[Federal Register Volume 59, Number 194 (Friday, October 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25025]


[[Page Unknown]]

[Federal Register: October 7, 1994]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 212, 217, and 245

[INS No. 1676-94]
RIN 1115-AD83

 

Adjustment of Status to That of Person Admitted for Permanent 
Residence; Temporary Removal of Certain Restrictions of Eligibility

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule will amend the Immigration and 
Naturalization Service (Service) regulations to allow certain persons 
in the United States to adjust status to that of a lawful permanent 
resident before October 1, 1997. These persons, although immediately 
eligible for immigrant visa issuance abroad, had been barred from 
adjustment of status in the United States because they had committed 
certain administrative violations of United States immigration law. 
This rule allows prospective lawful permanent residents to avoid the 
difficulties and expense of travel to a United States consulate or 
embassy abroad. It continues, however, to penalize these violators of 
the immigration laws by requiring most applicants to pay an additional 
sum in excess of the standard adjustment of status filing fee. After 
adjusting status, these persons can lawfully live and work in the 
United States and may later become eligible to seek United States 
citizenship through naturalization.

DATES: This interim rule is effective October 1, 1994. Written comments 
must be received on or before December 6, 1994.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 
20536, Attn: Public Comment Clerk. To ensure proper handling, Please 
reference the INS number 1676-94 on your correspondence. Comments are 
available for public inspection at this location by calling (202) 514-
3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT:
Rita A. Arthur, Senior Adjudications Officer, Adjudications Division, 
Immigration and Naturalization Service, 425 I Street NW., Room 3214, 
Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

    The Immigration and Nationality Act (the Act) allows a person who 
is neither a citizen nor a national of the United States to live and 
work in this country for an unlimited period of time if he or she has 
been granted lawful permanent resident status. It also provides for a 
grant of lawful permanent resident status on a conditional basis for an 
initial two-year period, if the residency is based on a recent marriage 
or on alien entrepreneur status, and allows for the removal of the 
conditions upon fulfillment of certain requirements.
    The Act generally requires a qualified intending immigrant to 
obtain an immigrant visa abroad before seeking admission to the United 
States for lawful permanent residence. It also allows certain persons 
who have not obtained an immigrant visa abroad to adjust status to that 
of a lawful permanent resident after arrival in the United States. As 
set forth in the Act, most persons seeking adjustment of status must 
show that they could qualify for immigrant visa issuance abroad and 
must meet certain additional requirements.
    An immigrant visa may be issued only at a United States consulate 
or embassy abroad. Each prospective immigrant is required to show that 
he or she is eligible for immigrant classification and has an 
immediately available immigrant visa number through a qualifying family 
or employment relationship, or other means. The applicant must also 
establish that he or she is not included in any of the classes of 
persons who cannot, by law, be admitted to the United States, or that 
any basis for inadmissibility has been waived. After the immigrant visa 
has been issued, the person may lawfully travel to the United States. A 
qualified immigrant visa holder becomes a lawful permanent resident 
upon admission to the United States.
    An adjustment of status applicant must be physically present in the 
United States at the time of application. A person applying under 
section 245 of the Act, the most frequently used adjustment of status 
provision, must meet the basic requirements for immigrant visa 
issuance. Like immigrant visa applicants, the adjustment applicant must 
prove that he or she is eligible for immigrant classification and has 
an immediately available immigrant visa number through a qualifying 
family or employment relationship, or other means. The adjustment 
applicant must also show that he or she is not included in any of the 
classes of persons who, by law, cannot be admitted to the United 
States, or that any basis for inadmissibility has been waived. Section 
245(a) of the Act further restricts eligibility for adjustment of 
status by prohibiting adjustment unless the applicant entered the 
United States after having been inspected and admitted or paroled by an 
immigrant officer. Section 245(c) of the Act also bars the adjustment 
of most applicants who have been employed in the United States without 
authorization; who have not complied with the terms of temporary 
nonimmigrant status; or who entered in transit without visa status, 
under a visa waiver program, or as crewmen. A qualified adjustment 
applicant becomes a lawful permanent resident upon approval of the 
adjustment of status application.
    The requirements of sections 245(a) and 245(c) of the Act were 
established to discourage intending immigrants from moving to the 
United States before becoming fully eligible for permanent residence 
and bypassing the orderly immigrant visa issuance process abroad. These 
requirements have caused many persons who are in the United States to 
be unable to adjust status in this country.
    Intending immigrants who could not meet the adjustment requirements 
have been obliged to leave the country and apply for an immigrant visa 
at a United States consulate or embassy abroad. They then were 
immediately eligible for admission as lawful permanent residents upon 
returning to the United States. By virtue of the requirements of 
sections 245(a) and 245(c) of the Act, these persons were putatively 
required to leave the United States and United States consuls abroad 
have been burdened with immigrant visa issuance that would not 
otherwise have been necessary.

