[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-392]


[[Page Unknown]]

[Federal Register: January 11, 1994]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 214, 223, 223a, 248, 264 and 292

[INS No. 1324-92]
RIN No. 1115-AC20

 

Changes in Processing Procedures for Certain Applications and 
Petitions for Immigration Benefits

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule streamlines evidence rules and the processes 
by which persons may apply for and receive certain immigration 
documents and benefits. The rule is necessary to improve service to the 
public and to streamline operations.

EFFECTIVE DATE: This rule is effective February 10, 1994.

FOR FURTHER INFORMATION CONTACT:Michael L. Aytes, Director, Service 
Center Operations, Immigration and Naturalization Service, 425 I 
Street, NW., room 4014, Washington, DC 20536, telephone (202) 514-3156.

SUPPLEMENTARY INFORMATION: The Immigration and Naturalization Service 
published a proposed rule on December 2, 1991 at 56 FR 61201 as part of 
a comprehensive initiative to simplify and streamline the filing and 
processing of applications and petitions for immigration benefits. This 
initiative has already led to a number of steps which have begun to 
significantly improve efficiency and the quality of service provided to 
the public.
    A number of comments were received about this proposal. Many were 
prepared by a working group of interested organizations. The following 
sections discuss the comments and explain the revisions adopted.

Representation by Another Person

    Several commenters opposed the proposed requirement that an 
applicant or petitioner sing Form G-28, Notice of Entry of Appearance 
as Attorney or Representative, to show that he or she authorized the 
representation. For example, one commenter argued that an attorney's 
indication that he or she represents someone should be accepted as 
``absolutely definitive evidence'' since submission by an attorney 
where not so authorized would be a violation of his or her ethical and 
legal obligations, and would subject him or her to disciplinary action 
and a malpractice suit.
    However, a number of other commenters within the industry supported 
the new requirement. Some pointed out that the form is not only used by 
attorneys. Others noted that requiring the signature can help combat 
the unauthorized practice of law. Still others felt that the signature 
would address potential Privacy Act concerns.
    For the reasons given by those supporting the new requirement, as 
well a those enumerated in the proposed rule, this proposal has been 
retained. An applicant or petitioner must sign the Form G-28 to 
definitively indicate to the Service that he or she has authorized the 
person to represent him or her in the proceeding. The person submitting 
the Form G-28 must be authorized under 8 CFR part 292 to represent the 
applicant or petitioner. Where a Form G-28 is submitted that is not 
properly signed, the application or petition will be processed as if a 
Form G-28 had not been submitted.

Notification Procedures

    Where an applicant or petitioner has an authorized representative, 
the Service now mails two copies of each written notice. One goes to 
the applicant or petitioner, and the other goes to the authorized 
representative. The proposed rule suggested sending only one notice in 
such a case, and sending it to the representative. This would have 
meant that the Service would communicate with the applicant or 
petitioner through his or her authorized representative if he or she 
had one.
    The commenters pointed to past problems in representatives 
receiving their copy, and argued that separate notices should be 
continued as a safeguard. After review, the Service will therefore 
continue to send separate notices to the applicant or petitioner and 
his or her authorized representative.
    Several commenters also asked that the Service begin sending copies 
of notices to anyone assisting an applicant or petitioner, and not 
simply to authorized representatives. However, while the Service cannot 
limit or control who can assist others in filling out and filing an 
application or petition, only a person who meets the criteria in 8 CFR 
parts 1 and 292 can act as the applicant or petitioner's authorized 
representative and submit a Form G-28. A person who does not meet these 
criteria cannot represent the applicant or petitioner, and cannot be 
notified of any action taken on the application or petition.
    Several commenters opposed the proposed modification of when the 
Service would send a notice by certified mail. After review, this 
proposal has been withdrawn.

Filing

    A number of commenters requested that additional filing 
instructions be included on forms to eliminate confusion about where to 
file. Last year the Service began to include such specific information 
on the new generation of application and petition forms. This process 
will continue as older versions of forms are replaced or eliminated.
    Several commenters asked that application and petition forms be 
published for public comment since the instructions have the effect of 
regulation. All form revisions are carefully reviewed to ensure they 
are consistent with regulations. In addition to informally circulating 
significant changes to forms for comment, the Service intends to begin 
to publish form revisions as required and as deemed necessary for 
effective communications. The Service is committed to revising forms on 
a more frequent basis to keep up with ever changing immigration laws 
and changes in procedures. The Service wants to assist people in 
learning about immigration benefits for which they may be eligible, and 
help them understand what is required to file a complete application. 
This will facilitate quicker processing and minimize the delays and 
additional processing costs associated with requests for more 
information or evidence.
    As suggested by many commenters, language has been added to clarify 
that a child can file an application or petition for himself or 
herself, in addition to allowing a parent or legal guardian to file. 
Other commenters suggested that anyone be allowed to file such a 
petition, pointing to 8 CFR 101.6(b)(1), which permits such a broad 
group of persons to file petitions for juveniles dependent on a 
juvenile court in the United States. However, except for these unique 
circumstances, there is no valid reason to allow a person who has no 
legal authority over a child to assume the right to act in the child's 
behalf before the Service. Therefore, this suggestion has not been 
adopted.
    The proposal to allow the filing of photocopies of documents with 
applications and petitions instead of originals was universally 
applauded as a significant step in streamlining filing procedures. 
However, one commenter asked whether each copy would need to be 
certified that it is exact and unaltered.
    Evidence submitted in the context of an application or petition is 
part of that application or petition. See 8 CFR 270.1. By signing the 
application or petition form, the person certifies under penalty of 
perjury that the application or petition, and all evidence submitted 
with it, is true and correct. The rule has been clarified to indicate 
that a separate certification for each copy is not necessary.
    Several commenters asked that the rule be revised so that in cases 
where an applicant or petitioner submits an original when he or she 
could have submitted a copy, the Service would be required to make the 
copy and return the original.
    The Service recognizes that people need to retain original 
documents for their records. This was one of the primary reasons why 
the Service made the decision to accept photocopies. However, the 
Service processes over 4 million applications and petitions each year. 
In cases where a person chooses to submit originals instead of copies, 
the Service is not in a position to make the copies for him or her so 
the originals can be returned.
    The proposed rule provided that where the Service determines a need 
to review the original of a document, the applicant or petitioner would 
have 30 days to submit the original document. Several commenters 
suggested that 30 days does not allow enough time, since people might 
not have the document and would have to get one from the issuing 
authority. They suggested a 60 or 90-day period instead.
    The idea of allowing copies was proposed so applicants and 
petitioners can file a copy and keep the original, not so they can file 
a copy because they don't have an original. By filing a copy as part of 
their application or petition, they are attesting that the copy is true 
and correct. This would be problematic if they do not have an original. 
However, to minimize confusion and to standardize the various response 
periods provided in this rule, the final rule provides 12 weeks, 
without extension, for submission of an original document. If an 
applicant or petitioner does not submit the requested original document 
within that 12-week period, the application or petition will be denied 
for failure to provide the original.
    Several commenters asked that the Service begin to accept copies 
and computer-generated versions of application and petition forms, and 
to allow filing by facsimile. The Service will accept photocopies and 
computer-generated versions that are identical to Service forms in all 
respects, including placement, perforations and fastener holes. We 
cannot accept facsimiles because they do not meet these requirements. 
It is essential that the forms not vary in any way from the original 
since the Service is introducing imaging systems and other systems to 
speed processing that depend on exact form specifications. The Service 
is also very interested in electronic filing as a way of speeding 
processing and reducing costs, and is researching various technologies 
that would allow such filing with fee transmittal.

