This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

63249

Vol. 62, No. 229

Friday, November 28, 1997

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[INS No. 1607–93]

RIN 1115–AD33

Adjustment of Status; Certain

Nationals of the People’s Republic of

China

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This rule adopts, with one

change, an interim rule published in the

Federal Register on July 1, 1993, by the

Immigration and Naturalization Service

(Service), which implemented the

Chinese Student Protection Act of 1992

(CSPA). Although the Service no longer

accepts applications from CSPA

principals, this rule finalizes the

procedures by which the spouses and

children of CSPA beneficiaries who

have been temporarily residing in the

United States may become lawful

permanent residents of this country. It

also removes the procedures for granting

voluntary departure for certain

dependents pursuant to recent

legislative changes.

EFFECTIVE DATE: December 29, 1997.

FOR FURTHER INFORMATION CONTACT:

Pearl B Chang, Chief, Residence and

Status Services Branch, Office of

Adjudications, Immigration and

Naturalization Service, 425 I Street,

NW., Room 3214, Washington, DC

20536, Telephone (202) 514–5014.

SUPPLEMENTARY INFORMATION:

Background

Executive Order 12711 of April 11,

1990, provided temporary protection for

certain nationals of the People’s

Republic of China (PRC) and their

dependents who were in the United

States on or after June 5, 1989, up to and

including the date of Executive Order

12711. It permitted temporary deferral

of enforcement of their departure from

the United States and conferred

eligibility for certain other benefits

through January 1, 1994.

The CSPA, Public Law 102–404,

dated October 9, 1992, was enacted to

regularize the status of, and extended

permanent protections to, most of the

PRC nationals and their dependents

who were covered by Executive Order

12711. It provides these persons with

the opportunity to become lawful

permanent residents through adjustment

of status under section 245 of the

Immigration and Nationality Act (Act),

a procedure whereby persons in the

United States in temporary immigration

status may convert to lawful permanent

resident status. Section 245 of the Act

requires most persons seeking to adjust

status to show that they meet strict

eligibility requirements; however, the

CSPA allows many of these

requirements to be waived for eligible

CSPA applicants. If the Service denies

an application for adjustment of status

under the CSPA, the applicant, if not an

arriving alien, may renew his or her

application in proceedings under 8 CFR

part 240. See 8 CFR 245.2(a)(5)(ii). The

CSPA application period lasted from

July 1, 1993, until June 30, 1994.

The CSPA does not allow every

person covered by Executive Order

12711 to become a lawful permanent

resident of the United States. A

qualified CSPA applicant must have

initially entered the United States on or

before April 11, 1990, and must

otherwise be a person described in

section 1 of the Executive Order 12711;

must have resided continuously in the

United States since April 11, 1990,

except for brief, casual, and innocent

departures; and may not have spent

more than 90 days in the PRC between

April 11, 1990, and October 9, 1992. A

qualified applicant must also meet the

requirements for adjustment of status

under section 245 of the Act, unless

such requirements have been expressly

waived by, or are waived at the

discretion of, the Attorney General in

accordance with the CSPA.

On July 1, 1993, at 58 FR 35832–

35839, the Service published an interim

rule with request for comments in the

Federal Register. The rule established

procedures for adjustment of status of

persons meeting the requirements of the

CSPA. The interim rule became effective

on July 1, 1993.

All CSPA applications had to be filed

before July 1, 1994. There was no

provision in the CSPA for late filings.

The CSPA program was a success. The

Service was able to promptly adjudicate

the great majority of CSPA applications.

A total of 52,425 applicants were

granted adjustment of status under the

CSPA during fiscal years 1993, 1994,

and 1995. A very small number of CSPA

applications remain pending. The

Service is publishing this final rule to

respond to comments received during

the comment period, to further clarify

the Service’s position on the interim

rule, and to provide for certain

dependents currently in the United

States who are not yet eligible to file for

adjustment of status.

Comments

Interested persons were invited to

submit written comments on or before

August 2, 1993. The Service received

349 properly addressed written

comments during the comment period.

The discussion that follows summarizes

the issues that have been raised relating

to the interim rule and provides the

Service’s position on the issues.

