[Federal Register Volume 61, Number 228 (Monday, November 25, 1996)]
[Rules and Regulations]
[Pages 59825-59827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29971]
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DEPARTMENT OF JUSTICE
8 CFR Part 245
[INS No. 1373-95]
RIN 1115-AD12
Adjustment of Status to That of Person Admitted for Permanent
Residence: Interview
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule adopts without change an interim rule
published in the Federal Register by the Immigration and Naturalization
Service (the Service) on November 2, 1992, which allows the Service to
determine when interviews are needed to adjudicate applications for
adjustment of status to that of a lawful permanent resident alien. This
action is considered necessary to promote more efficient adjudications
and convenience to the public.
EFFECTIVE DATE: December 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Gerard Casale, Senior Adjudications Officer, Immigration and
Naturalization Service, Room 3214, 425 I Street, NW., Washington, DC
20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
Section 245 of the Immigration and Nationality Act (the Act)
provides that the status of certain aliens in the United States may be
adjusted to that of lawful permanent residents at the discretion of the
Attorney General under such regulations as she may prescribe. This
process, known as adjustment of status, is governed by section 245 of
the Act and 8 CFR part 245. Pursuant to 8 CFR 245.6, an applicant over
the age of 14 is generally required to be interviewed by an officer of
the Service.
On November 2, 1992, the Service published an interim rule with
request for public comments in the Federal Register, at 57 FR 49374-
49375. The rule revised 8 CFR 245.6 to allow the Service to conduct
interviews only in cases where it determines that an interview is
necessary. The rule also eliminated a provision allowing interviews to
be waived for persons who had applied before November 20, 1990, for
adjustment of status under the Cuban Adjustment Act of November 2,
1996, since that specific provision was no longer needed.
The interim rule became effective on November 2, 1992. Interested
persons were invited to submit written comments regarding the interim
rule on or before December 2, 1992. The Service received five written
comments regarding the rule. Since the closing of the period for public
comment, no new factors have affected the stated basis for the interim
rule. Meanwhile, significant increases in total application receipts
have underscored the need for promoting efficient use of adjudications
resources. The following discussion summarizes the issues involved in
the interview determination rule, including those raised by the
commenters, and the conclusions reached by the Service.
Fraud
Traditionally, the interview of applicants for adjustment of status
has been seen as an important element in the Service's ability to
detect and deter fraud. On that account, one commenter opposed the
change to selective interviewing. Citing reports indicating a
significant number of fraudulent marriages connected with petitions for
immigration benefits, he concluded that the prospect of an interview
deters additional persons from fraudulently claiming eligibility for
lawful permanent resident status. The Service shares this interest in
avoiding the creation of opportunities for fraud. However, the
conversion to select interviewing does not assure any particular
applicants that they will not be interviewed and does not limit the
Service's ability to interview a particular applicant for permanent
resident status. Interviews of a significant number of applicants,
particularly those claiming eligibility based on a recent marriage,
will continue. In fact, the Service intends to conduct interviews in
all cases in which
[[Page 59826]]
it is likely that the interview would disclose a basis for
ineligibility.
The possibility that fraudulent claims would be increased by the
combination of selective interviewing and the direct mailing of
adjustment applications to the four service centers was another
consideration. A commenter suggested that service center adjudicators,
who do not conduct interviews, lack the experience of working on
suspect cases and the knowledge of fraud patterns prevalent in
particular localities, and therefore would be unable to identify those
applications for which an interview is needed. The Service's view is
that adjudicators at the service centers have sufficient experience and
training in the detection of fraudulent claims to eligibility for
immigration benefits and that they will continue to apply this
knowledge in determining when interviews are not necessary. For
example, when processing petitions to remove the conditions imposed on
persons who obtained permanent residency based on a recent marriage
during the past several years, the responsibility for assessing the
risk of fraud has been assigned to service center adjudicators, who
refer suspect cases to local offices for interview. Service center
adjudicators also recently handled a large number of applications for
adjustment of status under the Chinese Student Protection Act of 1992
in a similar manner.
