66062 Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations

internal agency management, it is

exempt from the provisions of Executive

Orders 12778 and 12866. Also, this rule

will not cause a significant economic

impact or other substantial effect on

small entities. Therefore, the

requirements of the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq., do

not apply. This rule supersedes the

notice published in the Federal Register

on May 18, 1988 (53 FR 17685).

List of Subjects in 7 CFR Part 510

Freedom of Information.

Accordingly, 7 CFR Part 510 is

revised to read as follows:

PART 510—PUBLIC INFORMATION

Sec.

510.1 General statement.

510.2 Public inspection, copying, and

indexing.

510.3 Requests for records.

510.4 Denials.

510.5 Appeals.

Authority: 5 U.S.C. 301, 552; 7 CFR Part 1,

Subpart A and Appendix A thereto.

§ 510.1 General statement.

This part is issued in accordance with

the regulations of the Secretary of

Agriculture in Part 1, Subpart A of this

title and Appendix A thereto,

implementing the Freedom of

Information Act (FOIA) (5 U.S.C. 552).

The Secretary’s regulations, as

implemented by the regulations in this

part, govern the availability of records of

the Agricultural Research Service (ARS)

to the public.

§ 510.2 Public inspection, copying, and

indexing.

5 U.S.C. 552(a)(2) requires that certain

materials be made available for public

inspection and copying and that a

current index of these materials be

published quarterly or otherwise be

made available. Members of the public

may request access to such materials

maintained by ARS at the following

office: Information Staff, ARS, USDA,

6303 Ivy Lane, Room 456, Greenbelt,

MD 20770; Telephone (301) 344–2207.

Office hours are 8:00 a.m. to 4:30 p.m.

§ 510.3 Requests for records.

Requests for records of ARS under 5

U.S.C. 552(a)(3) shall be made in

accordance with § 1.6 of this title and

submitted to the FOIA Coordinator,

Agricultural Research Service, USDA,

6303 Ivy Lane, Room 456, Greenbelt,

MD 20770; Telephone (301) 344–2207;

Facsimile (301) 344–2325; TDD (301)

344–2435. The FOIA Coordinator is

delegated authority to make

determinations regarding such requests

in accordance with § 1.3(a)(3) of this

title.

§ 510.4 Denials.

If the FOIA Coordinator determines

that a requested record is exempt from

mandatory disclosure and that

discretionary release would be

improper, the FOIA Coordinator shall

give written notice of denial in

accordance with § 1.8(a) of this title.

§ 510.5 Appeals.

Any person whose request is denied

shall have the right to appeal such

denial. Appeals shall be made in

accordance with § 1.6(e) of this title and

should be addressed as follows:

Administrator, Agricultural Research

Service, U.S. Department of Agriculture,

Washington, DC 20250.

Done at Washington, DC, this 18th day of

December 1995.

K.D. Murrell,

Acting Associate Administrator, Agricultural

Research Service.

[FR Doc. 95–31098 Filed 12–20–95; 8:45 am]

BILLING CODE 3410–03–M

National Agricultural Library

7 CFR Part 4100

Availability of Information

AGENCY: National Agricultural Library,

USDA.

ACTION: Final rule.

SUMMARY: This document removes the

regulations of the National Agricultural

Library (NAL) regarding the availability

of information to the public in

accordance with the Freedom of

Information Act (FOIA) to reflect an

internal reorganization of the

Department of Agriculture (USDA).

EFFECTIVE DATE: December 21, 1995.

FOR FURTHER INFORMATION CONTACT:

Stasia A.M. Hutchison, FOIA

Coordinator, Information Staff,

Agricultural Research Service, USDA,

6303 Ivy Lane, Room 456, Greenbelt,

MD 20770, Telephone (301) 344–2207.

SUPPLEMENTARY INFORMATION: The FOIA

(5 U.S.C. 552(a)(1)) requires Federal

agencies to publish in the Federal

Register regulations describing how the

public may obtain information from the

agency. Part 4100 of Title 7, Code of

Federal Regulations, was issued in

accordance with the regulations of the

Secretary of Agriculture at 7 CFR Part 1,

Subpart A, implementing FOIA.

Pursuant to an internal reorganization

of USDA, NAL has been integrated into

the Agricultural Research Service (ARS),

USDA. This document removes 7 CFR

Part 4100. Requests for information

relating to NAL may be obtained

through the FOIA Coordinator for ARS

pursuant to 7 CFR Part 1, Subpart A,

and 7 CFR Part 510.

This rule relates to internal agency

management. Therefore, pursuant to 5

U.S.C. 553, notice of proposed

rulemaking and opportunity for

comment are not required, and this rule

may be made effective less than 30 days

after publication in the Federal Register.

Further, since this rule relates to

internal agency management, it is

exempt from the provisions of Executive

Orders 12778 and 12866. Also, this rule

will not cause a significant economic

impact or other substantial effect on

small entities. Therefore, the

requirements of the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq., do

not apply. This rule supersedes the

notice published in the Federal Register

on May 19, 1988 (53 FR 17914).

List of Subjects in 7 CFR Part 4100

Freedom of Information Act.

Accordingly, under the authority of 5

U.S.C. 301, Part 4100 is removed and

chapter XLI is vacated.

Done at Washington, DC, this 18th day of

December 1995.

K.D. Murrell,

Acting Associate Administrator, Agricultural

Research Service.

