Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69549

Regulatory Flexibility Analysis to be 

performed. 

Unfunded Mandates Reform Act of 

1995

This rule will not result in the 

expenditure by state, local and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

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 foreignbased companies in domestic and 

export markets. 

Executive Order 12866 

This rule is considered by DHS to be 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review. 

Accordingly, this rule has been 

submitted to the Office of Management 

and Budget (OMB) for review. DHS has 

assessed both the costs and benefits of 

this rule as required by section 1(b)(6) 

of Executive Order 12866 and has made 

a determination that, although 

increasing the fee to $385 will increase 

the cost to the individual applicant and/

or petitioner, USCIS must establish and 

collect fees to recover the full cost of 

processing immigration benefit 

applications, rather than supporting 

these services with tax revenue. There 

are no identifiable alternatives 

associated with this fee increase. The 

implementation of this rule also will 

provide USCIS with an additional $6.7 

million in FY 2005 over the fee revenue 

that would be collected under the 

current fee structure. If USCIS does not 

adjust the current fees to recover the full 

costs of processing immigration benefit 

applications, the backlog will likely 

increase. The revenue increase is based 

on USCIS costs and projected volumes 

that were available at the time of this 

rule. 

Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, DHS has determined that 

this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

Executive Order 12988: Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, 109 Stat. 

163 (1995), all Departments are required 

to submit to OMB, for review and 

approval, any reporting or 

recordkeeping requirements inherent in 

a rule. This rule does not impose any 

new reporting or recordkeeping 

requirements under the Paperwork 

Reduction Act. This rule proposes that 

the fees for motions and appeals be 

increased. Since an increase of these 

fees will increase the cost burden on the 

public, DHS will submit the required 

Paperwork Reduction Change 

Worksheet (OMB–83C) to the Office of 

Management and Budget (OMB) 

reflecting the new fees and cost burdens 

on the public. It should also be noted 

that changes to the fees require changes 

to the application form (Form I–290B) to 

reflect the new fees. USCIS will submit 

a notification to OMB with respect to 

any such changes.

List of Subjects in 8 CFR Part 103 

Administrative practice and 

procedure, Authority delegations 

(government agencies), Freedom of 

information, Privacy, Reporting and 

recordkeeping requirements, Surety 

bonds.

Accordingly, part 103 of chapter I of 

title 8 of the Code of Federal 

Regulations is proposed to be amended 

as follows:

PART 103—POWERS AND DUTIES; 

AVAILABILITY OF RECORDS 

1. The authority citation for part 103 

continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 

1101, 1103, 1304, 1356; 31 U.S.C. 9701; 

Public Law 107–296, 116 Stat. 2135 (6 U.S.C. 

1 et seq.); E.O. 12356, 47 FR 14874, 15557, 

3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. In § 103.5(a)(1)(iii), the introductory 

text is revised to read as follows:

§ 103.5 Reopening or reconsideration. 

(a) * * * 

(1) * * * 

(iii) Filing Requirements—A motion 

shall be submitted on Form I–290B and 

may be accompanied by a brief. It must 

be:

* * * * *

§ 103.7 [Amended] 

3. In § 103.7(b)(1): 

a. The entry for ‘‘Form I–290B’’ is 

amended by revising the fee ‘‘$50’’ to 

read: ‘‘$385.00’’, and by revising the fee 

‘‘$110.00’’ to read: ‘‘$385.00’’; and 

b. The entry for ‘‘Motion’’ is amended 

by revising the fee ‘‘$110’’ to read: 

‘‘$385’’, wherever that fee appears in the 

entry.

Dated: November 18, 2004. 

Tom Ridge, 

Secretary of Homeland Security.

[FR Doc. 04–26370 Filed 11–29–04; 8:45 am] 

BILLING CODE 4410–10–P

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 103, 204, 214, 245, and 

245a 

[CIS No. 2287–03; Docket No. DHS 2004–

0020] 

RIN 1615–AB13 

Removal of the Standardized Request 

for Evidence Processing Timeframe

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend 

Department of Homeland Security 

(Department) regulations by removing 

the absolute requirement for, and the 

fixed regulatory time limitations on 

responses to, a U.S. Citizenship and 

Immigration Services (USCIS) issued 

Request for Evidence (RFE) or Notice of 

Intent to Deny (NOID). These changes 

will enable USCIS to set an appropriate 

deadline for responding to an RFE or 

NOID, specific to the type of case, 

benefit category, or classification, and 

thus improve the process of 

adjudication of applications and 

petitions by reducing the time a case is 

held awaiting evidence, and by reducing 

average case processing time. This rule 

will result in improved efficiency in the 

USCIS adjudication process. 

