19100 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

List of Subjects in 5 CFR Part 890 

Administrative practice and 

procedure, Government employees, 

Health facilities, Health insurance, 

Health professionals, Hostages, Iraq, 

Kuwait, Lebanon, Military personnel, 

Reporting and recordkeeping 

requirements, Retirement. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ For the reasons set forth in the 

preamble, OPM is amending 5 CFR part 

890 as follows: 

PART 890—FEDERAL EMPLOYEES 

HEALTH BENEFITS PROGRAM 

■ 1. The authority citation for part 890 

continues to read as follows: 

Authority: 5 U.S.C. 8913; § 890.803 also 

issued under 50 U.S.C. 403p, 22 U.S.C. 4069c 

and 4069c–1; subpart L also issued under 

sec. 599C of Pub. L. 101–513, 104 Stat. 2064, 

as amended; § 890.102 also issued under 

sections 11202(f), 11232(e), 11246 (b) and (c) 

of Pub. L. 105–33, 111 Stat. 251; and section 

721 of Pub. L. 105–261, 112 Stat. 2061, 

unless otherwise noted. 

■ 2. Section 890.108 is revised to read 

as follows: 

§ 890.108 Will OPM waive requirements for 

continued coverage during retirement? 

(a) Under 5 U.S.C. 8905(b), OPM may 

waive the eligibility requirements for 

health benefits coverage as an annuitant 

for an individual when, in its sole 

discretion, it determines that due to 

exceptional circumstances it would be 

against equity and good conscience not 

to allow a person to be enrolled in the 

FEHB Program as an annuitant. 

(b) The individual’s failure to satisfy 

the eligibility requirements must be due 

to exceptional circumstances. An 

individual requesting a waiver must 

provide OPM with evidence that: 

(1) The individual intended to have 

FEHB coverage as an annuitant (retiree); 

(2) The circumstances that prevented 

the individual from meeting the 

requirements of 5 U.S.C. 8905(b) were 

beyond the individual’s control; and 

(3) The individual acted reasonably to 

protect his or her right to continue 

coverage into retirement. 

[FR Doc. E7–7267 Filed 4–16–07; 8:45 am] 

BILLING CODE 6329–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

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

[CIS No. 2287–03] 

RIN 1615–AB13 

Removal of the Standardized Request 

for Evidence Processing Timeframe 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Final rule. 

SUMMARY: This rule amends Department 

of Homeland Security regulations to 

provide flexibility to U.S. Citizenship 

and Immigration Services in setting the 

time allowed to applicants and 

petitioners to respond to a Request for 

Evidence or to a Notice of Intent to 

Deny. This rule also describes the 

circumstances under which U.S. 

Citizenship and Immigration Services 

will issue a Request for Evidence or 

Notice of Intent to Deny before denying 

an application or petition, but United 

States Citizenship and Immigration 

Services will continue generally to 

provide petitioners and applicants with 

the opportunity to review and rebut 

derogatory information of which he or 

she is unaware. This rule also clarifies 

when petitioners and applicants may 

submit copies of documents in lieu of 

originals. 

In addition to these changes, this rule 

removes obsolete references to legacy 

agencies, and it removes obsolete 

language relating to certain legalization 

and agricultural worker programs. 

DATES: This final rule is effective June 

18, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Rodger Pitcairn, Program and 

Regulations Development, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 111 

Massachusetts Avenue, NW., Suite 

3000, Washington, DC 20529, telephone 

(202) 272–8427. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Comments Received in Response to the 

Proposed Rule 

A. Standards and Timeframes for RFE and 

NOID Responses 

B. Not Issuing at Least One RFE; Making 

Decisions on the Record 

C. Uniform Application of the 

‘‘Preponderance of Evidence’’ Standard 

D. Relationship to Premium Processing 

Regulations 

E. Substitution of Form DS–2019; 

Submitting Copies 

F. Application of the Rule 

G. Use of the Term ‘‘Biometrics Capture’’

H. Technical Correction to Final Rule 

III. Statutory and Regulatory Reviews 

I. Background 

An applicant or petitioner seeking 

immigration benefits from U.S. 

Citizenship and Immigration Services 

(USCIS) must establish eligibility for 

such benefits. 8 CFR 103.2(b)(1). A 

Request for Evidence (RFE) is a notice 

issued by USCIS to an applicant or 

petitioner seeking immigration benefits 

requesting initial or additional evidence 

to establish eligibility. Id., 103.2(b)(8). 

Currently, USCIS must issue an RFE 

when evidence is missing from an 

application or petition. Id. In addition, 

USCIS must provide twelve weeks for 

an applicant or petitioner to respond to 

an RFE. Id. 

A Notice of Intent to Deny (NOID) is 

a written notice issued by USCIS to an 

applicant or petitioner that USCIS has 

made a preliminary decision to deny the 

application or petition. A NOID may be 

based on evidence of ineligibility or on 

derogatory information known to 

USCIS, but not known to the petitioner 

or applicant. USCIS cannot, however, 

issue a NOID based on missing initial 

evidence if an RFE has not first been 

issued. The NOID provides the 

applicant or petitioner with an 

opportunity to inspect and rebut the 

evidence forming the basis of the 

decision to deny the petition or 

application. An applicant or petitioner 

usually is provided thirty days to 

respond to the evidence. 