General

The majority of commenters were

pleased with the enactment of the

CSPA. A small number of writers,

however, recommended that the law be

rescinded. Their concerns included the

economic and social consequences of

increased immigration, the CSPA’s

possible encouragement of unlawful

immigration, the delays in

implementation of democratic reforms

in the PRC caused by the permanent

migration of potential supporters, and

the possibility that many CSPA

beneficiaries would not need the

protections offered by this legislation.

Other writers were disturbed by the

likelihood that persons who had not

been actively involved in the

democratic movement in the PRC or

who had been communist party

supporters would be able to obtain

lawful permanent residence under the

CSPA

The Service’s implementing

regulations cannot be used to rescind or

change statutory benefits provided by

the CSPA. The provisions of this rule

minimize the potential for abuse of the
63250 Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations

benefits provided by the CSPA, by

ensuring that only persons who meet

the requirements enacted by Congress

will become lawful permanent

residents. Accordingly, the provisions of

the rule have not been changed because

of these recommendations.

Visa Number Allocation for CSPA

Applicants

Many commenters were concerned

about the interim rule’s requirement

that a CSPA applicant have an

immediately available visa number

under the worldwide third employmentbased skilled worker preference

category prior to approval of his or her

adjustment application. Some writers

urged the service to approve CSPA

adjustments without regard to visa

number availability, stating that any

delay in granting permanent residency

to qualified applicants would be

contrary to the spirit and intent of the

CSPA. Other commenters recommended

that visa numbers for CSPA applicants

be obtained from the refugee category or

from a preference classification other

than the third employment-based

skilled worker category, since

oversubscription by CSPA applicants

could delay the immigration of urgently

needed skilled workers.

Adjustments of status under the third

employment-based skilled worker

preference category are subject to

several numerical limitations under the

Act. The CSPA modifies the application

of two of these restrictions; however, it

does not waive all of the applicable

statutory numerical limitations. The

CSPA allows the Service to ‘‘consider,’’

or accept a CSPA adjustment of status

application for processing, without

regard to whether an immigrant visa

number is immediately available. It also

allows applications to be approved

without regard to the per-country

numerical limitations of section

202(a)(2) of the Act, and provides for a

subsequent gradual deduction of these

numbers from the China per-country

quota. It does not allow such applicants

to be approved without regard to the

worldwide numerical restrictions of

sections 201 and 203 of the Act.

The CSPA clearly requires applicants

to adjust status under the third

employment-based skilled worker

category. Section 2(a)(1) of the CSPA

directs the Service to regard each CSPA

applicant as having been approved for

classification under section

203(b)(3)(A)(i) of the Act as a third

employment-based skilled worker.

A review of the legislative history also

supports the rule’s interpretation of the

CSPA. The House report accompanying

the CSPA clearly shows that CSPA

adjustments of status are intended to be

placed within the worldwide quota of

section 201 of the Act. See H.R. No. 826,

102d Cong., 2d Sess. 5–6 (1992). In the

report, Representative Jack Brooks

states.

[S.] 1216 places the number of Chinese

adjustments within the worldwide annual

quota of section 201 of the Immigration and

Nationality Act and deducts from the PRC’s

per country ceiling each year a portion of the

number of Chinese who adjust under this act.

Because the worldwide quota is not waived,

applicants will be required to await the

availability of a visa number * * *. Id.

In the discussion in the Senate,

managers of the bill also explained that

CSPA adjustments will be counted

against the worldwide quota. See 138

Cong. Rec. S7150 (daily ed. May 21,

1992). During this discussion, Senator

Slade Gorton stated:

* * * A second change involves a provision

to count those persons receiving permanent

residency under new worldwide immigration

levels as established by the Immigration Act

of 1990. Additional provisions also address

the need to count them under China’s per

country ceiling without adversely affecting

ongoing immigration from China. Id. At

S7150.

The Service has minimized any

adverse impact of the CSPA upon the

availability of immigrant visa numbers

for skilled workers. With the assistance

of the Department of State, the Service

was able to significantly streamline

CSPA application processing and

approve more than three-quarters of

CSPA adjustment of status applications

during the final 3 months of fiscal year

1993. These procedural changes allowed

CSPA applicants to use immigrant visa

numbers which would not otherwise

have been utilized by any immigrant,

due to lack of demand.

The interim rule’s provisions

concerning immigrant visa number

limitations reflect statutory

requirements of the CSPA and the Act.

