[Federal Register Volume 60, Number 165 (Friday, August 25, 1995)]
[Rules and Regulations]
[Pages 44259-44271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21113]



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[[Page 44260]]


DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 208, 212, 214, 236, 242, 245, 248, 274a, and 299

[INS No. 1683-94; A.G. Order No. 1986-95]
RIN 1115-AD86


Entry of Aliens Needed as Witnesses and Informants; Nonimmigrant 
S Classification

agency: Immigration and Naturalization Service, Justice.

action: Interim rule with request for comments.

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summary: This regulation establishes procedures by which federal and 
state law enforcement authorities (``LEAs'') may secure from the 
Immigration and Naturalization Service (``the Service'') and the 
Department of State (``State'') nonimmigrant classification for alien 
witnesses and informants who may eventually be granted lawful permanent 
resident (``LPR'') status because of their cooperation. The regulation 
is necessary to provide uniform standards and responsibilities for the 
admission, stay, monitoring, adjustment and, if necessary, departure of 
such alien witnesses and informants and to enable the government to 
comply with record-keeping and annual reporting requirements imposed by 
Congress.

dates: This interim rule is effective August 25, 1995.

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. To ensure proper handling, please reference the INS number 1683-
94 on your correspondence. Comments are available for public inspection 
at the above address by calling (202) 514-3048 to arrange for an 
appointment.

for further information contact: Katharine Auchincloss-Lorr, 
Adjudications Officer, Adjudications Division, Immigration and 
Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 
20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

    On September 13, 1994, the President signed the ``Violent Crime 
Control and Law Enforcement Act of 1994.'' Section 130003 of this 
legislation, Pub. L. 103-322, creates a new nonimmigrant classification 
providing for the admission of alien witnesses and informants who may 
obtain LPR status upon completion of specified conditions. Section 
130003 specifically establishes section 101(a)(15)(S) of the 
Immigration and Nationality Act (``the Act'') and authorizes for each 
relevant fiscal year: (1) One hundred (100) nonimmigrant visas for 
aliens determined by the Attorney General to possess critical reliable 
information on a criminal organization or enterprise, willing to 
provide that information to federal and/or state authorities, and whose 
presence, upon the Attorney General's determination, is essential to 
the success of an authorized criminal investigation or the prosecution 
of an individual involved in the criminal organization or enterprise, 
and; (2) twenty-five (25) nonimmigrant visas for aliens whom the 
Secretary of State and the Attorney General jointly determine possess 
critical reliable information about a terrorist organization, 
enterprise, or operation, are willing to provide or have provided that 
information to federal authorities, will be or have been placed in 
danger as a result, and are eligible for a reward under 22 U.S.C. 
2708(a). Although these new nonimmigrant classifications would be 
designated to be S-1 and S-2, respectively, to correspond with the 
statutory designations, the prior utilization of those codes requires 
that these designations be, respectively, S-5 and S-6. The spouse, 
married and unmarried sons and daughters, and parents of witnesses and 
informants in the new nonimmigrant classification may also be granted 
nonimmigrant status (designated S-7), if the Attorney General (or, 
where required, the Secretary of State and the Attorney General 
jointly) considers it appropriate.
    Prior to the creation of section 101(a)(15)(S) of the Act, there 
was no standard procedure for allowing aliens needed to provide 
testimony or information into the United States. With the creation of 
the S nonimmigrant classification, Congress has authorized the 
admission of a limited number of alien witnesses and informants under 
specified conditions and provides for adjustment to LPR status after 
the satisfaction of certain conditions.

Regulatory Structure

    Briefly stated, the enactment of the provisions creating the S 
nonimmigrant classification enables the Service to utilize the 
nonimmigrant framework to establish a process so that requesting LEAs 
can provide immigration benefits to certain key alien witnesses and 
informants. Included in the statutory scheme are reporting requirements 
by the alien to the Attorney General and the Attorney General to 
Congress.

a. Nonimmigrant Classification

    By creating a new nonimmigrant category exclusively for alien 
witnesses and informants, Congress has authorized a temporary admission 
for a specific purpose, and subjected such aliens to the degree of 
scrutiny prior to admission that is imposed on all nonimmigrant 
classifications. The Act distributes responsibility for implementing 
its nonimmigrant provisions between the Attorney General and the 
Department of State; generally, nonimmigrants, including those in S 
classification, are subject to the jurisdiction and authority of both 
agencies. In formulating this regulation, the Service has worked 
closely with the Department of State, which is issuing a complementary 
regulation at this time.
    With the creation of the S nonimmigrant category, alien witnesses 
and informants who intend to reside permanently in the United States 
may enter only in S classification. Alien witnesses and informants 
intending a permanent stay will no longer be authorized entry in B 
nonimmigrant classification. That classification remains available for 
eligible witnesses and informants seeking temporary admission, who have 
a residence in a foreign country which they have no intention of 
abandoning, who will not be employed by a United States entity or seek 
employment while in the United States, and who will not be seeking any 
of the benefits that flow from S classification.
    Similarly, current procedures affecting alien witnesses and 
informants seeking to be allowed temporarily into the United States 
pursuant to parole authorization are unchanged by this regulation, 
except for a new provision defined in 8 CFR 212.14 specifically 
providing procedures for an LEA who subsequently will apply for S 
classification on behalf of a witness or informant.
    An essential component of the admission process for nonimmigrants 
who are excludable is the waiver authority accorded the Attorney 
General under section 212(d) of the Act. In this legislation, Congress 
created a new provision, section 212(d)(1), enabling the Attorney 
General to waive all grounds of excludability (except Nazi involvement) 
for S nonimmigrants, if it is ``in the national interest to do so.'' 
Section 212(d)(3) waivers will remain available to witnesses and 
informants who are eligible for B-1 classification, pursuant to normal 
procedures.

[[Page 44261]]

    The statute preserves the Attorney General's right to institute 
deportation proceedings for conduct committed after the alien's 
admission in or change to S classification, or for conduct or a 
condition not disclosed to the Attorney General prior to the alien's 
admission in or change to S classification.

b. Controls Imposed by Classification

    As a condition for admission and maintenance of status in the 
United States, an S nonimmigrant is statutorily required to abide by 
any conditions, limitations, or restrictions imposed by the Attorney 
General; to file quarterly reports detailing his or her whereabouts and 
activities ``as the Attorney General may require,'' and to execute a 
form waiving the right to contest any action for deportation instituted 
before the nonimmigrant obtains lawful permanent resident status (other 
than on the basis of an application for withholding of deportation). 
The statute renders the alien deportable for conduct committed after 
admission or for conduct or a condition that was not disclosed to the 
Attorney General prior to admission. Further, in order to maintain 
status, the S nonimmigrant may not be convicted of any criminal offense 
punishable by a term of imprisonment of 1 year or more after the date 
of S classification; change to another nonimmigrant classification; or 
be authorized admission for more than 3 years.
    The S nonimmigrant may adjust status to that of an LPR exclusively 
by means of the new statutory provisions creating the nonimmigrant 
classification. These procedures are found in this regulation at 8 CFR 
245.11. Finally, the alien may be deported for conviction of a crime of 
moral turpitude committed within 10 years after being granted LPR 
status under those new provisions. New provisions for the deportation 
of alien witnesses and informants have been provided at 8 CFR 242.26. 
No alien may be admitted to the United States in S classification more 
than 5 years after September 13, 1994, the date of enactment of Pub. L. 
103-322.
    The numeric limit in the S visa provision indicates a Congressional 
determination that the visa benefit be accorded only in extraordinary 
circumstances. The legislation is modeled in part after a provision of 
the Central Intelligence Agency Act of 1949 (50 U.S.C. 403h) 
authorizing LPR status for no more than 100 aliens per year when the 
Director of Central Intelligence, the Attorney General, and the 
Commissioner of the Immigration and Naturalization Service 
(``Commissioner'') determine that the admission of a particular alien 
is in the national security interest. The S nonimmigrant provision's 
specific numeric limit authorizing issuance of only 125 visas annually 
does not include family members. Finally, the Attorney General is 
required to report annually to Congress on specific aspects of the S 
classification.

