[Federal Register Volume 62, Number 141 (Wednesday, July 23, 1997)]
[Rules and Regulations]
[Pages 39417-39425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19242]



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  Federal Register / Vol. 62, No. 141 / Wednesday, July 23, 1997 / 
Rules and Regulations  

[[Page 39417]]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 245 and 274a

[INS No. 1676-94]
RIN 1115-AD83


Adjustment of Status to That of Person Admitted for Permanent 
Residence; Temporary Removal of Certain Restrictions of Eligibility

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This second interim rule responds to public comments on the 
first interim rule and also implements various provisions of the 
Illegal Immigration Reform and Immigration Responsibility Act of 1996. 
This rule amends the Immigration and Naturalization Service regulations 
to reflect the new surcharge required of certain persons in the United 
States who are seeking to apply for adjustment of status pursuant to 
section 245(i) of the Immigration and Nationality Act. This rule also 
amends the list of persons prohibited from applying for adjustment of 
status by adding two new categories that were created by the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996. In 
addition, this interim regulation enables the Immigration and 
Naturalization Service to complete adjudication of timely filed section 
245(i) adjustment applications after September 30, 1997.

DATES: Effective Date: This rule is effective July 23, 1997.
    Comment Date: Written comments must be submitted on or before 
September 22, 1997.
ADDRESSES: Written comments must be submitted, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW, Room 5307, Washington, D.C. 
20536. To ensure proper handling, please reference the INS number 1676-
94 on your correspondence. Comments are available for public inspection 
at this location by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Gerard Casale, Staff Officer, 
Immigration and Naturalization Service, 425 I Street, NW, Room 3214, 
Washington, D.C. 20536, Telephone (202) 514-5014 or Lisa Rainville, 
Center Adjudications Officer, Vermont Service Center, Immigration and 
Naturalization Service, 75 Lower Welden Street, St. Albans, VT 05479-
0001, Telephone (802) 527-3114.

SUPPLEMENTARY INFORMATION:

Background

    Under the Immigration and Nationality Act (the ``Act''), an alien 
seeking to immigrate to the United States normally must obtain an 
immigrant visa at a United States embassy or consulate abroad. Section 
245 of the Act, however, allows certain persons who are physically 
present in the United States to adjust status to that of lawful 
permanent resident. Section 245(a) of the Act limits eligibility for 
adjustment to aliens who have entered the United States after having 
been inspected and admitted or paroled by an immigration officer. 
Section 245(c) of the Act, in turn, bars the adjustment of most 
applicants who have been employed in the United States without 
authorization; who have not complied with the terms of their 
nonimmigrant visa; or who are among certain classes of nonimmigrants 
whose basis for admission precludes them from eligibility for 
adjustment of status. Many intending immigrants who were physically 
present in the United States and were ineligible for adjustment of 
status under the provisions of section 245(a) and 245(c) of the Act had 
been obliged to depart the United States to obtain immigrant visas and 
seek admission to the United States as lawful permanent residents. This 
resulted in an increased burden on United States consulates and 
embassies abroad. Additionally, aliens physically present in the United 
States who sought lawful permanent resident status were required to 
incur the expense and inconvenience of applying for an immigrant visa 
at a United States consulate or embassy abroad.

Public Law 103-317

    To address these problems, Congress enacted section 506(b) of the 
Department of Commerce, Justice, State, the Judiciary and Related 
Agencies Appropriations Act, 1995, Pub. L. 103-317 (August 26, 1994). 
Section 506(b) of Pub. L. 103-317 added a new section 245(i) to the Act 
which allows certain persons already in the United States to adjust 
status, despite the provisions of sections 245 (a) and (c) of the Act, 
upon payment of a fee in addition to the base filing fee for an 
adjustment of status application. Section 245(i) of the Act does not, 
however, waive other grounds of ineligibility enumerated elsewhere in 
section 245. The provisions of section 245(i) apply only to 
applications filed on or after October 1, 1994, and before October 1, 
1997. See section 506(c) of Pub. L. 103-317. It should be emphasized 
that, despite enactment of section 245(i) of the Act, adjustment of 
status remains the exception, and not the rule, to the normal process 
of immigrant visa issuance. See 59 FR 51091-100.
    On October 7, 1994, the Immigration and Naturalization Service (the 
``Service'') published an interim rule with request for comments which 
established procedures for filing for adjustment of status pursuant to 
the provisions of section 245(i) of the Act. See 59 FR 51091-100. The 
interim rule took effective retroactively on October 1, 1994. 
Interested persons were invited to submit written comments on or before 
December 6, 1994. After publication of the interim rule on October 7, 
1994, the Service received seven written comments during the comment 
period.
    On September 30, 1996, President Clinton signed the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (the 
``IIRIRA'') into law. Among other changes, effective September 30, 
1996, the IIRIRA established two new groups of aliens who are 
ineligible to adjust status under section 245(a) of the Act. The 
present rule, which contains regulatory changes to 8 CFR part 245 
mandated by statutory amendments to sections 245(c) and 245(i) of the 
Act, is being published as a second interim rule to provide the public 
an opportunity to comment on the Service's interpretation of the new

[[Page 39418]]

law as well as on the provisions of the first interim rule that remain 
in effect.

