[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19409-19417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10035]


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LEGAL SERVICES CORPORATION

45 CFR Part 1626


Restrictions on Legal Assistance to Aliens

Agency: Legal Services Corporation.

Action: Final rule and interim rule with request for comments.

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SUMMARY: This final rule revises the Legal Services Corporation's 
(``Corporation'' or ``LSC'') interim rule on legal representation of 
aliens. This rule is intended to implement the restrictions on alien 
representation in the Corporation's Fiscal Year (``FY'') 1996 
appropriations act that are currently incorporated by reference into 
the Corporation's FY 1997 appropriations act. In general, these 
restrictions apply to a recipient's LSC and non-LSC funds where, under 
prior legislation and the prior rule, the restrictions applied only to 
a recipient's LSC funds. In addition, the final rule includes a number 
of technical and substantive revisions suggested by public comments, 
and substantially reorganizes portions of the rule to give it a more 
logical and coherent structure and to make it easier to understand and 
apply. Finally, this final rule incorporates provisions to implement 
the Kennedy Amendment, a new statutory provision permitting the use of 
a recipient's non-LSC funds for legal assistance to otherwise 
ineligible aliens who are the victims of domestic abuse. This provision 
was included in the Corporation's FY 1997 appropriations act, which was 
enacted after publication of the interim rule. Because these provisions 
were added after publication of the interim rule, the Corporation is 
publishing the Kennedy Amendment provisions as interim provisions and 
is requesting public comment on the manner in which the Corporation has 
implemented the Kennedy Amendment in this rule.

DATES: Effective Dates: The final rule is effective on May 21, 1997. 
The interim provisions, Sec. 1612.2(f) and (g) and Sec. 1612.4, are 
effective on April 21, 1997.
    Comments: Comments on the interim provisions must be submitted on 
or before May 21, 1997.

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

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

SUPPLEMENTARY INFORMATION: Section 504(a)(11) of the LSC appropriations 
act for FY 1996, Pub. L. 104-134, 110 Stat. 1321 (1996), prohibits the 
Corporation from providing funding to any person or entity 
(``recipient'') that provides legal assistance to ineligible aliens. 
This restriction effectively restricts a recipient's non-LSC funds for 
alien representation to the same degree as LSC funds. The prior rule, 
promulgated in 1983, expressly allowed recipients to use their non-LSC 
funds to provide legal assistance to ineligible aliens.
    On May 19, 1996, the Operations and Regulations Committee 
(``Committee'') of the LSC Board of Directors (``Board'') requested the 
LSC staff to prepare an interim rule to implement the restrictions in 
Sec. 504(a)(11). The Committee held public hearings on staff proposals 
on July 9 and 10, 1996, and the Board adopted the interim rule on July 
20 which was published in the Federal Register on August 29, 1996, at 
61 FR 45750.
    The interim regulation extended the restrictions on alien 
representation to recipients' non-LSC funds and made numerous other 
revisions to the prior rule to correct technical problems, to clarify 
several confusing provisions, and to remove outdated provisions. No 
other major structural revisions or substantive changes were made by 
the interim rule. This final rule includes changes made to the interim 
rule largely in response to public written and oral comments and 
recommendations made by the LSC staff. Public hearings were held on the 
rule by the Committee on December 14, 1996, and January 5, 1997, and by 
the LSC Board on January 6, 1997, when this final rule was adopted.
    Subsequent to the publication of the interim rule, Congress passed 
the Corporation's 1997 appropriations act, Pub. L. 104-208, 110 Stat. 
3009 (1996). That legislation amended the Sec. 504(a)(11) restriction 
in the FY 1996 appropriations act to permit recipients to use non-LSC 
funds to serve indigent aliens who are victims of domestic abuse on 
matters directly related to the abuse (``Kennedy Amendment''). The 
Kennedy Amendment became effective on October 1, 1996, during the 
comment period for the interim rule. A number of comments urged 
incorporation of the Kennedy Amendment into the final regulations, even 
though the interim rule understandably made no mention of the Kennedy 
Amendment because the rule was published before its enactment. While 
the few comments the Corporation received made suggestions on how to 
include the Amendment into this rule, the general public was not 
provided notice of the Amendment. Accordingly, the Corporation requests 
comments on these provisions for its review and consideration. In 
addition, the Corporation has determined that it is necessary to 
publish the Kennedy Amendment provisions as interim rules, effective 
upon publication, in order to provide prompt and critically needed 
guidance to LSC recipients on the changed status of legislative 
requirements. LSC determined that because of the circumstances, prior 
notice and public comment were impracticable, unnecessary and contrary 
to the public interest. See 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The 
Corporation intends to hold a public

[[Page 19410]]

hearing on the provisions and anticipates publishing a final version of 
the Kennedy Amendment provisions in a later rulemaking. With the 
exception of the Kennedy Amendment provisions, Sec. 1626.2 (f) and (g) 
and Sec. 1626.4, this rule is final.
    The Corporation received 13 timely comments on the interim rule. 
The commenters raised a number of specific substantive issues and also 
suggested a need for numerous technical and structural changes to 
clarify or correct minor points addressed by the regulation. For the 
most part, the Corporation has included the suggested technical and 
structural revisions in this final regulation.
    Most of the comments addressed four clusters of issues: (1) the 
need to incorporate the Kennedy Amendment into part 1626; (2) the need 
to provide a mechanism to update and expand the list of acceptable 
documents used to establish alien eligibility; (3) issues relating to 
verification of citizenship; and (4) the need to address the special 
confidentiality concerns of aliens. In addition, individual comments 
addressed a series of specific issues raised by the interim rule. The 
Corporation has addressed issues raised by the comments and includes 
its analysis of those issues in the section-by-section discussion of 
the final rule and the interim provisions provided below.

