[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Rules and Regulations]
[Pages 66062-66069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30701]



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

DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 242, 264, 274a, and 299

[INS No. 1414-91]
RIN 1115-AC39


Applicant Processing for Family Unity Benefits

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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

SUMMARY: This final rule adopts with amendments the interim rule which 
was published by the Immigration and Naturalization Service on February 
25, 1992, implementing the provisions of the Family Unity Program 
created by the Immigration Act of 1990 which provides a means by which 
certain eligible aliens may obtain permanent resident status. This rule 
also provides voluntary departure and work authorization for certain 
eligible immigrants.

EFFECTIVE DATE: December 21, 1995.

FOR FURTHER INFORMATION CONTACT: Jack Hartsoch, Office of Service 
Center Operations, Immigration and 

[[Page 66063]]
Naturalization Service, 425 I Street NW., Room 3040, Washington, DC 
20536, telephone (202) 514-3156.

SUPPLEMENTARY INFORMATION: On November 29, 1990, the Immigration Act of 
1990, Pub. L. 101-649 (IMMACT 90), was enacted. Section 301 of IMMACT 
90 provides for relief from deportation, and the granting of employment 
authorization, to an eligible immigrant who is the spouse or unmarried 
child of a legalized alien granted temporary or permanent resident 
status pursuant to section 210 or 245A of the Immigration and 
Nationality Act (the Act), or permanent resident status under section 
202 of the Immigration Reform and Control Act of 1986 (Cuban/Haitian 
Adjustment). This new program supersedes the administrative Family 
Fairness policy which began in November 1987. That policy allowed 
district directors to exercise the Attorney General's authority to 
defer deportation proceedings of certain family members of legalized 
aliens where compelling or humanitarian factors existed. On August 31, 
1991, the Immigration and Naturalization Service (Service) published in 
the Federal Register at 56 FR 42948 a proposed rule to implement the 
provisions of section 301 of IMMACT 90, as it relates to the Family 
Unity Program. Subsequently, on February 25, 1992, the Service 
published in the Federal Register an interim rule at 57 FR 6457-6472 
with request for comments. The interim rule as published on February 
25, 1992 is adopted as final with amendments to 8 CFR parts 242 and 
274a only. This final rule reflects the amendment to section 206 made 
by the Immigration and Nationality Technical Corrections Act of 1994, 
Public Law 103-416, Sec. 206, 108 Stat. 4305, 4311-12 (1994). This rule 
also provides status under Sec. 242.5 for children born to mothers 
granted status under the Family Unity Program who are authorized to 
depart and reenter the United States.

Comments

    The discussion that follows summarizes the public comments 
submitted in response to the interim rule and explains the revisions 
adopted in the final rule.

Residency Since May 5, 1988

    The interim rule provided that a qualifying family member would be 
eligible for Family Unity Program benefits if he or she had been in the 
United States on May 5, 1988, and had resided in the United States 
since that date. Several commenters asserted that no basis existed for 
the continuous residency requirement. They did not believe that this 
requirement had any statutory basis and that it was irrelevant whether 
an alien actually continued to remain in the United States after May 5, 
1988.
    Section 301(f) of IMMACT 90 states as follows:

    Nothing in this section shall be construed as authorizing an 
alien to apply for admission to, or to be admitted to, the United 
States in order to obtain benefits under this section.

