of sexual assault subjected to any conduct included in 
the definition of sexual assault in VAWA, 42 U.S.C. 13925(a)(29); and
    (2) A victim of trafficking subjected to any conduct included in 
the definition of ``trafficking'' under law, including, but not limited 
to, local, state, and federal law, and T-visa holders regardless of 
certification from the U.S. Department of Health and Human Services 
(HHS).
    (l) United States, for purposes of this part, has the same meaning 
given that term in 8 U.S.C. 1101(a)(38) of the INA.


Sec.  1626.3  Prohibition.

    Recipients may not provide legal assistance for or on behalf of an 
ineligible alien. For purposes of this part, legal assistance does not 
include normal intake and referral services.


Sec.  1626.4  Aliens eligible for assistance under anti-abuse laws.

    (a) Subject to all other eligibility requirements and restrictions 
of the LSC Act and regulations and other applicable law:
    (1) A recipient may provide related legal assistance to an alien 
who is within one of the following categories:
    (i) An alien who has been battered or subjected to extreme cruelty, 
or is a victim of sexual assault or trafficking in the United States, 
or qualifies for immigration relief under section 101(a)(15)(U) of the 
INA (8 U.S.C. 1101(a)(15)(U)); or
    (ii) An alien whose child, without the active participation of the 
alien, has been battered or subjected to extreme cruelty, or has been a 
victim of sexual assault or trafficking in the United States, or 
qualifies for immigration relief under section 101(a)(15)(U) of the INA 
(8 U.S.C. 1101(a)(15)(U)).
    (2)(i) A recipient may provide legal assistance, including but not 
limited to related legal assistance, to:
    (A) An alien who is a victim of severe forms of trafficking of 
persons in the United States, or
    (B) An alien classified as a non-immigrant under section 
101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii) regarding 
others related to the victim).
    (ii) For purposes of this part, aliens described in paragraphs 
(a)(1)(i) and (a)(1)(ii) of this section include individuals seeking 
certification as victims of severe forms of trafficking and certain 
family members applying for immigration relief under 8 U.S.C. 
1101(a)(15)(T)(ii).
    (b) (1) Related legal assistance means legal assistance directly 
related:
    (i) To the prevention of, or obtaining relief from, the battery, 
cruelty, sexual assault, or trafficking;
    (ii) To the prevention of, or obtaining relief from, crimes listed 
in section 101(a)(15)(U)(iii) of the INA (8 U.S.C. 
1101(a)(15)(U)(iii));
    (iii) To an application for relief:
    (A) Under Section 101(a)(15)(U) of the INA (8 U.S.C. 
1101(a)(15)(U)); or
    (B) Under section 101(a)(15)(T) of the INA (8 U.S.C. 
1101(a)(15)(T)).
    (2) Such assistance includes representation in matters that will 
assist a person eligible for assistance under this part to escape from 
the abusive situation, ameliorate the current effects of the abuse, or 
protect against future abuse, so long as the recipient can show the 
necessary connection of the representation to the abuse. Such 
representation may include immigration law matters and domestic or 
poverty law matters (such as obtaining civil protective orders, 
divorce, paternity, child custody, child and spousal support, housing, 
public benefits, employment, abuse and neglect, juvenile proceedings 
and contempt actions).
    (c) Relationship to the United States. (1) Relation of activity to 
the United States. An alien is eligible under this section if the 
activity giving rise to eligibility violated a law of the United 
States, regardless of where the activity occurred, or occurred in the 
United States (including in Indian country and military installations) 
or the territories and possessions of the United States.
    (2) Relationship of alien to the United States. (i) An alien 
defined in Sec.  1626.2(b), (h), or (k)(1) need not be present in the 
United States to be eligible for assistance under this section.
    (ii) An alien defined in Sec.  1626.2(j) must be present in the 
United States on account of such trafficking to be eligible for 
assistance under this section.
    (iii) An alien defined in Sec.  1626.2 (k)(2) must be present in 
the United States to be eligible for assistance under this section.
    (d) Evidentiary support. (1) Intake and subsequent evaluation. A 
recipient may determine that an alien is qualified for assistance under 
this section if there is evidentiary support that the alien falls into 
any of the eligibility categories or if the recipient determines there 
will likely be evidentiary support after a reasonable opportunity for 
further investigation. If the recipient determines that an alien is 
eligible because there will likely be evidentiary support, the 
recipient must obtain evidence of support as soon as possible and may 
not delay in order to provide continued assistance.
    (2) Documentary evidence. Evidentiary support may include, but is 
not limited to, affidavits or unsworn written statements made by the 
alien; written summaries of statements or interviews of the alien taken 
by others, including the recipient; reports and affidavits from police, 
judges, and other court officials, medical personnel, school officials, 
clergy, social workers, other social service agency personnel; orders 
of protection or other legal evidence of steps taken to end abuse; 
evidence that a person sought safe haven in a shelter or similar 
refuge; photographs; documents or other evidence of a series of acts 
that establish a pattern of qualifying abuse.
    (3) Victims of severe forms of trafficking. Victims of severe forms 
of trafficking may present any of the forms of evidence listed in 
paragraph (d)(2) of this section or any of the following:
    (i) A certification letter issued by the Department of Health and 
Human Services (HHS).
    (ii) Verification that the alien has been certified by calling the 
HHS trafficking verification line, (202) 401-5510 or (866) 401-5510.
    (iii) An interim eligibility letter issued by HHS, if the alien was 
subjected to severe forms of trafficking while under the age of 18.
    (iv) An eligibility letter issued by HHS, if the alien was 
subjected to severe forms of trafficking while under the age of 18.
    (e) Recordkeeping. Recipients are not required by Sec.  1626.12 to 
maintain