Section 1626.1  Purpose

    The final rule revises the ``Purpose'' section of the interim rule, 
by stating affirmatively that the rule is intended to ensure that 
recipients provide legal assistance only to citizens and eligible 
aliens, rather than stating the purpose as a prohibition on the 
representation of certain aliens. It continues to be a purpose of this 
rule to assist recipients in determining eligibility and alien status.

Section 1626.2  Definitions

    The final rule includes all of the definitions that were in the 
interim rule, but also incorporates several new definitions, including 
definitions of ``citizen'' and ``United States'' and terms used in the 
Kennedy Amendment. The definitions of ``citizen'' and ``United States'' 
reference the sections of the Immigration and Nationality Act (``INA'') 
that define those terms or describe the individuals covered by those 
terms for purposes of the rule. As suggested by comments, this 
commentary notes that persons born in Puerto Rico and the U.S. Virgin 
Islands are U.S. citizens. Furthermore, an individual may be a U.S. 
citizen even though born outside the U.S. and not naturalized. For 
example, persons born outside of the U.S. may have acquired U.S. 
citizenship at birth from their U.S. citizen parent or parents, or 
through naturalization of their parents.

Sections 1626.2 (f) and (g) and Sec. 1626.4  Kennedy Amendment 
Provisions

    Many of the comments specifically urged LSC to incorporate the 
``Kennedy Amendment'' into the final version of Part 1626. The 
Amendment permits LSC recipients to use non-LSC funds to provide legal 
assistance to ineligible aliens who are the victims of domestic abuse 
when the legal assistance is ``directly related to the prevention of, 
or obtaining relief from,'' the abuse. All of the Kennedy Amendment 
provisions are published as interim rules on which the Corporation 
seeks public comment.
    To implement the Kennedy Amendment, this rule contains two new 
definitions in Sec. 1626.2 and adds applicability provisions in 
Sec. 1626.4. The first new definition is found in Sec. 1626.2(f) which 
defines the phrase ``battered or subjected to extreme cruelty,'' the 
term for domestic abuse used in the Kennedy Amendment. The Kennedy 
Amendment states that ``battered or subjected to extreme cruelty has 
the meaning given such term under regulations issued pursuant to 
subtitle G of the Violence Against Women Act of 1994.''
    On March 26, 1996, the Immigration and Naturalization Service 
(``INS'') of the Department of Justice issued an interim rule which 
contains the definition referred to in the Kennedy Amendment. See 61 FR 
13074. The regulation provides the following definition:
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was battered by or was the subject of extreme cruelty'' 
includes, but is not limited to, being the victim of any act or 
threatened act of violence, including any forceful detention, which 
results or threatens to result in physical or mental injury. 
Psychological or sexual abuse or exploitation, including rape, 
molestation, incest (if the victim is a minor), or forced prostitution 
shall be considered acts of violence. Other abusive actions may also be 
acts of violence under certain circumstances, including acts that, in 
and of themselves, may not initially appear violent but that are a part 
of an overall pattern of violence.
    The INS definition is subject to change because the INS interim 
rule has not been finalized. Therefore, the Corporation has cited but 
has not included the language of the INS definition in the text of this 
rule. Thus, if the INS definition changes, this rule would still be 
correct.
    The second definition is of the phrase ``legal assistance directly 
related to the prevention of, or obtaining relief from, the battery or 
cruelty'' and is found at Sec. 1626.2(g). The comments urged the 
Corporation to define ``directly related'' broadly, to permit 
representation on a wide range of legal issues that would permit the 
victim of abuse to escape from the abusive situation, ameliorate the 
effects of the abuse, and protect against future abuse. Some of the 
comments suggested specific areas of legal representation that should 
be permitted; others urged LSC to permit any legal representation that 
could arguably be described as related to the abuse.
    The Corporation adopted a definition that it believes is consistent 
with the statutory intent. The definition would allow a broad area of 
representation that has the specific purpose of assisting the abused 
spouse or child to escape from the abusive relationship, to ameliorate 
the effects of the abuse or to protect against future abuse. The 
definition, however, would not permit a recipient to use non-LSC funds 
to provide an ineligible alien who has suffered domestic abuse with any 
and all legal assistance that would fall within the recipient's 
priorities. To do so would ignore congressional intent and would also 
ignore the specific language of the exception, which permits recipients 
to provide only assistance that is ``directly related'' to the abuse.
    Although the question of whether a particular service is directly 
related to the abuse will need to be made on a case-by-case basis, the 
following provides some guidance. First, the definition would permit a 
recipient to use non-LSC funds to provide assistance on a broad range 
of family law issues, but would not permit assistance on matters that 
are not directly related to the abusive relationship. For example, a 
recipient could provide legal assistance to seek a civil protection 
order against the abuser and to terminate the marriage and the parental 
rights of the abuser, but could not provide adoption assistance if the 
client remarries and the new spouse, who is also an ineligible alien, 
wishes to adopt the children. Similarly, the definition would permit 
the recipient to use non-LSC funds to provide assistance to secure 
housing, medical or income assistance for the abused spouse and 
children, so they would no longer have to be dependent on the abuser. 
However, absent some evidence that subsequent events were the direct 
result of the abuse, it would not permit them

