[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30188-30189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15169]



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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / 
Proposed Rules

[[Page 30188]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 1732-95]
RIN 1115-AE17


Conditions on Nonimmigrant Status: Disclosure of Information

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service (``the Service'') regulations by removing the current 
regulatory language conditioning an alien's nonimmigrant status on his 
or her providing full and truthful information requested by the 
Service, regardless of the requested information's materiality. This 
proposed regulation would clarify that a nonimmigrant's maintenance of 
status is conditioned on, among other things, the provision of all 
information deemed necessary to ensure that the alien has acquired, and 
is maintaining, lawful nonimmigrant status during the entire period of 
his or her stay, or that the alien is eligible to receive a benefit 
under the Immigration and Nationality Act (``the Act''). This rule 
addresses the concern expressed by the court in Romero v. I.N.S., 39 
F.3d 977 (9th Cir. 1994), that, under the current wording of the 
regulations, the Service may elicit information unrelated to that 
required to ensure the alien's continued eligibility for nonimmigrant 
status or benefits under the Act.

DATES: Written comment must be submitted on or before August 13, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536, Attention: Public Comment Clerk. To ensure proper handling, 
please reference INS Number 1732-95 on your correspondence.

FOR FURTHER INFORMATION CONTACT: Miriam Jawitz Hetfield, Senior 
Adjudications Officer, Nonimmigrant Branch, Immigration and 
Naturalization Service, Room 3214, 425 I Street, NW., Washington, DC 
20536, telephone: (202) 514-5014.

SUPPLEMENTARY INFORMATION: Section 214(a)(1) of the Act provides that 
the Attorney General may by regulation prescribe the length and the 
conditions of a nonimmigrant alien's stay, in order to ensure that the 
nonimmigrant will depart from the United States at the expiration of 
the period of admission or upon failure of the nonimmigrant to maintain 
nonimmigrant status. Under section 241(a)(1)(C)(i) of the Act, a 
nonimmigrant who fails to maintain nonimmigrant status, or to comply 
with the conditions of such status, is deportable.
    Under current 8 CFR 214.1(f), a condition of an alien's 
nonimmigrant status is that he or she provide full and truthful 
information requested by the Service, ``regardless of whether or not 
the information requested was material.'' The Service promulgated this 
regulation to ensure that it is furnished with the information 
necessary to perform its statutory function of regulating the admission 
and control of nonimmigrants, to ensure compliance with the Act, and to 
locate and deport those nonimmigrant aliens who have violated their 
status. 44 FR 65726-65727. It was the opinion of the Service, in 
promulgating this regulation, that, to meet this responsibility, it is 
necessary to have information which ``possibly may not be considered 
material in the strict legal connotation of the term.'' Id. at 44 FR 
65727. Despite such broad language, the current regulation was intended 
to require the provision of only information bearing a reasonable 
relationship to the Service's above-described responsibility in 
prescribing the conditions of a nonimmigrant's stay. Id.
    On November 3, 1994, the court in Romero v. I.N.S., 39 F.3d 977 
(9th Cir. 1994), invalidated the parenthetical phrase in current 8 CFR 
214.1(f), ``(regardless of whether or not the information requested was 
material).'' In Romero, the Service charged the plaintiff with 
violating section 241(a)(1)(C)(i) of the Act for failing to maintain 
nonimmigrant status, contending that she had not disclosed certain 
information requested by a Service officer. Specifically, in response 
to a question by a Service officer, the plaintiff stated that she had 
not informed another alien that someone could help that alien obtain an 
extension of nonimmigrant status for money. The Service officer sought 
this information in connection with an investigation of alleged 
corruption among customs officers. The immigration court found that, in 
making this statement, the plaintiff had provided a Service officer 
with false information in violation of 8 CFR 214.1(f), and therefore 
was deportable under section 241(a)(1)(C)(i) of the Act. In ordering 
that the case be remanded for withdrawal of the order of deportation, 
the Romero court found that the statement the plaintiff made to the 
Service officer was not material in any way to the alien's immigration 
status, but related only to a criminal investigation of other persons. 
The court held that, as currently worded, the disclosure requirement of 
8 CFR 214.1(f) is inconsistent with the purpose of the enabling 
statute, section 214(a)(1) of the Act, which is to ensure that the 
alien is eligible for nonimmigrant status or immigration benefits.
    This proposed regulatory change would clarify that a nonimmigrant's 
maintenance of status and/or continued receipt of immigration benefits 
is conditioned on the alien fully and truthfully disclosing all 
information he or she possesses, or reasonably should have knowledge 
of, which the Service deems material in order to ensure that the alien 
is eligible for nonimmigrant status and/or immigration benefits under 
the Act. This regulation does not give the Service the authority to 
require disclosure of information in the hope that it might uncover 
information to be used for another purpose, such as an investigation of 
another person or persons. For information to be deemed ``material'' 
for purposes of this regulation, there must exist a reasonable 
connection between the information sought and the determination of 
whether an alien is eligible under the Act for nonimmigrant status or 
immigration benefits. In this regard. ``material'' information includes 
that information which, if known to the Service, would be predictably 
capable of

[[Page 30189]]

affecting a decision regarding whether an alien has violated a 
condition of his or her nonimmigrant stay or eligibility for benefits. 
See Kungys v. United States, 485 U.S. 759, 771 (1988).

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Commissioner of the 
Immigration and Naturalization Service certifies that this rule will 
not, if promulgated, have a significant adverse economic impact on a 
substantial number of small entities. This rule merely clarifies that a 
nonimmigrant's status in this country is conditioned on, among other 
things, his or her providing full and truthful disclosure of all 
information deemed necessary to ensure that the alien has acquired, and 
is maintaining, lawful nonimmigrant status during the entire period of 
his or her stay, or to ensure that the alien is eligible to receive any 
other benefit under the Act. Any impact this proposed regulation will 
have on small business entities, therefore, will be negligible.

Executive Order 12866

    This proposed rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federal 
Assessment.

Paperwork Reduction Act

    This rule contains information collection requirements which have 
been approved by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act. The OMB control numbers for 
these collections are contained in 8 CFR 299.5, Display of control 
numbers.

List of Subjects in 8 CFR Part 214

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

    Accordingly, part 214 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2.

    2. In Sec. 214.1, paragraph (f) is revised to read as follows:


Sec. 214.1  Requirements for admission, extension, and maintenance of 
status.

* * * * *
    (f) Disclosure of information. (1) A condition of a nonimmigrant's 
admission and maintenance of status in the United States is that he or 
she fully and truthfully disclose all information deemed by the Service 
to be material in determining whether the nonimmigrant:
    (i) Is eligible for, and/or is maintaining the nonimmigrant status 
in which the alien was admitted or to which the alien has changed under 
section 248 of the Act, or
    (ii) Is eligible to receive any benefit under the Act.
    (2) Willful failure by a nonimmigrant to provide full and truthful 
disclosure of such material information when requested by a Service 
officer constitutes a failure to maintain nonimmigrant status under 
section 241(a)(1)(C)(i) of the Act.
* * * * *
    Dated: March 4, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-15169 Filed 6-13-96; 8:45 am]
BILLING CODE 4410-01-M