[FR Doc. 95–31097 Filed 12–20–95; 8:45 am]

BILLING CODE 3410–12–M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 242, 264, 274a, and

299

[INS No. 1414–91]

RIN 1115–AC39

Applicant Processing for Family Unity

Benefits

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule adopts with

amendments the interim rule which was

published by the Immigration and

Naturalization Service on February 25,

1992, implementing the provisions of

the Family Unity Program created by the

Immigration Act of 1990 which provides

a means by which certain eligible aliens

may obtain permanent resident status.

This rule also provides voluntary

departure and work authorization for

certain eligible immigrants.

EFFECTIVE DATE: December 21, 1995.

FOR FURTHER INFORMATION CONTACT: Jack

Hartsoch, Office of Service Center

Operations, Immigration and
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations 66063

Naturalization Service, 425 I Street NW.,

Room 3040, Washington, DC 20536,

telephone (202) 514–3156.

SUPPLEMENTARY INFORMATION: On

November 29, 1990, the Immigration

Act of 1990, Pub. L. 101–649 (IMMACT

90), was enacted. Section 301 of

IMMACT 90 provides for relief from

deportation, and the granting of

employment authorization, to an

eligible immigrant who is the spouse or

unmarried child of a legalized alien

granted temporary or permanent

resident status pursuant to section 210

or 245A of the Immigration and

Nationality Act (the Act), or permanent

resident status under section 202 of the

Immigration Reform and Control Act of

1986 (Cuban/Haitian Adjustment). This

new program supersedes the

administrative Family Fairness policy

which began in November 1987. That

policy allowed district directors to

exercise the Attorney General’s

authority to defer deportation

proceedings of certain family members

of legalized aliens where compelling or

humanitarian factors existed. On August

31, 1991, the Immigration and

Naturalization Service (Service)

published in the Federal Register at 56

FR 42948 a proposed rule to implement

the provisions of section 301 of

IMMACT 90, as it relates to the Family

Unity Program. Subsequently, on

February 25, 1992, the Service

published in the Federal Register an

interim rule at 57 FR 6457–6472 with

request for comments. The interim rule

as published on February 25, 1992 is

adopted as final with amendments to 8

CFR parts 242 and 274a only. This final

rule reflects the amendment to section

206 made by the Immigration and

Nationality Technical Corrections Act of

1994, Public Law 103–416, § 206, 108

Stat. 4305, 4311–12 (1994). This rule

also provides status under § 242.5 for

children born to mothers granted status

under the Family Unity Program who

are authorized to depart and reenter the

United States.

Comments

The discussion that follows

summarizes the public comments

submitted in response to the interim

rule and explains the revisions adopted

in the final rule.

Residency Since May 5, 1988

The interim rule provided that a

qualifying family member would be

eligible for Family Unity Program

benefits if he or she had been in the

United States on May 5, 1988, and had

resided in the United States since that

date. Several commenters asserted that

no basis existed for the continuous

residency requirement. They did not

believe that this requirement had any

statutory basis and that it was irrelevant

whether an alien actually continued to

remain in the United States after May 5,

1988.

Section 301(f) of IMMACT 90 states as

follows:

Nothing in this section shall be construed

as authorizing an alien to apply for

admission to, or to be admitted to, the United

States in order to obtain benefits under this

section.

The statute now requires an applicant

to have entered the United States before

May 5, 1988, in the case of a

relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90,

or as of December 1, 1988, in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A), and

also prohibits the admission of an alien

for the purposes of obtaining Family

Unity Program benefits. The Service

interprets these two provisions as

requiring an applicant for Family Unity

Program benefits to have continuously

resided in the United States since May

5, 1988, in the case of a relationship to

a legalized alien described in subsection

(b)(2)(B) or (b)(2)(C) of section 301 of

IMMACT 90, or as of December 1, 1988,

in the case of a relationship to a

legalized alien described in subsection

(b)(2)(A). Further, the purpose of the

Family Unity Program is to prevent the

separation of families, and to provide a

means by which qualifying family

members already in the United States in

illegal status can eventually apply for

permanent resident status. The

underlying administrative Family

Fairness policy supports this premise.

The Service created the Family Fairness

policy as a means of precluding the

separation of family members by

deferring their deportation. The purpose

of the policy was to allow family

members to reside together in the

United States until they could acquire

legal status. Whether relating to the

Family Fairness policy or the Family

Unity Program, once a family member

no longer resides with the family, the

reason for which the status was granted

no longer exists.

Therefore, the Service will retain the

continuous residency requirement. In

order to determine if the applicant has

maintained a continuous residence in

the United States since May 5, 1988, in

the case of a relationship to a legalized

alien described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90,

or as of December 1, 1988, in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A), the

Service will consider the factors set

forth in Matter of Huang, 19 I&N 749,

753 (BIA 1988). In Huang, the Board of

Immigration Appeals enumerated

several factors which should be

considered in determining whether an

alien is returning from a temporary visit

abroad, thereby retaining his continuous

residency in the United States. These

factors include the duration of the

alien’s absence from the United States;

the location of the alien’s family ties,

the alien’s property holdings, and job;

and the intention of the alien with

respect to both the location of his actual

home and the anticipated length of his

excursion. Matter of Quijencio, 15 I&N

95, 97 (BIA 1974); Matter of Castro, 14

I&N Dec. 492 (BIA 1973); Matter of

Montero, 14 I&N 399, 400 (BIA 1973).

The Service will not interpret

‘‘continuous residence’’ as requiring

‘‘continuous physical presence.’’ A

qualifying family member who meets

the requirements of the Family Unity

Program will be granted a 2-year period

of voluntary departure. Voluntary

departure is a form of relief from

deportation and is available only to

persons already in the United States.