[[Page 6870]]

records regarding the immigration status of clients represented 
pursuant to this section. If a recipient relies on an immigration 
document for the eligibility determination, the recipient shall 
document that the alien presented an immigration document by making a 
note in the client's file stating that a staff member has seen the 
document, the type of document, the client's alien registration number 
(``A number''), the date of the document, the date of the review, and 
containing the signature of the staff member that reviewed the 
document.
    (f) Changes in basis for eligibility. If, during the course of 
representing an alien eligible pursuant to Sec.  1626.4(a)(1), a 
recipient determines that the alien is also eligible under Sec.  
1626.4(a)(2) or Sec.  1626.5, the recipient should treat the alien as 
eligible under that section and may provide all the assistance 
available pursuant to that section.


Sec.  1626.5  Aliens eligible for assistance based on immigration 
status.

    Subject to all other eligibility requirements and restrictions of 
the LSC Act and regulations and other applicable law, a recipient may 
provide legal assistance to an alien who is present in the United 
States and who is within one of the following categories:
    (a) An alien lawfully admitted for permanent residence as an 
immigrant as defined by section 101(a)(20) of the INA (8 U.S.C. 
1101(a)(20));
    (b) An alien who is either married to a United States citizen or is 
a parent or an unmarried child under the age of 21 of such a citizen 
and who has filed an application for adjustment of status to permanent 
resident under the INA, and such application has not been rejected;
    (c) An alien who is lawfully present in the United States pursuant 
to an admission under section 207 of the INA (8 U.S.C. 1157) (relating 
to refugee admissions) or who has been granted asylum by the Attorney 
General or the Secretary of DHS under section 208 of the INA (8 U.S.C. 
1158).
    (d) An alien who is lawfully present in the United States as a 
result of being granted conditional entry pursuant to section 203(a)(7) 
of the INA (8 U.S.C. 1153(a)(7), as in effect on March 31, 1980) before 
April 1, 1980, because of persecution or fear of persecution on account 
of race, religion, or political opinion or because of being uprooted by 
catastrophic natural calamity;
    (e) An alien who is lawfully present in the United States as a 
result of the Attorney General's withholding of deportation or 
exclusion under section 243(h) of the INA (8 U.S.C. 1253(h), as in 
effect on Apr. 16, 1996) or withholding of removal pursuant to section 
241(b)(3) of the INA (8 U.S.C. 1231(b)(3)); or
    (f) An alien who meets the requirements of Sec.  1626.10 or Sec.  
1626.11.


Sec.  1626.6  Verification of citizenship.

    (a) A recipient shall require all applicants for legal assistance 
who claim to be citizens to attest in writing in a standard form 
provided by the Corporation that they are citizens, unless the only 
service provided for a citizen is brief advice and consultation by 
telephone, or by other non-in-person means, which does not include 
continuous representation.
    (b) When a recipient has reason to doubt that an applicant is a 
citizen, the recipient shall require verification of citizenship. A 
recipient shall not consider factors such as a person's accent, limited 
English-speaking ability, appearance, race, or national origin as a 
reason to doubt that the person is a citizen.
    (1) If verification is required, a recipient may accept originals, 
certified copies, or photocopies that appear to be complete, correct, 
and authentic of any of the following documents as evidence of 
citizenship:
    (i) United States passport;
    (ii) Birth certificate;
    (iii) Naturalization certificate;
    (iv) United States Citizenship Identification Card (INS Form 1-197 
or I-197); or
    (v) Baptismal certificate showing place of birth within the United 
States and date of baptism within two months after birth.
    (2) A recipient may also accept any other authoritative document, 
such as a document issued by DHS, by a court, or by another 
governmental agency, that provides evidence of citizenship.
    (3) If a person is unable to produce any of the above documents, 
the person may submit a notarized statement signed by a third party, 
who shall not be an employee of the recipient and who can produce proof 
of that party's own United States citizenship, that the person seeking 
legal assistance is a United States citizen.


Sec.  1626.7  Verification of eligible alien status.

