[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Rules and Regulations]
[Pages 63249-63254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31033]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 /
Rules and Regulations
[[Page 63249]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 245
[INS No. 1607-93]
RIN 1115-AD33
Adjustment of Status; Certain Nationals of the People's Republic
of China
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule adopts, with one change, an interim rule published
in the Federal Register on July 1, 1993, by the Immigration and
Naturalization Service (Service), which implemented the Chinese Student
Protection Act of 1992 (CSPA). Although the Service no longer accepts
applications from CSPA principals, this rule finalizes the procedures
by which the spouses and children of CSPA beneficiaries who have been
temporarily residing in the United States may become lawful permanent
residents of this country. It also removes the procedures for granting
voluntary departure for certain dependents pursuant to recent
legislative changes.
EFFECTIVE DATE: December 29, 1997.
FOR FURTHER INFORMATION CONTACT:
Pearl B Chang, Chief, Residence and Status Services Branch, Office of
Adjudications, Immigration and Naturalization Service, 425 I Street,
NW., Room 3214, Washington, DC 20536, Telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
Executive Order 12711 of April 11, 1990, provided temporary
protection for certain nationals of the People's Republic of China
(PRC) and their dependents who were in the United States on or after
June 5, 1989, up to and including the date of Executive Order 12711. It
permitted temporary deferral of enforcement of their departure from the
United States and conferred eligibility for certain other benefits
through January 1, 1994.
The CSPA, Public Law 102-404, dated October 9, 1992, was enacted to
regularize the status of, and extended permanent protections to, most
of the PRC nationals and their dependents who were covered by Executive
Order 12711. It provides these persons with the opportunity to become
lawful permanent residents through adjustment of status under section
245 of the Immigration and Nationality Act (Act), a procedure whereby
persons in the United States in temporary immigration status may
convert to lawful permanent resident status. Section 245 of the Act
requires most persons seeking to adjust status to show that they meet
strict eligibility requirements; however, the CSPA allows many of these
requirements to be waived for eligible CSPA applicants. If the Service
denies an application for adjustment of status under the CSPA, the
applicant, if not an arriving alien, may renew his or her application
in proceedings under 8 CFR part 240. See 8 CFR 245.2(a)(5)(ii). The
CSPA application period lasted from July 1, 1993, until June 30, 1994.
The CSPA does not allow every person covered by Executive Order
12711 to become a lawful permanent resident of the United States. A
qualified CSPA applicant must have initially entered the United States
on or before April 11, 1990, and must otherwise be a person described
in section 1 of the Executive Order 12711; must have resided
continuously in the United States since April 11, 1990, except for
brief, casual, and innocent departures; and may not have spent more
than 90 days in the PRC between April 11, 1990, and October 9, 1992. A
qualified applicant must also meet the requirements for adjustment of
status under section 245 of the Act, unless such requirements have been
expressly waived by, or are waived at the discretion of, the Attorney
General in accordance with the CSPA.
On July 1, 1993, at 58 FR 35832-35839, the Service published an
interim rule with request for comments in the Federal Register. The
rule established procedures for adjustment of status of persons meeting
the requirements of the CSPA. The interim rule became effective on July
1, 1993.
All CSPA applications had to be filed before July 1, 1994. There
was no provision in the CSPA for late filings. The CSPA program was a
success. The Service was able to promptly adjudicate the great majority
of CSPA applications. A total of 52,425 applicants were granted
adjustment of status under the CSPA during fiscal years 1993, 1994, and
1995. A very small number of CSPA applications remain pending. The
Service is publishing this final rule to respond to comments received
during the comment period, to further clarify the Service's position on
the interim rule, and to provide for certain dependents currently in
the United States who are not yet eligible to file for adjustment of
status.
Comments
Interested persons were invited to submit written comments on or
before August 2, 1993. The Service received 349 properly addressed
written comments during the comment period. The discussion that follows
summarizes the issues that have been raised relating to the interim
rule and provides the Service's position on the issues.
