This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

29661

Vol. 66, No. 106

Friday, June 1, 2001

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 272 and 273

RIN 0584–AC39

Food Stamp Program: Personal

Responsibility Provisions of the

Personal Responsibility and Work

Opportunity Reconciliation Act of

1996; Delay of Effective Date

AGENCY: Food and Nutrition Service,

USDA.

ACTION: Final rule; delay of effective

date.

SUMMARY: The final rule, ‘‘The Personal

Responsibility Provisions of the

Personal Responsibility and Work

Opportunity Reconciliation Act of

1996,’’ was published on January 17,

2001 at FR 66 4438. The rule finalizes

the proposed rule of the same name

which was published December 17,

1999. It implements 13 provisions of the

Personal Responsibility and Work

Opportunity Reconciliation Act of 1996.

The original effective date of the rule

(with the exception of one amendment)

was April 2, 2001. In accordance with

the memorandum of January 20, 2001,

from the Assistant to the President and

Chief of Staff, entitled ‘‘Regulatory

Review Plan,’’ published in the Federal

Register on January 24, 2001, the

effective date of the rule was delayed for

60 days to June 1, 2001, via an action

published in the Federal Register on

February 5, 2001 at 66 FR 8886. The

Under Secretary of the Food, Nutrition,

and Consumer Services and has just

recently been confirmed and has not yet

been sworn-in. In order to give the new

Under Secretary time to review the rule,

this action delays the effective date of

the final rule (with the exception of one

amendment) an additional 60 days to

July 31, 2001.

In addition, the State agencies were

required to implement the final rule no

later than August 1, 2001. Because the

rule will not be effective now until July

31, 2001, this action establishes a new

implementation date of October 1, 2001.

DATES: The effective date of the Personal

Responsibility Provisions of the

Personal Responsibility and Work

Opportunity Reconciliation Act of 1996,

published in the Federal Register, on

January 17, 2001, at 66 FR 4438, is

delayed for an additional 60 days, from

June 1, 2001 to a new effective date of

July 31, 2001, except for the amendment

to 7 CFR 272.2(d)(1)(xiii) which retains

the effective date of August 1, 2001. The

implementation date of the final rule is

delayed for 60 days from August 1,

2001, to a new implementation date of

October 1, 2001.

FOR FURTHER INFORMATION CONTACT:

Patrick Waldron, Chief, Certification

Policy Branch, Program Development

Division, Food and Nutrition Service,

USDA, 3101 Park Center Drive,

Alexandria, Virginia, 22302, (703) 305–

2495.

SUPPLEMENTARY INFORMATION: To the

extent that 5 U.S.C. section 553 applies

to this section, it is exempt from notice

and comment because it constitutes a

rule of procedure under 5 U.S.C. section

553(b)(A). Alternatively, the

Department’s implementation of this

rule without opportunity for public

comment, effective immediately upon

publication today in the Federal

Register, is based on the good cause

exceptions in 5 U.S.C. section 553(b)(B)

and 553(d)(3). Seeking public comment

is impracticable, unnecessary and

contrary to the public interest. The

temporary 60-day delay in effective date

is necessary to give Department officials

the opportunity for further review and

consideration of new regulations,

consistent with the Assistant to the

President’s memorandum of January 20,

2001. Given the imminence of the

effective date, seeking prior public

comment on this temporary delay

would have been impractical, as well as

contrary to the public interest in the

orderly promulgation and

implementation of regulations. The

imminence of the effective date is also

good cause for making this rule effective

immediately upon publication.

Dated: May 29, 2001.

George A. Braley,

Acting Administrator, Food and Nutrition

Service.

[FR Doc. 01–13854 Filed 5–31–01; 8:45 am]

BILLING CODE 3410–30–U

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 100, 103, 236, 245a, 274a

and 299

[INS No. 2115–01; AG Order No. 2430–2001]

RIN 1115–AG06

Adjustment of Status Under Legal

Immigration Family Equity (LIFE) Act

Legalization Provisions and LIFE Act

Amendments Family Unity Provisions

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This interim rule implements

section 1104 of the Legal Immigration

Family Equity Act (LIFE Act) and the

LIFE Act Amendments by establishing

procedures for certain class action

participants to become lawful

permanent residents of this country.

Persons who may be eligible to adjust

under section 1104 of the LIFE Act and

its Amendments are aliens who have

filed for class membership with the

Attorney General, before October 1,

2000, in one of three legalization

lawsuits: (1) Catholic Social Services,

Inc. v. Meese, vacated sub nom. Reno v.

Catholic Social Services, Inc., 509 U.S.

43 (1993) (CSS); (2) League of United

Latin American Citizens v. INS, vacated

sub nom. Reno v. Catholic Social

Services, Inc., 509 U.S. 43 (1993)

(LULAC); or (3) Zambrano v. INS,

vacated, 509 U.S. 918 (1993)

(Zambrano).

This interim rule also implements

section 1504 of the LIFE Act

Amendments by providing for a stay of

removal and work authorization for

certain spouses and unmarried children

of those aliens eligible to adjust under

section 1104 of the LIFE Act.

This rule is necessary to ensure that

those aliens eligible to apply for benefits

under the provisions of the LIFE Act

and LIFE Act Amendments are able to

do so in a timely manner.

29662 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

DATES: Effective date: This interim rule

is effective June 1, 2001.

Comment date: Written comments

must be submitted on or before July 31,

2001.

ADDRESSES: Please submit written

comments to Richard A. Sloan, Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street NW, Room 4034,

Washington, DC 20536. To ensure

proper handling, please reference INS

No. 2115–01 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:

Elizabeth N. Lee or Suzy Nguyen,

Assistant Directors, for matters relating

to LIFE Legalization; Elizabeth N. Lee or

Rebecca Peters, for matters relating to

Family Unity; Office of Adjudications,

Immigration and Naturalization Service,

425 I Street NW, Room 3214,

Washington, DC 20536, telephone (202)

514–3228.

SUPPLEMENTARY INFORMATION: This

supplemental information section is

organized as follows:

Legal Immigration Family Equity (LIFE) Act

Legalization Provisions

1. Definitions

2. Eligibility

3. Ineligibility and grounds of inadmissibility

4. Filing and applications

5. During pendency of application

6. Proof of eligibility

7. Decisions, appeals, motions, and

certifications

LIFE Act Amendments Family Unity

Provisions

1. Eligibility

2. Description of program

3. Ineligible aliens

4. Filing

5. Protection from removal and eligibility for

employment

6. Travel outside the United States

7. Termination of Family Unity benefits

Legal Immigration Family Equity (LIFE)

Act Legalization Provisions

Definitions

What Are the Legalization Provisions of

the LIFE Act?

On December 21, 2000, President

Clinton signed into law the Legal

Immigration Family Equity Act (LIFE

Act), Title XI of H.R. 5548, enacted by

reference in Public Law 106–553 (Dec.

21, 2000), and the LIFE Act

Amendments, Title XV of H.R. 5666,

enacted by reference in Public Law 106–

554 (Dec. 21, 2000), which provides for

numerous different immigration

benefits. Section 1104 of the LIFE Act

and its Amendments (LIFE Legalization)

allow certain eligible aliens to apply for

adjustment of status to that of a lawful

permanent resident (LPR) under a

modified version of section 245A of the

Immigration and Nationality Act (Act)

(8 U.S.C. 1255a). Aliens who are eligible

to apply for adjustment under LIFE

Legalization are only those who, before

October 1, 2000, had filed with the

Attorney General a written claim for

class membership in the CSS, LULAC,

or Zambrano legalization class action

lawsuits. In order to qualify for

adjustment, aliens must establish that

they entered the United States before

January 1, 1982, and thereafter resided

in continuous unlawful status through

May 4, 1988. Aliens must also establish

that they were continuously physically

present in the United States from

November 6, 1986, through May 4, 1988.

Furthermore, aliens must demonstrate

basic citizenship skills. Finally, aliens

must be otherwise admissible to the

United States under the Act. LIFE

Legalization also provides for a stay of

removal or deportation and work

authorization for eligible aliens under

this law while their adjustment

applications are pending.

What Are the Family Unity Provisions

of the LIFE Act?

Section 1504 of the LIFE Act

Amendments provides that the Attorney

General may not remove certain spouses

and children of aliens eligible to adjust

under LIFE Legalization and shall grant

employment authorization to those

eligible spouses and children for the

period of time in which they have been

afforded Family Unity protection. The

exact scope of the Family Unity

provisions of the LIFE Act Amendments

is discussed later in this interim rule.

What Are the Provisions of Section

245A of the Act?

On November 6, 1986, President

Reagan signed into law the Immigration

Reform and Control Act of 1986 (IRCA),

Public Law 99–603. Section 201 of IRCA

created a ‘‘legalization’’ program under

section 245A of the Act, that allowed for

certain aliens to apply for adjustment to

temporary resident status, and later to

LPR status. To be eligible, an alien

needed to establish that he or she

entered the United States before January

1, 1982, and that he or she resided

continuously in the United States in an

unlawful status since such date through

the date that his or her application for

temporary resident status was filed.

Aliens who entered the United States

without inspection and certain

nonimmigrants were eligible to apply

under the IRCA. The legalization

program had a 1-year application period

that began on May 5, 1987, and ended

on May 4, 1988.

What Modifications Do the LIFE

Legalization Provisions Make to Section

245A of the Act?

LIFE Legalization made several

notable modifications to section 245A of

the Act (8 U.S.C. 1255a). First, aliens

who applied for legalization benefits

under IRCA first needed to apply for

adjustment to lawful temporary resident

status. Subsequent to this adjustment,

these aliens were required to apply for

adjustment to LPR status. In contrast,

those eligible aliens applying for

adjustment of status under LIFE

Legalization will be submitting

applications to adjust to LPR status

directly. There is no provision or

requirement for first adjusting to lawful

temporary resident status.

Second, sections 245A (c)(1) through

(c)(4) of the Act allowed for qualified

designated entities (QDEs) to forward

applications for adjustment of status

under section 245A of the Act to the

Immigration and Naturalization Service

(Service), provided the alien had

consented to such action. The LIFE

Legalization provisions have no such

QDE provision. Accordingly, all

applications for adjustment of status

under LIFE Legalization must be filed

by the alien, or by his or her

representative, directly to the Service.

Third, section 245A(c)(7) of the Act

provided for the allocation of up to $3

million of the application fees for

section 245A of the Act to immigrationrelated unfair employment practices

programs. The LIFE Legalization

provisions specifically prohibit the use

of any funds collected through this

program to be used in such a manner.

Fourth, section 245A(f)(4)(C) of the

Act prohibited any court from having

jurisdiction over any cause or action or

claim by, or on behalf of, any person

asserting an interest under section 245A

of the Act unless that person had

actually filed or attempted to file an

application under section 245A of the

Act. This section does not apply to an

alien eligible for adjustment under LIFE

Legalization, effective November 6,

1986.

Fifth, section 245A(h) of the Act

provided a 5-year prohibition on newly

legalized aliens from receiving certain

public welfare assistance. The LIFE

Legalization provisions specifically state

that section 245A(h) does not apply to

those aliens who adjust to LPR status

under LIFE Legalization. Although

aliens who have adjusted their status

under the LIFE Legalization provisions

are exempt from the bar on public

assistance under Section 245A(h), they

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29663

remain subject to the restrictions on

access to benefits set forth in the

Personal Responsibility and Work

Opportunity Reconciliation Act of 1996

(Welfare Reform Act), as amended

(Public Law 104–193, 110 Stat. 2105).

The Welfare Reform Act, as amended,

establishes restrictions on access to

federal, state, and local public benefits

by aliens, including lawful permanent

residents. 8 U.S.C. 1601 through 1625.

Aliens who adjust to permanent

residency under LIFE Legalization are

encouraged to contact the relevant

benefit-granting agency for information

about their eligibility for specific public

benefit programs. See also, Notice,

Interim Guidance on Verification of

Citizenship, Qualified Alien Status and

Eligibility Under Title IV of the Personal

Responsibility and Work Opportunity

Reconciliation Act of 1996, 62 FR

61344; Notice, Personal Responsibility

and Work Opportunity Reconciliation

Act of 1996; Interpretation of ‘‘Federal

Public Benefit,’’ 63 FR 41658.

Sixth, LIFE Legalization provides for

the same confidentiality provisions as

the IRCA, with the exception that

information furnished by an eligible

alien pursuant to any applications filed

under LIFE Legalization may be used by

the Attorney General for purposes of

rescinding LPR status pursuant to 8 CFR

part 246.

In many other respects the provisions

of LIFE Legalization are identical to

those contained in section 245A of the

Act. Accordingly, where applicable,

much of the regulatory language

contained in this interim rule is taken

from 8 CFR 245a.3 (Application for

adjustment from temporary to

permanent resident status).

What Are the Three Pertinent

Legalization Class Action Lawsuits CSS,

LULAC, and Zambrano About?

The three class action lawsuits listed

in LIFE Legalization involved claims by

aliens who were unsuccessful in

applying for legalization under section

245A of the Act enacted in 1986. The

aliens in CSS, LULAC, and Zambrano

argued that either their claims were

denied or that they were discouraged

from applying.

Eligibility

How is an Alien Eligible for Adjustment

to LPR Status Under LIFE Legalization?

First, an alien must prove that he or

she, before October 1, 2000, filed a

written claim with the Attorney General

for class membership in the CSS,

LULAC, or Zambrano legalization class

action lawsuits in order to be

considered an eligible alien for

adjustment to LPR status under LIFE

Legalization. Applicants who were

denied class membership in the CSS,

LULAC, or Zambrano legalization class

action lawsuits by the Service are still

eligible to apply for adjustment of status

under LIFE Legalization.

Second, an eligible alien must then

submit evidence to establish the

following five requirements—that he or

she:

1. Properly files an application for

adjustment under LIFE Legalization;

2. Entered the United States before

January 1, 1982, and resided

continuously in the United States in an

unlawful status since that date through

May 4, 1988;

3. Was continuously physically

present in the United States during the

period from November 6, 1986, through

May 4, 1988;

4. Is not inadmissible to the United

States for permanent residence under

any provisions of the Act; and

5. Establishes basic citizenship skills

as required.

Ineligibility and Grounds of

Inadmissibility

Who Is Ineligible for Adjustment Under

LIFE Legalization?

As under IRCA, LIFE Legalization

specifies that any otherwise eligible

alien who has ever been convicted of a

felony or of three or more misdemeanors

in the United States is ineligible to

adjust status under LIFE Legalization.

Further, any alien who has ever assisted

in the persecution of any person or

persons on account of race, religion,

nationality, membership in a particular

social group, or political opinion is

ineligible to adjust status under LIFE

Legalization. There are no waivers

available for the grounds of ineligibility

described in this paragraph.

The LIFE Legalization provisions

further specify that section 241(a)(5) of

the Act (8 U.S.C. 1231(a)(5)) does not

apply to an alien adjusting under LIFE

Legalization. Section 241(a)(5) of the

Act provides for the reinstatement of a

removal order against any alien who

illegally re-enters the United States after

having been removed or after having

departed voluntarily under an order of

removal. It also bars any alien whose

removal order has been reinstated from

receiving any relief under the Act.

All aliens must establish that they are

admissible under section 212(a) of the

Act (8 U.S.C. 1182(a)). Sections

212(a)(5) (labor certification

requirements) and 212(a)(7)(A)

(documentation requirements for

immigrants) are not applicable to LIFE

Legalization applicants. Any alien who

is inadmissible under other provisions

of section 212(a) of the Act is not

eligible for adjustment to LPR status

under section 245A of the Act (8 U.S.C.

