[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Rules and Regulations]
[Pages 50999-51001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25931]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 245

[EOIR No. 119I; A.G. ORDER No. 2117-97]
RIN 1125-AA20


Adjustment of Status to That of Person Admitted for Permanent 
Residence

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule enables the Executive Office for Immigration 
Review to complete adjudication of timely filed section 245(i) 
adjustment applications after September 30, 1997.

Dates: Effective Date: This rule is effective September 30, 1997. 
Comment Date: Written comments must be received on or before December 
1, 1997.

ADDRESSES: Please submit written comments to Margaret M. Philbin, 
General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2400, Falls Church, Virginia, 22041.

FOR FURTHER INFORMATION CONTACT:
Margaret M. Philbin, General Counsel, Executive Office for Immigration 
Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041, 
telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION: On August 26, 1994, Congress enacted the 
Department of Commerce, Justice, State, and the Judiciary and Related 
Agencies Appropriations Act of 1995, Pub. L. 103-317. Section 506(b) of 
this law added a new section 245(i) to the Immigration and Nationality 
Act (the Act) which allows certain persons already in the United States 
to adjust

[[Page 51000]]

status, despite the provisions of section 245 (a) and (c) of the Act, 
upon payment of a fee in addition to the base filing fee for an 
adjustment of status application.
    On July 23, 1997, the Immigration and Naturalization Service 
(Service) published an interim rule with request for comments (62 FR 
39417) concerning adjustment of status applications filed pursuant to 
section 245(i) of the Act. The supplementary information to the interim 
rule reiterates that the provisions of section 245(i) apply only to 
applications filed on or after October 1, 1994, and before October 1, 
1997. See section 506(c) of Pub. L. 103-317. By law, benefits may not 
be granted pursuant to section 245(i) of the Act to aliens who attempt 
to file anew application for adjustment of status under that subsection 
after September 30, 1997. All applications for adjustment of status 
filed pursuant to section 245 of the Act which are submitted after 
September 30, 1997, must be adjudicated pursuant to section 245(a) of 
the Act.
    This interim rule is published in order that all applications for 
adjustment of status filed pursuant to section 245(i) be adjudicated in 
a consistent manner. Since applications for adjustment of status may be 
adjudicated by either the Service or the Executive Office for 
Immigration Review (EOIR) (which includes the Immigration Courts and 
the Board of Immigration Appeals), this interim rule enables the 
Executive Office for Immigration Review to complete adjudication of 
timely filed section 245(i) adjustment applications after September 30, 
1997, and makes it clear that neither the Service nor EOIR may approve 
an application for adjustment of status pursuant to section 245(i) of 
the Act if such application was filed either before October 1, 1994, or 
after September 30, 1997. However, both the Service and EOIR may 
complete adjudication of timely filed section 245(i) adjustment 
applications after September 30, 1997.
    The implementation of this rule as an interim rule, with provisions 
for post-promulgation public comment, is based upon the ``good cause'' 
exceptions found at 5 U.S.C. 553 (b)(B) and (d)(3). The reasons and the 
necessity for immediate implementation of this interim rule without 
prior notice and comment are as follows: Immediate implementation of 
this rule will ensure that all applications for adjustment of status 
filed pursuant to section 245(i) are adjudicated in the same manner and 
will avoid any delay in the processing of these applications.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule affects only those aliens who are applying to adjust 
their status under section 245(i) of the Immigration and Nationality 
Act. Therefore, this rule does not have a significant economic impact 
on a substantial number of small entities.

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 $110 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    The Attorney General has determined that this rule is not a 
significant regulatory action under Executive Order No. 12866, and 
accordingly this rule has not been reviewed by the Office of Management 
and Budget.

Executive Order 12612

    This rule has no federalism implications warranting the preparation 
of a Federalism Assessment in accordance with Executive Order No. 
12612.

Executive Order 12988

    This rule meets the applicable standards provided in sections 3(a) 
and 3(b)(2) of Executive Order No. 12988.

List of Subjects in 8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

    1. The authority citation for part 245 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1103, 1182, 1255; 8 CFR part 2.


Sec. 245.10  [Amended]

    2. In Sec. 245.10 paragraphs (c) and (f) are revised to read as 
follows:
* * * * *
    (c) Application period. Neither the Service nor the Executive 
Office for Immigration Review may approve an application for adjustment 
of status pursuant to section 245(i) of the Act if such application was 
filed either before October 1, 1994, or after September 30, 1997. If an 
alien attempts to file an adjustment of status application under the 
provisions of section 245(i) after September 30, 1997, the Service will 
accept the application and base filing fee, as set forth in 
Sec. 103.7(b)(1) of this chapter, return the additional sum of $1,000 
to the alien, and either the Service or the Executive Office for 
Immigration Review will adjudicate the application pursuant to section 
245(a) of the Act. If the alien, in such a case, is not eligible for 
adjustment of status, either the Service will issue a written notice 
advising the alien of the denial of the application for adjustment of 
status, or the Executive Office for Immigration Review will deny the 
application for adjustment of status.
* * * * *
    (f) Completion of processing of pending applications. (1) An 
application for adjustment of status filed subsequent to September 30, 
1994, and prior to October 1, 1997, shall be adjudicated to completion 
by an officer of the Service or by the Executive Office for Immigration 
Review, regardless of whether the final decision is made after 
September 30, 1997. The provisions of paragraph (d) of this section 
regarding amended applications shall apply to all such applications. 
The Service or the Executive Office for Immigration Review may consider 
a motion to reopen or reconsider an application for adjustment of 
status on the basis of section 245(i) of the Act only if:
    (i) The application for adjustment of status was filed on or after 
October 1, 1994, and before October 1, 1997, and
    (ii) Prior to October 1, 1997, the applicant submitted Supplement A 
to Form I-485, any additional sum required by section 245(i), and any 
other required documentation.
    (2) Any application for adjustment of status submitted pursuant to 
section 245(i) and considered in deportation or

[[Page 51001]]

removal proceedings must be filed between October 1, 1994, and October 
1, 1997.
* * * * *
    Dated: September 24, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-25931 Filed 9-29-97; 8:45 am]
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