[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Rules and Regulations]
[Pages 6707-6708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3589]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1602-92]


Classification of Certain Scientists of the Commonwealth of 
Independent States of the Former Soviet Union and the Baltic States as 
Employment-Based Immigrants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule adopts, without change, an interim rule 
published in the Federal Register by the Immigration and Naturalization 
Service (``the Service'') on October 19, 1995, that allows certain 
scientists and engineers from the former Soviet Union to apply for 
permanent residence under the Soviet Scientist Act of 1992. This is 
necessary to clearly identify those scientists who qualify for 
permanent resident status under the Soviet Scientists Immigration Act 
of 1992.

EFFECTIVE DATE: February 13, 1997.

FOR FURTHER INFORMATION CONTACT:
Michael W. Straus, Adjudications Officer, Immigration and 
Naturalization Service, Room 3214, 425 I Street NW., Washington, DC 
20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

    The Soviet Scientists Immigration Act of 1992 (SSIA), Public Law 
102-509, dated October 24, 1992, provides that up to 750 immigrant 
visas may be allotted under section 203(b)(2)(A) of the Immigration and 
Nationality Act (Act) to eligible scientists of the independent states 
of the former Soviet Union and the Baltic states, by virtue of their 
expertise in nuclear, chemical, biological, or other high-technology 
fields or their current work on nuclear, chemical, biological, or other 
high-technology defense projects. The provisions of the SSIA terminated 
on October 24, 1996.
    On October 19, 1995, at 60 FR 54027-30, the Service published an 
interim rule with request for comments in the Federal Register. The 
October 19, 1995, interim rule revised a previous interim rule 
published on May 27, 1993, at 58 FR 30699-701, on the ground that 
revisions in the previous interim rule were necessary to improve the 
visa petition process, and responded to written comments submitted in 
response to the May 27, 1993, interim rule. Interested persons were 
invited to submit written comments on or before December 18, 1995 to 
the October 19, 1995, interim rule. The Service received one comment.

Comments

    The following discussion summarizes the issues which have been 
raised relating to the interim rule and provides the Service's position 
on the issues.

Termination

    The interim rule provides that the Service must approve an SSIA 
petition on or before October 24, 1996, or when the Service has 
approved a total of 750 petitions on behalf of eligible scientists, 
whichever date is earlier. See 8 CFR 204.10(a). The commenter contended 
that the Service's requirement that a visa petition filed under the 
SSIA be approved on or before October 24, 1996, would result in 
inequities due to the difference in processing times among the service 
centers. The SSIA, however, states that the Attorney General's 
authority to designate a class of eligible scientists from the former 
Soviet Union for purposes of section 203(b)(2)(A) of the Act terminates 
4 years after the enactment date of the SSIA. The Service, therefore, 
has no authority to approve an SSIA petition after October 24, 1996.

Jurisdiction

    The 1995 interim rule states that SSIA applicants must file the 
petition at a service center. The commenter objected, arguing that such 
a procedure could delay the petitioner's ability to obtain employment 
authorization and adjustment of status. The commenter suggested that, 
after a combined filing of an I-40 petition (for SSIA classification) 
and an I-485 application for adjustment of status at a local office, 
the I-140 petition could be forwarded to a service center for 
adjudication. The commenter contended that this would allow SSIA 
applicants to apply immediately for employment authorization and, thus, 
attract more qualified scientists from the former Soviet Union.
    As noted in the interim rule, the Service has determined that 
centralizing the adjudication of SSIA petitions at service centers 
would enhance coordination with other government agencies in 
adjudicating these petitions. In addition, centralized adjudication 
makes sense in light of the expertise developed by the service centers 
in adjudicating these types of petitions. The Service believes that the 
SSIA has already created a sufficiently powerful inducement for 
qualified scientists to immigrate to the United States by waiving the 
job offer, labor certification, and minimum eligibility requirements 
under section 203(b)(2) of the Act. The fact that, under the interim 
rule, SSIA applicants who are present in the United States must have an 
approved SSIA petition before becoming eligible to apply for adjustment 
of status, and thus, for employment authorization under 8 CFR 
274.a.12(c)(9), has little, if any, impact on the basic attractiveness 
of the SSIA to qualified scientists. Moreover, the provision requiring 
adjudication of SSIA petitions at service centers would have no effect 
on SSIA petitioners who are not present in the United States. 
Accordingly, no change will be made in the final rule.