[[Page 19411]]

to challenge an eviction action by a landlord for non-payment of rent, 
sue the agency administering the medical assistance program for failure 
to pay for specific care, or to challenge a cutoff of public assistance 
for failure to meet work requirements. Finally, the definition would 
permit the recipient to use non-LSC funds to assist the abused spouse 
or child to seek suspension of deportation, or to self-petition for 
immigrant status, a procedure which avoids the necessity of relying on 
the citizen/legal permanent resident abusive spouse or parent's 
willingness to file or pursue the petition on their behalf. Both of 
these procedures are included in the Violence Against Women Act and the 
interim INS regulations which implement that act. See 8 CFR part 204.
    Section 1626.4 on applicability is a new section not found in 
either the interim or prior regulation. Paragraph (a) sets out the 
Kennedy Amendment, and paragraph (b) addresses the confidentiality 
concerns of otherwise ineligible aliens who may be served under the 
Kennedy Amendment.
    As indicated above, numerous comments urged the Corporation to 
incorporate the Kennedy Amendment in the final rule as an exception to 
the restrictions on alien representation. The Kennedy Amendment is not 
stated as an exception. Rather, it clarifies that the restriction on 
alien representation in Sec. 504(a)(11) shall not be construed to 
prohibit representation of persons who fall within the terms of the 
Kennedy Amendment. Accordingly, the Corporation decided to state that 
the prohibition in the rule does not apply to applicants for service 
who meet the criteria set out in the Kennedy Amendment. Thus, victims 
of abuse under the Kennedy Amendment may be represented by recipients 
with non-LSC funds, provided that the legal assistance is directly 
related to the abuse. Under this analysis, the immigration status of 
Kennedy Amendment clients is essentially irrelevant, because they may 
be served with non-LSC funds regardless of citizenship or alien status.
    Section 1626.4(b) was included to address special confidentiality 
concerns raised by several of the comments. Those comments discussed 
the special needs of aliens with respect to confidentiality of 
information relating to immigration status. Comments particularly noted 
the need to protect from disclosure information provided to a recipient 
by (1) applicants for service who are rejected or referred to another 
legal services provider because they do not fall within one of the 
permitted categories of aliens who may be served or (2) clients who are 
represented using non-LSC funds under the Kennedy Amendment. In both of 
these situations, the information on alien status contained in intake 
records, which records are accessible to Federal auditors, could 
potentially lead to loss of employment or educational opportunities, 
deportation, imprisonment or other serious consequences if disclosed. 
Fear that such information might be revealed to the INS or other law 
enforcement agencies, whether or not well-founded, could discourage 
those aliens uncertain of their eligibility for services from seeking 
legal assistance for critical legal needs. The Corporation decided that 
part 1626 should explicitly state that recipients are not required to 
maintain records regarding the immigration status of clients served 
under the Kennedy Amendment.
    Recipients are also not required to maintain immigration records 
for applicants who are rejected or referred to other sources of legal 
assistance. Section 1626.3 clarifies that normal intake and referral 
services are not legal assistance for the purposes of this part. In 
addition, the documentation requirements in Secs. 1626.6 and 1626.7 
specifically do not apply to persons who receive only intake or 
referral services.

Section 1626.3  Prohibition

    This section restates the general prohibition on providing legal 
assistance to ineligible aliens included in the interim regulation. It 
also revises the language of the interim regulation with respect to 
intake and referral, making it clear that normal intake and referral of 
ineligible aliens do not constitute the provision of legal assistance, 
and is not prohibited by this part. Thus, if an ineligible alien seeks 
legal assistance, a recipient may complete intake and either reject the 
applicant or refer the applicant to a private attorney, a non-LSC 
funded legal services provider or a non-legal organization that 
provides immigration assistance. In addition, since applicants who are 
either rejected or referred are not covered by the prohibition, 
recipients are not required to maintain records of alien status for 
those individuals, which was a concern raised by a number of the 
comments and is addressed in more detail in the discussion of 
Sec. 1626.4(b) above.

Section 1626.5  Alien Status and Eligibility

    This section sets out the categories of aliens eligible for legal 
services. It is essentially the same as Sec. 1626.4 of the interim 
regulation except that the text of Sec. 1626.4(c) of the interim 
regulation has been divided into two subparagraphs in this rule for 
clarity. Other technical changes have also been made to the numbering 
and cross citations.

Sections 1626.6, 1626.7 and 1626.8

    Section 1626.5 of the interim rule has been subdivided into 
Secs. 1626.6, 1626.7 and 1628 in this final rule for clarity and ease 
of application. Section 1626.6 deals with verification of citizenship, 
Sec. 1626.7 deals with eligible alien status and Sec. 1626.8 deals with 
emergencies.

Section 1626.6  Verification of Citizenship

    This section is based on Sec. 1626.5(a) of the interim rule, but 
the language has been revised substantially and additional provisions 
have been added in response to numerous comments. This section requires 
applicants for service who claim to be citizens to attest in writing to 
the fact of their citizenship. Only when there is reason to doubt that 
the applicant is a citizen is the recipient required to seek 
documentation to verify the applicant's citizenship.
    Under Sec. 1626.5(f) of the interim regulation, no written 
verification of citizenship was required when only brief service and 
consultation by telephone, without continuing representation, was 
provided. This provision has been simplified and is incorporated into 
Sec. 1626.6(a) of this rule with no substantive changes intended.
    Several comments addressed the issue of when verification of 
citizenship should be required. All noted that under both the interim 
rule and the rule that preceded it, verification of citizenship was 
required only when the ``recipient has reason to doubt that a person is 
a United States citizen.'' The comments also made the point that, while 
not explicitly stated in the regulation itself, recipients are not 
permitted to base a determination that there is reason to doubt a 
person's citizenship on personal characteristics, such as the person's 
accent, limited English-speaking ability, appearance or race, since to 
do so would constitute discrimination. Several of the comments 
suggested that recipients need additional guidance on this issue and 
recommended that the regulation explicitly include language prohibiting 
discrimination, rather than simply including it in the commentary, as 
was done when part 1626 was originally promulgated in 1983. A comment 
submitted by the LSC Office of Inspector General (``OIG''), suggested 
that inclusion of such a statement would be insufficient to cure the 
problem of potential discrimination. The Board agreed that the text of 
the regulation should include a provision explicitly

