[Federal Register Volume 62, Number 205 (Thursday, October 23, 1997)]
[Rules and Regulations]
[Pages 55152-55154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28147]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[EOIR No. 119 I; A.G. ORDER No. 2120-97]
RIN 1125-AA20


Executive Office for Immigration Review; Adjustment of Status to 
That of Person Admitted for Permanent Residence

AGENCY: Executive Office for Immigration Review, Immigration and 
Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule amends the date by which aliens must file 
and pay for their applications for adjustment of status pursuant to 
section 245(i) of the Immigration and Nationality act. Such 
applications are adjudicated by the Executive Office for Immigration 
Review, including the Board of Immigration Appeals and the Immigration 
Courts, or the Immigration and Naturalization Service. This rule also 
clarifies the procedure for paying for such adjustment applications 
when filed in conjunction with motions to reopen or reconsider.

DATES: Effective Date: This rule is effective October 23, 1997.
    Comment Date: Written comments must be received on or before 
December 22, 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,

[[Page 55153]]

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 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 reiterated 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. However, timely filed 
applications may still be adjudicated after September 30, 1997. On 
September 30, 1997, the Executive Office for Immigration Review 
published a similar rule (62 FR 50999) that enabled the Executive 
Office for Immigration Review to complete adjudication of timely filed 
section 245(i) adjustment applications after September 30, 1997.
    This program was due to terminate on October 1, 1997. However, on 
September 30, 1997, Congress extended the program until October 23, 
1997. This interim rule reflects that applications filed subsequent to 
October 1, 1994, and prior to October 23, 1997 or any other such date 
as Congress may determine in an extension of section 245(i) of the Act, 
will be adjudicated to completion by an officer of the service or EOIR.
    This interim rule makes it clear that the Service and EOIR may 
consider a motion to reopen or reconsider an application for adjustment 
of status on the basis of section 245(i) of the Act if the applicant 
submitted a copy of the application for adjustment of status, a copy of 
Supplement A to Form I-485, and any other required documentation on or 
after October 1, 1994, and before October 23, 1997, or any other such 
date as Congress may determine in an extension of section 245(i) of the 
Act. However, in order to receive the benefit of a motion to reopen or 
reconsider that has been granted, the applicant must have remitted to 
the Immigration and Naturalization Service any additional sum required 
by section 245(i) (the additional sum is currently $1,000) before 
October 23, 1997, or any other such date as Congress may determine in 
an extension of this provision. This procedure is different from the 
procedures previously in effect for filing motions to reopen or 
reconsider with EOIR and which continue to apply to all other motions 
filed with EOIR. Those individuals who have properly filed motions to 
reopen or reconsider in order to apply for adjustment of status under 
section 245(i) but who have not yet paid the required fee, or those 
individuals whose motions have been granted in the past but who have 
not yet paid the required fee, must now pay that fee with the 
Immigration and Naturalization Service before October 23, 1997 or any 
other such date as Congress may determine in an extension of this 
provision.
    The implementation of this rule as an interim rule, with immediate 
effect, and with provisions for post-promulgation public comment, is 
based upon the ``good cause'' exceptions found at 5 U.S.C. 553b (B) and 
(d)(3). Immediate implementation of this rule will ensure that all 
applicants for adjustment of status under section 245(i) are aware of 
the extended application period and the revised procedures for paying 
the application fee when submitting a motion to reopen or reconsider.

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 $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 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, Civil Justice Reform

    The 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, part 245 of 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, 1182, 1255; 8 CFR part 2.

    2. In Sec. 245.10, paragraphs (c), (d), and (f) are revised to read 
as set forth below:
    3. In Sec. 245.10, paragraph (e) is amended in the last sentence by 
removing the reference to ``October 1, 1997'' and replacing it with 
``October 23, 1997 or any other such date as Congress may determine in 
an extension of section 245(i)''.


Sec. 245.10  Adjustment of status upon payment of additional sum under 
Public Law 103-317.

* * * * *
    (c) Application period. The Service or 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 on or after October 1, 1994, and before October 23, 1997 or any 
other such date as Congress may determine in an extension of section 
245(i). If an alien attempts to file an adjustment of status 
application under the provisions of section 245(i) outside

[[Page 55154]]

of this time period, 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.
    (d) Adjustment application filed on or after October 1, 1994, dated 
before October 23, 1997 or any other such date as Congress may 
determine in an extension of this provision, without Supplement A to 
Form I-485 and additional sum. An adjustment of status applicant will 
be allowed the opportunity to amend an adjustment of status application 
filed in accordance with Sec. 103.2 of this chapter on or after October 
1, 1994, and before October 23, 1997 or any other such date as Congress 
may determine in an extension of section 245(i) of the Act, in order to 
request consideration under the provisions of section 245(i), if it 
appears that the alien is not otherwise ineligible for adjustment of 
status. If the application for adjustment of status is pending before 
the Service, the Service shall notify the applicant in writing of the 
Service's intent to deny the adjustment of status application, and any 
other requests for benefits that derive from the adjustment 
application, unless Supplement A to Form I-485 and any required 
additional sum is filed within 30 days of the date of the notice. If 
the application for adjustment of status is pending before the 
Executive Office for Immigration Review, the Executive Office for 
Immigration Review will deny the application and permit the applicant 
to file a motion to reopen in accordance with Secs. 3.2(c) and 3.23 of 
this chapter along with proof of payment to the Immigration and 
Naturalization Service of the additional sum within 30 days of the 
denial.
* * * * *
    (f) Completion of processing of pending applications. (1) An 
application for adjustment of status filed on or after October 1, 1994, 
and before October 23, 1997 or any other such date as Congress may 
determine in an extension of section 245(i) of the Act, 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 the termination of this program. 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 open 
or reconsider an application for adjustment of status on the basis of 
section 245(i) if the applicant submitted a copy of the application for 
adjustment of status, a copy of Supplement A to Form I-485, and any 
other required documentation on or after October 1, 1994, and before 
October 23, 1997 or any other such date as Congress may determine in an 
extension of section 245(i). However, in order to receive the benefit 
of a motion to reopen or reconsider that has been granted, the 
applicant must have remitted to the Immigration and Naturalization 
Service before October 23, 1997 or any other such date as Congress may 
determine in an extension of section 245(i), any additional sum 
required by section 245(i). Even if a motion to reopen or reconsider is 
granted, failure to pay the additional sum to the Immigration and 
Naturalization Service before October 23, 1997 or any other such date 
as Congress may determine in an extension of 245(i) will result in the 
ultimate denial of the application for adjustment of status.
    (2) Any application for adjustment of status submitted pursuant to 
section 245(i) and considered in deportation or removal proceedings 
must be filed between October 1, 1994, and October 23, 1997 or any 
other such date as Congress may determine in an extension of section 
245(i).
* * * * *
    Dated: October 18, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-28147 Filed 10-20-97; 4:16 pm]
BILLING CODE 4410-10-M