[Federal Register Volume 63, Number 98 (Thursday, May 21, 1998)]
[Rules and Regulations]
[Pages 27823-27834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13246]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 240, 245, 274a and 299

[INS NO. 1893-97; AG Order No. 2154-98]
RIN 1115-AF04


Adjustment of Status for Certain Nationals of Nicaragua and Cuba

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

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule implements section 202 of the Nicaragua 
Adjustment and Central American Relief Act (NACARA) by establishing 
procedures for certain nationals of Nicaragua and Cuba who have been 
residing in the United States to become lawful permanent residents of 
this country. This rule allows them to obtain lawful permanent resident 
status without applying for an immigrant visa at a United States 
consulate abroad and waives many of the usual requirements for this 
benefit.

DATES: Effective date: This interim rule is effective June 22, 1998.
    Comment date: Comments must be submitted on or before July 20, 
1998.

ADDRESSES: Please submit written comments, original and two copies,to 
the Director, Policy Directives and Instructions Branch, Immigration 
and Naturalization Service, 425 I Street NW, Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS No. 1893-97 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT:
For matters relating to the Immigration and Naturalization Service--
Suzy Nguyen, Adjudications Officer, Office of Adjudications, 
Immigration and Naturalization Service, 425 I Street NW, Room 3214, 
Washington, DC 20536, telephone (202) 514-5014; For matters relating to 
the Executive Office for Immigration Review--Margaret M. Philbin, 
General Counsel, Executive Office for Immigration Review, 5107 Leesbury 
Pike, Suite 2400, Falls Church, VA 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

How Does Section 202 of NACARA Affect Nicaraguan and Cuban 
Nationals?

    The Nicaraguan Adjustment and Central American Relief Act (NACARA), 
enacted as title II of the District of Columbia Appropriations Act, 
1998, Pub. L. 105-100 (111 Stat. 2160, 2193), was signed into law on 
November 19, 1997. As amended, section 202 of NACARA allows certain 
Nicaragua and Cuban nationals who are physically present in the United 
States to adjust status to that of lawful permanent resident. In order 
to be eligible for benefits under NACARA, an applicant must be a 
national of Nicaragua or Cuba; must be admissible to the United States 
under all provisions of section 212(a) of the Immigration and 
Nationality Act (the Act), other than those provisions specifically 
excepted by NACARA; must have been physically present in the United 
States for a continuous period beginning not later than December 1, 
1995, and ending not earlier than the date the application for 
adjustment is filed (not counting absences totaling 180 days or less); 
and must properly file an application before April 1, 2000. In 
addition, certain family members of NACARA beneficiaries are also 
eligible for adjustment of status under NACARA.

What Are the Benefits of NACARA?

    An alien seeking adjustment of status under NACARA is not subject 
to a number of the requirements to which aliens seeking adjustment 
under section 245 of the Act may be subject.
    First, a NACARA applicant is not required to have been inspected 
and admitted or paroled into the United States.
    Second, a NACARA applicant is not subject to any of the barriers to 
adjustment contained in section 245(c) of the Act (e.g., the bars 
against aliens who have accepted or continued in unauthorized 
employment, aliens who remained in the United States longer than 
authorized, and aliens admitted as crewmen, in transmit without visa, 
or under the visa waiver pilot program). Consequently, an alien who 
would otherwise be ineligible under section 245(c) may apply for 
adjustment under NACARA.
    Third, NACARA applicants are not subject to the immigrant visa 
preference system requirements contained in sections 201 and 202 of the 
Act. Hence, neither the worldwide quota restrictions nor the per-
country quota restrictions apply.
    Fourth, applicants need not demonstrate that they are not 
inadmissible under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of 
section 212(a) of the Act in order to adjust status under section 202 
of Public Law 105-100. Accordingly, NACARA allows an otherwise 
qualified applicant to adjust status under NACARA notwithstanding 
inadmissibility for likelihood of becoming a public charge, for failure 
to obtain a labor certification, for failure to meet certain 
requirements applicable to foreign-trained physicians, for failure to 
meet certain standards for foreign health-care workers, for entering or 
remaining in the country illegally, for violating documentary 
requirements relating to entry as an immigrant, or for accruing more 
than 180 days of unlawful presence prior to the alien's last departure 
or removal.
    Fifth, unlike those seeking to adjust status under other provisions 
of law, a NACARA applicant who has been paroled into the United States 
and is now in exclusion or removal proceedings before an immigration 
judge is not barred from filing an application for adjustment of status 
under the provisions of NACARA while in such proceedings.

What Are the NACARA Requirements Regarding Continuous Physical 
Presence in the United States

    Under the terms of NACARA, eligible applicants must have been 
physically present in the United States continuously since December 1, 
1995. However, they may have been outside of the United States for 
periods not to exceed 180 days in the aggregate between December 1, 
1995, and the date of adjustment of status. A NACARA applicant shall 
not be considered to

[[Page 27824]]

have failed to maintain continuous physical presence in the United 
States by reason of any absences for periods that do not exceed 180 
days in the aggregate. Furthermore, the 180-day cumulative period shall 
be tolled during an absence authorized pursuant to issuance of an 
Authorization for Parole of an alien into the United States (Form I-
512).

How Can a NACARA Applicant Prove Continuous Physical Presence in 
the United States?

    A NACARA applicant must establish two aspects of physical presence 
in the United States: commencement on or prior to December 1, 1995, and 
continuity since that date.
    Under section 202(b)(2)(A) of Pub. L. 105-100, as amended, an 
applicant may prove commencement of continuous physical presence in the 
United States by demonstrating that on or before December 1, 1995, he 
or she:
    (i) Applied to the Attorney General for asylum;
    (ii) was issued an order to show cause under section 242 or 242B of 
the Immigration and Nationality Act (as in effect prior to April 1, 
1997);
    (iii) was placed in exclusion proceedings under section 236 of such 
Act (as in effect prior to April 1, 1997);
    (iv) Applied for adjustment of status under section 245 of such 
Act;
    (v) Applied to the Attorney General for employment authorization;
    (vi) Performed service, or engaged in a trade or business, within 
the United States which is evidenced by records maintained by the 
Commissioner of Social Security; or
    (vii) Applied for any other benefit under the Immigration and 
Nationality Act by means of an application establishing the alien's 
presence in the United States prior to December 1, 1995.
    Normally, such demonstration will be made through submission of a 
photocopy of a Government-issued document. In some cases, the alien may 
submit other evidence demonstrating one or more of the above actions, 
which may be verified through Government records.
    Section 202(b)(2)(B) of NACARA also permits, but does not require, 
the Attorney General to provide by regulation for additional methods by 
which an applicant could prove commencement of continuous physical 
presence in the United States. The Department of Justice (Department) 
is availing itself of this authority to allow a NACARA applicant to 
submit, as evidence of commencement of physical presence in the United 
States, other documentation issued by state and local authorities (such 
as school, hospital, police, and public assistance records). The 
Department believes that these evidentiary options may well provide 
sufficient opportunities for qualified applicants to establish 
commencement of physical presence in the United States without 
encouraging fraudulent applications. However, in order to ensure that 
no significant group of eligible aliens is precluded from establishing 
eligibility for NACARA benefits, the Department is soliciting public 
comments on the need for any additional methods of establishing 
commencement of physical presence in the United States and suggestions 
as to what those additional methods should be, including whether the 
documentary standards listed in 8 CFR 245.13(e)(3) for demonstrating 
continuity of physical presence should also be applied to the 
requirement for demonstrating commencement of physical presence. 
Commenters are encouraged to explain which classes of aliens would 
benefit from the proposal, and how the proposal could be implemented 
without severely compromising the integrity of the adjudicative 
process.
    The NACARA statute is silent as to the methods by which an 
applicant may demonstrate the continuity of his or her physical 
presence in the United States. By regulation, the Department is hereby 
providing that a NACARA applicant may demonstrate continuity of 
physical presence in the United States through the submission of one or 
more documents issued by any governmental or non-governmental 
authority. Such documentation must bear the name of the applicant, have 
been dated at the time it was issued, and bear the signature of the 
issuing authority. In some cases, a single document may suffice to 
establish continuity for the entire post-December 1, 1995, period, 
while in other cases the alien may need to submit a number of 
documents. For example, a college transcript or an employment record 
may show that an applicant attended school or worked in the United 
States throughout the entire post-December 1, 1995, period. On the 
other hand, an applicant would need to submit a number of monthly rent 
receipts or electric bills to establish the same continuity of 
presence. While the Department neither requires nor wants the applicant 
to submit documentation to show presence on every single day since 
December 1, 1995, there should be no significant chronological gaps in 
the documentation, either. Generally, a gap of 3 months or less in 
documentation is not considered significant. Furthermore, if the 
applicant is aware of documents already contained in this or her 
Immigration and Naturalization Service (Service) file that establish 
physical presence, he or she may merely list those documents, giving 
the type and date of the document. Examples of such documents might 
include a written copy of a sworn statement given to a Service officer, 
the transcript of a formal hearing, and a Record of Deportable/
Inadmissible Alien (Form I-213).