Public Law 103-317

    Section 506(b) of the Department of Commerce, Justice, State, the 
Judiciary and Related Agencies Appropriations Act, 1995, Pub. L. 103-
317, was enacted August 26, 1994. It temporarily lifts many of the 
restrictions on adjustment of status under section 245 of the Act on 
applications filed on or after October 1, 1994, although it does not 
affect persons adjusting under other sections of law. This law adds a 
new section 245(i) to the Act, which allows a person who is physically 
present in the United States and would otherwise have been eligible for 
immigrant visa issuance abroad, to adjust status to that of a lawful 
permanent resident under section 245 of the Act. Applicants may be 
subject to a financial penalty, since the law requires most persons 
seeking adjustment of status under the new law to pay an additional sum 
in excess of the standard adjustment of status filing fee. The 
provisions of the new section 245(i) of the Act cease to have effect on 
October 1, 1997.

Persons Who Remain Ineligible To Adjust Status

    Section 245(i) of the Act does not waive all requirements for 
adjustment of status under section 245 of the Act. An applicant must be 
eligible for immigrant classification and have an immediately available 
immigrant visa number through a qualifying family or employment 
relationship, or other means. The person must also show that he or she 
is not included in any of the classes of persons listed in section 212 
of the Act who cannot be admitted to the United States, or must show 
that any basis for excludability has been waived.
    Section 245(i) of the Act also does not waive several other grounds 
of ineligibility for adjustment of status under section 245 of the Act. 
An applicant seeking adjustment as an immediate relative of a United 
States citizen or as a preference alien, but who is not the beneficiary 
of a valid unexpired visa petition, remains ineligible for adjustment. 
A person who is currently a lawful permanent resident also continues to 
be ineligible for adjustment. An applicant who was admitted to the 
United States as a K-1 fiance(e) but did not marry the United States 
citizen who filed the petition, or who was admitted as the K-2 child of 
a fiance(e) parent who did not marry the United States citizen who 
filed the petition, is also barred from adjusting status under section 
245 of the Act. A person who is seeking adjustment based on a marriage 
entered into while the applicant was under deportation, exclusion, or 
related judicial proceedings may not adjust status, unless the person 
provides clear and convincing evidence of a bona fide marriage or has 
resided outside the United States for two or more years after the 
marriage.