c. Classification Process

    To facilitate implementation of this legislation and ensure a 
thorough awareness of LEA needs, the Service has engaged in a process 
of consultation with the principal federal LEAs interested in and 
affected by this nonimmigrant classification. With the assistance of 
the Department of Justice (``DOJ''), the Criminal Division's Terrorism 
and Violent Crimes Section (``TVCS''), the Service solicited and 
received written comments on the procedural aspects of how the visa 
application, classification, and admission process will work in 
practice, and a range of related concerns, from two State Department 
components (the Interagency Counterterrorism Rewards Committee and the 
Visa Office) and the following DOJ components: the Federal Bureau of 
Investigation (``FBI''), the Drug Enforcement Administration (DEA), the 
Marshals Service, and the Criminal Division's Organized Crime and 
Racketeering Section (``OCRS'') and Office of Enforcement Operations 
(``OEO'').
    After considering the comments of the principal federal LEAs, the 
Service has devised a process for authorizing S nonimmigrant 
classification. This process provides federal and state LEAs access to 
informants and witnesses, and the benefits of S nonimmigrant 
classification, to the extent permitted by the statute while ensuring S 
nonimmigrants are appropriately controlled. The Service will develop 
procedures to protect the identity of the alien while ensuring 
maintenance of adequate control.
    The process provides for the use of a new Form I-854, Inter-Agency 
Alien Witness and Informant Record, to record the basis of the 
nonimmigrant classification, related and prerequisite commitments and 
responsibilities, and seat-of-government certification of the need for 
the requested alien. The procedures for use of this new Form will bring 
uniformity and consistency to the process for authorizing S 
nonimmigrant classification for eligible criminal aliens with 
information needed by LEAs and provide a basis for control and tracking 
of the alien. A fee for the processing of Form I-854 will be proposed 
under a separate rulemaking. There will be no initial fee for 
processing of Form I-854, although the fee will go into effect as soon 
as the Service has responded to comments and a final fee rule has been 
issued.
    Pursuant to Form I-854, S nonimmigrant classification is predicated 
on a relationship between a witness or informant and the LEA that 
requests classification. For purposes of this regulation, the term 
``LEAs'' refers to the entities authorized to request S nonimmigrant 
classification for an alien witness or informant in a given case, 
namely state and federal law enforcement authorities, which include the 
United States Attorneys' Offices and state and federal courts. Only a 
federal LEA may request S-6 nonimmigrant classification, although 
either a state or federal LEA may request S-5 nonimmigrant 
classification.
    Form I-854 request an LEA seeking S nonimmigrant classification for 
an alien witness or informant to articulate the reasons why the 
presence of the alien is needed and to assume responsibility for the 
alien's admission, stay, and departure. In addition to the seat-of-
government certification required for LEAs on Form I-854, where 
nonimmigrant classification is for purposes of providing testimony, the 
United States Attorney in whose district a case is being prosecuted 
must also certify the request on Form I-854.
    To provide the Service with information to evaluate the needs, 
accomplishments, failures, and effectiveness of the S visa process, the 
Service is requiring that all LEA requests related to S nonimmigrant 
classification be processed on Form I-854, including requests for 
change of nonimmigrant classification to the S category or adjustment 
to LPR status. An LEA seeking S nonimmigrant classification for an 
alien who is out of status or otherwise in the United States illegally 
may file Form I-854 as a means of initiating procedures with the 
Service, subsequent to the Criminal Division's certification, in an 
effort to have the alien admitted to the United States in lawful 
status.

d. Criminal Division Certifications

    A central concern of the comments offered by interested LEAs during 
the Service's drafting process was, given the limited number of 
available S nonimmigrant visas specified under the statute, how 
requests for this classification will be evaluated. The regulation 
provides that the Criminal Division of the Justice Department will 
establish appropriate procedures for receiving and reviewing Form I-854 
and determining which applications will be 

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forwarded to the Commissioner with a recommendation for approval. The 
Criminal Division will be responsible to the Attorney General for 
ensuring that the cases forwarded to the Service fall within the annual 
numerical limitation.
    No Form I-854 request for S nonimmigrant classification for an 
alien witness or informant may come to the Service without the Criminal 
Division's certification. Before being forwarded by the Criminal 
Division to the Service, an application for S-6 nonimmigrant 
classification certified by the Criminal Division will be forwarded by 
the Criminal Division to the Department of State for the appropriate 
certification.
e. Reporting Requirements

    To implement the statutory framework, the regulation imposes two 
categories of information and reporting requirements on the government. 
The first involves behavior by the alien that could lead to loss of 
nonimmigrant status or deportability. The Service must be informed 
immediately by the responsible LEA of any behavior that renders the 
alien deportable. This information includes certain criminal conduct, 
failure to report quarterly, or failure to comply with the authorized 
terms of the particular S nonimmigrant classification or the adjustment 
provisions. The requesting LEA is responsible for supervising, 
monitoring, and otherwise accounting for the admitted alien's 
compliance with the statutory and regulatory requirements, for 
quarterly reporting on ``whereabouts and activities'' and ``other 
conditions, limitations, or restrictions imposed.''
    Secondly, the statute requires an annual report to the Committee on 
the Judiciary of the House of Representatives and the Committee on the 
Judiciary of the Senate. The regulation provides that the Justice 
Department's Criminal Division, in cooperation with the Service, will 
prepare this report evaluating the program's effectiveness.

f. Period of Authorized Stay

    The statute explicitly provides that the period of admission on an 
alien in S nonimmigrant classification ``may not exceed 3 years'' and 
that such period ``may not be extended by the Attorney General.'' For 
this reason, the Attorney General has determined that the S 
nonimmigrant classification must be limited to situations where an 
alien is reasonably expected to provide the desired assistance within 
the authorized 3-year period. The Service, therefore, has amended 8 CFR 
214.1 accordingly and will require the alien to depart the United 
States after the 3-year period. The LEA will be responsible for 
ensuring departure. Parole may not be used to extend a period of stay 
or to authorize a reentry. However, an S nonimmigrant who departs prior 
to adjustment may subsequently be readmitted in the same classification 
consistent with the process set forth herein.

g. Change of Status

    The regulation at 8 CFR 214.2(t)(12) implements the prohibition in 
section 101(a)(15)(S) concerning change of status. Aliens cannot be 
admitted in S-5 nonimmigrant classification and change status to S-6 
nonimmigrant classification, nor can they change to any other 
nonimmigrant classification. Pursuant to new procedures set forth at 8 
CFR 248.3(h), aliens in nonimmigrant categories other than S may apply 
to and, if eligible, change their status to S nonimmigrant 
classification, unless specifically prohibited from so doing by section 
248 of the Act.

h. Deportation and Exclusion

    Aliens in S nonimmigrant classification will be required as a 
condition for admission and stay in lawful nonimmigrant status to 
certify Form I-854, waiving their entitlement to a deportation hearing 
pursuant to the statute. This rule amends the deportation regulations 
at 8 CFR part 242 to include aliens in S nonimmigrant classification. 
The exclusion regulations have similarly been amended at 8 CFR 236.10. 
Due to the limited nature of this nonimmigrant classification and its 
significance to the law enforcement community, deportation and other 
procedures that would effectively terminate an alien's S nonimmigrant 
classification will not be initiated without the concurrence of the 
Assistant Attorney General, Criminal Division.

i. Employment Authorization

    An employment authorization document (``EAD'') for S nonimmigrants 
will be issued through normal procedures. The regulation specifies 
that, pursuant to the terms of 8 CFR part 274a, S nonimmigrants are 
authorized to work in the United States and that the LEA may assist the 
alien in applying for employment authorization.

j. Criminal Conduct

    Section 212(d)(1) of the Act provides that the Service can 
institute deportation proceedings against an S nonimmigrant for conduct 
committed after the alien's admission into the United States or for 
conduct or a condition that was not disclosed to the Attorney General 
prior to the alien's classification as a nonimmigrant under section 
101(a)(15)(S) of the Act. Accordingly, the Service will take 
appropriate steps to remove such an alien.
    In addition, section 214(j)(4)(B) of the Act requires, as a 
condition for the admission, and continued lawful status, the S 
nonimmigrant ``may not be convicted of any criminal offense punishable 
by a term of imprisonment of 1 year or more after the date of such 
admission.''
    The revised parole provisions at 8 CFR 212.14 enable an alien to be 
paroled into the United States so that an LEA can secure a guilty plea 
and conviction. In such a case, upon the recommendation of an LEA and 
the approval of a certified request on Form I-854, the Service may 
terminate the parole authorized to such an alien, waive the 
nonimmigrant visa requirement as provided under section 212(d)(4) of 
the Act, exercise the discretionary waiver authority provided under 
section 212(d)(1) of the Act, and authorize the alien's admission into 
the United States in S nonimmigrant classification.
    The precise meaning of parole in an immigration context is quite 
different from the parole with which LEAs are normally familiar. Under 
the parole authority provided in section 212(d)(5) of the Act, the 
Attorney General has the discretion to permit an otherwise inadmissible 
alien to proceed into the United States temporarily and under specific 
safeguards. Parole is granted on a case-by-case basis and, if granted, 
does not constitute admission into the United States. The paroled alien 
does not make an entry as defined by section 101(a)(13) of the Act and, 
as a result, is subject to exclusion proceedings (not deportation 
proceedings) if the terms and conditions of the parole are violated. 
The due process rights of aliens subject to exclusion proceedings are 
more limited than those of aliens subject to deportation proceedings.
    Parole may be authorized only for emergent reasons or reasons 
deemed strictly in the public interest and is available only if the 
Service has custody of the alien. It should not be used as a means of 
circumventing a waiver of inadmissibility. In an immigration context, 
parole is considered, in itself, a form of constructive custody, and is 
available only to an alien ``applying for admission to the United 
States.'' A request for parole of an alien in exclusion proceedings and 
in Service custody must be made pursuant to the terms of 8 CFR 212.5 
or, in the case of an alien for which S classification is being sought, 
8 CFR 212.14. Due to the 