How Does an Applicant Establish Admissibility?

    The grounds of inadmissibility specified in paragraphs (4) (public 
charge), (5) (lack of labor certification), (6)(A) (illegal entry), 
(7)(A) (immigrant not in possession of an immigrant visa or other valid 
entry document), and (9)(B) (unlawful presence) of section 212(a) of 
the Act do not apply to NACARA applicants. Additionally, a Nicaraguan 
or Cuban national present in the United States who has been ordered 
excluded, deported, or removed from, or who has agreed to depart 
voluntarily from, the United States may apply for adjustment of status 
under NACARA.
    If a NACARA applicant is inadmissible to the United States under 
one of the grounds of inadmissibility contained in section 212(a) of 
the Act other than those specifically excepted by NACARA, but is 
eligible for an individual waiver of that ground of inadmissibility, he 
or she may file an application for the waiver concurrently with his or 
her application for adjustment of status. Adjustment of status may not 
be granted unless the waiver has first been approved.

How Do the Provisions of NACARA Affect Dependents of Nicaraguan and 
Cuban Nationals?

    The provisions of NACARA also apply to certain dependents. To 
receive NACARA benefits as a dependent of a NACARA beneficiary, an 
alien would have to be a national of either Nicaragua or Cuba (but need 
not necessarily be of the same nationality as the principal 
beneficiary--a Cuban dependent could qualify through a Nicaraguan 
principal beneficiary and vice versa); would have to be the spouse, 
child (i.e., under 21 years of age and unmarried), or unmarried son or 
daughter (i.e., 21 years of age or older) of a NACARA principal 
beneficiary at the time of the principal beneficiary's adjustment of 
status to that of permanent resident; and would have to be admissible 
to the United States under section 212(a) of the Act (other than those 
provisions specifically excepted by NACARA). NACARA dependents must be 
physically present in the United States in order to apply

[[Page 27825]]

and must properly file an application before April 1, 2000.
    Additionaly, an unmarried son or daughter, other than a child as 
defined in section 101(b)(1) of the Act, would have to have been 
physically present in the United States continuously since December 1, 
1995 (not counting absences totaling 180 days or fewer). Although many 
qualifying dependents of NACARA principal beneficiaries would be able 
to receive NACARA benefits in their own right, some would only be able 
to qualify under the dependent provisions. Examples of otherwise 
eligible persons who could only qualify as dependents would include a 
spouse or child who arrived in the United States between December 1, 
1995, and the principal beneficiary's filing date, and a spouse or 
child who had been absent for an aggregate of more than 180 days.

How Are Dependents Who Do Not Meet NACARA Requirements Affected?

    A family member who is unable to qualify for NACARA adjustment of 
status on his or her own, or as a dependent under the provisions of 
NACARA, may eventually become eligible for lawful permanent resident 
status under other provisions of the Act. Examples of such individuals 
would include a dependent who is not a national of Nicaragua or Cuba, a 
spouse or child whose relationship to the principal applicant is not 
established until after the principal applicant is granted permanent 
resident status, and an unmarried son or daughter over the age of 21 
who entered the United States after December 1, 1995. Upon becoming a 
permanent resident, a NACARA beneficiary could file a visa petition to 
accord such a dependent immigrant classification under section 
203(a)(2) of the Act, thereby enabling the dependent who is not 
eligible for NACARA benefits to seek immigration to the United States 
through the normal family-based immigration process.

What Happens if an Applicant Is Already in Exclusion, Deportation, 
or Removal Proceedings, or Has a Motion To Reopen or Motion To 
Reconsider Pending Before the Immigration Court or the Board of 
Immigration Appeals (Board)?

Proceedings Pending Before the Executive Office for Immigration Review 
(EOIR)

    Persons who have proceedings pending before an Immigration Court or 
the Board, or persons who have a pending motion to reopen or reconsider 
filed on or before May 21, 1998, shall remain within the jurisdiction 
of EOIR for the purpose of consideration of applications for adjustment 
of status under section 202 of NACARA.

Proceedings Pending Before an Immigration Judge

    If an alien (other than an arriving alien who has not been paroled 
into the United States) is in exclusion, deportation, or removal 
proceedings before an immigration judge, or if an alien has a motion to 
reopen or motion to reconsider filed on or before May 21, 1998 pending 
before an immigration judge, jurisdiction over an application for 
adjustment of status under section 202 of NACARA shall lie with the 
Immigration Court. The procedure for filing an application for 
adjustment under NACARA is described below. If an alien who is not 
clearly ineligible for adjustment of status under section 202 of NACARA 
and who has a pending motion to reopen or motion to reconsider files an 
application for adjustment of status under section 202 of NACARA, the 
immigration judge shall reopen the alien's proceedings for 
consideration of the adjustment application. Applications shall be 
subject to the filing requirements of 8 CFR 3.11 and 3.31.

Proceedings Pending Before the Board

    If an alien who is not clearly ineligible for adjustment of status 
under section 202 of NACARA has a pending appeal with the Board, the 
Board shall remand the proceedings to the immigration judge for the 
sole purpose of adjudicating the application for adjustment. The Board 
shall so remand the case regardless of whether the alien has already 
filed an application for adjustment of status under NACARA. Further, if 
an alien has a pending motion to reopen or motion to reconsider filed 
with the Board on or before May 21, 1998, the Board shall reopen and 
remand the proceedings to the immigration judge for the sole purpose of 
adjudicating an application for adjustment of status under section 202 
of NACARA.
    If upon remand the immigration judge denies the application, or the 
alien fails to file an application for adjustment under section 202 of 
NACARA, the immigration judge shall return the case to the Board by 
certification. This will allow the Board to consider the denial of the 
NACARA application as well as all other outstanding issues from the 
previously pending appeal or motion. The alien shall not be required to 
file another Notice of Appeal to the Board of Immigration Appeals of 
Decision of Immigration Judge (Form EOIR-26), or to pay an appeal 
filing fee because the immigration judge's certification of the denial 
to the Board will automatically transfer the immigration judge's 
decision to the Board.

May an Alien Who Is in Proceedings Before an Immigration Court or 
the Board of Immigration Appeals Apply for Adjustment of Status 
Before the Service?

    Yes, under certain circumstances. An alien who is in exclusion, 
deportation, or removal proceedings before an Immigration Court or the 
Board may move to have the proceeding administratively closed for the 
purpose of filing an application for adjustment under NACARA. If the 
Service concurs in such motion, the Immigration Court or the Board, as 
appropriate, will administratively close the proceedings. Such closure 
would permit recalendaring of the closed proceedings if, for example, 
the alien fails to file an application for adjustment of status under 
NACARA before April 1, 2000, or the Service denies any application for 
adjustment of status filed by the alien under NACARA. Should the 
Service deny the application of status filed by the alien under NACARA. 
Should the Service deny the application, or the alien fail to file the 
application before April 1, 2000, the Service will move to recalendar 
the proceedings and the proceedings will be recalendared by the 
Immigration Court or the Board, as appropriate. In the case of an 
application denied by the Service, the alien could seek reconsideration 
of the denied adjustment application in such recalendared proceedings.