1255a). A waiver for humanitarian

purposes, to assure family unity, or

when it is otherwise in the public

interest is available for some, but not all,

grounds of inadmissibility. In addition,

the LIFE Legalization provisions also

allow for waivers for those aliens

inadmissible pursuant to sections

212(a)(9)(A) and 212(a)(9)(C) of the Act

(aliens previously removed and aliens

unlawfully present after previous

immigration violations). The following

grounds of inadmissibility under section

212(a) of the Act, however, may not be

waived:

1. Sections 212(a)(2)(A) and (B) of the

Act, crimes involving moral turpitude

and controlled substances;

2. Section 212(a)(2)(C) of the Act,

controlled substance traffickers;

3. Section 212(a)(3) of the Act,

security and related grounds; and

4. Section 212(a)(4) of the Act, aliens

likely to become a public charge.

In determining whether the alien is

likely to become a public charge, and

would therefore be inadmissible under

section 212(a)(4) of the Act, there is a

Special Rule that is discussed in this

interim rule at 8 CFR 245a.18(d). In

short, the Special Rule allows the

Service to look at an alien’s employment

history when determining whether he or

she is likely to become a public charge.

Filing and Applications

May an Alien Who is Already in

Exclusion, Deportation, or Removal

Proceedings, or Who has a Motion To

Reopen or Motion To Reconsider

Pending Before the Immigration Court

or the Board of Immigration Appeals

(Board) Apply for LIFE Legalization

Adjustment With the Service?

Yes, an alien who has a proceeding

pending before the Immigration Court or

the Board, or who has a motion to

reopen or a motion to reconsider filed

with the Immigration Court or the

Board, may still file an application for

LIFE Legalization adjustment of status

with the Service. However, the alien

must also request that the Immigration

Court or the Board, whichever has

jurisdiction, administratively close

proceedings, or indefinitely continue

any pending motion to reopen or

reconsider in order to allow the alien to

proceed with a LIFE Legalization

application. In the request to

administratively close the matter or

indefinitely continue the motion, the

alien must include documents

establishing prima facie eligibility for

29664 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

relief, and proof that the LIFE

Legalization application has already

been filed with the Service. The Service

must consent before the matter is

administratively closed.

What Happens if an Applicant is the

Subject of a Final Order of Exclusion,

Deportation, or Removal?

Jurisdiction over LIFE Legalization

applicants lies only with the Service.

Thus, an eligible alien who is the

subject of a final order of exclusion,

deportation, or removal may file such

application with the Service. The filing

of a LIFE Legalization adjustment

application during the application

period stays the execution of any final

order of exclusion, deportation, or

removal. This stay shall remain in effect

unless the district director who seeks to

execute the order makes a final

determination that the application does

not present a prima facie claim to LIFE

Legalization eligibility on certain

criminal grounds and serves the

applicant with a written decision

explaining the reason for this

determination.

How Does an Alien Apply for

Adjustment of Status Under LIFE

Legalization?

An alien must file Form I–485,

Application to Register Permanent

Residence or Adjust Status, during the

1-year application period beginning

June 1, 2001, and ending May 31, 2002,

along with all required documentary

evidence and appropriate fee(s). An

additional instruction form, Supplement

D, LIFE Legalization Supplement to

Form I–485 Instructions, will assist

applicants with the application process.

When and Where Should the

Application be Filed?

LIFE Legalization authorizes the

Attorney General to provide a 1-year

application period for LIFE Legalization

applicants to file for adjustment. The

application period begins on June 1,

2001, and ends on May 31, 2002.

Pursuant to existing regulations at 8

CFR 103.2(a)(7), applications filed with

the Service are considered to be

‘‘received’’ on the date of actual receipt

in a Service office.

Because of the particular nature of the

LIFE Legalization program, and the high

anticipated volume of applications by

the deadline date, the Service is making

a special exception to the requirements

at 8 CFR 103.2(a)(7). For purposes of

LIFE Legalization only, the Service will

implement a postmark rule that is

patterned directly on the Internal

Revenue Service (IRS) regulations at 26

CFR 301.7502–1. The IRS rules provide

an established set of standards for

determining the timeliness of mail,

whether mailed from within the United

States or from abroad. Any LIFE

Legalization application that is

postmarked by the United States Post

Office on or before the deadline date

will be considered to be timely filed,

regardless of the date it is actually

received by the Service. In the case

where a postmark is illegible or missing,

the Service will consider the application

to be timely filed if it is received by June

3, 2002, if the application was mailed

from within the United States, or by

June 14, 2002, if the application was

mailed from abroad. Applications that

are postmarked after May 31, 2002, will

be untimely and will be denied. To

avoid the risk that an application may

be postmarked after May 31, 2002,

applicants within the United States

might consider sending applications via

United States registered or certified

mail.

All applications for adjustment of

status under LIFE Legalization must be

submitted by mail to: United States

Immigration and Naturalization Service,

Post Office Box 7219, Chicago, IL

60607–7219. Applications may not be

submitted to any other Service location.

Can an Alien Submit an Application for

Adjustment of Status Under LIFE

Legalization if He or She Is Outside the

United States?

Yes, an applicant for LIFE

Legalization may apply for adjustment

of status from outside the United States.

An applicant filing for LIFE Legalization

from abroad must mail an application

along with all required documentary

evidence and appropriate fee(s) to:

United States Immigration and

Naturalization Service, Post Office Box

7219, Chicago, IL 60607–7219.

Applications may not be submitted to

any consular post. As with domestic

applicants, the Service is making a

special exception to the requirements at

8 CFR 103.2(a)(7). Any LIFE

Legalization application that is

postmarked on or before May 31, 2002,

will be considered to be timely filed,

regardless of the date it is actually

received by the Service. In the case

where a postmark is illegible or missing,

and the application was mailed from

abroad, the Service will consider the

application to be timely filed if it is

received by June 14, 2002. Applications

that are postmarked after May 31, 2002,

or applications that have illegible or no

postmarks and are received after June

14, 2002, will be untimely and will be

denied. If an application has both a

foreign postmark and a postmark

subsequently made by the United States

Post Office, the Service will disregard

the postmark made by the United States

Post Office. The Service will then

consider the foreign postmark when

determining the timeliness of the filing

of the application. LIFE Legalization

provisions do not provide applicants

outside the United States with a means

to enter the United States in order to

apply for adjustment under LIFE

Legalization. Upon review of

applications from abroad, the Service

will notify applicants of any further

evidence required and/or what further

steps need to be taken.

How Will the Service Evaluate the

Evidence Submitted?

In all cases, any doubts as to the

existence, authenticity, veracity, or

accuracy of the documentation shall be

resolved by the official Government

record, with Service records having

precedence over the records of other

agencies. Furthermore, adjudications

will be made according to the weight of

the evidence. It shall be the

responsibility of the applicant to obtain

and submit copies of the records of any

other Government agency that the

applicant desires to be considered in

support of his or her application.

What Forms and Other Documents

Should Be Filed?

Each applicant for LIFE Legalization

adjustment of status benefits must file a

separate Form I–485, accompanied by

the required application fee(s) and

supporting documents. As discussed

later, applicants are encouraged to file

applications for employment

authorization and advance parole, if

desired, with their Form I–485.

Applicants should complete Part 2

(Application Type) of Form I–485 by

checking box ‘‘h—other’’ and writing

‘‘LIFE Legalization’’ next to that block.

Each application must be accompanied

by:

1. Application fee;

2. Fingerprinting fee;

3. Proof of identity;

4. A completed Form G–325A,

Biographic Information Sheet, if the

applicant is between the age of 14 and

79;

5. A report of medical examination;

6. Two photographs as described in

the Form I–485 instructions;

7. Evidence as described in 8 CFR

245a.14 to establish that before October

1, 2000, the alien filed with the

Attorney General a written claim for

class membership in the CSS, LULAC,

or Zambrano lawsuit;

8. Evidence as described in 8 CFR

245a.15 to prove continuous residence

in an unlawful status since prior to

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29665

January 1, 1982, through May 4, 1988,

in the United States;

9. Evidence as described in 8 CFR

245a.16 to prove continuous physical

presence between November 6, 1986,

and May 4, 1988, in the United States;

and

10. Evidence as described in 8 CFR

245a.17 to establish the applicant’s

citizenship skills.

It is noted that LIFE Legalization

specifies that any alien who is a male

who is at least 18 years of age, but not

yet 26 years of age is required to register

under the Military Selective Service

Act. 50 U.S.C. 453(a). Once a Form I–

485 has been accepted by the Service,

any LIFE Legalization applicant

required to register under the Military

Selective Service Act will have his

name, current address, Social Security

number, date of birth, and the date the

Form I–485 was filed forwarded to the

Selective Service System. If the LIFE

Legalization applicant has already

registered with the Selective Service

System, the Selective Service will check

its records to avoid any duplication.

Must the Applicant Be Fingerprinted?

Yes, unless the applicant is under 14

years of age or over 75 years of age.

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 advise

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. If the applicant must be

fingerprinted, he or she must submit the

fee of $25 to cover fingerprinting costs

at the time the Form I–485 is filed.

Is There a Fee for Filing This

Application?

Yes, those aliens applying for

adjustment of status under LIFE

Legalization will be required to pay an

application fee of $330. The Service

recognizes that this is a higher fee than

the current Form I–485 application fee;

however, the provisions of section 245A

of the Act allowed for the Service to

provide for a schedule of fees to be

charged for the filing of applications

under section 245A of the Act. 8 U.S.C.

1255a(c)(7). Moreover, section

245A(g)(3) of the Act, which was not

modified by LIFE Legalization, provides

that regulations issued pursuant to

section 245A of the Act may be

prescribed to take effect on an interim

final basis if the Attorney General

determines, as is the case here, that it is

necessary in order to implement that

section in a timely manner. As will be

discussed later in this interim rule, the

Service determined that $330 represents

the full cost of processing the Form I–

485 for LIFE Legalization.

Can Someone Else Sign the Application

if the Applicant is a Child or a Person

Who is Mentally Incompetent?

In accordance with 8 CFR 103.2(a)(2),

an application may be signed by a

parent or legal guardian if the applicant

is under 14 years of age, and by a legal

guardian if the applicant is mentally

incompetent. However, an applicant

who is under age 14 is not precluded

from signing the application if he or she

is capable of understanding the

significance of the attestation.

During Pendency of Application

What Other Benefits Are Eligible Aliens

Entitled to During the Application

Process?

Until a final determination is made on

their application, eligible aliens in the

United States who present a prima facie

application for adjustment to LPR status

under LIFE Legalization:

1. May not be deported or removed

from the United States;

2. Are entitled to employment

authorization; and

3. In accordance with procedures set

forth in these regulations, may return to

the United States following brief, casual,

and innocent trips abroad.

For these reasons, all LIFE

Legalization applicants who are in the

United States, and who desire to work

and/or travel abroad, are encouraged to

submit a Form I–765, Application for

Employment Authorization, and a Form

I–131, Application for Travel Document,

with appropriate fees, at the time the

Form I–485 is submitted.

Can an Applicant Be Authorized to

Work While His or Her LIFE

Legalization Adjustment Application Is

Pending?

Yes, an alien who establishes a prima

facie claim for LIFE Legalization will be

granted employment authorization. In

determining a prima facie claim, the

Service will verify that the applicant

applied for class membership in the

CSS, LULAC, or Zambrano lawsuit

before October 1, 2000, and that the

applicant presents, on the face of the

application package, all of the eligibility

requirements. An applicant for

adjustment is able to apply for, and be

granted, an extension of any such

employment authorization if he or she

remains eligible. An applicant for

adjustment of status under LIFE

Legalization who wishes to obtain

initial employment authorization, or

employment authorization renewals,

during the pendency of the adjustment

of status application, may file a Form I–

765 with the Service. Further, if the

applicant has already received

employment authorization under any

other provision of the Act, that

employment authorization will not be

affected by the filing of an application

for adjustment of status under LIFE

Legalization.

What is the Service’s Policy on Travel

Outside the United States by a LIFE

Legalization Applicant Who Applied

From Within the United States While

His or Her LIFE Legalization

Adjustment Application is Pending?

LIFE Legalization applicants wishing

to travel outside the United States while

their adjustment applications are

pending should apply for ‘‘advance

parole’’ on Form I–131, Application for

Travel Document. The Form I–131 must

be mailed to: United States Immigration

and Naturalization Service, Post Office

Box 7219, Chicago, IL 60607–7219. If an

alien travels abroad and returns to the

United States with a grant of advance

parole, the Service will presume that the

alien is entitled to return to the United

States. Further, a LIFE Legalization

applicant who departs the United States

will not be subject to the provisions of

section 212(a)(9)(B) of the Act (8 U.S.C.

1182(a)(9)(B)) (aliens unlawfully present

in the United States who seek to reenter

the United States). A LIFE Legalization

applicant returning to the United States

from travel abroad without a grant of

advance parole may be subject to

removal proceedings and may have to

process or/and await his or her

adjustment application from outside the

United States. This is discussed in the

regulations at 8 CFR 245a.13(a)(3),

(e)(2), and (e)(3) in this interim rule.

Proof of Eligibility

How Does an Alien Establish That He or

She Applied for Class Membership in

the CSS, LULAC, or Zambrano Class

Action Lawsuit?

Aliens who had applied for class

membership in CSS, LULAC, or

Zambrano before October 1, 2000, were

required to submit various forms of

written applications for class

membership to the Service including,

but not limited to, a Form I–687,

Application for Status as a Temporary

Resident—Applicants under Section

245A of the Immigration and

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Nationality Act, as amended, a

‘‘Questionnaire for class member

applicants,’’ and supporting

documentation. The Service reviewed

the application and evidence submitted,

and made a determination on whether

the alien qualified for class

membership. A written notification was

then sent to the alien, and/or his or her

representative, informing them of the

Service’s decision. If the alien was

determined to be a class member under

CSS, LULAC, or Zambrano, the alien

was entitled to employment

authorization.

An alien filing a LIFE Legalization

application should submit as many of

the documents involved in the process

previously described as necessary to

establish that he or she had applied for

class membership in the CSS, LULAC,

or Zambrano lawsuit before October 1,

2000. These documents should, at a

minimum, include the alien’s full name,

A-number, and date(s). The following

documents, for example, may be

submitted:

1. Employment authorization

document (EAD) based on the class

membership;

2. Service notification granting or

denying the class membership;

3. Questionnaire for class member

applicants in CSS, LULAC, or

Zambrano;

4. Service document(s) pursuant to

the class membership application (e.g.,

Parole Authorization, or denial of such,

Order to Show Cause, Notice to Appear,

Final Order of Removal, Request for

Evidence (RFE), or Form I–687

submitted with the class membership

application); or

5. Any other relevant documents.

The Service will check its databases

and files to verify the alien’s claim. If it

can be verified that the alien had in fact

applied for class membership, the

Service will notify him or her of its

determination and grant employment

authorization (if applied for by the

alien).

What Does it Mean To Prove

Continuous Residence in an Unlawful

Status Since Prior to January 1, 1982,

Through May 4, 1988, in the United

States?

As required by IRCA and again of

LIFE Legalization applicants, the

applicant must provide evidence that he

or she entered the United States before

January 1, 1982, either as a

nonimmigrant or without inspection.

Under LIFE Legalization, the applicant

must also provide evidence that he or

she thereafter resided in continuous

unlawful status through May 4, 1988.

An eligible alien who entered the

United States as a nonimmigrant before

January 1, 1982, must establish that:

1. His or her authorized period of

admission as a nonimmigrant expired

before January 1, 1982, through the

passage of time and that he or she

resided continuously in the United

States in an unlawful status since that

date through May 4, 1988; or

2. His or her unlawful status was

known to the Government before

January 1, 1982, and that he or she

resided continuously in the United

States in an unlawful status since that

date through May 4, 1988.