    The statute now requires an applicant to have entered the United 
States before May 5, 1988, in the case of a relationship to a legalized 
alien described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of 
IMMACT 90, or as of December 1, 1988, in the case of a relationship to 
a legalized alien described in subsection (b)(2)(A), and also prohibits 
the admission of an alien for the purposes of obtaining Family Unity 
Program benefits. The Service interprets these two provisions as 
requiring an applicant for Family Unity Program benefits to have 
continuously resided in the United States since May 5, 1988, in the 
case of a relationship to a legalized alien described in subsection 
(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90, or as of December 
1, 1988, in the case of a relationship to a legalized alien described 
in subsection (b)(2)(A). Further, the purpose of the Family Unity 
Program is to prevent the separation of families, and to provide a 
means by which qualifying family members already in the United States 
in illegal status can eventually apply for permanent resident status. 
The underlying administrative Family Fairness policy supports this 
premise. The Service created the Family Fairness policy as a means of 
precluding the separation of family members by deferring their 
deportation. The purpose of the policy was to allow family members to 
reside together in the United States until they could acquire legal 
status. Whether relating to the Family Fairness policy or the Family 
Unity Program, once a family member no longer resides with the family, 
the reason for which the status was granted no longer exists.
    Therefore, the Service will retain the continuous residency 
requirement. In order to determine if the applicant has maintained a 
continuous residence in the United States since May 5, 1988, in the 
case of a relationship to a legalized alien described in subsection 
(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90, or as of December 
1, 1988, in the case of a relationship to a legalized alien described 
in subsection (b)(2)(A), the Service will consider the factors set 
forth in Matter of Huang,  19 I&N 749, 753 (BIA 1988). In Huang, the 
Board of Immigration Appeals enumerated several factors which should be 
considered in determining whether an alien is returning from a 
temporary visit abroad, thereby retaining his continuous residency in 
the United States. These factors include the duration of the alien's 
absence from the United States; the location of the alien's family 
ties, the alien's property holdings, and job; and the intention of the 
alien with respect to both the location of his actual home and the 
anticipated length of his excursion. Matter of Quijencio, 15 I&N 95, 97 
(BIA 1974); Matter of Castro, 14 I&N Dec. 492 (BIA 1973); Matter of 
Montero, 14 I&N 399, 400 (BIA 1973).
    The Service will not interpret ``continuous residence'' as 
requiring ``continuous physical presence.'' A qualifying family member 
who meets the requirements of the Family Unity Program will be granted 
a 2-year period of voluntary departure. Voluntary departure is a form 
of relief from deportation and is available only to persons already in 
the United States.

Legalized Aliens/Applications After May 5, 1988

    The interim rule provides that an alien who filed a legalization 
application on or before May 5, 1988, will be treated as having been a 
legalized alien as of May 5, 1988, for purposes of the Family Unity 
Program.
    Section 301(a) of IMMACT 90 states as follows:

    The Attorney General shall provide that in the case of an alien 
who is [a qualified immigrant and the spouse or unmarried child of a 
legalized alien] as of May 5, 1988 * * *. [Emphasis added]

    .Several commenters believe that the statute was never intended to 
exclude family members of legalized aliens who filed after May 5, 1988, 
from the Family Unity Program. They note that the filing deadline for 
the Special Agricultural Worker Program did not occur until November 
30, 1988. They believe that an alien who filed a timely application 
after May 5, 1988, but before November 30, 1988, should also be treated 
as a legalized alien for purposes of the Family Unity Program.
    Congress has acted to resolve this issue. Section 206(a) of the 
Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 
103-416, 108 Stat. at 4311, amends section 301 of IMMACT 90 to 
distinguish the legalization program under section 245A of the Act and 
the Cuban-Haitian adjustment provision in section 202 of 

[[Page 66064]]
IRCA from the SAW program under section 210 of the Act. The Family 
Unity Program eligibility date for relatives of aliens legalized under 
the SAW program is now December 1, 1988, to correspond to the filing 
deadline for that program. This amendment is reflected in this final 
rule.

Children Born After May 5, 1988

    The Service recognizes that the situation may arise where a child 
may be born abroad to an alien granted voluntary departure status and 
advance authorization to travel under the Family Unity Program. 
Although there is no provision in the statute to provide status to the 
child, it is also true that the intent of the statute was to enable 
specific family members to reside together in the United States.
    Therefore, although the child cannot qualify for benefits under the 
Family Unity Program, the Service will provide for the granting of 
voluntary departure under 8 CFR 242.5, to a child of a legalized alien 
residing in the United States, who was born during an authorized 
absence of the mother who is currently either a legalized alien or a 
beneficiary of the Family Unity Program. This provision will also 
include children born to aliens residing in the United States, who were 
denied status in the Family Unity Program and granted voluntary 
departure status under 8 CFR 242.5, where the other parent is a 
legalized alien residing in the United States.

Waivers

    Several commenters sought clarification regarding the availability 
of existing waivers of deportability for applicants for the Family 
Unity Program. The interim regulation reflects the statute in making 
aliens who are deportable under certain grounds ineligible for the 
Family Unity Program benefits. However, an alien who has been granted 
any available waiver is not deportable and is not ineligible for the 
Family Unity Program. The final rule is modified to clarify that 
existing waivers are applicable to applicants for the Family Unity 
Program.

Response to Notice of Intent To Deny

    One commenter suggested that the Service should allow an applicant 
for Family Unity Program benefits to submit a good faith request for an 
extension of time to submit a response to a notice of intent to deny.
    An applicant may request more time to respond to a notice to deny. 
However, the Service's decision whether or not to grant the request is 
discretionary. To ensure consistency with application procedures in 
other Service programs, the provisions in this rule are consistent with 
the general requirements and procedures for applications and petitions 
in 8 CFR part 103.