On November 30, 2004, USCIS 

published a proposed rule to remove 

absolute requirements for, and fixed 

times to respond to, RFEs and NOIDs. 

69 FR 69549. USCIS received thirteen 

comments from individuals, 

community-based groups that assist 

nonimmigrants and immigrants pursue 

applicants for benefits, law firms, and a 

national association representing 

immigration attorneys. This final rule 

adopts the proposed rule with minor 

changes as discussed below. 

II. Comments Received in Response to 

the Proposed Rule 

This final rule addresses requirements 

that are procedural in nature and does 

not alter the substantive rights of 

applicants or petitioners for 

immigration benefits. This final rule, 

therefore, is exempt from notice and 

comment requirements under 5 U.S.C. 

553(b)(A), and could have been 

promulgated without public notice and 

comment. USCIS’ decision to 

promulgate a proposed rule does not 

alter the authority to promulgate this 

rule as a final rule. For example, the 

proposed rule contained a presumptive 

thirty-day minimum time frame for 

responses, but, after considering the 


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comments and the further development 

of the program, this final rule does not 

include a specific presumptive 

minimum time frame for responses. See 

Hurson Assoc. Inc., v. Glickman, 229 

F.3d 277 (D.C. Cir. 2000) (rule 

eliminating face-to-face process in 

agency review of requests for approval 

was procedural and not subject to 

notice-and-comment rulemaking); JEM 

Broadcasting v. FCC, 22 F.3d 320 (D.C. 

Cir. 1994) (challenge to the ‘‘hard look’’

rules is untimely; elimination of 

opportunity to correct errors in 

application was procedural rule not 

subject to notice and comment); see also 

Public Citizen v. Department of State, 

276 F.3d 634 (D.C. Cir. 2002) (cut-off 

policy was procedural and exempt from 

notice and comment provisions). USCIS, 

however, values public comment on the 

proposed timeframes for RFEs and 

NOIDs and accordingly solicited public 

comment on the proposed rule. The 

comments provided to USCIS have been 

valuable in considering the changes 

promulgated in this final rule and are 

discussed below. 

A. Standards and Timeframes for RFE 

and NOID Responses 

In the proposed rule, USCIS suggested 

eliminating the current twelve-week 

standard timeframe for all applicants 

and petitioners to respond to an RFE in 

favor of a more flexible approach that 

would tailor the timeframes to the 

evidence requested and circumstances. 

The proposed rule would have set a new 

minimum response window of 

‘‘generally no less than 30-day[s].’’ The 

proposed rule would have made similar 

changes for responding to the NOID. 

USCIS asked for comments on specific 

timeframes for various kinds of 

applications and petitions and evidence. 

No commenters suggested specific 

timeframes for each circumstance and 

case type, but two commenters 

suggested expanding the current twelveweek standard to give applicants and 

petitioners sixteen weeks to respond for 

cases involving asylum claimants and 

refugees. Another commenter suggested 

a general sixty-day timeframe for 

NOIDs. USCIS did not propose to 

extend the current twelve-week 

maximum, and will not do so in its final 

rule. The flexible timeframes will apply 

to all applicants and petitioners to 

whom RFEs are issued. 

Several commenters focused on the 

proposed shift from a twelve-week 

standard for responding to all RFEs to 

flexible timeframes. Five pointed to the 

fact that the Department of Labor (DOL) 

has fixed timeframes for responding to 

their RFEs. USCIS evaluates petitions 

and applications in a far wider variety 

of contexts than DOL and for a far 

broader array of benefits and services. 

This fact requires greater processing 

flexibility. Accordingly, USCIS declines 

to adopt the standards used by DOL. 

Two commenters recommended that 

the current twelve-week RFE response 

period remain a standard because it is 

a predictable baseline. One also pointed 

out that the twelve-week standard 

actually gives a degree of flexibility 

because applicants and petitioners can 

choose to respond more quickly, often 

in far less than twelve weeks. 

Some commenters focused on the 

proposed minimum response time. One 

objected to the idea that USCIS would 

‘‘generally’’ give not less than thirty 

days to respond, and suggested an 

actual thirty-day minimum. Eight 

commenters considered thirty days to be 

too short. Several commenters pointed 

out that it can take more than thirty 

days to get certified copies of tax returns 

from the Internal Revenue Service (IRS). 

Five commenters noted that it is often 

difficult to obtain documents from 

foreign countries. Several pointed 

specifically to problems refugees and 

asylum claimants can experience getting 

documents from the country from which 

they fled. One commenter suggested 

that providing a minimum of 45 days to 

respond would be unreasonable for 

most applicants and petitioners. 