[[Page 19412]]

prohibiting discrimination, but disagreed that recipients must verify 
citizenship for all applicants who claim citizenship in order to 
prevent any discrimination. Accordingly, the Board added a non-
discrimination provision to Sec. 1626.6(b).
    To guide recipients in this matter, this commentary provides 
several examples of legitimate, non-discriminatory reasons to doubt 
that a particular applicant for service is a citizen. For example, if, 
in the course of an interview, an applicant who claims to be a citizen 
mentions having difficulties with the INS or being denied certain 
benefits because of alien status, the recipient should seek 
verification of citizenship. Similarly, if an applicant claiming 
citizenship specifically seeks representation in an immigration matter, 
the recipient should seek citizenship verification. If an applicant for 
services makes statements relating to the applicant's citizenship that 
the recipient has reason to believe are false or misleading, the 
applicant should seek verification. Also, if an applicant who attests 
to citizenship seems to be confused or misinformed about whether the 
steps to become a citizen have been completed, the recipient should 
seek verification of status.
    The OIG also commented that the lack of verification of citizenship 
of all applicants claiming citizenship makes compliance with the 
prohibition on providing legal assistance to ineligible aliens 
virtually impossible to assess. Thus, the OIG, now charged with 
assessing compliance through audits, recommended that the regulation be 
revised to require recipients to verify citizenship in all instances 
where an applicant for services claims to be a citizen. The Board 
disagreed, because such a requirement might result in denying services 
to poor citizens who do not have ready access to documents such as 
birth certificates or passports that are needed to verify citizenship. 
The Board also noted that the verification procedures in the interim 
rule have been in place with virtually no change since 1983, and there 
has never been any suggestion that ineligible aliens have 
inappropriately received services on the basis of false claims of 
citizenship.
    The final rule contains two additional changes that will reduce the 
administrative burden on recipients and applicants for service while 
maintaining an appropriate verification procedure. Under the previous 
regulation and the interim rule, the attestation was to be ``in a form 
approved by the Corporation.'' Section 1626.6(a) of the final rule now 
provides that citizenship attestation will be ``in a standard form 
provided by the Corporation'' and LSC plans to issue such a standard 
form shortly. In the meantime, recipients should continue to use their 
current attestation forms. Although not explicitly stated as a 
requirement in the rule itself, the Corporation believes that when an 
applicant for service is not fluent in English, the attestation form 
should be translated, either orally or in writing, into a language that 
the applicant understands.
    Section 1626.6(b)(1) of the final rule permits a recipient to 
accept, in addition to originals or certified copies of documents, 
``photocopies that appear to be complete, correct and authentic.'' 
Finally, subsection 1626.6(b)(2) now makes it clear that in addition to 
the specific documents listed, recipients ``may also accept any other 
authoritative document such as a document issued by INS, by a court or 
by any other governmental agency, that provides evidence of 
citizenship.''
    Finally, the Corporation has long recognized that legal guardians 
often must act for clients who are incompetent. For example, Office of 
General Counsel opinions have approved such guardians acting on behalf 
of clients seeking assistance as eligible clients under the 
Corporation's poverty guidelines in 45 CFR Part 1611. Although not 
expressly provided for in the rule, for the purposes of this rule, an 
attestation of citizenship for applicants who are children and 
incompetent adults may be done, for example, by a parent, legal 
guardian, guardian ad litem, or other legal representative of the child 
or incompetent adult. Such attestation may not be done, however, by the 
recipient, even though the recipient may be the applicant's guardian 
for other purposes.

Section 1626.7.  Verification of Eligible Alien Status

    This section is based on Secs. 1626.5(b)-(d) of the interim 
regulation, but it has been substantially revised in response to 
comments and recommendations from the LSC staff.
    Under Sec. 1626.5(f) of the interim regulation, no written 
verification was required when only brief service and consultation by 
telephone, without continuing representation, is provided. This 
provision has been simplified and included in Sec. 1626.7(a) without 
substantive change.
    Several of the comments addressed issues related to documentation 
of alien status for determining eligibility. The comments noted that 
the list of documents contained in Sec. 1626.5(b) of the interim rule 
was outdated and did not include a number of the common documents 
currently issued by INS. In addition, the comments noted that INS 
frequently changes the name, number or format of the documents that it 
issues, and, as a result, it is difficult to maintain a current list of 
acceptable documents. To deal with these realities, several of the 
comments suggested that the list of acceptable documents be removed 
from the regulation and placed, instead, in an Appendix to the 
regulation that could be updated by the LSC staff annually, or more 
frequently if needed, without Board action. There is precedent for use 
of such an Appendix in part 1611 of the LSC regulations. Appendix A to 
Part 1611 contains the LSC poverty guidelines, which are based on 125% 
of the poverty guidelines that are issued each year by the Department 
of Health and Human services. The LSC staff publishes the new poverty 
guidelines each year in the Federal Register without Board action. The 
Corporation agreed that this approach would be preferable to the 
current structure, and the final rule deletes the list of documents 
from the text of the interim rule. An Appendix of current acceptable 
documents is published with this final rule. The Appendix has been 
provided to the Corporation by the National Immigration Law Center, Los 
Angeles, California. Comments on recommended revisions or additions to 
the Appendix will be accepted at any time by the Corporation.
    The comments raised several additional issues relating to 
documentation of alien status. First, several comments noted that 
Sec. 1626.5(b)(5) of the interim rule permitted a recipient to accept 
other authoritative documents issued by the INS as evidence of alien 
status. Pointing out that there are situations where a court or other 
governmental agency (e.g. State Department) may also issue such 
authoritative documents, comments urged that recipients be permitted to 
accept these as well. The Corporation agreed and Sec. 1626.7(a)(2) of 
the final rule includes language that permits recipients to accept 
other authoritative documents such as those issued by a court or 
government agency other than INS.
    Several of the comments also noted that eligible aliens are often 
unable to produce original documents as required under Sec. 1626.5(b) 
of the interim regulation. Documents may be lost, stolen or destroyed. 
INS has a procedure for applying for replacement documents, but there 
is a substantial fee that indigent applicants may not be able to 
afford. Also, INS officials often do not