Accordingly, the rule has not been

changed in response to these comments.

Order of Approval and Priority Date

Assignment

A number of comments addressed the

interim rule’s procedure for determining

the order in which adjustments would

be granted to eligible CSPA applicants.

These commenters felt that the date the

application was properly filed with the

Service should not determine the order

of approval and suggested alternative

procedures. Some commenters wanted

the Service to give preference to

applications submitted by students

because they felt that the CSPA was

primarily intended to protect them.

Other suggestions included approving

applications based on the date the

applicant arrived in the United States;

giving priority to applications filed by

heads of families; delaying the

adjustment of Chinese who have the

right to reside in third countries, such

as Hong Kong; and giving priority to

applications submitted by persons who

had not returned to the PRC after their

initial admission to the United States. A

few commenters also wanted to know

how the Service determines whether an

application has been ‘‘properly filed.’’

The CSPA does not address the order

in which qualified CSPA applicants

should be allowed to adjust status. In

the absence of a statutory directive, the

Service elected to follow its standard

practice by assigning each application a

priority data based on the date on which

the properly filed application was

received by the Service, and by using

this priority date to determine the order

in which available visa numbers would

be allocated and adjustments granted to

qualified applicants. The Service has

considered the alternatives suggested by

these commenters; however, their

proposals have not been adopted

because they could not be efficiently

implemented or because their

implementation would unfairly delay

the processing of other employmentbased third preference skilled workers

whose initial applications were filed

before July 1, 1994.

Guidelines for determining when an

application is considered to be properly

filed are contained in the Service’s

regulations at 8 CFR 103.2(a)(7). An

application is not considered properly

filed if the application has not been

properly signed, or unless a fee waiver

has been granted, if the required fee is

not attached.

Accordingly, the provisions of the

rule have not been changed as a result

of these comments.

Date of Arrival in the United States

Some commenters objected to the

interim rule’s requirement that eligible

CSPA applicants must have been in the

United States between June 5, 1989, and

April 11, 1990. They pointed out that

some persons who participated in the

democratic movement may have been

unable to leave the PRC or to enter the

United States before the cut-off date.

This regulatory requirement reflects

one of the three fundamental statutory

requisites for CSPA eligibility. Section

2(b)(1) of the CSPA requires all eligible

applicants to be persons described in

section 1 of Executive Order 12711.

Section 1 of Executive Order 12711

covers only persons who were in the

United States on or after June 5, 1989,

up to and including April 11, 1990.
Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations 63251

There is no provision of the CSPA or

Executive Order 12711 which would

confer CSPA eligibility on persons who

initially arrived in the United States

after April 11, 1990.

Criteria for CSPA coverage were

discussed several times in both the

House and the Senate. The record

contains no indication that Congress

intended the Service to grant CSPA

benefits to persons who are unable to

meet this requirement. In the discussion

on the final version of the bill as it

passed in the House, supporters of the

legislation addressed the fundamental

requirements for CSPA eligibility. See

138 Cong. Rec. H7819–7820 (daily ed.

Aug. 10, 1992). During this discussion,

Congresswoman Nancy Pelosi

explained:

S. 1216 would allow Chinese nationals

who were in the United States during the

Tiananmen Square massacre to apply for

permanent residency in the United States. To

be eligible for permanent residency, the

Chinese national must have first, been in the

United States sometime between June 4, 1989

and April 11, 1990. Id. At H7820.

The Service had previously

determined that a brief, casual, and

innocent departure from the United

States between June 5, 1989, and April

11, 1990, inclusive, would not preclude

an individual from coverage under

section 1 of Executive Order 12711 and

eligibility for Executive Order 12711

benefits. As explained in the

Supplementary Information to the

interim rule, this same interpretation of

the Executive Order 12711 requirements

is applied when determining whether a

CSPA applicant is a person described in

section 1 of Executive Order 12711.

The requirement that an eligible

applicant establish that he or she was in

the United States at some time between

June 5, 1989, and April 11, 1990,

inclusive, or would have been in the

United States during this time period

except for a brief, casual, and innocent

departure from this country, is based

upon clear statutory requirements;

accordingly, it has not been changed.