How Does an Alien Establish That His

or Her Unlawful Status Prior to January

1, 1982, Was ‘‘Known to the

Government’’?

Known to the Government means

that, prior to January 1, 1982,

documents existed in one or more

Federal Government agencies’ files such

that when such documentation is taken

as a whole, it warrants a finding that the

alien’s status in the United States was

unlawful. See Mater of P-, 19 I&N Dec.

823 (Comm. 1988). Further, any absence

of mandatory annual and/or quarterly

registration reports from Federal

Government files does not warrant a

finding that the alien’s unlawful status

was ‘‘known to the Government.’’ See

Matter of H-, 20 I&N Dec. 693 (Assoc.

Comm. 1993). (Under section 265 of the

Act (8 U.S.C. 1305), nonimmigrants

were required to register with the

Service by January 30 of each year and

to notify the Service of their address at

the end of each 3-month period.)

What Does it Mean To Prove

Continuous Physical Presence Between

November 6, 1986, and May 4, 1988, in

the United States?

Contained in IRCA and required of

LIFE Legalization applicants, evidence

must be provided to establish their

continuous physical presence in the

United States from November 6, 1986,

through May 4, 1988.

Can an Alien be Absent Between

November 6, 1986, and May 4, 1988,

From the United States and Still be

‘‘Continuously Physically Present’’ in

the United States?

Yes, so long as such absences were

brief, casual, and innocent or were

pursuant to a Service-authorized

advance parole. ‘‘Brief, casual, and

innocent’’ means temporary, occasional

trips abroad as long as the purpose of

the absence from the United States was

consistent with the policies reflected in

the immigration laws of the United

States. Whether an absence is brief,

casual, and innocent is a factual

question appropriate for case-by-case

analysis in consideration of the meaning

of the phrase. Brief refers to the

temporal length of the absence, and

must not be so long as to reduce the

significance of the whole period of

continuous physical presence. See

Kamheangpatiyooth v. INS, 597 F.2d

1253, 1256–1257 (9th Cir. 1979). Casual

is interpreted to mean performed

without regularity, occasionally. See

Castrejon-Garcia v. INS, 60 F.3d 1359,

1363 (9th Cir. 1995). Innocent refers to

the purpose of the absence from the

United States, and whether that purpose

was consistent with or contrary to a

policy reflected in the immigration

laws. See Catholic Social Services v.

Meese, 685 F. Supp. 1149, 1158 (E.D.

Cal. 1988).

If an alien was absent from the

country pursuant to an advance parole,

this absence will not be considered as

having interrupted his or her

continuous physical presence. Brief,

casual, and innocent absences from the

United States are not limited to

absences with advance parole.

A single absence from the United

States of more than 30 days or an

aggregate of all absences exceeding 90

days shall not be deemed to be a brief,

casual, and innocent absence unless the

alien had advance parole or the alien

can establish that due to emergent

reasons, his or her return to the United

States could not be accomplished

within the time period(s) allowed.

Will an Applicant Who Establishes a

Prima Facie Case of Eligibility be

Required To Appear for an Interview?

If a LIFE Legalization applicant

appears eligible for the benefit, an

interview will be required as, at a

minimum, the applicant must

demonstrate a minimal understanding

of ordinary English and a knowledge

and understanding of the history and

government of the United States as

required under section 312(a) of the Act

(8 U.S.C. 1423). If an applicant fails to

appear for an interview, his or her LIFE

Legalization adjustment application

may be denied for lack of prosecution.

If an applicant is determined to be

statutorily ineligible, his or her LIFE

Legalization adjustment application

may be denied without interview.

As stated earlier, the LIFE

Legalization provisions require

applicants to demonstrate basic

citizenship skills as specified in section

312(a) of the Act (relating to minimal

understanding of ordinary English and a

knowledge and understanding of the

history and government of the United

States). Therefore, during their

interview, LIFE Legalization applicants

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29667

will be required to demonstrate a

minimal understanding of ordinary

English and a knowledge and

understanding of the history and

government of the United States as

required under section 312(a) of the Act.

In lieu of the above, to meet the

requirement, an applicant may instead

submit: (1) A high school diploma; (2)

a general educational development

diploma (GED); or (3) a certification on

letterhead stationery from a state

recognized, accredited learning

institution in the United States that the

applicant is attending or has attended

such institution. The course of study at

such learning institution must be for a

period of one academic year (or the

equivalent thereof according to the

standards of the learning institution)

and the curriculum must include at

least 40 hours of instruction in English

and United States history and

government.

Decisions, Appeals, Motions, and

Certifications

When Will an Applicant Know That a

Final Determination has Been Made on

His or Her Adjustment Application?

The applicant will be notified in

writing of the Service’s decision on his

or her adjustment application. If the

application is approved, the applicant

will be so advised and will also be

advised of the delivery of his or her

Form I–551, Permanent Resident Card,

and of the process for obtaining

temporary evidence of alien registration.

If the application is denied, the

applicant will be notified of the

Service’s decision and the reason(s) for

denial. The applicant will also be

notified of his or her appellate rights. If

the application was denied because the

Service was unable to verify a prima

facie claim for LIFE Legalization, the

applicant will neither be eligible for, nor

entitled to, employment authorization

or advance parole. If the reasons for the

denial do not include inability to verify

application for class membership in the

CSS, LULAC, or Zambrano lawsuit or

failure to present a prima facie claim for

LIFE Legalization, and the applicant

appeals the denial and was entitled to

employment authorization and advance

parole at the time of the decision of

denial, he or she will continue to be

eligible to apply for and be entitled to

employment authorization and advance

parole until a final decision is made on

his or her appeal.

What Documentation Will be Issued if

the Adjustment Application Is

Approved at the Time of the Interview?

If, at the time of the interview, the

Service officer conducting the interview

determines that the application is

approvable, the applicant will receive

temporary evidence of LPR status. A

Form I–551 will be mailed to the

applicant at a later date; therefore, the

applicant must maintain possession of

any temporary evidence of LPR status

until receipt of the Form I–551.

What Documentation Will Be Issued If,

at the Time of the Interview, the Service

Determines That the Adjustment

Application Cannot Be Approved?

If the application cannot be approved

at the time of the interview, and further

review of the application and

supporting documents is required, the

applicant will be notified in writing of

any subsequent decision rendered by

the Service. Applicants should keep this

notice for their records. If the

application has been approved, a Form

I–551 will be mailed separately to the

applicant. To obtain temporary evidence

of LPR 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 LPR status after

verifying the approval of the 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 the

specifications described in the

instructions to the Form I–485 so that

the Service may prepare and issue

temporary evidence of LPR status.

What Happens if the Application Is

Denied?

Whenever an application for

adjustment of status under LIFE

Legalization is denied, the alien, and his

or her attorney or representative, shall

be given written notice stating the

specific reason(s) for the denial. The

denial shall also contain advice to the

alien that he or she may appeal the

decision, and shall provide instructions

on when and where the appeal must be

filed. The alien shall be advised that he

or she may submit additional evidence,

and a supporting brief, with the appeal.

The notice of denial shall additionally

provide a notice to the alien that if he

or she fails to file an appeal from the

decision, the notice of denial will serve

as a final notice of ineligibility.

What Is the Appeals Process?

All appeals from decisions of denials

of applications under LIFE Legalization

must be filed on Form I–290B, Notice of

appeal to the Administrative Appeals

Unit (AAU). Appeals filed from within

the United States must be filed with the

Service office that denied the

application within 30 days of the date

the decision was mailed. Any appeal

that is received subsequent to this 30-

day period will not be accepted for

processing and the decision of denial

will be considered to be a final notice

of ineligibility. If an applicant’s last

known address of record was outside

the United States, and the notice of

denial was mailed to that foreign

address, then the appeal must be

received within 60 days of the date the

decision was mailed. Any appeal from

abroad that is received subsequent to

this 60-day period will not be accepted

for processing and the decision of denial

will be considered a final notice of

ineligibility.

All appeals must be properly

completed and must be accompanied by

the appropriate fee of $110. Upon

receipt of an appeal, the administrative

record will be forwarded to the

Administrative Appeals Office (AAO)

for review and decision. The decision

on appeal will be provided to the alien,

and his or her attorney or

representative, in writing, and if the

appeal is dismissed, it shall include a

final notice of ineligibility. No further

administrative appeal shall lie from this

decision, nor may the application be

filed or reopened before an Immigration

Court or the Board of Immigration

Appeals during exclusion, removal, or

deportation proceedings.

If the appeal is sustained, and the

application approved, the alien will be

advised in writing of the decision and

of the process for obtaining temporary

evidence of alien registration. A Form I–

551 will be mailed separately to the

alien.

How Did the Service Decide That the

LIFE Legalization Application Fee

Should Be $330?

The Service believes that it is

reasonable to identify a current

application whose process is similar to

the requirements outlined under LIFE

Legalization in order to select an

appropriate fee to charge applicants

under LIFE Legalization. Aliens filing

LIFE Legalization applications are

applying to adjust their status to that of

LPR. The current Service application

whose process is most similar to the

LIFE Legalization process is the Form I–

485, which is currently used by other

29668 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

aliens to adjust their status to that of

LPR. In developing fees, the Service

must comply with guidance provided in

the Office of Management and Budget

(OMB) Circular A–25. This guidance

directs Federal agencies to charge the

‘‘full cost’’ of providing benefits when

calculating fees that provide a special

benefit to recipients. Section 6(d) of

OMB Circular A–25 defined ‘‘full cost’’

as including ‘‘all direct and indirect

costs to any part of the Federal

Government of providing a good,

resource, or service.’’ Therefore, the

Service referred to its most recent fee

review—the FY 2000 ‘‘Immigration

Examinations Fee Account Review.’’

This review conducted an in-depth

analysis of both direct and indirect costs

using an activity-based costing

methodology. The fee review identified

the current full cost of the Form I–485

to be $330. The Service determined that

a $330 fee for the Form I–485 would

underwrite the Service’s processing and

administrative costs incurred in the

Form I–485 adjudication process, such

as staffing, training of Service

personnel, and adjudication of

applications. The Service will thus use

$330 for the fee for LIFE Legalization

applications until the next biennial fee

review, as required by the Chief

Financial Officers Act of 1990, Public

Law 101–576, 104 Stat. 2838. The

Service will make the fee review

available to the public upon request.

LIFE Act Amendments Family Unity

Provisions

Eligibility

Who is Eligible for LIFE Act

Amendments Family Unity Benefits?

Aliens who might benefit from the

Family Unity provisions of the LIFE Act

Amendments are those who:

1. Are currently in the United States;

2. Are the spouse or unmarried child

of an alien who is eligible for

adjustment under LIFE Legalization;

and

3. Entered the United States before

December 1, 1988, and were residing in

the United States on such date.

Section 1504 of the LIFE Act

Amendments extends immigration

benefits to an alien ‘‘who is the spouse

or unmarried child’’ of an alien

described in section 1104 of the LIFE

Act. The LIFE Act Amendments,

however, do not refer to a specific date

on which that familial status is to be

determined. Consistent with the

purpose of the Family Unity program to

provide temporary protection to keep

families together that are on a path to

legalize their status under the Act, the

Service takes the position that an

eligible spouse who was married to an

eligible principal alien on the date of

enactment, December 21, 2000, but has

since divorced, should no longer be

entitled to Family Unity benefits after

the divorce becomes final. On the other

hand, a newly-married spouse would be

able to get Family Unity benefits, if

otherwise eligible, even if he or she was

not married to the principal alien on

December 21, 2000.

A more difficult issue, however, arises

when an alien ‘‘ages-out’’ when he or

she reaches his or her 21st birthday

because he or she no longer meets the

Act’s definition of a ‘‘child’’, see 8

U.S.C. 1101(b)(1). As section 1504(b) of

the LIFE Act Amendments describes an

eligible child as an alien who ‘‘is’’ the

unmarried child of an alien described in

section 1104(b) of the LIFE Act, it is not

apparent from the face of the statutory

language that Family Unity protection

can be extended to aliens who were

children on December 21, 2000, but who

‘‘age-out’’ of the Act’s definition of child

by virtue of reaching their 21st birthday.

Congress’s precise intention is not clear

in this regard, although the limited

legislative history available states that

the objective was to ensure that family

members ‘‘are treated in the same

manner as the family members of those

who adjusted their status under IRCA.’’

Joint Memorandum Concerning the

Legal Immigration Family Equity Act of

2000 and the LIFE Act Amendments of

2000, 146 Cong. Rec. S11851 (Dec. 15,

2000). However, the language of section

1504 is different from section 301 of the

Immigration Act of 1990 (IMMACT 90),

Public Law 101–649, 104 Stat. 4978,

5029, which specifically referred to

status as a child as of a particular date

in the past.

Given the need to implement an

interpretation of the statute that is

consistent as it applies to both spouses

and children, and in view of the

interpretation of other provisions of the

immigration laws relating to a child

who ‘‘ages-out’’ upon reaching the age

of 21, the Department interprets section

1504(b) of the LIFE Act Amendments to

require the requisite familial status (the

spousal or child relationship) both at

the time when the application for

Family Unity benefits is adjudicated

and thereafter. If the familial status does

not exist at the time of adjudication the

alien will not be eligible for Family

Unity benefits. If the status as a spouse

or child exists at the time of

adjudication, but ceases to exist

thereafter, the alien will no longer be

eligible for Family Unity benefits.

Similarly, an alien who ceases to be an

unmarried child because of the alien’s

marriage is no longer eligible.

The fact that an alien is ineligible for

Family Unity benefits under section

1504 of the LIFE Act Amendments

solely because he or she has reached the

age of 21 after December 21, 2000, or for

other reasons, does not mean that the

alien necessarily will be removed from

the United States. The Service has in

place guidance for the exercise of

prosecutorial discretion that provide for

the assessment, on a case-by-case basis,

of whether seeking the removal of a

particular alien serves a substantial

Federal enforcement interest. Factors to

be considered include, among others,

humanitarian concerns (including

family ties in the United States) and

whether there is a legal avenue available

for the alien to regularize his or her

status if not removed from the United

States. Whether an alien who is no

longer eligible for Family Unity benefits

is eligible for employment authorization

depends upon whether the alien falls

within one of the classes of aliens

authorized employment in 8 CFR

274a.12. The Service is also considering

whether to seek clarification of the

scope of the Family Unity benefit as

applied to ‘‘age-out’’ children through

statutory amendment.

The LIFE Act Amendments also

authorize the Attorney General to parole

aliens who are no longer physically

present in the United States into the

United States so that they may obtain

benefits under the LIFE Act

Amendments Family Unity provisions.

The Service is in the process of

developing the specific procedures for

implementing this provision of the LIFE

Act Amendments. As such, the details

will be discussed in a separate

rulemaking at a later time. The parole

provisions only apply to eligible family

members of an alien who has already

been granted LIFE Legalization, and do

not apply to LIFE Legalization

applicants or their families.

Description of Program

What Is the Difference Between the

Existing Family Unity Program and the

Family Unity Provisions of the LIFE Act

Amendments?

The statutory eligibility requirements

imposed on aliens in order to qualify for

benefits under the existing Family Unity

Program (FUP) implementing section

301 of IMMACT 90, and the LIFE Act

Amendments Family Unity provisions

are different. In order to benefit from the

FUP, the applicant had to be the spouse

or unmarried child (under the age of 21)

of an alien who had already adjusted

status to that of either temporary or

permanent resident under section 245A

of the Act (8 U.S.C. 1255a). Also, in

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29669

order to qualify, the FUP applicants

were required to establish entry into the

United States before May 5, 1988,

residence on that date, continuous

residence in the United States since that

date, and that a qualifying relationship

with the legalized alien existed as of

May 5, 1988. 8 CFR 236.12. The specific

eligibility requirements for aliens who

might benefit from the LIFE Act

Amendments Family Unity provisions

will be discussed in more detail later in

this interim rule. In general, however,

aliens who might benefit from the LIFE

Act Amendments Family Unity

provisions must establish entry into the

United States before December 1, 1988,

residence in the United States on

December 1, 1988, and that a qualifying

relationship with an alien who is

eligible for adjustment of status under

LIFE Legalization currently exists. Thus,

while the old FUP is focused on

unifying families that were in existence

as of May 5, 1988, the Family Unity

provisions of the LIFE Act Amendments

serve to benefit only those families that

are in existence after the date of

enactment of the LIFE Act

Amendments.