What Happens if an Applicant Is the Subject of a Final Order of 
Removal?

    An alien who is the subject of a final order of removal, and who 
has never filed an application for adjustment of status under section 
202 of NACARA with the Immigration Court, must file such application 
with the Service. However, if such alien has a motion to reopen or a 
motion to reconsider filed on or before May 2, 1998 pending before an 
Immigration Court or the Board, then the application for adjustment 
must be filed with the Immigration Court or with the Board, as 
appropriate. The mere filing of an application for adjustment of status 
under section 202 of NACARA with the Service or the referral of a 
denied application to an immigration judge does not stay the execution 
of the final order of removal. To request that execution of the final 
order be stayed by the Service, the alien must file an Application for 
Stay of Removal (Form I-246), following the procedures set

[[Page 27826]]

forth in 8 CFR 241.6. If the application is referred to the immigration 
judge, and the Service does not grant a stay of execution of the final 
order, the alien must request that the immigration judge or Board 
specifically grant a stay of execution of the final order of removal 
pursuant to 8 CFR 245.13(d)(5)(ii).

When Can an Application Be Filed?

    The application period for NACARA benefits begins June 22, 1998 and 
ends on March 31, 2000.

What Forms and Other Documents Should Be Filed?

    Each applicant for NACARA adjustment of status benefits must file a 
separate Application to Register Permanent Residence or Adjust Status 
(Form I-485), accompanied by the required application fee and 
supporting documents described below. NACARA applicants should complete 
Part 2 (Application Type) of that form by checking box ``h--other'' and 
writing ``NACARA--Principal'' or ``NACARA--Dependent'' next to that 
block. Each application filed must be accompanied by the required 
initial evidence: (1) a birth certificate or other record of birth; (2) 
two photographs as described in the Form I-485 instructions; (3) a 
completed Biographic Information Sheet (Form G-325A) if the applicant 
is between 14 and 79 years of age; (4) a report of medical examination; 
(5) if the applicant is at least 14 years of age, a local police 
clearance from each jurisdiction where the alien has resided for six 
months or longer since arriving in the United States; (6) a copy of the 
applicant's Arrival-Departure Record (Form I-94) or other evidence of 
inspection and admission or parole into the United States, if 
applicable; (7) one or more of the documents described in section 
202(b)(2) of NACARA and 8 CFR 245.13(e)(2) to establish commencement of 
physical presence in the United States; and (8) one or more of the 
documents described in 8 CFR 245.13(e)(3) to establish continuity of 
physical presence in the United States. In addition, the applicant must 
submit a statement showing all departures from and arrivals in the 
United States since December 1, 1995. Finally, if the alien is applying 
as the spouse, child, or unmarried son or daughter of another NACARA 
beneficiary, the applicant must submit evidence of the relationship 
(for example, a marriage certificate).

Must the Applicant Be Fingerprinted?

    Yes. Upon receipt of the application, the Service will instruct the 
applicant regarding procedures for obtaining fingerprints through one 
of the Service's Application Support Centers (ASCs) or authorized 
Designated Law Enforcement Agencies (DLEAs) chosen specifically for 
that purpose. Those instructions will direct the applicant to the ASC 
or DLEA nearest the applicant's home, and advice the applicant of the 
date(s) and time(s) fingerprinting services may be obtained. Applicants 
should not submit fingerprint cards as part of the initial filing.

Is There a Fee for Filing This Application?

    NACARA adjustment of status applications must be submitted with the 
fee required by 8 CFR 103.7(b)(1) for Form I-485 (currently $130 for 
applicants 14 years of age or older, and $100 for applicants under age 
14). If the application is submitted to the INS Texas Service Center, 
the fee must also be submitted to that center. If the application is 
submitted to an Immigration Court or the Board of Immigration Appeals, 
the fee must be submitted to the appropriate local office of the 
Service in accordance with 8 CFR 3.31. An applicant who is deserving of 
the benefits of section 202 of NACARA and is unable to pay the filing 
fee may request a fee waiver in accordance with 8 CFR 103.7(c).

How and Where Should the Application Be Filed?

    If the applicant is not in exclusion, deportation, or removal 
proceedings before an Immigration Court or the Board of Immigration 
Appeals, the application and attachments must be submitted by mail to: 
USINS Texas Service Center, P.O. Box 851804, Mesquite, TX 75185-1804. 
If the applicant is in proceedings pending before an Immigration Court 
or the Board of Immigration Appeals, or if the applicant has a motion 
to reopen or motion to reconsider filed on or before May 21, 1998 
pending before an Immigration Court or the Board, the application and 
attachments must be submitted to the Immigration Court with 
jurisdiction over the case or to the Board if the Board has 
jurisdiction. In such cases, the fee should be submitted to the Service 
pursuant to 8 CFR 3.31, as provided above. It should be noted that if 
the motion to reopen or motion to reconsider is filed after May 21, 
1998, jurisdiction over any application for adjustment of status under 
NACARA lies with the Service, not with EOIR.
    Applications for adjustment of status under NACARA may not be 
submitted to any other Service locations or to any consular posts.

Will an Applicant Filing an Application for Adjustment of Status 
Under NACARA With the Service Be Required to Appear Before the 
Service for an Interview?

    The decision whether to require an interview is solely within the 
discretion of the Service. The Service may elect to waive the interview 
of the applicant. If the application is adjudicated without interview, 
a notice of the decision will be mailed to the applicant. If an 
interview is required, the application will be forwarded to the local 
Service office having jurisdiction over the applicant's place of 
residence. The applicant will be notified of the date and time to 
appear for the interview. If an applicant fails to appear for an 
interview, the application may be denied in accordance with existing 
regulations.

Can an Applicant Be Authorized To Work While the Application Is 
Pending?

    An unexpired authorization to accept employment under another 
provision of the Act will not be invalidated by the filing of an 
application for adjustment of status under NACARA or by the 
administrative closure of the exclusion, deportation, or removal 
proceeding to pursue relief pursuant to NACARA. Furthermore, an 
applicant for adjustment under NACARA is not precluded from applying 
for, and being granted, an extension of any such employment 
authorization for which he or she remains eligible. Any applicant for 
adjustment of status under NACARA who wishes to obtain initial 
employment authorization, or continued employment authorization when 
his or her prior authorization expires, during the pendency of the 
adjustment of status application may file an Application for Employment 
Authorization (Form I-765), in accordance with the instructions on the 
form. With limited exceptions, the interim rule provides that 
employment authorization will not be granted until the application for 
adjustment has been pending for 180 days. This approach is in keeping 
with section 202(c)(3) of NACARA, which mandates approval of employment 
authorization if the adjustment application ``is pending for a period 
exceeding 180 days,'' and has not been denied, and which authorizes, 
but does not mandate, approval of employment authorization if the 
application has been pending for fewer than 180 days. Under the interim 
rule, the Department will authorize employment for applicants whose 
cases have been pending for fewer than 180 days only if the

[[Page 27827]]

applicant applies for work authorization and adjustment at the same 
time. In addition, the Service record must contain evidence that the 
applicant is a national of Nicaragua or Cuba who had applied to the 
Service for an immigration benefit, or had been placed in deportation 
or exclusion proceedings, not later than December 1, 1995, as provided 
in paragraphs (1)(A)(i) through (v) and (vii) of section 202(b) of 
NACARA, unless the record also shows that the applicant is clearly 
ineligible for adjustment of status under NACARA (e.g., the applicant 
has been convicted of an aggravated felony). The potential benefits of 
filing for adjustment of status and employment authorization 
concurrently will be emphasized during public information sessions that 
the Service will hold with local community groups. The Department 
believes that limited employment authorization to these circumstances 
and to circumstances in which 180 days have elapsed since the filing of 
the application will both: (1) discourage fraudulent applications filed 
simply as a way to gain work authorization, and (2) permit employment 
more promptly for those whose applications appear likely to be granted. 
However, in publishing this interim rule the Department solicits the 
views of interested parties on this topic.