Physical Presence in the PRC

Many commenters discussed the

prohibition on granting CSPA benefits

to persons who had remained in the

PRC for an aggregate of more than 90

days during the period between April

11, 1990, and October 9, 1992. Most of

these writers recommended that the

restriction be waived if circumstances

beyond the applicant’s control

prevented his or her timely departure

from the PRC, or if the applicant had

obtained an advance parole prior to

departing the United States. Other

commenters felt that the rule should be

modified to prohibit adjustment of

status under the CSPA if the applicant

traveled to the PRC for any reason after

April 10, 1990; if the applicant stayed

in the PRC for more than 30 days during

the restricted period; or if the applicant

stayed in the PRC for more than 90 days

at any time after April 11, 1990. Some

writers felt that the interim rule’s

restriction should be applied only if the

applicant stayed in the PRC for more

than 90 days on any single occasion.

The regulatory restriction on physical

presence in the PRC is based on the

third of the three fundamental statutory

requisites for CSPA eligibility. Section

2(b)(3) of the CSPA states that the CSPA

covers only a person who ‘‘was not

physically present in the People’s

Republic China for longer than 90 days

after such date [April 11, 1990] and

before the date of the enactment of this

Act [October 9, 1992].’’

A review of the legislative history also

supports the rule’s provisions. The

fundamental requirements for CSPA

eligibility were discussed prior to

passage of the final version of the bill by

the House. See 138 Cong. Rec. H7819–

7820 (daily ed. Aug. 10, 1992). During

this discussion, Congresswoman Pelosi

explained that to be eligible for CSPA

benefits the applicant, inter alia, must

have ‘‘not been to China for more than

90 days after April 11, 1990.’’ Id. At

H7820 (emphasis added).

There is no indication in this

discussion that Congress intended the

Service to grant CSPA benefits to any

person unable to meet basic eligibility

requirements, or that the 90-day

limitation should apply only to

applicants who had remained in the

PRC for more than 90 days on any one

occasion.

If eligible, a person who has spent

more than 90 days in the PRC may be

able to request permission to remain in

the United States under another

provision of the Act. For example, a

person who has reason to fear

persecution upon return to his or her

home country and believes that he or

she meets the definition of ‘‘refugee’’

found in section 101(a)(42) of the Act

may be eligible to apply under section

208 of the Act for asylum.

The interim rule’s provisions

concerning physical presence in the

PRC during the restricted period are

based on the statutory requirements of

the CSPA. Accordingly, the final rule

makes no changes to these provisions.

Entry Without Inspection

Some commenters objected to the

interim rule’s requirement that, in order

to be eligible for adjustment of status

under the CSPA, an applicant must

establish that he or she was inspected

and admitted or paroled into the United

States upon his or her last arrival in this

country. A number of writers felt that

entry without inspection should not

preclude adjustment of status under the

CSPA because these persons also

deserved the protections offered by the

CSPA. Others felt that persons who

reentered the United States with an

advance parole after having initially

entered the country without inspection

should not be allowed to adjust status

because they had violated the U.S.

immigration laws.

The CSPA expressly provides for

certain rules that shall apply to an

eligible alien who applies for

adjustment of status under section 245

of the Act. While the CSPA does

provide an exemption from ineligibility

under section 245(c) of the Act, which

generally precludes adjustment if the

applicant has been employed without

authorization; is not in lawful status

when seeking employment-based

immigrant status; had failed to

continuously maintain a lawful

nonimmigrant status or otherwise

violated the terms of a nonimmigrant

visa; or was admitted to the United

States as a crewman, in transit without

visa status, in S visa status, or under the

visa waiver programs of sections 212(l)

or 217 of the Act, it does not exempt

applicants from compliance with the

requirements of section 245(a) of the Act

that they be inspected and admitted or

paroled into the United States. Since the

CSPA specifically requires applicants to

apply under section 245 of the Act;

expressly waives a portion of the

requirements for adjustment under

section 245 of the Act (section 245(c) of

the Act); and makes no mention of

waiving the other requirements of

section 245, the Service has determined

that CSPA applicants must comply with

the requirements of section 245(a) of the

Act. To date, several courts have

concurred with the Service’s

interpretation.

While the Service cannot waive the

requirements of section 245(a) of the Act

for CSPA applicants, it also cannot

impose additional restrictions beyond

those required by the statute. A person

who was paroled into the United States

upon his or her last arrival meets the

requirements of section 245(a) of the Act

regardless of whether he or she had

previously entered this country in

violation of the immigration laws.