In addition, this rule also replaces 

references to the Immigration and 

Naturalization Service (Service) with 

references to USCIS in light of 

implementation of the Homeland 

69550 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

Security Act of 2002, Public Law 107–

296. This rule also removes obsolete 

regulatory language related to the 

Replenishment Agricultural Worker 

(RAW) program under section 210A of 

the Immigration and Nationality Act 

(Act), which was repealed by section 

219(ee)(1) of the Immigration and 

Technical Corrections Act of 1994, 

Public Law 103–416. The rule further 

removes references to the use of 

qualified designated entities for filing of 

applications for adjustment of status in 

the Seasonal Agricultural Workers 

(SAW) and legalization programs under 

section 210 and 245A of the Act.

DATES: Written comments must be 

submitted on or before January 31, 2005.

ADDRESSES: You may submit comments, 

identified by DHS Docket No. DHS–

2004–0020, by one of the following 

methods: 

• EPA Federal Partner EDOCKET 

Web Site: http://www.epa.gov/

feddocket. Follow instructions for 

submitting comments on the Web site. 

The Department of Homeland Security 

has joined the Environmental Protection 

Agency (EPA) online public docket and 

comment system on its Partner 

Electronic Docket System (Partner 

EDOCKET). The Department of 

Homeland Security and its agencies 

(excluding the United States Coast 

Guard and Transportation Security 

Administration) will use the EPA 

Federal Partner EDOCKET system. The 

USCG and TSA (legacy Department of 

Transportation (DOT) agencies) will 

continue to use the DOT Docket 

Management System until full migration 

to the electronic rulemaking federal 

docket management system in 2005. 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: rfs.regs@dhs.gov. When 

submitting comments electronically, 

please include Docket No. DHS–2004–

0020 in the subject line of the message. 

• Mail: The Director, Regulatory 

Management Division, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529. To ensure 

proper handling, please reference 

Docket No. DHS–2004–0020 on your 

correspondence. This mailing address 

may also be used for paper, disk, or CD–

ROM submissions. 

• Hand Delivery/Courier: U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529. Contact 

Telephone Number (202) 514–3048. 

Instructions: All submissions received 

must include the agency name and 

Docket No. DHS–2004–0020 for this 

rulemaking. All comments received will 

be posted without change to http://

www.epa.gov/feddocket, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.epa.gov/feddocket. You may also 

access the Federal eRulemaking Portal 

at http://www.regulations.gov.

Submitted comments may also be 

inspected at the Director, Regulatory 

Management Division, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529. To ensure 

proper handling, please reference 

Docket No. DHS–2004–0020 on your 

correspondence.

FOR FURTHER INFORMATION CONTACT:

Rodger Pitcairn, Program and 

Regulations Development, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529, telephone (202) 

514–2685.

SUPPLEMENTARY INFORMATION: 

Who Is Affected by This Rule? 

This proposed rule would affect those 

petitioners and applicants who submit 

applications/petitions for immigration 

benefits and receive requests for 

evidence (RFEs) or notices of intent to 

deny (NOIDs) from the Department. 

What Is an RFE? 

An RFE, described in current 

regulations at 8 CFR 103.2(b)(8), is a 

request, issued by an adjudicating 

immigration officer, for the applicant or 

petitioner to provide initial or 

additional evidence in support of an 

application or petition. RFEs usually are 

in writing and request missing 

documentary evidence. The 

documentary evidence requested may 

consist of basic documents that were 

specified in the application/petition 

forms and/or instructions but which 

were not submitted by the applicant or 

petitioner. The RFE may also be a 

request for original documents or proper 

translations, or for other documents not 

specifically identified in the form’s 

instructions but determined by the 

adjudicator to be relevant to the 

adjudication of the application/petition. 

What Is a Notice of Intent To Deny? 

A notice of intent to deny (NOID) is 

a written notice issued to an applicant 

or petitioner when USCIS has made a 

preliminary decision to deny the 

application or petition. NOIDs may be 

based on evidence of ineligibility and/

or on derogatory information of which 

the applicant or petitioner is unaware. 

What Is the Current Process for Issuing 

an RFE or NOID? 