Legalized Aliens/Applications After

May 5, 1988

The interim rule provides that an

alien who filed a legalization

application on or before May 5, 1988,

will be treated as having been a

legalized alien as of May 5, 1988, for

purposes of the Family Unity Program.

Section 301(a) of IMMACT 90 states

as follows:

The Attorney General shall provide that in

the case of an alien who is [a qualified

immigrant and the spouse or unmarried child

of a legalized alien] as of May 5, 1988 * * *.

[Emphasis added]

Several commenters believe that the

statute was never intended to exclude

family members of legalized aliens who

filed after May 5, 1988, from the Family

Unity Program. They note that the filing

deadline for the Special Agricultural

Worker Program did not occur until

November 30, 1988. They believe that

an alien who filed a timely application

after May 5, 1988, but before November

30, 1988, should also be treated as a

legalized alien for purposes of the

Family Unity Program.

Congress has acted to resolve this

issue. Section 206(a) of the Immigration

and Nationality Technical Corrections

Act of 1994, Pub. L. 103–416, 108 Stat.

at 4311, amends section 301 of

IMMACT 90 to distinguish the

legalization program under section

245A of the Act and the Cuban-Haitian

adjustment provision in section 202 of
66064 Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations

IRCA from the SAW program under

section 210 of the Act. The Family

Unity Program eligibility date for

relatives of aliens legalized under the

SAW program is now December 1, 1988,

to correspond to the filing deadline for

that program. This amendment is

reflected in this final rule.

Children Born After May 5, 1988

The Service recognizes that the

situation may arise where a child may

be born abroad to an alien granted

voluntary departure status and advance

authorization to travel under the Family

Unity Program. Although there is no

provision in the statute to provide status

to the child, it is also true that the intent

of the statute was to enable specific

family members to reside together in the

United States.

Therefore, although the child cannot

qualify for benefits under the Family

Unity Program, the Service will provide

for the granting of voluntary departure

under 8 CFR 242.5, to a child of a

legalized alien residing in the United

States, who was born during an

authorized absence of the mother who is

currently either a legalized alien or a

beneficiary of the Family Unity

Program. This provision will also

include children born to aliens residing

in the United States, who were denied

status in the Family Unity Program and

granted voluntary departure status

under 8 CFR 242.5, where the other

parent is a legalized alien residing in the

United States.

Waivers

Several commenters sought

clarification regarding the availability of

existing waivers of deportability for

applicants for the Family Unity

Program. The interim regulation reflects

the statute in making aliens who are

deportable under certain grounds

ineligible for the Family Unity Program

benefits. However, an alien who has

been granted any available waiver is not

deportable and is not ineligible for the

Family Unity Program. The final rule is

modified to clarify that existing waivers

are applicable to applicants for the

Family Unity Program.

Response to Notice of Intent To Deny

One commenter suggested that the

Service should allow an applicant for

Family Unity Program benefits to

submit a good faith request for an

extension of time to submit a response

to a notice of intent to deny.

An applicant may request more time

to respond to a notice to deny. However,

the Service’s decision whether or not to

grant the request is discretionary. To

ensure consistency with application

procedures in other Service programs,

the provisions in this rule are consistent

with the general requirements and

procedures for applications and

petitions in 8 CFR part 103.

Denied Cases

The Service initially proposed an

administrative appeal procedure.

However, upon further review, this

procedure was eliminated in the interim

rule. One commenter believed that the

Service should not have eliminated the

administrative appeal process.

The Service set forth its reasons for

eliminating the proposed administrative

appeal process in the Supplementary

Information to the interim rule

published at 57 FR 6459–6460. The

Service adheres to that reasoning and

will not adopt an administrative appeal

procedure.

Issuance of Orders To Show Cause

(OSC)

A commenter was concerned that the

Service would issue an OSC (Form I–

221) while a Family Unity Program

application is pending. The Service will

not issue an OSC during the pending

adjudication of an Application for

Voluntary Departure Under the Family

Unity Program (Form I–817), unless the

OSC is based on a paragraph in section

241(a) of the Act which would render

the applicant ineligible for the Family

Unity Program.

Several commenters believed that

having applicants placed in deportation

proceedings as a result of a failure to

meet basic eligibility requirements, such

as residence by the required date, is a

severely disproportionate consequence

and a waste of Service resources, as the

denied applicants are likely to be

eligible for a second preference visa

petition and will eventually be allowed

to immigrate to the United States. The

commenters recommended that the

Service continue the policy under the

administrative Family Fairness policy of

not issuing OSCs in denied cases,

except in egregious cases such as a

serious criminal conviction.

However, as was discussed in the

Supplementary Information to the

interim rule, the Service must fulfill its

enforcement responsibility under the

Act. Therefore, this provision will

remain as it is in the interim rule.

Several commenters proposed that the

issuance of an OSC be delayed for 90

days after a second denial. They pointed

out that the only way an alien may

appeal a denial of Family Unity Program

benefits would be to file a complaint

against the Service in district court

alleging abuse of discretion. Further, the

commenters allege that the Service is

making it difficult for the alien to bring

these charges when it will only delay

issuance of the OSC for the first denial.

The commenters conclude that, in order

to balance the removal of the proposed

administrative appeals process, the

Service should allow applicants more

time after a second denial to seek

judicial review.

The Service believes that granting a

90-day grace period after every denial

before issuing an OSC might simply

encourage a person to file repeated

applications with the sole intent to

protract the adjudication process and

delay the issuance of an OSC. The

Service believes that ample safeguards

exist in the current procedure to enable

an applicant to perfect an application

and/or appeal a denial of benefits.