Payment of Additional Sum

    This temporary adjustment provision continues to encourage 
intending immigrants who are abroad to comply with the immigrant visa 
issuance requirements, by making adjustment of status under the new 
provision much more expensive than immigrant visa issuance abroad. Most 
applicants for the new benefit will be required to pay the standard 
adjustment of status filing fee, plus an additional sum of five times 
the standard filing fee. Thus, persons currently applying for 
adjustment of status under the provisions of the new section 245(i) of 
the Act must pay the standard filing fee of $130.00, plus an additional 
sum of $650.00, for a total of $780.00. Any future modifications of the 
standard adjustment of status filing fee will change the amount of the 
additional sum, as well as the total cost.
    Persons who can meet all the requirements for adjustment of status 
under sections 245(a) and 245(c) of the Act will continue to pay only 
the standard filing fee (currently $130.00 or $100.00 if less than 14 
years of age). Section 245(i) of the Act also exempts certain persons 
applying under the new provision from payment of the additional sum. An 
unmarried child who is less than 17 years of age when he or she applies 
for adjustment of status will be required to pay only the standard 
filing fee (currently $130.00, or $100.00 if less than 14 years of 
age). The spouse of a legalized alien or the unmarried child under 21 
years of age of a legalized alien will also be required to pay only the 
standard filing fee (currently $130.00, or $100.00 if less than 14 
years of age), if the spouse or child qualifies for and has applied for 
voluntary departure under the family unity program established by 
section 301(a) of the Immigration Act of 1990.
    This additional sum is a penalty dictated by section 245(i) of the 
Act; therefore, payment of the additional sum will not be waived, 
except as directed in section 245(i) of the Act. Also, fee waivers may 
be granted under 8 CFR 103.7(c) only if the applicant substantiates his 
or her inability to pay the prescribed fee. Since a person applying for 
adjustment of status under section 245 of the Act is required to show 
financial resources or income establishing that he or she is not likely 
to become a public charge in the United States, a person who can 
establish a basis for waiving payment of the additional sum would be 
unlikely to be eligible for adjustment of status under section 245 of 
the Act. The few adjustment provisions that waive the public charge 
exclusion ground for a person seeking adjustment of status under 
section 245 of the Act also provide other waivers that eliminate any 
need for the applicant to seek the benefits of section 245(i) of the 
Act.

Application

    Each person applying for adjustment of status under section 245 of 
the Act, including a child, must complete Form I-485. Each applicant 
must also compile the initial evidence required by that form's 
instructions. Supplement A to Form I-485 (Supplement A) may then be 
completed to determine whether the applicant must file under section 
245(i) of the Act and whether the additional sum must be paid. This 
supplementary form asks several questions and provides instructions 
that allow the applicant to decide whether he or she must submit 
Supplement A and whether an additional sum must be paid.
    Each person, including a child, whose eligibility for adjustment of 
status is based on the provisions of section 245(i) of the Act must 
file Supplement A. The Form I-485 with fee and the Supplement A with 
any required additional sum must be filed with the office having 
jurisdiction over the applicant's place of residence.

Beginning of Application Period

    Section 506(c) of Pub. L. 103-317 states that ``(t)he provisions of 
these amendments to the Immigration and Nationality Act shall take 
effect on October 1, 1994.'' These amendments to the Act are not 
retroactive and cannot be applied to applications for adjustment of 
status filed before that date. They also cannot be applied to a motion 
to reopen or reconsider an adjustment of status application if the 
underlying adjustment application was filed before October 1, 1994. An 
intending immigrant is not, however, precluded from obtaining the 
benefits of the new law merely because he or she previously sought to 
adjust status. If the person meets the requirements for adjustment of 
status under the provisions of the new section 245(i) of the Act, he or 
she may file a new application for adjustment of status with fee, 
accompanied by Supplement A and any required additional sum. The 
applicant must show that he or she has an immigrant visa number 
immediately available and meets all other applicable requirements of 
section 245 of the Act on the date the new application is filed.

End of Application Period

    Section 506(c) of Pub. L. 103-317 states that ``(t)he provisions of 
these amendments to the immigration and Nationality Act shall * * * 
cease to have effect on October 1, 1997.'' Applications for adjustment 
of status under section 245(i) of the Act cannot be granted on or after 
that date. Prospective adjustment of status applicants who are seeking 
the benefits of section 245(i) of the Act must file their applications 
sufficiently in advance of October 1, 1997, to ensure that they can be 
completed before that date. Application processing times vary by 
location, and persons who will be seeking adjustment of status under 
the provisions of section 245(i) of the Act during 1997 are encouraged 
to file as early in the year as possible. Persons who must file after 
June 1997 should contact the office having jurisdiction over their 
place of residence for further instructions.

Immediate Availability of Immigrant Visa Number

    All applicants for adjustment of status under section 245 of the 
Act must have an immediately available immigrant visa number. 
``Immediately available'' for the purpose of accepting and processing 
the Form I-485 application filed by a preference alien is defined in 8 
CFR 245.1(f) as being not later than the date shown in the current 
Department of State Bureau of Consular Affairs Visa Bulletin. The 
Department of State, however, defines ``immediately available'' as 
being earlier than the date shown in the current Visa Bulletin. This 
rule amends 8 CFR 245.1(f) to bring the adjustment of status provision 
into accordance with the Department of State's definition. It also 
changes the name of the Visa Bulletin to reflect its current title.