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requirement that the alien be ``applying for admission,'' parole is not 
available to aliens who have effected an entry. Aliens who have been 
``paroled'' (in the criminal sense) from prison or who are in prison, 
and who are deemed to be arriving aliens may not be granted parole 
unless the Service has custody.

k. Monitoring and Control

    The regulation and the certifications on Form I-854 require that, 
as a prerequisite to S nonimmigrant classification, the requesting LEA 
assume responsibility, during the period of the S nonimmigrant's 
presence in the United States, for the safety of the public and for 
keeping the Service appropriately informed of matters that might impact 
on the alien's immigration status. Once an alien achieves immigrant 
status through adjustment from S nonimmigrant classification to LPR 
status, the LEAs responsibility for monitoring and reporting will 
cease. In addition, if the Marshals Service assumes responsibility for 
the alien, LEA monitoring will be minimal. Further, an alien will 
become deportable upon the commission of conduct that violates either 
the regulatory requirements or the specified terms and limitations of 
the authorized status. In such a case, the LEA should immediately 
advise the Service, request that the Service proceed to remove the 
alien, and assist with, and verify, the alien's departure. Consistent 
with this monitoring responsibility, an LEA is responsible for ensuring 
departure, if necessary, and verifying departure in a manner acceptable 
to the Service, so that monitoring is formally concluded.

l. Adjustment

    Section 245(i) of the Act provides for the ``Exclusive Means of 
Adjustment'' of aliens admitted as S nonimmigrants. The Service has 
interpreted this to mean that S nonimmigrants may not adjust to 
permanent resident status pursuant to section 506(b) of the Departments 
of Commerce, Justice, and State, the Judiciary, and Related Agencies 
1995 Appropriations Act, Public Law 103-317, which allows most 
otherwise ineligible persons to adjust status upon payment of an 
additional sum. The provisions for ``Exclusive Means of Adjustment'' 
for S nonimmigrants provide clearly that these statutory terms and 
conditions are to be the exclusive means of adjustment for S 
nonimmigrants described in section 101(a)(15)(S) of the Act. Adjustment 
of status pursuant to terms other than those specified therein are not 
available to aliens in S classification.
    In the statute, Congress appears inadvertently to have created a 
new, second subsection 245(i) of the Act, which the Service interprets 
as an error. There is no indication that Congress intended to repeal or 
superseded the provisions of section 506(b) of Public Law 103-317, 
enacted one month earlier. The Service regards the establishment of the 
second subsection 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 subsection 245(j) of the Act.
    The regulations, at 8 CFR 212.14(a)(1)(vi) and 214.2(t)(4)(i), 
place certain restrictions on the promises LEAs can make to alien 
witnesses and informants for whom they seek parole or S nonimmigrant 
classification.

Changes to Current Regulations

    This interim rule implements section 130003 of Public Law 103-322, 
which establishes section 101(a)(15)(S) of the Act. It amends 8 CFR at 
parts 208, 212, 214, 236, 242, 245, 248, 274a, and 299 to provide 
uniform and consistent application, admission, reporting, control, 
deportation, and adjustment criteria for the entry, parole, and stay of 
alien witnesses and informants who intend to remain in the United 
States.
    Other than the changes to 8 CFR 214.2(t) previously discussed, the 
following specific changes to Title 8 of the Code of Federal 
Regulations are necessary to fully implement this regulation:
    8 CFR 208.2 and 208.16 are amended to enable asylum officers to 
determine whether an alien classified pursuant to section 101(a0(15)(S) 
of the Act is entitled to withholding of deportation.
    8 CFR 212.1(m) is added to require that aliens seeking admission in 
S nonimmigrant classification must be in possession of appropriate 
documents issued by an American consular officer.
    8 CFR 212.4(i) is added to enable the Attorney General to determine 
pursuant to section 101(a)(15)(S) of the Act whether to exercise the 
discretion to waive a ground of excludability, other than under section 
212(a)(3)(E) of the Act, if it is in the national interest to do so. 
The Service may remove an alien classified as a nonimmigrant under 
section 101(a)(15)(S) of the Act for conduct committed after the 
alien's admission to the United States or for conduct or a condition 
undisclosed to the Attorney General prior to the alien's admission in, 
or change to, S nonimmigrant classification.
    8 CFR 212.14 is added to specify the process by which LEAs may 
obtain parole status for alien witnesses and informants who intend to 
apply for S nonimmigrant classification.
    8 CFR 214.1(a)(2) is amended to add nonimmigrant classifications 
for S-5, S-6, and S-7.
    8 CFR 214.1(c)(3) is amended to add a reference to nonimmigrants 
defined in section 101(a)(15)(S) of the Act, so that such aliens are 
ineligible for an extension of stay beyond a total of 3 years.
    8 CFR 236.10 is added to provide exclusion procedures for aliens 
requesting admission in S nonimmigrant classification.
    8 CFR 242.26 is added to provide deportation procedures for aliens 
in S nonimmigrant classification who, as a condition of their admission 
and stay in lawful status in the United States, must waive their right 
to a deportation hearing and to contest, other than on the basis of an 
application for withholding of deportation, any action for deportation 
instituted before lawful permanent resident status is obtained.
    8 CFR 245.11 is added to set forth the exclusive terms of 
adjustment of status to that of lawful permanent resident for an S 
nonimmigrant.
    8 CFR 248.2(b) is amended by removing the reference to ``or (K)'' 
to read ``(K), or (S)'' in order to prohibit change of status from S 
classification.
    8 CFR 248.3(h) is added to set forth procedures for change of 
nonimmigrant classification to S classification pursuant to the request 
of a law enforcement agency.
    8 CFR 274a.12(c) is amended to authorize aliens in S classification 
to apply for employment authorization. Pursuant to 8 CFR 
274a.12(c)(21), an alien granted S nonimmigrant classification may 
apply for employment authorization by filing Form I-765, Application 
for Employment Authorization, with the applicable fee.
    8 CFR 299.1 is amended to add Form I-854 to the list of prescribed 
Service forms.
    8 CFR 299.5 is amended to add Form I-854 to the listing of Service 
forms approved by the Office of Management and Budget.

Good Cause Exception

    The Attorney General has determined that there is good cause for 
publishing this as an interim rule. Law enforcement authorities need 
access to the benefits provided in this legislation, which cannot be 
conferred without these regulatory provisions and the guidance, 
controls, and structure they afford. Since prior notice and public 
comment with respect to this interim rule are impracticable and 
contrary to the public 

[[Page 44264]]
interest under these circumstances, there is good cause under 5 U.S.C. 
553 to make it effective upon publication. We will consider comments 
received within 60 days of publication of this interim rule in the 
Federal Register.

Regulatory Flexibility Act

    The Attorney General 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 for purposes of that Act.

Executive Order 12866

    This rule is not considered by the Attorney General to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f) Regulatory Planning and Review, and accordingly, this rule has not 
been reviewed by the Office of Management and Budget.

Executive Order 12612

    The regulation herein will not have substantial direct effects on 
the states, on the relationship between the federal 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 significant 
federalism implications to warrant the preparation of a Federalism 
Assessment.

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. The clearance number for 
this collection is contained in 8 CFR 299.5, Display of Control 
Numbers.

List of Subjects

8 CFR Part 208

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

8 CFR Part 212

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

8 CFR Part 214

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

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 242

    Administrative practice and procedure, Aliens.
8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

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

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows.

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

    1. The authority citation for part 208 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C. 
9701; 8 CFR part 2.


Sec. 208.2  [Amended]

    2. In Sec. 208.2, paragraph (a) is amended in the third sentence by 
adding the phrase ``and aliens classified pursuant to section 
101(a)(15)(S) of the Act,'' immediately after the phrase 
``Sec. 253.1(f) of this chapter,''.