Denied applicants will have at least 90

days from the first denial to refile a

second application before the Service

will issue an OSC. If the application is

denied again, the applicant may still

seek judicial review before the district

court. Therefore, the final rule will not

be amended to allow for a delayed

issuance of an OSC after a second

denial.

Release From Detention/Administrative

Closure/Automatic Stay of Deportation

Several commenters suggested that

the regulations provide that a

demonstration of prima facie eligibility

for Family Unity Program benefits

should result in:

(1) The alien’s release from detention

on his or her own recognizance;

(2) Administrative closure of the

deportation proceedings, provided a

final administrative order of deportation

has not been issued; and

(3) An automatic stay of deportation

for a person with a final deportation

order.

These commenters asserted that this

would promote an efficient use of the

budgets of the Service and the Executive

Office for Immigration Review (EOIR) to

be faithful to Congress’ intent and

would promote uniformity in national

enforcement practice.

The Service may currently consider

the requests of release from detention

and stays of deportation on a case-bycase basis for Family Unity Program

applicants under sections 242 and 243

of the Act. The Service is without

authority to consider a request for

administrative closure of a deportation

proceeding.

Concurrent Jurisdiction of EOIR

Several commenters believe it would

be helpful to have a provision stating

that EOIR has concurrent jurisdiction

with the Service in cases where an
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations 66065

applicant has been denied Family Unity

Program benefits and is in deportation

proceedings. The commenters suggest

that the reference to judicial review in

the interim rule includes the possibility

of seeking review before an immigration

judge.

The statute does not provide for

administrative review of the Service’s

denial of Family Unity Program

benefits. If an alien’s application for

Family Unity Program benefits is

denied, he or she may still request relief

from deportation in the form of

voluntary departure in a deportation

hearing before an immigration judge.

Such a request would be made pursuant

to section 244 of the Act and would be

a separate determination from that made

by the Service pursuant to section 301

of the Immigration Act of 1990. An

immigration judge’s denial of voluntary

departure in deportation proceedings

could then be appealed to the Board of

Immigration Appeals and the Federal

circuit court of appeals.

Employment Authorization

Several commenters proposed that the

Service apply the same practice to the

Family Unity Program as was applied to

the Legalization Program and the

administrative Family Fairness policy

regarding employment authorization, for

example, granting interim employment

authorization for the time period

between the granting of the application

and the issuance of the employment

authorization document (EAD) at a local

Service office. Several commenters

suggested that such interim work

authorization should be stamped

directly onto the receipt notice, with the

period of validity to coincide with the

EAD appointment date plus 90 days.

The Service’s position regarding the

issue of providing interim work

authorization to Family Unity Program

applicants remains unchanged. The

Service has determined that a uniform

procedure for issuance of EADs is

necessary. Further, interim work

authorization is less secure and presents

enforcement problems. For the above

reasons and those set forth in the

interim rule, the Service will not

authorize interim employment for the

period between the granting of an

application for Family Unity Program

benefits and the issuance of an EAD.

Instead, the applicant may apply on

Form I–765 for issuance of an EAD,

concurrently with Form I–817. To file

Form I–765 at a Service Center, the

applicant must include two (2) ADITstyle photographs.

Identify Document for Employment

Authorization

The interim rule, at 8 CFR 242.6(e)(5),

contained the language, ‘‘issued by

legitimate agency of the United States or

a foreign government,’’ when referring

to an identity document the alien must

present at the time of filing for an

application for an EAD. Some

commenters expressed concern that the

language could be construed too

narrowly to preclude State or local

government-issued identification

documents (whether domestic or

foreign), and recommended that the

final language of the rule clarify that

identification documents will be

accepted if they have been issued by

smaller scale government sources,

provided they are legitimate.

The intent of this requirement is to

ensure that a person appearing at the

local district office to obtain an EAD

establish that he or she is the person

granted Family Unity Program benefits

before being given the EAD. The final

rule clarifies this point.

Reference on Forms I–688B and I–551

One commenter requested that the

Employment Authorization Card, Form

I–688B, and the Alien Registration

Receipt Card, Form I–551, include a

reference to section 301 of IMMACT 90

to assist in identifying participants in

this program.

The Form I–688B does have a

reference to the Family Unity Program.

Section 274a.12(a)(13) is used

exclusively for the Family Unity

Program. The Form I–551 reflects the

section of law under which the alien

immigrated but does not directly

indicate the alien’s previous

participation in the Family Unity

Program.

Continuing Relationship Requirement

One commenter requested a

clarification regarding the continuing

relationship requirement, specifically

the definitions of ‘‘child’’ and ‘‘spouse.’’

The definition of ‘‘child’’ is the same

as is defined in section 101(b)(1) of the

Act, with the exception that the alien

will not lose eligibility for the Family

Unity Program by virtue of having

attained the age of 21 after May 5, 1988,

in the case of a relationship to a

legalized alien described in subsection

(b)(2)(B) or (b)(2)(C) of section 301

IMMACT 90, or as of December 1, 1988,

in the case of a relationship to a

legalized alien described in subsection

(b)(2)(A). The definition of ‘‘spouse’’

includes the term as described in

section 101(a)(35) of the Act. The term

‘‘spouse’’ is also described in decisions

relating to the petitioning process for

sections 201(b) and 203(a)(2) of the Act.

There is no special definition of spouse

associated with this rule.

In the interim rule, at § 242.6(c)(1)(ii),

an eligible immigrant is required to also

be eligible for family-sponsored second

preference immigrant status under

section 203(a)(2) of the Act based on the

same relationship. One commenter

believed that the ‘‘based on the same

relationship’’ phrase should not be

included in the promulgation of final

regulations and that marital status on

May 5, 1988, and not any time

thereafter, be the relevant determination

of eligibility. The commenter concluded

that the disqualification is inconsistent

with the purposes of the Family Unity

Program.