Under 8 CFR 103.2(b)(8), USCIS is 

required to issue an RFE when initial 

evidence is missing. Initial evidence is 

evidence specified in the regulations 

and on the application or petition and 

accompanying instructions. USCIS, in 

its discretion, may also issue an RFE for 

additional evidence. In either case, if 

USCIS issues an RFE, USCIS must 

provide a standard response period of 

12 weeks. 

There are various provisions 

throughout 8 CFR that authorize or 

require USCIS to issue a NOID to an 

applicant or petitioner before rendering 

a final decision on the case. NOIDs are 

designed to provide the applicant or 

petitioner with an opportunity to 

inspect and rebut the evidence in a 

certain period of time, usually 30 days 

from the date of notice. 

Why Is USCIS Changing the Current 

Process and How Will RFE or NOID 

Issuance Occur Under the Proposed 

Rule? 

USCIS recognizes that while RFEs are 

sometimes necessary, RFE issuance 

slows the adjudication process. Some 

RFEs are simple enough to require 

resubmission within a few weeks; others 

may require more time. USCIS proposes 

to replace the current 12-week response 

period reflected in 8 CFR 103.2(b)(8) 

with a more flexible approach, setting 

response periods based on various 

factors such as the type of benefit 

sought; the type of application or 

petition filed; the type of evidence 

needed for adjudication; the source and 

availability of documentation (both 

foreign and domestic); the effect of 

denial of an application or petition on 

the applicant, petitioner and/or 

beneficiary (e.g., loss of long-held 

priority dates, loss of valid status or 

interim benefits); the delivery 

mechanisms to be used for an RFE or 

NOID; and other case-specific factors. 

USCIS also proposes to remove most 

provisions that require issuance of an 

RFE or NOID in order to allow USCIS 

greater flexibility in deciding cases 

based on the information received, 

including initial evidence and other 

relevant materials. Generally, USCIS 

anticipates that the response times for 

most RFEs or NOIDs that are set by 

USCIS under this proposed rule will not 

be less than 30 days. In addition, USCIS 

will issue RFEs or NOIDs as written 

notices, clearly stating what evidence or 

information is required, to give the 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69551

applicant or petitioner adequate notice 

and sufficient information to respond to 

any request. 

The goal for redesigning the RFE and 

NOID issuance process is to allow 

USCIS flexibility in determining 

whether to issue RFEs and NOIDs and 

in setting RFE and NOID response 

periods, mainly through implementing 

field guidance that will address specific 

circumstances encountered by USCIS. 

Clearly approvable cases should be 

promptly approved, without the need 

for an RFE. Clearly ineligible cases 

should be denied without an RFE or 

NOID, even if required initial evidence 

has not been submitted. USCIS also 

retains its discretion to issue an RFE, 

NOID or deny a case when initial 

evidence is missing or there is 

insufficient evidence to establish 

eligibility. The current rule at 8 CFR 

103.2(b)(16)(i) requiring opportunity to 

rebut derogatory information of which 

the applicant or petitioner is unaware 

will remain.

USCIS welcomes comments on all 

aspects of this rule, and specifically 

requests proposals on appropriate 

standards for RFE or NOID issuance as 

well as for determining appropriate 

periods for RFE and NOID responses. 

USCIS also welcomes suggestions on 

actual timeframes that should be 

adopted based on either the application 

or petition being filed or the 

documentary evidence generally 

required for a particular benefit 

category. Based on the comments 

received and USCIS’ own experience in 

case adjudication, USCIS will develop 

timeframes and standards for RFE and 

NOID issuance. 

What Other Changes Does This Rule 

Propose To Make? 

This rule clarifies 8 CFR 103.2(b)(5) to 

reflect that official documents issued by 

the Department (or the former 

Immigration and Naturalization Service) 

need not be submitted in the original 

unless required by USCIS. Original 

documents submitted to USCIS (or the 

former Immigration and Naturalization 

Service) will be returned upon request, 

but USCIS is not precluded from making 

subsequent requests to reexamine 

original documents. 

This rule expands and restructures 

current 8 CFR 103.2(b)(8) to reflect more 

accurately the process of responding to 

an RFE. This change is intended to 

facilitate a respondent’s ability to 

understand and address a request for 

evidence. 