General
The majority of commenters were pleased with the enactment of the
CSPA. A small number of writers, however, recommended that the law be
rescinded. Their concerns included the economic and social consequences
of increased immigration, the CSPA's possible encouragement of unlawful
immigration, the delays in implementation of democratic reforms in the
PRC caused by the permanent migration of potential supporters, and the
possibility that many CSPA beneficiaries would not need the protections
offered by this legislation. Other writers were disturbed by the
likelihood that persons who had not been actively involved in the
democratic movement in the PRC or who had been communist party
supporters would be able to obtain lawful permanent residence under the
CSPA
The Service's implementing regulations cannot be used to rescind or
change statutory benefits provided by the CSPA. The provisions of this
rule minimize the potential for abuse of the
[[Page 63250]]
benefits provided by the CSPA, by ensuring that only persons who meet
the requirements enacted by Congress will become lawful permanent
residents. Accordingly, the provisions of the rule have not been
changed because of these recommendations.
Visa Number Allocation for CSPA Applicants
Many commenters were concerned about the interim rule's requirement
that a CSPA applicant have an immediately available visa number under
the worldwide third employment-based skilled worker preference category
prior to approval of his or her adjustment application. Some writers
urged the service to approve CSPA adjustments without regard to visa
number availability, stating that any delay in granting permanent
residency to qualified applicants would be contrary to the spirit and
intent of the CSPA. Other commenters recommended that visa numbers for
CSPA applicants be obtained from the refugee category or from a
preference classification other than the third employment-based skilled
worker category, since oversubscription by CSPA applicants could delay
the immigration of urgently needed skilled workers.
Adjustments of status under the third employment-based skilled
worker preference category are subject to several numerical limitations
under the Act. The CSPA modifies the application of two of these
restrictions; however, it does not waive all of the applicable
statutory numerical limitations. The CSPA allows the Service to
``consider,'' or accept a CSPA adjustment of status application for
processing, without regard to whether an immigrant visa number is
immediately available. It also allows applications to be approved
without regard to the per-country numerical limitations of section
202(a)(2) of the Act, and provides for a subsequent gradual deduction
of these numbers from the China per-country quota. It does not allow
such applicants to be approved without regard to the worldwide
numerical restrictions of sections 201 and 203 of the Act.
The CSPA clearly requires applicants to adjust status under the
third employment-based skilled worker category. Section 2(a)(1) of the
CSPA directs the Service to regard each CSPA applicant as having been
approved for classification under section 203(b)(3)(A)(i) of the Act as
a third employment-based skilled worker.
A review of the legislative history also supports the rule's
interpretation of the CSPA. The House report accompanying the CSPA
clearly shows that CSPA adjustments of status are intended to be placed
within the worldwide quota of section 201 of the Act. See H.R. No. 826,
102d Cong., 2d Sess. 5-6 (1992). In the report, Representative Jack
Brooks states.
[S.] 1216 places the number of Chinese adjustments within the
worldwide annual quota of section 201 of the Immigration and
Nationality Act and deducts from the PRC's per country ceiling each
year a portion of the number of Chinese who adjust under this act.
Because the worldwide quota is not waived, applicants will be
required to await the availability of a visa number * * *. Id.
In the discussion in the Senate, managers of the bill also
explained that CSPA adjustments will be counted against the worldwide
quota. See 138 Cong. Rec. S7150 (daily ed. May 21, 1992). During this
discussion, Senator Slade Gorton stated:
* * * A second change involves a provision to count those
persons receiving permanent residency under new worldwide
immigration levels as established by the Immigration Act of 1990.
Additional provisions also address the need to count them under
China's per country ceiling without adversely affecting ongoing
immigration from China. Id. At S7150.
The Service has minimized any adverse impact of the CSPA upon the
availability of immigrant visa numbers for skilled workers. With the
assistance of the Department of State, the Service was able to
significantly streamline CSPA application processing and approve more
than three-quarters of CSPA adjustment of status applications during
the final 3 months of fiscal year 1993. These procedural changes
allowed CSPA applicants to use immigrant visa numbers which would not
otherwise have been utilized by any immigrant, due to lack of demand.
The interim rule's provisions concerning immigrant visa number
limitations reflect statutory requirements of the CSPA and the Act.
Accordingly, the rule has not been changed in response to these
comments.
Order of Approval and Priority Date Assignment
A number of comments addressed the interim rule's procedure for
determining the order in which adjustments would be granted to eligible
CSPA applicants. These commenters felt that the date the application
was properly filed with the Service should not determine the order of
approval and suggested alternative procedures. Some commenters wanted
the Service to give preference to applications submitted by students
because they felt that the CSPA was primarily intended to protect them.