Initial Evidence

    Almost every commenter discussed the initial evidence rules, which 
proposed that an application or petition filed without the evidence 
required by the instructions on the application or petition form would 
be denied, but without prejudice to the later filing of a complete 
application or petition. A number of commenters agreed that the 
proposal would reduce the percentage of cases in which the Service has 
to ask for more evidence during the adjudications process, and thus 
review twice, and that this would help speed overall processing times. 
Several commenters noted that the additional explanations on the new 
application and petition forms of what evidence is required will help 
people to file complete applications and petitions. Others supported 
threshold standards for filing. However, a number of commenters had 
serious reservations about the initial evidence requirements described 
in the proposed rule.
    Several commenters suggested that the Service should help 
applicants and petitioners correct cases that lack the required initial 
evidence rather than require them to start over and file again. Others 
suggested the proposed rule did not sufficiently recognize that some 
people may unintentionally fail to file the required initial evidence. 
A few suggested that while the Service should deny clearly deficient 
cases, it should not deny ``marginal'' cases, but should give those 
people a chance to correct their cases.
    One commenter suggested that the Service continue to add evidence 
explanations to its new forms, but only monitor the effect and not 
implement procedures to deny incomplete applications. Another 
commenter, who opposed the entire concept of threshold requirements, 
asserted that allowing the Service to deny an application or petition 
for lack of initial evidence would give it ``unbridled'' discretion.
    Initial evidence is the evidence necessary to establish a basis for 
filing and to allow the Service to process the average case through to 
completion the first time. As indicated by many commenters, it is in 
the best interest of applicants and petitioners, as well as in the 
interest of the Service, that an application or petition be complete 
when first filed so a decision can be entered quickly and correctly, 
without delays caused by having to go back and ask an applicant or 
petitioner for more evidence.
    The initial evidence explanations included in revised application 
and petition forms are designed to help people know what types of basic 
evidence they should always submit with their application or petition. 
The explanations also clarify statutory and regulatory eligibility 
criteria by translating them into more concrete terms. The question 
here is what the Service should do when someone files without the 
required threshold evidence.
    The most basic issues in processing an application or petition for 
an immigration benefit are determining eligibility for the benefit, and 
treating all applicants and petitioners fairly and equitably. Among 
other things, this means using processing systems that ensure that 
cases are not processed in a way that enables one applicant or 
petitioner to derive an unfair advantage over another applying for the 
same benefit. For example, this means ensuring that priority dates for 
immigration and case processing dates are accorded in ways that do not 
encourage a person to file an incomplete application as a means of 
stepping in line in front of someone else who waits to obtain all the 
necessary evidence before filing. It also means establishing processing 
parameters to minimize instances where the Service has to handle 
repeatedly an application because basic documents are missing. This 
increases average processing time, and raises costs which are 
transferred to all applicants through filing fees.
    However, the Service recognizes that these processes must operate 
in an environment in which a significant number of applicants and 
petitioners are unfamiliar with the English language and government 
requirements. The Service's goal is to recognize the needs of the 
population we serve while setting processing parameters that allow the 
agency to process applications quickly, correctly and fairly.
    In the past, most applications were submitted in person at a local 
Service office. This provided an opportunity to review the application, 
and not accept it at that time if it lacked necessary evidence. 
However, this has led to occasions where discrepancies in local 
acceptance standards have been alleged. In order to make filing easier 
as the volume of applications has grown, and to make processing more 
consistent, the Service has moved towards a mail-in process. Since 
advance review is not possible in such a situation, there must be clear 
guidelines for handling cases filed without necessary evidence.
    The Service has revised the initial evidence process as a result of 
the comments received. In general, the Service will not deny a case for 
lack of initial evidence. An application or petition will be reviewed 
after fee receipting. If required initial evidence is missing and there 
is no evidence of ineligibility in the record, the applicant or 
petitioner will be notified and given 12 weeks from the date of the 
notice, without extension, to submit the missing initial evidence. 
However, if the application is pre-screened by INS prior to its 
submission, such as in a situation where the person files the 
application in person, and the person insists on filing the application 
even though necessary initial evidence is missing, the case shall be 
denied for lack of required initial evidence.
    This rule does require that where the Service requests evidence 
after filing, it must be submitted in one response. In addition, as 
requested by a commenter, it clarifies that a case that is missing 
initial evidence will not result in the loss of its priority date until 
a final decision is made.
    This revised process encourages applicants and petitioners to 
obtain the necessary threshold evidence before filing so that their 
case can be processed in order and without delay. However, it also 
allows people who fail to file this threshold evidence a limited period 
to submit the missing evidence. A time limit of 12 weeks was set 
because while the Service wants to afford people an opportunity to 
correct a filing deficiency, we must balance that with ensuring that 
the process does not encourage people to file before they have a 
complete application or petition.
    If an applicant or petitioner does not submit the missing initial 
evidence within the time limit, the application or petition will be 
automatically denied for lack of initial evidence. While the rule 
clarifies that an applicant or petitioner may immediately refile after 
such a denial, it should be noted that if the subsequent case is filed 
without the required initial evidence, it may be denied without a grace 
period.
    While this process will normally be sufficient, there are 
situations where a person's immediate status in the United States 
hinges on the application or petition, or he or she becomes entitled to 
a benefit because the case is pending. For example, a person who files 
for adjustment of status would in certain instances be able to obtain 
an advance parole to travel based on the pending application. An 
applicant for an employment authorization document may be entitled to 
interim employment authorization because the Service cannot make a 
decision within a certain period. Applying the general process outlined 
above in such situations would allow a person to obtain interim 
benefits based on an incomplete application or petition while the 
Service waits for him or her to submit the necessary initial evidence, 
or because he or she asks that an interview be rescheduled, delaying 
processing.
    The filing of an application or petition without the required 
initial evidence, or asking that a case be rescheduled, effectively 
hampers our ability to make a definitive determination of eligibility. 
An applicant or petitioner may not be allowed to either inadvertently 
or intentionally hamper the Service's ability to render a decision and 
as a result gain a potential or actual benefit. Therefore, the Service 
considers processing time for any application or petition to refer to 
time unhampered by the applicant or petitioner's action or lack of 
required action. This means there is nothing under the applicant or 
petitioner's control that hampers our ability to make a final decision.
    Under the process outlined earlier, filing an application or 
petition without required initial evidence hampers the Service's 
ability to render a final decision. Similarly, requesting a scheduled 
interview be rescheduled will delay full adjudication of a request for 
benefits, and will require the Service to duplicate several processing 
and review steps. The process must balance the need to ensure that 
persons do not receive undue interim benefits with the need to ensure 
that any applicable statutory or regulatory processing timeframes are 
adhered to once we are no longer hampered from making a decision.
    Accordingly, in such circumstances the processing clock will stop 
with respect to any time limits for adjudicating the request for 
Service action at the time the Service sends a notice for initial 
evidence, and it will start over at the time the Service receives the 
evidence. Similarly, the processing clock will start over when the 
Service receives a request to reschedule an interview. The clock stops 
because the lack of required initial evidence or request for 
rescheduling hampers the Service's ability to make a final decision. It 
starts over again because to merely have it resume would effectively 
shorten the Service's processing window because we have to duplicate 
several processing and review steps because the application or petition 
was not complete when submitted or because we were asked to reschedule 
the interview. Having the clock start over also serves to encourage the 
filing of complete applications, which, as indicated above, is in the 
legitimate interests of all applicants and petitioners as well as in 
the legitimate interest of the Service. However, this process also 
preserves the processing clock concept because it does not suspend the 
clock indefinitely until we can resume processing.
    Since the Service is hampered from making a final decision, interim 
benefits will not be granted based on a case held in suspense for the 
submission of requested initial evidence, except that the Service will 
normally allow the applicant or person the petition is for to remain in 
the country while an application or petition to extend or obtain status 
while it is pending. In addition, employment authorization previously 
accorded based on the same status and employment as that requested in 
the current application or petition may continue uninterrupted as 
provided in 8 CFR 274a.12(b)(20) notwithstanding the case being held in 
suspense for the submission of necessary initial evidence. The Service 
of course reserves the right to pursue other actions to seek the 
removal of persons notwithstanding a pending application where 
required, such as in cases involving fraud or clearly frivolous 
applications.
    This rule also provides for denial where evidence submitted later 
does not establish eligibility at the time of filing. The evidence must 
establish that the applicant or petitioner was eligible for the benefit 
when the application or petition was filed. As suggested, the Service 
will monitor the rate of cases in which initial evidence is not 
submitted at the time of filing as a way of determining how we can 
further clarify form instructions, and to determine if we need to 
implement other changes, including those originally proposed in the 
rule, in order to ensure equity and fairness to all applicants and 
petitioners.