This rule amends 8 CFR 103.2(b)(8) by 

removing the mandatory requirement 

that USCIS issue an RFE for initial 

evidence. Instead, USCIS, in its 

discretion, may deny a petition or 

application when required initial 

evidence is missing. If an applicant or 

petitioner fails to submit the required 

initial evidence, and USCIS decides to 

deny the application or petition rather 

than issue an RFE, the applicant or 

petitioner may file a motion to reopen, 

with fee, as provided under 8 CFR 103.5 

or file a new application or petition. The 

applicant or petitioner may also file an 

appeal of the denial if other regulatory 

or statutory authority exists for such 

appeal. 

This rule also preserves USCIS’

discretion to issue an RFE or NOID if 

USCIS determines that the record raises 

questions of eligibility. If USCIS issues 

an RFE or NOID for additional evidence 

and a response is received, USCIS will 

adjudicate the application based on the 

required initial evidence and the 

requested information submitted in 

response to the RFE or NOID. If the 

applicant or petitioner does not respond 

to the RFE or NOID, USCIS will treat the 

failure to respond as a statement by the 

applicant or petitioner that he or she 

believes the record as it stands 

establishes eligibility. Upon passing of 

the deadline for submission of the 

requested evidence, USCIS will 

adjudicate the application and/or 

petition based on the record then 

existing before USCIS (e.g., the 

application or petition and the required 

initial evidence).

Finally, this rule divides current 8 

CFR 103.2(b)(17) into two separate 

paragraphs for improved ease of use and 

to clarify which official records will be 

accepted to establish lawful admission 

for permanent residence. 

In addition to the proposed changes 

regarding RFE requests, USCIS is 

making numerous technical changes to 

8 CFR 103.2 necessary to reflect the 

recent organizational changes resulting 

from implementation of the Homeland 

Security Act of 2002, Public Law 107–

296. 

Are Fee Waivers Available if a 

Petitioner or Applicant Is Required To 

File a New Application or Petition or, 

if Eligible, a Motion To Reopen? 

Fee waiver requests may be granted 

when it has been established that the 

individual is unable to pay the required 

filing fees, including filing fees for 

motions to reopen. See 8 CFR 103.7(c). 

To apply for a fee waiver, an individual 

must comply with the provisions of 8 

CFR 103.7(c). The individual may 

submit an affidavit, or unsworn 

declaration made pursuant to 28 U.S.C. 

1746, that is signed, dated, and certified 

under penalty of perjury, and which 

states the reasons why the individual is 

unable to pay the filing fee. USCIS will 

take note of any evidence or 

documentation that is submitted in 

support of the individual’s claim that he 

or she is unable to pay the filing fee. For 

more detailed information on the fee 

waiver request process please visit the 

USCIS Web site at http://www.uscis.gov. 

Regulatory Flexibility Act 

DHS has reviewed this rule in 

accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)), and, by 

approving it, DHS certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Although some petitions may 

be submitted by small entities, namely 

U.S. employers seeking nonimmigrant 

or immigrant labor, this rule is intended 

to be more flexible in setting time limits 

for RFEs or NOIDs, thereby reducing the 

timeframe for adjudicating these 

petitions without imposing costs. USCIS 

recognizes that this change may have a 

small impact on small business 

practices or productivity due to the 

change in timeframes for responses to 

RFEs or NOIDS. However, USCIS 

believes these changes ultimately will 

benefit affected small businesses, 

namely because the reduction in 

adjudication timeframes will allow U.S. 

employers to receive the benefit sought 

at an earlier date (i.e., the ability to hire 

temporary or permanent foreign 

employees). USCIS intends to set 

response times for RFEs or NOIDs 

generally at not less than 30 days. 

USCIS welcomes suggestions on actual 

timeframes that should be adopted 

based on either the application or 

petition being filed or the documentary 

evidence generally required for a 

particular benefit category. Based on the 

comments received and USCIS’ own 

experience in case adjudication, USCIS 

will develop timeframes and standards 

for RFE and NOID issuance. 

Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and 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. 

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 

69552 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

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 foreignbased companies in domestic and 

export markets. 

Executive Order 12866 

This rule is considered by the 

Department of Homeland Security to be 

a ‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review. 

Accordingly, this rule has been 

submitted to the Office of Management 

and Budget for review. 

The Department has assessed both the 

costs and the benefits associated with 

this proposed rule. There are no 

identifiable alternatives associated with 

RFE or NOID issuance. In addition, 

there are minimal costs to the 

Department associated with instructing 

adjudicators about the options for 

dealing with inadequate information. 