Another difference between the two

programs is that the current FUP

regulations ban FUP beneficiaries from

receiving Federal financial assistance.

Specifically, 8 CFR 236.17 states that

any spouse or child who receives

Family Unity benefits through an alien

who received lawful temporary

residence, and who was banned from

receiving certain public welfare

assistance for a period of 5 years

pursuant to section 245A(h) of the Act,

is similarly banned from receiving

certain public welfare assistance. The

LIFE Act explicitly states that section

245A(h) of the Act does not apply to

aliens adjusting status under LIFE

Legalization. The inapplicability of

section 245A(h) of the Act to aliens

adjusting status under LIFE

Legalization, however, does not mean

that they are generally eligible for all

public benefits. The Personal

Responsibility and Work Opportunity

Reconciliation Act of 1996, Public Law

104–193, 110 Stat. 2105, as amended,

limits the eligibility of lawful

permanent residents and other

‘‘qualified aliens,’’ as defined by the

welfare reform law, for certain Federal,

state, and local means-tested public

benefits. 8 U.S.C. 1601 through 1625.

Individuals are encouraged to contact

the relevant benefit-granting agency for

information about their eligibility for

public benefit programs.

Ineligible Aliens

Who Is Ineligible for Family Unity

Benefits Under the LIFE Act

Amendments?

Pursuant to section 1504(d) of the

LIFE Act Amendments (and by

incorporation, section 241(b)(3)(B) of

the Act, 8 U.S.C. 1231(b)(3)(B)), an alien

is ineligible for Family Unity benefits if

the Service finds or determines that:

1. The alien has been convicted of a

felony or of three or more misdemeanors

in the United States;

2. The alien has ordered, incited,

assisted, or otherwise participated in the

persecution of an individual because of

the individual’s race, religion,

nationality, membership in a particular

social group, or political opinion;

3. The alien has been convicted by a

final judgment of a particularly serious

crime and is a danger to the community

of the United States;

4. There are serious reasons to believe

that the alien has committed a serious

nonpolitical crime outside the United

States before the alien arrived in the

United States; or

5. There are reasonable grounds to

believe that the alien is a danger to the

security of the United States.

It must be noted that under section

1504(a)(1) of the LIFE Act Amendments,

an alien granted Family Unity benefits

under the provisions of the LIFE Act

Amendments may not be removed on

certain grounds. The grounds on which

such an alien may not be removed are

limited to the following:

1. Section 237(a)(1)(A) of the Act (8

U.S.C. 1227(a)(1)(A)) (aliens who were

inadmissible at the time of entry or

adjustment of status), except that the

alien may be removed if he or she is

inadmissible because of a ground listed

in section 212(a)(2) (criminal and

related grounds) or in section 212(a)(3)

(security and related grounds) of the

Act;

2. Section 237(a)(1)(B) of the Act

(aliens present in the United States in

violation of the Act or any other law of

the United States);

3. Section 237(a)(1)(C) of the Act

(aliens who violated their nonimmigrant

status or violated the conditions of

entry); or

4. Section 237(a)(3)(A) of the Act

(aliens who failed to comply with the

change of address notification

requirements).

Consistent with the existing

regulations implementing section 301 of

IMMACT 90, if an alien is removable on

a ground that is not protected by section

1504(a)(1) of the LIFE Act Amendments,

the Service finds that it would be

inappropriate to grant Family Unity

benefits to that alien. Accordingly,

aliens in such circumstance will not be

afforded Family Unity benefits.

Filing

How Does an Alien Who Is Present in

the United States Apply for Benefits

Under the Family Unity Provisions of

the LIFE Act Amendments?

Aliens who are eligible for benefits

under the Family Unity provisions of

the LIFE Act Amendments and who are

currently residing in the United States

should file a Form I–817. The Form I–

817 must be submitted by mail to:

United States Immigration and

Naturalization Service, Post Office Box

7219, Chicago, IL 60607–7219. An alien

who is eligible for benefits under the

Family Unity provisions of the LIFE Act

Amendments and files a Form I–817 on

or before May 31, 2002, need only

demonstrate that he or she has a

qualifying relationship to an alien who

is eligible to apply for LIFE Legalization.

Any Form I–817 that is filed on or after

June 1, 2002 (i.e., after the statutorily

mandated LIFE Legalization application

period has ended), must include

evidence that the alien through whom

the applicant is alleging eligibility for

Family Unity benefits has filed a Form

I–485 pursuant to LIFE Legalization. If

a Form I–817 is submitted on or before

May 31, 2002, but is not adjudicated

until on or after June 1, 2002, the

Service will request that the applicant

submit evidence that the alien through

whom the applicant is alleging

eligibility for Family Unity benefits has

filed a Form I–485. When the Form I–

817 is filed, the alien must include:

1. The required fee of $120.00;

2. Four photographs as described in

the Form I–817 instructions;

3. Documentary evidence of his or her

qualifying relationship to the alien

eligible for adjustment of status under

LIFE Legalization;

4. Documentary evidence of his or her

entry into the United States prior to

December 1, 1988;

5. Documentary evidence of his or her

residence in the United States on

December 1, 1988;

6. Documentary evidence that his or

her spouse or parent applied for class

membership in the CSS, LULAC, or

Zambrano lawsuit before October 1,

2000;

7. If the Form I–817 is filed on or after

June 1, 2002, documentary evidence

that his or her spouse or parent has filed

a Form I–485 seeking adjustment of

status under LIFE Legalization; and

8. When required, a fingerprint fee of

$25.00.

The instructions to the Form I–817

provide examples of documents that can

29670 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

be submitted by an individual to prove

eligibility under these provisions. The

instructions also advise under what

circumstances a fingerprint fee is

required.

Will the Family Unity Applicants Be

Required To Appear for an Interview?

Not every applicant under the Family

Unity provisions of the LIFE Act

Amendments will be required to appear

before a Service officer for an interview.

If, however, a Service officer believes

that an interview would be necessary to

review evidence of the applicant’s

eligibility, then one will be scheduled.

The Family Unity applicant would be

notified in writing of the time and place

of the interview.

How Will a Family Unity Applicant

Know That a Final Determination has

Been Made on His or Her Form I–817?

The Service will notify the applicant

in writing of any decision made on the

Form I–817. If the Form I–817 is

approved, the Family Unity beneficiary

will be so notified and will receive an

employment authorization document

(EAD). The EAD will be valid for 1 year.

If the Form I–817 is denied, the Family

Unity applicant will be so notified.

There is no appeal from the denial of a

Form I–817.

Will a Family Unity Beneficiary Receive

Automatic Extensions of His or Her EAD

at the End of the 1-Year Period?

No, the Service will not automatically

extend a Family Unity beneficiary’s

EAD upon its expiration. The Service is

in the process of finalizing procedures

that must be followed by all Family

Unity beneficiaries to extend their

EADs. These procedures will be

discussed in a separate rulemaking at a

later time.

Protection From Removal and Eligibility

for Employment

Is a Family Unity Applicant Entitled to

Employment Authorization While the

Form I–817 Is Pending?

No, the initial filing of a Form I–817

does not entitle the applicant to

employment authorization from the

Service. If and when the applicant’s

initial Form I–817 is approved, the alien

will receive Family Unity benefits

prescribed by law, including

employment authorization.

Is the Grant of Family Unity Benefits

Under the LIFE Act Amendments a

Period of Authorized Stay Such That the

Beneficiary Is Not Accruing Unlawful

Presence Within the Scope of Section

212(a)(9)(B) of the Act?

Yes, if an applicant is granted Family

Unity benefits pursuant to the LIFE Act

Amendments, he or she will be deemed

to have received an authorized period of

stay approved by the Attorney General.

Such authorized period of stay will be

deemed to begin as of the date the Form

I–817 was filed. Accordingly, a Family

Unity beneficiary will not accrue

unlawful presence as long as he or she

retains Family Unity protection. If,

however, a beneficiary under the Family

Unity provisions of the LIFE Act

Amendments has his or her benefits

terminated by the Service, the former

Family Unity beneficiary will begin

accruing unlawful presence

immediately from the date of such

termination.

Travel Outside the United States

Is a Family Unity Applicant Allowed To

Travel Outside the United States While

the Form I–817 Is Pending?

No, any applicant who departs the

United States while his or her Form I–

817 is pending will be deemed to have

abandoned the application and the

application will be denied. If a Form I–

817 is approved, the Family Unity

beneficiary will be allowed to travel to

and from the United States provided he

or she applies for advance parole, using

Form I–131, before departing the United

States.

Termination of Family Unity Benefits

Can an Alien’s Family Unity Benefits

Ever Be Terminated?

Yes, the Service may terminate

Family Unity benefits whenever the

necessity for such action comes to the

attention of the Service. The following

bases of termination are founded upon

the grounds of ineligibility for Family

Unity benefits discussed earlier in this

interim rule. These grounds for

termination include, but are not limited

to:

1. A determination is made that

Family Unity benefits were acquired as

the result of fraud or willful

misrepresentation of a material fact;

2. The Family Unity beneficiary

commits an act or acts which render

him or her ineligible for benefits under

the LIFE Act Amendments Family Unity

provisions; or

3. The alien, upon whose status LIFE

Act Family Unity benefits are based, is

issued a final determination of

ineligibility for LIFE Legalization;

4. Failure of the alien, upon whose

status LIFE Act Family Unity benefits

are based, to apply for LIFE Legalization

within the statutory application period;

5. The alien, upon whose status LIFE

Act Family Unity benefits are based,

loses his or her status as a LPR;

6. A qualifying relationship to the

alien, upon whose status LIFE Act

Family Unity benefits are based, no

longer exists.

The LIFE Act Amendments do not

specifically address the subject of

termination. However, the reference in

section 1504(a)(2) of the LIFE Act

Amendments to ‘‘the period of time in

which protection is provided,’’ and the

general principle that an agency can act

through regulation to fill gaps in a

statute in a way that reasonably gives

effect to the statutory scheme and

avoids absurd results, support the

Service’s rulemaking to ensure, for

example, that a benefit that is

improvidently granted as a result of

fraud may be withdrawn. The grounds

for termination include situations in

which the principal alien does not

apply, or is found ineligible for

legalization. As the very name ‘‘Family

Unity’’ implies, a protection that is

derivatively based upon another alien

who has an opportunity to legalize his

or her status, no longer carries out the

reasonable statutory intention if that

alien is ineligible to legalize and lacks

protection from removal. Rather, this

would place the derivative family

members in a more advantageous

immigration position than the principal

alien, yet in a limbo situation in which

they could not be removed on certain

grounds of deportation but would not

have any prospect of adjusting their

status to lawful permanent residence.

The rule avoids this absurd result by

filling the gap in the LIFE Act

Amendments by providing reasonable

bases and procedures for termination.

What Is the Termination Process?

If the Service determines that an alien

who received benefits pursuant to the

LIFE Act Amendments Family Unity

provisions is no longer eligible for such

benefits, the alien will be advised in

writing of such determination. The alien

will be advised of the Service’s intent to

terminate and of the reason(s) thereof.

The alien will be given 30 days to

respond to the notice of intent to

terminate and to submit evidence in his

or her behalf. The alien will then be

advised in writing of the Service’s final

determination.

Congressional Review Act

Although this rule falls under the

category of major rule as that term is

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29671

defined in 5 U.S.C. 804(2)(A), the

Department finds that under 5 U.S.C.

808(2) good cause exists for

implementation of this rule on June 1,

2001. The reason for immediate

implementation is as follows: The

provisions of Public Law 106–553,

which was enacted on December 21,

2000, require that the Service publish

implementing regulations not later than

120 days after the date that Public Law

106–553 was enacted. Accordingly, the

Service is required to issue regulations

immediately. Moreover, because the

application period prescribed under the

LIFE Act for eligible aliens to apply for

adjustment under section 245A of the

Act, as modified by Public Law 106–

553, does not begin until the Attorney

General issues this regulation, and given

the public interest in providing these

important benefits and protections, the

Attorney General has determined to

issue this regulation as an interim final

rule, effective immediately.

Interim Rule Justification

The Service is implementing this rule

on an interim final basis with a request

for post promulgation comments. The

provisions of Public Law 106–553

require that the Attorney General issue

implementing regulations no later than

120 days after the date that the

legislation was enacted on December 21,

2000. Moreover, section 245A(g)(3) of

the Act (8 U.S.C. 1255a(g)(3)), which

was not modified by Public Law 106–

553, provides that regulations issued

pursuant to section 245A of the Act may

be prescribed to take effect on an

interim final basis if the Attorney

General determines that it is necessary

in order to implement that section in a

timely manner. Because the application

period prescribed under the LIFE Act

for eligible aliens to apply for

adjustment under section 245A of the

Act, as modified by Public Law 106–

553, does not begin until the Attorney

General issues this regulation, and given

the public interest in providing these

important benefits and protections, the

Attorney General has determined that

timely implementation of the LIFE

Legalization program requires the

issuance of this regulation on an interim

final basis.

Good Cause Exception

The foregoing statutory provisions

notwithstanding, the Department also

finds that this regulation falls within the

‘‘good cause’’ exception found at 5

U.S.C. 553(b)(3)(B) and (d)(3) as the

immediate effectiveness of this rule is

necessary in order to allow aliens to

apply for these important benefits and

protections at their earliest opportunity.

Accordingly, prior notice and public

comment on this interim rule is

unnecessary and contrary to the public

interest.

Regulatory Flexibility Act

The Attorney General, in accordance

with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this

regulation and, by approving it, certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities because of the

following factors. The rule applies to

individuals, not small entities, and

allows certain class action participants

who entered before January 1, 1982, to

apply for adjustment of status. It,

therefore, has no effect on small entities

as that term is defined in 5 U.S.C.

601(6).

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any 1 year, and it will not

significantly or uniquely effect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is a major rule as defined by

section 251 of the Small Business

Regulatory Enforcement Act of 1996 (5

U.S.C. 804). This rule will result in an

effect on the economy of:

$152,379,000 for 2001;

$77,352,000 for 2002; and

$34,260,000 for 2003.

This increase is directly associated

with the expected increase in the

number of applications as a result of

Public Laws 106–553 and 106–554, and

the increase in fee that is provided for

in section 245A(c)(7) of the Act (8

U.S.C. 1255a(c)(7)). The Service projects

that in fiscal year 2001, a total of

789,000 applications will be submitted

because of the LIFE Act Legalization

and Family Unity provisions as follows:

300,000 Forms I–485;

150,000 Forms I–131;

15,000 Forms I–193;

300,000 Forms I–765; and

24,000 Forms I–817.

The Service projects that in fiscal year

2002, a total of 568,000 applications

will be submitted as follows:

100,000 Forms I–485;

55,000 Forms I–131;

5,000 Forms I–193;

400,000 Forms I–765; and

8,000 Forms I–817.

The Service projects that in fiscal year

2003, a total of 328,000 applications

will be submitted as follows:

100,000 Forms I–130;

20,000 Forms I–131;

200,000 Forms I–765; and

8,000 Forms I–817.