Additional Evidence, Documents and Translations

    At times, an application or petition will meet threshold evidence 
requirements, but the evidence submitted, or other evidence available, 
rises additional questions. In such instances the Service usually 
provides the applicant or petitioner an opportunity to respond or to 
submit additional evidence about the points in question in support of 
the claim. Several commenters asked that the Service extend the 60-day 
period provided for response, as least where good cause was 
demonstrated.
    The rule has been revised to provide 12 weeks for such submissions. 
However, waiting for the applicant or petitioner to respond hampers the 
Service's ability to make a final decision. Since the applicant has 
already met the threshold evidence requirements, the processing clock 
will merely stop as of the date of the request. It will resume at the 
point where it stopped when the Service receives the requested evidence 
or a request for a decision based on the evidence submitted.
    One commenter asserted that the Service should eliminate the 
distinction between primary and secondary evidence, and accept any type 
of credible document with an application or petition. However, 
historically there have been serious problems establishing the 
reliability of many kinds of documents. Further, it is important in 
judging a claim to know whether documents that should normally exist 
actually do.
    For example, a woman who files a petition claiming someone is her 
adult son. There is no birth certificate or other civil or religious 
documents from around the time of the birth to support the claim, but 
she does have several documents issued years later that suggest that he 
is her son. After analysis the Service may accept the claim, but the 
fact the birth certificate and other documents dating from the birth do 
not exist is important to that analysis. We could not adequately review 
the case if the record was silent about the types of documents that 
commonly exist. Without evidentiary guidelines, the Service also would 
not know whether she merely forgot to attach them or whether they did 
not exist. This would mean the Service would have to go back and ask, 
delaying processing.
    However, as requested by several commenters, the Service has 
clarified the distinction between primary evidence, secondary evidence 
and affidavits. The Service has also clarified the rule to indicate 
that a certification from an appropriate foreign government that a 
document does not exist is not required where the Department of State's 
Foreign Affairs Manual indicates this type of document generally does 
not exist. The Service has also revised the rule as requested to allow 
a person to file evidence showing that repeated good faith attempts 
were made to obtain a required document or certification of 
unavailability along with less definitive evidence.
    The above changes will also apply to secondary evidence. However, 
because secondary evidence and affidavits are inherently less reliable 
and, consequently, have less probative value than primary evidence, 
such secondary evidence and affidavits must overcome the fact that more 
probative primary evidence is unavailable, affidavits must overcome the 
absence of all other more probative forms of evidence that would 
normally be available. If the Service concludes that primary or 
secondary evidence should be available, the applicant or petitioner 
will be asked to obtain it.
    Several commenters requested that the rule be revised to only 
require a translation of the relevant portion of a foreign language 
document instead of a full translation. However, only requiring an 
extract leaves to the applicant or petitioner and the translator the 
judgment of what is germane. The Service has found that in many 
instances the applicant or petitioner's determination of what is 
germane is not consistent with the Service's. A full translation is 
necessary for us to fully analyze documents submitted.

Withdrawals, Denials, Appeals and Motions

    One commenter opposed the proposed bar to retracting a withdrawal, 
asserting that an applicant or petitioner may have a legitimate reason 
for again changing his or her mind. The rule does not question the 
legitimacy of a change of heart or mind, nevertheless, under the rule, 
a withdrawal is considered definitive. An applicant or petitioner who 
withdraws a case and later changes his or her mind again may refile a 
new application or petition. the Service has clarified this in the 
rule, and has also clarified that a petitioner may withdraw an approved 
petition until such time as the beneficiary has been admitted or has 
adjusted status.
    The proposed rule would allow a motion to reopen a case denied for 
lack of initial evidence, but would preclude a subsequent 
administrative appeal. One commenter suggested that an appeal should be 
allowed. However, since the issue is simply whether a stipulated 
document was or was not submitted, the avenue of a motion is a 
sufficient safeguard.
    Several commenters asked that the proposed rule allowing 30 days to 
file a motion to reopen or a motion to reconsider be extended to 60 
days to give applicants and petitioners time to retain legal counsel 
and file a response. However, the 30-day period provided is equivalent 
to that for filing an appeal, which itself was extended several years 
ago, and thus will not be changed.
    One commenter suggested that the proposed rule set the level of 
proof too high for motions to reopen. The provision has accordingly 
been revised to clarify the facts that must be demonstrated in the 
motion. Another commenter asked that the Service use this rulemaking to 
make all decisions of the Board of Immigration Appeals available to the 
public. The concern will be referred to the Executive Office of 
Immigration Review for future consideration.

Change of Status, Extension of Stay and Use of Form I-94

    The proposed rule provided that where a person demonstrated 
eligibility for an extension or change of status, the application could 
be approved at the discretion of the Service. One commenter asserted 
that discretion should not enter into the decision. However, sections 
214 and 248 of the Immigration and Nationality Act give the Service 
discretionary authority to approve or deny applications for extension 
or change of status. In addition, a decision on this type of 
application, and on most other types of applications and petitions, is 
rarely a simple matter. An alien is not automatically entitled to these 
types of benefits. The decision to grant a change of status or 
extension of stay involves weighing various factors, and a judgement by 
the deciding official of whether to grant the benefit.
    In response to a number of comments, this rule allows a worker's 
dependents to be included in a company's petition where there is only 
one worker in the petition. This provision will go into effect at the 
time the form providing for this process becomes available.
    A person was previously required to submit his or her original Form 
I-94, Nonimmigrant Arrival-Departure Record, with an application to 
extend or change nonimmigrant status so the Service could annotate the 
Form I-94 with its decision on the application. The rule proposed 
altering this process in certain cases to permit the filing of a copy 
of the Form I-94. The notice of decision would serve as evidence of any 
decision and alteration to the terms of the person's status.
    Several commenters supported this idea, suggesting it will 
eliminate problems with aliens not having evidence of status while 
their application is pending, and that it will streamline filing. In 
fact, several asked why it was not being extended to all such 
applications. However, several others opposed it, arguing that the 
change would create yet another document employers would have to deal 
with, further confusing them as to who is authorized to work.
    The Service is moving to limit to two the number of INS documents 
employers are required to examine when a person applies for employment: 
(a) Form I-551, Alien Registration Card, issued to permanent residents; 
and (b) Form I-688B, Employment Authorization Document, also called an 
EAD, issued to persons who can accept employment in the open labor 
market.
    However, after determining that an alien is not otherwise 
authorized to work, an employer may file a petition to temporarily 
employ him or her as a nonimmigrant. If the Service approves the 
petition, we notify the employer. If the alien is not first required to 
be admitted in the status, and the Service's approval authorizes 
immediate employment, we include this in the notice. The approval of 
such a petition does not authorize the alien to work elsewhere, but 
only for the employer under the terms and conditions of the approved 
petition. An EAD is not necessary in such a context since the employer 
has already determined the alien cannot work unless we approve its 
petition.
    Previously when sending a notice that we had approved such a 
petition we also made a handwritten notation on the alien's Form I-94. 
The computer system we are installing to improve service will allow us 
to replace such handwritten notes with a computer generated notice that 
can be confirmed by the system. Therefore, the rulemaking proposed 
simplifying filing requirements and allowing aliens to keep their 
existing Form I-94 as evidence of their status while their new 
application is pending.
    To eliminate any confusion, we are revising our approval notice to 
the employer to include a replacement Form I-94 that the employer can 
review and then give to the employee. In the interim the original Form 
I-94 must be filed with the petition for annotation. The Service will 
publish a notice in the Federal Register when the revised approval 
notice is implemented, at which time only a copy of the individual's I-
94 will be required.

Reentry permits, refugee travel documents and advance paroles

    Several commenters stated that applicants for asylum should be 
eligible for a refugee travel document. However, an applicant for 
asylum is an applicant for a benefit, and does not acquire any status 
or travel authorization merely as a result of having submitted the 
asylum application. It would be inappropriate to grant a travel 
document until a decision is made that the person is eligible for 
asylum. If an asylum applicant chooses to leave the United States, he 
or she may apply abroad for refugee status to reenter.
    A commenter requested clarification that a refugee travel document 
may be accepted in lieu of a passport as well as a visa. The final rule 
clearly refers to the document as a travel document issued pursuant to 
article 28 of the United Nations Convention of July 28, 1951 for the 
purpose of travel.
    The Service received many comments regarding advance parole. 
Although this subject needs to be addressed, the Service has decided to 
defer this action to a separate rulemaking.
    A number of commenters addressed the reentry permit provisions of 
the proposed rule. Most suggested that the proposed provision 
precluding issuance to most aliens who have been abroad for more than 4 
of the last 5 years since becoming a permanent resident was too 
limiting, did not provide for exceptions, and did not recognize the 
needs of permanent residents who are employed by multi-national 
companies on extended assignments abroad.
    As was explained in the proposed rule, the Service's intent was to 
minimize the current broad review by the Government of all the 
circumstances surrounding a person's absence, and instead focus on the 
simpler issue of how long he or she has been gone. The language of the 
rule was written in such a way that a person is able to stay abroad for 
almost 6 years, with only short trips back to the United States every 2 
years, before he or she would become ineligible for a reentry permit. 
This standard would have meant some people would not have received a 
permit, but, again, this ineligibility in and of itself would not have 
jeopardized permanent resident status.
    We believe a clear standard is preferable to an abstract one in 
which the Government must look at the person's intent, location of 
domiciles and assets, employment circumstances, and other circumstances 
of his or her life and make a discretionary decision of whether to 
issue a permit.
    However, upon further consideration, the Service recognizes that 
there may be those who will be unable to obtain a travel document other 
than the reentry permit. Therefore, the rule will be modified so that 
rather than precluding the issuance of the document, any such further 
issuance will be limited to a validity of one year. This simply means 
that a person who remains abroad for more than the specified period 
will thereafter have to return annually to file an application for a 
reentry permit instead of every 2 years.
    Also, based on the comments received, the Service has revised the 
list of exceptions to the time limit rule to include permanent 
residents defined in 8 CFR 211.1(b)(1)(i)(B), 211.1(b)(1)(ii) or 
211.1(b)(4), as well as persons employed by a public or national 
organization of which the United States is a member by treaty or 
statute, and their dependents. The rule also exempts professional 
athletes who compete in the United States and worldwide.

