[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45750-45753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21668]


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LEGAL SERVICES CORPORATION
45 CFR Part 1626


Restrictions on Legal Assistance to Aliens

AGENCY: Legal Services Corporation.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule completely revises the Legal Services 
Corporation's (``LSC'' or ``Corporation'') regulation on the provision 
of legal assistance to aliens. The revisions are intended to implement 
a new restriction contained in the Corporation's FY 1996 appropriations 
act prohibiting LSC-funded recipients from providing legal assistance 
to ineligible aliens, regardless of the source of funds used to finance 
the legal assistance. Although this rule is effective upon publication, 
the Corporation solicits public comment on the interim rule in 
anticipation of adoption of a final rule at a later date.

DATES: The interim rule is effective on August 29, 1996. Comments must 
be submitted on or before October 28, 1996.

ADDRESSES: Comments should be submitted to the Office of the General 
Counsel, Legal Services Corporation, 750 First Street, NE., 11th Floor, 
Washington, DC 20002-4250.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, at 
(202) 336-8910.

SUPPLEMENTARY INFORMATION: Section 504(a)(11) of the Legal Services 
Corporation's (``LSC'' or ``Corporation'') appropriations act for 
Fiscal Year 1996, Pub. L. 104-134, 110 Stat. 1321 (1996), prohibits the 
Corporation from providing funds to any person or entity 
(``recipient'') that provides legal assistance to ineligible aliens. 
The current rule, which expressly allows recipients to use their non-
LSC funds to provide legal assistance to ineligible aliens, is 
inconsistent with Sec. 504(a)(11), which effectively restricts a 
recipient's non-LSC funds to the same degree it restricts LSC funds.
    On May 19, 1996, the Operations and Regulations Committee 
(``Committee'') of the Corporation's Board of Directors (``Board'') 
requested the LSC staff to prepare an interim rule to implement the new 
restriction. The Committee held public hearings on staff proposals on 
July 9 and 19, and the Board adopted this interim rule on July 20 for 
publication in the Federal Register. The Committee recommended and the 
Board agreed to publish this rule as an interim rule. An interim rule 
is necessary in order to provide prompt and critically necessary 
guidance to LSC recipients on legislation which is already effective 
and carries strong penalties for noncompliance. Because of the great 
need for guidance on how to comply with substantially revised 
legislative requirements, prior notice and public comment are 
impracticable, unnecessary, and contrary to the public interest. See 5 
U.S.C. 553(b)(3)(B) and 553(d)(3). Accordingly, this rule is effective 
upon publication.
    However, the Corporation solicits public comment on the interim 
rule for review and consideration by the Corporation. After receipt of 
written public comment, the Committee intends to hold public hearings 
to discuss the written comments and to hear oral comments. It is 
anticipated that a final rule will be issued that will supersede this 
interim rule.
    This rule completely revises the prior rule. In general, the 
revisions implement section 504(a)(11) of the Corporation's FY 1996 
appropriations act, which prohibits LSC-funded recipients from 
providing legal assistance to ineligible aliens.
    A section-by-section discussion of this interim rule is provided 
below.

Section 1626.1  Purpose

    This section is revised to ensure that recipients refrain from 
providing legal assistance to ineligible aliens. In addition, language 
has been deleted from the prior rule that limited the requirements of 
the rule to LSC funds. It continues to be a purpose of this rule to 
assist recipients in determining the eligibility of persons seeking 
legal assistance. This rule deletes reference to the confidentiality of 
client records. Confidentiality issues will be dealt with separately 
when the Corporation issues regulations generally dealing with access 
to client records.

Section 1626.2  Definitions

    The definitions of ``eligible alien'' and ``ineligible alien'' have 
been changed but the changes do not alter the substantive meaning of 
the terms. They are intended to simplify the definitions and to delete 
references to outdated statutory authority.

Section 1626.3  Prohibition

    This section sets out the rule's general prohibition against the 
provision of legal assistance to ineligible aliens. All references that 
limit the prohibition to LSC funds have been deleted. In addition, 
since the prior rule's language was confusing, the prohibition has been 
restated more directly and simply. Aside from expanding the prohibition 
to non-LSC funds, there is no substantive change of meaning intended. 
Accordingly, the definition of ``prohibited legal assistance `for' an 
ineligible alien'' has been deleted, because it simply means legal 
assistance to an ineligible alien and that is now clear in the 
prohibition.
    The definition of ``prohibited legal assistance `on behalf of' an 
ineligible alien'' has not been deleted or revised. This definition 
clarifies that recipients may not become involved in the provision of 
legal services that would benefit an ineligible alien by naming as the 
client an eligible alien whose distinct legal rights or interest are 
not affected by the representation.
    Finally, the title of the section has been shortened.

