[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Proposed Rules]
[Pages 43028-43030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21196]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 61, No. 162 / Tuesday, August 20, 1996 / 
Proposed Rules  

[[Page 43028]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[INS No. 1353-91; AG Order No. 2047-96]
RIN 1115-AC70


Adjustment of Status to That of Person Admitted for Permanent 
Residence: Conditional Residents and Fiance(e)s

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would clarify that an alien remains 
ineligible for adjustment of status after termination of conditional 
resident status. It would also modify provisions regulating the 
adjustment of status of a nonimmigrant fiance(e) to reflect the current 
statute and to allow adjustment of status based on a marriage occurring 
more than 90 days after admission. The clarification concerning 
adjustment of status after termination of conditional residency is 
necessary in view of the determination by the Board of Immigration 
Appeals' (the Board) finding that the current regulations do not 
prohibit the adjustment of status of an alien whose conditional 
resident status has been terminated. Matter of Stockwell, 20 I&N Dec. 
309 (BIA 1991). This proposed rule would also ensure compliance with 
the existing statute and eliminate hardships to certain persons who 
were unable to marry until after the expiration of the alien spouse's 
period of admission as a nonimmigrant fiance(e).

DATES: Written comments must be submitted on or before October 21, 
1996.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 
20536, Attn: Public Comment Clerk. To ensure proper handling, please 
reference the INS number 1353-91 on your correspondence. Comments are 
available for public inspection at this location by calling (202) 514-
3048 to arrange an appointment.

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

SUPPLEMENTARY INFORMATION: The Immigration Marriage Fraud Amendments of 
1986 (IMFA), Pub. L. 99-639, November 10, 1986, were enacted to combat 
fraud perpetrated by aliens who marry only to obtain immigration 
benefits. The IMFA amended the Immigration and Nationality Act (the 
Act) by adding a new section 216, which imposes an initial 2-year 
period of conditional residency on a person who acquired permanent 
resident status based on a recent marriage. It also provides a 
comprehensive procedure by which a conditional resident may have these 
conditions removed following approval of a petition filed jointly with 
the citizen or lawful permanent resident spouse, or after approval of a 
waiver of the joint petitioning requirement. Section 216 of the Act 
further mandates termination of the conditional resident's status if he 
or she fails to comply with the requirements for removal of the 
conditions at the end of the 2-year period, or if it is found that the 
marriage was entered into for the purpose of obtaining immigration 
benefits or is otherwise determined to be ``improper,'' as defined in 
section 216(b) of the Act. Section 216 of the Act also allows an alien 
whose status has been terminated to ask the immigration judge to review 
this decision during deportation proceedings.
    The IMFA also revised the Act by adding a new section 245(d). This 
section bars an alien who was granted permanent residence on a 
conditional basis under section 216 of the Act from adjusting status 
under section 245 of the Act. This bar prevents a conditional resident 
from circumventing the requirements and restrictions of section 216 of 
the Act by filing a new application for adjustment of status.
    In Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), the Board of 
Immigration Appeals (the Board) determined that the bar to adjustment 
of status provided in section 245(d) of the Act no longer applies after 
an alien's conditional residency has been terminated. The Board based 
this decision, which is binding on the Immigration and Naturalization 
Service (the Service), on its interpretation of the Service's 
implementing regulations.
    In its majority decision, the Board state: ``While the statutory 
language seems to leave open the question of whether the bar [of 
section 245(d) of the Act] extends to an alien whose status as a 
conditional permanent resident has been terminated, we agree * * * that 
the Service's own implementing regulation clearly applies the bar in 
section 245(d) only to aliens currently holding conditional permanent 
resident status.'' Stockwell, supra, slip opinion at 4-5.
    The Board also issued a dissenting opinion, which concluded that 
the section 245(d) bar to adjustment continues after termination of 
conditional residency. This opinion, while acknowledging that the 
regulation could be read to apply only to those aliens currently in 
conditional status, points out that: ``* * * the [language of section 
245(d) of the Act] does not restrict its application to aliens who are 
admitted on a conditional basis and remain in that status. The language 
clearly prohibits the Attorney General from adjusting the status of any 
alien who has been admitted on a conditional basis under section 216.''
    ``The majority does not challenge the clarity of the statute. 
Rather, it relies on the regulation promulgated at 8 CFR 
Sec. 245.1(b)(12) (1991) [subsequently redesignated as 8 CFR 
245.1(c)(5) 1995]. * * *''
    ``[T]he regulation issued by the Immigration and Naturalization 
Service can be read to apply only to those aliens who are currently in 
conditional status. However, that is not the only reasonable 
construction of the regulation. The regulation does not address the 
eligibility for adjustment of status of those aliens whose conditional 
status has been terminated. Where the statute prohibits such 
adjustment, and the regulation does not address it, the statute should 
be applied. In any case the regulation should be construed in a manner 
that is consistent with the statute, The regulation can reasonably be 
construed as not having addressed