Other suggestions included approving applications based on the date the
applicant arrived in the United States; giving priority to applications
filed by heads of families; delaying the adjustment of Chinese who have
the right to reside in third countries, such as Hong Kong; and giving
priority to applications submitted by persons who had not returned to
the PRC after their initial admission to the United States. A few
commenters also wanted to know how the Service determines whether an
application has been ``properly filed.''
The CSPA does not address the order in which qualified CSPA
applicants should be allowed to adjust status. In the absence of a
statutory directive, the Service elected to follow its standard
practice by assigning each application a priority data based on the
date on which the properly filed application was received by the
Service, and by using this priority date to determine the order in
which available visa numbers would be allocated and adjustments granted
to qualified applicants. The Service has considered the alternatives
suggested by these commenters; however, their proposals have not been
adopted because they could not be efficiently implemented or because
their implementation would unfairly delay the processing of other
employment-based third preference skilled workers whose initial
applications were filed before July 1, 1994.
Guidelines for determining when an application is considered to be
properly filed are contained in the Service's regulations at 8 CFR
103.2(a)(7). An application is not considered properly filed if the
application has not been properly signed, or unless a fee waiver has
been granted, if the required fee is not attached.
Accordingly, the provisions of the rule have not been changed as a
result of these comments.
Date of Arrival in the United States
Some commenters objected to the interim rule's requirement that
eligible CSPA applicants must have been in the United States between
June 5, 1989, and April 11, 1990. They pointed out that some persons
who participated in the democratic movement may have been unable to
leave the PRC or to enter the United States before the cut-off date.
This regulatory requirement reflects one of the three fundamental
statutory requisites for CSPA eligibility. Section 2(b)(1) of the CSPA
requires all eligible applicants to be persons described in section 1
of Executive Order 12711. Section 1 of Executive Order 12711 covers
only persons who were in the United States on or after June 5, 1989, up
to and including April 11, 1990.
[[Page 63251]]
There is no provision of the CSPA or Executive Order 12711 which would
confer CSPA eligibility on persons who initially arrived in the United
States after April 11, 1990.
Criteria for CSPA coverage were discussed several times in both the
House and the Senate. The record contains no indication that Congress
intended the Service to grant CSPA benefits to persons who are unable
to meet this requirement. In the discussion on the final version of the
bill as it passed in the House, supporters of the legislation addressed
the fundamental requirements for CSPA eligibility. See 138 Cong. Rec.
H7819-7820 (daily ed. Aug. 10, 1992). During this discussion,
Congresswoman Nancy Pelosi explained:
S. 1216 would allow Chinese nationals who were in the United
States during the Tiananmen Square massacre to apply for permanent
residency in the United States. To be eligible for permanent
residency, the Chinese national must have first, been in the United
States sometime between June 4, 1989 and April 11, 1990. Id. At
H7820.
The Service had previously determined that a brief, casual, and
innocent departure from the United States between June 5, 1989, and
April 11, 1990, inclusive, would not preclude an individual from
coverage under section 1 of Executive Order 12711 and eligibility for
Executive Order 12711 benefits. As explained in the Supplementary
Information to the interim rule, this same interpretation of the
Executive Order 12711 requirements is applied when determining whether
a CSPA applicant is a person described in section 1 of Executive Order
12711.
The requirement that an eligible applicant establish that he or she
was in the United States at some time between June 5, 1989, and April
11, 1990, inclusive, or would have been in the United States during
this time period except for a brief, casual, and innocent departure
from this country, is based upon clear statutory requirements;
accordingly, it has not been changed.
Physical Presence in the PRC
Many commenters discussed the prohibition on granting CSPA benefits
to persons who had remained in the PRC for an aggregate of more than 90
days during the period between April 11, 1990, and October 9, 1992.
Most of these writers recommended that the restriction be waived if
circumstances beyond the applicant's control prevented his or her
timely departure from the PRC, or if the applicant had obtained an
advance parole prior to departing the United States. Other commenters
felt that the rule should be modified to prohibit adjustment of status
under the CSPA if the applicant traveled to the PRC for any reason
after April 10, 1990; if the applicant stayed in the PRC for more than
30 days during the restricted period; or if the applicant stayed in the
PRC for more than 90 days at any time after April 11, 1990. Some
writers felt that the interim rule's restriction should be applied only
if the applicant stayed in the PRC for more than 90 days on any single
occasion.