Comments

    The following discussions summarizes the issues which were raised 
by the commenters in response to publication of the first interim rule 
and explains the Service's position on those issues.

Conclusion of Application Period

    One commenter asserted that the provisions of section 245(i) should 
apply to all applications properly filed before October 1, 1997, rather 
than only those applications which have been adjudicated by that date. 
Upon further consideration of this issue, the Service is persuaded that 
the commenter's position represents the best reading of these statutory 
provisions. The first interim regulation provided that, in order to 
meet the October 1, 1997, sunset date provided in section 506(c) of 
Pub. L. 103-317, section 245(i) applications should be filed at the 
earliest possible date to ensure complete processing prior to October 
1, 1997. Read together, sections 245(i)(1) of the Act and 506(c) of 
Pub. L. 103-317, however, provide that an alien may apply to the 
Attorney General for adjustment of status under section 245(i) through 
September 30, 1997, and that the Attorney General ``may'' accept such 
an adjustment application through September 30, 1997. Section 245(i)(2) 
of the Act and section 506(c) of Pub. L. 103-317, in turn, specifically 
provide that the Attorney General may adjust an alien's status under 
section 245(i) of the Act only through September 30, 1997. Finally, 
section 506(d) of Pub. L. 103-317, requires the Service to conduct full 
fingerprint identification checks through the FBI for all individuals 
over 16 years of age who adjust status pursuant to section 245(i) of 
the Act.
    In drafting the first interim regulation, the Service adopted the 
position that, based on the language of section 245(i)(2) of the Act 
and section 506(c) of Pub. L. 103-317, its authority to complete 
processing of any properly filed section 245(i) adjustment application 
would lapse on the October 1, 1997, sunset date. If left to stand, the 
first interim rule, in effect, would have precluded an alien from 
filing an application for adjustment of status through September 30, 
1997, as is mandated in section 506(c) of Pub. L. 103-317, since the 
normal period of time necessary to complete full fingerprint 
identification checks on adjustment applicants may be 120 days or more. 
Upon further consideration, the Service now believes that the first 
interim rule is incompatible with the language of section 506(c) of 
Pub. L. 103-317 and section 245(i)(1) of the Act, which specifically 
permit an alien to apply for adjustment under section 245(i) through 
September 30, 1997. In making this determination, the Service is aware 
that, upon expiration of section 245(i)(2) of the Act on October 1, 
1997, the Attorney General no longer will have the explicit authority 
to adjust an alien's status under section 245(i) of the Act. We 
nevertheless conclude that, based on the statutory scheme, Congress 
gave the Service the implicit authority to complete processing of all 
adjustment applications which were properly filed in accordance with 
section 245(i)(1) of the Act prior to the October 1, 1997, sunset. Not 
only was Congress aware that the Service, as a practical matter, is 
unable to complete processing of an application for adjustment of 
status on the date such application is received, but Congress also 
specifically mandated that the Service not act upon section 245(i) 
applications until a ``full'' background check has been conducted on 
the adjustment applicant. See section 506(d) of Pub. L. 103-317. 
Clearly, Congress did not intend to permit the filing of what would in 
effect be a meaningless section 245(i) adjustment application, 
accompanied with, in most cases, a substantial additional surcharge, 
which the Service would be required to deny soon thereafter because of 
the passage of the October 1, 1997, sunset date.
    In short, this second interim rule reconciles any potential 
inconsistency between sections 245 (i)(1) and (i)(2) of the Act based 
on section 506(c) of Pub. L. 103-317 by specifically permitting the 
filing of section 245(i) applications through September 30, 1997, in 
accordance with section 245(i)(1) of the Act, while recognizing the 
Service's implicit authority to complete processing of such properly 
filed applications, even when that processing takes place after 
September 30, 1997. This second interim rule therefore revises 8 CFR 
245.10(c) to allow the filing of adjustment applications pursuant to 
section 245(i) of the Act through September 30, 1997.

Applications Submitted to the Service After September 30, 1997

    The statutory authority for granting benefits, as well as for 
collecting the surcharge, under section 245(i) of the Act ends on 
September 30, 1997. See section 506(c) of Pub. L. 103-317. By law, the 
Service may not a grant the benefits of section 245(i) of the Act to 
aliens who attempt to file a new application for adjustment of status 
under that subsection after September 30, 1997. All applications for 
adjustment of status filed pursuant to section 245 of the Act which are 
submitted after September 30, 1997, must be adjudicated pursuant to 
section 245(a) of the Act. Therefore, in cases where an applicant 
attempts to file a new section 245(i) adjustment after September 30, 
1997, the Service will retain the base filing fee, return any 
surcharge, and adjudicate the application pursuant to section 245(a) of 
the Act.