USCIS recognizes the value of a 

predictable timeframe for responding to 

an RFE or NOID, and did not intend to 

make this an unpredictable, 

discretionary process with timeframes 

determined by individual adjudication 

officers. USCIS will set clear timeframes 

and standards for submission of 

different kinds of evidence in different 

circumstances. This rulemaking was 

designed to give USCIS flexibility to set 

the timeframes for responding to RFEs 

as a matter of agency practice and 

procedure and to more specifically set a 

reasonable time based upon the nature 

of the information requested. The 

timeframes would be set out in internal 

guidance to adjudicators. As many 

practitioners are aware, this guidance is, 

as a general matter, publicly disclosed. 

At this time, USCIS foresees no reason 

why this guidance would not be 

publicly disclosed after it is developed 

or whenever it is adjusted. 

Important processing steps (such as 

background checks) may need to be 

repeated if processing extends beyond 

certain timeframes. Repeating these 

steps would significantly delay an 

eventual acquisition of a benefit. Longer 

timeframes can actually work against a 

timely response because applicants and 

petitioners given almost three months to 

respond may delay responding simply 

because they consider that additional 

time in the United States to be a benefit. 

Recognizing that the majority of 

applications and petitions are 

eventually approved, USCIS does not 

want to arbitrarily restrict a reasonable 

opportunity to submit material to prove 

eligibility. USCIS recognizes that 

documents from certain countries other 

than the United States are occasionally 

difficult to obtain; thus, the timeframe 

flexibility will take into account these 

situations. Nevertheless, most 

applicants and petitioners can provide 

required documents in fewer than 

twelve weeks. USCIS also provides 

information explaining how to acquire 

benefits through many sources such as 

the agency’s Web site, application 

forms, call centers, brochures, and field 

offices. Applicants and petitioners can 

easily follow the instructions provided 

by these resources and obtain all 

required documents before filing for 

immigration benefits. Applicants and 

petitioners who submit completed 

applications or petitions will minimize 

the need for RFE and facilitate faster 

decision by USCIS. CIS has found that 

in some cases, the standard twelve week 

timeframe serves to encourage 

applicants or petitioners to submit 

incomplete applications or petitions, 

relying on the RFE process to prompt 

them to submit the missing documents. 

The RFE process and the ensuing delays 

slows down the processing. Certain 

applicants and petitioners are also 

exploiting the RFE process to 

deliberately delay the processing and 

thus prolong their stay in the United 

States. A flexible RFE timeframe will 

therefore encourage the applicants and 

petitioners to file complete applications 

and petitions because they risk missing 

the timeframe and be denied the 

benefits sought to do otherwise. 

USCIS continues to believe a more 

flexible standard is necessary and 

appropriate to improve adjudication 

processes, USCIS services, and the 

administration and enforcement of 

immigration laws. The final rule 

maintains the current twelve-week 

standard as a ceiling on the response 

time to be provided, and sets a 

maximum of thirty days to respond to 

a NOID. USCIS intends to issue policy 

guidance setting clear standards for 

when a timeframe less than these 

maximums will be afforded prior to the 

effective date of the rule. 

With respect to minimum timeframes, 

the commenters’ concerns should be 

allayed in part by the fact the final rule 

does not, as one commenter feared, let 

individual adjudicators determine when 

to offer less than thirty days to respond 

to a NOID and how long to give in such 


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19102 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

instances. Further, USCIS’ goal is to 

establish a single set of guidelines and 

standards that will cover not only 

requests by mail, but also requests for 

materials made by USCIS during an 

interview. When information is 

requested during an interview, the 

individual USCIS offices now set 

timelines for the submission of missing 

or required evidence, often providing 

less than thirty days for the applicant or 

petitioner to respond. This shorter 

response time has been very effective 

both for the agency and for applicants 

and petitioners. To ensure that USCIS 

uses consistent standards across the 

board, the final rule removes the 

proposed thirty-day guideline in favor 

of the more specific timelines USCIS 

will set in its field guidance. 

Some of the timeframes mentioned by 

the commenters are not accurate. For 

example, the IRS may take up to sixty 

calendar days to process a request for an 

exact copy of a previously filed and 

processed tax return. IRS Form 4506 

(revised April 2006). The fee for an 

exact copy of a previously filed and 

processed tax return at the present time 

is $39. The IRS can, however, provide 

a transcript of the processed return 

within ten business days, currently at 

no charge. IRS Form 4506T (revised 

April 2006). Thus, USCIS acknowledges 

that it can take more than thirty days for 

applicants or petitioners to obtain 

certified copies of processed tax returns. 

However, USCIS permits applicants or 

petitioners to submit transcripts of 

processed tax returns; therefore, USCIS 

believes that applicants and petitioners 

will be able to submit transcripts of 

processed tax returns even if response 

times to RFEs or NOIDs are as short as 

thirty days. 

USCIS also recognizes the variety of 

times required to respond to a document 

request. A copy of a State driver’s 

license may easily be provided within 

ten days, while a standard foreign 

government document, such as a current 

passport that is certified by the issuing 

government, may require a longer 

timeframe. None of these timeframes, 

however, restrict the applicant’s or 

petitioner’s ability to file all of the 

obviously necessary and relevant 

documents with the original 

application. 