Other issues

    Several commenters suggested that the Service issue to any 
applicant for a replacement alien registration card an interim work 
authorization document while it considers his or her application. 
However, this would encourage people to file merely to get a document 
to enter the labor market. Under such circumstances, it would be 
inappropriate for the Service to give a benefit before having an 
opportunity to determine if the person is actually eligible for it. 
Instead, the Service is taking steps to accelerate the processing of 
this type of application in order to deliver a replacement card more 
rapidly to those who are eligible.
    Several commenters pointed to the situation of permanent residents 
in exclusion or deportation proceedings, and suggested that the rule 
should clearly prohibit the confiscation of the permanent resident 
alien registration card until a final order of deportation or exclusion 
is entered. The rule has been clarified to indicate that such a person 
is entitled to evidence of permanent resident status until a final 
order of deportation or exclusion is entered.
    As requested by several commenters, the Service has modified the 
proposed rule to clearly allow for the concurrent or subsequent filing 
of an application for further action on an application or petition, and 
to provide flexibility to incorporate additional, similar processes by 
revising the form. The Service has also made minor editorial changes in 
the rule for clarity.
    One commenter suggested that to further streamline processing, the 
Service should require applicants to mail all adjustment of status 
applications to the INS Service Centers, and eliminate the mandatory 
interview requirement. The Service has since addressed this issue in a 
separate rulemaking, which was published in the Federal Register on 
November 2, 1992 at 57 FR 49374-49375.
    It should be noted that most of the Sec. 264 items addressed in the 
proposed rule were published in the Federal Register on September 20, 
1993 at 58 FR 48775-48780, and therefore are not included in this rule.
    In addressing filing requirements and procedures, this rule also 
clarifies the effect of a ``bounced'' check or other filing fee 
remittance being returned as not payable.
    In accordance with 5 U.S.C. 605(b), the Commissioner of the 
Immigration and Naturalization Service certifies that this rule will 
not have a significant adverse economic impact on a substantial number 
of small entities. This regulation merely sets forth evidentiary rules 
and processes by which persons may apply for and receive certain 
immigration benefits and does not alter substantive requirements. This 
rule is not considered to be a major rule within the meaning of section 
1(b) of Executive Order 12291, nor does this rule have Federalism 
implications warranting the preparation of a Federalism Assessment in 
accordance with Executive Order 12612.
    The information collection requirements contained in this rule have 
been approved by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act. Clearance numbers for these 
collections 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 
recordkeeping requirements, Surety bonds.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part 223

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 223a

    Immigration, Refugees, Reporting and recordkeeping requirements.

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 264

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 292

    Administrative practice and procedure, Immigration, Lawyers, 
Reporting and recordkeeping requirements.

    Accordingly, under authority 8 U.S.C. 1101, chapter I of title 8 of 
the Code of Federal Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 522, 522a; 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.

    2. In section 103.2 paragraph (a) is revised to read as follows:


Sec. 103.2  Applications, petitions, and other documents.

    (a) Filing. (1) General. Every application, petition, appeal, 
motion, request, or other document submitted on the form prescribed by 
this chapter shall be executed and filed in accordance with the 
instructions on the form, such instructions being hereby incorporated 
into the particular section of the regulations requiring its 
submission. The form must be filed with the appropriate filing fee 
required by Sec. 103.7. Such fees are non-refundable and, except as 
otherwise provided in this chapter, must be paid when the application 
or petition is filed.
    (2) Signature. An applicant or petitioner must sign his or her 
application or petition. However, a parent or legal guardian may sign 
for a person who is less than 14 years old. A legal guardian may sign 
for a mentally incompetent person. By signing the application or 
petition, the applicant or petitioner, or parent or guardian certifies 
under penalty of perjury that the application or petition, and all 
evidence submitted with it, either at the time of filing or thereafter, 
is true and correct.
    (3) Representation. An applicant or petitioner may be represented 
by an attorney in the United States, as defined in Sec. 1.1(f) of this 
chapter, by an attorney outside the United States as defined in 
Sec. 292.1(a)(6) of this chapter, or by an accredited representative as 
defined in Sec. 292.1(a)(4) of this chapter. A beneficiary of a 
petition is not a recognized party in such a proceeding. An application 
or petition presented in person by someone who is not the applicant or 
petitioner, or his or her representative as defined in this paragraph, 
shall be treated as if received through the mail, and the person 
advised that the applicant or petitioner, and his or her 
representative, will be notified of the decision. Where a notice of 
representation is submitted that is not properly signed, the 
application or petition will be processed as if the notice had not been 
submitted.
    (4) Oath. Any required oath may be administered by an immigration 
officer or person generally authorized to administer oaths, including 
persons so authorized by Article 136 of the Uniform Code of Military 
Justice.
    (5) Translation of name. If a document has been executed in an 
anglicized version of a name, the native form of the name may also be 
required.
    (6) Where to file. Except as otherwise provided in this chapter, an 
application or petition should be filed with the INS office or Service 
Center with jurisdiction over the application or petition and the place 
of residence of the applicant or petitioner as indicated in the 
instructions with the respective form.
    (7) Receipt date. (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 
of this chapter, shall be regarded as filed when so stamped, if it is 
properly signed and executed and the required fee is attached or a fee 
waiver is granted. An application which is not properly signed or is 
submitted with the wrong fee shall be rejected as improperly filed. 
Rejected applications, and ones in which the check or other financial 
instrument is returned as not payable, will not retain a filing date. 
An application or petition taken to a local Service office for the 
completion of biometric information prior to filing at a Service Center 
shall be considered received when physically received at the 
appropriate Service Center.
    (ii) Non-payment. If a check or other financial instrument used to 
pay a filing fee is subsequently returned as not payable, the remitter 
shall be notified and requested to immediately pay the filing fee and 
associated service charge within 14 days, without extension. If the 
application or petition is pending and these charges are not paid, it 
shall be rejected as improperly filed. If it was already approved, and 
these charges are not paid, it shall be automatically revoked because 
it was improperly filed. If it was already denied, revoked, or 
abandoned, that decision will not be affected by the non-payment of the 
filing fee. A new fee will be required with any new application or 
petition. Any fee and service charges collected as the result of 
collection activities or legal action on the prior application or 
petition shall be used to cover the cost of the previous rejection, 
revocation, or other action.
* * * * *
    3. Section 103.2 is amended by:
    a. Revising the heading for paragraph (b) and paragraph (b)(1);
    b. Redesignating existing paragraph (b)(2) as paragraph (b)(18), 
and revising the paragraph heading to read ``Withholding 
adjudication.'';
    c. Redesignating paragraph (b)(3) as paragraph (b)(16), and 
revising in paragraph (b)(16)(i), the reference ``(b)(3) (ii), (iii) 
and (iv)'' to read: ``(b)(16) (ii), (iii) and (iv)''; and revising in 
paragraph (b)(16)(ii), the reference ``(b)(3)(iv)'' to read: 
``(b)(16)(iv)''; and by
    d. Adding new paragraphs (b)(2) through (b)(15), (b)(17), and 
(b)(19), to read as follows:


Sec. 103.2  Applications, petitions, and other documents.