Readjustment of Lawful Permanent Residents

    One commenter noted the language in the preamble to the first 
interim regulation which states that (a) person who is currently a 
lawful permanent resident * * * continues to be ineligible for 
adjustment.'' See 59 FR 51093. The commenter asserted that this 
statement was contrary to established case law and added that the 
statute does not preclude lawful permanent residents from adjusting 
status under section 245 of the Act. Contrary to this comment, a lawful 
permanent resident generally may not ``adjust'' to the same status he 
or she already holds. The Service recognizes, however, that there 
exists at least one limited exception to this general rule in the 
context of an alien in deportation proceedings. See Matter of 
Gabryelsky, 20 I & Dec. 750 (BIA 1993) (allowing an alien to 
``bootstrap'' eligibility for relief under section 245 and 212(c) of 
the Act). This should not be construed, however, to mean that any 
lawful permanent resident, whether or not in proceedings, may apply for 
adjustment of status under section 245 of the Act. First, the language 
of the statute itself makes it clear that there is no absolute right to 
adjustment of status. On the contrary, the Attorney General ``may'' 
adjust an alien's status ``to'' that of an alien lawfully admitted for 
permanent residence. It is, therefore, within the Attorney General's 
discretion to determine if it is appropriate to grant such status. In 
this regard, the Service believes it would be an inappropriate use of 
its limited resources to accord the same privilege, i.e., permanent 
residence, to an alien currently holding permanent resident status. In 
any event, an alien, if otherwise eligible, may change the basis of his 
or her permanent residence by abandoning such status and obtaining an 
immigrant visa abroad. Finally, we note that the reference in section 
245(a) of adjustment ``to that of an alien lawfully admitted for 
permanent residence'' clearly demonstrates that Congress intended 
aliens to adjust from a different

[[Page 39419]]

immigration status. Accordingly, the Service will not adopt the 
commenter's suggestion.

Family Unity

    Section 245(i) of the Act and 8 CFR 245.10(b) provide that spouses 
and unmarried children who are under the age of 21 of aliens who were 
legalized and special agricultural workers programs are exempt from 
payment of the additional sum, provided those individuals were 
qualified for, and had properly applied for, benefits under the Family 
Unity program. See section 301 of the Immigration Act of 1990, Pub. L. 
101-649. One commenter suggested that the first interim rule should 
clearly specify that persons whose voluntary departure status under the 
Family Unity program had expired are covered by this provisions. The 
Service agrees that the statute and regulations require only that such 
persons are qualified for and have applied for Family Unity benefits. 
Those persons whose voluntary departure status under the Family Unity 
program has expired remain exempt from paying the additional sum 
specified in 8 CFR 245.10(b). It is, therefore, not necessary to amend 
the regulation.
    The same commenter contends that persons eligible for benefits 
under the Family Unity program who had not yet filed Form I-817, 
Application for Voluntary Departure under the Family Unity Program, 
should be allowed to apply for that program concurrently with their 
application for adjustment of status. The commenter asserted that 
requiring applicants to file Form I-817 and obtain a receipt before 
applying the adjustment of status is inefficient for the Service and 
inconvenient for applicants.
    The statutory language limits the exemption of payment of the 
additional sum of those applicants ``who * * * applied for benefits 
under'' the Family Unity program. This explicit use of the past tense 
precludes consideration of persons who have yet to file and be 
determined eligible for benefits under the Family Unity Program. 
Accordingly, there has been no change to the rule in response to this 
comment.
    Another commenter disagreed with the language of 8 CFR 
245.10(b)(3), which exempts from payment of the additional sum an 
applicant who is ``(t)he child of a legalized alien, is unmarried and 
less than 21 years of age'' and who was qualified for and had properly 
applied for benefits under the Family Unity program. The commenter 
asserted that this definition is too restrictive, contending that 
section 245(i)(1)(i) of the Act extends benefits to any applicant who 
``as of May 5, 1988, was the unmarried child (under the age of 21)'' of 
legalized alien and had applied for benefits under the Family Unity 
program.
    The Service disagrees with the commenter for the following reasons. 
The Service recognizes that Congress, in establishing the Family Unity 
program under section 301 of the Immigration Act of 1990 (IMMACT 90), 
intended, in part, to ensure that families of legalized aliens are able 
to remain together until such time as their dependents become 
statutorily eligible to apply for permanent resident status in the 
United States. In particular, Congress recognized that such dependents 
must wait a significant period of time in order for a visa number to 
become available. Section 301 of IMMACT 90, however, did not address 
the question of what fee such person must pay in order to apply for 
adjustment of status. The fee issue, instead, was specifically 
addressed in section 245(i)(1) of the Act, which clearly provides that 
the alien must have been an unmarried child both in 1988 as well as at 
the time he or she applies for permanent resident status in order to be 
exempt from payment of the surcharge. Further, requiring payment of the 
surcharge from offspring over the age of 21 years if they wish to 
remain permanently in this country is in no way contrary to Congress' 
intent to ensure family unification. For this reason, the Service 
cannot accept the commenter's suggestion, and will continue to follow 
the plain language of section 245(i)(1)(i) of the Act.