Pursuant to section 301 paragraphs (a)

and (b)(1) of the Immigration Act of

1990, the required relationship to a

legalized alien must have existed on

May 5, 1988, in the case of a

relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 IMMACT 90, or

as of December 1, 1988, in the case of

a relationship to a legalized alien

described in subsection (b)(2)(A). The

issue is whether that relationship must

continue in order for eligibility to

continue, or whether the alien granted

benefits under the Family Unity

Program should be allowed to retain

those benefits even if the required

relationship changes.

The purpose of the Family Unity

Program is to provide a transition for

specific family members of legalized

aliens to family-sponsored second

preference immigrant status. If benefits

under the Family Unity Program were

retained even after a required

relationship ended by marriage, divorce,

or death, and the person became

ineligible for family-sponsored second

preference classification, the alien could

potentially remain in the Family Unity

Program without a means to become a

permanent resident. This would go far

beyond Congress’ intent for the program

and would be inconsistent with section

205 of the Act.

In essence, this regulation applies the

same rules to the Family Unity Program

which are applicable to persons with

approved family-sponsored immigrant

petitions in similar circumstances. If a

marriage to a petitioner ends, or the

unmarried son or daughter of a lawful

permanent resident petitioner marries,

approval of an immigrant petition based

upon that relationship is automatically

revoked, and that petition may no

longer be used as a basis for

immigration.
66066 Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations

Therefore, if the legalized alien’s

child marries, or if the legalized alien’s

marriage to the spouse ends through

divorce or death, neither the child nor

the spouse can retain benefits under the

Family Unity Program because of the

termination of the relationship by which

he or she qualified.

Petition/Extension Application

In order to obtain an extension of

voluntary departure, section 242.6(e)(7)

of the interim rule requires that a

petition for family-sponsored immigrant

status be filed on behalf of the applicant

during the initial period of voluntary

departure. Several commenters asserted

that this requirement is unnecessary.

The Service recognizes that the statute

does not specifically require that an

immigrant petition be filed in order to

obtain an extension of voluntary

departure; however, since the intent of

the program is to provide a bridge to

permanent residence, it is reasonable to

require the family member to at least file

the second-preference petition. Further,

this regulation will assist the Service in

moving toward closure of the need for

the Family Unity Program, and provide

lawful permanent resident status for the

participants of the Family Unity

Program. The requirement continued

from the interim rule is being modified

so as to relate only to those applicants

whose petitioning family member is a

lawful permanent resident and thereby

eligible to file the petition.

Extension/Demonstration of Continued

Eligibility

Several other commenters suggested

that the rule be modified to require a

person seeking Family Unity Program

benefits to demonstrate continued

eligibility only from the date of

execution of the prior Family Unity

Program application. The commenters

conclude that this would streamline the

extension process and save time and

resources for both the Service and the

applicants. Several commenters also

suggested that such simplification

should result in a reduced fee.

The final rule will be amended to

reflect that the applicant for an

extension will not be required to submit

evidence already submitted. However,

the applicant will be required to submit

evidence of continuing eligibility since

the first application for the Family

Unity Program was submitted. The

applicant will also be required to notify

the Service of any changes relating to

the first application.

Two commenters suggested that an

applicant for voluntary departure under

the Family Unity Program only be

required to submit a simple half-page

extension form or a Form I–817 by itself,

along with a reduced fee. Since

activities such as mail distribution, fee

receipting, data entry, records

verification, adjudication, and

notification are associated with the

processing of any form, the fee will

remain the same.

The Service is committed to charging

a fee that accurately reflects costs. The

Service will continue to use the form

created for this program, Form I–817,

Application for Voluntary Departure

Under the Family Unity Program. The

fee is consistent with 31 U.S.C. 9701

and the guidelines of the Office of

Management and Budget in OMB

Circular A–25, for an application for an

initial grant of family unity benefits and

for an application to extend family unity

benefits.

Condition/Status

In the interim rule, an alien who is

granted advance authorization to travel

outside the United States and who

returns to the United States in

accordance with such authorization,

and who is found not to be excludable

under section 301(a)(1) of IMMACT 90,

shall be inspected and admitted in the

same immigration condition the alien

had at the time of departure for the

remainder of the 2-year voluntary

departure previously authorized under

the Family Unity Program. One

commenter was troubled about the use

of the term ‘‘condition’’ instead of

‘‘status’’ for persons who depart and

return on advance parole.

To avoid an appearance that the

Service is not following the statute, the

word ‘‘status’’ will be used in the final

rule. If the person was in status at the

time of departure, the alien will be

placed in status upon return to the

United States. Conversely, if the person

was out of status upon departure, the

alien will be out of status upon his or

her return. Thus, existing sections of the

Act, such as section 245, are unaffected

by section 301 of IMMACT 90. If an

alien was ineligible to adjust status

upon departure, the alien will be

ineligible to adjust status upon return.

Visa Processing

One commenter requested

clarification regarding the processing of

immigrant petitions. Section 301 of

IMMACT 90 is not affected by

procedures relating to immigrant

petitions.

Confidentiality

One commenter suggested that the

Service adopt a relation providing for

confidentiality for the Family Unity

Program application, prohibiting the use

of information gathered for the Family

Unity program in establishing

deportability.

The Immigration Reform and Control

Act required confidentiality in clear

statutory language. No such provision

was made in the enabling statute for the

Family Unity Program.