* * * * *
    (b) Evidence and processing. (1) General. An applicant or 
petitioner must establish eligibility for a requested immigration 
benefit. An application or petition form must be completed as 
applicable and filed with any initial evidence required by regulation 
or by the instructions on the form. Any evidence submitted is 
considered part of the relating application or petition.
    (2) Submitting secondary evidence and affidavits. (i) General. The 
non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. If a required document, such as a birth 
or marriage certificate, does not exist or cannot be obtained, an 
applicant or petitioner must demonstrate this and submit secondary 
evidence, such as church or school records, pertinent to the facts at 
issue. If secondary evidence also does not exist or cannot be obtained, 
the applicant or petitioner must demonstrate the unavailability of both 
the required document and relevant secondary evidence, and submit two 
or more affidavits, sworn to or affirmed by persons who are not parties 
to the petition who have direct personal knowledge of the event and 
circumstances. Secondary evidence must overcome the unavailability of 
primary evidence, and affidavits must overcome the unavailability of 
both primary and secondary evidence.
    (ii) Demonstrating that a record is not available. Where a record 
does not exist, the applicant or petitioner must submit an original 
written statement on government letterhead establishing this from the 
relevant government or other authority. The statement must indicate the 
reason the record does not exist, and indicate whether similar records 
for the time and place are available. However, a certification from an 
appropriate foreign government that a document does not exist is not 
required where the Department of State's Foreign Affairs Manual 
indicates this type of document generally does not exist. An applicant 
or petitioner who has not been able to acquire the necessary document 
or statement from the relevant foreign authority may submit evidence 
that repeated good faith attempts were made to obtain the required 
document or statement. However, where the Service finds that such 
documents or statements are generally available, it may require that 
the applicant or petitioner submit the required document or statement.
    (3) Translations. Any document containing foreign language 
submitted to the Service shall be accompanied by a full English 
language translation which the translator has certified as complete and 
accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English.
    (4) Submitting copies of documents. Application and petition forms 
must be submitted in the original. Forms and documents issued to 
support an application or petition, such as labor certifications, Form 
IAP-66, medical examinations, affidavits, formal consultations, and 
other statements, must be submitted in the original unless previously 
filed with the Service. When submission is required, expired Service 
documents must be submitted in the original, as must Service documents 
required to be annotated to indicate the decision. In all other 
instances, unless the relevant regulations or instructions specifically 
require that an original document be filed with an application or 
petition, an ordinary legible photocopy may be submitted. Original 
documents submitted when not required will remain a part of the record, 
even if the submission was not required.
    (5) Request for an original document. Where a copy of a document is 
submitted with an application or petition, the Service may at any time 
require that the original document be submitted for review. If the 
requested original, other than one issued by the Service, is not 
submitted within 12 weeks, the petition or application shall be denied 
or revoked. There shall be no appeal from a denial or revocation based 
on the failure to submit an original document upon the request of the 
Service to substantiate a previously submitted copy. Further, an 
applicant or petitioner may not move to reopen or reconsider the 
proceeding based on the subsequent availability of the document. An 
original document submitted pursuant to a Service request shall be 
returned to the petitioner or applicant when no longer required.
    (6) Withdrawal. An applicant or petitioner may withdraw an 
application or petition at any time until a decision is issued by the 
Service or, in the case of an approved petition, until the person is 
admitted or granted adjustment or change of status, based on the 
petition. However, a withdrawal may not be retracted.
    (7) Testimony. The Service may require the taking of testimony, and 
may direct any necessary investigation. When a statement is taken from 
and signed by a person, he or she shall, upon request, be given a copy 
without fee. Any allegations made subsequent to filing an application 
or petition which are in addition to, or in substitution for, those 
originally made, shall be filed in the same manner as the original 
application, petition, or document, and acknowledged under oath 
thereon.
    (8) Request for evidence. If there is evidence of ineligibility in 
the record, an application or petition shall be denied on that basis 
notwithstanding any lack of required initial evidence. If the 
application or petition was pre-screened by the Service prior to filing 
and was filed even though the applicant or petitioner was informed that 
the required initial evidence was missing, the application or petition 
shall be denied for failure to contain the necessary evidence. Except 
as otherwise provided in this chapter, in other instances where there 
is no evidence of ineligibility, and initial evidence or eligibility 
information is missing or the Service finds that the evidence submitted 
either does not fully establish eligibility for the requested benefit 
or raises underlying questions regarding eligibility, the Service shall 
request the missing initial evidence, and may request additional 
evidence, including blood tests. In such cases, the applicant or 
petitioner shall be given 12 weeks to respond to a request for 
evidence. Additional time may not be granted. Within this period the 
applicant or petitioner may:
    (i) Submit all the requested initial or additional evidence;
    (ii) Submit some or none of the requested additional evidence and 
ask for a decision based on the record; or
    (iii) Withdraw the application or petition.
    (9) Request for appearance. An applicant, a petitioner, and/or a 
beneficiary may be required to appear for an interview. A petitioner 
shall also be notified when an interview notice is mailed or issued to 
a beneficiary. The person may appear as requested by the Service or, 
prior to the date and time of the interview:
    (i) The person to be interviewed may, for good cause, request that 
the interview be rescheduled; or
    (ii) The applicant or petitioner may withdraw the application or 
petition.
    (10) Effect of a request for initial or additional evidence or for 
interview rescheduling. (i) Effect on processing. The priority date of 
a properly filed petition shall not be affected by a request for 
missing initial evidence or request for other evidence. If an 
application or petition is missing required initial evidence, or an 
applicant, petitioner, or beneficiary requests that an interview be 
rescheduled, any time period imposed on Service processing will start 
over from the date of receipt of the required initial evidence or 
request for interview rescheduling. If the Service requests that the 
applicant or petitioner submit additional evidence or respond to other 
than a request for initial evidence, any time limitation imposed on the 
Service for processing will be suspended as of the date of the request. 
It will resume at the same point where it stopped when the Service 
receives the requested evidence or response, or a request for a 
decision based on the evidence submitted.
    (ii) Effect on interim benefits. Interim benefits will not be 
granted based on an application or petition held in suspense for the 
submission of requested initial evidence, except that the applicant or 
beneficiary will normally be allowed to remain while an application or 
petition to extend or obtain status while in the United States is 
pending. The Service may choose to pursue other actions to seek removal 
of a person notwithstanding the pending application. Employment 
authorization previously accorded based on the same status and 
employment as that requested in the current application or petition may 
continue uninterrupted as provided in 8 CFR 274a.12(b)(20) during the 
suspense period.
    (11) Submission of evidence in response to a Service request. All 
evidence submitted in response to a Service request must be submitted 
at one time. The submission of only some of the requested evidence will 
be considered a request for a decision based on the record.
    (12) Effect where evidence submitted in response to a request does 
not establish eligibility at the time of filing. An application or 
petition shall be denied where evidence submitted in response to a 
request for initial evidence does not establish filing eligibility at 
the time the application or petition was filed. An application or 
petition shall be denied where any application or petition upon which 
it was based was filed subsequently.
    (13) Effect of failure to respond to a request for evidence or 
appearance. If all requested initial evidence and requested additional 
evidence is not submitted by the required date, the application or 
petition shall be considered abandoned and, accordingly, shall be 
denied. Except as provided in Sec. 335.6 of this chapter, if a person 
requested to appear for an interview does not appear, the Service does 
not receive his or her request for rescheduling by the date of the 
interview, or the applicant or petitioner has not withdrawn the 
application or petition, the application or petition shall be 
considered abandoned and, accordingly, shall be denied.
    (14) Effect of request for decision. When an applicant or 
petitioner does not submit all requested additional evidence and 
requests a decision based on the evidence already submitted, a decision 
shall be issued based on the record. Failure to submit requested 
evidence which precludes a material line of inquiry shall be grounds 
for denying the application or petition. Failure to appear for a 
required interview, or to give required testimony, shall result in the 
denial of any related application or petition.
    (15) Effect of withdrawal or denial due to abandonment. The 
Service's acknowledgement of a withdrawal may not be appealed. A denial 
due to abandonment may not be appealed, but an applicant or petitioner 
may file a motion to reopen under Sec. 103.5. Withdrawal or denial due 
to abandonment does not preclude the filing of a new application or 
petition with a new fee. However, the priority or processing date of a 
withdrawn or abandoned application or petition may not be applied to a 
later application petition. Withdrawal or denial due to abandonment 
shall not itself affect the new proceeding; but the facts and 
circumstances surrounding the prior application or petition shall 
otherwise be material to the new application or petition.
* * * * *
    (17) Verifying claimed permanent resident status. The status of an 
applicant or petitioner who claims that he or she is a permanent 
resident of the United States will be verified from official records of 
the Service. The term official records, as used herein, includes 
Service files, arrival manifests, arrival records, Service index cards, 
Immigrant Identification Cards, Certificates of Registry, Declarations 
of Intention issued after July 1, 1929, Alien Registration Receipt 
Cards Forms AR-3, AR-103, I-151 or I-551), passports, and reentry 
permits. To constitute an official record a Service index card must 
bear a designated immigrant visa symbol and must have been prepared by 
an authorized official of the Service in the course of processing 
immigrant admissions or adjustments to permanent resident status. Other 
cards, certificates, declarations, permits, and passports must have 
been issued or endorsed by the Service to show admission for permanent 
residence. Except as otherwise provided in 8 CFR part 101, and in the 
absence of countervailing evidence, such official records shall be 
regarded as establishing lawful admission for permanent residence.
* * * * *
    (19) Notification. An applicant or petitioner shall be sent a 
written decision on his or her application, petition, motion, or 
appeal. Where the applicant or petitioner has authorized representation 
pursuant to Sec. 103.2(a), that representative shall also be notified. 
Documents produced after an approval notice is sent, such as an alien 
registration card, shall be mailed directly to the applicant or 
petitioner.
* * * * *
    4. Section 103.5 is amended by:
    a. Revising, in paragraph (a)(1)(i), the reference to ``part 242 of 
this chapter'', to read: ``8 CFR parts 210, 242, or 245a'';
    b. Adding, to the end of paragraph (a)(1)(i), a new sentence;
    c. Revising the first sentence in paragraph (a)(1)(iii) 
introductory text;
    d. Revising paragraph (a)(1)(iii)(C);
    e. Revising paragraphs (a)(2), (a)(3), and (a)(4); and by
    f. Adding a new paragraph (a)(8), to read as follows:


Sec. 103.5  Reopening or reconsideration.

    (a) * * *
    (1) * * *
    (i) * * * Any motion to reconsider an action by the Service filed 
by an applicant or petitioner must be filed within 30 days of the 
decision that the motion seeks to reconsider. Any motion to reopen a 
proceeding before the Service filed by an applicant or petitioner, must 
be filed within 30 days of the decision that the motion seeks to 
reopen, except that failure to file before this period expires, may be 
excused in the discretion of the Service where it is demonstrated that 
the delay was reasonable and was beyond the control of the applicant or 
petitioner.
* * * * *
    (iii) Filing Requirements--A motion shall be submitted on Form I-
290A, and may be accompanied by a brief. * * *
* * * * *
    (C) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;
* * * * *
    (2) Requirements for motion to reopen. A motion to reopen must 
state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. A motion to 
reopen an application or petition denied due to abandonment must be 
filed with evidence that the decision was in error because:
    (i) The requested evidence was not material to the issue of 
eligibility;
    (ii) The required initial evidence was submitted with the 
application or petition, or the request for initial evidence or 
additional information or appearance was complied with during the 
allotted period; or
    (iii) The request for additional information or appearance was sent 
to an address other than that on the application, petition, or notice 
of representation, or that the applicant or petitioner advised the 
Service, in writing, of a change of address or change of representation 
subsequent to filing and before the Service's request was sent, and the 
request did not go to the new address.
    (3) Requirements for motion to reconsider. A motion to reconsider 
must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based 
on an incorrect application of law or Service policy. A motion to 
reconsider a decision on an application or petition must, when filed, 
also establish that the decision was incorrect based on the evidence of 
record at the time of the initial decision.
    (4) Processing motions in proceedings before the Service. A motion 
that does not meet applicable requirements shall be dismissed. Where a 
motion to reopen is granted, the proceeding shall be reopened. The 
notice and any favorable decision may be combined.
* * * * *
    (8) Treating an appeal as a motion. The official who denied an 
application or petition may treat the appeal from that decision as a 
motion for the purpose of granting the motion.
* * * * *
    5. A new Sec. 103.5b is added to read as follows:


Sec. 103.5b  Application for further action on an approved application 
or petition.

    (a) General. An application for further action on an approved 
application or petition must be filed on Form I-824 by the applicant or 
petitioner who filed the original application or petition. It must be 
filed with the fee required in Sec. 103.7 and the initial evidence 
required on the application form. Form I-824 may accompany the original 
application or petition, or may be filed after the approval of the 
original application or petition.
    (b) Requested actions. A person whose application was approved may, 
during its validity period, apply for a duplicate approval notice or 
any other action specifically provided for on the form. A petitioner 
whose petition was approved may, during the validity of the petition, 
request that the Service:
    (1) Issue a duplicate approval notice;
    (2) Notify another consulate of the approved petition;
    (3) Notify a consulate of the person's adjustment of status for the 
purpose of visa issuance to dependents; or
    (4) Take any other action specifically provided for on the form.
    (c) Processing. The application shall be approved if the Service 
determines the applicant has fully demonstrated eligibility for the 
requested action. There is no appeal from the denial of an application 
filed on Form I-824.

PART 214--NONIMMIGRANT CLASSES

    6. The authority citation for part 214 is revised to read as 
follows:

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

    7. Section 214.1 is amended by:
    a. Redesignating the text of paragraph (a) as paragraph (a)(3) and 
adding the paragraph heading;
    b. Adding paragraphs (a)(1) and (a)(2);
    c. Revising paragraph (c); and by
    d. Revising paragraph (d), to read as follows:


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

    (a) General. (1) Nonimmigrant classes. For the purpose of 
administering the nonimmigrant provisions of the Act, the following 
administrative subclassifications of nonimmigrant classifications as 
defined in section 101(a)(15) of the Act are established:
    (i) Section 101(a)(15)(B) is divided into (B)(i) for visitors for 
business and (B)(ii) for visitors for pleasure;
    (ii) Section 101(a)(15)(C) is divided into (C)(i) for aliens who 
are not diplomats and are in transit through the United States; (C)(ii) 
for aliens in transit to and from the United Nations Headquarters 
District; and (C)(iii) for alien diplomats in transit through the 
United States;
    (iii) Section 101(a)(15)(H) is divided to create an (H)(iv) 
subclassification for the spouse and children of a nonimmigrant 
classified under section 101(a)(15) (H) (i), (ii), or (iii);
    (iv) Section 101(a)(15)(J) is divided into (J)(i) for principal 
aliens and (J)(ii) for such alien's spouse and children;
    (v) Section 101(a)(15)(K) is divided into (K)(i) for the fiance(e) 
and (K)(ii) for the fiance(e)'s children; and
    (vi) Section 101(a)(15)(L) is divided into (L)(i) for principal 
aliens and (L)(ii) for such alien's spouse and children.
    (2) Classification designations. For the purpose of this chapter 
the following nonimmigrant designations are established. The 
designation in the second column may be used to refer to the 
appropriate nonimmigrant classification.

------------------------------------------------------------------------
                       Section                             Designation  
------------------------------------------------------------------------
101(a)(15)(A)(i)......................................  A-1.            
101(a)(15)(A)(ii).....................................  A-2.            
101(a)(15)(A)(iii)....................................  A-3.            
101(a)(15)(B)(i)......................................  B-1.            
101(a)(15)(B)(ii).....................................  B-2.            
101(a)(15)(C)(i)......................................  C-1.            
101(a)(15)(C)(ii).....................................  C-2.            
101(a)(15)(C)(iii)....................................  C-3.            
101(a)(15)(D)(i)......................................  D-1.            
101(a)(15)(D)(ii).....................................  D-2.            
101(a)(15)(E)(i)......................................  E-1.            
101(a)(15)(E)(ii).....................................  E-2.            
101(a)(15)(F)(i)......................................  F-1.            
101(a)(15)(F)(ii).....................................  F-2.            
101(a)(15)(G)(i)......................................  G-1.            
101(a)(15)(G)(ii).....................................  G-2.            
101(a)(15)(G)(iii)....................................  G-3.            
101(a)(15)(G)(iv).....................................  G-4.            
101(a)(15)(g)(v)......................................  G-5.            
101(a)(15)(H)(i)(A)...................................  H-1A.           
101(a)(15)(H)(i)(B)...................................  H-1B.           
101(a)(15)(H)(ii)(A)..................................  H-2A.           
101(a)(15)(H)(ii)(B)..................................  H-2B.           
101(a)(15)(H)(iii)....................................  H-3.            
101(a)(15)(H)(iv).....................................  H-4.            
101(a)(15)(I).........................................  I.              
101(a)(15)(J)(i)......................................  J-1.            
101(a)(15)(J)(ii).....................................  J-2.            
101(a)(15)(K)(i)......................................  K-1.            
101(a)(15)(K)(ii).....................................  K-2.            
101(a)(15)(L)(i)......................................  L-1.            
101(a)(15)(L)(ii).....................................  L-2.            
101(a)(15)(M)(i)......................................  M-1.            
101(a)(15)(M)(ii).....................................  M-2.            
101(a)(15)(N)(i)......................................  N-8.            
101(a)(15)(N)(ii).....................................  N-9.            
101(a)(15)(O)(i)......................................  O-1.            
101(a)(15)(O)(ii).....................................  O-2.            
101(a)(15)(O)(iii)....................................  O-3.            
101(a)(15)(P)(i)......................................  P-1.            
101(a)(15)(P)(ii).....................................  P-2.            
101(a)(15)(P)(iii)....................................  P-3.            
101(a)(15)(P)(iv).....................................  P-4.            
101(a)(15)(Q).........................................  Q.              
101(a)(15)(R)(i)......................................  R-1.            
101(a)(15)(R)(ii).....................................  R-2.            
Cdn FTA, Professional.................................  TC.             
NAFTA, Principal......................................  TN.             
NAFTA, Dependent......................................  TD.             
Visa Waiver, Business.................................  WB.             
Visa Waiver, Tourist..................................  WT.             
------------------------------------------------------------------------