[[Page 45751]]

Section 1626.4  Alien Status and Eligibility

    This section sets out the categories of aliens eligible for legal 
services. The paragraphs have been redesignated, and a new paragraph 
(e) has been added to cross-reference other sections of the rule which 
designate other categories or types of aliens eligible for legal 
assistance.

Section 1626.5  Verification of Citizenship and Eligible Alien Status

    No revisions have been made to this section. However, if necessary, 
the Corporation will update this section to reflect the current 
documents used by the INS to verify categories of aliens. The 
Corporation requests comments on whether the types of documents listed 
in this section need revision or updating and whether there are other 
documents that should be included in the rule.

Section 1626.6  Change in Circumstances

    The prior Sec. 1626.6 has been deleted because it allowed the use 
of non-LSC funds for pending cases involving representation of 
ineligible aliens. Recipients may no longer use non-LSC funds for 
ineligible aliens, and the underlying statutory prohibition provides no 
basis for a waiver of the prohibition. The new Sec. 1626.6 is a revised 
version of the prior Sec. 1626.7. This new section reflects the new 
statutory restriction that recipients may not provide legal assistance 
to ineligible aliens with non-LSC funds. It provides that, if a 
recipient learns that an eligible alien client becomes ineligible 
through a change in circumstances, the recipient must discontinue 
representation of the client consistent with the attorney's 
professional responsibilities.

Section 1626.7  Special Eligibility Questions

    This section was Sec. 1626.10 in the prior rule. Only technical 
changes have been made to this section.

Section 1626.8 H-2  Agricultural Workers

    This section was numbered Sec. 1626.11 in the prior rule. Only 
technical changes have been made to this section.

Section 1626.9  Replenishment Agricultural Workers

    This section was numbered Sec. 1626.12 in the prior rule. It is 
redesignated as Sec. 1626.9.

Section 1626.10  Recipient Policies, Procedures and Recordkeeping

    This new section requires that recipient governing bodies establish 
written policies and procedures that will guide recipient staff to 
ensure compliance with this rule. It also requires the recipient to 
maintain records sufficient to document compliance with this part.

List of Subjects in 45 CFR Part 1626

    Aliens, Grant programs--law, Legal services, Migrant labor, 
Reporting and record keeping requirements.

    For reasons set forth in the preamble, 45 CFR part 1626 is revised 
to read as follows:

PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS

Sec.
1626.1  Purpose.
1626.2  Definitions.
1626.3  Prohibition.
1626.4  Alien status and eligibility.
1626.5  Verification of citizenship and eligible alien status.
1626.6  Change in circumstances.
1626.7  Special eligibility questions.
1626.8  H-2 agricultural workers.
1626.9  Replenishment agricultural workers.
1626.10  Recipient policies, procedures and recordkeeping.

    Authority: Pub. L. 104-134, 110 Stat. 1321.


Sec. 1626.1  Purpose.

    This part prohibits recipients from providing legal assistance for 
or on behalf of ineligible aliens. It is also designed to assist 
recipients in determining the eligibility and immigration status of 
persons who seek legal assistance and to provide guidelines for 
referral of ineligible persons.


Sec. 1626.2  Definitions.

    (a) Eligible alien means a person who is not a U.S. citizen but who 
meets the requirements of Sec. 1626.4.
    (b) Ineligible alien means a person who is not a U.S. citizen and 
who does not meet the requirements of Sec. 1626.4.
    (c) Rejected refers to an application for adjustment of status that 
has been denied by the Immigration and Naturalization Service (INS) and 
is not subject to further administrative appeal.
    (d) To provide legal assistance on behalf of an ineligible alien is 
to render legal assistance to an eligible client which benefits an 
ineligible alien and does not affect a specific legal right or interest 
of the eligible client.


Sec. 1626.3  Prohibition.

    Recipients may not provide legal services for or on behalf of an 
ineligible alien beyond normal intake and referral services.


Sec. 1626.4  Alien status and eligibility.

    Subject to all other eligibility requirements and restrictions of 
the LSC Act and regulations and other applicable law, a recipient may 
provide legal assistance to an alien who is present in the United 
States and who is within one of the following categories:
    (a) An alien lawfully admitted for permanent residence as an 
immigrant as defined by section 1101(a)(20) of the Immigration and 
Nationality Act (INA) (8 U.S.C. 1101(a)(20));
    (b) An alien who is either married to a United States citizen or is 
a parent or an unmarried child under the age of 21 of such a citizen 
and who has filed an application for adjustment of status to permanent 
resident under the Immigration and Nationality Act, and such 
application has not been rejected;
    (c) An alien who is lawfully present in the United States pursuant 
to an admission under section 207 of the Immigration and Nationality 
Act (8 U.S.C. 1157 relating to refugee admissions) or who has been 
granted asylum by the Attorney General under section 208 of the 
Immigration and Nationality Act (8 U.S.C. 1158), or who is lawfully 
present in the United States as a result of being granted conditional 
entry pursuant to section 203(a)(7) of the Immigration and Nationality 
Act (8 U.S.C. 1153(a)(7)) before April 1, 1980, because of persecution 
or fear of persecution on account of race, religion, or political 
opinion or because of being uprooted by catastrophic natural calamity;
    (d) An alien who is lawfully present in the United States as a 
result of the Attorney General's withholding of deportation pursuant to 
section 243(h) of the Immigration and Nationality Act (8 U.S.C. 
1253(h)); or
    (e) An alien who meets the requirements of Sec. 1626.7, 1626.8 or 
1626.9.