The regulatory restriction on physical presence in the PRC is based
on the third of the three fundamental statutory requisites for CSPA
eligibility. Section 2(b)(3) of the CSPA states that the CSPA covers
only a person who ``was not physically present in the People's Republic
China for longer than 90 days after such date [April 11, 1990] and
before the date of the enactment of this Act [October 9, 1992].''
A review of the legislative history also supports the rule's
provisions. The fundamental requirements for CSPA eligibility were
discussed prior to passage of the final version of the bill by the
House. See 138 Cong. Rec. H7819-7820 (daily ed. Aug. 10, 1992). During
this discussion, Congresswoman Pelosi explained that to be eligible for
CSPA benefits the applicant, inter alia, must have ``not been to China
for more than 90 days after April 11, 1990.'' Id. At H7820 (emphasis
added).
There is no indication in this discussion that Congress intended
the Service to grant CSPA benefits to any person unable to meet basic
eligibility requirements, or that the 90-day limitation should apply
only to applicants who had remained in the PRC for more than 90 days on
any one occasion.
If eligible, a person who has spent more than 90 days in the PRC
may be able to request permission to remain in the United States under
another provision of the Act. For example, a person who has reason to
fear persecution upon return to his or her home country and believes
that he or she meets the definition of ``refugee'' found in section
101(a)(42) of the Act may be eligible to apply under section 208 of the
Act for asylum.
The interim rule's provisions concerning physical presence in the
PRC during the restricted period are based on the statutory
requirements of the CSPA. Accordingly, the final rule makes no changes
to these provisions.
Entry Without Inspection
Some commenters objected to the interim rule's requirement that, in
order to be eligible for adjustment of status under the CSPA, an
applicant must establish that he or she was inspected and admitted or
paroled into the United States upon his or her last arrival in this
country. A number of writers felt that entry without inspection should
not preclude adjustment of status under the CSPA because these persons
also deserved the protections offered by the CSPA. Others felt that
persons who reentered the United States with an advance parole after
having initially entered the country without inspection should not be
allowed to adjust status because they had violated the U.S. immigration
laws.
The CSPA expressly provides for certain rules that shall apply to
an eligible alien who applies for adjustment of status under section
245 of the Act. While the CSPA does provide an exemption from
ineligibility under section 245(c) of the Act, which generally
precludes adjustment if the applicant has been employed without
authorization; is not in lawful status when seeking employment-based
immigrant status; had failed to continuously maintain a lawful
nonimmigrant status or otherwise violated the terms of a nonimmigrant
visa; or was admitted to the United States as a crewman, in transit
without visa status, in S visa status, or under the visa waiver
programs of sections 212(l) or 217 of the Act, it does not exempt
applicants from compliance with the requirements of section 245(a) of
the Act that they be inspected and admitted or paroled into the United
States. Since the CSPA specifically requires applicants to apply under
section 245 of the Act; expressly waives a portion of the requirements
for adjustment under section 245 of the Act (section 245(c) of the
Act); and makes no mention of waiving the other requirements of section
245, the Service has determined that CSPA applicants must comply with
the requirements of section 245(a) of the Act. To date, several courts
have concurred with the Service's interpretation.
While the Service cannot waive the requirements of section 245(a)
of the Act for CSPA applicants, it also cannot impose additional
restrictions beyond those required by the statute. A person who was
paroled into the United States upon his or her last arrival meets the
requirements of section 245(a) of the Act regardless of whether he or
she had previously entered this country in violation of the immigration
laws.
The Service wishes to point out that the Supplementary Information
to the interim rule contains a typographical error, which may have
confused some readers. The sentence reading: ``The CSPA also allows
eligible applicants to
[[Page 63252]]
adjust status without regard to the provisions of section 245(a) of the
Act.'' should have read: ``The CSPA allows eligible applicants to
adjust status without regard to the provisions of section 245(c) of the
Act.'' See 58 FR 35835 (1993). The following paragraph and the interim
rule's regulatory language correctly state that the requirements of
section 245(a) of the Act have not been waived. The Service regrets any
confusion caused by this typographical error, which does not
necessitate any changes to the final rule.