Sec. 208.16  [Amended]

    3. In Sec. 208.16, paragraph (a) is amended in the first sentence 
by adding the phase ``and aliens classified pursuant to section 
101(a)(15)(S) of the Act,'' immediately after the phrase 
``Sec. 253.1(f) of this chapter,''.

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; 8 CFR part 2.

    5. In Sec. 212.1, paragraph (m) is added to read as follows:


Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (m) Aliens in S classification. Notwithstanding any of the 
provisions of this part, an alien seeking admission pursuant to section 
101(a)(15)(S) of the Act must be in possession of appropriate documents 
issued by a United States consular officer classifying the alien under 
that section.
    6. In Sec. 212.4, the section heading is revised, and paragraph (i) 
is added to read as follows:


Sec. 212.4  Applications for the exercise of discretion under section 
212(d)(1) and 212(d)(3).

* * * * *
    (i) Alien witnesses and informants.--(1) Waivers under section 
212(d)(1) of the Act. Upon the application of a federal or state law 
enforcement authority (``LEA''), which shall include a state or federal 
court or United States Attorney's Office, pursuant to the filing of 
Form I-854, Inter-Agency Alien Witness and Informant Record, for 
nonimmigrant classification described in section 101(a)(15)(S) of the 
Act, the Commissioner shall determine whether a ground of exclusion 
exists with respect to the alien for whom classification is sought and, 
if so, whether it is in the national interest to exercise the 
discretion to waive the ground of excludability, other than section 
212(a)(3)(E) of the Act. The Commissioner may at any time revoke a 
waiver previously authorized under section 212(d)(1) of the Act. In the 
event the Commissioner decides to revoke a previously authorized waiver 
for an S nonimmigrant, the Assistant Attorney General, Criminal 
Division, and the relevant LEA shall be notified in writing to that 
effect. The Assistant Attorney General, Criminal Division, shall concur 
in or object to the decision. Unless the Assistant Attorney General, 
Criminal Division, objects within 7 days, he or she shall be deemed to 
have concurred in the decision. In the event of an objection by the 
Assistant Attorney General, Criminal Division, the matter will be 
expeditiously referred to the Deputy Attorney General for a final 
resolution. In no circumstances shall the alien or the relevant LEA 
have a right of appeal from any decision to revoke.
    (2) Grounds of removal. Nothing shall prohibit the Service from 
removing from the United States and alien classified pursuant to 
section 101(a)(15)(S) of the Act for conduct committed after the alien 
has been admitted to the United States as an S nonimmigrant, or after 
the alien's change to S classification, or for conduct or a condition 
undisclosed to 

[[Page 44265]]
the Attorney General prior to the alien's admission in, or change to, S 
classification, unless such conduct or condition is waived prior to 
admission and classification. In the event the Commissioner decides to 
remove an S nonimmigrant from the United States, the Assistant Attorney 
General, Criminal Division, and the relevant LEA shall be notified in 
writing to that effect. The Assistant Attorney General, Criminal 
Division, shall concur in or object to that decision. Unless the 
Assistant Attorney General, Criminal Division, objects within 7 days, 
he or she shall be deemed to have concurred in the decision. In the 
event of an objection by the Assistant Attorney General, Criminal 
Division, the matter will be expeditiously referred to the Deputy 
Attorney General for a final resolution. In no circumstances shall the 
alien or the relevant LEA have a right of appeal from any decision to 
remove.
    7. Section 212.14 is added to read as follows:


Sec. 212.14  Parole determinations for alien witnesses and informants 
for whom a law enforcement authority (``LEA'') will request S 
classification.

    (a) Parole authority. Parole authorization under section 212(d)(5) 
of the Act for aliens whom LEAs seek to bring to the United States as 
witnesses or informants in criminal/counter terrorism matters and to 
apply for S classification shall be exercised as follows:
    (1) Grounds of eligibility. The Commissioner may, in the exercise 
of discretion, grant parole to an alien (and the alien's family 
members) needed for law enforcement purposes provided that a state or 
federal LEA:
    (i) Establishes its intention to file, within 30 days after the 
alien's arrival in the United States, a completed Form I-854, Inter-
Agency Alien Witness and Informant Record, with the Assistant Attorney 
General, Criminal Division, Department of Justice, in accordance with 
the instructions on or attached to the form, which will include the 
names of qualified family members for whom parole is sought;
    (ii) Specifies the particular operational reasons and basis for the 
request, and agrees to assume responsibility for the alien during the 
period of the alien's temporary stay in the United States, including 
maintaining control and supervision of the alien and the alien's 
whereabouts and activities, and further specifies any other terms and 
conditions specified by the Service during the period for which the 
parole is authorized;
    (iii) Agrees to advise the Service of the alien's failure to report 
quarterly any criminal conduct by the alien, or any other activity or 
behavior on the alien's part that may constitute a ground of 
excludability or deportability;
    (iv) Assumes responsibility for ensuring the alien's departure on 
the date of termination of the authorized parole (unless the alien has 
been admitted in S nonimmigrant classification pursuant to the terms of 
paragraph (a)(2) of this section), provides any and all assistance 
needed by the Service, if necessary, to ensure departure, and verifies 
departure in a manner acceptable to the Service;
    (v) Provide LEA seat-of-government certification that parole of the 
alien is essential to an investigation or prosecution, is in the 
national interest, and is requested pursuant to the terms and authority 
of section 212(d)(5) of the Act;
    (vi) Agrees that no promises may be, have been, or will be made by 
the LEA to the alien that the alien will or may:
    (A) Remain in the United States in parole status or any other 
nonimmigrant classification;
    (B) Adjust status to that of lawful permanent resident; or
    (C) Otherwise attempt to remain beyond the authorized parole. The 
alien (and any family member of the alien who is 18 years of age or 
older) shall sign a statement acknowledging an awareness that parole 
only authorizes a temporary stay in the United States and does not 
convey the benefits of S nonimmigrant classification, any other 
nonimmigrant classification, or any entitlement to further benefits 
under the Act; and
    (vii) Provides, in the case of a request for the release of an 
alien from Service custody, certification that the alien is eligible 
for parole pursuant to Sec. 235.3 of this chapter.
    (2) Authorization. (i) Upon approval of the request for parole, the 
Commissioner shall notify the Assistant Attorney General, Criminal 
Division, of the approval.
    (ii) Upon notification of approval of a request for parole, the LEA 
will advise the Commissioner of the date, time, and place of the 
arrival of the alien. The Commissioner will coordinate the arrival of 
the alien in parole status with the port director prior to the time of 
arrival.
    (iii) Parole will be authorized for a period of thirty (30) days to 
commence upon the alien's arrival in the United States in order for the 
LEA to submit a completed Form I-854 to the Assistant Attorney General, 
Criminal Division. Upon the submission to the Assistant Attorney 
General of the Form I-854 requesting S classification, the period of 
parole will be automatically extended while the request is being 
reviewed. The Assistant Attorney General, Criminal Division, will 
notify the Commissioner of the submission of a Form I-854.
    (b) Termination of parole--(1) General. The Commissioner may 
terminate parole for any alien (including a member of the alien's 
family) in parole status under this section where termination is in the 
public interest. A district director may also terminate parole when, in 
the district director's opinion, termination is in the public interest 
and circumstances do not reasonably permit referral of the case to the 
Commissioner. In such a case, the Commissioner shall be notified 
immediately. In the event the Commissioner, or in the appropriate case, 
a district director, decides to terminate the parole of a alien witness 
or informant authorized under the terms of this paragraph, the 
Assistant Attorney General, Criminal Division, and the relevant LEA 
shall be notified in writing to that effect. The Assistant Attorney 
General, Criminal Division, shall concur in or object to that decision. 
Unless the Assistant Attorney General, Criminal Division, objects 
within 7 days, he or she shall be deemed to have concurred in the 
decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred 
to the Deputy Attorney General for a final resolution. In no 
circumstances shall the alien or the relevant LEA have a right of 
appeal from any decision to terminate parole.
    (2) Termination of parole and admission in S classification. When 
an LEA has filed a request for an alien in authorized parole status to 
be admitted in S nonimmigrant classification and that request has been 
approved by the Commissioner pursuant to the procedures outlines in 8 
CFR 214.2(t), the Commissioner may, in the exercise of discretion:
    (i) Terminate the alien's parole status;
    (ii) Determine eligibility for waivers; and
    (iii) Admit the alien in S nonimmigrant classification pursuant to 
the terms and conditions of section 101(a)(15(S) of the Act and 8 CFR 
214.2(t).
    (c) Departure. If the alien's parole has been terminated and the 
alien has been ordered excluded from the United States, the LEA shall 
ensure departure from the United States and so inform the district 
director in whose jurisdiction the alien has last resided. The district 
director, if necessary, shall 

[[Page 44266]]
oversee the alien's departure from the United States and, in any event, 
shall notify the Commissioner of the alien's departure. The 
Commissioner shall be notified in writing of the failure of any alien 
authorized parole under this paragraph to depart in accordance with an 
order of exclusion and deportation entered after parole authorized 
under this paragraph has been terminated.
    (d) Failure to comply with procedures. Any failure to adhere to the 
parole procedures contained in this section shall immediately be 
brought to the attention of the Commissioner, who will notify the 
Attorney General.