Payment of Additional Sum

    One commenter asserted that the first interim regulation required 
applicants to submit a sum in excess of that required by statute. The 
first interim regulation requires applicants to submit the standard 
application fee plus an additional sum equal to five times that fee. 
The commenter contended that section 245(i) requires applicants to 
submit the ``penalty'' portion of the filing fee in lieu of the 
standard filing fee for adjustment of status applications.
    Section 245(i)(1)(b)(iii) of the Act states that ``(t)he sum 
specified herein shall be in addition to the fee normally required for 
the processing of an application under this section'' (emphasis added). 
The placement of this sentence within a subparagraph of the statute may 
have caused some confusion. Nonetheless, the statute refers to this 
additional amount not as a ``fee'' but as a ``sum'' which is to 
accompany the application and fee under section 245(i). The Service has 
no discretion to alter this statutory provision.
    One commenter objected to 8 CFR 103.7(c)(1), which states that 
``[t]he payment of the additional sum . . . may not be waived except as 
directed in section 245(i).'' The commenter contended that section 
245(i) of the Act does not address the issue of fee waivers and argued 
that the Service should take ``the standard regulatory approach to 
fees'' found in 8 CFR 103.7(c). Section 245(i) of the Act, however, 
specifically lists which categories of applicants are not required to 
submit the additional sum. Unlike the case of other types of petitions 
and applications filed with the Service, under the plain language of 
section 245(i) of the Act, the additional sum is specifically mandated 
by statute. Absent specific statutory authority to waive the surcharge, 
the Service, therefore, may not waive the additional sum. Accordingly, 
the Service will not adopt the commenter's suggestion.

Technical Revision to 8 CFR 103.7(c)(1)

    This second interim regulation modifies the final sentence of 8 CFR 
103.7(c)(1) by removing the words ``except as directed in section 
245(i) of the Act.'' As one commenter noted, the first regulation is 
misleading in that it implies that a statutory exemption of the 
surcharge equates to a waiver of payment of such surcharge. This 
technical change clarifies that, under the plain language of the 
statute, persons listed in section 245(i)(1) (i) through (iii) of the 
Act are exempt from payment of the surcharge, and the Service lacks 
discretionary authority to waive the surcharge. Since, to date, the 
Service has not required payment of the surcharge from the individuals 
listed in section 245(i)(1) (i) through (iii), this technical change, 
as a practical matter, will have no adverse effect on such persons.

Clarification of Instructions to Supplement A to Form I-485

    One of the commenters indicated that the instructions which 
accompany Supplement A to Form I-485 ``seem to suggest that an 
applicant must be the approved beneficiary of a valid unexpired visa 
petition in order to file the form.'' Supplement A clearly does not 
limit eligibility for adjustment of status to an applicant who is the 
beneficiary of an approved immigrant visa petition. The instructions to 
the form specify only that an applicant ``have an immediately available 
immigrant visa number.'' This language echoes section 245(i)(2)(B) of 
the Act, which requires ``an immigrant visa [to be] immediately 
available to the alien at the time the application is filed.'' 
Furthermore, apart from its instructions,

[[Page 39420]]

Supplement A lists a broad spectrum of grounds for eligibility for 
adjustment of status. Accordingly, no change has been made to the rule 
as a result of this recommendation.

Interview Waivers

    One commenter requested that the Service incorporate language 
regarding interview waivers into the regulation. However, as the same 
commenter noted, 8 CFR 245.6 currently allows for a waiver of the 
interview for adjustment of status applications. Applications filed 
under section 245(i) of the Act are adjudicated in accordance with the 
regulations at 8 CFR part 245, which already contain provisions 
authorizing immigration officers to waive the interview under certain 
specified circumstances. Further regulatory language relating to 
interview waivers would be redundant. Accordingly, the Service will not 
adopt the commenter's suggestion.