[[Page 43029]]

the situation of a conditional permanent resident whose status has been 
terminated. Moreover, it would frustrate the deterrent purpose of the 
statute to permit the adjustment of the status of an alien whose status 
as a conditional permanent resident has been terminated because of 
failure to comply with the requirements of section 216.''
    ``It may be argued that, in promulgating the regulation, the 
Service interpreted the statute to apply only to aliens currently in a 
conditional status. Since the specific question of the applicability of 
the statute to aliens whose status has been terminated was not 
addressed, such an argument is purely speculative.'' Stockwell, supra, 
slip opinion at 8-9 (Morris, dissenting).
    In promulgating this regulatory provision, the Service did not 
intend to limit applicability of the bar in section 245(d) of the Act 
to aliens currently holding conditional permanent resident status. Such 
a stance, by allowing a conditional resident to circumvent the 
requirements and restrictions of section 216 of the Act by filing a new 
request for adjustment of status after the Service terminated 
conditional residency, would have been contrary to the purpose of IMFA. 
It would also have discounted the clear language of section 245(d) of 
the Act, and would have ignored the fact that Congress has provided a 
comprehensive procedure that permits a conditional resident to seek 
removal of the conditions imposed by section 216 of the Act.
    However, 8 CFR 245.1(c)(5) does not explicitly state that the bar 
continues after termination of conditional residency. The proposed 
revision of 8 CFR 245.1(c)(5) would resolve the misunderstanding 
concerning this matter. It would supersede the Board's interpretation 
in Matter of Stockwell by amending 8 CFR 245.1(c)(5) to clarify that an 
alien admitted for permanent residence on a conditional basis under 
section 216 of the Act remains ineligible for adjustment of status 
under section 245 of the Act even after termination of status under 
section 216 of the Act. Since the regulation would be promulgated by 
the Attorney General under authority granted by section 103 of the Act, 
it would provide binding rules of decision for the Executive Office for 
Immigration Review, including the Board and the Immigration Courts, as 
well as the Service.
    The proposed rule would also address the effect of termination of 
conditional status under section 216A of the Act on the bar to 
adjustment provided in section 245(f) of the Act. Sections 216A and 
245(f) of the Act, added by the Immigration Act of 1990 (IMMACT), Pub. 
L. 101-649, November 29, 1990, relate to conditional status for certain 
alien entrepreneurs and contains language similar to that of sections 
216 and 245(d) of the Act. To avert possible future misunderstandings, 
the Service proposes to amend 8 CFR 245.1(c)(5) to also clarify that 
section 245(f) of the Act continues to prohibit the adjustment of 
status under section 245 of the Act of an alien entrepreneur who has 
been granted permanent residence on a conditional basis after his or 
her status has been terminated under section 216A of the Act.
    In addition to prohibiting the adjustment of status of a 
conditional resident under section 245(a), IMFA also amended provisions 
of the Act relating to the acquisition of permanent residence by 
persons who entered the United States as nonimmigrant fiance(e)s of 
United States citizens. A review of the IMFA legislative history shows 
that Congress intended for these aliens, after they marry, to seek 
permanent resident status under the adjustment of status provision of 
section 245 of the Act. H. Rep. No. 906, 99th Cong. 2d Sess. at 11 
(1986). Despite this intent, the actual text of section 3(c) of IMFA 
made these aliens ineligible for adjustment. Congress corrected this 
anomaly by enacting the Immigration Technical Corrections Act of 1988 
(the Technical Corrections Act), Pub. L. 100-525, October 24, 1988. The 
amendments made by section 7(b) of the Technical Corrections Act allow 
an alien fiance(e) and his or her minor children to obtain permanent 
residence, but only as a result of the marriage of the fiance(e) to the 
citizen petitioner, and only as a conditional permanent resident under 
section 216 of the Act.
    The Service published a final rule implementing IMFA on August 10, 
1988, in the Federal Register at 53 FR 30011-30023. A few months later, 
Congress enacted the Technical Corrections Act. The Service proposes in 
this rule to amend 8 CFR 245.1(c)(6) to align its wording more closely 
with the language of the statute as amended by the Technical 
Corrections Act. The proposed revision would explicitly state that 
these aliens are subject to the conditions imposed by section 216 of 
the Act and clarify the applicability of paragraph (c)(6) to the 
alien's minor children as well as to the principal alien.
    The proposal would also bar adjustment of an alien who was admitted 
under section 101(a)(15)(K) of the Act unless the alien would become a 
conditional permanent resident within 24 months of the date of the 
marriage. This restriction is necessary because section 245(d) of the 
Act prohibits the adjustment of status of an alien fiance(e) or child 
of a fiance(e) admitted under section 101(a)(15)(K) of the Act except 
to that of an alien lawfully admitted to the United States for 
permanent residence on a conditional basis under section 216 of the 
Act. Section 216 of the Act provides permanent residence on a 
conditional basis only for an alien who becomes a permanent resident 
within 24 months of the date of the qualifying marriage.
    The proposed rule would also modify the provisions of 8 CFR 
245.1(c)(6) relating to a marriage taking place more than 90 days after 
the alien fiance(e)'s admission to the United States. As currently 
written, paragraph (c)(6) appears to bar adjustment if the alien 
fiance(e) and the citizen petitioner do not marry within 90 days of the 
alien's entry. The provisions of paragraph (c)(6) were based on those 
of section 101(a)(15)(K) of the Act, which require the alien and the 
citizen petitioner to intend to marry within 90 days of entry in order 
to qualify the alien for entry as a nonimmigrant fiance(e). Also, 
section 214(d) of the Act renders the alien deportable if the couple 
does not marry within 3 months of entry. Section 245(d) of the Act does 
not, however, impose a time frame during which the marriage must take 
place.
    The proposed rule would continue to bar adjustment if the couple 
fails to marry. However, prospective spouses are sometimes forced by 
circumstances outside their control to delay marriage until after 
expiration of the 90-day period of admission as a fiance(e). To prevent 
hardship to these individuals, the proposal would allow an alien who 
was admitted under section 101(a)(15)(K) of the Act as a fiance(e) or a 
child of a fiance(e) to seek adjustment of status based on the delayed 
marriage between the citizen petitioner and the fiance(e).
    The nonimmigrant fiance(e) or child of a fiance(e) would be allowed 
to apply for adjustment of status as an immediate relative of a citizen 
on the basis of an approved Form I-130, Petition for Alien Relative, 
filed by the citizen petitioner who had originally filed the fiance(e) 
visa petition. A nonimmigrant fiance(e) seeking adjustment based on a 
delayed marriage, like a nonimmigrant fiance(e) seeking adjustment 
based on a timely marriage, would become ineligible for adjustment of 
status if more than 24 months elapsed between the date of the marriage 
and the approval of the application for adjustment of status.