Sec. 1626.5  Verification of citizenship and eligible alien status.

    (a) A citizen seeking representation shall attest in writing in a 
form approved by the Corporation to the fact of his or her United 
States citizenship. Verification of citizenship shall not be required 
unless a recipient has reason to doubt that a person is a United States 
citizen.
    (1) If verification is required, a recipient shall accept the 
original or a certified copy of any of the following documents as 
evidence of citizenship:
    (i) United States passport;
    (ii) Birth certificate;
    (iii) Naturalization certificate;
    (iv) United States Citizenship Identification Card (INS Form 1-
197); and
    (v) Baptismal certificate showing place of birth within the United 
States

[[Page 45752]]

and date of baptism within two months after birth.
    (2) If a person is unable to produce any of the documents in 
paragraph (a)(1) of this section, he or she may submit a notarized 
statement signed by a third party, who shall not be an employee of the 
recipient and who can produce proof of that party's own United States 
citizenship, that the person seeking legal assistance is a United 
States citizen.
    (b) An alien seeking representation shall submit appropriate 
documents to verify eligibility. A recipient shall accept originals of 
any of the following documents as proof of eligibility:
    (1) An alien in the category specified in Sec. 1626.4(a) shall 
present an Alien Registration Receipt Card (INS Forms 1-151, or 1-551), 
a Temporary Evidence of Lawful Admission for Permanent Residence form 
(INS Form 1-181B), or a valid passport and immigration visa.
    (2) An alien in the category specified in Sec. 1626.4(b) shall 
present the following documents:
    (i) The fee receipt issued to the alien by the Immigration and 
Naturalization Service (INS) at the time that the Application for 
Status as Permanent Resident (INS Form 1-485) was filed; a copy of the 
Application for Status as Permanent Resident accompanied by a notarized 
statement signed by the alien that such form was filed with INS; a copy 
of the Application for Immigrant Visa & Alien Registration (Department 
of State Form FS-510) accompanied by a notarized statement signed by 
the alien that such form was filed with a consulate office; or a copy 
of the Application for Suspension of Deportation (INS Form 1-256A) 
accompanied by a notarized statement signed by the alien that such form 
was filed with INS; and
    (ii) A copy of the alien's marriage certificate accompanied by 
proof of the spouse's U.S. citizenship; a copy of the United States 
birth certificate, baptismal certificate, adoption decree or other 
documents demonstrating that the alien is the parent of a United States 
citizen under the age of 21; a copy of the alien's birth certificate, 
baptismal certificate, adoption decree, or other documents 
demonstrating that the alien is a child under the age of 21, 
accompanied by proof that the alien's parent is a United States 
citizen; or in lieu of the above, a copy of the Petition to Classify 
Status of Alien Relative for Issuance of Immigrant Visa (INS Form 1-
130) containing information that demonstrates that the alien is related 
to such a United States citizen spouse, parent, or child, accompanied 
by a notarized statement that such form was filed with INS.
    (3) An alien in the category specified in Sec. 1626.4(c) shall 
present an Arrival-Departure Record (INS Form 1-94) marked ``section 
207'' or ``Refugee'' (if claiming refugee status), ``section 208'' or 
``Asylum'' (if claiming asylum status), or ``section 203(a)(7)'' or 
``conditional entry'' (if claiming conditional entrant status).
    (4) An alien in the category specified in Sec. 1626.4(d) shall 
present an Arrival-Departure Record (INS Form 1-94) marked ``section 
243(h),'' or a court order or letter signed by an immigration judge 
stating that the Attorney General is withholding deportation of the 
alien.
    (5) A recipient may also accept any other authoritative document 
issued by INS that provides evidence of alien status for the categories 
of aliens listed in paragraph (b) of this section.
    (c) A Temporary Resident Card (INS Form 1-688) shall be considered 
evidence of eligible alien status in the case of a Special Agricultural 
Worker. See Sec. 1626.7(b). This form shall not be considered evidence 
of eligible alien status in the case of an alien who has obtained an 
adjustment in status under the General Amnesty provisions of 
Immigration Reform and Control Act (IRCA), 8 U.S.C. 1255a, unless the 
alien can qualify independently under another exception to the general 
restriction as stated in Sec. 1624.4(a), (b), (c) or (d).
    (d) A recipient shall upon request furnish each person seeking 
legal assistance with a list of the documents described in this 
section. Persons applying for legal assistance are responsible for 
producing the appropriate documents to verify eligibility.
    (e) In an emergency, legal services may be provided prior to 
compliance with all the requirements of Sec. 1626.5(a) through (d) if:
    (1) It is not feasible for a citizen or an alien to come to the 
recipient's office or otherwise physically transmit documentation to 
the recipient before commencement of representation, such required 
information as can be obtained orally shall be recorded by the 
recipient and written documentation shall be submitted as soon as 
possible;
    (2) An alien is physically present, but cannot produce required 
documentation, he or she shall make a written statement identifying the 
category listed in Sec. 1626.4 under which he or she claims eligibility 
and the documents that will be produced to verify that status; this 
documentation shall be submitted as soon as possible;
    (3) The recipient adheres strictly to the same criteria for 
emergency assistance used in their general determination of priorities 
and uses the procedures of Sec. 1626.5(e) only in cases meeting these 
criteria; and
    (4) The recipient informs clients accepted under these procedures 
that only limited emergency legal assistance may be provided them 
without satisfactory documentation and that failure or inability to 
produce satisfactory documentation will compel the recipient to 
discontinue representation consistent with the recipient's professional 
responsibilities as soon as the emergency no longer exists.
    (f) No written verification is required when the only service 
provided for an eligible alien or citizen is brief advice and 
consultation by telephone. The term ``brief advice'' is limited to 
advice provided by telephone and does not include a continuous 
representation of a client.