Can an Application for Adjustment of Status Be Submitted if the 
Alien Is Outside the United States?

    No. The statute and regulations require that an alien be physically 
present in the United States in order to properly file an application. 
However, the regulation does contain a special provision allowing an 
otherwise eligible alien who is outside the United States to submit a 
request for parole authorization. Such request would have to be 
accompanied by photocopies of the documents the alien intends to file 
in support of his or her claim for eligibility for adjustment of status 
under NACARA if the parole authorization is granted. Parole 
authorization may be granted, as a matter of discretion, if upon review 
of the application for parole authorization and related documents it is 
determined that the application for adjustment of status is likely to 
be approved once it has been properly filed. The alien would be allowed 
to file the application after being paroled into the country. 
Accordingly, the alien must remain outside the United States until the 
request for parole authorization is approved. Any attempt to enter the 
United States without the parole authorization could result in the 
alien's being found inadmissible to, and removed from, the United 
States.

Can an Applicant Travel Outside the United States While the 
Application Is Pending?

    Nothing in NACARA authorizes the Service to allow an applicant to 
re-enter the United States without proper documents. If an applicant 
plans to leave the United States to go to any other country, including 
Canada or Mexico, before a decision is made on his or her NACARA 
adjustment application, the applicant should contact the Service to 
request advance authorization for parole. If an applicant leaves the 
United States without such advance authorization, action on his or her 
NACARA adjustment application may be terminated and the application may 
be denied. An applicant may also experience difficulty when returning 
to the United States if he or she does not have such advance 
authorization. Furthermore, any absence from the United States without 
an advance parole authorization issued prior to departure counts toward 
the 180-day aggregate time period that the applicant is allowed to be 
outside the United States.

If an Alien Who Is Under a Final Order of Exclusion, Deportation, 
or Removal Departs From the United States, Will the Alien Be 
Effecting His or Her own Exclusion, Deportation, or Removal?

    Yes. Such alien would be a ``self-deport'' and would be subject to 
the inadmissibility provisions of section 212(a)(9) of the Act, 
regardless of whether the alien obtained an Authorization for Parole of 
an Alien Into the United States (Form I-512) prior to departure. While 
being inadmissible would not preclude the alien from being paroled into 
the United States, it would preclude the alien from being admitted to 
the United States or being granted an adjustment of status, unless the 
alien first applied for and was granted permission to reapply for 
admission into the United States.

How Can an Alien Apply for Such Permission?

    An Alien needing such permission may file an Application for 
Permission to Reapply for Admission Into the United States After 
Deportation or Removal (Form I-212), in accordance with the 
instructions on that form. Form I-212 may be filed prior to the alien's 
departure.

Can an Alien Who Has Not Filed the Application for Adjustment 
Obtain a Form I-512?

    Once this regulation becomes effective on June 22, 1998, and except 
as discussed above, only the NACARA-eligible aliens who have filed an 
application for adjustment of status will be able to obtain a Form I-
512. However, because some individuals may need to travel prior to that 
date, on December 24, 1997, the Service issued instructions to all 
local Service offices allowing district directors to issue Form I-512 
to aliens who appear to be eligible for adjustment of status under 
NACARA and need to travel. The interim rules provides that for aliens 
who departed the United States with a Form I-512 issued pursuant to 
those December 24, 1997, instructions, the 180-day cumulative period 
during which an alien may be absent without breaking continuous 
physical presence in the United States in tolled while the alien is 
outside the United States in accordance with the conditions of the 
advance parole authorization. In this fashion, the Department precludes 
undue hardships for the affected individuals.
    Furthermore, for those aliens who were not issued a Form I-512 
because they departed before the Service could implement the December 
24, 1997, instructions, the interim rule provides for the tolling of 
the 180-day cumulative period from November 19, 1997, until July 20, 
1998, provided the alien departed from the United States prior to 
December 31, 1997. This provision extends until July 20, 1998, in order 
to provide interested aliens 30 days from the effective date of the 
interim regulation to file the application for parole authorization 
with the Texas Service Center. As discussed above, once the application 
for parole authorization has been filed the 180-day cumulative period 
during which an alien is not required to be physically present in the 
United States is tolled, provided the application for parole 
authorization is granted. Such tolling would remain in effect until the 
alien arrives in the United States with the Form I-512 issued by the 
director of the Texas Service Center.

What Documentation Will Be Issued if the Adjustment Application Is 
Approved?

    After processing is completed, a notice of the decision will be 
mailed to the NACARA applicant. Applicants should keep this notice for 
their records. If the application has been approved, an alien 
registration receipt card will be

[[Page 27828]]

mailed separately to the applicant. To obtain temporary evidence of 
lawful permanent resident status, the applicant may present the 
original approval notice and his or her passport or other photo 
identification at his or her local Service office. The local Service 
office will issue temporary evidence of lawful permanent resident 
status after verifying the approval of the NACARA adjustment of status 
application. If the applicant is not in possession of a passport in 
which such temporary evidence may be endorsed, he or she should also 
submit two photographs meeting Alien Documentation, Identification, and 
Telecommunication System (ADIT) specifications so that the Service may 
prepare and issue temporary evidence of lawful permanent residence 
status. If the alien previously had been issued a final order of 
exclusion, deportation, or removal, such order shall be deemed canceled 
as of the date of the approval of the application for adjustment of 
status. If the alien had been in exclusion, deportation, or removal 
proceedings that were administratively closed, such proceedings shall 
be deemed terminated as of the date of approval of the application for 
adjustment of status .

What Happens if an Application Is Denied by the Service?

    If the Service finds that an applicant is ineligible for adjustment 
of status under NACARA, the Service will advise him or her of its 
determination and of the applicant's right to seek, and the procedures 
for seeking, consideration of the application by an immigration judge. 
Depending on the individual case circumstances, those procedures could 
take one of three different routes as follows:
    (1) If exclusion, deportation, or removal proceedings had never 
been commenced, the Service will issue a Notice to Appear, thereby 
initiating removal proceedings during which the applicant may renew his 
or her application for adjustment under NACARA before an Immigration 
Court. In such proceedings, the immigration judge shall adjudicate the 
renewed application.
    (2) If exclusion, deportation, or removal proceedings had been 
initiated and administratively closed under the procedure set forth in 
8 CFR 245.13(d)(3), the Service will advise the alien of the Service's 
denial of the NACARA adjustment application and will move the 
Immigration Court, or the Board if at the time of administrative 
closure the Board had jurisdiction over the case, to recalendar the 
proceeding. The previously closed removal proceedings will then be 
recalendared by the Immigration Court or the Board, as appropriate.
    (3) If a final order of exclusion, deportation, or removal had been 
issued, the Service, using Form I-290C, Notice of Certification, will 
refer its decision to deny the NACARA adjustment application to an 
immigration judge, who will adjudicate the application in proceedings 
designed solely for the purpose of such adjudication.

What Happens if an Application Is Denied by the Immigration Court?

    If the Immigrant Court denies the NACARA adjustment application of 
an alien in exclusion, deporting, or removing proceedings before the 
Immigration Court, the decision to appealed to the Board along with and 
under the same procedures as all other issues before the Immigration 
Court in those proceedings. If the Immigration Court denies the NACARA 
adjustment application of an alien whose case was remanded to the 
Immigration Court by the Board, the Immigration Court shall certify the 
decision to the Board for review. If the Immigration Court denies the 
NACARA adjustment application of an alien whose case was referred by 
the Service for a NACARA-only inquiry, the alien shall have the right 
to appeal the decision of the Board, subject to the requests for 8 CFR 
parts 3 and 240 governing appeals from immigration judges to the Board, 
including the requirements of filing a Notice of Appeal to the Board of 
Immigration Appeals of Decision of Immigration Judge (Form EOIR-26) and 
paying the filing fee.