Regulatory Flexibility Act

The Commissioner of the Immigration

and Naturalization Service, in

accordance with the Regulatory

Flexibility Act (5 U.S.C 605(b)), has

reviewed this regulation and, by

approving it, certifies that the rule will

not have significant economic impact on

a substantial number of small entities

because the rule relates solely to

individual immigration benefits.

Executive Order 12866

This rule is not considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, § 3(f),

Regulatory Planning and Review, and

the Office of Management and Budget

has waived its review process under

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

Executive Order 12612

The regulations adopted herein will

not have substantial direct effects on the

States, on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient Federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12606

The Commissioner of the Immigration

and Naturalization Service certifies that

she has assessed this rule in light of the

criteria in Executive Order 12606 and

has determined that this regulation will

enhance family well-being by providing

for family unity of eligible persons.

The information collection

requirements contained in this rule have

been cleared by the Office of

Management and Budget under the

provisions of the Paperwork Reduction

Act. Clearance numbers are contained in

8 CFR 299.5, Display of Control

Numbers.

List of Subjects

8 CFR Part 103

Administrative practice and

procedure, Authority delegations

[Government agencies], Freedom of

Information, Privacy, Reporting and
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations 66067

recordkeeping requirements, Surety

bonds.

8 CFR Part 242

Administrative practice and

procedure, Aliens, Crime.

8 CFR Part 264

Aliens, Reporting and recordkeeping

requirements.

8 CFR Part 274a

Administrative practice and

procedure, Aliens, Employment

penalties, Report and recordkeeping

requirements.

8 CFR Part 299

Immigration, Reporting and

recordkeeping requirements.

Accordingly, the interim rule

amending 8 CFR parts 103, 242, 264,

274a and 299 which was published at

57 FR 6457–6462 on February 25, 1992,

is adopted as a final rule with the

following changes:

PART 242—PROCEEDINGS TO

DETERMINE DEPORTABILITY OF

ALIENS IN THE UNITED STATES:

APPREHENSION, CUSTODY,

HEARING, AND APPEAL

1. The authority citation for part 242

continues to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1186a,

1251, 1252, 1252 note, 1252b, 1254, 1362; 8

CFR part 2.

2. In § 242.5, paragraph (a) is

amended by:

a. Removing ‘‘or’’ before paragraph

(a)(2)(viii);

b. Removing the ‘‘.’’ at the end of the

paragraph and replacing it with a

‘‘; or’’;

c. Adding paragraph (a)(2)(ix); and

d. Revising paragraph (a)(3) to read as

follows:

§ 242.5 Voluntary departure prior to

commencement of hearing.

* * * * *

(a) * * *

(2) * * *

(ix) who is the child of a legalized

alien currently residing in the United

States, born during an authorized

absence from the United States of the

mother who is:

(A) A legalized alien; or

(B) An alien currently residing in the

United States under voluntary departure

pursuant to the Family Unity Program.

(3) Periods of time/employment. (i)

Except for paragraphs (a)(2) (v) through

(ix) of this section, any grant of

voluntary departure shall contain a time

limitation of usually not more than 30

days, and an extension of the original

voluntary departure time shall not be

authorized except under meritorious

circumstances, as determined on a caseby-case basis. Upon failure to depart,

deportation proceedings will be

initiated. As an exception to the 30-day

voluntary departure period, an eligible

alien under:

(A) Paragraph (a)(2)(v) of this section

may be granted voluntary departure in

increments of 1 year conditioned upon

the F–1 or J–1 alien maintaining a full

course of study at an approved

institution of learning, or upon abiding

by the terms and conditions of the

exchange program within the

limitations imposed by 22 CFR 514.23;

or

(B) Paragraphs (a)(2)(vi) (A), (B), and

(C) of this section may be granted

voluntary departure until the American

Consul issues an immigrant visa and, at

the discretion of the district director,

issuance may be in increments of 30

days, conditioned upon continuing

availability of an immigrant visa as

shown in the latest Visa Office Bulletin

and upon the alien’s diligent pursuit of

efforts to obtain the visa; or

(C) Paragraphs (a)(2)(vi) (D) and (E) of

this section may be granted voluntary

departure, conditioned upon the

continued validity of the approved

third- or sixth-preference petition, as

appropriate, and the alien’s retention of

the status established in the petition for

an indefinite period until an immigrant

visa is available; or

(D) Paragraphs (a)(2) (vii) and (viii) of

this section may be granted voluntary

departure in increments of time, not to

exceed 1 year, as determined by the

district director to be appropriate in the

case; or

(E) Paragraph (a)(2)(ix) of this section

may be granted voluntary departure in

increments of time, not to exceed 2

years.

(ii) An alien eligible for voluntary

departure in paragraphs (a)(2) (v)

through (viii) of this section may apply

for employment authorization under the

appropriate citation in § 274a.12 of this

chapter.

* * * * *

3. Section 242.6 is revised to read as

follows:

§ 242.6 Family Unity Program.

(a) General. Except as otherwise

specifically provided in paragraph (b) of

this section, the definitions contained in

Title 8 of the Code of Federal

Regulations shall apply to the

administration of this section.

(b) Definitions. As used in this

section:

Eligible immigrant means a qualified

immigrant who is the spouse or

unmarried child of a legalized alien.

Legalized alien means an alien who:

(i) Is a temporary or permanent

resident under section 210 or 245A of

the Act; or

(ii) Is a permanent resident under

section 202 of the Immigration Reform

and Control Act of 1986 (Cuban/Haitian

Adjustment).