Denied Cases

    The Service initially proposed an administrative appeal procedure. 
However, upon further review, this procedure was eliminated in the 
interim rule. One commenter believed that the Service should not have 
eliminated the administrative appeal process.
    The Service set forth its reasons for eliminating the proposed 
administrative appeal process in the Supplementary Information to the 
interim rule published at 57 FR 6459-6460. The Service adheres to that 
reasoning and will not adopt an administrative appeal procedure.

Issuance of Orders To Show Cause (OSC)

    A commenter was concerned that the Service would issue an OSC (Form 
I-221) while a Family Unity Program application is pending. The Service 
will not issue an OSC during the pending adjudication of an Application 
for Voluntary Departure Under the Family Unity Program (Form I-817), 
unless the OSC is based on a paragraph in section 241(a) of the Act 
which would render the applicant ineligible for the Family Unity 
Program.
    Several commenters believed that having applicants placed in 
deportation proceedings as a result of a failure to meet basic 
eligibility requirements, such as residence by the required date, is a 
severely disproportionate consequence and a waste of Service resources, 
as the denied applicants are likely to be eligible for a second 
preference visa petition and will eventually be allowed to immigrate to 
the United States. The commenters recommended that the Service continue 
the policy under the administrative Family Fairness policy of not 
issuing OSCs in denied cases, except in egregious cases such as a 
serious criminal conviction.
    However, as was discussed in the Supplementary Information to the 
interim rule, the Service must fulfill its enforcement responsibility 
under the Act. Therefore, this provision will remain as it is in the 
interim rule.
    Several commenters proposed that the issuance of an OSC be delayed 
for 90 days after a second denial. They pointed out that the only way 
an alien may appeal a denial of Family Unity Program benefits would be 
to file a complaint against the Service in district court alleging 
abuse of discretion. Further, the commenters allege that the Service is 
making it difficult for the alien to bring these charges when it will 
only delay issuance of the OSC for the first denial. The commenters 
conclude that, in order to balance the removal of the proposed 
administrative appeals process, the Service should allow applicants 
more time after a second denial to seek judicial review.
    The Service believes that granting a 90-day grace period after 
every denial before issuing an OSC might simply encourage a person to 
file repeated applications with the sole intent to protract the 
adjudication process and delay the issuance of an OSC. The Service 
believes that ample safeguards exist in the current procedure to enable 
an applicant to perfect an application and/or appeal a denial of 
benefits. Denied applicants will have at least 90 days from the first 
denial to refile a second application before the Service will issue an 
OSC. If the application is denied again, the applicant may still seek 
judicial review before the district court. Therefore, the final rule 
will not be amended to allow for a delayed issuance of an OSC after a 
second denial.

Release From Detention/Administrative Closure/Automatic Stay of 
Deportation

    Several commenters suggested that the regulations provide that a 
demonstration of prima facie eligibility for Family Unity Program 
benefits should result in:
    (1) The alien's release from detention on his or her own 
recognizance;
    (2) Administrative closure of the deportation proceedings, provided 
a final administrative order of deportation has not been issued; and
    (3) An automatic stay of deportation for a person with a final 
deportation order.
    These commenters asserted that this would promote an efficient use 
of the budgets of the Service and the Executive Office for Immigration 
Review (EOIR) to be faithful to Congress' intent and would promote 
uniformity in national enforcement practice.
    The Service may currently consider the requests of release from 
detention and stays of deportation on a case-by-case basis for Family 
Unity Program applicants under sections 242 and 243 of the Act. The 
Service is without authority to consider a request for administrative 
closure of a deportation proceeding.

Concurrent Jurisdiction of EOIR

    Several commenters believe it would be helpful to have a provision 
stating that EOIR has concurrent jurisdiction with the Service in cases 
where an 

[[Page 66065]]
applicant has been denied Family Unity Program benefits and is in 
deportation proceedings. The commenters suggest that the reference to 
judicial review in the interim rule includes the possibility of seeking 
review before an immigration judge.
    The statute does not provide for administrative review of the 
Service's denial of Family Unity Program benefits. If an alien's 
application for Family Unity Program benefits is denied, he or she may 
still request relief from deportation in the form of voluntary 
departure in a deportation hearing before an immigration judge. Such a 
request would be made pursuant to section 244 of the Act and would be a 
separate determination from that made by the Service pursuant to 
section 301 of the Immigration Act of 1990. An immigration judge's 
denial of voluntary departure in deportation proceedings could then be 
appealed to the Board of Immigration Appeals and the Federal circuit 
court of appeals.