Impact of the Interview Determination Program on the Adjustment
Application Filing Fee
Another issue raised by the interview determination program is
whether its efficiencies should result in a reduction in the current
fee for adjustment of status applications. One commenter reasoned that
a decrease in the number of interviews would result in the Service
spending less to process applications for adjustment of status,
yielding savings that should be passed to the public in the form of a
lower filing fee. However, the Service does not intend that the
elimination of some interviews will lessen the total resources devoted
to adjudication of applications for adjustment of status; rather, the
change will shift some workloads and costs from the district offices to
the service centers. Officer time and other resources formerly devoted
to interviewing clearly eligible applicants will be dedicated to
uncovering fraud in high-risk adjustment of status cases. Also, a
previously discussed, a significant number of applicants will continue
to be interviewed. Therefore, while the decrease in the percentage of
cases interviewed will benefit many applicants, the Service does not
expect it to change significantly the overall cost of adjudicating
adjustment applications.
Processing Time
As far as maintenance of adjudications standards allows, the
Service has an abiding interest in minimizing the time required to
complete action on adjustment of status applications. One commenter saw
the interim rule as an example of Service efforts to alleviate
adjudications backlogs and make the most of existing resources, while
another recommended that the Service issue a decision within 90 days of
receipt of the application.
Timely adjudication of requests for benefits is a Service goal, and
selective waiving of interviews will allow decisions to be issued more
quickly in routine and non-suspect adjustment of status cases. The
Service has recently introduced Customer Service Standards which aim at
completing action on adjustment applications within a shorter time.
However, since some Service offices currently have heavier caseloads in
relation to available personnel, they may incur backlogs longer than
those of other offices. Caseloads are also subject to unanticipated
surges in the number or type of applications received. Final processing
may be delayed in individual cases for other reasons outside the
adjudicator's control, as when additional time is required to await an
immigrant visa priority date, the receipt of supplementary information
from the applicant, or the completion of an investigation regarding a
questionable claim.
Applicant Request for Waiver of Interview
A question whether there would be a procedure allowing an applicant
to request a waiver of the interview has been considered. The
determination whether an interview is necessary involves evaluation of
all relevant factors concerning the application, including any special
circumstances. However, the decision will be made on the basis of the
evidence of eligibility and not an applicant's desire to avoid an
interview. The Service cannot assure an applicant in advance that no
interview will be required, since information may be received which
discloses the need for interview of an application who initially did
not appear to require it. Consequently, the INS will not adopt a
procedure to entertain advance requests to waive the interview.
The Selection of Cases
Each adjustment of status application will be reviewed on a case-
by-case basis to determine whether an interview is needed. The Service
will monitor fraud trends and the use of the interview determination
provision to provide guidelines for adjudicators.
Concern was expressed as to how the interview determination
decision would be reached, particularly if it would result in
interviews being called merely to address minor documentary
deficiencies. A minor deficiency is not, in itself, an indicator of
fraud. The Service does not plan to interview an applicant solely
because he or she neglected to submit a document which can be more
easily requested and submitted by mail.
A commenter suggested that the Service adopt a nationwide list of
specified adjustment application categories which, in her opinion,
presented a low risk of fraud and yet were consuming nearly half of the
staff time devoted to adjustment interviews in a large district office;
the time freed by waiving interviews of such cases could then be re-
directed to fraud deterrence and reduction of the waiting time for
processing applications. The Service recognizes that at any point in
time there are categories of applications which pose a generally lower
risk of fraud than others. However, it does not follow that the rule
must be altered on that account. A regulation prescribing fixed
categories of applications for which interviews must be waived would
hamper the Service's flexibility in adjusting to changes in fraud
profiles and caseloads. The existing rule, which neither specifies nor
limits the types of adjustment cases on which the interview
determination may be made, affords the Service and its adjudicating
offices the widest freedom of action to balance local needs and
priorities.
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 a significant economic impact on a substantial number of
small entities because of the following factors: This rule merely
adopts as final an interim rule which has been in effect since November
2, 1992. By removing the interview requirement, the rule has eliminated
an inconvenience to a number of individual applicants for adjustment of
status who otherwise would have been required to appear in
[[Page 59827]]
person at a Service office to be interviewed by an immigration
examiner. This rule does not have impact on small entities.
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, section 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.
List of Subjects in 8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 8 CFR part 245 which was
published at 57 FR 49374-49375 on November 2, 1992, is adopted as a
final rule without change.
Dated: October 28, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-29971 Filed 11-22-96; 8:45 am]
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