Adjustment as a Means of Relief From Deportation

    One commenter urged the Service to clarify that prospective 
immigrants who qualify for adjustment under section 245(i) may file 
such an application while they are in deportation proceedings. (While 
no new deportation cases may be brought after March 31, 1997, section 
309(c) of the IIRIRA permits the continuation of deportation 
proceedings initiated prior to April 1, 1997.) However, under 8 CFR 
242.17(a), respondents in deportation proceedings are already permitted 
to apply for adjustment of status under section 245 of the Act. 
Additional regulatory language to that effect would, therefore, be 
redundant. Accordingly, the rule has not been changed in response to 
this recommendation. It should be noted that the Service published an 
interim rule on March 6, 1997, effective April 1, 1997, that 
implemented certain changes to the removal process resulting from the 
IIRIRA. See 62 FR 10312. The March 6, 1997, regulation provides for 
adjustment of status in certain circumstances, where appropriate, 
during removal proceedings.

Fingerprint Checks

    One commenter noted that section 506(d) of Pub. L. 103-317 requires 
fingerprint checks for all applicants for adjustment of status under 
section 245(i) of the Act who are more than 16 years of age. The 
commenter suggested that this provision should be included in the 
regulations to avoid confusion. However, fingerprint checks are covered 
by 8 CFR 264.1, a regulation not covered by the present rulemaking. 
While this point is well taken, the Service intends to address this 
matter in a separate rulemaking. Accordingly, the regulation has not 
been changed as a result of this comment.

Pending Applications and the Chinese Student Protection Act

    A number of commenters were concerned about the impact of the first 
interim regulation on individuals who applied for adjustment of status 
under the Chinese Student Protection Act (CSPA), as well as dependents 
of CSPA applicants. One commenter suggested that the regulations at 8 
CFR 245.1 should be amended to remind Service officers that qualifying 
family members who are following to join immigrants who adjusted status 
under the CSPA retain the priority date of a CSPA principal. As the 
commenter observed, however, the issue of priority dates for late-
arriving dependents of CSPA principals has already been addressed at 8 
CFR 245.9(m). Because statutory and regulatory provisions are already 
in place for late-arriving dependents of CSPA applicants, there is no 
need to promulgate further regulations merely to refer interested 
parties to existing provisions.
    Several commenters observed that the provisions of section 245(i) 
``shall take effect on October 1, 1994.'' The commenters asserted that, 
because of this wording, the provisions of section 245(i) should apply 
not only to applications filed after October 1, 1994, but to any 
adjustment application pending on that date. They urged the Service to 
allow applicants for adjustment of status to file motions to reopen or 
reconsider under section 245(i) of the Act.
    The language of section 245(i), however, clearly states that a 
prospective immigrant under this section ``may apply'' for adjustment 
of status. This wording is prospective and not retroactive. Because 
section 245(i) became effective on October 1, 1994, the plain language 
of the statute limits the application of section 245(i) to applications 
for adjustment of status filed on or after October 1, 1994. Therefore, 
the Service cannot apply the provisions of section 245(i) to 
applications filed prior to October 1, 1994, or to motions to reopen or 
reconsider such applications.
    A number of these commenters argued that, although applicants who 
entered without inspection were ineligible for adjustment of status 
under the CSPA, the provisions of section 245(i) should apply 
retroactively to any CSPA application pending as of October 1, 1994. 
One commenter noted that, whole most aliens with pending adjustment of 
status applications could simply file a new application under section 
245(i), CSPA applicants cannot file a new application because of the 
CSPA's statutory filing deadline of June 30, 1994. Another commenter 
urged the Service to reopen or reconsider denied CSPA applications 
under section 245(i) because ``[t]he INS unlawfully stopped advance 
paroles for Chinese nationals'' who had entered without inspection. As 
stated previously, the provisions of section 245(i) apply only to 
applications filed on or after October 1, 1994. Further, had Congress 
intended any special consideration for CSPA applications, such 
provisions would have been incorporated into the statute. Accordingly, 
the provisions of the rule have not been changed in response to these 
comments.

IIRIRA

Surcharge Increased by Congress

    Section 376(a) of the IIRIRA increased the amount of the additional 
sum for applicants seeking the benefits of section 245(i) of the Act 
from five times the fee required for processing of applications under 
this section ($650) to $1,000. The regulations are, therefore, amended 
to reflect the change in the additional fee.
    The new 245(i) surcharge in the amount of $1,000 applies to all 
applications properly filed with this Service on or after the end of 
the 90-day period beginning on the date of enactment. The section 
245(i) fee increase, therefore, became effective on December 29, 1996, 
for applications for adjustment of status under section 245(i) of the 
Act which were properly filed in accordance with 8 CFR 103.2(a) on or 
after that date. Under new 8 CFR 245.10(f), if at any time during the 
pendency of the adjustment application, the application is determined 
to be subject to the section 245(i) surcharge, and the application is 
not accompanied by the required amount (i.e., base fee of $130 plus 
$1,000 surcharge), the Service will afford the alien an opportunity to 
amend the application in accordance with 8 CFR 245.10(d). If the alien 
elects to amend such an application, he or she will be credited for the 
$130 base filing fee that was submitted with the initial adjustment 
application and, therefore, will be required to submit only the $1,000 
surcharge amount and Supplement A to Form I-485.