The Service wishes to point out that

the Supplementary Information to the

interim rule contains a typographical

error, which may have confused some

readers. The sentence reading: ‘‘The

CSPA also allows eligible applicants to
63252 Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations

adjust status without regard to the

provisions of section 245(a) of the Act.’’

should have read: ‘‘The CSPA allows

eligible applicants to adjust status

without regard to the provisions of

section 245(c) of the Act.’’ See 58 FR

35835 (1993). The following paragraph

and the interim rule’s regulatory

language correctly state that the

requirements of section 245(a) of the Act

have not been waived. The Service

regrets any confusion caused by this

typographical error, which does not

necessitate any changes to the final rule.

The Service received a number of

inquiries after the end of the comment

period concerning the effect of a

recently enacted law on eligibility under

the CSPA. Specifically, section 245(i) of

the Act allows otherwise qualified

persons who entered the United States

without having been inspected and

admitted or paroled to be granted

adjustment of status upon payment of

an additional sum of $1000. This

provision became effective on October

1, 1994, 3 months after the close of the

CSPA application period. It is due to

sunset on October 23, 1997. Since the

new law applies only to applications

filed after October 1, 1994, (see 8 CFR

245.10(e)) it has no effect on CSPA

adjustment-of-status applications.

Accordingly, the interim rule’s

requirement that an eligible CSPA

applicant show that he or she entered

the United States following an

inspection and admission or parole has

not been changed.

Ineligibility Under Section 245(d) of the

Act

A small number of commenters felt

that otherwise-eligible applicants

should be allowed to adjust status under

the CSPA without regard to the

provisions of section 245(d) of the Act,

or requested further clarification

concerning this provision.

Section 245(d) of the Act prohibits the

approval of an adjustment-of-status

application filed under section 245 of

the Act if the applicant is a person

lawfully admitted to the United States

on a conditional basis under section 216

of the Act based on a recent marriage to

a citizen or lawful permanent resident

of the United States. It also prohibits the

approval of an adjustment-of-status

application filed under section 245 of

the Act if the applicant last entered the

United States in K–1 or K–2

nonimmigrant status as a fiance ́(e) of a

U.S. citizen or as the child of a K–1

nonimmigrant fiance ́(e). By regulation,

the Service had created an exception

only in cases where the adjustment

application is based on the marriage to

the U.S. citizen who filed the fiance ́(e)

petition (See 8 CFR 245.1(c)(6)). Since

CSPA adjustment-of-status applications

are filed under section 245 of the Act

and the CSPA does not waive this

restriction, the Service must deny a

CSPA adjustment-of-status application

if the adjustment is prohibited under

section 245(d) of the Act. The

prohibition on adjustment of status does

not apply to a person whose conditional

residency under section 216 of the Act

has been terminated. See Matter of

Stockwell, 20 I & N Dec. 309 (BIA 1991).

Accordingly, no changes have been

made as a result of these comments.

Waivers of Inadmissibility

Several commenters asked the Service

to modify the interim rule’s provisions

concerning inadmissibility under

section 212(a) of the Act. Some

commenters were concerned that the

elderly or persons first entering the

labor market would be unable to meet

public charge requirements and asked

that a blanket waiver be provided. Other

writers felt that inadmissibility for

health reasons was unfair and asked the

Service to automatically waive that

basis for inadmissibility. A few

commenters asked the Service to

include stronger statements concerning

ineligibility based on current or former

communist party membership and not

to waive inadmissibility on this basis

unless the applicant has provided

evidence that his or her membership has

been terminated.