Several commenters who argued in 

favor of retaining the twelve-week 

standard opportunity to respond to an 

RFE also asserted that USCIS should 

create a new process allowing extension 

of the twelve-week response for any 

good cause. Several other commenters 

suggested such a new continuance 

process should be put in place if USCIS 

reduces the current twelve-week 

standard. One of these commenters 

stated the agency should consider an 

extension of up to thirty days where 

foreign documents are to be submitted. 

Another posited that adjudicators 

should have the discretion to set longer 

response times. 

The current twelve-week standard as 

a maximum limit has proven effective 

and efficient to USCIS and its applicants 

and petitioners. This twelve-week 

maximum will remain the standard 

response timeframe in many instances. 

Creating a new process to seek 

continuances to submit evidence where 

the twelve-week cycle remains 

unchanged or where USCIS sets shorter 

response times based on the evidence 

requested and circumstances would 

defeat the purpose of increasing the 

efficiency and responsiveness of case 

processing. Such a process would also 

often result in aliens being allowed to 

remain in the United States for lengthy 

periods while they try to acquire 

evidence that should have been filed 

with their application or that is 

necessary to establishing their eligibility 

for the benefit sought. Accordingly, 

USCIS declines to adopt any additional 

procedures. 

B. Not Issuing at Least One RFE; Making 

Decisions on the Record 

Ten commenters suggested the 

proposed regulation would not increase 

efficiency. Four suggested that USCIS 

would use the rule as an inappropriate 

tool to reduce its backlog. Three pointed 

out the positive aspects of the current 

RFE process and the opportunity it 

creates to emphasize evidence already 

in the record that the adjudicator may 

not have fully considered, to clear up 

misunderstandings, and to clarify issues 

and facts. One commenter suggested 

that at least unrepresented applicants 

and petitioners should always be given 

an opportunity to correct problems 

through the RFE process. Others 

recommended that the rule mandate at 

least one RFE where there is any type 

of deficiency. 

USCIS agrees that the RFE and NOID 

procedures play valuable roles. 

However, there is no need for an RFE or 

NOID process if the evidence initially 

submitted is sufficient to make a 

decision of either eligibility or 

ineligibility. The applicant or petitioner 

is responsible for providing evidence 

sufficient for USCIS to adjudicate the 

application or petition. 8 CFR 

103.2(b)(1). USCIS is not responsible for 

advising the applicant or petitioner of 

the evidence that the applicant or 

petitioner should submit with each 

particular case beyond providing 

general filing guidance via form 

instructions and regulations. 

Several commenters focused on the 

proposed change that would allow 

denial of applications and petitions 

filed without the required initial 

evidence instead of sending an RFE. 

One commenter pointed out similarities 

to a previously proposed rule. 56 FR 

61201 (Dec. 2, 1991). The commenter 

further noted that the previous 

rulemaking resulted in the current RFE 

process that USCIS now seeks to amend. 

59 FR 1455 (January 11, 1994). 

USCIS recognizes this similarity. 

When the proposed rule was issued in 

1991, the application and petition forms 

frequently did not clearly identify the 

evidence required to be filed. In 

response to comments received in 

connection with the 1991 proposed rule 

regarding the forms, the final rule did 

not contain the automatic denial 

process. 

Since the 1991 proposed rule, INS 

and now USCIS have revised the 

immigration benefit forms and 

instructions to list the initial evidence 

that applicants or petitioners need to 

file. The forms, with instructions in a 

growing number of languages, are 

available on paper and on USCIS’ Web 

site. Given that the forms provide 

complete information regarding 

evidentiary requirements, USCIS 

believes that the twelve-week standard 

RFE requirement for missing initial 

evidence is obsolete and filings should 

be complete at the beginning of the 

process. 

Recognizing the concern expressed, 

however, USCIS currently intends to 

limit the application of its discretionary 

authority to deny an application or 

petition for lack of initial evidence 

without an RFE to cases that are filed 

with little more than a signature and the 

proper fee, and therefore are 

substantially incomplete or where the 

applicant or petitioner has failed to 

demonstrate a basis for eligibility for the 

benefit sought (e.g. an application for 

adjustment of status as an immediate 

relative), where no information or 

evidence of a covered relationship is 

provided. These skeletal applications, or 

applications that are filed alleging 

eligibility for a benefit based upon 

having filed a separate benefit 

application which has since been 

denied or of which USCIS has no 

record, clearly do not establish 

eligibility. DHS wishes to make clear 

that an applicant or petitioner is 

responsible for demonstrating eligibility 

for the benefit sought and that clearly 

deficient applications or petitions will 

not be permitted. As with RFEs, USCIS 

intends to issue additional internal 


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Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19103 

guidance through policy memoranda, 

including a stipulated timeframe for 

responding to an RFE based on missing 

initial evidence. In such a case, even 

within the context of continuing an 

opportunity to respond to an RFE, 

giving a second opportunity to provide 

evidence need not result in deferring 

case processing for a full twelve weeks. 