Employment Authorization

    Several commenters proposed that the Service apply the same 
practice to the Family Unity Program as was applied to the Legalization 
Program and the administrative Family Fairness policy regarding 
employment authorization, for example, granting interim employment 
authorization for the time period between the granting of the 
application and the issuance of the employment authorization document 
(EAD) at a local Service office. Several commenters suggested that such 
interim work authorization should be stamped directly onto the receipt 
notice, with the period of validity to coincide with the EAD 
appointment date plus 90 days.
    The Service's position regarding the issue of providing interim 
work authorization to Family Unity Program applicants remains 
unchanged. The Service has determined that a uniform procedure for 
issuance of EADs is necessary. Further, interim work authorization is 
less secure and presents enforcement problems. For the above reasons 
and those set forth in the interim rule, the Service will not authorize 
interim employment for the period between the granting of an 
application for Family Unity Program benefits and the issuance of an 
EAD. Instead, the applicant may apply on Form I-765 for issuance of an 
EAD, concurrently with Form I-817. To file Form I-765 at a Service 
Center, the applicant must include two (2) ADIT-style photographs.

Identify Document for Employment Authorization

    The interim rule, at 8 CFR 242.6(e)(5), contained the language, 
``issued by legitimate agency of the United States or a foreign 
government,'' when referring to an identity document the alien must 
present at the time of filing for an application for an EAD. Some 
commenters expressed concern that the language could be construed too 
narrowly to preclude State or local government-issued identification 
documents (whether domestic or foreign), and recommended that the final 
language of the rule clarify that identification documents will be 
accepted if they have been issued by smaller scale government sources, 
provided they are legitimate.
    The intent of this requirement is to ensure that a person appearing 
at the local district office to obtain an EAD establish that he or she 
is the person granted Family Unity Program benefits before being given 
the EAD. The final rule clarifies this point.

Reference on Forms I-688B and I-551

    One commenter requested that the Employment Authorization Card, 
Form I-688B, and the Alien Registration Receipt Card, Form I-551, 
include a reference to section 301 of IMMACT 90 to assist in 
identifying participants in this program.
    The Form I-688B does have a reference to the Family Unity Program. 
Section 274a.12(a)(13) is used exclusively for the Family Unity 
Program. The Form I-551 reflects the section of law under which the 
alien immigrated but does not directly indicate the alien's previous 
participation in the Family Unity Program.

Continuing Relationship Requirement

    One commenter requested a clarification regarding the continuing 
relationship requirement, specifically the definitions of ``child'' and 
``spouse.''
    The definition of ``child'' is the same as is defined in section 
101(b)(1) of the Act, with the exception that the alien will not lose 
eligibility for the Family Unity Program by virtue of having attained 
the age of 21 after May 5, 1988, in the case of a relationship to a 
legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of 
section 301 IMMACT 90, or as of December 1, 1988, in the case of a 
relationship to a legalized alien described in subsection (b)(2)(A). 
The definition of ``spouse'' includes the term as described in section 
101(a)(35) of the Act. The term ``spouse'' is also described in 
decisions relating to the petitioning process for sections 201(b) and 
203(a)(2) of the Act. There is no special definition of spouse 
associated with this rule.
    In the interim rule, at Sec. 242.6(c)(1)(ii), an eligible immigrant 
is required to also be eligible for family-sponsored second preference 
immigrant status under section 203(a)(2) of the Act based on the same 
relationship. One commenter believed that the ``based on the same 
relationship'' phrase should not be included in the promulgation of 
final regulations and that marital status on May 5, 1988, and not any 
time thereafter, be the relevant determination of eligibility. The 
commenter concluded that the disqualification is inconsistent with the 
purposes of the Family Unity Program.
    Pursuant to section 301 paragraphs (a) and (b)(1) of the 
Immigration Act of 1990, the required relationship to a legalized alien 
must have existed on May 5, 1988, in the case of a relationship to a 
legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of 
section 301 IMMACT 90, or as of December 1, 1988, in the case of a 
relationship to a legalized alien described in subsection (b)(2)(A). 
The issue is whether that relationship must continue in order for 
eligibility to continue, or whether the alien granted benefits under 
the Family Unity Program should be allowed to retain those benefits 
even if the required relationship changes.
    The purpose of the Family Unity Program is to provide a transition 
for specific family members of legalized aliens to family-sponsored 
second preference immigrant status. If benefits under the Family Unity 
Program were retained even after a required relationship ended by 
marriage, divorce, or death, and the person became ineligible for 
family-sponsored second preference classification, the alien could 
potentially remain in the Family Unity Program without a means to 
become a permanent resident. This would go far beyond Congress' intent 
for the program and would be inconsistent with section 205 of the Act.
    In essence, this regulation applies the same rules to the Family 
Unity Program which are applicable to persons with approved family-
sponsored immigrant petitions in similar circumstances. If a marriage 
to a petitioner ends, or the unmarried son or daughter of a lawful 
permanent resident petitioner marries, approval of an immigrant 
petition based upon that relationship is automatically revoked, and 
that petition may no longer be used as a basis for immigration.