The CSPA provides two blanket

waivers of inadmissibility under section

212(a) of the Act. It automatically

waives inadmissibility under section

212(a)(5) of the Act because the

applicant did not obtain a labor

certification or failed to meet certain

requirements applicable to foreigntrained physicians. It also provides a

blanket waiver of the provisions of

section 212(a)(7)(A) of the Act relating

to documentary requirements for entry

as an immigrant. The CSPA also allows

most other grounds of inadmissibility

under section 212(a) of the Act to be

individually waived at the discretion of

the Attorney General for purposes of

ensuring family unity or if approval of

the waiver is otherwise in the public

interest. Both health-related and public

charge inadmissibility may be waived

for these reasons at the discretion of the

Attorney General. There is, however, no

statutory foundation for providing a

blanket waiver of inadmissibility on this

basis, nor does such a blanket waiver

appear to be necessary. Inadmissibility

based on communist party membership

may also be individually waived at the

discretion of the Attorney General for

purposes of ensuring family unity, if

approval of a waiver is otherwise in the

public interest, or if the applicant

qualifies for any of the waivers provided

in section 212(a)(3)(D) of the Act. The

Service will, of course, deny an

adjustment-of-status application filed by

any person who is a current or former

communist party member who does not

qualify for a waiver. An applicant who

has terminated communist party

membership is encouraged to provide

evidence of the termination with his or

her application.

Accordingly, the interim rule’s

provisions relating to inadmissibility

under section 212(a) of the Act have not

been changed.

Dual Nationality

A few commenters discussed whether

persons who are nationals of both the

PRC and a second country should be

allowed to adjust status under the

CSPA. One commenter felt that dual

nationals should not be allowed to

adjust status under the CSPA, while

another writer felt that a CSPA

applicant should not be bound by the

country of nationality claimed or

established at the time of entry for the

duration of his or her stay in the United

States. A third commenter wanted

clarification of dual nationality as it

applies to persons bearing Hong Kong

travel documents.

Although the Service explained its

position concerning dual nationality in

the Supplementary Information to the

interim rule, the interim rule’s

regulatory language merely requires

CSPA principal applicants to be

nationals of the PRC. As explained in

the Supplementary Information, the

Service would not necessarily preclude

a person who is a dual national of the

PRC and one or more other countries

from satisfying the PRC nationality

requirement under the CSPA. The

Service has held for other purposes,

however, that a person is bound by the

nationality claimed at the time of entry

into the United States for the duration

of his or her stay and sees no reason to

alter this practice for purposes of the

CSPA. Accordingly, no changes have

been made as a result of these

comments.

Late Arriving Dependents

Most commenters discussed the

benefits provided to family members in

the United States who are unable to

qualify for CSPA adjustment of status

because they arrived in the United

States after April 11, 1990. Many writers

felt that these late arriving dependents

(LADs) should be allowed to adjust

status under the CSPA or should be

granted benefits similar to those
Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations 63253

provided to qualified CSPA principals.

They suggested that LADs be granted

benefits such as: A waiver of percountry quota limitations; a waiver of

the 2-year home-country residency

requirement of section 212(e) of the Act;

a waiver of the requirements of section

245(c) of the Act; placement under the

second family-sponsored preference

category; and establishment of a family

unity program similar to that provided

for the spouses and children of persons

who adjusted status under the

Immigration Reform and Control Act of

1986, Public Law 99–603. Some

commenters objected to the rumored

inclusion of LADs in the second

employment-based preference category.

Other writers asked that LADs be

granted liberal approval of advance

parole requests and employment

authorization; excused from presenting

birth and marriage certificates with an

adjustment-of-status application;

allowed to file adjustment-of-status

applications at the Service Centers;

permitted to apply for adjustment of

status before the principal’s CSPA

adjustment application is approved;

granted adjustment if the principal

could have adjusted under the CSPA but

chose to utilize another classification;

and allowed to adjust status or to apply

for immigrant visas in a third country,

rather than being forced to return to the

PRC.

As discussed in the Supplementary

Information to the interim rule, the

CSPA requires eligible applicants to

meet three basic eligibility

requirements. He or she: (1) Must have

initially entered the United States on or

before April 11, 1990, and must

otherwise be a person described in

section 1 of Executive Order 12711; (2)

must have resided continuously in the

United States since April 11, 1990,

except for brief, casual, and innocent

departures; and (3) may not have spent

more than 90 days in the PRC between

April 11, 1990, and October 9, 1992.

Persons who do not meet these

requirements cannot adjust status under

the CSPA or be granted CSPA benefits.

The CSPA also provides no authority to

waive any of the statutory requirements

of the Act for persons who do not meet

the eligibility requirements for CSPA

adjustment of status. Section 203(d) of

the Act, however, allows a spouse or

child who is not otherwise entitled to an

immigrant status and the immediate

issuance of an immigrant visa to be

eligible for the same preference

immigrant classification and priority

date if the relationship existed at the

time the principal became a lawful

permanent resident. A LAD who is the

spouse or child of a CSPA principal

may, therefore, use the principal’s CSPA

priority date under the third

employment-based preference

classification and seek immigrant visa

issuance or adjustment of status when

the priority date becomes current. LADs

who were unable to maintain lawful

nonimmigrant status have been allowed

to remain in the United States in

voluntary departure status pending the

availability of the appropriate visa

numbers.