What Happens if an Alien Fails To Appear for a Hearing Before the 
Immigration Judge on a NACARA Adjustment as Applicable?

    An alien must appear for all scheduled hearings before an 
immigration judge, unless his or her appearance is waived by the 
immigration judge. An alien who is in exclusion, deportation, or 
removal proceedings before the immigration judge and who fails to 
appear for a hearing regarding a NACARA adjustment application will be 
subject to the applicable statutory and regulatory in absentia 
procedures (i.e., section 242B of the Act as it existed prior to the 
amendments of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA) on September 30, 1996, for 
deportation proceedings, and section 240 of the Act as amended IIRIRA 
for removal proceedings).

What Rules of Procedure Apply in NACARA-only Hearings Conducted on 
Cases Referred by the Service to the Immigration Court?

    Although an alien who is placed before the immigration judge for a 
NACARA-only hearing after referral on a Notice of Certification (Form 
I-290) to the Immigration Court by the Service is not specifically 
subject to the statutory and regulatory provisions governing exclusion, 
deportation, and removal proceedings, the Department has inserted 
language in this interim rule reflecting the standards in section 240 
of the Act for removal proceedings, including the in absentia 
procedures. Absent specific statutory direction in this area, the 
procedures of section 240 of the Act were chosen because such 
procedures are similar to those from the pre-IIRIRA section 242B of the 
Act and indicate Congress's most recent preference for procedures 
dealing with failures to appear for immigration proceedings. Use of the 
language from section 240 of the Act also assures that the in absentia  
procedures used for those in NACARA-only proceedings are consistent 
with the in absentia  procedures applicable to aliens who file NACARA 
adjustment applications in ongoing removal and deportation proceedings.
    As for those aliens who, upon reopening and remanding by the Board 
to the Immigration Court, fail to file a NACARA adjustment application 
with the Immigration Court, the immigration judge will certify the case 
back to the Board for consideration of the previously pending appeal or 
motion. If, prior to receiving a final order from the Board, the alien 
subsequently requests as remand to file a NACARA adjustment 
application, the Board shall remand the case to the Immigration Court, 
unless the alien is clearly ineligible for such relief.

Good Cause Exception

    The Department's implementation of this rule as an interim rule, 
with provision for post-promulgation public comment, is based upon the 
``good cause'' exceptions found at 5 U.S.C. 553(b)(B). Section 202 of 
NACARA became effective immediately upon enactment on November 19, 
1997. Publication of this rule as an interim rule will expedite 
implementation of that section and allow Nicaraguan and Cuban nationals 
and their spouses and children to apply for and obtain the benefits 
available to applicants for adjustment of status under NACARA as soon 
as possible before the statutory application deadline of April 1, 2000.

[[Page 27829]]

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General 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 Nicaraguan and Cuban nationals 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 considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

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, 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 foreign-
based companies in domestic and export markets.

Executive Order 12988

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 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 one year, and will not significantly or uniquely 
affect small government. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been approved for use by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act. The OMB control number for this 
collection is contained in 8 CFR 299.5, Display of control numbers.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

8 CFR Part 240

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 245

    Alien, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements. Accordingly, 
chapter I of title 8 of the Code of Federal Regulations is amended as 
follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
1362, 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3 
CFR, 1949-1953 Comp., p. 1002.

    2. Section 3.1 is amended by adding paragraph (b)(12) to read as 
follows:


Sec. 3.1  General authorities.

* * * * *
    (b) * * *
    (12) Decisions of Immigration Judges on applications for adjustment 
of status referred on a Notice of Certification (Form I-290C) to the 
Immigration Judge in accordance with Sec. 245.13(n)(2) of this chapter 
or remanded to the Immigration Court in accordance with 
Sec. 245.13(d)(2) of this chapter.
* * * * *

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    3. The authority citation for part 240 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100 (111 
Stat. 2160, 2193); 8 CFR part 2.


Sec. 240.1  [Amended]

    4. In Sec. 240.1, paragraph (a) is amended in the first sentence by 
adding the phrase ``and section 202 of Pub. L. 105-100'' immediately 
after the phrase ``and 249 of the Act''.


Sec. 240.11  [Amended]

    5. In Sec. 240.11, paragraph (a)(1) is amended in the first 
sentence by revising the phrase ``adjustment of status under section 1 
of the Act of November 2, 1966 (as modified by section 606 of Pub. L. 
104-132) or under section 101 or 104 of the Act of October 28, 1977,'' 
to read ``adjustment of status under section 1 of the Act of November 
2, 1966 (as modified by section 606 of Pub. L. 104-208), section 101 or 
104 of the Act of October 28, 1977, or section 202 of Pub. L. 105-
100,''.


Sec. 240.31  [Amended]

    6. Section 240.31 is amended in the first sentence by adding the 
phrase ``, including the adjudication of applications for adjustment of 
status pursuant to section 202 of Pub. L. 105-100'' immediately after 
the phrase ``and this chapter''.


Sec. 240.41  [Amended]

    7. In Sec. 240.41, paragraph (a) is amended in the first sentence 
by adding the phrase ``and section 202 of Pub. L. 100'' after ``and 249 
of the Act''.

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

    8. The authority citation for part 245 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 
105-100 (111 Stat. 2160, 2193); 8 CFR part 2.

    9. Section 245.13 is added to read as follows:


Sec. 245.13  Adjustment of Status of Certain Nationals of Nicaragua and 
Cuba under Public Law 105-100.

    (a) Aliens eligible to apply for adjustment. An alien is eligible 
to apply for adjustment of status under the provisions of section 202 
of Pub. L. 105-100, if the alien:
    (1) Is a national of Nicaragua or Cuba;
    (2) Except as provided in paragraph (o) of this section, has been 
physically present in the United States for a continuous period 
beginning not later than December 1, 1995, and ending not earlier that 
the date the application for adjustment is granted, excluding:

[[Page 27830]]