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 13132

This regulation will not have

substantial direct effects on the States,

on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with section 6 of Executive

Order 13132, it is determined that this

rule does not have sufficient federalism

implications to warrant the preparation

of a federalism summary impact

statement.

Executive Order 12988: Civil Justice

Reform

This interim rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of Executive Order 12988.

Family Assessment

The Attorney General has reviewed

this regulation and has determined that

it may affect family well-being as that

term is defined in section 654 of the

Treasury General Appropriations Act,

1999, Public Law 105–277, 112 Stat.

2681, Div. A. Accordingly, the Attorney

General has assessed this action in

accordance with the criteria specified by

section 654 (c)(1). In this rule, the

Family Unity provisions of the LIFE Act

Amendments positively affect the

stability of the family by providing a

means for the family unit to remain

intact.

Paperwork Reduction Act of 1995

This rule provides for the use of a

new Form I–485 Supplement D and the

revision of Form I–817. These forms are

considered information collection

requirements under the Paperwork

Reduction Act. Since the Service was

required to publish regulations

implementing Public Law 106–553

within 120 days after enactment, the

Service has requested and received

emergency review and clearance by the

Office of Management and Budget

29672 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

(OMB) in accordance with the

Paperwork Reduction Act. The

emergency approval is only valid for

180 days.

A regular review of this information

will also be undertaken. Written

comments are encouraged and will be

accepted until July 31, 2001. Submit

comments to: Immigration and

Naturalization Service, Policy Directives

and Instructions Branch, 425 I Street

NW, Room 4034, Washington, DC

20536. Your comments should address

one or more of the following points.

1. Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility;

2. Evaluate the accuracy of the

agency’s estimate of the burden of the

proposed collection of information,

including the validity of the

methodology and assumptions used;

3. Enhance the quality, utility, and

clarity of the information to be

collected; and

4. Minimize the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

e.g., permitting electronic submission of

responses.

The Service, in calculating the overall

burden the Form I–485 supplement D

requirement will place on the public,

estimates that approximately 400,000

applicants will apply for adjustment of

status under LIFE Legalization. The

Service has estimated that it takes

applicants five and one quarter (5.25)

hours to complete Form I–485. The

Service also estimates that it will take

the applicants approximately one (1)

additional hour to complete the Form I–

485 with the supplement D. As such,

the Service estimates that it will take the

applicants a total of six and one quarter

(6.25) hours to complete the LIFE

Legalization application. This amounts

to 2.5 million total annual burden hours

for the collection of this information.

The Service, in calculating the overall

burden the revised Form I–817

requirement will place on the public,

estimates that approximately 40,000

applicants will apply for Family Unity

benefits under the LIFE Act

Amendments. The Service also

estimates that it will take the applicants

approximately two and one half (2.5)

hours to complete the application. This

amounts to 100,000 total annual burden

hours for the collection of this

information.

Additionally, comments regarding

this burden estimate or any aspect of

these information collection

requirements, including suggestions for

reducing the burden, should be directed

to the Immigration and Naturalization

Service, Policy Directives and

Instructions Branch, 425 I Street, N.W.,

Room 4034, Washington, DC 20536;

Attention: Richard A. Sloan, Director,

202–514–3291.

List of Subjects

8 CFR Part 100

Organization of functions

(Government agencies).

8 CFR Part 103

Administrative practice and

procedure, Authority delegations

(Government agencies), Freedom of

information, Privacy, Reporting and

recordkeeping requirements, Surety

bonds.

8 CFR Part 236

Administrative practice and

procedure, Aliens, Immigration.

8 CFR Part 245a

Aliens, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 274a

Administrative practice and

procedures, 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 100—STATEMENT OF

ORGANIZATION

1. The authority citation for part 100

continues to read as follows:

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

§ 100.4 [Amended]

2. Section 100.4 is amended in

paragraph (e) by adding the entry for the

‘‘Missouri Service Center, Lee’s Summit,

Missouri’’ immediately after the entry

for ‘‘Vermont Service Center, St. Albans,

Vermont’’.

PART 103—POWERS AND DUTIES OF

SERVICE OFFICERS; AVAILABILITY

OF SERVICE RECORDS

3. The authority citation for part 103

continues to read as follows:

Authority: 5 U.S.C. 552, 552(a); 8 U.S.C.

1101, 1103, 1201, 1252 note, 1252b, 1304,

1356; 31 U.S.C. 9701; E.O. 12356; 47 FR

14874, 15557; 3 CFR, 1982 Comp., p. 166; 8

CFR part 2.

4. Section 103.2 is amended by

revising the first sentence in paragraph

(a)(7)(i), to read as follows:

§ 103.2 Applications, petitions, and other

documents.

* * * * *

(a) * * *

(7) * * *

(i) General. An application or petition

received in a Service office shall be

stamped to show the time and date of

actual receipt and, unless otherwise

specified in part 204 or part 245 or part

245a of this chapter, shall be regarded

as properly filed when so stamped, if it

is signed and executed and the required

filing fee is attached or a waiver of the

filing fee is granted. * * *

* * * * *

5. Section 103.7 is amended by

adding a sentence at the end of the entry

for ‘‘Form I–485’’ in paragraph (b)(1), to

read as follows:

§ 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

* * * * *

Form I–485. * * * All applicants

filing for adjustment under LIFE

Legalization (Public Law 106–553) must

pay $330.00.

* * * * *

PART 236—APPREHENSION AND

DETENTION OF INADMISSIBLE AND

DEPORTABLE ALIENS; REMOVAL OF

ALIENS ORDERED REMOVED

6. The authority citation for part 236

continues to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225,

1226, 1227, 1362; sec. 303(b) of Div. C of Pub.

L. No. 104–208; 8 CFR part 2.

7. Section 236.14(a) is amended by

revising the second sentence to read as

follows:

§ 236.14 Filing.

(a) * * * A Form I–817, Application

for Family Unity Benefits, must be filed

with the correct fee required in

§ 103.7(b)(1) of this chapter and the

required supporting documentation.

***

* * * * *

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29673

PART 245a—ADJUSTMENT OF

STATUS TO THAT OF PERSONS

ADMITTED FOR LAWFUL

TEMPORARY OR PERMANENT

RESIDENT STATUS UNDER SECTION

245a OF THE IMMIGRATION AND

NATIONALITY ACT

8. The authority citation for part 245a

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1255a, and

1255a note.

9. Sections 245a.1 through 245a.5 are

designated as Subpart A.

10. The heading for Subpart A is

added to read:

Subpart A—Immigration Reform and

Control Act of 1986 (IRCA) Legalization

Provisions

11. Subparts B and C are added to

read as follows:

Subpart B—Legal Immigration Family

Equity (LIFE) Act Legalization Provisions

Sec.

245a.10 Definitions.

245a.11 Eligibility to adjust to LPR status.

245a.12 Filing and applications.

245a.13 During pendency of application.

245a.14 Application for class membership

in the CSS, LULAC, or Zambrano

lawsuit.

245a.15 Continuous residence in an

unlawful status since prior to January 1,

1982, through May 4, 1988.

245a.16 Continuous physical presence from

November 6, 1986, through May 4, 1988.

245a.17 Citizenship skills.

245a.18 Ineligibility and applicability of

grounds of inadmissibility.

245a.19 Interviews.

245a.20 Decisions, appeals, motions, and

certifications.

245a.21 Confidentiality.

245a.22 Rescission.

245a.23 through 245a.29 [Reserved]

Subpart C—LIFE Act Amendments Family

Unity Provisions

245a.30 Description of program.

245a.31 Eligibility.

245a.32 Ineligible aliens.

245a.33 Filing.

245a.34 Protection from removal, eligibility

for employment, and period of

authorized stay.

245a.35 Travel outside the United States.

245a.36 [Reserved]

245a.37 Termination of Family Unity

Program benefits.

Subpart B—Legal Immigration Family

Equity (LIFE) Act Legalization

Provisions

§ 245a.10 Definitions.

In this Subpart B, the terms:

Eligible alien means an alien who,

before October 1, 2000, filed with the

Attorney General a written claim for

class membership, with or without

filing fee, pursuant to a court order

issued in the case of:

(1) Catholic Social Services, Inc. v.

Meese, vacated sub nom. Reno v.

Catholic Social Services, Inc., 509 U.S.

43 (1993) (CSS);

(2) League of United Latin American

Citizens v. INS, vacated sub nom. Reno

v. Catholic Social Services, Inc., 509

U.S. 43 (1993) (LULAC); or

(3) Zambrano v. INS, vacated, 509

U.S. 918 (1993) (Zambrano).

Lawful Permanent Resident (LPR)

means the status of having been

lawfully accorded the privilege of

residing permanently in the United

States as an immigrant in accordance

with the immigration laws, such status

not having changed.

LIFE Act means the Legal Immigration

Family Equity Act and the LIFE Act

Amendments of 2000.

LIFE Legalization means the

provisions of section 1104 of the LIFE

Act and section 1503 of the LIFE Act

Amendments.

Prima facie means eligibility is

established if an ‘‘eligible alien’’

presents a properly filed and completed

Form I–485 and specific factual

information which in the absence of

rebuttal will establish a claim of

eligibility under this Subpart B.

§ 245a.11 Eligibility to adjust to LPR

status.

An eligible alien, as defined in

§ 245a.10, may adjust status to LPR

status under LIFE Legalization if:

(a) He or she properly files, with fee,

Form I–485, Application to Register

Permanent Residence or Adjust Status,

with the Service during the application

period beginning June 1, 2001, and

ending May 31, 2002;

(b) He or she entered the United

States before January 1, 1982, and

resided continuously in the United

States in an unlawful status since that

date through May 4, 1988;

(c) He or she was continuously

physically present in the United States

during the period beginning on

November 6, 1986, and ending on May

4, 1988;

(d) He or she is not inadmissible to

the United States for permanent

residence under any provisions of

section 212(a) of the Act, except as

provided in § 245a.18, and that he or

she:

(1) Has not been convicted of any

felony or of three or more misdemeanors

committed in the United States;

(2) Has not assisted in the persecution

of any person or persons on account of

race, religion, nationality, membership

in a particular social group, or political

opinion; and

(3) Is registered or registering under

the Military Selective Service Act, if the

alien is required to be so registered; and

(e) He or she can demonstrate basic

citizenship skills.

§ 245a.12 Filing and applications.

(a) When to file. The application

period begins on June 1, 2001, and ends

on May 31, 2002. To benefit from the

provisions of LIFE Legalization, an alien

must properly file an application for

adjustment of status, Form I–485, with

appropriate fee, to the Service during

this 1-year application period as

described in this section. All

applications, whether filed in the

United States or filed from abroad, must

be postmarked on or before May 31,

2002, to be considered timely filed.

(1) If the postmark is illegible or

missing, and the application was mailed

from within the United States, the

Service will consider the application to

be timely filed if it is received on or

before June 3, 2002.

(2) If the postmark is illegible or

missing, and the application was mailed

from outside the United States, the

Service will consider the application to

be timely filed if it is received on or

before June 14, 2002.

(3) If the postmark is made by other

than the United States Post Office, and

is filed from within the United States,

the application must bear a date on or

before May 31, 2002, and must be

received on or before June 3, 2002.

(4) If an application filed from within

the United States bears a postmark that

was made by other than the United

States Post Office, bears a date on or

before May 31, 2002, and is received

after June 3, 2002, the alien must

establish:

(i) That the application was actually

deposited in the mail before the last

collection of the mail from the place of

deposit which was postmarked by the

United States Post Office May 31, 2002;

and

(ii) That the delay in receiving the

application was due to a delay in the

transmission of the mail; and

(iii) The cause of such delay.

(5) If an application filed from within

the United States bears both a postmark

that was made by other than the United

States Post Office and a postmark that

was made by the United States Post

Office, the Service shall disregard the

postmark that was made by other than

the United States Post Office.

(6) If an application filed from abroad

bears both a foreign postmark and a

postmark that was subsequently made

by the United States Post Office, the

Service shall disregard the postmark

29674 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

that was made by the United States Post

Office.

(7) In all instances, the burden of

proof is on the applicant to establish

timely filing of an application for LIFE

Legalization.

(b) Filing of applications in the United

States. The Service has jurisdiction over

all applications for the benefits of LIFE

Legalization under this Subpart B. All

applications filed with the Service for

the benefits of LIFE Legalization must

be submitted by mail to the Service.

After proper filing of the application,

the Service will instruct the applicant to

appear for fingerprinting as prescribed

in § 103.2(e) of this chapter. The

Director of the Missouri Service Center

shall have jurisdiction over all

applications filed with the Service for

LIFE Legalization adjustment of status,

unless the Director refers the applicant

for a personal interview at a local

Service office as provided in § 245a.19.

(1) Aliens in exclusion, deportation,

or removal proceedings, or who have a

pending motion to reopen or motion to

reconsider. An alien who is prima facie

eligible for adjustment of status under

LIFE Legalization who is in exclusion,

deportation, or removal proceedings

before the Immigration Court or the

Board of Immigration Appeals (Board),

or who is awaiting adjudication of a

motion to reopen or motion to

reconsider filed with the Immigration

Court of the Board, may request that the

proceedings be administratively closed

or that the motion filed be indefinitely

continued, in order to allow the alien to

pursue a LIFE Legalization application

with the Service. In the request to

administratively close the matter or

indefinitely continue the motion, the

alien must include documents

demonstrating prima facie eligibility for

the relief, and proof that the application

for relief had been properly filed with

the Service as prescribed in this section.

With the concurrence of Service

counsel, if the alien appears eligible to

file for relief under LIFE Legalization,

the Immigration Court or the Board,

whichever has jurisdiction, shall

administratively close the proceeding or

continue the motion indefinitely.

(2) If an alien has a matter before the

Immigration Court or the Board that has

been administratively closed for reasons

unrelated to this Subpart B, the alien

may apply before the Service for LIFE

Legalization adjustment of status.

(3) Aliens with final orders of

exclusion, deportation, or removal. An

alien, who is prima facie eligible for

adjustment of status under LIFE

Legalization, and who is subject to a

final order of exclusion, deportation, or

removal, may apply to the Service for

LIFE Legalization adjustment.

(c) Filing of applications from outside

the United States. An applicant for LIFE

Legalization may file an application for

LIFE Legalization from abroad. An

application for LIFE Legalization filed

from outside the United States shall be

submitted by mail to the Service

according to the instructions on the

application. The Missouri Service

Center Director shall have jurisdiction

over all applications filed with the

Service for LIFE Legalization adjustment

of status. After reviewing the

application and all evidence with the

application, the Service shall notify the

applicant of any further requests for

evidence regarding the application and,

if eligible, how an interview will be

conducted.

(d) Application and supporting

documentation. Each applicant for LIFE

Legalization adjustment of status must

file Form I–485. An applicant should

complete Part 2 of Form I–485 by

checking box ‘‘h—other’’ and writing

‘‘LIFE Legalization’’ next to that block.

Each application must be accompanied

by:

(1) The $330 application fee.

(2) The $25 fee for fingerprinting if

the applicant is between the ages of 14

and 75.

(3) Evidence to establish identity,

such as a passport, birth certificate, any

national identity document from the

alien’s country of origin bearing photo

and fingerprint, driver’s license or

similar document issued by a state if it

contains a photo, or baptismal record/

marriage certificate.

(4) A completed Form G–325A,

Biographic Information Sheet, if the

applicant is between the ages of 14 and

79.

(5) A report of medical examination,

as specified in § 245.5 of this chapter.

(6) Two photographs, as described in

the instructions to Form I–485.

(7) Proof of application for class

membership in CSS, LULAC, or

Zambrano class action lawsuits as

described in § 245a.14.

(8) Proof of continuous residence in

an unlawful status since prior to January

1, 1982, through May 4, 1988, as

described in § 245a.15.