Sec. 1626.6  Change in circumstances.

    If, to the knowledge of the recipient, a client who was an eligible 
alien becomes ineligible through a change in circumstances, a recipient 
must discontinue representation of the client consistent with the 
applicable rules of professional responsibility.


Sec. 1626.7  Special eligibility questions.

    (a) The alien restriction in Sec. 1626.3 is not applicable to the 
following:
    (1) Citizens of the following Pacific Island entities:
    (i) Commonwealth of the Northern Marinas;
    (ii) Republic of Palau;
    (iii) Federated States of Micronesia;
    (iv) Republic of the Marshall Islands;
    (2) All Canadian-born American Indians at least 50% Indian by 
blood;
    (3) Members of the Texas Band of Kickapoo.
    (b) An alien who qualified as a special agricultural worker and 
whose status is adjusted to that of temporary resident alien under the 
provisions of IRCA is considered a permanent resident alien for all 
purposes except immigration under the provisions of section 302 of Pub. 
L. 99-603, 100 Stat. 3422, 8 U.S.C. 1160(g). Since the status of these 
aliens is that of permanent resident alien under section 1101(a)(20) of 
Title 8, these workers may be provided legal assistance. These workers 
are ineligible for legal assistance in order to obtain the adjustment 
of status of temporary resident under IRCA, but are eligible for legal 
assistance after the application for adjustment of status to that of 
temporary resident has been filed, as long as such application has not 
been rejected and the applicant is eligible for services under 
Sec. 1626.4(b).

[[Page 45753]]

Sec. 1626.8  H-2 Agricultural workers.

    (a) Nonimmigrant agricultural workers admitted under the provisions 
of 8 U.S.C. 1101(a)(15)(h)(ii), commonly called H-2 workers, are 
considered to be aliens described in 8 U.S.C. 1101(a)(20) and thus, if 
otherwise eligible, may be provided legal assistance regarding the 
matters specified in section 305 of the Immigration Reform and Control 
Act of 1986, Pub. L. 99-603, Stat. 3434, 8 U.S.C. 1101 note.
    (b) The following matters which arise under the provisions of the 
worker's specific employment contract may be the subject of legal 
assistance by an LSC-funded program:
    (1) Wages;
    (2) Housing;
    (3) Transportation; and
    (4) Other employment rights as provided in the worker's specific 
contract under which the nonimmigrant worker was admitted.


Sec. 1626.9  Replenishment agricultural workers.

    Aliens who acquire the status of aliens lawfully admitted for 
temporary residence as replenishment agricultural workers under section 
210A(c) of the Immigration and Nationality Act, such status not having 
changed, are considered to be aliens described in 8 U.S.C. 1101(a)(20) 
and thus may receive legal assistance, if otherwise eligible.


Sec. 1626.10  Recipient policies, procedures and recordkeeping.

    Each recipient shall adopt written policies and procedures to guide 
its staff in complying with this part and shall maintain records 
sufficient to document the recipient's compliance with this part.

    Dated: August 20, 1996.
Suzanne B. Glasow,
Senior Counsel for Operations & Regulations.
[FR Doc. 96-21668 Filed 8-28-96; 8:45 am]
BILLING CODE 7050-01-P