    (a) An alien seeking representation shall submit appropriate 
documents to verify eligibility, unless the only service provided for 
an eligible alien is brief advice and consultation by telephone, or by 
other non-in-person means, which does not include continuous 
representation of a client.
    (1) As proof of eligibility, a recipient may accept originals, 
certified copies, or photocopies that appear to be complete, correct, 
and authentic, of any documents establishing eligibility. LSC will 
publish a list of examples of such documents from time to time, in the 
form of a program letter or equivalent.
    (2) A recipient may also accept any other authoritative document 
issued by DHS, by a court, or by another governmental agency, that 
provides evidence of alien status.
    (b) A recipient shall upon request furnish each person seeking 
legal assistance with a current list of documents establishing 
eligibility under this part as is published by LSC.


Sec.  1626.8  Emergencies.

    In an emergency, legal services may be provided prior to compliance 
with Sec.  1626.4, Sec.  1626.6 and Sec.  1626.7 if:
    (a) An applicant cannot feasibly come to the recipient's office or 
otherwise transmit written documentation to the recipient before 
commencement of the representation required by the emergency, and the 
applicant provides oral information to establish eligibility which the 
recipient records, and the applicant submits the necessary 
documentation as soon as possible; or
    (b) An applicant is able to come to the recipient's office but 
cannot produce the required documentation before commencement of the 
representation, and the applicant signs a statement of eligibility and 
submits the necessary documentation as soon as possible; and
    (c) The recipient informs clients accepted under paragraph (a) or 
(b) of this section that only limited emergency legal assistance may be 
provided without satisfactory documentation and that, if the client 
fails to produce timely and satisfactory written documentation, the 
recipient will be required to discontinue representation consistent 
with the recipient's professional responsibilities.


Sec.  1626.9  Change in circumstances.

    If, to the knowledge of the recipient, a client who was an eligible 
alien becomes ineligible through a change in circumstances, continued 
representation is prohibited by this part and a recipient must 
discontinue representation consistent with applicable rules of 
professional responsibility.


Sec.  1626.10  Special eligibility questions.

    (a) (1) This part is not applicable to recipients providing 
services in the Commonwealth of the Northern Mariana Islands, the 
Republic of Palau, the Federated States of Micronesia, or the Republic 
of the Marshall Islands.
    (2) All citizens of the Republic of Palau, the Federated States of

[[Page 6871]]

Micronesia, and the Republic of the Marshall Islands residing in the 
United States are eligible to receive legal assistance provided that 
they are otherwise eligible under the Act.
    (b) All Canadian-born American Indians at least 50% Indian by blood 
are eligible to receive legal assistance provided they are otherwise 
eligible under the Act.
    (c) Members of the Texas Band of Kickapoo are eligible to receive 
legal assistance provided they are otherwise eligible under the Act.
    (d) An alien who qualified as a special agricultural worker and 
whose status is adjusted to that of temporary resident alien under the 
provisions of the Immigration Reform and Control Act (``IRCA'') is 
considered a permanent resident alien for all purposes except 
immigration under the provisions of section 302 of 100 Stat. 3422, 8 
U.S.C. 1160(g). Since the status of these aliens is that of permanent 
resident alien under section 1101(a)(20) of Title 8, these workers may 
be provided legal assistance. These workers are ineligible for legal 
assistance in order to obtain the adjustment of status of temporary 
resident under IRCA, but are eligible for legal assistance after the 
application for adjustment of status to that of temporary resident has 
been filed, and the application has not been rejected.
    (e) A recipient may provide legal assistance to indigent foreign 
nationals who seek assistance pursuant to the Hague Convention on the 
Civil Aspects of International Child Abduction and the Federal 
implementing statute, the International Child Abduction Remedies Act, 
42 U.S.C. 11607(b), provided that they are otherwise financially 
eligible.


Sec.  1626.11  H-2 agricultural and forestry workers.

    (a) Nonimmigrant agricultural workers admitted to, or permitted to 
remain in, the United States under the provisions of 8 U.S.C. 
1101(a)(15)(h)(ii)(a), commonly called H-2A agricultural workers, may 
be provided legal assistance regarding the matters specified in 
paragraph (c) of this section.
    (b) Nonimmigrant forestry workers admitted to, or permitted to 
remain in, the United States under the provisions of 8 U.S.C. 
1101(a)(15)(h)(ii)(b), commonly called H-2B forestry workers, may be 
provided legal assistance regarding the matters specified in paragraph 
(c) of this section.
    (c) The following matters which arise under the provisions of the 
worker's specific employment contract may be the subject of legal 
assistance by an LSC-funded program:
    (1) Wages;
    (2) Housing;
    (3) Transportation; and
    (4) Other employment rights as provided in the worker's specific 
contract under which the nonimmigrant worker was admitted.


Sec.  1626.12  Recipient policies, procedures and recordkeeping.

    Each recipient shall adopt written policies and procedures to guide 
its staff in complying with this part and shall maintain records 
sufficient to document the recipient's compliance with this part.

Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2014-02394 Filed 2-4-14; 8:45 am]
BILLING CODE 7050-01-P