[Federal Register Volume 59, Number 195 (Tuesday, October 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24954]


[[Page Unknown]]

[Federal Register: October 11, 1994]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 40

[Public Notice 2092]

 

Regulations Pertaining to Both Nonimmigrants and Immigrants Under 
the Immigration and Nationality Act, as Amended; Failure To Comply with 
INA

AGENCY: Bureau of Consular Affairs, State.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule implements the provisions of section 506(a) of Pub. 
L. 103-317. This section prohibits the issuance of an immigrant visa to 
an alien for ninety days following an alien's departure from the U.S. 
unless the alien was maintaining a lawful nonimmigrant status at the 
time of departure, or unless the alien is the spouse or unmarried child 
of an individual who obtained temporary or permanent resident status 
under section 210 or 245A of the Immigration and Nationality Act (INA) 
or section 202 of the Immigration Reform and Control Act of 1986 
(IRCA). Section 506(b) extends the benefits of adjustment of status to 
permanent resident status to aliens who entered the U.S. without 
inspection and to certain other aliens.

DATES: This rule shall take effect on October 1, 1994. Interested 
persons are invited to submit written comments on or before November 
10, 1994.

ADDRESSES: Written comments with a reference to this rule to insure 
proper and timely handling may be submitted in duplicate to: Chief, 
Legislation and Regulation Division, Visa Office, Washington, DC 20522-
1013.

FOR FURTHER INFORMATION CONTACT: Stephen K. Fischel, Chief, Legislation 
and Regulations Division, 202-663-1204.

SUPPLEMENTARY INFORMATION:

Expansion of INA 245 Adjustment of Status

    On August 26, 1994 the President signed into law the appropriations 
bill for the Department of State, Pub. L. 103-317. Section 506(b) 
thereof amends INA 245 to permit qualified immigrants to acquire 
permanent residence through adjustment of status in the United States 
even though they entered the United States without inspection or 
violated their nonimmigrant status after entry. The specific amendment 
to INA 245 is a new subsection (i) which reads as follows:
    (i)(1) Notwithstanding the provisions of subsections (a) and (c) of 
this section, an alien physically present in the United States who--
    (A) entered the United States without inspection; or
    (B) is within one of the classes enumerated in subsection (c) of 
this section, may apply to the Attorney General for the adjustment of 
his or her status to that of an alien lawfully admitted for permanent 
residence. The Attorney General may accept such application only if the 
alien remits with such application a sum equalling five times the fee 
required for the processing of applications under this section as of 
the date of receipt of the application, but such sum shall not be 
required from a child under the age of seventeen, or an alien who is 
the spouse or unmarried child of an individual who obtained temporary 
or permanent resident status under section 210 or 245A of the 
Immigration and Nationality Act or section 202 of the Immigration 
Reform and Control Act of 1986 at any date, who--
    (i) as of May 5, 1988, was the unmarried child or spouse of the 
individual who obtained temporary or permanent resident status under 
section 210 or 245A of the Immigration and Nationality Act or section 
202 of the Immigration Reform and Control Act of 1986;
    (ii) entered the United States before May 5, 1988, resided in the 
United States on May 5, 1988, and is not a lawful permanent resident; 
and
    (iii) applied for benefits under section 301(a) of the Immigration 
Act of 1990. The sum specified herein shall be in addition to the fee 
normally required for the processing of an application under this 
section.
    (2) Upon receipt of such an application and the sum hereby 
required, the Attorney General may adjust the status of the alien to 
that of an alien lawfully admitted for permanent residence if--
    (A) the alien is eligible to receive an immigrant visa and is 
admissible to the United States for permanent residence; and
    (B) an immigrant visa is immediately available to the alien at the 
time the application is filed.
    We note that two section 245(i)'s of the INA have been enacted into 
law in the last two months. The other section 245(i) was enacted in the 
Crime Bill, Pub. L. 103-322, which created the ``S'' visa category and 
accompanying provisions enabling adjustment of status for ``s'' visa 
holders. The State Department and the INS view both section 245(i)'s as 
co-existing and will seek a legislative technical correction to rename 
one of the sections as 245(j).
    As the provisions of INA 245 are administered by the Immigration 
and Naturalization Service (INS), appropriate regulations and/or 
implementing instructions will be promulgated by that agency. It is 
anticipated that many aliens benefiting from this amendment will indeed 
take advantage of the adjustment procedures rather than seek immigrant 
visa issuance abroad.