New Restriction on Immigrant Visa Issuance Abroad

    Public Law 103-317 also places a new restriction on the issuance of 
immigrant visas abroad before October 1, 1997, which has no effect on 
persons seeking adjustment of status in the United States. Section 
506(a) of Pub. L. 103-317 adds a new section 212(o) to the Act, which 
forbids immigrant visa issuance to certain prospective immigrants, 
including children, who have been physically present in the United 
States. Prospective immigrants, except certain spouses and children of 
legalized aliens, who were not maintaining lawful nonimmigrant status 
at the time of departure from the United States, will not be eligible 
for immigrant visa issuance within 90 days of departure from the United 
States. This new restriction does not apply to the spouse of a 
legalized alien or the unmarried child under 21 years of age of a 
legalized alien, if the spouse or child qualifies for and has applied 
for voluntary departure under the family unity program established by 
section 301(a) of the Immigration Act of 1990. The new section 212(o) 
of the Act takes effect on October 1, 1994, and ceases to have effect 
on October 1, 1997. The Department of State, which has jurisdiction 
over immigrant visa issuance at United States consulates and embassies 
abroad, will promulgate regulations implementing this provision of Pub. 
L. 103-317.

Violent Crime Control and Law Enforcement Act of 1994

    The Violent Crime Control and Law Enforcement Act of 1994 (Crime 
bill), Pub. L. 103-322, was enacted on September 13, 1994. Section 
130003 of the Crime Bill, entitled ``Alien Witness Cooperation and 
Counterterrorism Information'' adds a new section 245(i) to the Act. 
This provision restricts the adjustment of status of certain persons 
admitted to the United States under a newly established ``S'' 
nonimmigrant classification. Congress clearly did not intend to repeal 
or supersede the provisions of the Department of Commerce, Justice, 
State, the Judiciary and Related Agencies Appropriations Act, 1995, 
Pub. L. 103-317, by adding another section 245(i) to the Act. The 
Service regards the establishment of the second section 245(i) of the 
Act as a numbering error and will recommend that Congress enact a 
technical amendment to redesignate the Crime Bill's provision as 
section 245(j) of the Act.
    The Service's implementation of this rule as an interim rule, with 
provision for post-promulgation public comment, is based on the ``good 
cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B), (d)(3); see Animal 
Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991). The reasons 
and necessity for immediate implementation of this interim rule are as 
follows:
    Early implementation will allow persons in the United States to 
apply for adjustment of status to that of a lawful permanent resident 
as of the beginning of the statutorily established application period 
on October 1, 1994. These persons had been ineligible to adjust status 
and had been obliged to incur the expense and inconvenience of applying 
for an immigrant visa at a United States embassy or consulate abroad.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and by approving it certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities because of the following factors. By temporarily 
removing certain restrictions on eligibility for adjustment of status, 
the rule will eliminate inconvenience to a number of individuals 
currently in the United States who otherwise would have incurred 
significant monetary expenses by traveling abroad to apply for an 
immigrant visa at a United States consulate or embassy abroad. It will 
have no effect on small entities.

Executive Order 12866

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

Executive Order 12612

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

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service 
certifies that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that this regulation would 
enhance family well-being by allowing certain family members, who were 
formerly precluded from adjusting status, to become lawful permanent 
residents of the United States without first having obtained immigrant 
visas abroad.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Fees, Forms, Freedom of information, Privacy, 
Reporting and recordkeeping requirements, Surety bonds.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visa, Reporting and recordkeeping requirements.