There are benefits to both USCIS and 

the public. USCIS will reduce the 

number of RFEs and NOIDs and the 

cycle time for responses to such notices, 

potentially reducing the pending 

backlog of cases. The public will receive 

fewer and more specific RFE or NOID 

notices and benefit from faster approval 

of applications and petitions. USCIS 

welcomes comments specifically on the 

impact on U.S. employers who file 

employment-related applications or 

petitions and on any potential costs that 

may be associated with implementation 

of this rule. 

Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, DHS has determined that 

this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

Executive Order 12988 Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, all 

departments are required to submit to 

the Office of Management and Budget 

(OMB), for review and approval, any 

reporting or recordkeeping requirements 

inherent in a rule. This rule does not 

impose any new reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act.

List of Subjects 

8 CFR Part 103 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Freedom of 

information, Privacy, Reporting and 

recordkeeping requirements, Surety 

bonds. 

8 CFR Part 204 

Administrative practice and 

procedure, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Employment, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 245 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 245a 

Aliens, Immigration, Reporting and 

recordkeeping requirements.

Accordingly, chapter I of title 8 of the 

Code of Federal Regulations is proposed 

to be amended as follows:

PART 103—POWERS AND DUTIES; 

AVAILABILITY OF RECORDS

1. The authority citation for part 103 

continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 

1101, 1103, 1304, 1356; 31 U.S.C. 9701; 

Public Law 107–296, 116 Stat. 2135 (6 U.S.C. 

1 et seq.); E.O. 12356, 47 FR 14874, 15557, 

3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. Section 103.2 is amended by: 

a. Revising the term ‘‘INS office or 

Service Center’’ to read ‘‘USCIS office’’

in paragraph (a)(6); 

b. Revising the term ‘‘Service Center’’

to read ‘‘service center’’ wherever that 

term appears in the last sentence of 

paragraph (a)(7)(i); 

c. Revising paragraph (b)(1); 

d. Revising paragraph (b)(4); 

e. Revising paragraph (b)(5); 

f. Revising paragraph (b)(8); 

g. Revising paragraph (b)(11); 

h. Removing the term ‘‘initial’’ in 

paragraph (b)(12), first sentence of text; 

i. Revising paragraph (b)(13); 

j. Revising term ‘‘regional 

commissioner’’ to read ‘‘USCIS Director 

or his or her designee’’ in paragraph 

(b)(16)(iii);

k. Revising the term ‘‘regional 

commissioner’’ to read ‘‘USCIS Director 

or his or her designee’’ in the second 

sentence, and the term ‘‘regional 

commissioner’s’’ to read ‘‘USCIS 

Director’s or his or her designee’s’’ in 

the third sentence in paragraph 

(b)(16)(iv); 

l. Revising paragraph (b)(17); and by 

m. Removing and reserving 

paragraphs (c) and (d); The revisions 

read as follows:

§ 103.2 Applications, petitions, and other 

documents.

* * * * *

(b) * * * (1) Demonstrating eligibility 

at time of filing. An applicant or 

petitioner must establish that he or she 

is eligible for the requested benefit at 

the time of filing the application or 

petition. All required application or 

petition forms must be properly 

completed and filed with any initial 

evidence required by applicable 

regulations and/or the form’s 

instructions. Failure to submit with the 

petition or application all of the initial 

evidence that is required by the 

applicable regulations or form 

instructions may result in denial of the 

petition or application without further 

notice to the petitioner or applicant. 

Any evidence submitted in connection 

with the application or petition is 

incorporated into and considered part of 

the relating application or petition.

* * * * *

(4) Submitting copies of documents. 

Application and petition forms, and 

documents issued to support an 

application or petition, such as labor 

certifications, Form IAP–66, medical 

examinations, affidavits, formal 

consultations, letters of current 

employment and other statements, must 

be submitted in the original unless 

previously filed with USCIS. Official 

documents issued by the Department 

need not be submitted in the original 

unless required by USCIS. Unless 

otherwise required by the applicable 

regulation or form’s instructions, a 

legible photocopy of any other 

supporting document may be submitted. 

(5) Request for an original document. 

USCIS may, at any time, request 

submission of an original document for 

review. The request will state a deadline 

for submission of the original document. 

Failure to submit the requested original 

by the deadline may result in denial or 

revocation of the underlying application 

or benefit. An original document 

submitted in response to such a request, 

when no longer required by USCIS, will 

be returned to the petitioner or 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69553

applicant upon completion of the 

adjudication.