PART 214--NONIMMIGRANT CLASSES

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

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

    9. In Sec. 214.1, paragraph (a)(2) is amended by adding the 
following nonimmigrant classification entries to the listing of 
designations, in proper sequence, to read as follows:


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

    (a) * * *
    (2) * * *

------------------------------------------------------------------------
                         Section                            Designation 
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
101(a)(15)(S)(i)........................................  S-5           
101(a)(15)(S)(ii).......................................  S-6           
101(a)(15)(S) qualified family members.                   S-7           
------------------------------------------------------------------------

* * * * *
    10. Section 214.1 is amended by:
    a. Removing the ``or'' at the end of paragraph (c)(3)(iv);
    b. Removing the ``.'' at the end of paragraph (c)(3)(v), and 
replacing it with a ``; or''; and by
    c. Adding a new paragraph (c)(3)(iv), to read as follows:


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

* * * * *
    (c) * * *
    (3) * * *
    (vi) Any nonimmigrant who is classified pursuant to section 
101(a)(15)(S) of the Act beyond a total of 3 years.
* * * * *
    11. Section 214.2 is amended by adding a new paragraph (t) to read 
as follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (t) Alien witnesses and informants--(1) Alien witness or informant 
in criminal matter. An alien may be classified as an S-5 alien witness 
or informant under the provisions of section 101(a)(15)(S)(i) of the 
Act if, in the exercise of discretion pursuant to an application on 
Form I-854 by an interested federal or state law enforcement authority 
(``LEA''), it is determined by the Commissioner that the alien:
    (i) Possesses critical reliable information concerning a criminal 
organization or enterprise;
    (ii) Is willing to supply, or has supplied, such information to 
federal or state LEA; and
    (iii) Is essential to the success of an authorized criminal 
investigation or the successful prosecution of an individual involved 
in the criminal organization or enterprise.
    (2) Alien witness or informant in counterterrorism matter. An alien 
may be classified as an S-6 alien counterterrorism witness or informant 
under the provisions of section 101(a)(15)(S)(ii) of the Act if it is 
determined by the Secretary of State and the Commissioner acting 
jointly, in the exercise of their discretion, pursuant to an 
application on Form I-854 by an interested federal LEA, that the alien:
    (i) Possesses critical reliable information concerning a terrorist 
organization, enterprise, or operation;
    (ii) Is willing to supply or has supplied such information to a 
federal LEA;
    (iii) Is in danger or has been placed in danger as a result of 
providing such information; and
    (iv) Is eligible to receive a reward under section 36(a) of the 
State Department Basic Authorities Act of 1956, 22 U.S.C. 2708(a).
    (3) Spouse, married and unmarried sons and daughters, and parents 
of alien witness or informant in criminal or counterterrorism matter. 
An alien spouse, married or unmarried son or daughter, or parent of an 
alien witness or informant may be granted derivative S classification 
(S-7) when accompanying, or following to join, the alien witness or 
informant if, in the exercise of discretion by, with respect to 
paragraph (t)(1) of this section, the Commissioner, or, with respect to 
paragraph (t)(2) of this section, the Secretary of State and the 
Commissioner acting jointly, consider it to be appropriate. A 
nonimmigrant in such derivative S-7 classification shall be subject to 
the same period of admission, limitations, and restrictions as the 
alien witness or informant and must be identified by the requesting LEA 
on the application Form I-854 in order to qualify for S nonimmigrant 
classification. Family members not identified on the Form I-854 
application will not be eligible for S nonimmigrant classification.
    (4) Request for S nonimmigrant classification. An application on 
Form I-854, requesting S nonimmigrant classification for a witness or 
informant, may only be filed by a federal or state LEA (which shall 
include a federal or state court or a United States Attorney's Office) 
directly in need of the information to be provided by the alien witness 
or informant. The completed application is filed with the Assistant 
Attorney General, Criminal Division, Department of Justice, who will 
forward only properly certified applications that fall within the 
numerical limitation to the Commissioner, Immigration and 
Naturalization Service, for approval, pursuant to the following 
process.
    (i) Filing request. For an alien to qualify for status as an S 
nonimmigrant, S nonimmigrant classification must be requested by an 
LEA. The LEA shall recommend an alien for S nonimmigrant classification 
by: Completing Form I-854, with all necessary endorsements and 
attachments, in accordance with the instructions on, or attached to, 
that form, and agreeing, as a condition of status, that no promises may 
be, have been, or will be made by the LEA that the alien will or may 
remain in the United States in S or any other nonimmigrant 
classification or parole, adjust status to that of lawful permanent 
resident, or otherwise attempt to remain beyond a 3-year period other 
than by the means authorized by section 101(a)(15)(S) of the Act. The 
alien, including any derivative beneficiary who is 18 years or older, 
shall sign a statement, that is part of or affixed to Form I-854, 
acknowledging awareness that he or she is restricted by the terms of S 
nonimmigrant classification to the specific terms of section 
101(a)(15)(S) of the Act as the exclusive means by which he or she may 
remain permanently in the United States.
    (A) District director referral. Any district director or Service 
officer who receives a request by an alien, an eligible LEA, or other 
entity seeking S nonimmigrant classification shall advise the requestor 
of the process and the requirements for applying for S nonimmigrant 
classification. Eligible LEAs seeking S nonimmigrant classification 
shall be referred to the Commissioner.
    (B) United States Attorney certification. The United States 
Attorney with jurisdiction over a prosecution or investigation that 
forms the basis for a 