8 CFR Part 217

    Administrative practice and procedures, Aliens, Nonimmigrants, 
Passports and visas.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, 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. 552, 552a; 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 Sec. 103.7, paragraph (b)(1) is amended by revising the entry 
for Form I-485 to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-485. For filing application for permanent resident status 
or creation of a record of lawful permanent residence--$130 for an 
applicant 14 years of age or older; $100 for an applicant under the 
age of 14 years.
    Supplment A to Form I-485. Supplement to Form I-485 for persons 
seeking to adjust status under the provisions of section 245(i) of 
the Act--$650.00, except that payment of this additional sum is not 
required when the applicant is an unmarried child who is less than 
17 years of age, or when the applicant is the spouse or the 
unmarried child less than 21 years of age of a legalized alien and 
is qualified for and has applied for voluntary departure under the 
family unity program.
* * * * *
    3. In Sec. 103.7, paragraph (c)(1) is amended by adding a sentence 
at the end of the paragraph to read as follows:


Sec. 103.7  Fees.

* * * * *
    (c) * * *
    (1) * * * The payment of the additional sum prescribed by section 
245(i) of the Act when applying for adjustment of status under section 
245 of the Act may not be waived except as directed in section 245(i) 
of the Act.
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    4. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; and 8 CFR part 2.

    5. In Sec. 212.1, paragraph (e)(4)(i) is revised to read as 
follows:


Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (e) * * *
    (4) * * *
    (i) Adjustment of status to that of a temporary resident or, except 
under the provisions of section 245(i) of the Act, to that of a lawful 
permanent resident;
* * * * *

PART 217--VISA WAIVER PILOT PROGRAM

    6. The authority for part 217 continues to read as follows:

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


Sec. 217.3  [Amended]

    7. In Sec. 217.3, paragraph (a) is amended in the third sentence by 
adding the phrase ``or under the provisions of section 245(i) of the 
Act'' immediately after the phrase ``other than as an immediate 
relative as defined in section 201(b) of the Act''.

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

    8. The authority citation for part 245 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255, and 8 CFR part 2.

    9. In Sec. 245.1, the first sentence of paragraph (a) is revised to 
read as follows:


Sec. 245.1  Eligibility.

    (a) General. Any alien who is physically present in the United 
States, except for an alien who is ineligible to apply for adjustment 
of status under paragraph (b) or (c) of this section, may apply for 
adjustment of status to that of a lawful permanent resident of the 
United States if the applicant is eligible to receive an immigrant visa 
and an immigrant visa is immediately available at the time of filing of 
the application.* * *
* * * * *
    10. In Sec. 245.1, paragraph (b) is amended by revising the heading 
and introductory text, to read as follows:


Sec. 245.1  Eligibility.

* * * * *
    (b) Restricted aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a lawful 
permanent resident alien under section 245 of the Act, unless the alien 
establishes eligibility under the provisions of section 245(i) of the 
Act and Sec. 245.10, is not included in the categories of aliens 
prohibited from applying for adjustment of status listed in 
Sec. 245.1(c), is eligible to receive an immigrant visa, and has an 
immigrant visa immediately available at the time of filing the 
application for adjustment of status:* * *
* * * * *
    11. In Sec. 245.1, paragraphs (c) through (g) are redesignated as 
paragraphs (d) through (h), respectively, and a new paragraph (c) 
introductory text is added to read as follows:


Sec. 245.1  Eligibility.

* * * * *
    (c) Ineligible aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a lawful 
permanent resident alien under section 245 of the Act:
* * * * *
    12. In Sec. 245.1, paragraphs (b)(7) through (b)(10) are 
redesignated as paragraphs (c)(1) through (c)(4) respectively; and 
paragraphs (b)(12) through (b)(14) are redesignated as paragraphs 
(c)(5) through (c)(7) respectively.
    13. In Sec. 245.1, paragraph (b)(11) is redesignated as paragraph 
(b)(7) and paragraph (b)(15) is redesignated as paragraph (b)(8).
    14. In Sec. 245.1, the second sentence of the newly redesignated 
paragraph (g) is amended by revising the phrase ``Department of State 
Visa Office Bulletin on Availability of Immigrant Visa Numbers'' to 
read: ``Department of State Bureau of Consular Affairs Visa Bulletin''.
    15. In Sec. 245.1, the third sentence of the newly redesignated 
paragraph (g) is amended by revising the phrase ``not later than'' to 
read: ``earlier than''.
    16. In Sec. 245.2, paragraph (a)(3)(iii) is redesignated as 
paragraph (a)(3)(iv), and a new paragraph (a)(3)(iii) is added to read 
as follows::


Sec. 245.2  Application.