(c) Eligibility—(1) General. An alien

who is not a lawful permanent resident

is eligible to apply for benefits under the

Family Unity Program if he or she

establishes:

(i) That he or she entered the United

States before May 5, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90)),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), and has

been continuously residing in the

United States since that date; and

(ii) That on May 5, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), he or she

was the spouse of unmarried child of a

legalized alien, and that he or she has

been eligible continuously since that

time for family-sponsored second

preference immigrant status under

section 203(a)(2) of the Act based on the

same relationship.

(2) Legalization application pending

as of May 5, 1988 or December 1, 1988.

An alien whose legalization application

was filed on or before May 5, 1988 (in

the case of a relationship to a legalized

alien described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), but not

approved until after that date will be

treated as having been a legalized alien

as of May 5, 1988 (in the case of a

relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), for

purposes of the Family Unity Program.

(d) Ineligible aliens. The following

categories of aliens are ineligible for

benefits under the Family Unity

Program:

(1) An alien who is deportable under

any paragraph in section 241(a) of the

Act, except paragraphs (1)(A), (1)(B),

(1)(C), and (3)(A); provided that an alien
66068 Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations

who is deportable under paragraph

(1)(A) of such Act is also ineligible for

benefits under the Family Unity

Program if deportability is based upon

an exclusion ground described in

section 212(a) (2) or (3) of the Act;

(2) An alien who has been convicted

of a felony or three or more

misdemeanors in the United States; or

(3) An alien described in section

243(h)(2) of the Act.

(e) Filing—(1) General. An application

for voluntary departure under the

Family Unity Program must be filed at

the Service Center having jurisdiction

over the alien’s place of residence. A

Form I–817 (Application for Voluntary

Departure under the Family Unity

Program) 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.

(2) Decision. The Service Center

director has sole jurisdiction to

adjudicate an application for benefits

under the Family Unity Program. 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.

(3) Referral of denied cases for

consideration of issuance of Order to

Show Cause. 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 an

Order to Show Cause (OSC). After an

initial denial, an applicant’s case will

not be referred for issuance of an OSC

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

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

Service reserves the right to issue an

Order to Show Cause at any time after

the initial denial.

(4) Voluntary departure under § 242.5

and eligibility for employment under

§ 274a.12(c)(12). Children of legalized

aliens residing in the United States, who

were born during an authorized absence

from the United States of mothers who

are currently residing in the United

States under voluntary departure

pursuant to the Family Unity Program

may be granted voluntary departure

under § 242.5(a)(2)(ix) for a period of 2

years.

(5) Duration of voluntary departure

under § 242.6. An alien whose

application for benefits under the

Family Unity Program is approved will

receive a 2-year period of voluntary

departure. The 2-year period will begin

on the date the Services approves the

application.

(6) Employment authorization. An

alien granted benefits under the Family

Unity Program is authorized to be

employed in the United States and may

apply for an employment authorization

document on Form I–765 (Application

for Employment Authorization). The

application may be filed concurrently

with Form I–817. The application must

be accompanied by the correct fee

required by § 103.7(b)(1) of this chapter.

The validity period of the employment

authorization will coincide with the

period of voluntary departure.

(7) Travel outside the United States.

An alien granted Family Unity Program

benefits who intends to travel outside

the United States temporarily must

apply for advance authorization using

Form I–131 (Application for Travel

Document). The authority to grant an

application for advance authorization

for an alien granted Family Unity

Program benefits rests solely with the

district director. 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 excludable

under section 212(a) (2) or (3) of the Act,

shall be inspected and admitted in the

same immigration status the alien had at

the time of departure, and provided the

remainder of the 2-year voluntary

departure previously granted under the

Family Unity Program.

(8) Extension of voluntary departure.

An application for an extension of

voluntary departure under the Family

Unity Program must be filed by the alien

on Form I–817 along with the correct fee

required in § 103.7(b)(1) of this chapter

and the required supporting

documentation. The submission of a

copy of the previous approval notice

will assist in shortening the processing

time. An extension may be granted if the

alien continues to be eligible for benefits

under the Family Unity Program.

However, an extension may not be

approved if the legalized alien is a

lawful permanent resident, and a

petition for family-sponsored immigrant

status has not been filed in behalf of the

applicant. In such case the Service will

notify the alien of the reason for the

denial and afford him or her the

opportunity to file another Form I–817

once the petition, Form I–130, has been

filed in behalf of him or her. No

charging document will be issued for a

period of 90 days.

(9) Supporting documentation for

extension application. Supporting

documentation need not include

documentation provided with the

previous application(s). The extension

application need only include changes

to previous applications and evidence of

continuing eligibility since the date of

the prior approval.

(f) Eligibility for Federal financial

assistance programs. An alien granted

Family Unity Program benefits based on

a relationship to a legalized alien as

defined in paragraph (b) of this section

is ineligible for public welfare

assistance in the same manner and for

the same period as the legalized alien is

ineligible for such assistance under

sections 245A(h) or 210(f) of the Act,

respectively.

(g) Termination of Family Unity

Program benefits.

(1) Grounds for termination. The

Service may terminate benefits under

the Family Unity Program 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:

(i) A determination is made that

Family Unity Program benefits were

acquired as the result of fraud or willful

misrepresentation of a material fact;

(ii) The beneficiary commits an act or

acts which render him or her

inadmissible as an immigrant or

ineligible for benefits under the Family

Unity Program;

(iii) The legalized alien upon whose

status benefits under the Family Unity

Program were based loses his or her

legalized status;

(iv) The beneficiary is the subject of

a final order of exclusion or deportation

issued subsequent to the grant of

benefits on any ground of deportability

or excludability that would have

rendered the alien ineligible for benefits

under § 242.6(d)(1) of this chapter,

regardless of whether the facts giving

rise to such ground occurred before or

after the benefits were granted; or

(v) A qualifying relationship to a

legalized alien no longer exists.