(9) Proof of continuous physical

presence from November 6, 1986,

through May 4, 1988, as described in

§ 245a.16.

(10) Proof of citizenship skills as

described in § 245a.17.

(e) Burden of proof. An alien applying

for adjustment of status under this part

has the burden of proving by a

preponderance of the evidence that he

or she has resided in the United States

for the requisite periods, is admissible

to the United States under the

provisions of section 212(a) of the Act,

and is otherwise eligible for adjustment

of status under this Subpart B. The

inference to be drawn from the

documentation provided shall depend

on the extent of the documentation, its

credibility and amenability to

verification as set forth in paragraph (f)

of this section.

(f) Evidence. The sufficiency of all

evidence produced by the applicant will

be judged according to its probative

value and credibility. To meet his or her

burden of proof, an applicant must

provide evidence of eligibility apart

from his or her own testimony. In

judging the probative value and

credibility of the evidence submitted,

greater weight will be given to the

submission of original documentation.

(g) Secondary evidence. Except as

otherwise provided in this paragraph, if

the primary evidence required in this

Subpart B is unavailable, church or

school records, or other secondary

evidence pertinent to the facts in issue,

may be submitted. If such documents

are unavailable, statements or other

relevant documents may be submitted.

In adjudicating the application for LIFE

Legalization adjustment of status, the

Service shall determine the weight to be

given such secondary evidence.

Secondary evidence may not be

submitted in lieu of the documentation

specified in paragraph (d)(3) of this

section. However, subject to verification

by the Service, if the evidence required

to be submitted by the applicant is

already contained in the Service’s file

relating to the applicant, the applicant

may submit a statement to that effect in

lieu of the actual documentation.

§ 245a.13 During pendency of application.

(a) In general. When an eligible alien

in the United States submits a prima

facie application for adjustment of

status under LIFE Legalization during

the application period, until a final

determination on his or her application

has been made, the applicant:

(1) May not be deported or removed

from the United States;

(2) Is authorized to engage in

employment in the United States and is

provided with an ‘‘employment

authorized’’ endorsement or other

appropriate work permit; and

(3) Is allowed to travel and return to

the United States as described at

paragraph (e) of this section. Any

domestic LIFE Legalization applicant

who departs the United States while his

or her application is pending without

advance parole may be denied readmission to the United States as

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29675

described at paragraph (e) of this

section.

(b) Determination of filing of claim for

class membership. With respect to each

LIFE Legalization application for

adjustment of status that is properly

filed under this Subpart B during the

application period, the Service will first

determine whether or not the applicant

is an ‘‘eligible alien’’ as defined under

§ 245a.10 of this Subpart B by virtue of

having filed with the Service a claim of

class membership in the CSS, LULAC,

or Zambrano lawsuit before October 1,

2000. If the Service’s records indicate,

or if the evidence submitted by the

applicant with the application

establishes, that the alien had filed the

requisite claim of class membership

before October 1, 2000, then the Service

will proceed to adjudicate the

application under the remaining

standards of eligibility.

(c) Prima facie eligibility. Unless the

Service has evidence indicating

ineligibility due to criminal grounds of

inadmissibility, an application for

adjustment of status shall be treated as

a prima facie application during the

pendency of application, until the

Service has made a final determination

on the application, if:

(1) The application was properly filed

under this Subpart B during the

application period; and

(2) The applicant establishes that he

or she filed the requisite claim for class

membership in the CSS, LULAC, or

Zambrano lawsuit.

(d) Authorization to be employed in

the United States while the application

is pending.

(1) Application for employment

authorization. An applicant for

adjustment of status under LIFE

Legalization who wishes to obtain

initial or continued employment

authorization during the pendency of

the adjustment application must file a

Form I–765, Application for

Employment Authorization, with the

Service, including the fee as set forth in

§ 103.7(b)(1) of this chapter. The

applicant may submit Form I–765 either

concurrently with or subsequent to the

filing of the application for adjustment

of status benefits on Form I–485.

(2) Adjudication and issuance. Until

a final determination on the application

has been made, an eligible alien who

submits a prima facie application for

adjustment of status under this Subpart

B shall be authorized to engage in

employment in the United States and be

provided with an ‘‘employment

authorized’’ endorsement or other

appropriate work permit in accordance

with § 274a.12(c)(24) of this chapter. An

alien shall not be granted employment

authorization pursuant to LIFE

Legalization until he or she has

submitted a prima facie application for

adjustment of status under this Subpart

B. If the Service finds that additional

evidence is required from the alien in

order to establish prima facie eligibility

for LIFE Legalization, the Service shall

request such evidence from the alien in

writing. Nothing in this section shall

preclude an applicant for adjustment of

status under LIFE Legalization 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.

(e) Travel while the application is

pending. This paragraph is authorized

by section 1104(c)(3) of the LIFE Act

relating to the ability of an alien to

travel abroad and return to the United

States while his or her LIFE Legalization

adjustment application is pending.

Parole authority is granted to the

Missouri Service Center Director for the

purposes described in this section and

may only be exercised pursuant to the

standards prescribed in section

212(d)(5) of the Act. Nothing in this

section shall preclude an applicant for

adjustment of status under LIFE

Legalization from being granted advance

parole or admission into the United

States under any other provision of law

or regulation for which the alien may be

eligible.

(1) An applicant for LIFE Legalization

benefits applying from the United States

should file, with his or her application

for adjustment, a Form I–131,

Application for Travel Document, with

fee as set forth in § 103.7(b)(1) of this

chapter. The Service shall approve the

Form I–131 and issue an advance parole

document, unless the Service finds that

the alien’s application does not

establish a prima facie claim to

adjustment of status under LIFE

Legalization.

(2) If an alien travels abroad and

returns to the United States with a grant

of advance parole, the Service shall

presume that the alien is entitled to

return under section 1104(c)(3)(B) of the

LIFE Act, unless, in a removal or

expedited removal proceeding, the

Service shows by a preponderance of

the evidence, that one or more of the

provisions of § 245a.11(d) makes the

alien ineligible for adjustment of status

under LIFE Legalization.

(3) If an alien travels abroad and

returns without a grant of advance

parole, he or she shall be denied

admission and shall be subject to

removal or expedited removal unless

the alien establishes, clearly and beyond

doubt, that:

(i) He or she filed an application for

adjustment pursuant to LIFE

Legalization during the application

period that presented a prima facie

claim to adjustment of status under LIFE

Legalization; and,

(ii) His or her absence was either a

brief and casual trip consistent with an

intention on the alien’s part to pursue

his or her LIFE Legalization adjustment

application, or was a brief temporary

trip that occurred because of the alien’s

need to tend to family obligations

relating to a close relative’s death or

illness or similar family need. A single

absence from the United States of more

than thirty (30) days or an aggregate of

all absences exceeding ninety (90) days

shall not be deemed to be a brief and

casual trip unless the alien can establish

that due to emergent reasons, his or her

return to the United States could not be

accomplished within the time period(s)

allowed.

(4) An applicant for LIFE Legalization

benefits who applies for admission into

the United States shall not be subject to

the provisions of section 212(a)(9)(B) of

the Act.

(5) Denial of admission under this

section is not a denial of the alien’s

application for adjustment. The alien

may continue to pursue his or her

application for adjustment from abroad,

and may also appeal any denial of such

application from abroad. Such

application shall be adjudicated in the

same manner as other applications filed

from abroad.

(f) Stay of final order of exclusion,

deportation, or removal. The filing of a

LIFE Legalization adjustment

application on or after June 1, 2001, and

on or before May 31, 2002, stays the

execution of any final order of

exclusion, deportation or removal. This

stay shall remain in effect until there is

a final decision on the LIFE Legalization

application, unless the district director

who intends to execute the order makes

a formal determination that the

applicant does not present a prima facie

claim to LIFE Legalization eligibility

pursuant to §§ 245a.18(a)(1) or (a)(2), or

§§ 245.18a(c)(2)(i), (c)(2)(ii), or (c)(2)(iii),

and serves the applicant with a written

decision explaining the reason for this

determination. Any such stay

determination by the district director is

not appealable. Neither an Immigration

Judge nor the Board has jurisdiction to

adjudicate an application for stay of

execution of an exclusion, deportation,

or removal order, on the basis of the

alien’s having filed a LIFE Legalization

adjustment application.

29676 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

§ 245a.14 Application for class

membership in the CSS, LULAC, or

Zambrano lawsuit.

The Service will first determine

whether an alien filed a written claim

for class membership in the CSS,

LULAC, or Zambrano lawsuit as

reflected in the Service’s indices, a

review of the alien’s administrative file

with the Service, and by all evidence

provided by the alien. An alien must

provide with the application for LIFE

Legalization evidence establishing that,

before October 1, 2000, he or she was a

class member applicant in the CSS,

LULAC, or Zambrano lawsuit. An alien

should include as many forms of

evidence as the alien has available to

him or her. Such forms of evidence

include, but are not limited to:

(a) An Employment Authorization

Document (EAD) or other employment

document issued by the Service

pursuant to the alien’s class

membership in the CSS, LULAC, or

Zambrano lawsuit (if a photocopy of the

EAD is submitted, the alien’s name, Anumber, issuance date, and expiration

date should be clearly visible);

(b) Service document(s) addressed to

the alien, or his or her representative,

granting or denying the class

membership, which includes date,

alien’s name and A-number;

(c) The questionnaire for class

member applicant under CSS, LULAC,

or Zambrano submitted with the class

membership application, which

includes date, alien’s full name and date

of birth;

(d) Service document(s) addressed to

the alien, or his or her representative,

discussing matters pursuant to the class

membership application, which

includes date, alien’s name and Anumber. These include, but are not

limited to the following:

(1) Form I–512, Parole authorization,

or denial of such;

(2) Form I–221, Order to Show Cause;

(3) Form I–862, Notice to Appear;

(4) Final order of removal or

deportation;

(5) Request for evidence letter (RFE);

or

(6) Form I–687 submitted with the

class membership application.

(e) Any other relevant document(s).

§ 245a.15 Continuous residence in an

unlawful status since prior to January 1,

1982, through May 4, 1988.

(a) General. The Service will

determine whether an alien entered the

United States before January 1, 1982,

and resided in continuous unlawful

status since such date through May 4,

1988, based on the evidence provided

by the alien. An alien must provide with

the application for LIFE Legalization

evidence establishing that he or she

entered the United States before January

1, 1982, and resided in continuous

unlawful status since that date through

May 4, 1988.

(b) Evidence.

(1) A list of evidence that may

establish an alien’s continuous

residence in the United States can be

found at § 245a.2(d)(3).

(2) The following evidence may

establish an alien’s unlawful status in

the United States:

(i) Form I–94, Arrival-Departure

Record;

(ii) Form I–20A–B, Certificate of

Eligibility for Nonimmigrant (F–1)

Student Status—For Academic and

Language Students;

(iii) Form IAP–66, Certificate of

Eligibility for Exchange Visitor Status;

(iv) A passport; or

(v) Nonimmigrant visa(s) issued to the

alien.

(c) Continuous residence. An alien

shall be regarded as having resided

continuously in the United States if:

(1) No single absence from the United

States has exceeded forty-five (45) days,

and the aggregate of all absences has not

exceeded one hundred and eighty (180)

days between January 1, 1982, and May

4, 1988, unless the alien can establish

that due to emergent reasons, his or her

return to the United States could not be

accomplished within the time period

allowed;

(2) The alien was maintaining

residence in the United States; and

(3) The alien’s departure from the

United States was not based on an order

of deportation.

(d) Unlawful status. The following

categories of aliens, who are otherwise

eligible to adjust to LPR status pursuant

to LIFE Legalization, may file for

adjustment of status provided they

resided continuously in the United

States in an unlawful status since prior

to January 1, 1982, through May 4, 1988:

(1) An eligible alien who entered the

United States without inspection prior

to January 1, 1982.

(2) Nonimmigrants. An eligible alien

who entered the United States as a

nonimmigrant before January 1, 1982,

whose authorized period of admission

as a nonimmigrant expired before

January 1, 1982, through the passage of

time, or whose unlawful status was

known to the Government before

January 1, 1982. Known to the

Government means documentation

existing in one or more Federal

Government agencies’ files such that

when such document is taken as a

whole, it warrants a finding that the

alien’s status in the United States was

unlawful. Any absence of mandatory

annual and/or quarterly registration

reports from Federal Government files

does not warrant a finding that the

alien’s unlawful status was known to

the Government.

(i) A or G nonimmigrants. An eligible

alien who entered the United States for

duration of status (D/S) in one of the

following nonimmigrant classes, A–1,

A–2, G–1, G–2, G–3 or G–4, whose

qualifying employment terminated or

who ceased to be recognized by the

Department of State as being entitled to

such classification prior to January 1,

1982. A dependent family member may

be considered a member of this class if

the dependent family member was also

in A or G status when the principal A

or G alien’s status terminated or ceased

to be recognized by the Department of

State.

(ii) F nonimmigrants. An eligible alien

who entered the United States for D/S

in one of the following nonimmigrant

classes, F–1 or F–2, who completed a

full course of study, including practical

training, and whose time period, if any,

to depart the United States after

completion of study expired prior to

January 1, 1982. A dependent F–2 alien

otherwise eligible who was admitted

into the United States with a specific

time period, as opposed to duration of

status, documented on Form I–94,

Arrival-Departure Record, that extended

beyond January 1, 1982, is considered

eligible if the principal F–1 alien is

found eligible.

(iii) Nonimmigrant exchange visitors.

An eligible alien who was at any time

a nonimmigrant exchange alien (as

defined in section 101(a)(15)(J) of the

Act), who entered the United States

before January 1, 1982, and who:

(A) Was not subject to the 2-year

foreign residence requirement of section

212(e) of the Act; or

(B) Has fulfilled the 2-year foreign

residence requirement of section 212(e)

of the Act; or

(C) Has received a waiver for the 2-

year foreign residence requirement of

section 212(e) of the Act.

(3) Asylum applicants. An eligible

alien who filed an asylum application

prior to January 1, 1982, and whose

application was subsequently denied or

whose application was not decided by

May 4, 1988.

(4) Aliens considered to be in

unlawful status. Aliens who were

present in the United States in one of

the following categories were

considered to be in unlawful status:

(i) An eligible alien who was granted

voluntary departure, voluntary return,

extended voluntary departure, or placed

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29677

in deferred action category by the

Service prior to January 1, 1982.

(ii) An eligible alien who is a Cuban

or Haitian entrant (as described in

paragraph (1) or (2)(A) of section 501(e)

of Public Law 96–422 and at § 212.5(g)

of this chapter), who entered the United

States before January 1, 1982. Pursuant

to section 1104(c)(2)(B)(iv) of the LIFE

Act, such alien is considered to be in an

unlawful status in the United States.

(iii) An eligible alien who was paroled

into the United States prior to January

1, 1982, and whose parole status

terminated prior to January 1, 1982.

(iv) An eligible alien who entered the

United States before January 1, 1982,

and whose entries to the United States

subsequent to January 1, 1982, were not

documented on Form I–94.

§ 245a.16 Continuous physical presence

from November 6, 1986, through May 4,

1988.

(a) The Service will determine

whether an alien was continuously

physically present in the United States

from November 6, 1986, through May 4,

1988, based on the evidence provided

by the alien. An alien must provide with

the application evidence establishing

his or her continuous physical presence

in the United States from November 6,

1986, through May 4, 1988. Evidence

establishing the alien’s continuous

physical presence in the United States

from November 6, 1986, to May 4, 1988,

may consist of any documentation

issued by any governmental or

nongovernmental authority, provided

such evidence bears the name of the

applicant, was dated at the time it was

issued, and bears the signature, seal, or

other authenticating instrument of the

authorized representative of the issuing

authority, if the document would

normally contain such authenticating

instrument.