Companion Provision

    This Act further amends the INA at section 212 by adding subsection 
``(o)'', which reads as follows:
    (o) An alien who has been physically present in the United States 
shall not be eligible to receive an immigrant visa within ninety days 
following departure therefrom unless--
    (1) the alien was maintaining a lawful nonimmigrant status at the 
time of such departure, or
    (2) the alien is the spouse or unmarried child of an individual who 
obtained temporary or permanent resident status under section 210 or 
245A of the Immigration and Nationality Act or section 202 of the 
Immigration Reform and Control Act of 1986 at any date, who
    (A) as of May 5, 1988, was the unmarried child or spouse of the 
individual who obtained temporary or permanent resident status under 
section 210 or 245A of the Immigration and Nationality Act or section 
202 of the Immigration Reform and Control Act of 1986;
    (B) entered the United States before May 5, 1988, resided in the 
United States on May 5, 1988, and is not a lawful permanent resident; 
and
    (C) applied for benefits under section 301 (a) of the Immigration 
Act of 1990.
    This amendment to INA 212 encourages aliens who can benefit from 
the broadened INA 245 adjustment of status provisions to take advantage 
of them by discouraging them from seeking immigrant visa issuance from 
a U.S. consular post abroad. To induce such aliens to seek INA 245 
adjustment of status, Congress imposed a requirement that an immigrant 
visa applicant be physically absent from the United States for ninety 
days since the last departure before an immigrant visa can be issued. 
Under this amendment, an alien who departs from the United States would 
be eligible to receive an immigrant visa on the 91st day following the 
departure. As can be seen in the statutory language quoted above, two 
classes of aliens are exempted from this provision. The first class 
consists of aliens maintaining lawful nonimmigrant status at the time 
of departure. The second class consists of the spouses and children of 
certain aliens who benefited from the special agricultural worker 
program, the legalization program, and the Cuban-Haitian adjustment 
provisions of IRCA, and who sought benefits under the family unity 
provisions of the Immigration Act of 1990.

Interim Rule

    This regulation is being promulgated to implement the INA 212(o) 
prohibitions of issuance on immigrant visas to aliens who have not 
complied with the ninety day physical absence requirement, unless the 
aliens fall within either one of the two specific excepted classes of 
aliens. Pursuant to this regulation, consular officers shall refuse to 
issue immigrant visas to aliens who have been physically present in the 
United States unless 90 days have passed since their departure or 
unless they are members of either of the two excepted classes of 
aliens.
    This rule is not expected to have a significant impact on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act. This rule imposes no reporting or record-
keeping action from the public requiring the approval of the Office of 
Management and Budget under the Paperwork Reduction Act requirements. 
This rule has been reviewed as required by E.O. 12778 and certified to 
be in compliance therewith. This rule is exempted from E.O. 12866 but 
has been reviewed to ensure consistency therewith and vetted with INS 
through OMB to ensure interagency coordination.

List of Subjects in 22 CFR Part 40

    Immigrants, Ineligibilities, Passports and Visas

    In view of the legislative mandate of Public Law 103-317, Part 40 
to Title 22 is amended as follows:

PART 40--[Amended]

    1. The authority citation for Part 40 is revised to read as 
follows:

    Authority: 8 U.S.C. 1104; sec. 506(a), Pub. L. 103-317, 108 
Stat. 1724.

    2. The heading for Subpart K is revised to read as follows:

Subpart K--Failure To Comply with INA

    3. Subpart K is amended by adding a Sec. 40.104 to read as follows:


Sec. 40.104  Certain Immigrant Visa Applicants.

    An alien who has been physically present in the United States shall 
not be eligible to receive an immigrant visa within ninety days 
following departure therefrom unless:
    (a) the alien was maintaining a lawful nonimmigrant status at the 
time of such departure, or
    (b) the alien is the spouse or unmarried child of an individual who 
obtained temporary or permanent resident status under INA 210 or 245A 
or section 202 of the Immigration Reform and Control Act of 1986 at any 
date, who:
    (1) as of May 5, 1988, was the unmarried child or spouse of the 
individual who obtained temporary or permanent resident status under 
INA 210 or 245A or section 202 of the Immigration Reform and Control 
Act of 1986;
    (2) entered the United States before May 5, 1988, resided in the 
United States on May 5, 1988, and is not a lawful permanent resident; 
and
    (3) applied for benefits under section 301(a) of the Immigration 
Act of 1990.

    Dated: October 4, 1994.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 94-24954 Filed 10-7-94; 8:45 am]
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