[[Page 19413]]

know, or do not inform applicants, about the fee waiver procedure, and 
it may take months for substitute documents to be provided. Comments 
suggested that the final rule deal with the issue of missing documents 
in two ways. First, commenters recommended that recipients be permitted 
to accept certified copies of documents or photocopies that appear to 
be complete, correct and authentic. The Corporation agreed and 
Sec. 1626.7(a)(1) provides that such copies are acceptable 
documentation.
    Second, commenters recommended that where eligible aliens could not 
produce either the original or an acceptable copy of the appropriate 
documents, the final rule should include a provision that permits 
recipients to accept either a copy of an application for replacement of 
the documents or a notarized statement by a third party, similar to the 
statement permitted for establishing citizenship, stating that the 
applicant for service is eligible under one or more of the categories 
listed in Sec. 1626.4. Comments raised the point that the regulation 
should not be designed in a way that forces recipients to turn away 
eligible aliens who do not have the appropriate paper work. The 
Corporation agreed that a copy of an application for replacement of 
documents, if it adequately described the document, would be acceptable 
and would be covered by Sec. 1626.7(a)(2). However, the Corporation 
rejected the suggestion that a notarized statement by a third party 
should be adequate to establish eligibility, since an alien eligibility 
determination requires careful review of specific documents and most 
third parties would not be adequately informed about the intricacies of 
immigration law to make an authoritative judgment about immigration 
status.

Section 1626.8  Emergencies

    This section is based on the substantive requirements of 
Sec. 1626.5(e) of the interim rule, but in response to comments, the 
language has been substantially revised and simplified to eliminate 
unnecessary complexity and confusion and to state the principles more 
directly. This rule now states more clearly and affirmatively that a 
recipient may provide emergency legal assistance without written 
verification of alien status, but that further representation is not 
permitted without appropriate documentation. The Corporation also 
eliminated the reference in Sec. 1626.5(e)(3) of the interim rule to 
the recipients' ``criteria for emergency assistance as used in their 
general determination of priorities,'' because the reference no longer 
makes sense in light of the recent revisions made to 45 CFR Part 1620.
    Although the final rule does not define ``emergency,'' in the legal 
services context, an emergency would be a situation where immediate 
action is necessary to preserve significant legal rights or prevent 
significant harm to a person's family, property, or other legal 
interests.

Section 1626.9  Change in Circumstances

    This section is based on Sec. 1626.6 of the interim regulation, but 
the language has been revised to make it clear that if the recipient 
learns that a client is no longer eligible for legal assistance under 
the rule, further representation is prohibited and the recipient must 
discontinue representation, although it must do so in a manner 
consistent with professional responsibilities.

Section 1626.10  Special Eligibility Questions

    This section is based on the provisions of Sec. 1626.7 of the 
interim regulation, but a number of revisions and additions have been 
made in response to comments received by the Corporation.
    The comment of the Office of Inspector General stated that the 
interim rule had revised the provisions on special eligibility in a way 
that had unintended consequences. Under the prior version of part 1626, 
the rule stated that the restrictions on alien representation were not 
applicable to the legal services programs serving the listed geographic 
area and that citizens of those areas were eligible to receive legal 
assistance provided they were otherwise eligible. The rule did not 
explicitly state whether the legal assistance had to be provided only 
by recipients providing service in those areas or could be provided by 
other recipients as well. Under the interim rule, the restrictions on 
alien representation were explicitly made inapplicable to citizens of 
the listed geographic areas, but there was no mention of applicability 
to the recipients providing services in those entities. The OIG 
suggested that both the prior rule and the interim rule dealt with the 
question of special eligibility incorrectly, and urged that the final 
rule refer only to the legal services programs serving people who were 
citizens of those jurisdictions. The effect of this change would be to 
make financially eligible citizens of the Federated States of 
Micronesia, the Republic of the Marshall Islands and the Republic of 
Palau only eligible for legal services from the recipients serving 
those areas and the Commonwealth of the Northern Marianas. They would 
not be eligible for services from any other recipients unless they also 
came within one of the categories of eligible aliens listed in 
Sec. 1626.5. Citizens of the Commonwealth of the Northern Mariana 
Islands, however, are U.S. Citizens and could be eligible for services 
from any LSC recipient. The Board agreed with the OIG analysis and 
revised Sec. 1626.10(a) accordingly.
    Another comment raised the issue of eligibility for LSC-funded 
services of indigent foreign nationals who seek legal assistance to 
obtain the return of children who were abducted from their country of 
residence and were brought to the U.S. for adoption. The comment noted 
that under the Hague Convention on the Civil Aspects of International 
Child Abduction (``Treaty'') and the Federal implementing statute, the 
International Child Abduction Remedies Act (``ICARA'') foreign 
nationals who reside in countries that have ratified the Treaty are 
eligible for Federally funded legal services as if they were U.S. 
nationals. This issue was addressed by the Corporation in a 1994 Office 
of General Counsel's opinion that concluded that part 1626 should be 
interpreted to permit representation of indigent persons abroad who 
seek to invoke the protection of the Treaty, so long as they are 
otherwise financially eligible. The rule has incorporated that 
interpretation in Sec. 1626.10(e).

Section 1626.11  H-2 Agricultural Workers

    This section is based on Sec. 1626.8 of the interim regulation. The 
language has been revised and simplified, but no substantive changes 
have been made. This section sets out the eligibility requirements for 
H-2 workers.