Eight commenters expressed concerns 

that inexperienced staff given added 

discretion might make too many errors; 

be unaware of relevant business 

practices, regulations and law; and write 

RFEs with excessive boilerplate requests 

for unnecessary evidence. One 

commenter objected to the idea that 

USCIS would deny cases simply 

because an applicant or petitioner did 

not submit every piece of evidence 

requested in an RFE, pointing out that 

the current regulations lets applicants 

and petitioners request a decision on the 

record. Conversely, another commenter 

suggested that the proposed rule at 8 

CFR 103.2(b)(13)(i) would remove 

explicit USCIS authority to summarily 

deny a case as abandoned for failure to 

submit initial and additional requested 

evidence by a required date. Therefore, 

the commenter requested that USCIS 

reinstate that explicit authority under 8 

CFR 103.2(b)(13)(i). 

The final rule retains the current 

process for requesting a decision on the 

record. If an applicant or petitioner 

requests a decision on the record, USCIS 

will decide the case based on the record. 

This process has been in effect for more 

than a decade. The process struck a 

careful balance between giving a 

controlled process for requesting 

evidence and giving applicants and 

petitioners the opportunity to object and 

ask for a decision on the record. This 

balance is also essential to ensuring that 

the adjudicator will be able to deny the 

application or petition on the record, if 

additional evidence is needed, but the 

requested evidence is not received. An 

applicant’s or petitioner’s failure to 

respond to an RFE can close off a 

material line of inquiry or can 

effectively stop further processing 

towards granting an application or 

petition, and may be considered a factor 

in evaluating whether an applicant or 

petitioner has proven eligibility for the 

benefit sought. This final rule 

incorporates this concept and also 

clarifies USCIS’ authority to summarily 

deny a case as abandoned for failure to 

reply to an RFE or a NOID by a required 

date. The final rule also allows USCIS 

to deny an application or petition if the 

applicant or petitioner fails to provide 

requested materials, such as 

photographs, necessary to complete 

processing and issuing resultant 

documentation. 

One commenter thought that this rule 

would unfairly burden applicants and 

petitioners due to the ‘‘failure to 

appear’’ provisions in 8 CFR 

103.2(b)(13). To avoid this result, USCIS 

has modified the final rule. The rule 

now allows for exceptions where there 

is evidence, such as a prompt change of 

address or rescheduling request, that the 

agency concludes warrants excusing the 

failure to appear. 

Several commenters expressed 

concern with the proposed elimination 

of 8 CFR 245.18(i), which requires 

USCIS to issue a NOID to a physician 

who does not ‘‘comply with the 

requirements of paragraphs (f) and (g).’’

After further analysis, the final rule 

retains the provision and simply 

removes the timeframes for the 

applicant’s or petitioner’s response to 

the NOID in favor of the timeframes 

USCIS will set for RFEs and NOIDs. 

Another commenter highlighted that 

NOIDs are currently required by 

regulation to provide the benefit seeker 

with an opportunity to know and 

address otherwise unknown adverse 

information on which a decision is to be 

made. This final rule maintains the 

general requirement for a NOID prior to 

any denial based upon derogatory 

information of which the petitioner or 

applicant is unaware. 8 CFR 

103.2(b)(16)(i). 

C. Uniform Application of the 

‘Preponderance of Evidence’ Standard 

One commenter approved of the 

‘‘preponderance of the evidence’’

standard as proposed at 8 CFR 

103.2(b)(8)(i). The commenter, however, 

objected to the proposed language in 8 

CFR 103.2(b)(8)(ii), which allows USCIS 

to deny an application or petition, 

request more evidence, or notify the 

applicant or petitioner of its intent to 

deny if the ‘‘evidence submitted does 

not fully establish eligibility.’’ The 

commenter stated, 

[c]onflating the preponderance standard 

with a ‘‘full eligibility’’ standard merges two 

irreconcilable concepts, unless it is clear that 

a preponderance of the evidence does, 

indeed, establish full eligibility. The 

regulation would be more acceptable if the 

language were changed to delete the ‘‘fully 

establish eligibility’’ language, and if 

language were added to state that the only 

cases that may be denied without an RFE are 

ones in which there is clear evidence of 

ineligibility. 

(Emphases in original). 

In response to these comments, USCIS 

has modified 8 CFR 103.2(b)(8)(i) to 

remove the phrase, ‘‘the preponderance 

of’’ and to modify 8 CFR 103.2(b)(8)(ii) 

to remove the word ‘‘fully.’’ USCIS is 

implementing these modifications 

because it believes that it would be 

inappropriate to apply a single standard 

in 8 CFR 103.2(b)(8)(i) and (ii) to all 

USCIS adjudications. Furthermore, 

these modifications clarify that 

adjudications can involve different 

evidentiary standards or burdens. Under 

current regulations, some applications 

or petitions must demonstrate a 

preponderance of the evidence, while 

other applications or petitions require 

clear and convincing evidence, to 

establish eligibility. 