Section 245(c)(6) of the Act

    Under the IIRIRA, Congress amended section 245(c)(6) of the Act by 
changing the reference to section 241(a)(4)(B) to

[[Page 39421]]

section 237(a)(4)(B) of the Act. Section 237(a)(4)(B) of the Act 
renders any alien who has engaged, is engaged, or at any time after 
admission engages in any terrorist activity, as defined in section 
212(a)(3)(B)(iii) of the Act, ``deportable.'' Under section 245(c)(6), 
persons who are deportable under section 237(a)(4)(B) of the Act are 
ineligible to adjust status under section 245(a) of the Act. This 
second interim regulation reflects the position of the Service that any 
person who is deportable under section 237(a)(4)(B) of the Act is also 
ineligible to adjust status under section 245(i) of the Act.

New Section 245(c)(7) of the Act

    Section 375 of the IIRIRA, which took effect on September 30, 1996, 
amended section 245(c) of the Act by adding two new groups of aliens to 
the list of those who are ineligible to adjust status under section 
245(a) of the Act. The first group, described in new section 245(c)(7) 
of the Act, consists of any alien beneficiary of an employment-based 
immigrant visa petition who is not in a lawful nonimmigrant status at 
the time she or he applies for adjustment of status. In enacting new 
section 245(c)(7) of the Act, Congress changed preexisting law by 
rendering aliens who are legally permitted to remain in the United 
States, such as parolees, but who are not among the classes of 
nonimmigrants defined in section 101(a)(15) or other provisions of the 
Act, ineligible to adjust status under section 245(a) of the Act on the 
basis of an approved employment-based immigrant petition. This second 
interim rule amends 8 CFR 245.1(b) to add such aliens to the group of 
people currently ineligible for adjustment of status. It should be 
noted, however, that the section 245(c)(7) bar to adjustment does not 
apply to aliens who were in a lawful nonimmigrant status at the time 
they applied for adjustment of status, subsequently departed from the 
United States, and then reentered this country pursuant to an approved 
advance parole.

New Section 245(c)(8) of the Act

    Section 375 of the IIRIRA also added a new section 245(c)(8) to the 
Act, which renders ``any alien who was employed while the alien was an 
unauthorized alien as defined in section 274A(h)(3) [of the Act] or who 
has otherwise violated the terms of a nonimmigrant visa'' ineligible to 
adjust status pursuant to section 245(a) of the Act. With respect to 
the employment of an alien at a particular time, section 274A(h)(3) of 
the Act defines the term ``unauthorized alien'' as an alien who is not 
either an alien lawfully admitted for permanent residence or authorized 
to be so employed under the Act or by the Attorney General.
    Except as noted below with regard to immediate relatives and 
certain special immigrants, the Service interprets new section 
245(c)(8) of the Act as rendering an alien ineligible to adjust status 
to permanent resident under section 245(a) of the Act if she or he at 
any time engaged in unauthorized employment or violated nonimmigrant 
status while physically present in the United States. This second 
interim rule amends 8 CFR 245.1(b) accordingly by adding any alien who 
has violated the terms of a nonimmigrant visa to the list of persons 
currently ineligible to adjust status under section 245(a) of the Act. 
In addition, since the statute does not state that the violation of the 
terms of a nonimmigrant visa or the unauthorized employment must have 
occurred during a particular time period, this rule similarly places no 
time restrictions on when such a violation must have occurred. For this 
reason, this rule provides that any such violation of the terms of a 
nonimmigrant visa or unauthorized employment, either before or after 
the filing of Form I-485, will render an alien ineligible to adjust 
status under section 245(a) of the Act. Thus, as described below, under 
new section 245(c)(8) of the Act, an alien seeking employment during 
the pendency of his or her adjustment application must fully comply 
with the requirements of section 274A of the Act and 8 CFR part 274a.

Clarification of the Term ``Otherwise Violated the Terms of a 
Nonimmigrant Visa'' in New Section 245(c)(8) of the Act

    For purposes of section 245(c)(8) of the Act, an alien will not be 
deemed to have ``otherwise violated the terms of a nonimmigrant visa'' 
merely by filing an application for adjustment of status, provided that 
such filing was in accordance with 8 CFR 103.2(a) and occurred prior to 
the expiration of the alien's nonimmigrant status. Further, for 
purposes of section 245(c)(8) of the Act, an alien will not be deemed 
to have ``otherwise violated the terms of a nonimmigrant visa'' if: (a) 
The alien's failure to maintain status was through no fault of his or 
her own or for technical reasons, as defined in 8 CFR 245.1(d)(2); (b) 
the alien was granted a change of nonimmigrant status pursuant to 8 CFR 
248.1(b); (c) the alien was granted an extension of nonimmigrant stay 
pursuant to current Operations Instructions 214.1 or any previous 
analogous Operations Instructions; (d) the alien was granted an 
extension of nonimmigrant stay based on a timely filed extension 
application which the Service approved after the alien's authorized 
nonimmigrant period of stay expired; or (e) the alien was granted 
reinstatement to student status pursuant to 8 CFR 214.2(f)(16) on the 
basis of circumstances beyond the student's control.