Replenishment Agricultural Workers

    One comment suggested that the provisions in Sec. 1626.9 of the 
interim regulation relating to Replenishment Agricultural Workers 
(RAWs) should be deleted since the program was never implemented and 
INA Sec. 210A(c) was repealed by Sec. 219(ee)(1) of the Immigration and 
Technical Corrections Act of 1994 (Pub. L. 103-416). Accordingly, the 
Corporation removed the references to RAWs and deleted Sec. 1626.9 from 
the interim rule.

Section 1626.12  Recipient Policies, Procedures and Recordkeeping

    This section in the final rule is identical to Sec. 1626.10 of the 
interim rule. It requires a recipient to adopt written policies and 
procedures to guide

[[Page 19414]]

its staff in complying with this part and to maintain documentation 
sufficient to document compliance.

List of Subjects in 45 CFR Part 1626

    Grant programs, Legal services.

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

PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS

Sec.
1626.1  Purpose.
1626.2  Definitions.
1626.3  Prohibition.
1626.4  Applicability.
1626.5  Alien status and eligibility.
1626.6  Verification of citizenship.
1626.7  Verification of eligible alien status.
1626.8  Emergencies.
1626.9  Change in circumstances.
1626.10  Special eligibility questions.
1626.11  H-2 agricultural workers.
1626.12  Recipient policies, procedures and recordkeeping.

    Authority: Pub. L. 104-208, 110 Stat. 1321; Pub. L. 104-134, 110 
Stat. 3009.


Sec. 1626.1  Purpose.

    This part is designed to ensure that recipients provide legal 
assistance only to citizens of the United States and eligible aliens. 
It is also designed to assist recipients in determining the eligibility 
and immigration status of persons who seek legal assistance.


Sec. 1626.2  Definitions.

    (a) Citizen includes persons described or defined as citizens or 
nationals of the United States in 8 U.S.C. 1101(a)(22) and Title III of 
the Immigration and Nationality Act (INA), Chapter 1 (8 U.S.C. 1401 et 
seq.) (citizens by birth) and Chapter 2 (8 U.S.C. 1421 et seq.) 
(citizens by naturalization) or antecedent citizen statutes.
    (b) Eligible alien means a person who is not a citizen but who 
meets the requirements of Sec. 1626.5.
    (c) Ineligible alien means a person who is not a citizen and who 
does not meet the requirements of Sec. 1626.5.
    (d) 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.
    (e) 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.
    (f) Battered or subjected to extreme cruelty has the meaning given 
that phrase under 8 CFR part 204, the regulations issued pursuant to 
subtitle G of the Violence against Women Act of 1994, 108 Stat. 1953.
    (g) Legal assistance directly related to the prevention of, or 
obtaining relief from, the battery or cruelty means any legal 
assistance that will assist victims of abuse in their escape from the 
abusive situation, ameliorate the current effects of the abuse, or 
protect against future abuse.
    (h) United States, for purposes of this part, has the same meaning 
given that term in 8 U.S.C. 1101(a)(38) of the INA.


Sec. 1626.3  Prohibition.

    Except as provided in Sec. 1626.4, recipients may not provide legal 
assistance for or on behalf of an ineligible alien. For purposes of 
this part, legal assistance does not include normal intake and referral 
services.


Sec. 1626.4  Applicability.

    (a) Except for Sec. 1626.12, the requirements of this part do not 
apply to the use of non-LSC funds by a recipient to provide legal 
assistance to an alien:
    (1) Who has been battered or subjected to extreme cruelty in the 
United States by a spouse or a parent, or by a member of the spouse's 
or parent's family residing in the same household as the alien and the 
spouse or parent consented or acquiesced to such battery or cruelty; or
    (2) Whose child has been battered or subjected to extreme cruelty 
in the United States by a spouse or parent of the alien (without the 
active participation of the alien in the battery or extreme cruelty), 
or by a member of the spouse's or parent's family residing in the same 
household as the alien and the spouse or parent consented or acquiesced 
to such battery or cruelty, and the alien did not actively participate 
in such battery or cruelty; provided that the legal assistance is 
directly related to the prevention of, or obtaining relief from, the 
battery or cruelty.
    (b) Recipients are not required by Sec. 1626.12 to maintain records 
regarding the immigration status of clients represented pursuant to 
paragraph (a) of this section.


Sec. 1626.5  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 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 INA, 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 INA (8 U.S.C. 1157) (relating 
to refugee admissions) or who has been granted asylum by the Attorney 
General under section 208 of the INA (8 U.S.C. 1158).
    (d) An alien who is lawfully present in the United States as a 
result of being granted conditional entry pursuant to section 203(a)(7) 
of the INA (8 U.S.C. 1153(a)(7), as in effect on March 31, 1980) 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;
    (e) 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 INA (8 U.S.C. 1253(h)); or
    (f) An alien who meets the requirements of Sec. 1626.10 or 1626.11.


Sec. 1626.6  Verification of citizenship.

    (a) A recipient shall require all applicants for legal assistance 
who claim to be citizens to attest in writing in a standard form 
provided by the Corporation that they are citizens, unless the only 
service provided for a citizen is brief advice and consultation by 
telephone which does not include continuous representation.
    (b) When a recipient has reason to doubt that an applicant is a 
citizen, the recipient shall require verification of citizenship. A 
recipient shall not consider factors such as a person's accent, limited 
English-speaking ability, appearance, race or national origin as a 
reason to doubt that the person is a citizen.
    (1) If verification is required, a recipient may accept originals, 
certified copies, or photocopies that appear to be complete, correct 
and authentic 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 
or I-197); or
    (v) Baptismal certificate showing place of birth within the United 
States and date of baptism within two months after birth.
    (2) A recipient may also accept any other authoritative document 
such as a

[[Page 19415]]

document issued by INS, by a court or by another governmental agency, 
that provides evidence of citizenship.
    (3) If a person is unable to produce any of the above documents, 
the person 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.