    (i) Any periods of absence from the United States not exceeding 180 
days in the aggregate; and
    (ii) Any periods of absence for which the applicant received an 
Advance Authorization for Parole (Form I-512) prior to his or her 
departure from the United States, provided the applicant returned to 
the United States in accordance with the conditions of such Advance 
Authorization for Parole;
    (3) Is not inadmissible to the United States for permanent 
residence under any provisions of section 212(a) of the Act, with the 
exception of paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If 
available, an applicant may apply for an individual waiver as provided 
in paragraph (c) of this section;
    (4) Is physically present in the United States at the time the 
application is filed; and
    (5) Properly files an application for adjustment of status in 
accordance with this section.
    (b) Qualified family members. (1) Existence of relationship at time 
of adjustment. The spouse, child, or unmarried son or daughter of an 
alien eligible for adjustment of status under the provisions of Pub. L. 
105-100 is eligible to apply for benefits as a dependent provided the 
qualifying relationship existed when the principal beneficiary was 
granted adjustment of status and the dependent meets all applicable 
requirements of sections 202(a) and (d) of Pub. L. 105-100.
    (2) Spouse and minor children. If physically present in the United 
States, the spouse or minor child of an alien who is eligible for 
permanent residence under the provisions of Pub. L. 105-100 may also 
apply for and receive adjustment of status under this section, provided 
such spouse or child meets the criteria established in paragraph (a) of 
this section, except for the requirement of continuous physical 
presence in the United States since December 1, 1995. Such application 
may be filed concurrently with or subsequent to the filing of the 
principal's application but may not be approved prior to approval of 
the principal's application.
    (3) Unmarried adult sons and daughters. An unmarried son or 
daughter of an alien who is eligible for permanent residence under the 
provisions of Pub. L. 105-100 may apply for and receive adjustment 
under this section, provided such son or daughter meets the criteria 
established in paragraph (a) of this section.
    (c) Applicability of inadmissibility grounds contained in section 
212(a). An applicant for the benefits of the adjustment of status 
provisions of section 202 of Pub. L. 105-100 need not establish 
admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of 
section 212(a) of the Act in order to be able to adjust his or her 
status to that of permanent resident. An applicant under section 202 of 
Pub. L. 105-100 may also apply for one or more of the immigrant waivers 
of inadmissibility under section 212 of the Act, if applicable, in 
accordance with Sec. 212.7 of this chapter.
    (d) Aliens in exclusion, deportation, or removal proceedings, and 
aliens subject to a final order of exclusion, deportation, or removal. 
(1) Proceedings pending before an Immigration Court. Except as provided 
in paragraph (d)(3) of this section, while an alien is in exclusion, 
deportation, or removal proceedings pending before an immigration 
judge, or has a pending motion to reopen or motion to reconsider filed 
with an immigration judge on or before May 21, 1998, sole jurisdiction 
over an application for adjustment of status under section 202 of 
Public Law 105-100 shall lie with the immigration judge. If an alien 
who has a pending motion to reopen or motion to reconsider filed with 
an immigration judge on or before May 21, 1998 files an application for 
adjustment of status under section 202 of Pub. L. 105-100, the 
immigration judge shall reopen the alien's proceedings for 
consideration of the adjustment application, unless the alien is 
clearly ineligible for adjustment of status under section 202 of Pub. 
L. 105-100. All applications for adjustment of status under section 202 
of Pub. L. 105-100 filed with an Immigration Court shall be subject to 
the requirements of Secs. 3.11 and 3.31 of this chapter.
    (2) Proceedings pending before the Board of Immigration Appeals. 
Except as provided in paragraph (d)(3) of this section, in the case of 
an alien who either has a pending appeal with the Board or has a 
pending motion to reopen or motion to reconsider filed with the Board 
on or before May 21, 1998, the Board shall remand, or reopen and 
remand, the proceedings to the Immigration Court for the sole purpose 
of adjudicating an application for adjustment of status under section 
202 of Pub. L. 105-100, unless the alien is clearly ineligible for 
adjustment of status under section 202 of Pub. L. 105-100. If the 
immigration judge denies, or the alien fails to file, the application 
for adjustment of status under section 202 of Pub. L. 105-100, the 
immigration judge shall certify the decision to the Board for 
consideration in conjunction with the applicant's previously pending 
appeal or motion.
    (3) Administrative closure of pending exclusion, deportation, or 
removal proceedings. (i) In the case of an alien who is in exclusion, 
deportation, or removal proceedings, or has a pending motion to reopen 
or a motion to reconsider such proceedings filed on or before May 21, 
1998, and who appears to be eligible to file an application for 
adjustment of status under section 202 of Pub. L. 105-100, the 
Immigration Court having jurisdiction over such proceedings or motion, 
or if the matter is before the Board on appeal or by motion, the Board, 
shall, upon request of the alien and with the concurrence of the 
Service, administratively close the proceedings, or continue 
indefinitely the motion, to allow the alien to file such application 
with the Service as prescribed in paragraph (g) of this section.
    (ii) In any case not administratively closed in accordance with 
paragraph (d)(3)(i) of this section, the immigration judge having 
jurisdiction over the exclusion, deportation, or removal proceedings 
shall have jurisdiction to accept and adjudicate any application for 
adjustment of status under section 202 of Pub. L. 105-100 during the 
course of such proceedings.
    (4) Aliens with final orders of exclusion, deportation, or removal. 
An alien who is subject to a final order of exclusion, deportation, or 
removal, and who has not been denied adjustment of status under section 
202 of Public Law 105-100 by the immigration judge or the Board of 
Immigration Appeals, may apply to the Service for adjustment of status 
under section 202 of Pub. L. 105-100.
    (5) Stay of final order of exclusion, deportation, or removal. (i) 
With the Service. The filing of an application for adjustment under 
section 202 of Public Law 105-100 with the Service shall not stay the 
execution of such final order unless the applicant has filed, and the 
Service has approved an Application for Stay of Removal (Form I-246) in 
accordance with section 241(c)(2) of the Act and Sec. 241.6 of this 
chapter.
    (ii) With EOIR. When the Service refers a decision to an 
immigration judge on a Notice of Certification (Form I-290C) in 
accordance with paragraph (m)(3) of this section, the referral shall 
not stay the execution of the final order. Execution of such final 
order shall proceed unless a stay of execution is specifically granted 
by the immigration judge, the Board, or an authorized Service officer.
    (6) Effect on applications for adjustment under other provisions of 
the law. Nothing in this section shall be deemed to allow any alien who 
is in either exclusion proceedings that commenced prior to April 1, 
1997, or

[[Page 27831]]

removal proceedings as an inadmissible arriving alien that commenced on 
or after April 1, 1997, and who has not been paroled into the United 
States, to apply for adjustment of status under any provision of law 
other than section 202 of Pub. L. 105-100.
    (e) Application and supporting documents. Each applicant for 
adjustment of status must file an Application to Register Permanent 
Residence or Adjust Status (Form I-485). An applicant should complete 
Part 2 of Form I-485 by checking box ``h--other'' and writing 
``NACARA--Principal'' or ``NACARA--Dependent'' next to that block. Each 
application must be accompanied by:
    (1) The fee prescribed in Sec. 103.7(b)(1) of this chapter;
    (2) Evidence of commencement of physical presence in the United 
States not later than December 1, 1997. Such evidence may consist of 
either:
    (i) Documentation evidencing one or more of the activities 
specified in section 202(b)(2)(A) of Pub. L. 105-100, or
    (ii) Other documentation issued by a Federal, State, or local 
authority provided such other documentation bears the seal of such 
authority, was dated at the time of issuance, and bears a date of 
issuance not later than December 1, 1995. Examples of such other 
documentation include, but are not limited to:
    (A) A State driver's license;
    (B) A State identification card issued in lieu of a driver's 
license to a non-driver;
    (C) A county or municipal hospital record;
    (D) A public college or public school transcript; and
    (E) Income tax records;
    (3) Evidence of continuity of physical presence in the United 
States issued by any governmental or non-governmental authority, 
provided such evidence bears the name of the applicant, was dated at 
the time it was issued, and bears the signature of the authorized 
representative of the issuing authority. There should be no 
chronological gaps in such documentation exceeding 90 days in length, 
excluding periods when the applicant states that he or she was not 
physically present in the United States. Such documentation need not 
bear the seal of the issuing authority and may include, but is not 
limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a dated bank 
cancellation stamp;
    (vi) Employment records, including pay checks;
    (vii) Credit card statements showing the dates of purchase, 
payment, or other transaction; and
    (viii) For applicants who have had ongoing correspondence or other 
interaction with the Service, a list of the types and dates of such 
correspondence or other contact that the applicant knows to be 
contained or reflected in Service records;
    (4) A copy of the applicant's birth certificate;
    (5) A complete Biographic Information Sheet (Form G-325A), if the 
applicant is between 14 and 79 years of age;
    (6) A report of medical examination, as specified in Sec. 245.5 of 
this chapter;
    (7) Two photographs, as described in the instructions to Form I-
485;
    (8) If the applicant is 14 years of age or older, a police 
clearance from each municipality where the alien has resided for six 
months or longer since arriving in the United States;
    (9) If the applicant is applying as the spouse of another Pub. L. 
105-100 beneficiary, a copy of their certificate of marriage and copies 
of documents showing the legal termination of all other marriages by 
the applicant or the other beneficiary;
    (10) If the applicant is applying as the child, unmarried son, or 
unmarried daughter of another (principal) beneficiary under section 202 
of Pub. L. 105-100 who is not the applicant's biological mother, copies 
of evidence (such as the applicant's parent's marriage certificate and 
documents showing the legal termination of all other marriages, an 
adoption decree, or other relevant evidence) to demonstrate the 
relationship between the applicant and the other beneficiary;
    (11) A copy of the Arrival-Departure Record (Form -I-94) issued at 
the time of the applicant's arrival in the United States, if the alien 
was inspected and admitted or paroled; and
    (12) If the applicant has departed from and returned to the Untied 
States since December 1, 1995, an attachment on a plain piece of paper 
showing:
    (i) The date of the applicant's last arrival in the United States 
before or on December 1, 1995;
    (ii) The date of each departure (if any) from the United States 
since that arrival;
    (iii) The reason for each departure; and
    (iv) The date, manner, and place of each return to the United 
States.
    (f) Secondary evidence. If the primary evidence required in 
paragraph (e)(4), (e)(9) or (e)(10 of this section is unavailable, 
church or school records, or other secondary evidence pertinent to the 
facts in issue, may be submitted. If such documents are unavailable, 
affidavits may be submitted. The applicant may submit as many types of 
secondary evidence as necessary to establish the birth, marriage, or 
other event. Documentary evidence establishing that primary evidence is 
unavailable must accompany secondary evidence of birth or marriage in 
the home country. In adjudicating the application for adjustment of 
status under section 202 of Public Law 105-100, the Service or 
immigration judge shall determine the weight to be given such secondary 
evidence. Secondary evidence may not be submitted in lieu of the 
documentation specified in paragraphs (e)(2) and (e)(3) of this 
section. However, subject to verification by the Service, if the 
documentation specified in paragraphs (e)(2) and (e)(3) is already 
contained in the Service's file relating to the applicant, the 
applicant may submit an affidavit to that effect in lieu of the actual 
documentation.
    (g) Filing. The application period begins on June 22, 1998. To 
benefit from the provisions of section 202 of Public Law 105-100, an 
alien must properly file an application for adjustment of status before 
April 1, 2000. Except as provided in paragraph (d) of this section, all 
applications for the benefits of section 202 of Pub. L. 105-100 must be 
submitted by mail to: USINS Texas Service Center, P.O. Box 851804, 
Mesquite, TX 75185-1804. After proper filing of the application, the 
Service will notify the applicant to appear for fingerprinting as 
prescribed in Sec. 103.2(e) of this chapter.
    (h) Jurisdiction. Except as provide din paragraphs (d) and (i) of 
this section, the director of the Texas Service Center shall have 
jurisdiction over all applications for adjustment of status under 
section 202 of Public Law 105-100.
    (i) Interview. (1) Except as provided in paragraphs (d), (i)(2), 
and (i)(3) of this section, all applicants for adjustment of status 
under section 202 of Pub. L. 105-100 must be personally interviewed by 
an immigration officer at a local office of the Service. In any case in 
which the director of the Texas Service Center determines that an 
interview of the applicant is necessary, that director shall forward 
the case to the appropriate local Service office for interview and 
adjudication.
    (2) In the case of an applicant who has submitted evidence of 
commencement of physical presence in the United States consisting of 
one or more of the documents specified in section 202(b)(2)(A)(i) 
through (v) or section

