Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations 27823

IMPORT ASSESSMENT TABLE—

Continued

[Raw cotton fiber]

HTS No. Conv.

fact.

Cents/

kg.

6302910035 .................. 1.052 1.2466

6302910045 .................. 1.052 1.2466

6302910050 .................. 1.052 1.2466

6302910060 .................. 1.052 1.2466

6303110000 .................. 0.9448 1.1196

6303910000 .................. 0.6429 0.7618

6304111000 .................. 1.0629 1.2595

6304190500 .................. 1.052 1.2466

6304191000 .................. 1.1689 1.3851

6304191500 .................. 0.4091 0.4848

6304192000 .................. 0.4091 0.4848

6304910020 .................. 0.9351 1.1081

6304920000 .................. 0.9351 1.1081

6505901540 .................. 1.181 1.3995

6505902060 .................. 0.9935 1.1773

6505902545 .................. 0.5844 0.6925

* * * * *

Dated: May 15, 1998.

Mary E. Atienza,

Deputy Administrator, Cotton Programs.

[FR Doc. 98–13525 Filed 5–20–98; 8:45 am]

BILLING CODE 3410–02–P

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.

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
27824 Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations 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
27826 Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations 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 ‘‘selfdeport’’ 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 NACARAeligible 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
27828 Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations

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.
Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations 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 foreignbased 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:

§ 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 § 245.13(n)(2) of this

chapter or remanded to the Immigration

Court in accordance with § 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.

§ 240.1 [Amended]

4. In § 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’’.

§ 240.11 [Amended]

5. In § 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,’’.

§ 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’’.

§ 240.41 [Amended]

7. In § 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:

§ 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:
27830 Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations

(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 § 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 §§ 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 § 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
Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations 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 § 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 nondriver;

(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 § 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 § 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
27832 Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations

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

§ 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 § 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

§ 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 § 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
Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations 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 § 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 § 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 §§ 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.

§ 274a.12 [Amended]

11. In § 274a.12, paragraph (c)(9) is

amended in the second sentence by

revising the term ‘‘Employment

authorization’’ to read: ‘‘Except as

provided in § 245.13(j) of this chapter,

employment authorization’’.

§ 274a.13 [Amended]

12. In § 274a.13, paragraph (d) is

amended in the first sentence by

revising the phrase ‘‘§ 274a.12(c)(8),

which is governed by paragraph (a)(2) of

this section, and § 274a.12(c)(9) in so far

as it is governed by § 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:

§ 299.1 Prescribed forms.

* * * * *
27834 Federal Register / Vol. 63, No. 98 /Thursday, May 21, 1998 /Rules and Regulations

Form No. Edition

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:

§ 299.5 Display of control numbers.

* * * * *

INS form No. INS form title

Currently assigned OMB

control No.

* * * * *

I–485 Supplement B ................................................................... NACARA Supplement to Form I–485 Instructions ..................... 1115–0221

* * * * *

Dated: May 12, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98–13246 Filed 5–20–98; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 98–NM–40–AD; Amendment

39–10534; AD 98–11–07]

RIN 2120–AA64

Airworthiness Directives; Dornier

Model 328–100 Series Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule.

SUMMARY: This amendment adopts a

new airworthiness directive (AD),

applicable to certain Dornier Model

328–100 series airplanes, that requires a

one-time inspection of the double

shuttle valve in the upper fuselage

fairing for incorrectly labeled part

numbers, and corrective actions, if

necessary. This amendment is prompted

by issuance of mandatory continuing

airworthiness information by a foreign

civil airworthiness authority. The

actions specified by this AD are

intended to ensure replacement of the

double shuttle valves when they have

reached their maximum life limit;

incorrectly labeled part numbers of the

double shuttle valves that are not

replaced could result in the failure of

the roll control spoilers, and,

consequently, lead to reduced

controllability of the airplane.

DATES: Effective June 25, 1998.

The incorporation by reference of

certain publications listed in the

regulations is approved by the Director

of the Federal Register as of June 25,

1998.

ADDRESSES: The service information

referenced in this AD may be obtained

from FAIRCHILD DORNIER, DORNIER

Luftfahrt GmbH, P.O. Box 1103, D–

82230 Wessling, Germany. This

information may be examined at the

Federal Aviation Administration (FAA),

Transport Airplane Directorate, Rules

Docket, 1601 Lind Avenue, SW.,

Renton, Washington; or at the Office of

the Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Norman B. Martenson, Manager,

International Branch, ANM–116, FAA,

Transport Airplane Directorate, 1601

Lind Avenue, SW., Renton, Washington

98055–4056; telephone (425) 227–2110;

fax (425) 227–1149.

SUPPLEMENTARY INFORMATION: A

proposal to amend part 39 of the Federal

Aviation Regulations (14 CFR part 39) to

include an airworthiness directive (AD)

that is applicable to certain Dornier

Model 328–100 series airplanes was

published in the Federal Register on

March 20, 1998 (63 FR 13577). That

action proposed to require a one-time

inspection of the double shuttle valve in

the upper fuselage fairing for incorrectly

labeled part numbers, and corrective

actions, if necessary.

Comments

Interested persons have been afforded

an opportunity to participate in the

making of this amendment. No

comments were submitted in response

to the proposal or the FAA’s

determination of the cost to the public.

Conclusion

The FAA has determined that air

safety and the public interest require the

adoption of the rule as proposed.

Cost Impact

The FAA estimates that 50 airplanes

of U.S. registry will be affected by this

AD. It will take approximately 1 work

hour per airplane to accomplish the

required inspection at an average labor

rate of $60 per work hour. Based on this

figure, the cost impact of the inspection

required by this AD on U.S. operators is

estimated to be $3,000, or $60 per

airplane.

The cost impact figure discussed

above is based on assumptions that no

operator has yet accomplished any of

the requirements of this AD action, and

that no operator would accomplish

those actions in the future if this AD

were not adopted.

Regulatory Impact

The regulations adopted herein 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 final rule does