The ability of the Attorney General to

grant voluntary departure has been

limited by the enactment of 240B of the

Act which took effect on April 1, 1997.

Section 240B of the Act limited the

grant of voluntary departure in lieu of

removal proceedings or before the

conclusion thereof, to a period not to

exceed 120 days including extensions. If

such relief was granted at the

conclusion of removal proceedings, the

period may not exceed 60 days

including extensions. Persons granted

voluntary departure under such

circumstances may not receive work

authorization. However, if the grant of

voluntary departure was given either

during, or at the conclusion of,

exclusion or deportation proceedings

that were commenced prior to April 1,

1997, the Attorney General may grant

voluntary departure for an unspecified

period of time consistent with both

Service regulations and policies.

Persons granted voluntary departure

under these circumstances may

continue to receive employment

authorization.

Although in recent months the third

employment-based skilled worker

category has once again become current,

not all remaining LADs will be able to

file for adjustment of status

immediately. Recognizing that with the

new restrictions on duration, voluntary

departure is no longer an adequate

option for such aliens, the Service may

consider granting remaining LADs

deferred action on a case-by-case basis.

Accordingly, 8 CFR 245.9(m) has been

amended to remove the reference to

voluntary departure. This regulation is

being adopted as a final rule without

public comment because such comment

is both impracticable and unnecessary.

This change simply amends Service

regulations to reflect a statutory change

which severely curtails and, in the vast

majority of cases, effectively nullifies

part of the existing regulation.

In cases where an LAD requests that

the Service grant deferred action, the

Service will proceed according to

section X of the Service’s Standard

Operating Procedures for Enforcement

Officers: Arrest, Detention, Processing

and Removal (1997). Specifically, a

Service director may, in his or her

discretion, recommend deferral of

(removal). Deferred action recognizes

that the Service has limited enforcement

resources and that every attempt should

be made administratively to use these

resources in a manner which will

achieve the greatest impact under the

immigration laws. Deferred action does

not confer any immigration status on an

alien, nor is it in any way a reflection

of an alien’s lawful immigration status.

It does not affect periods of unlawful

presence previously accrued or accruing

while in such ‘‘status’’ as defined in

section 212(a)(9) of the Act, and does

not alter the status of any alien who is

present in the United States without

being inspected and admitted. Under no

circumstances does deferred action cure

any defect in status under any section

of the Act for any purpose. Since

deferred action is not an immigration

status, no alien has the right to deferred

action. It is used solely for the

administrative convenience of, and in

the discretion of, the Service and

confers no protection or benefit on an

alien. Deferred action does not preclude

the Service from commencing removal

proceedings at any time against an alien.

While in deferred action status, an alien

may be granted work authorization

pursuant to 8 CFR 274a.12(c)(14).

LADs who apply for adjustment of

status in the United States while section

245(i) of the Act remains in effect may

adjust status despite ineligibility under

section 245(c) of the Act upon payment

of the additional sum.

Other Dependents

Some commenters asked for further

clarification about benefits available

under the CSPA to sons and daughters

who reach 21 years of age or marry.

Other writers asked that family

members living in the PRC be paroled

into the United States or be issued

nonimmigrant visas to immigrate to the

United States.

A son or daughter who is over the age

of 21 and meets the CSPA eligibility

requirements, including arrival in the

United States before April 11, 1990, may

adjust status under the CSPA without

regard to age or marital status at the

time of adjustment. See 8 CFR

245.9(c)(2), which specifies only that he

or she was unmarried and under the age

of 21 on April 11, 1990. A spouse or

child who does not meet the CSPA

requirements may be eligible to adjust

status as a family-based second

preference immigrant. The CSPA,

however, provides no authority for

parole of family members into the

United States, nor does it allow the use
63254 Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations

of nonimmigrant visas to immigrate to

this country.