[[Page 27832]]

202(b)(2)(A)(vii) of Pub. L. 105-100 and upon examination of the 
application, including all other evidence submitted in support of the 
application, all relevant Service records and all other relevant law 
enforcement indices, if the director of the Texas Service Center 
determines that the alien is clearly eligible for adjustment of status 
under Pub. L. 105-100 and that an interview of the applicant is not 
necessary, the director may approve the application.
    (3) Upon examination of the application, all supporting 
documentation, all relevant Service records, and all other relevant law 
enforcement indices, if the director of the Texas Service Center 
determines that the alien is clearly ineligible for adjustment of 
status under Pub. L. 105-100 and that an interview of the applicant is 
not necessary, the director may deny the application.
    (j) Authorization to be employed in the United States while the 
application is pending. (1) Application. An applicant for adjustment of 
status under section 202 of Pub. L. 105-100 who wishes to obtain 
initial or continued employment authorization during the pendency of 
the adjustment application must file an Application for Employment 
authorization (Form I-765), with fee as set forth in Sec. 103.7(b)(1) 
of this chapter. The applicant may either submit Form I-765 
concurrently with Form I-485 or wait for at least 90 days after 
submission of Form I-485.
    (2) Adjudication and issuance. In general, employment authorization 
may not be issued to an applicant for adjustment of status under 
section 202 of Pub. L. 105-100 until the adjustment application has 
been pending for 180 days. However, if Service records contain one or 
more of the documents specified in section 202(b)(2)(A)(i) through (v) 
and (vii) of Pub. L. 105-100, evidence of the applicant's Nicaraguan or 
Cuban nationality, and no indication that the applicant is clearly 
ineligible for adjustment of status under section 202 of Pub. L. 105-
100, the application for employment authorization may be approved, and 
the resulting document issued immediately upon verification that the 
Service record contains such information. If the Service fails to 
adjudicate the application for employment authorization upon expiration 
of the 180-day waiting period or within 90 days of the filing of 
application for employment authorization, whichever comes later, the 
alien shall be eligible for interim employment authorization in 
accordance with Sec. 274a.13(d) of this chapter. Nothing in this 
section shall preclude an applicant for adjustment of status under Pub. 
L. 105-100 from being granted an initial employment authorization or an 
extension of employment authorization under any other provision of law 
or regulation for which the alien may be eligible.
    (k) Parole authorization for purposes of travel. (1) Travel from 
and return to the United States while the application for adjustment of 
status is pending. If an applicant for benefits under section 202 of 
Pub. L. 105-100 desires to travel outside, and return to, the United 
States while the application for adjustment of status is pending, he or 
she must file a request for advance parole authorization on an 
Application for Travel Document (Form I-131), with fee as set forth in 
Sec. 103.7(b)(1) of this chapter and in accordance with the 
instructions on the form. If the alien is either in deportation or 
removal proceedings, or subject to a final order of deportation or 
removal, the Form I-131 must be submitted to the Assistant Commissioner 
for International Affairs; otherwise the Form I-131 must be submitted 
to the director of the Texas Service Center, who shall have 
jurisdiction over such applications. If any applicant departs the 
United States without first obtaining an advance parole, his or her 
application for adjustment of status under section 202 of Pub. L. 105-
100 is deemed to be abandoned as of the moment of his or her departure.
    (2) Parole authorization for the purpose of filing an application 
for adjustment of status under section 202 of Pub. L. 105-100. An 
otherwise eligible applicant who is outside the United States and 
wishes to come to the United States in order to apply for benefits 
under section 202 of Pub. L. 105-100 may request parole authorization 
for such purpose by filing an Application for Travel Document (Form I-
131) with the Texas Service Center, at P.O. Box 851804, Mesquite, TX 
75185-1804. Such application must be supported by a photocopy of the 
Form I-485 that the alien will file once he or she has been paroled 
into the United States. The applicant must include photocopies of all 
the supporting documentation listed in paragraph (e) of this section, 
except the filing fee, the medical report, the fingerprint card, and 
the local police clearances. If the director of the Texas Service 
Center is satisfied that the alien will be eligible for adjustment of 
status once the alien has been paroled into the United States and files 
the application, he or she may issue an Authorization for Parole of an 
Alien into the United States (Form I-512) to allow the alien to travel 
to, and be paroled into, the United States for a period of 60 days. The 
applicant shall have 60 days from the date of parole to file the 
application for adjustment of status. If the alien files the 
application for adjustment of status within that 60-day period, the 
Service may re-parole the alien for such time as is necessary for 
adjudication of the application. Failure to file such application for 
adjustment of status within 60 days shall result in the alien being 
returned to the custody of the Service and being examined as an 
arriving alien applying for admission. Such examination will be 
conducted in accordance with the provisions of section 235(b)(1) of the 
Act if the alien is inadmissible under section 212(a)(6)(C) or 
212(a)(7) of the Act, or section 240 of the Act if the alien is 
inadmissible under any other grounds.
    (3) Effect of departure on an outstanding warrant of exclusion, 
deportation, or removal. If an alien who is the subject of an 
outstanding final order of exclusion, deportation, or removal departs 
from the United States, with or without an advance parole 
authorization, such final order shall be executed by the alien's 
departure. The execution of such final order shall not preclude the 
applicant from filing an Application for Permission to Reapply for 
Admission Into the United States After Deportation or Removal (Form I-
212) in accordance with Sec. 212.2 of this chapter.
    (l) Approval. If the director approves the application for 
adjustment of status under the provisions of section 202 of Pub. L. 
105-100, the director shall record the alien's lawful admission for 
permanent resident as of the date of such approval and notify the 
applicant accordingly. If the alien had previously been issued a final 
order of exclusion, deportation, or removal, such order shall be deemed 
canceled as of the date of the director's approval of the application 
for adjustment of status. If the alien had been in exclusion, 
deportation, or removal proceedings that were administratively closed, 
such proceedings shall be deemed terminated as of the date of approval 
of the application for adjustment of status by the director. If an 
immigration judge grants or if the Board, upon appeal, grants an 
application for adjustment under the provisions of section 202 of Pub. 
L. 105-100, the alien's lawful admission for permanent residence shall 
be as of the date of such grant.
    (m) Denial and review of decision. If the director denies the 
application for adjustment of status under the provisions of section 
202 of Pub. L. 105-100, the director shall notify the