[[Page 44267]]
request for S nonimmigrant classification must certify and endorse the 
application on Form I-854 and agree that no promises may be, have been, 
or will be made that the alien will or may remain in the United States 
in S or any other nonimmigrant classification or parole, adjust status 
to lawful permanent resident, or attempt to remain beyond the 
authorized period of admission.
    (C) LEA certification. LEA certifications on Form I-854 must be 
made at the seat-of-government level, if federal, or the highest level 
of the state LEA involved in the matter. With respect to the alien for 
whom S nonimmigrant classification is sought, the LEA shall provide 
evidence in the form of attachments establishing the nature of the 
alien's cooperation with the government, the need for the alien's 
presence in the United States, all conduct or conditions which may 
constitute a ground or grounds or excludability, and all factors and 
considerations warranting a favorable exercise of discretionary waiver 
authority by the Attorney General on the alien's behalf. The 
attachments submitted with a request for S nonimmigrant classification 
may be in the form of affidavits, statements, memoranda, or similar 
documentation. The LEA shall review Form I-854 for accuracy and ensure 
the alien understands the certifications made on Form I-854.
    (D) Filing procedure. Upon completion of Form I-854, the LEA shall 
forward the form and all required attachments to the Assistant Attorney 
General, Criminal Division, United States Department of Justice, at the 
address listed on the form.
    (ii) Assistant Attorney General, Criminal Division review.--(A) 
Review of information. Upon receipt of a complete application for S 
nonimmigrant classification on Form I-854, with all required 
attachments, the Assistant Attorney General, Criminal Division, shall 
ensure that all information relating to the basis of the application, 
the need for the witness or informant, and grounds of excludability 
under section 212 of the Act has been provided to the Service on Form 
I-854, and shall consider the negative and favorable factors warranting 
an exercise of discretion on the alien's behalf. No application may be 
acted on by the Assistant Attorney General unless the eligible LEA 
making the request has proceeded in accordance with the instructions 
on, or attached to, Form I-854 and agreed to all provisions therein.
    (B) Advisory panel. Where necessary according to procedures 
established by the Assistant Attorney General, Criminal Division, an 
advisory panel, composed of representatives of the Service, Marshals 
Service, Federal Bureau of Investigation, Drug Enforcement 
Administration, Criminal Division, and the Department of State, and 
those representatives of other LEAs, including state and federal courts 
designated by the Attorney General, will review the completed 
application and submit a recommendation to the Assistant Attorney 
General, Criminal Division, regarding requests for S nonimmigrant 
classification. The function of this advisory panel is to prioritize 
cases in light of the numerical limitation in order to determine which 
cases will be forwarded to the Commissioner.
    (C) Assistant Attorney General certification. The certification of 
the Assistant Attorney General, Criminal Division, to the Commissioner 
recommending approval of the application for S nonimmigrant 
classification shall contain the following:
    (1) All information and attachments that may constitute, or relate 
to, a ground or grounds of excludability under section 212(a) of the 
Act;
    (2) Each section of law under which the alien appears to be 
inadmissible;
    (3) The reasons that waiver(s) of inadmissibility are considered to 
be justifiable and in the national interest;
    (4) A detailed statement that the alien is eligible for S 
nonimmigrant classification, explaining the nature of the alien's 
cooperation with the government and the government's need for the 
alien's presence in the United States;
    (5) The intended date of arrival;
    (6) The length of the proposed stay in the United States;
    (7) The purpose of the proposed stay; and
    (8) A statement that the application falls within the statutorily 
specified numerical limitation.
    (D) Submission of certified requests for S nonimmigrant 
classification to Service. (1) The Assistant Attorney General, Criminal 
Division, shall forward to the Commissioner only qualified applications 
for S-5 nonimmigrant classification that have been certified in 
accordance with the provisions of this paragraph and that fall within 
the annual numerical limitation.
    (2) The Assistant Attorney General Criminal Division, shall forward 
to the Commissioner applications for S-6 nonimmigrant classification 
that have been certified in accordance with the provisions of this 
paragraph, certified by the Secretary of State or eligibility for S-6 
classification, and that fall within the annual numerical limitation.
    (5) Decision on application. (i) The Attorney General's authority 
to waive grounds of excludability pursuant to section 212 of the Act is 
delegated to the Commissioner and shall be exercised with regard to S 
nonimmigrant classification only upon the certification of the 
Assistant Attorney General, Criminal Division. Such certification is 
nonreviewable as to the matter's significance, importance, and/or 
worthwhileness to law enforcement. The Commissioner shall make the 
final decision to approve or deny a request for S nonimmigrant 
classification certified by the Assistant Attorney General, Criminal 
Division.
    (ii) Decision to approve application. Upon approval of the 
application on Form I-854, the Commissioner shall notify the Assistant 
Attorney General, Criminal Division, the Secretary of State, and 
Service officers as appropriate. Admission shall be authorized for a 
period not to exceed 3 years.
    (iii) Decision to deny application. In the event the Commissioner 
decides to deny an application for S nonimmigrant classification on 
Form I-854, the Assistant Attorney General, Criminal Division, and the 
relevant LEA shall be notified in writing to that effect. The Assistant 
Attorney General, Criminal Division, shall concur in or object to that 
decision. Unless the Assistant Attorney General, Criminal Division, 
objects within 7 days, he or she shall be deemed to have concurred in 
the decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred 
to the Deputy Attorney General for a final resolution. In no 
circumstances shall the alien or the relevant LEA have a right of 
appeal from any decision to deny.
    (6) Submission of requests for S nonimmigrant visa classification 
to Secretary of State. No request for S nonimmigrant visa 
classification may be presented to the Secretary of State unless it is 
approved and forwarded by the Commissioner.
    (7) Conditions of status. An alien witness or informant is 
responsible for certifying and fulfilling the terms and conditions 
specified on Form I-854 as a condition of status. The LEA that assumes 
responsibility for the S nonimmigrant must:
    (i) Ensure that the alien:
    (A) Reports quarterly to the LEA on his or her whereabouts and 
activities, and as otherwise specified on Form I-

[[Page 44268]]
854 or pursuant to the terms of his or her S nonimmigrant 
classification;
    (B) Notifies the LEA of any change of home or work address and 
phone numbers or any travel plans;
    (C) Abides by the law and all specified terms, limitations, or 
restrictions on the visa, Form I-854, or any waivers pursuant to 
classification; and
    (D) Cooperates with the responsible LEA in accordance with the 
terms of his or her classification and any restrictions on Form I-854;
    (ii) Provide the Assistant Attorney General, Criminal Division, 
with the name of the control agent on an ongoing basis and provide a 
quarterly report indicating the whereabouts, activities, and any other 
control information required on Form I-854 or by the Assistant Attorney 
General;
    (iii) Report immediately to the Service any failure on the alien's 
part to:
    (A) Report quarterly;
    (B) Cooperate with the LEA;
    (C) Comply with the terms and conditions of the specific S 
nonimmigrant classification; or
    (D) Refrain from criminal activity that may render the alien 
deportable, which information shall also be forwarded to the Assistant 
Attorney General, Criminal Division; and
    (iv) Report annually to the Assistant Attorney General, Criminal 
Division, on whether the alien's S nonimmigrant classification and 
cooperation resulted in either:
    (A) A successful criminal prosecution or investigation or the 
failure to produce a successful resolution of the matter; or
    (B) The prevention or frustration of terrorist acts or the failure 
to prevent such acts.
    (v) Assist the alien in his or her application to the Service for 
employment authorization.
    (8) Annual report. The Assistant Attorney General, Criminal 
Division, in consultation with the Commissioner, shall compile the 
statutorily mandated annual report to the Committee on the Judiciary of 
the House of Representatives and the Committee on the Judiciary of the 
Senate.
    (9) Admission. The responsible LEA will coordinate the admission of 
an alien in S nonimmigrant classification with the Commissioner as to 
the date, time, place, and manner of the alien's arrival.
    (10) Employment. An alien classified under section 101(a)(15)(S) of 
the Act may apply for employment authorization by filing Form I-765, 
Application for Employment Authorization, with fee, in accordance with 
the instructions on, or attached to, that form pursuant to 
Sec. 274a.12(c)(21) of this chapter.
    (11) Failure to maintain status. An alien classified under section 
101(a)(15)(S) of the Act shall abide by all the terms and conditions of 
his or her S nonimmigrant classification imposed by the Attorney 
General. If the terms and conditions of S nonimmigrant classification 
will not be or have not been met, or have been violated, the alien is 
convicted of any criminal offense punishable by a term of imprisonment 
of 1 year or more, is otherwise rendered deportable, or it is otherwise 
appropriate or in the public interest to do so, the Commissioner shall 
proceed to deport an alien pursuant to the terms of 8 CFR 242.26. In 
the event the Commissioner decides to deport an alien witness or 
informant in S nonimmigrant classification, the Assistant Attorney 
General, Criminal Division, and the relevant LEA shall be notified in 
writing to that effect. The Assistant Attorney General, Criminal 
Division, shall concur in or object to that decision. Unless the 
Assistant Attorney General, Criminal Division, objects within 7 days, 
he or she shall be deemed to have concurred in the decision. In the 
event of an objection by the Assistant Attorney General, Criminal 
Division, the matter will be expeditiously referred to the Deputy 
Attorney General for a final resolution. In no circumstances shall the 
alien or the relevant LEA have a right of appeal from any decision to 
deport.
    (12) Change of classification. (i) An alien in S nonimmigrant 
classification is prohibited from changing to any other nonimmigrant 
classification.
    (ii) An LEA may request that any alien lawfully admitted to the 
United States and maintaining status in accordance with the provisions 
of Sec. 248.1 of this chapter, except for those aliens enumerated in 8 
CFR 248.2, have his or her nonimmigrant classification changed to that 
of an alien classified pursuant to section 101(a)(15)(S) of the Act as 
set forth in 8 CFR 248.3(h).

PART 236--EXCLUSION OF ALIENS

    12. The authority citation for part 236 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.

    13. A new Sec. 236.10 is added to read as follows:


Sec. 236.10  Exclusion of alien seeking admission under section 
101(a)(15)(S) of the Act.

    An alien who applies for admission under the provisions of section 
101(a)(15)(S) of the Act who is determined by an immigration officer 
not to be eligible for admission under that section or to be excludable 
from the United States under one or more of the grounds of 
excludability listed in section 212 of the Act, which have not been 
previously waived by the Commissioner, will be taken into custody and 
will be subject to the exclusion procedures contained in 8 CFR part 
236.

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING AND APPEAL

    14. The authority citation for part 242 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252b, 1252 note, 
1252b, 1254, 1362; 8 CFR part 2.