Clarification of the Term ``Unauthorized Alien'' in New Section 
245(c)(8) of the Act

    For purposes of section 245(c)(8) of the Act, an alien will not be 
deemed to be an ``authorized alien'' as defined in section 274A(h)(3) 
of the Act while his or her properly filed Form I-485 application is 
pending final adjudication, if the alien has otherwise obtained 
permission from the Service to engage in employment, or if the alien: 
(a) Has not previously engaged in unauthorized employment at any time; 
(b) was authorized, at the time of filing the adjustment application, 
to be employed by his or her current employer pursuant to a 
nonimmigrant classification permitting such employment; and (c) would 
otherwise have been authorized to continue employment had he or she not 
filed the application for adjustment of status. In all other cases, 
including those in which the alien's previously granted employment 
authorization expires during the pendency of the adjustment 
application, the adjustment applicant must await issuance of an 
employment authorization document (``EAD'') from the Service before he 
or she may lawfully engage in employment. For this reason, adjustment 
applicants are strongly urged to file a Form I-765 application on the 
basis of 8 CFR 274a.12(c)(9) concurrently or as soon as possible after 
filing the Form I-485 to avoid a lapse of employment authorization. 
Further, in all cases, if the district director or service center 
director denies the alien's application for adjustment of status, any 
employment authorization granted to the alien on the basis of the 
adjustment application will be subject to termination pursuant to 8 CFR 
274a.14(b). Finally, as this second interim rule is limited to defining 
who is an ``unauthorized alien'' for purposes of new section 245(c)(8) 
of the Act, an alien who meets the above requirements must, like all 
other adjustment applicants, obtain advance parole in order to travel 
outside of the United States during the pendency of his or her 
adjustment application.

[[Page 39422]]

Immediate Relatives and Certain Special Immigrants Are Exempt From the 
Bar to Adjustment Under Section 245(c)(8) of the Act

    By its terms, new section 245(c)(8) of the Act applies to ``any 
alien'' and does not exempt any individual or group of individuals from 
the bar to adjustment under section 245(a) of the Act. This provision, 
however, must be harmonized with section 245(c)(2) of the Act, which 
also addresses unauthorized employment and failure to maintain lawful 
status, but which exempts from its bar to adjustment immediate 
relatives, as defined in section 201(b) of the Act, or special 
immigrants, as defined in section 101(a)(27) (H), (I), (J), or (K) of 
the Act. Despite the reference to ``all aliens'' in new section 
245(c)(8) of the Act, it is the position of the Service that the 
language of this new section does not supersede the more specific 
language of section 245(c)(2) of the Act. See 2B Sutherland Stat. 
Const. section 51.02 at p. 121 (where a conflict exists the more 
specific statute controls over the more general one). Under this second 
interim rule, therefore, immediate relatives as defined in section 
201(b) or special immigrants described in section 101(a)(27) (H), (I), 
(J), or (K) of the Act who have at any time engaged in unauthorized 
employment or otherwise violated the terms of a nonimmigrant status 
continue to be eligible to adjust status under section 245(a) of the 
Act because of the explicit language to this effect in section 
245(c)(2) of the Act. As is currently the case, such individuals are 
not required to pay the additional sum required for filing an 
adjustment application pursuant to section 245(i) of the Act. See 8 CFR 
245.1(b). These persons are still required, however, to pay the base 
filing fee required of other adjustment applicants under section 245(a) 
of the Act. See 8 CFR part 103.7(b)(1).