The Service received a number of inquiries after the end of the
comment period concerning the effect of a recently enacted law on
eligibility under the CSPA. Specifically, section 245(i) of the Act
allows otherwise qualified persons who entered the United States
without having been inspected and admitted or paroled to be granted
adjustment of status upon payment of an additional sum of $1000. This
provision became effective on October 1, 1994, 3 months after the close
of the CSPA application period. It is due to sunset on October 23,
1997. Since the new law applies only to applications filed after
October 1, 1994, (see 8 CFR 245.10(e)) it has no effect on CSPA
adjustment-of-status applications. Accordingly, the interim rule's
requirement that an eligible CSPA applicant show that he or she entered
the United States following an inspection and admission or parole has
not been changed.
Ineligibility Under Section 245(d) of the Act
A small number of commenters felt that otherwise-eligible
applicants should be allowed to adjust status under the CSPA without
regard to the provisions of section 245(d) of the Act, or requested
further clarification concerning this provision.
Section 245(d) of the Act prohibits the approval of an adjustment-
of-status application filed under section 245 of the Act if the
applicant is a person lawfully admitted to the United States on a
conditional basis under section 216 of the Act based on a recent
marriage to a citizen or lawful permanent resident of the United
States. It also prohibits the approval of an adjustment-of-status
application filed under section 245 of the Act if the applicant last
entered the United States in K-1 or K-2 nonimmigrant status as a
fiance(e) of a U.S. citizen or as the child of a K-1 nonimmigrant
fiance(e). By regulation, the Service had created an exception only in
cases where the adjustment application is based on the marriage to the
U.S. citizen who filed the fiance(e) petition (See 8 CFR 245.1(c)(6)).
Since CSPA adjustment-of-status applications are filed under section
245 of the Act and the CSPA does not waive this restriction, the
Service must deny a CSPA adjustment-of-status application if the
adjustment is prohibited under section 245(d) of the Act. The
prohibition on adjustment of status does not apply to a person whose
conditional residency under section 216 of the Act has been terminated.
See Matter of Stockwell, 20 I & N Dec. 309 (BIA 1991). Accordingly, no
changes have been made as a result of these comments.
Waivers of Inadmissibility
Several commenters asked the Service to modify the interim rule's
provisions concerning inadmissibility under section 212(a) of the Act.
Some commenters were concerned that the elderly or persons first
entering the labor market would be unable to meet public charge
requirements and asked that a blanket waiver be provided. Other writers
felt that inadmissibility for health reasons was unfair and asked the
Service to automatically waive that basis for inadmissibility. A few
commenters asked the Service to include stronger statements concerning
ineligibility based on current or former communist party membership and
not to waive inadmissibility on this basis unless the applicant has
provided evidence that his or her membership has been terminated.
The CSPA provides two blanket waivers of inadmissibility under
section 212(a) of the Act. It automatically waives inadmissibility
under section 212(a)(5) of the Act because the applicant did not obtain
a labor certification or failed to meet certain requirements applicable
to foreign-trained physicians. It also provides a blanket waiver of the
provisions of section 212(a)(7)(A) of the Act relating to documentary
requirements for entry as an immigrant. The CSPA also allows most other
grounds of inadmissibility under section 212(a) of the Act to be
individually waived at the discretion of the Attorney General for
purposes of ensuring family unity or if approval of the waiver is
otherwise in the public interest. Both health-related and public charge
inadmissibility may be waived for these reasons at the discretion of
the Attorney General. There is, however, no statutory foundation for
providing a blanket waiver of inadmissibility on this basis, nor does
such a blanket waiver appear to be necessary. Inadmissibility based on
communist party membership may also be individually waived at the
discretion of the Attorney General for purposes of ensuring family
unity, if approval of a waiver is otherwise in the public interest, or
if the applicant qualifies for any of the waivers provided in section
212(a)(3)(D) of the Act. The Service will, of course, deny an
adjustment-of-status application filed by any person who is a current
or former communist party member who does not qualify for a waiver. An
applicant who has terminated communist party membership is encouraged
to provide evidence of the termination with his or her application.
Accordingly, the interim rule's provisions relating to
inadmissibility under section 212(a) of the Act have not been changed.
Dual Nationality
A few commenters discussed whether persons who are nationals of
both the PRC and a second country should be allowed to adjust status
under the CSPA. One commenter felt that dual nationals should not be
allowed to adjust status under the CSPA, while another writer felt that
a CSPA applicant should not be bound by the country of nationality
claimed or established at the time of entry for the duration of his or
her stay in the United States. A third commenter wanted clarification
of dual nationality as it applies to persons bearing Hong Kong travel
documents.