    15. A new Sec. 242.26 is added to read as follows:
Sec. 242.26  Deportation of S-5, S-6, and S-7 nonimmigrant.

    (a) Condition of classification. As a condition of classification 
and continued stay in classification pursuant to section 101(a)(15)(S) 
of the Act, nonimmigrants in S classification must have executed Form 
I-854, Part B, certifying that they have knowingly waived their right 
to a deportation hearing and right to contest, other than on the basis 
of an application for withholding of deportation, any deportation 
action, including detention pending deportation, instituted before 
lawful permanent resident status is obtained.
    (b) Determination of deportability. A determination to deport an 
alien classified pursuant to section 101(a)(15)(S) of the Act shall be 
made by the district director having jurisdiction over the place where 
the alien is located.
    (1) A determination to deport such an alien shall be based on one 
or more of the deportation grounds listed in section 241 of the Act 
based on conduct committed after, or conduct or a condition not 
disclosed to the Service prior to, the alien's classification as an S 
nonimmigrant under section 101(a)(15)(S) of the Act, or for a violation 
of, or failure to adhere to, the particular terms and conditions of 
status in S nonimmigrant classification.
    (c) Deportation procedures. (1) A district director who determines 
to deport an alien witness or informant in S nonimmigrant 
classification shall notify the Commissioner, the Assistant Attorney 
General, Criminal Division, and the relevant LEA in writing to that 

[[Page 44269]]
effect. The Assistant Attorney General, Criminal Division, shall concur 
in or object to that decision. Unless the Assistant Attorney General, 
Criminal Division, objects within 7 days, he or she shall be deemed to 
have concurred in the decision. In the event of an objection by the 
Assistant Attorney General, Criminal Division, the matter will be 
expeditiously referred to the Deputy Attorney General for a final 
resolution. In no circumstances shall the alien or the relevant LEA 
have a right of appeal from any decision to deport.
    (2) A district director, who has provided notice as set forth in 
paragraph (c)(1) of this section and who has been advised by the 
Commissioner that the Assistant Attorney General, Criminal Division, 
has not objected, shall issue a warrant of deportation. The alien shall 
immediately be arrested and taken into custody by the district director 
initiating the deportation. An alien classified under the provisions of 
section 101(a)(15)(S) of the Act who is determined, pursuant to a 
warrant issued by a district director, to be deportable from the United 
States shall be deported from the United States to his or her country 
of nationality or last residence. The LEA who requested the alien's 
presence in the United States shall ensure departure from the United 
States and so inform the district director in whose jurisdiction the 
alien has last resided. The district director, if necessary, shall 
oversee the alien's departure from the Untied States and, in any event, 
shall notify the Commissioner of the alien's departure.
    (d) Withholding of deportation. An alien classified pursuant to 
section 101(a)(15)(S) of the Act who applies for withholding of 
deportation shall have 10 days from the date the warrant of deportation 
is served upon the alien to file an application for such relief with 
the district director initiating the deportation order. The procedures 
contained in 8 CFR 208.2 and 208.16 shall apply to such an alien who 
applies for withholding of deportation.

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

    16. 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.

    17. In Sec. 245.1, paragraph (c)(7) is redesignated as paragraph 
(c)(8), and a new paragraph (c)(7) is added to read as follows:


Sec. 245.1  Eligibility.

* * * * *
    (c) * * *
    (7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of 
the Act, unless the nonimmigrant is applying for adjustment of status 
pursuant to the request of a law enforcement authority, the provisions 
of section 101(a)(15)(S) of the Act, and 8 CFR 245.11.
* * * * *
    18. A new Sec. 245.11 is added to read as follows:
Sec. 245.11  Adjustment of aliens in S nonimmigrant classification.

    (a) Eligibility. An application on Form I-854, requesting that an 
alien witness or informant in S nonimmigrant classification be allowed 
to adjust status to that of lawful permanent resident, may only be 
filed by the federal or state law enforcement authority (``LEA'') 
(which shall include a federal or state court or a United States 
Attorney's Office) that originally requested S classification for the 
alien. The completed application shall be filed with the Assistant 
Attorney General, Criminal Division, Department of Justice, who will 
forward only properly certified applications to the Commissioner, 
Immigration and Naturalization Service, for approval. Upon receipt of 
an approved Form I-854 allowing the S nonimmigrant to adjust status to 
that of lawful permanent resident, the alien may proceed to file with 
that Form, Form I-485, Application to Register Permanent Residence or 
Adjust Status, pursuant to the following process.
    (1) Request to allow S nonimmigrant to apply for adjustment of 
status to that of lawful permanent resident. The LEA that requested S 
nonimmigrant classification for an S nonimmigrant witness or informant 
pursuant to section 101(a)(15)(S) of the Act may request that the 
principal S nonimmigrant be allowed to apply for adjustment of status 
by filing Form I-854 with the Assistant Attorney General, Criminal 
Division, in accordance with the instructions on, or attached to, that 
form and certifying that the alien has fulfilled the terms of his or 
her admission and classification. The same Form I-854 may be used by 
the LEA to request that the principals nonimmigrant's spouse, married 
and unmarried sons and daughters, regardless of age, and parents who 
are in derivative S nonimmigrant classification and who are qualified 
family members as described in paragraph (b) of this section similarly 
be allowed to apply for adjustment of status pursuant to section 
101(a)(15)(S) of the Act.
    (2) Certification. Upon receipt of an LEA's request for the 
adjustment of an alien in S nonimmigrant classification on Form I-854, 
the Assistant Attorney General, Criminal Division, shall review the 
information and determine whether to certify the request to the 
Commissioner in accordance with the instructions on the form.
    (3) Submission of requests for adjustment of status to the 
Commissioner. No application by an LEA on Form I-854 requesting the 
adjustment to lawful permanent resident status of an S nonimmigrant 
shall be forwarded to the Commissioner unless first certified by the 
Assistant Attorney General, Criminal Division.
    (4) Decision on request to allow adjustment of S nonimmigrant. The 
Commissioner shall make the final decision on a request to allow an S 
nonimmigrant to apply for adjustment of status to lawful permanent 
resident.
    (i) In the event the Commissioner decides to deny an application on 
Form I-854 to allow an S nonimmigrant to apply for adjustment of 
status, the Assistant Attorney General, Criminal Division, and the 
relevant LEA shall be notified in writing to that effect. The Assistant 
Attorney General, Criminal Division, shall concur in or object to that 
decision. Unless the Assistant Attorney General, Criminal Division, 
objects within 7 days, he or she shall be deemed to have concurred in 
the decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred 
to the Deputy Attorney General for a final resolution. In no 
circumstances shall be alien or the relevant LEA have a right of appeal 
from any decision to deny.
    (ii) Upon approval of the request on Form I-854, the Commissioner 
shall forward a copy of the approved form to the Assistant Attorney 
General and the S nonimmigrant, notifying them that the S nonimmigrant 
may proceed to file Form I-485 and request adjustment of status to that 
of lawful permanent resident, and that, to be eligible for adjustment 
of status, the nonimmigrant must otherwise:
    (A) Meet the requirements of paragraph (b) of this section, if 
requesting adjustment as a qualified family member of the certified 
principal S nonimmigrant witness or informant;
    (B) Be admissible to the United States as an immigrant, unless the 
ground of excludability has been waived;
    (C) Establish eligibility for adjustment of status under all 
provisions of section 245 of the Act, unless the basis for 
ineligibility has been waived; and 

[[Page 44270]]