Sec. 1626.7  Verification of eligible alien status.

    (a) An alien seeking representation shall submit appropriate 
documents to verify eligibility, unless the only service provided for 
an eligible alien is brief advice and consultation by telephone which 
does not include continuous representation of a client.
    (1) As proof of eligibility, a recipient may accept originals, 
certified copies, or photocopies that appear to be complete, correct 
and authentic, of any of the documents found in the appendix to this 
part.
    (2) A recipient may also accept any other authoritative document 
issued by the INS, by a court or by another governmental agency, that 
provides evidence of alien status.
    (b) A recipient shall upon request furnish each person seeking 
legal assistance with a list of the documents in the appendix to this 
part.


Sec. 1626.8  Emergencies.

    In an emergency, legal services may be provided prior to compliance 
with Secs. 1626.6 and Sec. 1626.7 if:
    (a) An applicant cannot feasibly come to the recipient's office or 
otherwise transmit written documentation to the recipient before 
commencement of the representation required by the emergency, and the 
applicant provides oral information to establish eligibility which the 
recipient records, and the applicant submits the necessary 
documentation as soon as possible; or
    (b) An applicant is able to come to the recipient's office but 
cannot produce the required documentation before commencement of the 
representation, and the applicant signs a statement of eligibility and 
submits the necessary documentation as soon as possible; and
    (c) The recipient informs clients accepted under paragraph (a) or 
(b) of this section that only limited emergency legal assistance may be 
provided without satisfactory documentation and that, if the client 
fails to produce timely and satisfactory written documentation, the 
recipient will be required to discontinue representation consistent 
with the recipient's professional responsibilities.


Sec. 1626.9  Change in circumstances.

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


Sec. 1626.10  Special eligibility questions.

    (a) This part is not applicable to recipients providing services in 
the Commonwealth of the Northern Mariana Islands, the Republic of 
Palau, the Federated States of Micronesia, or the Republic of the 
Marshall Islands.
    (b) All Canadian-born American Indians at least 50% Indian by blood 
are eligible to receive legal assistance provided they are otherwise 
eligible under the Act.
    (c) Members of the Texas Band of Kickapoo are eligible to receive 
legal assistance provided they are otherwise eligible under the Act.
    (d) An alien who qualified as a special agricultural worker and 
whose status is adjusted to that of temporary resident alien under the 
provisions of the Immigration Reform and Control Act (``IRCA'') is 
considered a permanent resident alien for all purposes except 
immigration under the provisions of section 302 of 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, and the application has not been rejected.
    (e) A recipient may provide legal assistance to indigent foreign 
nationals who seek assistance pursuant the Hague Convention on the 
Civil Aspects of International Child abduction and the Federal 
implementing statute, the International Child Abduction Remedies Act, 
42 U.S.C. 11607(b), provided that they are otherwise financially 
eligible.


Sec. 1626.11  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, may be 
provided legal assistance regarding the matters specified in paragraph 
(b) of this section.
    (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. 1626.12  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.

[[Page 19416]]