Although the Service explained its position concerning dual
nationality in the Supplementary Information to the interim rule, the
interim rule's regulatory language merely requires CSPA principal
applicants to be nationals of the PRC. As explained in the
Supplementary Information, the Service would not necessarily preclude a
person who is a dual national of the PRC and one or more other
countries from satisfying the PRC nationality requirement under the
CSPA. The Service has held for other purposes, however, that a person
is bound by the nationality claimed at the time of entry into the
United States for the duration of his or her stay and sees no reason to
alter this practice for purposes of the CSPA. Accordingly, no changes
have been made as a result of these comments.
Late Arriving Dependents
Most commenters discussed the benefits provided to family members
in the United States who are unable to qualify for CSPA adjustment of
status because they arrived in the United States after April 11, 1990.
Many writers felt that these late arriving dependents (LADs) should be
allowed to adjust status under the CSPA or should be granted benefits
similar to those
[[Page 63253]]
provided to qualified CSPA principals. They suggested that LADs be
granted benefits such as: A waiver of per-country quota limitations; a
waiver of the 2-year home-country residency requirement of section
212(e) of the Act; a waiver of the requirements of section 245(c) of
the Act; placement under the second family-sponsored preference
category; and establishment of a family unity program similar to that
provided for the spouses and children of persons who adjusted status
under the Immigration Reform and Control Act of 1986, Public Law 99-
603. Some commenters objected to the rumored inclusion of LADs in the
second employment-based preference category. Other writers asked that
LADs be granted liberal approval of advance parole requests and
employment authorization; excused from presenting birth and marriage
certificates with an adjustment-of-status application; allowed to file
adjustment-of-status applications at the Service Centers; permitted to
apply for adjustment of status before the principal's CSPA adjustment
application is approved; granted adjustment if the principal could have
adjusted under the CSPA but chose to utilize another classification;
and allowed to adjust status or to apply for immigrant visas in a third
country, rather than being forced to return to the PRC.
As discussed in the Supplementary Information to the interim rule,
the CSPA requires eligible applicants to meet three basic eligibility
requirements. He or she: (1) Must have initially entered the United
States on or before April 11, 1990, and must otherwise be a person
described in section 1 of Executive Order 12711; (2) must have resided
continuously in the United States since April 11, 1990, except for
brief, casual, and innocent departures; and (3) may not have spent more
than 90 days in the PRC between April 11, 1990, and October 9, 1992.
Persons who do not meet these requirements cannot adjust status under
the CSPA or be granted CSPA benefits. The CSPA also provides no
authority to waive any of the statutory requirements of the Act for
persons who do not meet the eligibility requirements for CSPA
adjustment of status. Section 203(d) of the Act, however, allows a
spouse or child who is not otherwise entitled to an immigrant status
and the immediate issuance of an immigrant visa to be eligible for the
same preference immigrant classification and priority date if the
relationship existed at the time the principal became a lawful
permanent resident. A LAD who is the spouse or child of a CSPA
principal may, therefore, use the principal's CSPA priority date under
the third employment-based preference classification and seek immigrant
visa issuance or adjustment of status when the priority date becomes
current. LADs who were unable to maintain lawful nonimmigrant status
have been allowed to remain in the United States in voluntary departure
status pending the availability of the appropriate visa numbers.
The ability of the Attorney General to grant voluntary departure
has been limited by the enactment of 240B of the Act which took effect
on April 1, 1997. Section 240B of the Act limited the grant of
voluntary departure in lieu of removal proceedings or before the
conclusion thereof, to a period not to exceed 120 days including
extensions. If such relief was granted at the conclusion of removal
proceedings, the period may not exceed 60 days including extensions.
Persons granted voluntary departure under such circumstances may not
receive work authorization. However, if the grant of voluntary
departure was given either during, or at the conclusion of, exclusion
or deportation proceedings that were commenced prior to April 1, 1997,
the Attorney General may grant voluntary departure for an unspecified
period of time consistent with both Service regulations and policies.
Persons granted voluntary departure under these circumstances may
continue to receive employment authorization.