(b) For purposes of this section, an

alien shall not be considered to have

failed to maintain continuous physical

presence in the United States by virtue

of brief, casual, and innocent absences

from the United States. Also, brief,

casual, and innocent absences from the

United States are not limited to

absences with advance parole. Brief,

casual, and innocent absence(s) as used

in this paragraph means temporary,

occasional trips abroad as long as the

purpose of the absence from the United

States was consistent with the policies

reflected in the immigration laws of the

United States. A single absence from the

United States of more than thirty (30)

days or an aggregate of all absences

exceeding ninety (90) days shall not be

deemed to be a brief, casual, and

innocent absence unless the alien had

advance parole or the alien can establish

that due to emergent reasons, his or her

return to the United States could not be

accomplished within the time period(s)

allowed.

(c) An alien who has been absent from

the United States in accordance with the

Service’s advance parole procedures

shall not be considered as having

interrupted his or her continuous

physical presence as required at the

time of filing an application under this

section.

§ 245a.17 Citizenship skills.

(a) Requirements. Applicants for

adjustment under LIFE Legalization

must meet the requirements of section

312(a) of the Act (8 U.S.C. 1423(a))

(relating to minimal understanding of

ordinary English and a knowledge and

understanding of the history and

government of the United States).

Unless an exception under paragraph (c)

of this section applies to the applicant,

LIFE Legalization applicants must

establish that:

(1) He or she has complied with the

same requirements as those listed for

naturalization applicants under §§ 312.1

and 312.2 of this chapter; or

(2) He or she has a high school

diploma or general educational

development diploma (GED) from a

school in the United States. A GED

gained in a language other than English

is acceptable only if a GED English

proficiency test has been passed. (The

curriculum for both the high school

diploma and the GED must have

included at least 40 hours of instruction

in English and United States history and

government). The applicant may submit

a high school diploma or GED either at

the time of filing Form I–485,

subsequent to filing the application but

prior to the interview, or at the time of

the interview (the applicant’s name and

A-number must appear on any such

evidence submitted); or

(3) He or she has attended, or is

attending, a state recognized, accredited

learning institution in the United States,

and that institution certifies such

attendance. The course of study at such

learning institution must be for a period

of one academic year (or the equivalent

thereof according to the standards of the

learning institution) and the curriculum

must include at least 40 hours of

instruction in English and United States

history and government. The applicant

may submit certification on letterhead

stationery from a state recognized,

accredited learning institution either at

the time of filing Form I–485,

subsequent to filing the application but

prior to the interview, or at the time of

the interview (the applicant’s name and

A-number must appear on any such

evidence submitted).

(b) Second interview. An applicant

who fails to pass the English literacy

and/or the United States history and

government tests at the time of the

interview, shall be afforded a second

opportunity after 6 months (or earlier, at

the request of the applicant) to pass the

tests or submit evidence as described in

paragraphs (a)(2) or (a)(3) of this section.

The second interview shall be

conducted prior to the denial of the

application for permanent residence and

may be based solely on the failure to

pass the basic citizenship skills

requirements.

(c) Exceptions. LIFE Legalization

applicants are exempt from the

requirements listed under paragraph

(a)(1) of this section if he or she has

qualified for the same exceptions as

those listed for naturalization applicants

under §§ 312.1(b)(3) and 312.2(b) of this

chapter. Further, at the discretion of the

Attorney General, the requirements

listed under paragraph (a) of this section

may be waived if the LIFE Legalization

applicant:

(1) Is 65 years of age or older; or

(2) Is developmentally disabled as

defined under § 245a.1(v).

§ 245a.18 Ineligibility and applicability of

grounds of inadmissibility.

(a) Ineligible aliens.

(1) An alien who has been convicted

of a felony or of three or misdemeanors

committed in the United States is

ineligible for adjustment to LPR status

under this Subpart B; or

(2) An alien who has assisted in the

persecution of any person or persons on

account of race, religion, nationality,

membership in a particular social group,

or political opinion is ineligible for

adjustment of status under this Subpart

B.

(b) Grounds of inadmissibility not to

be applied. Section 212(a)(5) of the Act

(labor certification requirements) and

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

(immigrants not in possession of valid

visa and/or travel documents) shall not

apply to applicants for adjustment to

LPR status under this Subpart B.

(c) Waiver of grounds of

inadmissibility. Except as provided in

paragraph (c)(2) of this section, the

Service may waive any provision of

section 212(a) of the Act only in the case

of individual aliens for humanitarian

purposes, to ensure family unity, or

when the granting of such a waiver is

otherwise in the public interest. If

available, an applicant may apply for an

individual waiver as provided in

paragraph (c)(1) of this section without

regard to section 241(a)(5) of the Act.

29678 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

(1) Special rule for waiver of

inadmissibility grounds for LIFE

Legalization applicants under sections

212(a)(9)(A) and 212(a)(9)(C) of the Act.

An applicant for adjustment of status

under LIFE Legalization who is

inadmissible under section 212(a)(9)(A)

or 212(a)(9)(C) of the Act, may apply for

a waiver of these grounds of

inadmissibility while present in the

United States, without regard to the

normal requirement that a Form I–212,

Application for Permission to Reapply

for Admission into the United States

After Deportation or Removal, be filed

prior to embarking or re-embarking for

travel to the United States, and without

regard to the length of time since the

alien’s removal or deportation from the

United States. Such an alien shall file

Form I–690, Application for Waiver of

Grounds of Excludability Under

Sections 245A or 210 of the Immigration

and Nationality Act, with the district

director having jurisdiction over the

applicant’s case if the application for

adjustment of status is pending at a

local office, or with the Director of the

Missouri Service Center. Approval of a

waiver of inadmissibility under section

212(a)(9)(A) or section 212(a)(9)(C) of

the Act does not cure a break in

continuous residence resulting from a

departure from the United States at any

time during the period from January 1,

1982, and May 4, 1988, if the alien was

subject to a final exclusion or

deportation order at the time of the

departure.

(2) Grounds of inadmissibility that

may not be waived. Notwithstanding

any other provisions of the Act, the

following provisions of section 212(a) of

the Act may not be waived by the

Attorney General under paragraph (c) of

this section:

(i) Sections 212(a)(2)(A) and (2)(B)

(crimes involving moral turpitude and

controlled substances);

(ii) Section 212(a)(2)(C) (controlled

substance traffickers);

(iii) Section 212(a)(3) (security and

related grounds); and

(iv) Section 212(a)(4) (public charge)

except for an alien who is or was an

aged, blind, or disabled individual (as

defined in section 1614(a)(1) of the

Social Security Act). If a LIFE

Legalization applicant is determined to

be inadmissible under section 212(a)(4)

of the Act, he or she may still be

admissible under the Special Rule

described under paragraph (d)(3) of this

section.

(d) Determination of ‘‘likely to become

a public charge’’ and special rule. Prior

to use of the special rule for

determination of public charge under

paragraph (d)(3) of this section, an alien

must first be determined to be

inadmissible under section 212(a)(4) of

the Act. If the alien is determined to be

‘‘likely to become a public charge’’, he

or she may still be admissible under the

terms of the Special Rule.

(1) In determining whether an alien is

‘‘likely to become a public charge’’,

financial responsibility of the alien is to

be established by examining the totality

of the alien’s circumstance at the time

of his or her application for adjustment.

The existence or absence of a particular

factor should never be the sole criteria

for determining if an alien is likely to

become a public charge. The

determination of financial responsibility

should be a prospective evaluation

based on the alien’s age, health, family

status, assets, resources, education and

skills.

(2) The special rule for determination

of public charge under paragraph (d)(3)

of this section is to be applied only after

an initial determination that the alien is

inadmissible under the provisions of

section 212(a)(4) of the Act.

(3) An alien who has a consistent

employment history which shows the

ability to support himself or herself

even though his or her income may be

below the poverty level is not

excludable under paragraph (c)(2)(iv) of

this section. The alien’s employment

history need not be continuous in that

it is uninterrupted. It should be

continuous in the sense that the alien

shall be regularly attached to the

workforce, has an income over a

substantial period of the applicable

time, and has demonstrated the capacity

to exist on his or her income without

recourse to public cash assistance. The

Special Rule is prospective in that the

Service shall determine, based on the

alien’s history, whether he or she is

likely to become a public charge. Past

acceptance of public cash assistance

within a history of consistent

employment will enter into this

decision. The weight given in

considering applicability of the public

charge provisions will depend on many

factors, but the length of time an

applicant has received public cash

assistance will constitute a significant

factor. It is not necessary to file a waiver

in order to apply the special rule for

determination of public charge.

(e) Public cash assistance and

criminal history verification.

Declarations by an alien that he or she

has not been the recipient of public cash

assistance and/or has not had a criminal

record are subject to a verification by

the Service. The alien must agree to

fully cooperate in the verification

process. Failure to assist the Service in

verifying information necessary for

proper adjudication may result in denial

of the application.

§ 245a.19 Interviews.

(a) All aliens filing applications for

adjustment of status with the Service

under this section must be personally

interviewed, except that the

adjudicative interview may be waived

for a child under the age of 14, or when

it is impractical because of the health or

advanced age of the applicant.

Applicants will be interviewed by an

immigration officer as determined by

the Director of the Missouri Service

Center. An applicant failing to appear

for the scheduled interview may, for

good cause, be afforded another

interview. Where an applicant fails to

appear for two scheduled interviews,

his or her application shall be denied

for lack of prosecution. Applications for

LIFE Legalization adjustment may be

denied without interview if the

applicant is determined to be statutorily

ineligible.

(b) At the time of the interview,

wherever possible, original documents

must be submitted except the following:

official government records;

employment or employment-related

records maintained by employers,

unions, or collective bargaining

organizations; medical records; school

records maintained by a school or

school board; or other records

maintained by a party other than the

applicant. Copies of records maintained

by parties other than the applicant

which are submitted in evidence must

be certified as true and correct by such

parties and must bear their seal or

signature or the signature and title of

persons authorized to act in their behalf.

(c) If at the time of the interview the

return of original documents is desired

by the applicant, they must be

accompanied by notarized copies or

copies certified true and correct by the

alien’s representative. At the discretion

of the district director, original

documents, even if accompanied by

certified copies, may be temporarily

retained for forensic examination by the

Service.

§ 245a.20 Decisions, appeals, motions,

and certifications.

(a) Decisions.

(1) Approval of applications. If the

Service approves the application for

adjustment of status under LIFE

Legalization, the district director shall

record the alien’s lawful admission for

permanent residence as of the date of

such approval and notify the alien

accordingly. The district director shall

also advise the alien regarding the

delivery of his or her Form I–551,

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29679

Permanent Resident Card, and of the

process for obtaining temporary

evidence of alien registration. If the

alien has previously been issued a final

order of exclusion, deportation, or

removal, such order shall be deemed

canceled as of the date of the district

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 district director.

(2) Denials. The alien shall be notified

in writing of the decision of denial and

of the reason(s) therefore. If the Service

intends to rely on adverse information

of which the applicant is not aware, the

Service will comply with § 103.2(b)(16)

of this chapter, and will not deny the

application until the applicant has had

the opportunity to respond to the

adverse information. If inconsistencies

are found between information

submitted with the adjustment

application and information previously

furnished by the alien to the Service, the

alien shall be afforded the opportunity

to explain discrepancies or rebut any

adverse information. A party affected

under this part by an adverse decision

is entitled to file an appeal on Form I–

290B, Notice of appeal to the

Administrative Appeals Unit (AAU),

with required fee specified in

§ 103.7(b)(1) of this chapter. Except in

instances when a LIFE Legalization

application is denied for failure to

establish timely application for class

membership in the CSS, LULAC, or

Zambrano lawsuit, or in instances when

the LIFE Legalization applicant failed to

present a prima facie application for

LIFE Legalization as defined in

§ 245a.13(c), employment authorization

will be granted until a final decision has

been rendered on appeal or until the

end of the appeal period if no appeal is

filed. After exhaustion of an appeal, an

alien who believes that the grounds for

denial have been overcome may submit

another application with fee, provided

that the application is submitted on or

before May 31, 2002.

(b) Appeals process. An adverse

decision under this part may be

appealed to the Associate

Commissioner, Examinations,

Administrative Appeals Office (AAO),

who is the appellate authority

designated in § 103.1(f)(3) of this

chapter. Any appeal shall be submitted

to the Service office that rendered the

decision with the required fee.

(1) If an appeal is filed from within

the United States, it must be received by

the Service within 30 calendar days

after service of the Notice of Denial

(NOD) in accordance with the

procedures of § 103.3(a) of this chapter.

An appeal received after the 30 day

period has tolled will not be accepted.

The 30 day period for submitting an

appeal begins 3 days after the NOD is

mailed. If a review of the Record of

Proceeding (ROP) is requested by the

alien or his or her legal representative,

and an appeal has been properly filed,

an additional 30 days will be allowed

for this review from the time the ROP

is photocopied and mailed.

(2) If an applicant’s last known

address of record was outside the

United States, and the NOD was mailed

to that foreign address, the appeal must

be received by the Service within 60

calendar days after service of the NOD

in accordance with the procedures of

§ 103.3(a) of this chapter. An appeal

received after the 60 day period has

tolled will not be accepted. The 60-day

period for submitting an appeal begins

3 days after the NOD is mailed.

(c) Motions. The Service director who

denied the application may reopen and

reconsider any adverse decision sua

sponte. When an appeal to the AAO has

been filed, the director may issue a new

decision that will grant the benefit that

has been requested. Motions to reopen

a proceeding or reconsider a decision

shall not be considered under this

Subpart B.

(d) Certifications. The Service director

who adjudicates the application may, in

accordance with § 103.4 of this chapter,

certify a decision to the AAO when the

case involves an unusually complex or

novel question of law or fact.

(e) Effect of final adjudication of

application on aliens previously in

proceedings. 

(1) Upon the granting of an

application. If the application for LIFE

Legalization is granted, proceedings

shall be deemed terminated or a final

order of exclusion, deportation, or

removal shall be deemed canceled as of

the date of the approval of the LIFE

Legalization application for adjustment

of status.

(2) Upon the denial of an application. 

(i) Where proceedings were

administratively closed. In the case of

an alien whose previously initiated

exclusion, deportation or removal

proceeding had been administratively

closed or continued indefinitely under

§ 245a.12(b)(1), the director shall make

a request for recalendaring to the

Immigration Court that had

administratively closed the proceeding,

or the Board, as appropriate, when there

is a final decision denying the LIFE

Legalization application. The

Immigration Court or the Board will

then recalendar the prior proceeding.

(ii) Where final order was stayed. If

the application for LIFE Legalization is

denied, the stay of a final order of

exclusion, deportation, or removal

afforded in § 245a.13(f) shall be deemed

lifted as of the date of such denial.

§ 245a.21 Confidentiality.

(a) No person other than a sworn

officer or employee of the Department of

Justice or bureau or agency thereof, will

be permitted to examine individual

applications. For purposes of this part,

any individual employed under contract

by the Service to work in connection

with the LIFE Legalization provisions

shall be considered an employee of the

Department of Justice or bureau or

agency thereof.

(b) No information furnished pursuant

to an application for permanent resident

status under this Subpart B shall be

used for any purpose except:

(1) To make a determination on the

application;

(2) For the enforcement of the

provisions encompassed in section

245A(c)(6) of the Act, except as

provided in paragraphs (c) of this

section; or

(3) For the purposes of rescinding,

pursuant to section 246(a) of the Act (8

U.S.C. 1256(a)), any adjustment of status

obtained by the alien.