    (3) General requirements. * * *
* * * * *
    (c) Extensions of stay. (1) Filing on Form I-129. An employer 
seeking the services of an E-1, E-2, H-1A, H-1B, H-2A, H-2B, H-3, L-1, 
O-1, O-2, P-1, P-2, P-3, Q, R-1, or TC nonimmigrant beyond the period 
previously granted, must petition for an extension of stay on Form I-
129. The petition must be filed with the fee required in Sec. 103.7 of 
this chapter, and the initial evidence specified in Sec. 214.2, and on 
the petition form. Dependents holding derivative status may be included 
in the petition if it is for only one worker and the form version 
specifically provides for their inclusion. In all other cases 
dependents of the worker should file on Form I-539.
    (2) Filing on Form I-539. Any other nonimmigrant alien, except an 
alien in F or J status who has been granted duration of status, who 
seeks to extend his or her stay beyond the currently authorized period 
of admission, must apply for an extension of stay on Form I-539 with 
the fee required in Sec. 103.7 of this chapter together with any 
initial evidence specified in the applicable provisions of Sec. 214.2, 
and on the application form. More than one person may be included in an 
application where the co-applicants are all members of a single family 
group and either all hold the same nonimmigrant status or one holds a 
nonimmigrant status and the other co-applicants are his or her spouse 
and/or children who hold derivative nonimmigrant status based on his or 
her status. Extensions granted to members of a family group must be for 
the same period of time. The shortest period granted to any member of 
the family shall be granted to all members of the family.
    (3) Ineligible for extension of stay. A nonimmigrant in any of the 
following classes is ineligible for an extension of stay:
    (i) B-1 or B-2 where admission was pursuant to the Visa Waiver 
Pilot Program;
    (ii) C-1, C-2, C-3;
    (iii) D-1, D-2;
    (iv) K-1, K-2; or
    (v) Any nonimmigrant admitted for duration of status, other than as 
provided in Sec. 214.2(f)(7).
    (4) Timely filing and maintenance of status. An extension of stay 
may not be approved for an applicant who failed to maintain the 
previously accorded status or where such status expired before the 
application or petition was filed, except that failure to file before 
the period of previously authorized status expired may be excused in 
the discretion of the Service and without separate application, with 
any extension granted from the date the previously authorized stay 
expired, where it is demonstrated at the time of filing that:
    (i) The delay was due to extraordinary circumstances beyond the 
control of the applicant or petitioner, and the Service finds the delay 
commensurate with the circumstances;
    (ii) The alien has not otherwise violated his or her nonimmigrant 
status;
    (iii) The alien remains a bona fide nonimmigrant; and
    (iv) The alien is not the subject of deportation proceedings under 
8 CFR part 242.
    (5) Decision in Form I-129 or I-539 extension proceedings. Where an 
applicant or petitioner demonstrates eligibility for a requested 
extension, it may be granted at the discretion of the Service. There is 
no appeal from the denial of an application for extension of stay filed 
on Form I-129 or I-539.
    (d) Termination of status. Within the period of initial admission 
or extension of stay, the nonimmigrant status of an alien shall be 
terminated by the revocation of a waiver authorized on his or her 
behalf under section 212(d) (3) or (4) of the Act; by the introduction 
of a private bill to confer permanent resident status on such alien; 
or, pursuant to notification in the Federal Register, on the basis of 
national security, diplomatic, or public safety reasons.
* * * * *
    8.-9. Part 223 is revised to read as follows:

PART 223--REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE 
PAROLE DOCUMENTS

Sec.
223.1  Purpose of documents.
223.2  Processing.
223.3  Validity and effect on admissibility.

    Authority: 8 U.S.C. 1103, 1181, 1182, 1186a, 1203, 1225, 1226, 
1227, 1251; Protocol Relating to the Status of Refugees, November 1, 
1968, 19 U.S.T. 6223 (TIAS 6577).


Sec. 223.1  Purpose of documents.

    (a) Reentry permit. A reentry permit allows a permanent resident to 
apply for admission to the United States upon return from abroad during 
the period of the permit's validity without the necessity of obtaining 
a returning resident visa.
    (b) Refugee travel document. A refugee travel document is issued 
pursuant to this part and article 28 of the United Nations Convention 
of July 28, 1951, for the purpose of travel. A person who holds refugee 
status pursuant to section 207 of the Act, or asylee status pursuant to 
section 208 of the Act, must have a refugee travel document to return 
to the United States after temporary travel abroad unless he or she is 
in possession of a valid advance parole document.


Sec. 223.2  Processing.

    (a) General. An application for a reentry permit, refugee travel 
document, or advance parole document must be filed on Form I-131, with 
the fee required in Sec. 103.7 of this chapter and with the initial 
evidence required on the application form.
    (b) Eligibility. (1) Reentry permit. Except as otherwise provided 
in this section, an application may be approved if filed by a person 
who is in the United States at the time of application and is a lawful 
permanent resident or conditional permanent resident.
    (2) Refugee travel document. Except as otherwise provided in this 
section, an application may be approved if filed by a person who is in 
the United States at the time of application, and either holds valid 
refugee status under section 207 of the Act, valid asylee status under 
section 208 of the Act, or is a permanent resident and received such 
status as a direct result of his or her asylee or refugee status.
    (c) Ineligibility. (1) Prior document still valid. An application 
for a reentry permit or refugee travel document shall be denied if the 
applicant was previously issued a reentry permit or refugee travel 
document which is still valid, unless it was returned to the Service or 
it is demonstrated that it was lost.
    (2) Extended absences. A reentry permit issued to a person who, 
since becoming a permanent resident, or during the last 5 years, 
whichever is less, has been outside the United States for more than 4 
years in the aggregate, shall be limited to a validity of one year, 
except that a permit with a validity of two years may be issued to:
    (i) A permanent resident as defined in 8 CFR 211.1(b)(1)(ii) or 
211.1(b)(4);
    (ii) A permanent resident employed by a public international 
organization of which the United States is a member by treaty or 
statute, and his or her permanent resident spouse and children; or
    (iii) A permanent resident who is a professional athlete who 
regularly competes in the United States and worldwide.
    (3) Permanent resident entitled to nonimmigrant diplomatic or 
treaty status. A permanent resident entitled to nonimmigrant status 
under section 101(a)(15) (A), (E), or (G) of the Act because of 
occupational status may only be issued a reentry permit if the 
applicant executes and submits with the application, or has previously 
executed and submitted, a written waiver on Form I-508 required by 
section 247(b) of the Act and part 247 of this chapter and, if 
applicable, Form I-508F (election as to tax exemption under the 
Convention between the United States and the French Republic) required 
by part 247 of this chapter.
    (d) Effect of travel before a decision is made. Departure from the 
United States before a decision is made on an application for a reentry 
permit or refugee travel document shall not affect the application.
    (e) Processing. Approval of an application is solely at the 
discretion of the Service. If the application is approved, the 
requested document shall be issued as provided in this part.
    (f) Issuance. A reentry permit or refugee travel document may be 
sent in care of a United States Consulate or an overseas office of the 
Service if the applicant so requests at the time of filing. Issuance of 
a reentry permit or refugee travel document to a person in exclusion or 
deportation proceedings shall not affect those proceedings.
    (g) Appeal. Denial of an application for a reentry permit or 
refugee travel document may be appealed to the Service's Administrative 
Appeals Unit.


Sec. 223.3  Validity and effect on admissibility.