Definition of Eligible Scientist

    The interim rule amended the definition of eligible scientists and 
engineers to include those scientists or engineers who have expertise 
in a high technology field which is clearly applicable to the design, 
development, and production of ballistic missiles, nuclear, biological, 
chemical, or other high-technology weapons of mass destruction. See 8 
CFR 204.10(d). The previous rule defined eligible scientist or 
engineers as those who have expertise in nuclear, chemical, biological, 
or other high technology fields. The commenter argued that the

[[Page 6708]]

insertion of the term ``weapons of mass destruction'' in place of the 
term ``defense projects'' used in the statute limits the SSIA 
applicant's work experience to a specific type of weaponry not 
enumerated in the statute and is, therefore, ultra vires. The commenter 
further contended that the statute states that either expertise or 
experience with military-related projects in the former Soviet Union 
qualify a scientist or engineer for SSIA benefits.
    Section 2(3)(B) of the SSIA, in part, defines eligible scientists 
as scientists or engineers who have expertise in nuclear, chemical, 
biological, or other high technology fields or who are working on 
nuclear, chemical, biological, or other high-technology defense 
projects, or are working on nuclear, chemical, biological, or other 
high-technology defense projects, as defined by the Attorney General. 
In the interim rule, the Service, employing the Attorney General's 
express authority to define eligible scientists, modified the 
definition to reflect that the expertise need not be related to a 
specific defense project if the expertise was in a field which could be 
applied to the development of weapons of mass destruction. As discussed 
in the preamble to the interim rule, this modification was necessary to 
clarify Congress' intent to include in the SSIA those scientists who 
``have specialized in weapons of mass destruction.'' See 60 FR 54028, 
citing 138 Cong. Rec. S1249 (daily ed. Feb. 6, 1992). Accordingly, the 
Service will not change the definition of eligible scientists.
    The commenter also criticized the Service from requiring any 
letters from United States Government agencies be from the head of the 
agency or a duly appointed designee. See 8 CFR 204.10(e)(2)(ii). The 
commenter argued that this provision narrows the pool of experts 
available to an applicant and makes it more difficult to obtain a 
letter from a Government agency. As noted in the interim rule, this 
provision was necessary to enhance the reliability of endorsements 
issued by Government agencies. See 60 FR 54029. This provision, 
however, still allows SSIA petitioners, as an alternative to obtaining 
a letter from a U.S. Government agency, to submit two letters from 
nationally or internationally recognized experts to satisfy this 
evidentiary requirement.
    The interim rule requires a SSIA petitioner to submit corroborative 
evidence of claimed expertise including the official labor book, any 
significant awards or publications and other comparable evidence or an 
explanation of why such evidence cannot be obtained. See 8 CFR 
204.10(e)(2)(iii). The commenter contended that the requirement that 
the petitioner submit proof of any significant awards or publications 
is superfluous, since the petitioner must submit his or her official 
labor book or Trudavaya Knizhka, which records most such awards. The 
purpose of this regulatory provision is merely to make it clear that, 
if an applicant has awards noted in his or her official labor book and 
wishes to have the Service consider such awards as evidence of the 
alien's qualifications, the applicant should provide separate proof of 
receipt of such an award unless it is unavailable. Accordingly, no 
changes have been made in response to this comment.

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 merely adopts interim 
regulations concerning the immigration of up to 750 scientists from the 
former Soviet Union as final. It will not significantly change the 
number of persons who immigrate to the United States. Any impact on 
small business entities will be, at most, indirect and attenuated.

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).

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined in section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 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 12612

    This 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.
    Accordingly, the interim rule amending 8 CFR part 204, which was 
published in the Federal Register at 60 FR 54027-54030 on October 19, 
1995, is adopted as a final rule without change.

    Dated: February 4, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-3589 Filed 2-12-97; 8:45 am]
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