* * * * *
    (a) * * *
    (3) * * *
    (iii) Under section 245(i). An alien who seeks adjustment of status 
under the provisions of section 245(i) of the Act must file Form I-485, 
with the required fee. The alien must also file Supplement A to Form I-
485, with any required additional sum.
* * * * *
    17. In Sec. 245.2 paragraph (a)(5)(ii) is amended in the last 
sentence by revising the reference to ``Sec. 245.1(f)'' to read: 
``Sec. 245.1(g)''.
    18. A new Sec. 245.10 is added to read as follows:


Sec. 245.10  Adjustment of status upon payment of additional sum under 
Public Law 103-317.

    (a) Eligibility. Any alien who is included in the categories of 
restricted aliens under Sec. 245.1(b) may apply for adjustment of 
status under section 245 of the Act if the alien:
    (1) Is physically present in the United States;
    (2) Is eligible for immigrant classification and has an immigrant 
visa number immediately available at the time of filing for adjustment 
of status;
    (3) Is not excludable from the United States under any provision of 
section 212 of the Act, or all grounds for excludability have been 
waived;
    (4) Properly files Form I-485, Application to Register Permanent 
Residence or Adjust Status on or after October 1, 1994, with the fee 
required for that application;
    (5) Properly files Supplement A to Form I-485 on or after October 
1, 1994;
    (6) Pay an additional sum of five times the fee required for filing 
Form I-485, unless payment of the additional sum is waived under 
section 245(i) of the Act; and
    (7) Will adjust status under section 245 of the Act to that of a 
lawful permanent resident of the United States on or after October 1, 
1994, and before October 1, 1997.
    (b) Payment of additional sum. An applicant filing under the 
provisions of section 245(i) of the Act must pay the standard 
adjustment of status filing fee, as shown on Form I-485 and contained 
in Sec. 103.7(b)(1) of this chapter. The applicant must also pay an 
additional sum of five times the standard filing fee, unless at the 
time the application for adjustment of status is filed, the alien is:
    (1) Unmarried and less than 17 years of age;
    (2) The spouse of a legalized alien, qualifies for and has properly 
filed Form I-817, Application for Voluntary Departure under the Family 
Unity Program, and submits a copy of his or her receipt or approval 
notice for filing Form I-817.
    (c) Application period. An application for the adjustment of status 
benefits of section 245(i) of the Act may not be filed before October 
1, 1994. An application for the adjustment of status benefits of 
section 245(i) of the Act cannot be granted on or after October 1, 
1997. A prospective applicant who is seeking the benefits of section 
245(i) of the Act must file the application sufficiently in advance of 
October 1, 1997, to ensure that it may be completed before that date.
    (d) Adjustment application filed on or after October 1, 1994, 
without Supplement A to Form I-485. An adjustment of status applicant 
will be allowed the opportunity to amend an adjustment of status 
application filed on or after October 1, 1994, to request consideration 
under the provisions of section 245(i) of the Act, if it appears that 
the alien is not otherwise ineligible for adjustment of status. The 
applicant will be notified in writing of the intent to deny the 
adjustment of status application unless Supplement A to Form I-485 and 
any required additional sum is filed within thirty days of the date of 
the notice.
    (e) Applications for Adjustment of Status filed before October 1, 
1994. The provisions of section 245(i) of the Act shall not apply to an 
application for adjustment of status that was filed before October 1, 
1994. The provisions of section 245(i) of the Act shall also not apply 
to a motion to reopen or reconsider an application for adjustment of 
status if the application for adjustment of status was filed before 
October 1, 1994. If otherwise eligible for adjustment of status under 
the provisions of section 245(i) of the Act, the alien may file a new 
application for adjustment of status, accompanied by the required 
filing fee, Supplement A to Form I-485, and any additional sum required 
by section 245(i) of the Act.

    Dated: September 30, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.

    Note: This Supplement will not appear in the Code of Federal 
Regulations

    Supplement to the preamble--Supplement A to Form I-485.

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[FR Doc. 94-25025 Filed 10-5-94; 11:42 am]
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