    (a) Validity. (1) Reentry permit. Except as provided in 
Sec. 223.2(c)(2), a reentry permit issued to a permanent resident shall 
be valid for 2 years from the date of issuance. A reentry permit issued 
to a conditional permanent resident shall be valid for 2 years from the 
date of issuance, or to the date the conditional permanent resident 
must apply for removal of the conditions on his or her status, 
whichever comes first.
    (2) Refugee travel document. A refugee travel document shall be 
valid for 1 year, or to the date the refugee or asylee status expires, 
whichever comes first.
    (b) Invalidation. A document issued under this part is invalid if 
obtained through material false representation or concealment, or if 
the person is ordered excluded or deported. A refugee travel document 
is also invalid if the United Nations Convention of July 28, 1951, 
ceases to apply or does not apply to the person as provided in Article 
1C, D, E, or F of the convention.
    (c) Extension. A reentry permit or refugee travel document may not 
be extended.
    (d) Effect on admissibility. (1) Reentry permit. A permanent 
resident or conditional permanent resident in possession of a valid 
reentry permit who is otherwise admissible shall not be deemed to have 
abandoned status based solely on the duration of an absence or absences 
while the permit is valid.
    (2) Refugee travel document. (i) General. Every alien returning to 
the United States who presents a valid unexpired refugee travel 
document shall be permitted to come physically within the territory of 
the United States to receive consideration of his or her application 
for admission in conformity with paragraphs (d)(2)(ii) and (d)(2)(iii) 
of this section.
    (ii) Inspection and immigration status. Upon arrival, an alien who 
presents a valid unexpired refugee travel document shall be examined as 
to his or her admissibility under the Act. An alien shall be accorded 
the immigration status endorsed in his or her refugee travel document 
unless he or she is no longer eligible therefor, or he or she applies 
for and is found eligible for some other immigration status.
    (iii) Exclusion. If an alien who presents a valid unexpired refugee 
travel document appears to the examining immigration officer to be 
excludable as provided in Sec. 236.5(c) of this chapter, he or she 
shall be referred for proceedings under section 236 and 237 of the Act. 
Section 235(c) of the Act shall not be applicable.

PART 223a--REFUGEE TRAVEL DOCUMENTS [REMOVED]

    10. Part 223a is removed.

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

    11. The authority citation for part 248 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.

    12. In Sec. 248.1, paragraph (a) is amended by removing the ``.'' 
and adding ``, or as an alien in transit under section 101(a)(15)(C) of 
the Act.''
    13. In section 248.1, paragraph (b) is revised to read as follows:


Sec. 248.1  Eligibility.

* * * * *
    (b) Timely filing and maintenance of status. A change of status may 
not be approved for an alien who failed to maintain the previously 
accorded status or whose status expired before the application or 
petition was filed, except that failure to file before the period of 
previously authorized status expired may be excused in the discretion 
of the Service, and without separate application, where it is 
demonstrated at the time of filing that:
    (1) The failure to file a timely application was due to 
extraordinary circumstances beyond the control of the applicant or 
petitioner, and the Service finds the delay commensurate with the 
circumstances;
    (2) The alien has not otherwise violated his or her nonimmigrant 
status;
    (3) The alien remains a bona fide nonimmigrant; and
    (4) The alien is not the subject of deportation proceedings under 8 
CFR part 242.
* * * * *
    14. Section 248.3 is amended by:
    a. Removing and reserving paragraph (d), and
    b. Revising paragraphs (a), (b), and (c), to read as follows:


Sec. 248.3  Application.

    (a) Change of status on Form I-129. An employer seeking the 
services of an alien as an E-1, E-2, H-1A, H-1B, H-2A, H-2B, H-3, L-1, 
O-1, O-2, P-1, P-2, P-3, Q, R-1, or TC nonimmigrant, must, where the 
alien is already in the U.S. and does not currently hold such status, 
apply for a change of status on Form I-129. The form must be filed with 
the fee required in Sec. 103.7 of this chapter and the initial evidence 
specified in Sec. 214.2 of this chapter and on the petition form. 
Dependents holding derivative status may be included in the petition if 
the form is for only one worker. In all other cases, dependents of the 
worker should file on Form I-539.
    (b) Change of status on Form I-539. Any nonimmigrant who desires a 
change of status to any nonimmigrant classification, other than those 
listed in paragraph (a) of this section, or to E-1 or E-2 
classification as the spouse or child of a principal E-1 or E-2, must 
apply for a change of status on Form I-539. The application must be 
filed with the fee required in Sec. 103.7 of this chapter and any 
initial evidence specified in the applicable provisions of Sec. 214.2 
of this chapter, and on the application form. More than one person may 
be included in an application where the co-applicants are all members 
of a single family group and either all hold the same nonimmigrant 
status or one holds a nonimmigrant status and the co-applicants are his 
or her spouse and/or children who hold derivative nonimmigrant status 
based on the principal's nonimmigrant status.
    (c) Special provisions for change of nonimmigrant classification 
to, or from, a position classified under section 101(a)(15) (A) or (G) 
of the Act. Each application for change of nonimmigrant classification 
to, or from, a position classified under section 101(a)(15)(A) or (G) 
must be filed on Form I-539 and be accompanied by a Form I-566, 
completed and endorsed in accordance with the instructions on that 
form. If the Department of State recommends against the change, the 
application shall be denied. An application for a change of 
classification by a principal alien in a position classified A-1, A-2, 
G-1, G-2, G-3, or G-4 shall be processed without fee. Members of the 
principal alien's immediate family who are included on the principal 
alien's application shall also be processed without fee.
* * * * *

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED 
STATES

    15. The authority citation for part 264 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1201, 1201a, 1301-1305

Sec. 264.1  [Amended]

    16. In Sec. 264.1, paragraph (b), is amended by removing the Form 
No. and Class references for form ``I-90''.
    17. Section 264.1 is amended by:
    a. Removing paragraph (c)(1); and
    b. Redesignating paragraph (c)(2) as paragraph (c)(1).
    18. Part 264 is further amended by adding Secs. 264.4 and 264.6, to 
read as follows:


Sec. 264.4  Application to replace a Non-resident Border Crossing Card.

    An application for a replacement Non-Resident Border Crossing Card 
must be filed pursuant to Sec. 212.6(e) of this chapter. An application 
for a replacement Non-resident Alien Canadian Border Crossing Card must 
be filed on Form I-175. An application for a replacement Non-resident 
Mexican Border Crossing Card must be filed on Form I-190.


Sec. 264.6  Application for an initial or replacement Form I-94, 
Nonimmigrant Arrival-Departure Document, or Form I-95, Crewmen's 
Landing Permit.

    (a) General. An application for a new or replacement Form I-94 or 
replacement Form I-95 must be made on Form I-102. The application must 
be filed with the fee required in Sec. 103.7 of this chapter and the 
initial evidence required on the application form.
    (b) Filing. An application may be approved if filed by an alien in 
the United States who:
    (1) Applies to replace a lost or stolen Form I-94 or Form I-95 that 
had been issued to him or her;
    (2) Applies to replace a mutilated Form I-94 or Form I-95 issued to 
him or her; or
    (3) Was not issued a Form I-94 pursuant to Sec. 235.1(f)(1)(i), 
(iii), (iv), (v), or (vi) of this chapter, when last admitted as a 
nonimmigrant, has not since been issued a Form I-94, and now requires a 
Form I-94.
    (c) Processing. A pending application filed under paragraph (a) of 
this section shall be considered temporary evidence of registration. If 
the application is approved, the document shall be issued. There is no 
appeal from the denial of an application filed on Form I-102.
    19. In Sec. 264.5, a new paragraph (g) is added to read as follows:


Sec. 264.5  Application for a replacement Alien Registration Card.

* * * * *
    (g) Eligibility for a card while in deportation or exclusion 
proceedings. A person in exclusion proceedings shall be entitled to 
evidence of permanent resident status until ordered excluded. Such 
evidence shall be in the form of a temporary Form I-551 issued for a 
period sufficient to accomplish the exclusion proceedings. A person in 
deportation proceedings shall be entitled to evidence of permanent 
resident status until ordered deported or excluded. Issuance of an 
alien registration card to a person in exclusion or deportation 
proceedings, provided the person had status as a lawful permanent 
resident when the proceeding commenced, shall not affect those 
proceedings.

PART 292--REPRESENTATION AND APPEARANCES

    20. The authority citation for part 292 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1252b, 1362.

    21. In Sec. 292.4, paragraph (a), is amended by adding a new 
sentence at the end of the paragraph, to read as follows:


Sec. 292.4  Appearances.

    (a) * * * A notice of appearance entered in application or petition 
proceedings must be signed by the applicant or petitioner to authorize 
representation in order for the appearance to be recognized by the 
Service.
* * * * *
    Dated: November 16, 1993.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-392 Filed 1-10-94; 8:45 am]
BILLING CODE 4410-10-M