[[Page 66066]]

    Therefore, if the legalized alien's child marries, or if the 
legalized alien's marriage to the spouse ends through divorce or death, 
neither the child nor the spouse can retain benefits under the Family 
Unity Program because of the termination of the relationship by which 
he or she qualified.

Petition/Extension Application

    In order to obtain an extension of voluntary departure, section 
242.6(e)(7) of the interim rule requires that a petition for family-
sponsored immigrant status be filed on behalf of the applicant during 
the initial period of voluntary departure. Several commenters asserted 
that this requirement is unnecessary.
    The Service recognizes that the statute does not specifically 
require that an immigrant petition be filed in order to obtain an 
extension of voluntary departure; however, since the intent of the 
program is to provide a bridge to permanent residence, it is reasonable 
to require the family member to at least file the second-preference 
petition. Further, this regulation will assist the Service in moving 
toward closure of the need for the Family Unity Program, and provide 
lawful permanent resident status for the participants of the Family 
Unity Program. The requirement continued from the interim rule is being 
modified so as to relate only to those applicants whose petitioning 
family member is a lawful permanent resident and thereby eligible to 
file the petition.

Extension/Demonstration of Continued Eligibility

    Several other commenters suggested that the rule be modified to 
require a person seeking Family Unity Program benefits to demonstrate 
continued eligibility only from the date of execution of the prior 
Family Unity Program application. The commenters conclude that this 
would streamline the extension process and save time and resources for 
both the Service and the applicants. Several commenters also suggested 
that such simplification should result in a reduced fee.
    The final rule will be amended to reflect that the applicant for an 
extension will not be required to submit evidence already submitted. 
However, the applicant will be required to submit evidence of 
continuing eligibility since the first application for the Family Unity 
Program was submitted. The applicant will also be required to notify 
the Service of any changes relating to the first application.
    Two commenters suggested that an applicant for voluntary departure 
under the Family Unity Program only be required to submit a simple 
half-page extension form or a Form I-817 by itself, along with a 
reduced fee. Since activities such as mail distribution, fee 
receipting, data entry, records verification, adjudication, and 
notification are associated with the processing of any form, the fee 
will remain the same.
    The Service is committed to charging a fee that accurately reflects 
costs. The Service will continue to use the form created for this 
program, Form I-817, Application for Voluntary Departure Under the 
Family Unity Program. The fee is consistent with 31 U.S.C. 9701 and the 
guidelines of the Office of Management and Budget in OMB Circular A-25, 
for an application for an initial grant of family unity benefits and 
for an application to extend family unity benefits.

Condition/Status

    In the interim rule, an alien who is granted advance authorization 
to travel outside the United States and who returns to the United 
States in accordance with such authorization, and who is found not to 
be excludable under section 301(a)(1) of IMMACT 90, shall be inspected 
and admitted in the same immigration condition the alien had at the 
time of departure for the remainder of the 2-year voluntary departure 
previously authorized under the Family Unity Program. One commenter was 
troubled about the use of the term ``condition'' instead of ``status'' 
for persons who depart and return on advance parole.
    To avoid an appearance that the Service is not following the 
statute, the word ``status'' will be used in the final rule. If the 
person was in status at the time of departure, the alien will be placed 
in status upon return to the United States. Conversely, if the person 
was out of status upon departure, the alien will be out of status upon 
his or her return. Thus, existing sections of the Act, such as section 
245, are unaffected by section 301 of IMMACT 90. If an alien was 
ineligible to adjust status upon departure, the alien will be 
ineligible to adjust status upon return.

Visa Processing

    One commenter requested clarification regarding the processing of 
immigrant petitions. Section 301 of IMMACT 90 is not affected by 
procedures relating to immigrant petitions.