* * * * *

(8) Request for evidence. (i) Evidence 

of eligibility or ineligibility. If the 

preponderance of the evidence 

submitted with the application or 

petition establishes eligibility, USCIS 

will approve the application or petition, 

except that in any case in which the 

applicable statute or regulation makes 

the approval of a petition or application 

a matter entrusted to USCIS discretion, 

USCIS will approve the petition or 

application only if the preponderance of 

the evidence of record establishes not 

only that the petitioner or applicant is 

eligible for the benefit sought but also 

that the petitioner or applicant warrants 

a favorable exercise of discretion. If 

there is evidence in the record that 

establishes ineligibility, the application 

or petition will be denied on that basis. 

(ii) Action on insufficient initial 

evidence. If the evidence submitted does 

not fully establish eligibility, USCIS 

may, according to the agency’s 

implementing guidance: Deny the 

application or petition for lack of initial 

evidence or for ineligibility; request 

more information or evidence from the 

applicant or petitioner within a 

specified period of time as determined 

by USCIS; or notify the applicant or 

petitioner of its intent to deny the 

application or petition and of the basis 

for the proposed denial and require a 

response within a specified period of 

time as determined by USCIS. If USCIS 

issues a RFE or NOID, the RFE or NOID 

will be in writing and specify the type 

of evidence required or the bases for 

denial to give the applicant or petitioner 

adequate notice and sufficient 

information to respond to such notice. 

The time allowed for response to a 

request for evidence or notice of intent 

to deny generally will not be less than 

thirty (30) days.

* * * * *

(11) Responding to a request for 

evidence or notice of intent to deny. If 

USCIS issues a request for evidence or 

a notice of intent to deny, the applicant 

or petitioner may respond at any time 

prior to the deadline set by USCIS. An 

applicant or petitioner may also 

withdraw the application or petition at 

any time during the period provided for 

response. All requested materials 

should be submitted together at one 

time, along with the original USCIS 

request for evidence or notice of intent 

to deny. Submission of only some of the 

requested evidence will be considered a 

request for a decision on the record. 

After the deadline for response, or after 

USCIS’ receipt of a response, the 

application or petition will be 

adjudicated based on the record then 

existing (e.g. the application or petition, 

required initial evidence and any 

relevant information submitted in 

response to the request for evidence or 

notice of intent to deny).

* * * * *

(13) Effect of failure to respond to a 

request for evidence or a notice of intent 

to deny or to appear for interview or 

fingerprinting. (i) Failure to submit 

evidence or respond to a notice of intent 

to deny. If any requested evidence or a 

response to a notice of intent to deny is 

not submitted by the required date, the 

failure to submit such evidence or 

response shall be treated as a request for 

a decision based on the record then 

existing (e.g. the application or petition 

and required initial evidence) and the 

application or petition shall be 

adjudicated accordingly. 

(ii) Failure to appear for 

fingerprinting or interview. Except as 

provided in 8 CFR 335.6, if an 

individual requested to appear for 

fingerprinting or for an interview does 

not appear and USCIS has not received 

either a request for rescheduling by the 

date of the fingerprinting appointment 

or interview, or a withdrawal of the 

application or petition, the application 

or petition shall be considered 

abandoned and denied accordingly.

* * * * *

(17) Verifying claimed citizenship or 

permanent resident status. (i) 

Department records. The status of an 

applicant or petitioner who claims that 

he or she is a permanent resident of the 

United States or was formerly a 

permanent resident of the United States 

will be verified from official Department 

records. These records include alien and 

other files, arrival manifests, arrival 

records, Department index cards, 

Immigrant Identification Cards, 

Certificates of Registry, Declarations of 

Intention issued after July 1, 1929, 

Permanent Resident Cards (Form I–551), 

Alien Registration Receipt Cards (Form 

I–151), other registration receipt forms 

(Form AR–3, AR–3a, and AR–103, 

provided that such forms were issued or 

endorsed to show admission for 

permanent residence), passports, and 

reentry permits. An official record of a 

Department index card must bear a 

designated immigrant visa symbol and 

must have been prepared by an 

authorized official of the Department in 

the course of processing immigrant 

admissions or adjustments to permanent 

resident status. Other cards, certificates, 

declarations, permits, and passports 

must have been issued or endorsed to 

show admission for permanent 

residence. Except as otherwise provided 

in 8 CFR part 101, and in the absence 

of countervailing evidence, such official 

records will be regarded as establishing 

lawful admission for permanent 

residence. 