D. Relationship to Premium Processing 

Regulations 

One commenter asserted that if 

applied to premium processing requests, 

the proposed rule would contravene the 

existing premium processing service 

regulations at 8 CFR 103.2(f). In making 

this statement, the commenter 

interpreted the current premium 

processing regulations to require USCIS 

to issue an RFE or NOID before denying 

any application or petition for which 

premium processing services have been 

requested. USCIS appreciates this 

comment and, to clarify the 

applicability of this regulation, 8 CFR 

103.2(f) has been modified to include 

‘‘denial’’ in the list of appropriate 

actions. 

E. Substitution of Form DS–2019; 

Submitting Copies 

One commenter noted that the 

proposed rule at 8 CFR 103.2(b)(4) refers 

to the obsolete Form IAP–66, and 

suggesting the reference be updated to 

the DS–2019 which replaced the IAP–

66. This correction has been 

incorporated in the final rule. 

The same commenter also requested 

that applicants be permitted to submit a 

copy of DS–2019 rather than the 

original, and suggested clarification 

with respect to when originals must be 

filed. The final rule clarifies that 

although copies of other documents may 

be submitted, those designed or 

produced for the purpose of evidence 

with a USCIS application, such as the 

DS–2019, must be submitted in the 

original. 

As a general rule, applicants and 

petitioners should be allowed to keep 

originals unless the originals are 

required by regulation to be submitted. 

If there is reason to question the 

authenticity of the original document 

for which a photocopy has been 

submitted, USCIS may then request the 

original document. In cases where an 

applicant or a petitioner submits 

original documents when not required, 

due to the cost involved in returning 


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such documents as a matter of course, 

USCIS will retain the documents and 

make them part of the record. In such 

cases, applicants or petitioners who 

wish to have their original documents 

returned to them may submit a written 

request to the office that originally 

requested the records. 

F. Application of the Rule 

USCIS’ ability to issue shorter RFE 

and NOID response times will apply to 

any RFE or NOID issued on or after the 

effective date of this rule even if the 

application or petition was filed before 

the effective date of this regulation. 

USCIS’ discretion to deny cases for lack 

of required initial evidence without first 

issuing an RFE, however, will only 

extend to petitions and applications that 

are filed on or after the effective date of 

this regulation. 

G. Use of the Term ‘‘Biometrics 

Capture’’

USCIS received no comments 

concerning the use of the term 

‘‘biometrics capture,’’ rather than 

‘‘fingerprinting’’ in section 

103.2(b)(13)(ii) of the proposed rule. 

USCIS believes, however, that an 

explanation of why that term has been 

adopted in the final would be beneficial 

to the public. While the term, 

‘‘biometrics capture’’ includes 

fingerprints, it is in fact meant to be a 

more inclusive term. Biometrics capture 

can include such things as the capture 

of a digital photograph or a digital 

signature. As technology evolves and 

data collection requirements change, 

USCIS may change the biometrics 

information it collects or the methods 

used for such collection. Any changes 

made to the capture of biometrics will 

be reflected in the instructions of the 

affected form type and/or request for 

appearance for biometrics capture. 

H. Technical Correction to the Final 

Rule 

Amendment 3.a. of the proposed rule 

revised the terms ‘‘the Service’’ or 

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

they appeared in certain subparagraphs 

of section 103.2. On May 23, 2006, 

USCIS published an interim final rule in 

the Federal Register which, among 

other things, changed any reference to 

‘‘the Service’’ to read ‘‘USCIS’’ in 

section 103.2.(f)(2). 71 FR 29571. 

Accordingly, the proposed revision to 

section 103.2(f)(2) is no longer necessary 

and has been withdrawn from the final 

rule. 

III. Regulatory Requirements 

A. 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 

United States 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 on the entities. 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 that these changes ultimately 

will benefit affected small businesses, 

namely because the reduction in 

adjudication timeframes will allow 

United States employers to receive the 

benefit sought at an earlier date (i.e. the 

ability to hire temporary or permanent 

foreign employees). 

B. 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. 

C. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by 5 U.S.C. 804. 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. 

D. Executive Order 12866 

DHS considers this rule to be a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review. 

Accordingly, it was submitted to the 

Office of Management and Budget for 

review. 

DHS has assessed both the costs and 

the benefits associated with this final 

rule. There are minimal costs to USCIS 

associated with instructing adjudicators 

about the options for dealing with 

deficient applications and petitions. 

Instructions may take the form of policy 

memoranda, amendments to the 

Adjudicator’s Field Manual, or local 

office training modules. USCIS 

estimates that any costs will be absorbed 

in the current program general expenses 

that cover issuing instructions and 

training. 

There are a number of 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, thereby reducing the pending 

backlog of cases. The public will receive 

fewer and more specific RFE or NOID 

notices, and will benefit from more 

timely approval of applications and 

petitions. 

The cost to the public is minimal. 