Confidentiality

    One commenter suggested that the Service adopt a relation providing 
for confidentiality for the Family Unity Program application, 
prohibiting the use of information gathered for the Family Unity 
program in establishing deportability.
    The Immigration Reform and Control Act required confidentiality in 
clear statutory language. No such provision was made in the enabling 
statute for the Family Unity Program.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have significant economic impact on a substantial number of 
small entities because the rule relates solely to individual 
immigration benefits.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory 
Planning and Review, and the Office of Management and Budget has waived 
its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulations adopted herein 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 Executive Order 12612, it is determined that this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service 
certifies that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that this regulation will 
enhance family well-being by providing for family unity of eligible 
persons.
    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act. Clearance numbers are 
contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
[Government agencies], Freedom of Information, Privacy, Reporting and 

[[Page 66067]]
recordkeeping requirements, Surety bonds.
8 CFR Part 242
    Administrative practice and procedure, Aliens, Crime.
8 CFR Part 264
    Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
    Administrative practice and procedure, Aliens, Employment 
penalties, Report and recordkeeping requirements.
8 CFR Part 299
    Immigration, Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 8 CFR parts 103, 242, 264, 
274a and 299 which was published at 57 FR 6457-6462 on February 25, 
1992, is adopted as a final rule with the following changes:
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
    1. The authority citation for part 242 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 
1252b, 1254, 1362; 8 CFR part 2.

    2. In Sec. 242.5, paragraph (a) is amended by:
    a. Removing ``or'' before paragraph (a)(2)(viii);
    b. Removing the ``.'' at the end of the paragraph and replacing it 
with a ``; or'';
    c. Adding paragraph (a)(2)(ix); and
    d. Revising paragraph (a)(3) to read as follows:
Sec. 242.5  Voluntary departure prior to commencement of hearing.

* * * * *
    (a) * * *
    (2) * * *
    (ix) who is the child of a legalized alien currently residing in 
the United States, born during an authorized absence from the United 
States of the mother who is:
    (A) A legalized alien; or
    (B) An alien currently residing in the United States under 
voluntary departure pursuant to the Family Unity Program.
    (3) Periods of time/employment. (i) Except for paragraphs (a)(2) 
(v) through (ix) of this section, any grant of voluntary departure 
shall contain a time limitation of usually not more than 30 days, and 
an extension of the original voluntary departure time shall not be 
authorized except under meritorious circumstances, as determined on a 
case-by-case basis. Upon failure to depart, deportation proceedings 
will be initiated. As an exception to the 30-day voluntary departure 
period, an eligible alien under:
    (A) Paragraph (a)(2)(v) of this section may be granted voluntary 
departure in increments of 1 year conditioned upon the F-1 or J-1 alien 
maintaining a full course of study at an approved institution of 
learning, or upon abiding by the terms and conditions of the exchange 
program within the limitations imposed by 22 CFR 514.23; or
    (B) Paragraphs (a)(2)(vi) (A), (B), and (C) of this section may be 
granted voluntary departure until the American Consul issues an 
immigrant visa and, at the discretion of the district director, 
issuance may be in increments of 30 days, conditioned upon continuing 
availability of an immigrant visa as shown in the latest Visa Office 
Bulletin and upon the alien's diligent pursuit of efforts to obtain the 
visa; or
    (C) Paragraphs (a)(2)(vi) (D) and (E) of this section may be 
granted voluntary departure, conditioned upon the continued validity of 
the approved third- or sixth-preference petition, as appropriate, and 
the alien's retention of the status established in the petition for an 
indefinite period until an immigrant visa is available; or
    (D) Paragraphs (a)(2) (vii) and (viii) of this section may be 
granted voluntary departure in increments of time, not to exceed 1 
year, as determined by the district director to be appropriate in the 
case; or
    (E) Paragraph (a)(2)(ix) of this section may be granted voluntary 
departure in increments of time, not to exceed 2 years.
    (ii) An alien eligible for voluntary departure in paragraphs (a)(2) 
(v) through (viii) of this section may apply for employment 
authorization under the appropriate citation in Sec. 274a.12 of this 
chapter.
* * * * *
    3. Section 242.6 is revised to read as follows:
Sec. 242.6  Family Unity Program.
    (a) General. Except as otherwise specifically provided in paragraph 
(b) of this section, the definitions contained in Title 8 of the Code 
of Federal Regulations shall apply to the administration of this 
section.
    (b) Definitions. As used in this section:
    Eligible immigrant means a qualified immigrant who is the spouse or 
unmarried child of a legalized alien.
    Legalized alien means an alien who:
    (i) Is a temporary or permanent resident under section 210 or 245A 
of the Act; or
    (ii) Is a permanent resident under section 202 of the Immigration 
Reform and Control Act of 1986 (Cuban/Haitian Adjustment).
    (c) Eligibility--(1) General. An alien who is not a lawful 
permanent resident is eligible to apply for benefits under the Family 
Unity Program if he or she establishes:
    (i) That he or she entered the United States before May 5, 1988 (in 
the case of a relationship to a legalized alien described in subsection 
(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90)), or as of December 
1, 1988 (in the case of a relationship to a legalized alien described 
in subsection (b)(2)(A) of section 301 of IMMACT 90), and has been 
continuously residing in the United States since that date; and
    (ii) That on May 5, 1988 (in the case of a relationship to a 
legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of 
section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a 
relationship to a legalized alien described in subsection (b)(2)(A) of 
section 301 of IMMACT 90), he or she was the spouse of unmarried child 
of a legalized alien, and that he or she has been eligible continuously 
since that time for family-sponsored second preference immigrant status 
under section 203(a)(2) of the Act based on the same relationship.
    (2) Legalization application pending as of May 5, 1988 or December 
1, 1988. An alien whose legalization application was filed on or before 
May 5, 1988 (in the case of a relationship to a legalized alien 
described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 
90), or as of December 1, 1988 (in the case of a relationship to a 
legalized alien described in subsection (b)(2)(A) of section 301 of 
IMMACT 90), but not approved until after that date will be treated as 
having been a legalized alien as of May 5, 1988 (in the case of a 
relationship to a legalized alien described in subsection (b)(2)(B) or 
(b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in 
the case of a relationship to a legalized alien described in subsection 
(b)(2)(A) of section 301 of IMMACT 90), for purposes of the Family 
Unity Program.
    (d) Ineligible aliens. The following categories of aliens are 
ineligible for benefits under the Family Unity Program:

    (1) An alien who is deportable under any paragraph in section 
241(a) of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and 
(3)(A); provided that an alien 

[[Page 66068]]
who is deportable under paragraph (1)(A) of such Act is also ineligible 
for benefits under the Family Unity Program if deportability is based 
upon an exclusion ground described in section 212(a) (2) or (3) of the 
Act;
    (2) An alien who has been convicted of a felony or three or more 
misdemeanors in the United States; or
    (3) An alien described in section 243(h)(2) of the Act.
    (e) Filing--(1) General. An application for voluntary departure 
under the Family Unity Program must be filed at the Service Center 
having jurisdiction over the alien's place of residence. A Form I-817 
(Application for Voluntary Departure under the Family Unity Program) 
must be filed with the correct fee required in Sec. 103.7(b)(1) of this 
chapter and the required supporting documentation. A separate 
application with appropriate fee and documentation must be filed for 
each person claiming eligibility.
    (2) Decision. The Service Center director has sole jurisdiction to 
adjudicate an application for benefits under the Family Unity Program. 
The director will provide the applicant with specific reasons for any 
decision to deny an application. Denial of an application may not be 
appealed. An applicant who believes that the grounds for denial have 
been overcome may submit another application with the appropriate fee 
and documentation.
    (3) Referral of denied cases for consideration of issuance of Order 
to Show Cause. If an application is denied, the case will be referred 
to the district director with jurisdiction over the alien's place of 
residence for consideration of whether to issue an Order to Show Cause 
(OSC). After an initial denial, an applicant's case will not be 
referred for issuance of an OSC until 90 days from the date of the 
initial denial, to allow the alien the opportunity to file a new Form 
I-817 application in order to attempt to overcome the basis of the 
denial. However, if the applicant is found not to be eligible for 
benefits under paragraph (d)(2) of this section, the Service reserves 
the right to issue an Order to Show Cause at any time after the initial 
denial.
    (4) Voluntary departure under Sec. 242.5 and eligibility for 
employment under Sec. 274a.12(c)(12). Children of legalized aliens 
residing in the United States, who were born during an authorized 
absence from the United States of mothers who are currently residing in 
the United States under voluntary departure pursuant to the Family 
Unity Program may be granted voluntary departure under 
Sec. 242.5(a)(2)(ix) for a period of 2 years.
    (5) Duration of voluntary departure under Sec. 242.6. An alien 
whose application for benefits under the Family Unity Program is 
approved will receive a 2-year period of voluntary departure. The 2-
year period will begin on the date the Services approves the 
application.
    (6) Employment authorization. An alien granted benefits under the 
Family Unity Program is authorized to be employed in the United States 
and may apply for an employment authorization document on Form I-765 
(Application for Employment Authorization). The application may be 
filed concurrently with Form I-817. The application must be accompanied 
by the correct fee required by Sec. 103.7(b)(1) of this chapter. The 
validity period of the employment authorization will coincide with the 
period of voluntary departure.
    (7) Travel outside the United States. An alien granted Family Unity 
Program benefits who intends to travel outside the United States 
temporarily must apply for advance authorization using Form I-131 
(Application for Travel Document). The authority to grant an 
application for advance authorization for an alien granted Family Unity 
Program benefits rests solely with the district director. An alien who 
is granted advance authorization and returns to the United States in 
accordance with such authorization, and who is found not to be 
excludable under section 212(a) (2) or (3) of the Act, shall be 
inspected and admitted in the same immigration status the alien had at 
the time of departure, and provided the remainder of the 2-year 
voluntary departure previously granted under the Family Unity Program.
    (8) Extension of voluntary departure. An application for an 
extension of voluntary departure under the Family Unity Program must be 
filed by the alien on Form I-817 along with the correct fee required in 
Sec. 103.7(b)(1) of this chapter and the required supporting 
documentation. The submission of a copy of the previous approval notice 
will assist in shortening the processing time. An extension may be 
granted if the alien continues to be eligible for benefits under the 
Family Unity Program. However, an extension may not be approved if the 
legalized alien is a lawful permanent resident, and a petition for 
family-sponsored immigrant status has not been filed in behalf of the 
applicant. In such case the Service will notify the alien of the reason 
for the denial and afford him or her the opportunity to file another 
Form I-817 once the petition, Form I-130, has been filed in behalf of 
him or her. No charging document will be issued for a period of 90 
days.
    (9) Supporting documentation for extension application. Supporting 
documentation need not include documentation provided with the previous 
application(s). The extension application need only include changes to 
previous applications and evidence of continuing eligibility since the 
date of the prior approval.
    (f) Eligibility for Federal financial assistance programs. An alien 
granted Family Unity Program benefits based on a relationship to a 
legalized alien as defined in paragraph (b) of this section is 
ineligible for public welfare assistance in the same manner and for the 
same period as the legalized alien is ineligible for such assistance 
under sections 245A(h) or 210(f) of the Act, respectively.
    (g) Termination of Family Unity Program benefits.
    (1) Grounds for termination. The Service may terminate benefits 
under the Family Unity Program whenever the necessity for the 
termination comes to the attention of the Service. Such grounds will 
exist in situations including, but not limited to, those in which:
    (i) A determination is made that Family Unity Program benefits were 
acquired as the result of fraud or willful misrepresentation of a 
material fact;
    (ii) The beneficiary commits an act or acts which render him or her 
inadmissible as an immigrant or ineligible for benefits under the 
Family Unity Program;
    (iii) The legalized alien upon whose status benefits under the 
Family Unity Program were based loses his or her legalized status;
    (iv) The beneficiary is the subject of a final order of exclusion 
or deportation issued subsequent to the grant of benefits on any ground 
of deportability or excludability that would have rendered the alien 
ineligible for benefits under Sec. 242.6(d)(1) of this chapter, 
regardless of whether the facts giving rise to such ground occurred 
before or after the benefits were granted; or
    (v) A qualifying relationship to a legalized alien no longer 
exists.
    (2) Notice procedure. Notice of intent to terminate and of the 
grounds thereof shall be served pursuant to the provisions of 
Sec. 103.5a of this chapter. The alien shall be given 30 days to 
respond to the notice and may submit to the Service additional evidence 
in rebuttal. Any final decision of termination shall also be served 
pursuant to the provisions of Sec. 103.5a of the chapter. Nothing in 
this section 