(c) If a determination is made by the

Service that the alien has, in connection

with his or her application, engaged in

fraud or willful misrepresentation or

concealment of a material fact,

knowingly provided a false statement or

document in making his or her

application, knowingly made a false

statement or representation, or engaged

in any other activity prohibited by

section 245A(c)(6) of the Act, the

Service shall refer the matter to the

United States Attorney for prosecution

of the alien and/or of any person who

created or supplied a false statement or

document for use in an application for

adjustment of status under this Subpart

B.

(d) Information contained in granted

files may be used by the Service at a

later date to make a decision:

(1) On an immigrant visa petition or

other status filed by the applicant under

section 204(a) of the Act;

(2) On a naturalization application

submitted by the applicant;

(3) For the preparation of reports to

Congress under section 404 of the

Immigration Reform and Control Act of

1986; or

(4) For the furnishing of information,

at the discretion of the Attorney

General, in the same manner and

29680 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

circumstances as census information

may be disclosed by the Secretary of

Commerce under 13 U.S.C. 8.

(e) Information concerning whether

the applicant has at any time been

convicted of a crime may be used or

released for immigration enforcement or

law enforcement purposes.

§ 245a.22 Rescission.

(a) Rescission of adjustment of status

under LIFE Legalization shall occur

only under the procedures of 8 CFR part

246.

(b) Information furnished by an

eligible alien pursuant to any

application filed under LIFE

Legalization may be used by the

Attorney General, and other officials

and employees of the Department of

Justice and any bureau or agency

thereof, for purposes of rescinding,

pursuant to 8 CFR part 246, any

adjustment of status obtained by the

alien.

§§ 245a.23 through 245a.29 [Reserved]

Subpart C—LIFE Act Amendments

Family Unity Provisions

§ 245a.30 Description of program.

This Subpart C implements the

Family Unity provisions of section 1504

of the LIFE Act Amendments, Public

Law 106–554.

§ 245a.31 Eligibility.

An alien who is currently in the

United States may obtain Family Unity

benefits under section 1504 of the LIFE

Act Amendments if he or she

establishes that:

(a) He or she is the spouse or

unmarried child under the age of 21 of

an eligible alien (as defined under

§ 245a.10) at the time the alien’s

application for Family Unity benefits is

adjudicated and thereafter;

(b) He or she entered the United

States before December 1, 1988, and

resided in the United States on such

date; and

(c) If applying for Family Unity

benefits on or after June 1, 2002, he or

she is the spouse or unmarried child

under the age of 21 of an alien who has

filed a Form I–485 pursuant to this

Subpart B.

§ 245a.32 Ineligible aliens.

The following categories of aliens are

ineligible for Family Unity benefits

under the LIFE Act Amendments:

(a) An alien who has been convicted

of a felony or of three or more

misdemeanors in the United States; or

(b) An alien who has ordered, incited,

assisted, or otherwise participated in the

persecution of an individual because of

the individual’s race, religion,

nationality, membership in a particular

social group, or political opinion; or

(c) An alien who has been convicted

by a final judgment of a particularly

serious crime and who is a danger to the

community of the United States; or

(d) An alien who the Attorney General

has serious reasons to believe has

committed a serious nonpolitical crime

outside the United States before the

alien arrived in the United States; or

(e) An alien who the Attorney General

has reasonable grounds to believe is a

danger to the security of the United

States.

§ 245a.33 Filing.

(a) General. An application for Family

Unity benefits under section 1504 of the

LIFE Act Amendments must be filed on

a Form I–817, Application for Family

Unity Benefits, with the Missouri

Service Center. A Form I–817 must be

filed with the correct fee required in

§ 103.7(b)(1) of this chapter and the

required supporting documentation. A

separate application with appropriate

fee and documentation must be filed for

each person claiming eligibility.

(b) Decision. The Missouri Service

Center Director has sole jurisdiction to

adjudicate an application for Family

Unity benefits under the LIFE Act

Amendments. If the Service finds that

additional evidence is required from the

alien in order to properly adjudicate the

application, the Service shall request

such evidence from the alien in writing.

The Director will provide the applicant

with specific reasons for any decision to

deny an application. Denial of an

application may not be appealed. An

applicant who believes that the grounds

for denial have been overcome may

submit another application with the

appropriate fee and documentation.

(c) Referral of denied cases for

consideration of issuance of notice to

appear. If an application is denied, the

case will be referred to the district

director with jurisdiction over the

alien’s place of residence for

consideration of whether to issue a

notice to appear. After an initial denial,

an applicant’s case will not be referred

for issuance of a notice to appear until

90 days from the date of the initial

denial, to allow the alien the

opportunity to file a new Form I–817

application in order to attempt to

overcome the basis of the denial.

However, if the applicant is found not

to be eligible for benefits under

§ 245a.32(a), the Service reserves the

right to issue a notice to appear at any

time after the initial denial.

§ 245a.34 Protection from removal,

eligibility for employment, and period of

authorized stay.

(a) Scope of protection. Nothing in

this Subpart C shall be construed to

limit the authority of the Service to

commence removal proceedings against

an applicant for or beneficiary of Family

Unity benefit under this Subpart C on

any ground of removal. Also, nothing in

this Subpart C shall be construed to

limit the authority of the Service to take

any other enforcement action against

such an applicant or beneficiary with

respect to any ground of removal not

specified in paragraphs (a)(1) through

(a)(4) of this section. Protection from

removal under this Subpart C is limited

to the grounds of removal specified in:

(1) Section 237(a)(1)(A) of the Act

(aliens who were inadmissible at the

time of entry or adjustment of status),

except that the alien may be removed if

he or she is inadmissible because of a

ground listed in section 212(a)(2)

(criminal and related grounds) or in

section 212(a)(3) (security and related

grounds) of the Act; or

(2) Section 237(a)(1)(B) of the Act

(aliens present in the United States in

violation of the Act or any other law of

the United States);

(3) Section 237(a)(1)(C) of the Act

(aliens who violated their nonimmigrant

status or violated the conditions of

entry); or

(4) Section 237(a)(3)(A) of the Act

(aliens who failed to comply with the

change of address notification

requirements).

(b) Duration of protection from

removal. An alien whose application for

Family Unity benefits under the LIFE

Act Amendments is approved will

receive protection from removal,

commencing with the date of approval

of the application. While any evidence

of protection from removal shall be

dated to expire 1 year after the date of

approval, a grant of protection from

removal under this section shall be

considered effective from the date on

which the application was properly

filed.

(c) Employment authorization. An

alien granted Family Unity benefits

under the LIFE Act Amendments is

authorized to be employed in the United

States. The validity period of the

employment authorization document

shall be dated to expire 1 year after the

date of approval of the Form I–817.

(d) Period of authorized stay. An alien

granted Family Unity benefits under the

LIFE Act Amendments is deemed to

have received an authorized period of

stay approved by the Attorney General

within the scope of section 212(a)(9)(B)

of the Act.

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29681

§ 245a.35 Travel outside the United States.

(a) An alien who departs the United

States while his or her application for

Family Unity benefits is pending will be

deemed to have abandoned the

application and the application will be

denied.

(b) An alien granted Family Unity

benefits under the LIFE Act

Amendments who intends to travel

outside the United States temporarily

must apply for advance authorization

using Form I–131. The authority to grant

an application for advance authorization

for an alien granted Family Unity

benefits under the LIFE Act

Amendments rests solely with the

Service. An alien who is granted

advance authorization and returns to the

United States in accordance with such

authorization, and who is found not to

be inadmissible under section 212(a)(2)

or (3) of the Act, shall be paroled into

the United States. He or she shall be

provided the remainder of the

protection from removal period

previously granted under the Family

Unity provisions of the LIFE Act

Amendments.

§ 245a.36 [Reserved]

§ 245a.37 Termination of Family Unity

Program benefits.

(a) Grounds for termination. The

Service may terminate Family Unity

benefits under the LIFE Act

Amendments whenever the necessity

for the termination comes to the

attention of the Service. Such grounds

will exist in situations including, but

not limited to, those in which:

(1) A determination is made that

Family Unity benefits were acquired as

the result of fraud or willful

misrepresentation of a material fact;

(2) The beneficiary commits an act or

acts which render him or her ineligible

for Family Unity benefits under the

LIFE Act Amendments;

(3) The alien, upon whose status

Family Unity benefits under the LIFE

Act were based, fails to apply for LIFE

Legalization by May 31, 2002, has his or

her LIFE Legalization application

denied, or loses his or her LPR status;

or

(4) A qualifying relationship to the

alien, upon whose status Family Unity

benefits under the LIFE Act

Amendments were based, no longer

exists.

(b) Notice procedure. Notice of intent

to terminate and of the grounds thereof

shall be served pursuant to the

provisions of § 103.5a of this chapter.

The alien shall be given 30 days to

respond to the notice and may submit

to the Service additional evidence in

rebuttal. Any final decision of

termination shall also be served

pursuant to the provisions of § 103.5a of

this chapter. Nothing in this section

shall preclude the Service from

commencing removal proceedings prior

to termination of Family Unity benefits.

(c) Effect of termination. Termination

of Family Unity benefits under the LIFE

Act Amendments shall render the alien

amenable to removal under any ground

specified in section 237 of the Act

(including those grounds described in

§ 245a.34(a)). In addition, the alien will

no longer be considered to be in a

period of stay authorized by the

Attorney General as of the date of such

termination.

PART 274a—CONTROL OF

EMPLOYMENT OF ALIENS

12. The authority citation for part

274a continues to read as follows:

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

CFR part 2; Pub. L. 101–410, 104 Stat. 890,

as amended by Pub. L. 104–134, 110 Stat.

1321.

13. Section 274a.12 is amended by:

a. Revising the last sentence in

paragraph (a) introductory text;

b. Removing the word ‘‘or’’ at the end

of paragraph (a)(12);

c. Replacing the period with ‘‘; or’’ at

the end of paragraph (a)(13);

d. Adding paragraph (a)(14); and by

e. Adding paragraph (c)(24).

The revisions and additions read as

follows:

§ 274a.12 Classes of aliens authorized to

accept employment.

(a) Aliens authorized employment

incident to status. * * * Any alien who

is within a class of aliens described in

paragraphs (a)(3) through (a)(8) or

(a)(10) through (a)(14) of this section,

and who seeks to be employed in the

United States, must apply to the Service

for a document evidencing such

employment authorization.

* * * * *

(14) An alien granted Family Unity

benefits under section 1504 of the Legal

Immigrant Family Equity (LIFE) Act

Amendments, Public Law 106–554, and

the provisions of 8 CFR part 245a,

Subpart C of this chapter, as evidenced

by an employment authorization

document issued by the Service.

* * * * *

(c) * * *

(24) An alien who has filed an

application for adjustment pursuant to

section 1104 of the LIFE Act, Public

Law 106–553, and the provisions of 8

CFR part 245a, Subpart B of this

chapter. Employment authorization

shall be granted in increments not

exceeding 1 year during the period that

the application is pending (including

any period when an administrative

appeal is pending) and shall expire on

a specific date.

* * * * *

PART 299—IMMIGRATION FORMS

14. The authority citation for part 299

continues to read as follows:

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

2.

15. Section 299.1 is amended in the

table by:

a. Adding the entry for Form ‘‘I–485

Supplement D’’ in proper numerical

sequence; and by

b. Revising the entries for Forms ‘‘I–

765’’ and ‘‘I–817’’, to read as follows:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition date Title

*******

I–485 Supplement D ................................................................... 04–26–01 LIFE Legalization Supplement to Form I–485 Instructions.

*******

I–765 ............................................................................................ 04–24–01 Application for Employment Authorization.

*******

I–817 ............................................................................................ 04–26–01 Application for Family Unity Benefits.

*******

29682 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

16. Section 299.5 is amended in the

table by:

a. Adding the entry for Form ‘‘I–485

Supplement D’’ in proper numerical

sequence; and by

b. Revising the entry for Form ‘‘I–

817’’, to read as follows:

§ 299.5 Display of control numbers.

* * * * *

INS form No. INS form title

Currently assigned OMB

control No.

*******

I–485 Supplement D ................................................................... LIFE Legalization Supplement to Form I–485 Instructions ....... 1115–0239

*******

I–817 ............................................................................................ Application for Family Unity Benefits ......................................... 1115–0166

*******

Dated: May 25, 2001.

John Ashcroft,

Attorney General.

[FR Doc. 01–13669 Filed 5–31–01; 8:45 am]

BILLING CODE 4410–10–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 299

[INS No. 2108–01]

RIN 1115–AG03

Establishing Premium Processing

Service for Employment-Based

Petitions and Applications

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule amends the

Immigration and Naturalization Service

(Service) regulations by establishing a

Premium Processing Service for certain

employment-based petitions and

applications. If an entity pays the

required fee for Premium Processing

Service, the Service will process the

petition or application within 15

calendar days. Premium Processing

Service will provide American

businesses with the opportunity to

obtain faster processing of petitions and

applications to meet their needs for

foreign workers.

DATES: Effective date: This interim rule

is effective June 1, 2001.

Comment date: Written comments

must be submitted on or before July 31,

2001.

ADDRESSES: Please submit written

comments to the Director, Policy

Directives and Instructions Branch,

Immigration and Naturalization Service,

425 I Street, NW., Room 4034,

Washington, DC 20536, or via fax to

(202) 305–0143. To ensure proper

handling, please reference INS No.

2108–01 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:

Tracy Renaud, Adjudications Officer,

Immigration Services Division,

Immigration and Naturalization Service,

800 K Street, NW., 10th Floor,

Washington, DC 20536, telephone (202)

305–8010.

SUPPLEMENTARY INFORMATION:

Background

What Is the Authority To Charge a

Premium Processing Fee?

On December 21, 2000, the President

signed the District of Columbia

Appropriations Act, 2001, Public Law

106–553, 114 Stat. 2762 (2000). The

legislation added a new section 286(u)

to the Immigration and Nationality Act

(Act) that authorizes the Attorney

General to collect a $1,000 ‘‘premium

processing’’ fee in addition to the

regular filing fee that must be paid for

the filing with the Service of certain

petitions and applications. Under this

new legislation, the authority to collect

the premium processing fee applies only

to employment-based petitions and

applications.

Why Have Premium Processing Service?

The Premium Processing Service will

enable the Service to improve its

services to its business customers. These

businesses must sometimes recruit and

hire foreign workers to fill jobs in short

time frames. The Service’s current

processing times for employment-based

petitions and applications may not

accommodate the needs of these

businesses. The Premium Processing

Service will give American businesses

an option to pay for faster processing of

petitions and applications for foreign

workers.

What Is Premium Processing Service?

The District of Columbia

Appropriations Act of 2001, Public Law

106–553, established ‘‘premium

processing service’’ and the associated

filing fee. It also specified that the

Service was required to process

applications under the Premium

Processing Service in 15 calendar days.

However, the legislation did not

explicitly define what ‘‘premium

processing service’’ means. Therefore,

the Service is using its authority under

section 103(a) of the Act to establish the

details of this new service.

For example, if the applicant or

petitioner pays for Premium Processing

Service of a petition or application, the

Service will issue an approval notice,

notice of intent to deny, request for

evidence, or notice of an investigation

for fraud or misrepresentation within 15

calendar days. Premium Processing

Service begins on the day the Service

physically receives a petition or

application and ends on the day the

Service issues a notice or request. If the

Service does not issue a notice or

request within 15 calendar days, the

Service will refund the fee

automatically. However, when the

Service fails to issue a notice or request

within 15 calendar days and refunds the

fee, the Service will still expeditiously

process the case. If the application or

petition in question was not eligible for

Premium Processing Service, the fee

will be refunded and the Service will

continue to process the case normally.

What Are the Benefits of the Premium

Processing Service?

The Premium Processing Service

provides a benefit to all entities that file

applications and petitions with the

Service, and not just to those employers