Currently, if an RFE or NOID is issued, 

the applicant incurs the cost of burden 

hours to comply with the RFE and the 

cost of resubmitting the response. The 

procedure remains generally the same, 

though the processing flow and decision 

points have changed to improve overall 

adjudication efficiency. 

E. Executive Order 13132 (Federalism) 

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. 

F. 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. 

G. 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. 


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Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19105 

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; 

■ 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); 

■ m. Removing and reserving 

paragraphs (c) and (d); 

■ n. Revising paragraph (f)(1). 

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. 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 DS 2019, 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 or 

by the former Immigration and 

Naturalization Service 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. Applicants and 

petitioners need only submit those 

original documents necessary to support 

the benefit sought. However, original 

documents submitted when not 

required will remain a part of the 

record. 

(5) Request for an original document. 

USCIS may, at any time, request 

submission of an original document for 

review. The request will set a deadline 

for submission of the original document. 

Failure to submit the requested original 

document 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 applicant upon completion of the 

adjudication. If USCIS does not return 

an original document within a 

reasonable time after completion of the 

adjudication, the petitioner or applicant 

may request return of the original 

document by submitting a properly 

completed and signed Form G–884 to 

the adjudicating USCIS office. 

* * * * * 

(8) Request for Evidence; Notice of 

Intent to Deny—(i) Evidence of 

eligibility or ineligibility. If 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 evidence of 

record establishes both eligibility and 

that the petitioner or applicant warrants 

a favorable exercise of discretion. If the 

record evidence establishes ineligibility, 

the application or petition will be 

denied on that basis. 

(ii) Initial evidence. If all required 

initial evidence is not submitted with 

the application or petition or does not 

demonstrate eligibility, USCIS in its 

discretion may deny the application or 

petition for lack of initial evidence or 

for ineligibility or request that the 

missing initial evidence be submitted 

within a specified period of time as 

determined by USCIS. 

(iii) Other evidence. If all required 

initial evidence has been submitted but 

the evidence submitted does not 

establish eligibility, USCIS may: deny 

the application or petition for 

ineligibility; request more information 

or evidence from the applicant or 

petitioner, to be submitted 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 the basis for 

the proposed denial, and require that 

the applicant or petitioner submit a 

response within a specified period of 

time as determined by USCIS. 

(iv) Process. A request for evidence or 

notice of intent to deny will be in 

writing and will specify the type of 

evidence required, and whether initial 

evidence or additional evidence is 

required, or the bases for the proposed 

denial sufficient to give the applicant or 

petitioner adequate notice and sufficient 

information to respond. The request for 

evidence or notice of intent to deny will 

indicate the deadline for response, but 

in no case shall the maximum response 

period provided in a request for 

evidence exceed twelve weeks, nor shall 

the maximum response time provided 

in a notice of intent to deny exceed 

thirty days. Additional time to respond 


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19106 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

to a request for evidence or notice of 

intent to deny may not be granted. 

* * * * * 

(11) Responding to a request for 

evidence or notice of intent to deny. In 

response to a request for evidence or a 

notice of intent to deny, and within the 

period afforded for a response, the 

applicant or petitioner may: submit a 

complete response containing all 

requested information at any time 

within the period afforded; submit a 

partial response and ask for a decision 

based on the record; or withdraw the 

application or petition. All requested 

materials must 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. 

* * * * * 

(13) Effect of failure to respond to a 

request for evidence or a notice of intent 

to deny or to appear for interview or 

biometrics capture—(i) Failure to 

submit evidence or respond to a notice 

of intent to deny. If the petitioner or 

applicant fails to respond to a request 

for evidence or to a notice of intent to 

deny by the required date, the 

application or petition may be 

summarily denied as abandoned, denied 

based on the record, or denied for both 

reasons. If other requested material 

necessary to the processing and 

approval of a case, such as photographs, 

are not submitted by the required date, 

the application may be summarily 

denied as abandoned. 

(ii) Failure to appear for biometrics 

capture, interview or other required inperson process. Except as provided in 8 

CFR 335.6, if USCIS requires an 

individual to appear for biometrics 

capture, an interview, or other required 

in-person process but the person does 

not appear, the application or petition 

shall be considered abandoned and 

denied unless by the appointment time 

USCIS has received a change of address 

or rescheduling request that the agency 

concludes warrants excusing the failure 

to appear. 

* * * * * 

(17) Verifying claimed 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 (Forms 

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 

electronically verify 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. 

* * * * * 

(c) Reserved. 

(d) Reserved. 

* * * * * 

(f) Requests for Premium Processing 

Service—(1) Filing information. A 

petitioner or applicant requesting 

Premium Processing Service shall 

submit Form I–907 with the appropriate 

fee to the Director of the service center 

having jurisdiction over the application 

or petition. Premium Processing Service 

guarantees 15 calendar day processing 

of certain employment-based petitions 

and applications. The 15 calendar day 

processing period begins when USCIS 

receives Form I–907, with the fee, at the 

designated address contained in the 

instructions to the form. USCIS will 

refund the fee for Premium Processing 

Service, but continue to process the 

case, unless within 15 calendar days of 

receiving the application or petition and 

Form I–907, USCIS issues and serves on 

the petitioner or applicant an approval 

notice, a denial notice, a notice of intent 

to deny, a request for evidence, or opens 

an investigation relating to the 

application or petition for fraud or 

misrepresentation. 