(2) 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

the chapter. Nothing in this section
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Rules and Regulations 66069

shall preclude the Service from

commencing exclusion or deportation

proceedings prior to termination of

Family Unity Program benefits.

(3) Effect of termination. Termination

of benefits under the Family Unity

Program, other than as a result of a final

order of deportation or exclusion, shall

render the alien amendable to exclusion

or deportation proceedings under

sections 236 or 242 of the Act, as

appropriate.

PART 274a—CONTROL OF

EMPLOYMENT OF ALIENS

4. The authority citation for part 274a

continues to read as follows:

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

CFR part 2.

5. Section 274a.12 is amended by

revising paragraph (c)(12) to read as

follows:

§ 274a.12 Classes of aliens authorized to

accept employment.

* * * * *

(c) * * *

(12) A deportable alien granted

voluntary departure, either prior to or

after a hearing, for reasons set forth in

§ 242.5(a)(2) (v), (vi), (viii), or (ix) of this

chapter, may be granted permission to

be employed for that period of time

prior to the date set for voluntary

departure including any extension

granted beyond such date, if the alien

establishes an economic need to work.

Factors which may be considered in

adjudicating the application for

employment authorization of such an

alien granted voluntary departure

include, but are not limited to, the

following:

(i) The length of voluntary departure

granted;

(ii) The existence of a dependent

spouse and/or children in the United

States who rely on the alien for support;

(iii) Whether there is a reasonable

chance that legal status may ensure in

the near future; and

(iv) Whether there is a reasonable

basis for consideration of discretionary

relief.

* * * * *

Dated: December 13, 1995.

Doris Meissner,

Commissioner.

[FR Doc. 95–30701 Filed 12–20–95; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 95–AWP–30]

Establishment of Class D Airspace and

Amendment of Class E Airspace; Elko,

NV

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final rule.

SUMMARY: This action establishes Class

D and amends Class E airspace areas at

Elko Municipal-J.C. Harris Field, Elko,

NV. The development of a Global

Positioning System (GPS) Standard

Instrument Approach Procedure (SIAP)

to Runway (RWY) 5 and the

establishment of a Airport Traffic

Control Tower has made this action

necessary. An intended effect of this

action is to provide adequate controlled

airspace for Instrument Flight Rules

(IFR) operations at Elko Municipal-J.C.

Harris Field, Elko, NV.

EFFECTIVE DATE: 0901 UTC February 29,

1996.

FOR FURTHER INFORMATION CONTACT:

Scott Speer, Airspace Specialist, System

Management Branch, AWP–530, Air

Traffic Division, Western-Pacific

Region, Federal Aviation

Administration, 15000 Aviation

Boulevard, Lawndale, California 90261,

telephone (310) 725–6533.

SUPPLEMENTARY INFORMATION:

History

On October 30, 1995, the FAA

proposed to amend part 71 of the

Federal Aviation Regulations (14 CFR

part 71) by establishing Class D and

amending Class E airspace at Elko, NV

(60 FR 55222).

Interested parties were invited to

participate in this rulemaking

proceeding by submitting written

comments on the proposal to the FAA.

No comments to the proposal were

received. Class D and Class E airspace

designations are published in

paragraphs 5000, 6002, and 6005 of

FAA Order 7900.9C dated August 17,

1995, and effective September 16, 1995,

which is incorporated by reference in 14

CFR 71.1. The Class D and E airspace

designations listed in this document

will be published subsequently in this

Order.

The Rule

This amendment to part 71 of the

Federal Aviation Regulations (14 CFR

part 71) establishes the Class D and

amends the Class E airspace areas at

Elko, NV. An intended effect of this

action is to provide adequate controlled

airspace for aircraft executing the GPS

RWY 5 SIAP at Elko Municipal-J.C.

Harris Field, Elko, NV.

The FAA has determined that this

regulation only involves an established

body of technical regulations for which

frequent and routine amendments are

necessary to keep them operationally

current. Therefore, this regulation—(1)

is not a ‘‘significant regulatory action’’

under Executive Order 12866; (2) is not

a ‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 10034; February 26, 1979); and (3)

does not warrant preparation of a

Regulatory Evaluation as the anticipated

impact is so minimal. Since this is a

routine matter that will only affect air

traffic procedures and air navigation, it

is certified that this rule will not have

a significant economic impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the

Federal Aviation Administration

amends 14 CFR part 71 as follows:

PART 71—[AMENDED]

1. The authority citation for 14 CFR

part 71 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–

1963 Comp., p. 389; 14 CFR 11.69.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of the Federal Aviation

Administration Order 7400.9C, Airspace

Designations and Reporting Points,

dated August 17, 1995, and effective

September 16, 1995, is amended as

follows:

Paragraph 5000 Class D Airspace.

* * * * *

AWP NV D Elko, NV [New]

Elko Municipal-J.C. Harris Field, NV

(lat. 40°49′31′′N, long 115°47′28′′W)

That airspace extending upward from the

surface to including 7,700 feet MSL within a

4.3-mile radius of Elko Municipal-J.C. Harris

Field and within 1.8 miles each side of the

248° bearing from the Elko Municipal-J.C.

Harris Field, extending from the 4.3-mile

radius to 6 miles southwest of the airport.

This Class D airspace area is effective during

the specific dates and times established in

advance by a Notice to Airmen. The effective