[[Page 66069]]
shall preclude the Service from commencing exclusion or deportation 
proceedings prior to termination of Family Unity Program benefits.
    (3) Effect of termination. Termination of benefits under the Family 
Unity Program, other than as a result of a final order of deportation 
or exclusion, shall render the alien amendable to exclusion or 
deportation proceedings under sections 236 or 242 of the Act, as 
appropriate.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    4. The authority citation for part 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

    5. Section 274a.12 is amended by revising paragraph (c)(12) to read 
as follows:


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

* * * * *
    (c) * * *
    (12) A deportable alien granted voluntary departure, either prior 
to or after a hearing, for reasons set forth in Sec. 242.5(a)(2) (v), 
(vi), (viii), or (ix) of this chapter, may be granted permission to be 
employed for that period of time prior to the date set for voluntary 
departure including any extension granted beyond such date, if the 
alien establishes an economic need to work. Factors which may be 
considered in adjudicating the application for employment authorization 
of such an alien granted voluntary departure include, but are not 
limited to, the following:
    (i) The length of voluntary departure granted;
    (ii) The existence of a dependent spouse and/or children in the 
United States who rely on the alien for support;
    (iii) Whether there is a reasonable chance that legal status may 
ensure in the near future; and
    (iv) Whether there is a reasonable basis for consideration of 
discretionary relief.
* * * * *
    Dated: December 13, 1995.
Doris Meissner,
Commissioner.
[FR Doc. 95-30701 Filed 12-20-95; 8:45 am]
BILLING CODE 4410-10-M