(ii) Assisting self-petitioners who are 

spousal abuse victims. If a selfpetitioner filing a petition under section 

204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 

204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the 

Act is unable to present primary or 

secondary evidence of the abuser’s 

status, USCIS will attempt to verify 

electronically the abuser’s citizenship or 

immigration status from information 

contained in the Department’s 

automated or computerized records. 

Other Department records may also be 

reviewed at the discretion of the 

adjudicating officer. If USCIS is unable 

to identify a record as relating to the 

abuser, or the record does not establish 

the abuser’s immigration or citizenship 

status, the self-petition will be 

adjudicated based on the information 

submitted by the self-petitioner.

* * * * *

§ 103.2 [Amended] 

3. Section 103.2 is further amended 

by:

a. Revising the terms ‘‘the Service’’ or 

‘‘Service’’ to read ‘‘USCIS’’ wherever 

those terms appear in the following 

paragraphs:

—Paragraph (a)(7)(i) first sentence and 

first time it appears in the last 

sentence; 

—Paragraph (b)(2)(ii) in the last 

sentence; 

—Paragraph (b)(2)(iii); 

—Paragraph (b)(3); 

—Paragraph (b)(6); 

—Paragraph (b)(7); 

—Paragraph (b)(9) introductory text; 

—Paragraph (b)(10); 

—Paragraph (e)(1); 

—Paragraph (e)(2); 

—Paragraph (e)(3) introductory text; 

—Paragraph (e)(3)(iii); 

—Paragraph (e)(4)(i); 

—Paragraph (e)(4)(iii) introductory text; 

—Paragraph (e)(4)(iii)(C); 

—Paragraph (e)(4)(iv) second sentence; 

—Paragraph (f)(1) in the third sentence; 

—Paragraph (f)(1), the first time the term 

appears in the fourth sentence; 

—Paragraph (f)(2), the first time the term 

appears in the first sentence; 

—Paragraph (f)(3), the first and last time 

the term appears in the last sentence; 

—Paragraph (f)(4), the first time the term 

appears in the first sentence; 

—Paragraph (f)(4), the first time the term 

appears in the second sentence; and 

—Paragraph (f)(4), in the third sentence.

b. Revising the term ‘‘Service’s’’ to 

read ‘‘USCIS’’’ in the following 

paragraphs:

69554 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

—Paragraph (b)(15); 

—Paragraph (e)(3)(iii); and 

—Paragraph (e)(4)(iii)(C).

* * * * *

PART 204—IMMIGRANT PETITIONS 

4. The authority citation for part 204 

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 

1154, 1182, 1186a, 1255, 1641; 8 CFR part 2.

§ 204.1 [Amended] 

5. Section 204.1 is amended by 

removing paragraph (h).

§ 204.2 [Amended] 

6. Section 204.2 is amended by: 

a. Removing paragraph (c)(3)(ii) and 

by redesignating (c)(3)(iii) as (c)(3)(ii); 

b. Removing paragraph (e)(3)(ii) and 

by redesignating (e)(3)(iii) as (e)(3)(ii).

PART 214—NONIMMIGRANT CLASSES 

7. The authority citation for part 214 

continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1185 (pursuant to Executive Order 

13323, published January 2, 2004), 1186a, 

1187, 1221, 1281, 1282, 1301–1305; 1372; 

1379; 1731–32; sec. 643, Pub. L. 104–208; 

110 Stat. 3009–708; section 141 of the 

Compacts of Free Association with the 

Federated States of Micronesia and the 

Republic of the Marshall Islands, and with 

the Government of Palau, 48 U.S.C. 1901, 

note, and 1931, note, respectively.

§ 214.2 [Amended] 

8. Section 214.2 is amended by: 

a. Removing paragraph (h)(10)(ii) and 

by redesignating (h)(10)(iii) as 

(h)(10)(ii); 

b. Removing paragraph (k)(10)(iii); 

c. Removing paragraph (l)(8)(i) and by 

redesignating (l)(8)(ii) and (l)(8)(iii) as 

(l)(8)(i) and (l)(8)(ii) respectively; 

d. Revising paragraph (o)(7); and by 

e. Revising paragraph (p)(9). 

The revisions read as follows:

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status.