Accordingly, no changes have been

made as a result of these comments.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b),

the Commissioner of the Immigration

and Naturalization Service certifies that

this rule will not, if promulgated, have

a significant adverse economic impact

on a substantial number of small

entities. This rule allows certain

nationals of the PRC to apply for

adjustment of status; it has no effect on

small entities as that term is defined in

5 U.S.C. 601(6).

Executive Order 12866

This rule is not considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review, and

the Office of Management and Budget

has waived its review process under

section 6(a)(3)(A).

Executive Order 12612

The regulation will not have

substantial direct effects on the States,

on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12988 Civil Justice

Reform

This interim rule meets the applicable

standards set forth in section 3(a) and

3(b)(2) of E.O. 12988.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any 1 year, and will not significantly

or uniquely affect small governments.

Therefore, no actions were deemed

necessary under the provisions of the

Unfunded Mandates Reform Act of

1995.

List of Subjects in 8 CFR Part 245

Aliens, Immigration, Reporting and

recordkeeping requirements.

Accordingly, the interim rule

amending 8 CFR part 245 which was

published at 58 FR 35832 on July 1,

1993, is adopted as a final rule with the

following change:

PART 245—ADJUSTMENT OF STATUS

TO THAT OF A PERSON ADMITTED

FOR PERMANENT RESIDENCE

1. The authority citation for part 245

continues to read as follows:

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

8 CFR part 2.

2. In § 245.9, paragraph (m) is revised

to read as follows:

§ 245.9 Adjustment of Status of Certain

Nationals of the People’s Republic of China

under Public Law 102–404.

* * * * *

(m) Effect of enactment on family

members other than qualified family

members. The adjustment of status

benefits and waivers provided by Public

Law 102–404 do not apply to a spouse

or child who is not a qualified family

member as defined in paragraph (c) of

this section. However, a spouse or child

whose relationship to the principal

alien was established prior to the

approval of the principal’s adjustmentof-status application may be accorded

the derivative priority date and

preference category of the principal

alien, in accordance with the provisions

of section 203(d) of the Act. The spouse

or child may use the priority date and

category when it becomes current, in

accordance with the limitations set forth

in sections 201 and 202 of the Act.

Dated: October 31, 1997.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[FR Doc. 97–31033 Filed 11–26–97; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 301, 307, 308, 310, 318,

381, 416, and 417

[Docket No. 97–067N]

Livestock Carcasses and Poultry

Carcasses Contaminated With Visible

Fecal Material

AGENCY: Food Safety and Inspection

Service, USDA.

ACTION: Notice on complying with food

safety standards under the HACCP

system regulations.

SUMMARY: The Food Safety and

Inspection Service is publishing this

notice to assure that the owners and

operators of federally inspected

slaughter establishments are aware that

the Agency views its ‘‘zero tolerance’’

for visible fecal material as a food safety

standard. Fecal material is a vehicle for

microbial pathogens, and

microbiological contamination is a food

safety hazard that is reasonably likely to

occur in the slaughter production

process. In controlling microbiological

contamination, a hazard analysis and

critical control point plan for slaughter

must be designed, among other things,

to ensure that, by the point of postmortem inspection of livestock

carcasses or when poultry carcasses

enter the chilling tank, no visible fecal

material is present.

FOR FURTHER INFORMATION CONTACT:

Patricia F. Stolfa, Assistant Deputy

Administrator, Regulations and

Inspection Methods, Food Safety and

Inspection Service, Washington, DC

20250–3700; (202) 205–0699.

SUPPLEMENTARY INFORMATION: The Food

Safety and Inspection Service (FSIS)

administers a regulatory program under

the Federal Meat Inspection Act (FMIA)

(21 U.S.C. 601 et seq.) and the Poultry

Products Inspection Act (PPIA) (21

U.S.C. 451 et seq.) to protect the health

and welfare of consumers by preventing

the distribution of livestock products

and poultry products that are

unwholesome, adulterated, or

misbranded. A livestock product or

poultry product is adulterated under

any of a number of circumstances,

including the following: if it bears or

contains any poisonous or deleterious

substance which may render it injurious

to health, unless when the substance is

not an added substance, the quantity in

or on the article does not ordinarily

render it injurious to health; if it

consists in whole or in part of any

filthy, putrid, or decomposed substance

or is for any other reason unsound,

unhealthful, unwholesome, or otherwise