* * * * * 

§ 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: 

■ i. Paragraph (a)(7)(i), in the first 

sentence and the first time it appears in 

the last sentence; 

■ ii. Paragraph (b)(2)(ii), in the last 

sentence; 

■ iii. Paragraph (b)(2)(iii); 

■ iv. Paragraph (b)(3); 

■ v. Paragraph (b)(6); 

■ vi. Paragraph (b)(7); 

■ vii. Paragraph (b)(9), in the 

introductory text; 

■ viii. Paragraph (b)(10); 

■ ix. Paragraph (d)(2); 

■ x. Paragraph (e)(1); 

■ xi. Paragraph (e)(2); 

■ xii. Paragraph (e)(3), in the 

introductory text; 

■ xiii. Paragraph (e)(3)(iii); 

■ xiv. Paragraph (e)(4)(i); 

■ xv. Paragraph (e)(4)(iii), in the 

introductory text; 

■ xvi. Paragraph (e)(4)(iii)(C); 

■ xvii. Paragraph (e)(4)(iv), in the 

second sentence; 

■ xviii. Paragraph (f)(3), the first and last 

time the term appears in the last 

sentence; 

■ xix. Paragraph (f)(4), the first time the 

term appears in the first sentence; 

■ xx. Paragraph (f)(4), the first time the 

term appears in the second sentence; 

and 

■ xxi. Paragraph (f)(4), in the third 

sentence. 

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

read ‘‘USCIS’ ’’ in the following 

paragraphs: 

■ i. Paragraph (b)(15); 

■ ii. Paragraph (e)(3)(iii); and 

■ iii. 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). 


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Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19107 

§ 204.2 [Amended] 

■ 6. Section 204.2 is amended by: 

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

by redesignating paragraph (c)(3)(iii) as 

(c)(3)(ii); 

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

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

(h)(10)(ii); 

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

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

redesignating paragraphs (l)(8)(ii) and 

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

respectively; 

■ d. Revising paragraph (o)(7); and 

■ 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. 

* * * * * 

■ 9. 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) for 

requesting additional evidence, issuing 

a notice of intent to deny, or 

adjudicating the case on the merits. 

* * * * * 

■ 10. Section 214.15 is amended by 

revising paragraph (d) to read as 

follows: 

§ 214.15 Certain spouses and children of 

lawful permanent residents. 

* * * * * 

(d) The definition of ‘‘pending 

petition.’’ For purposes of this section, 

a pending petition is defined as a 

petition to accord a status under section 

203(a)(2)(A) of the Act that was filed 

with USCIS under section 204 of the Act 

on or before December 21, 2000, and has 

not been adjudicated. 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), the petitioner must 

comply with the request within the time 

period set by USCIS. If USCIS denies a 

petition but the petitioner appeals that 

decision, the petition will be considered 

pending until the administrative appeal 

is decided by USCIS. A petition rejected 

by USCIS as not properly filed is not 

considered to be pending. 

* * * * * 

PART 245—ADJUSTMENT OF STATUS 

TO THAT OF PERSON ADMITTED FOR 

PERMANENT RESIDENCE 

■ 11. 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. 

■ 12. Section 245.18 is amended by 

revising paragraph (i) to read as follows: 

§ 245.18 How can physicians with 

approved Forms I–140 that are serving in 

medically underserved areas or at a 

Veterans Affairs facility adjust status? 

* * * * * 

(i) What if the physician does not 

comply with the requirements of 

paragraphs (f) and (g) of this section? If 

an alien physician does not submit (in 

accordance with paragraphs (f) and (g) 

of this section) proof that he or she has 

completed the service required under 8 

CFR 204.12(a), USCIS shall serve the 

alien physician with a written notice of 

intent to deny the alien physician’s 

application for adjustment of status and, 

after the denial is finalized, to revoke 

approval of the Form I–140 and national 

interest waiver. The written notice shall 

require the alien physician to provide 

the evidence required by paragraph (f) 

or (g) of this section. If the alien 

physician fails to submit the evidence 

within the allotted time, USCIS shall 

deny the alien physician’s application 

for adjustment of status and shall revoke 

approval of the Form I–140 and of the 

national interest waiver. 

* * * * * 

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 

■ 13. The authority citation for part 

245a continues to read as follows: 

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

1255a note. 

■ 14. 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) therefore. 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 the required fee specified in 8 CFR 

103.7(b)(1). Renewal of employment 

authorization issued pursuant to 8 CFR 

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] 

■ 15. Section 245a.33 is amended by 

removing the second sentence of 

paragraph (b). 

Dated: March 27, 2007. 

Michael Chertoff, 

Secretary. 

[FR Doc. E7–7228 Filed 4–16–07; 8:45 am] 

BILLING CODE 4410–10–P 


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