* * * * *

(o) * * * 

(7) The petitioner shall be notified of 

the decision, the reasons for the denial, 

and the right to appeal the denial under 

8 CFR part 103.

* * * * *

(p) * * * 

(9) The petitioner shall be notified of 

the decision, the reasons for the denial, 

and the right to appeal the denial under 

8 CFR part 103. There is no appeal from 

a decision to deny an extension of stay 

to the alien or a change of nonimmigrant 

status.

* * * * *

8. Section 214.11 is amended by 

revising paragraph (k)(2) to read as 

follows:

§ 214.11 Alien victims of severe forms of 

trafficking in persons.

* * * * *

(k) * * * 

(2) Determination by USCIS. An 

application for T–1 status under this 

section will not be treated as a bona fide 

application until USCIS has provided 

the notice described in paragraph (k)(3) 

of this section. In the event that an 

application is incomplete or if the 

application is complete but does not 

present sufficient evidence to establish 

prima facie eligibility for each required 

element of T nonimmigrant status, 

USCIS will follow the procedures 

provided in 8 CFR 103.2(b)(8) for 

requesting additional evidence, issuing 

a notice of intent to deny, or 

adjudicating the case on the merits. 

9. Section 214.15 is amended by 

revising the second sentence of 

paragraph (d) to read as follows:

§ 214.15 Certain spouses and children of 

lawful permanent residents.

* * * * *

(d) The definition of ‘‘pending’’.

* * * In addition, the petition must 

have been properly filed according to 8 

CFR 103.2(a), and if, subsequent to 

filing, USCIS returns the petition to the 

applicant for any reason or makes a 

request for evidence or issues a notice 

of intent to deny under 8 CFR 

103.2(b)(8), the petitioner must comply 

with the request within the time period 

set by USCIS. * * *

* * * * *

PART 245—ADJUSTMENT OF STATUS 

TO THAT OF PERSON ADMITTED FOR 

PERMANENT RESIDENCE 

10. The authority citation for part 245 

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 

sec. 202, Pub. L. 105–100, 111 Stat. 2160, 

2193; sec. 902, Pub. L. 105–277, 112 Stat. 

2681; 8 CFR part 2.

§ 245.18 [Amended] 

11. Section 245.18 is amended by 

removing and reserving paragraph (i).

PART 245a—ADJUSTMENT OF 

STATUS TO THAT OF PERSONS 

ADMITTED FOR LAWFUL 

TEMPORARY OR PERMANENT 

RESIDENT STATUS UNDER SECTION 

245A OF THE IMMIGRATION AND 

NATIONALITY ACT 

12. The authority citation for part 

245a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1255a and 

1255a note.

13. Section 245a.20 is amended by 

revising paragraph (a)(2) to read as 

follows:

§ 245a.20 Decisions, appeals, motions, 

and certifications. 

(a) * * * 

(2) Denials. The alien shall be notified 

in writing of the decision of denial and 

of the reason(s) therefor. An applicant 

affected under this part by an adverse 

decision is entitled to file an appeal on 

Form I–290B, Notice of Appeal to the 

Administrative Appeals Office (AAO), 

with required fee specified in 8 CFR 

103.7(b)(1). Renewal of employment 

authorization issued pursuant to 

§ 245a.13 will be granted until a final 

decision has been rendered on appeal or 

until the end of the appeal period if no 

appeal is filed. After exhaustion of an 

appeal, an alien who believes that the 

grounds for denial have been overcome 

may submit another application with 

fee, provided that the application is 

submitted on or before June 4, 2003.

* * * * *

§ 245a.33 [Amended] 

14. Section 245a.33 is amended by 

removing the second sentence of 

paragraph (b).

Dated: November 18, 2004. 

Tom Ridge, 

Secretary of Homeland Security.

[FR Doc. 04–26371 Filed 11–29–04; 8:45 am] 

BILLING CODE 4410–10–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 71

[Docket No. FAA–2004–19577; Airspace 

Docket No. 04–ACE–67] 

Proposed Establishment of Class E2 

Airspace; and Modification of Class E5 

Airspace; Independence, KS

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: This notice proposes to create 

a Class E surface area at Independence, 

KS. It also proposes to modify the Class 

E5 airspace at Independence, KS.

DATES: Comments for inclusion in the 

Rules Docket must be received on or 

before January 10, 2005.

ADDRESSES: Send comments on this 

proposal to the Docket Management 

System, U.S. Department of 

Transportation, Room Plaza 401, 400 

Seventh Street, SW., Washington, DC