[[Page 27833]]

applicant of the decision. The director shall also:
    (1) In the case of an alien who is not maintaining valid 
nonimmigrant status and who had not previously been placed in 
exclusion, deportation, or removal proceedings, initiate removal 
proceedings in accordance with Sec. 239.1 of this chapter during which 
the alien may renew his or her application for adjustment of status 
under section 202 of Pub. L. 105-100; or
    (2) In the case of an alien whose previously initiated exclusion, 
deportation, or removal proceeding had been administratively closed or 
continued indefinitely under paragraph (d)(3) of this section, advise 
the Immigration Court that had administratively closed the proceeding, 
or the Board, as appropriate, of the denial of the application. The 
Immigration Court or the Board will then recalendar or reinstate the 
prior exclusion, deportation, or removal proceeding, during which 
proceeding the alien may renew his or her application for adjustment 
under section 202 of Pub. L. 105-100; or
    (3) In the case of an alien who is the subject of an outstanding 
final order of exclusion, deportation, or removal, refer the decision 
to deny the application by filing a Notice of Certification (Form I-
290C) with the Immigration Court that issued the final order for 
consideration in accordance with paragraph (n) of this section.
    (n) Action of immigration judge upon referral of decision by a 
Notice of Certification (Form I-290C). (1) General. Upon the referral 
by a Notice of Certification (Form I-290C) of a decision to deny the 
application, in accordance with paragraph (m)(3) of this section, and 
under the authority contained in Sec. 3.10 of this chapter, the 
immigration judge shall conduct a hearing to determine whether the 
alien is eligible for adjustment of status under section 202 of Public 
Law 105-100. Such hearing shall be conducted under the same rules of 
procedure as proceedings conducted under part 240 of this chapter, 
except the scope of review shall be limited to a determination on the 
alien's eligibility for adjustment of status under section 202 of 
Public Law 105-100. During such proceedings all parties are prohibited 
from raising or considering any other issues, including but not limited 
to issues of admissibility, deportability, removability, and 
eligibility for any form of relief other than adjustment of status 
under section 202 of Public Law 105-100. Should the alien fail to 
appear for such hearing, the immigration judge shall deny the 
application for adjustment under section 202 of Public Law 105-100.
    (2) Appeal of immigration judge decision. Once the immigration 
judge issues his or her decision on the application, either the alien 
or the Service may appeal the decision to the Board. Such appeal must 
be filed pursuant to the requirements for appeals to the Board from an 
immigration judge decision set forth in Secs. 3.3 and 3.8 of this 
chapter.
    (3) Rescission of the decision of an immigration judge. The 
decision of an immigration judge under paragraph (n)(1) of this section 
denying an application for adjustment under section 202 of Public Law 
105-100 for failure to appear may be rescinded only:
    (i) Upon a motion to reopen filed within 180 days after the date of 
the denial if the alien demonstrates that the failure to appear was 
because of exceptional circumstances as defined in section 240(e)(1) of 
the Act; or
    (ii) Upon a motion to reopen filed at any time if the alien 
demonstrates that the alien did not receive notice of the hearing in 
person (or, if personal service was not practicable, through service by 
mail to the alien or to the alien's counsel of record, if any) or the 
alien demonstrates that the alien was in Federal or State custody and 
the failure to appear was through no fault of the alien.
    (o) Transition period provisions for tolling the physical presence 
in the United States provision for certain individuals. (1) Departure 
without advance authorization for parole. In the case of an otherwise 
eligible applicant who departed the United States on or before December 
31, 1997, the physical presence in the United States provision of 
section 202(b)(1) of Pub. L. 105-100 is tolled as of November 19, 1997, 
and until July 20, 1998.
    (2) Departure with advance authorization for parole. In the case of 
an alien who departed the United States after having been issued an 
Authorization for parole of an Alien into the United States (Form I-
512), and who returns to the United States in accordance with the 
conditions of that document, the physical presence in the United States 
requirement of section 202(b)(1) of Pub. L. 105-100 is tolled while the 
alien is outside the United States pursuant to the issuance of the Form 
I-512.
    (3) Request for parole authorization from outside the United 
States. In the case of an alien who is outside the United States and 
submits an application for parole authorization in accordance with 
paragraph (k)(2) of this section, and such application for parole 
authorization is granted by the Service, the physical presence in the 
United States provisions of section 202(b)(1) of Pub. L. 105-100 is 
tilled from the date the application is received at the Texas Service 
Center until the alien is paroled into the United States pursuant to 
the issuance of the Form I-512.

(Approved by the Office of Management and Budget under Control Number 
1115-0221.)

PART 274A--CONTROL OF EMPLOYMENT OF ALIENS

    10. The authority citation for part 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.


Sec. 274a.12  [Amended]

    11. In Sec. 274a.12, paragraph (c)(9) is amended in the second 
sentence by revising the term ``Employment authorization'' to read: 
``Except as provided in Sec. 245.13(j) of this chapter, employment 
authorization''.


Sec. 274a.13  [Amended]

    12. In Sec. 274a.13, paragraph (d) is amended in the first sentence 
by revising the phrase ``Sec. 274a.12(c)(8), which is governed by 
paragraph (a)(2) of this section, and Sec. 274a.12(c)(9) in so far as 
it is governed by Sec. 245.13(j) of this chapter''.

PART 299--IMMIGRATION FORMS

    13. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

    14. Section 299.1 is amended in the table by:
    a. Revising the entry for Form ``I-290C'', and by
    b. Adding the entry for Form ``I-485 Supplement B'' in proper 
numerical sequence, to read as follows:


Sec. 299.1  Prescribed forms.

* * * * *

[[Page 27834]]



------------------------------------------------------------------------
                                     Edition                            
             Form No.                  date              Title          
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
I-290C............................   03-01-98  Notice of Certification. 
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
I-485 Supplement B................   03-01-98  NACARA Supplement to Form
                                                I-485 Instructions.     
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
------------------------------------------------------------------------

    15. Section 299.5 is amended in the table by adding the entry for 
Form ``I-485 Supplement B'' in proper numerical sequence, to read as 
follows:


Sec. 299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                             Currently  
          INS form No.                INS form title       assigned OMB 
                                                            control No. 
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
                                     *                                  
I-485 Supplement B.............  NACARA Supplement to          1115-0221
                                  Form I-485                            
                                  Instructions.                         
                                                                        
*                  *                  *                  *              
                                     *                                  
------------------------------------------------------------------------

    Dated: May 12, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-13246 Filed 5-20-98; 8:45 am]
BILLING CODE 4410-10-M