    (D) Properly file with his or her Form I-485, Application to 
Register Permanent Residence or Adjust Status, the approved Form I-854.
    (b) Family members--(1) Qualified family members. A qualified 
family member of an S nonimmigrant includes the spouse, married or 
unmarried son or daughter, or parent of a principal S nonimmigrant who 
meets the requirements of paragraph (a) of this section, provided that:
    (i) The family member qualified as the spouse, married or unmarried 
son or daughter, or parent (as defined in section 101(b) of the Act) of 
the principal S nonimmigrant when the family member was admitted as or 
granted a change of status to that of a nonimmigrant under section 
101(a)(15)(S) of the Act;
    (ii) The family member was admitted in S nonimmigrant 
classification to accompany, or follow to join, the principal S-5 or S-
6 alien pursuant to the LEA's request;
    (iii) The family member is not excludable from the United States as 
a participant in Nazi persecution or genocide as described in section 
212(a)(3)(E) of the Act;
    (iv) The qualifying relationship continues to exist; and
    (v) The principal alien has adjusted status, has a pending 
application for adjustment of status or is concurrently filing an 
application for adjustment of status under section 101(a)(15)(S) of the 
Act.
    (vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if 
the alien witness or informant has died and, in the opinion of the 
Attorney General, was in compliance with the terms of his or her S 
classification under section 245(i) (1) and (2) of the Act.
    (2) Other family member. The adjustment provisions in this section 
do not apply to a family member who has not been classified as an S 
nonimmigrant pursuant to a request on Form I-854 or who does not 
otherwise meet the requirements of paragraph (b) of this section. 
However, a spouse or an unmarried child who is less than 21 years old, 
and whose relationship to the principal S nonimmigrant or qualified 
family member was established prior to the approval of the principal S 
nonimmigrant's adjustment of status application, may be accorded the 
priority date and preference category of the principal S nonimmigrant 
or qualified family member, in accordance with the provisions of 
section 203(d) of the Act. Such a spouse or child:
    (i) May use the principal S nonimmigrant or qualified member's 
priority date and category when it becomes current, in accordance with 
the limitations set forth in sections 201 and 202 of the Act;
    (ii) May seek immigrant visa issuance abroad or adjustment of 
status to that of a lawful permanent resident of the United States when 
the priority date becomes current for the spouse's or child's country 
of chargeability under the fourth employment-based preference 
classification;
    (iii) Must meet all the requirements for immigrant visa issuance or 
adjustment of status, unless those requirements have been waived;
    (iv) Is not applying for adjustment of status under 101(a)(15)(S) 
of the Act, is not required to file Form I-854, and is not required to 
obtain LEA certification; and
    (v) Will lose eligibility for benefits if the child marries or has 
his or her twenty-first birthday before being admitted with an 
immigrant visa or granted adjustment of status.
    (c) Waivers of excludability. An alien seeking to adjust status 
pursuant to the provisions of section 101(a)(15)(S) of the Act may not 
be denied adjustment of status for conduct or a condition which:
    (1) Was disclosed to the Attorney General prior to admission; and
    (2) Was specifically waived pursuant to the waiver provisions set 
forth at section 212(d)(1) and 212(d)(3) of the Act.
    (d) Application. Each S nonimmigrant requesting adjustment of 
status under section 101(a)(15)(S) of the Act must:
    (1) File Form I-485, with the prescribed fee, accompanied by the 
approved Form I-854, and the supporting documents specified in the 
instructions to Form I-485 and described in 8 CFR 245.2. Secondary 
evidence may be submitted if the nonimmigrant is unable to obtain the 
required primary evidence as provided in 8 CFR 103.2(b)(2). The S 
nonimmigrant applying to adjust must complete Part 2 of Form I-485 by 
checking box ``h-other'' and writing ``S'' or ``S-Qualified Family 
Member.'' Qualified family members must submit documentary evidence of 
the relationship to the principal S nonimmigrant witness or informant.
    (2) Submit detailed and inclusive evidence of eligibility for the 
adjustment of status benefits of S classification, which shall include:
    (i) A photocopy of all pages of the alien's most recent passport or 
an explanation of why the alien does not have a passport; or
    (ii) An attachment on a plain piece of paper showing the dates of 
all arrivals and departures from the United States in S nonimmigrant 
classification and the reason for each departure; and
    (iii) Primary evidence of a qualifying relationship to the 
principal S nonimmigrant, such as birth or marriage certificate. If any 
required primary evidence is unavailable, church or school records, or 
other secondary evidence may be submitted. If such documents are 
unavailable, affidavits may be submitted as provided in 8 CFR 
103.2(b)(2).
    (e) Priority date. The S nonimmigrant's priority date shall be the 
date his or her application for adjustment of status as an S 
nonimmigrant is properly filed with the Service.
    (f) Visa number limitation. An adjustment of status application 
under section 101(a)(15)(S) of the Act may be filed regardless of the 
availability of immigrant visa numbers. The adjustment of status 
application may not, however, be approved and the alien's adjustment of 
status to that of lawful permanent resident of the United States may 
not be granted until a visa number becomes available for the alien 
under the worldwide allocation for employment-based immigrants under 
section 201(d) and section 203(b)(4) of the Act. The alien may request 
initial or continued employment authorization while the adjustment 
application is pending by filing Form I-765, Application for Employment 
Authorization. If the alien needs to travel outside the United States 
during this period, he or she may file a request for advance parole on 
Form I-131, Application for Travel Document.
    (g) Filing and decision. An application for adjustment of status 
filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall 
be filed with the district director having jurisdiction over the 
alien's place of residence. Upon approval of adjustment of status under 
this section, the district director shall record the alien's lawful 
admission for permanent residence as of the date of such approval. The 
district director shall notify the Commissioner and the Assistant 
Attorney General, Criminal Division, of the adjustment.
    (h) Deportation under section 241 of the Act. Nothing in this 
section shall prevent an alien adjusted pursuant to the terms of these 
provisions from being deported for conviction of a crime of moral 
turpitude committed within 10 years after being provided lawful 
permanent residence under this section or for any other ground under 
section 241 of the Act.
    (i) Denial of application. In the event the district director 
decides to deny an application on Form I-485 and an 

[[Page 44271]]
approved Form I-854 to allow an S nonimmigrant to adjust status, the 
Assistant Attorney General, Criminal Division, and the relevant LEA 
shall be notified in writing to that effect. The Assistant Attorney 
General, Criminal Division, shall concur in or object to that decision. 
Unless the Assistant Attorney General, Criminal Division, objects 
within 7 days, he or she shall be deemed to have concurred in the 
decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred 
to the Deputy Attorney General for a final resolution. In no 
circumstances shall the alien or the relevant LEA have a right of 
appeal from any decision to deny. A denial of an adjustment application 
under this paragraph may not be renewed in subsequent deportation 
proceedings.

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

    19. The authority citation for part 248 continues to read as 
follows:

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


Sec. 248.2  [Amended]

    20. In Sec. 248.2, paragraph (b) is amended by removing the term 
``or (K)'' and adding in lieu thereof the term ``(K), or (S)''.
    21. Section 248.3 is amended by adding a new paragraph (h) to read 
as follows:


Sec. 248.3  Application.

* * * * *
    (h) Change to S nonimmigrant classification. An eligible state or 
federal law enforcement agency (``LEA''), which shall include a state 
or federal court or a United States Attorney's Office, may seek to 
change the nonimmigrant classification of a nonimmigrant lawfully 
admitted to the United States, except those enumerated in Sec. 248.2 of 
this chapter, to that of an alien witness or informant pursuant to 
section 101(a)(15)(S) of the Act by filing with the Assistant Attorney 
General, Criminal Division, Form I-539, Application to Extend/Change 
Nonimmigrant Status, with the appropriate fee, and Form I-854, Inter-
Agency Alien Witness and Informant Record, with attachments 
establishing eligibility for the change of nonimmigrant classification.
    (1) If the Assistant Attorney General, Criminal Division, certifies 
the request for S nonimmigrant classification in accordance with the 
procedures set forth in 8 CFR 214.2(t), the Assistant Attorney General 
shall forward the LEA's request on Form I-854 with Form I-539 to the 
Commissioner. No request for change of nonimmigrant classification to S 
classification may proceed to the Commissioner unless it has first been 
certified by the Assistant Attorney General, Criminal Division.

    (2) In the event the Commissioner decides to deny an application to 
change nonimmigrant classification to S nonimmigrant classification, 
the Assistant Attorney General, Criminal Division, and the relevant LEA 
shall be notified in writing to that effect. The Assistant Attorney 
General, Criminal Division, shall concur in or object to that decision. 
Unless the Assistant Attorney General, Criminal Division, objects 
within 7 days, he or she shall be deemed to have concurred in the 
decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred 
to the Deputy Attorney General for a final resolution. In no 
circumstances shall the alien or the relevant LEA have a right of 
appeal from any decision to deny.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    22. The authority citation for part 274a continues to read as 
follows:


    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.


    23. Section 274a.12 is amended by adding a new paragraph (c)(21) to 
read as follows:

Sec. 274a.12  Classes of aliens authorized to accept employment.

* * * * *

    (c) * * *

    (21) A principal nonimmigrant witness or informant in S 
classification, and qualified dependent family members.

* * * * *

PART 299--IMMIGRATION FORMS

    24. The authority citation for part 299 continues to read as 
follows:

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

    25. Section 299.1 is amended by adding the entry for ``Form I-854'' 
to the listing of forms, in proper numerical sequence, to read as 
follows:

Sec. 299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
  Form No.    Edition date                      Title                   
------------------------------------------------------------------------
                  *        *        *        *        *                 
I-854.......  June 20,      Inter-Agency Alien Witness and Informant    
               1995.         Record.                                    
------------------------------------------------------------------------

* * * * *
    26. Section 299.5 is amended by adding the entry for ``Form I-
854'', to the listing of forms, in proper numerical sequence, to read 
as follows:


Sec. 299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                              Currently 
                                                               assigned 
INS form No.                  INS form title                 OMB control
                                                                 No.    
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
I-854.......  Inter-Agency Alien Witness and Informant         1115-0196
               Record.                                                  
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

    Dated: August 18, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-21113 Filed 8-24-95; 8:45 am]
BILLING CODE 4410-10-M