Although in recent months the third employment-based skilled worker
category has once again become current, not all remaining LADs will be
able to file for adjustment of status immediately. Recognizing that
with the new restrictions on duration, voluntary departure is no longer
an adequate option for such aliens, the Service may consider granting
remaining LADs deferred action on a case-by-case basis. Accordingly, 8
CFR 245.9(m) has been amended to remove the reference to voluntary
departure. This regulation is being adopted as a final rule without
public comment because such comment is both impracticable and
unnecessary. This change simply amends Service regulations to reflect a
statutory change which severely curtails and, in the vast majority of
cases, effectively nullifies part of the existing regulation.
In cases where an LAD requests that the Service grant deferred
action, the Service will proceed according to section X of the
Service's Standard Operating Procedures for Enforcement Officers:
Arrest, Detention, Processing and Removal (1997). Specifically, a
Service director may, in his or her discretion, recommend deferral of
(removal). Deferred action recognizes that the Service has limited
enforcement resources and that every attempt should be made
administratively to use these resources in a manner which will achieve
the greatest impact under the immigration laws. Deferred action does
not confer any immigration status on an alien, nor is it in any way a
reflection of an alien's lawful immigration status. It does not affect
periods of unlawful presence previously accrued or accruing while in
such ``status'' as defined in section 212(a)(9) of the Act, and does
not alter the status of any alien who is present in the United States
without being inspected and admitted. Under no circumstances does
deferred action cure any defect in status under any section of the Act
for any purpose. Since deferred action is not an immigration status, no
alien has the right to deferred action. It is used solely for the
administrative convenience of, and in the discretion of, the Service
and confers no protection or benefit on an alien. Deferred action does
not preclude the Service from commencing removal proceedings at any
time against an alien. While in deferred action status, an alien may be
granted work authorization pursuant to 8 CFR 274a.12(c)(14).
LADs who apply for adjustment of status in the United States while
section 245(i) of the Act remains in effect may adjust status despite
ineligibility under section 245(c) of the Act upon payment of the
additional sum.
Other Dependents
Some commenters asked for further clarification about benefits
available under the CSPA to sons and daughters who reach 21 years of
age or marry. Other writers asked that family members living in the PRC
be paroled into the United States or be issued nonimmigrant visas to
immigrate to the United States.
A son or daughter who is over the age of 21 and meets the CSPA
eligibility requirements, including arrival in the United States before
April 11, 1990, may adjust status under the CSPA without regard to age
or marital status at the time of adjustment. See 8 CFR 245.9(c)(2),
which specifies only that he or she was unmarried and under the age of
21 on April 11, 1990. A spouse or child who does not meet the CSPA
requirements may be eligible to adjust status as a family-based second
preference immigrant. The CSPA, however, provides no authority for
parole of family members into the United States, nor does it allow the
use
[[Page 63254]]
of nonimmigrant visas to immigrate to this country.
Accordingly, no changes have been made as a result of these
comments.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Commissioner of the
Immigration and Naturalization Service certifies that this rule will
not, if promulgated, have a significant adverse economic impact on a
substantial number of small entities. This rule allows certain
nationals of the PRC to apply for adjustment of status; it has no
effect on small entities as that term is defined in 5 U.S.C. 601(6).
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 regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in
section 3(a) and 3(b)(2) of E.O. 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
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 58 FR 35832 on July 1, 1993, is adopted as a final rule
with the following change:
PART 245--ADJUSTMENT OF STATUS TO THAT OF A PERSON ADMITTED FOR
PERMANENT RESIDENCE
1. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2.
2. In Sec. 245.9, paragraph (m) is revised to read as follows:
Sec. 245.9 Adjustment of Status of Certain Nationals of the People's
Republic of China under Public Law 102-404.
* * * * *
(m) Effect of enactment on family members other than qualified
family members. The adjustment of status benefits and waivers provided
by Public Law 102-404 do not apply to a spouse or child who is not a
qualified family member as defined in paragraph (c) of this section.
However, a spouse or child whose relationship to the principal alien
was established prior to the approval of the principal's adjustment-of-
status application may be accorded the derivative priority date and
preference category of the principal alien, in accordance with the
provisions of section 203(d) of the Act. The spouse or child may use
the priority date and category when it becomes current, in accordance
with the limitations set forth in sections 201 and 202 of the Act.
Dated: October 31, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-31033 Filed 11-26-97; 8:45 am]
BILLING CODE 4410-10-M