[[Page 43030]]

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 would not have a significant economic 
impact on a substantial number of small entities because of the 
following factors: The rule would address the grant of immigration 
benefits to certain individuals based on a marriage. It would also 
clarify restrictions placed on future acquisition of certain 
immigration benefits by individuals whose conditional permanent 
resident status has been terminated. It would not have a significant 
economic effect, nor would it affect small entities.

Executive Order 12866

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

Executive Order 12612

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

Paperwork Reduction Act

    The information collection requirement contained in this rule has 
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 in 8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, part 145 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

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

    1. The authority citation for part 145 continues to read as 
follows:

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


Sec. 245.1  [Amended]

    2. In Sec. 245.1 paragraph (c)(3) is amended by removing the word 
``and'' at the end of the paragraph.
    3. In Sec. 245.1, paragraph (c)(4) is amended by removing the ``.'' 
at the end of the paragraph and replacing it with a ``;''.
    4. In Sec. 245.1, paragraph (c)(7) is amended by removing the ``.'' 
at the end of the paragraph, and replacing it with a ``; and''.
    5. In Sec. 245.1, paragraphs (c)(5) and (c)(6) are revised to read 
as follows:


Sec. 245.1  Eligibility.

* * * * *
    (c) * * *
    (5) Any alien who has been lawfully admitted for permanent 
residence on a conditional basis under section 216 or 216A of the Act, 
regardless of any other quota or nonquota immigrant visa classification 
for which the alien may otherwise be eligible, and regardless of 
whether the alien's conditional status has been terminated pursuant to 
sections 216 or 216A of the Act;
    (6) Any alien admitted to the United States as a nonimmigrant alien 
fiance(e) under section 101(a)(15)(K) of the act, unless:
    (i) The alien is seeking to adjust status under section 245(a) of 
the Act to that of an alien lawfully admitted to the United states for 
permanent residence on a conditional basis under section 216 of the 
Act;
    (ii) The alien is seeking adjustment based on the marriage (or, in 
the case of a minor child, the marriage of the alien parent) to the 
United States citizen whose approved petition pursuant to Sec. 214.2(k) 
of this chapter was the basis for issuance of the alien's nonimmigrant 
visa under section 101(a)(15)(K) of the Act;
    (iii) The alien is seeking to adjust status within 24 months of the 
date of the marriage; and
    (iv) The marriage was solemnized:
    (A) Within 90 days of the entry of the alien fiance1(e) into the 
United States; or
    (B) More than 90 days after the entry of the alien fiance(e) into 
the United States if the alien spouse or child applies for and is 
otherwise eligible for adjustment of status as an immediate relative on 
the basis of an approved Form I-130, Petition for Alien Relative, filed 
by the citizen whose approved petition pursuant to Sec. 214.2(k) of 
this chapter was the basis for issuance of the alien's nonimmigrant 
visa under section 101(a)(15)(K) of the Act;
* * * * *
    Dated: August 13, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-21196 Filed 8-19-96; 8:45 am]
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