Appendix To Part 1626

                              Alien Eligibility for Representation by LSC Programs                              
----------------------------------------------------------------------------------------------------------------
                                    Immigration Act     LSC Regs 45 CFR Sec.                                    
         Alien category                  (INA)                  1626            Examples of acceptable documents
----------------------------------------------------------------------------------------------------------------
LAWFUL PERMANENT RESIDENT.......  INA Sec.            Sec.  1626.5(a)          I-551 or I-151                   
                                   101(a)(20) 8 USC,                           or I-181 (Memorandum of Creation 
                                   Sec.  1101(a)(20).                           of Record of Lawful Permanent   
                                                                                Residence), with approval stamp;
                                                                               or passport bearing immigrant    
                                                                                visa or stamp indicating        
                                                                                admission for lawful permanent  
                                                                                residence                       
                                                                               ororder granting residency or    
                                                                                suspension or adjustment of     
                                                                                status or  I-327 Reentry Permit 
                                                                               or I-94, with stamp indicating   
                                                                                admission for lawful permanent  
                                                                                residence                       
                                                                               or any computerized verification 
                                                                                from INS or other authoritative 
                                                                                document.                       
ALIEN WHO IS                      INA Secs.  209,     Sec.  1626.5(b)          Proof of relationship to U.S.    
--married to U.S. citizen,         210, 244,                                    citizen*                        
--parent of U.S. citizen, or       (replaced by INA                            and                              
--unmarried child under 21 of      Sec.  240A(b) for                           I-485 (application for adjustment
 U.S. citizen                      aliens in                                    of status on the basis of a     
and                                proceedings                                  family                          
--has filed an application for     initiated after 4/                          based visa, registry, Cuban      
 adjustment of status to           1/97), 245, 245A,                            Adjustment, Cuban-Haitian       
 permanent residency.              249 8 USC Secs.                              Adjustment, or spouses and      
                                   1159, 1160, 1259,                            children eligible for Violence  
                                   1254, 1255,                                  Against Women Act relief) and   
                                   1255a, 1259.                                 proof of filing**               
                                                                               or I-256A or EOIR-40 (application
                                                                                for suspension of               
                                                                                deportation)*** and proof of    
                                                                                filing**                        
                                                                               or EOIR-42 (application for      
                                                                                cancellation of removal) and    
                                                                                proof of filing**               
                                                                               or OF-230 (application at        
                                                                                consulate for visa) and proof of
                                                                                filing with consulate**         
                                                                               or I-360 (application to qualify 
                                                                                as abused spouse or child under 
                                                                                the Violence Against Women Act) 
                                                                               or I-688B or I-766 (employment   
                                                                                authorization document) coded 8 
                                                                                CFR Sec.                        
                                                                                274a.12(c)(9)(applicant for     
                                                                                adjustment) or (c)(16)(registry 
                                                                                applicant) or (c)(10)(suspension
                                                                                applicant)                      
                                                                               or letter or Form I-797 from INS 
                                                                                acknowledging receipt of I-485; 
                                                                               or I-94, with stamp indicated    
                                                                                entry pursuant to advance parole
                                                                                (INASec.  212(d)(5)) for pending
                                                                                Sec.  245;                      
                                                                               or I-512 (advance parole),       
                                                                                indicating entry to pursue      
                                                                                pending Sec.  245 application   
                                                                               or passport, with stamp or       
                                                                                writing by INS officer,         
                                                                                indicating pending Sec.  245    
                                                                                application                     
                                                                               or I-130 (visa petition) and     
                                                                                proof of filing**               
                                                                               or any computerized verification 
                                                                                from INS or other authoritative 
                                                                                document                        
                                                                               *Proof of relationship may       
                                                                                include a copy of the alien's   
                                                                                marriage certificate accompanied
                                                                                by proof of the spouse's U.S.   
                                                                                citizenship; a copy of the birth
                                                                                certificate, baptismal          
                                                                                certificate, adoption decree or 
                                                                                other documents demonstrating   
                                                                                that the alien is the parent of 
                                                                                a U.S. 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 U.S. citizen; or in lieu of   
                                                                                the above, a copy of INS Form I-
                                                                                130 (visa petition) containing  
                                                                                information that demonstrates   
                                                                                that the alien is related to    
                                                                                such a U.S. citizen, accompanied
                                                                                by proof of filing.             
                                                                               **Proof of filing may include a  
                                                                                fee receipt showing that the    
                                                                                application was filed with the  
                                                                                INS or the immigration court; a 
                                                                                filing stamp showing that the   
                                                                                application was filed; or a copy
                                                                                of the application accompanied  
                                                                                by a notarized statement signed 
                                                                                by the alien that such form was 
                                                                                filed.                          
                                                                               ***Note: ``cancellation of       
                                                                                removal and adjustment of       
                                                                                status'' replaces ``suspension  
                                                                                of deportation'' for aliens in  
                                                                                proceedings initiated on or     
                                                                                after April 1, 1997.            
REFUGEE.........................  INA Sec.  207, 8    Sec.  1626.5(c)          I-94 or passport stamped         
                                   USC Sec.  1157.                              ``refugee'' or ``Sec.  207''    
                                                                               or I-688B or I-766 coded 8 CFR   
                                                                                Sec.  274a.12(a)(3)(Refugee) or 
                                                                                (a)(4)(paroled asylees)         
                                                                               or I-571 refugee travel document,
                                                                               or any computerized verification 
                                                                                from INS or other authoritative 
                                                                                document.                       
ASYLEEINA.......................  Sec.  208 8 USC     Sec.  1626.5 (c)         I-94 or passport stamped         
                                   Sec.  1158.                                  ``asylee'' on ``Sec.  208''     
                                                                               or order granting asylum from    
                                                                                INS, immigration judge, BIA, or 
                                                                                federal court                   
                                                                               or I-571 refugee travel document 
                                                                               or I-688B or I-766 coded 8 CFR   
                                                                                Sec.  274a.12(a) (5)(asylee)    
                                                                               or other computerized            
                                                                                verification from INS or other  
                                                                                authoritative document.         

[[Page 19417]]

                                                                                                                
GRANTING WITHHOLDING OF           INA Sec.  243(h) 8  Sec.  1626.5(e)          I-94 stamped ``Sec.  243(h)'' or 
 DEPORTATION.                      USC Sec.  1253(h)                            order granting withholding of   
                                   (as of 4/1/97,                               deportation from INS,           
                                   repealed and                                 immigration court, BIA, or      
                                   redesignated INA                             federal court                   
                                   Sec.  241(b)(3),                            or I-688B or I-766 coded 8 CFR   
                                   ``Restriction on                             Sec.  274a.12(a)(10)(withholding
                                   Removal'').                                  of deportation)                 
                                                                               or I-571 refugee travel document;
                                                                               or any computerized verification 
                                                                                from INS or other authoritative 
                                                                                document.                       
CONDITIONAL ENTRANT.............  INA Sec.            Sec.  1626.5(d)          I-94 or passport stamped         
                                   203(a)(7) (prior                             ``conditional entrant''         
                                   to 4/1/80), 8 USC                           or any computerized verification 
                                   Sec.  1153(a)(7).                            from INS or other authoritative 
                                                                                document.                       
AGRICULTURAL WORKER.............  INA Sec.            Sec.  1626.11            I-94 or passport stamped ``H-2A''
                                   101(a)(15)(H)(II)                           or any computerized verification 
                                   , 8 USC Sec.                                 from INS or other authoritative 
                                   1101(a)(15)(H)(II                            document.                       
                                   ).                                                                           
SPECIAL AGRICULTURAL WORKER       INA Sec.  210, 8    Sec.  1626.10(d)         I-688, 688A, 688 or 766          
 TEMPORARY RESIDENT.               USC Sec.  1160.                              indicating issuance under Sec.  
                                                                                210 (or under 8 CFR Sec.        
                                                                                274a.12 (a)(2), with other      
                                                                                evidence indicating eligibility 
                                                                                under INA Sec.  210).           
                                                                               or any computerized verification 
                                                                                from INS or other authoritative 
                                                                                document.                       
----------------------------------------------------------------------------------------------------------------
 National Immigration Law Center 3/7/97.                                                                        

    Dated: April 14, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-10035 Filed 4-18-97; 8:45 am]
BILLING CODE 7050-01-P