Effect of New Ground of Inadmissibility 212(a)(6) on Section 245(i) of 
the Act

    The IIRIRA added several new grounds of inadmissibility, including 
a new section 212(a)(6) of the Act, which became effective on April 1, 
1997. Under new section 212(a)(6)(A) of the Act, with certain 
exceptions specified therein, aliens who are ``present in the United 
States without being admitted or paroled,'' will be inadmissible to the 
United States. All inadmissibility grounds are subject, however, to the 
general language in the first clause of section 212(a) of the Act: 
``[e]xcept as otherwise provided in this Act.'' For the following 
reasons, it is the position of the Service that, despite the enactment 
of this new ground of inadmissibility, aliens who are physically 
present in the United States after having entered without inspection 
will continue to be eligible to apply for adjustment of status under 
section 245(i) of the Act through the September 30, 1997, sunset date 
for section 245(i). In making this determination, we note, as a 
preliminary matter, that the first clause of section 212(a) of the Act, 
unlike certain other sections of the Act, contains no requirement that 
another section of the Act specifically provide that an entrant without 
inspection is exempt from the new ground of inadmissibility. By 
contrast, in enacting other sections of the Act, when Congress has 
intended such specificity, it has expressly imposed this requirement. 
See e.g., section 101(a)(38) of the Act (``except as otherwise 
specifically herein provided * * *''); section 245A(h)(1) of the Act 
(``[u]nless specifically provided by this section or other law''). In 
the absence of such a specificity requirement in the first clause of 
section 212(a) of the Act, the rules of statutory construction permit 
us to conclude, if otherwise warranted, that Congress intended 
otherwise eligible applicants who had entered without inspection to be 
``admissible'' for the limited purpose of adjusting status under 
section 245(i) of the Act, even in the absence of specific language in 
section 245(i) referring to section 212(a)(6)(A) of the Act.
    The Service finds ample additional evidence of Congress' intent to 
permit entrants without inspection to continue to apply for adjustment 
of status under section 245(i) of the Act after April 1, 1997. First, 
under the plain language of section 245(i)(1)(A) of the Act, aliens who 
are physically present in the United States who entered without 
inspection are specifically permitted to apply for adjustment of 
status. Section 245(i)(2)(A), of the Act, however, requires that such 
aliens be ``admissible'' to the United States. To deem such entrants 
without inspection ``inadmissible'' would render section 245(i)(1)(A) 
of the Act effectively superfluous, since it would preclude nearly all 
entrants without inspection from ever obtaining approval of such 
applications. On a similar note, since an applicant for adjustment of 
status is assimilated to the position of an applicant for admission, 
such a person must be ``admissible'' both at the time of application 
and at the time of being granted adjustment of status. See 8 CFR 
245.10(a)(3) (alien ``may apply'' for adjustment under section 245(i) 
if not excludable); section 245(i)(2)(A) of the Act (alien must be 
``admissible'' at time of adjustment). Since section 245(i)(1)(A) of 
the Act expressly permits entrants without inspection to apply for 
adjustment of status, Congress, in effect, has deemed such persons 
``admissible'' for the single purpose of filing an adjustment 
application under section 245(i) of the Act. The Service does not 
believe that Congress, having thus invited such applications, intended 
to create the futile situation in which most entrants without 
inspection would be admissible solely for the purpose of filing an 
adjustment application, but would be precluded from ever being able to 
adjust status based on the same application. Finally, as a further 
indication of Congress' intent to preserve the status quo with respect 
to entrants without inspection, we note that Congress, in enacting the 
IIRIRA, amended other portions of section 245(i) of the Act but left 
standing 245(i)(1)(A) of the Act, which specifically authorizes those 
who entered without inspection to apply for adjustment under the terms 
of that subsection. See section 376 (a) and (b) of the IIRIRA.

General Effect of New Section 212(a)(9) of the Act on Adjustment of 
Status

    This second interim regulation specifically provided that new 
section 212(a)(9) of the Act will not be a bar to adjustment of status 
for an alien who has not yet departed from the United States. This 
interpretation conforms to the plain language of the statue which 
requires that an alien must depart from the United States in order to 
become inadmissible under section 212(a)(9) of the Act. Such a person, 
however, if otherwise within the purview of section 212(a)(9) of the 
Act (for example, by virtue of having accumulated the specified periods 
of unlawful presence), will be deemed inadmissible under that section 
of the Act for purposes of adjustment of status if he or she has 
departed from the United States and subsequently reentered the United 
States by any means.

Effect of New Section 212(a)(9)(B) of the Act on Adjustment of Status

    With certain exceptions, effective April 1, 1997, under new section 
212 (a)(9)(B) of the Act, any alien, with the exception of a lawful 
resident, who has been ``unlawfully present'' in this country (e.g., 
present beyond the period of stay authorized by the Attorney General or 
present without being admitted or paroled) for a period of more than 
180 days but less than 1 year, has voluntarily departed from the United 
States, and again seeks admission to this country within 3 years from 
the date of departure, will be

[[Page 39423]]

inadmissible to the United States. Similarly, an alien who has been 
unlawfully present in the United States for 1 year or more, departs 
from the United States, and again seeks admission to this country 
within 10 years of the date of such departure or removal, will be 
deemed inadmissible. In addition to the specific exceptions set forth 
under new section 212(a)(9)(B) of the Act, no period prior to April 1, 
1997, may be counted toward the period of ``unlawful presence.'' See 
section 301(b)(3) of the IIRIRA. Thus, the earliest possible date an 
alien could be deemed to be inadmissible under section 212(a)(9)(B) of 
the Act would be September 28, 1997. As noted above, otherwise 
admissible persons who have been ``unlawfully present'' for any period 
of time while in this country are generally ineligible to adjust their 
status under section 245(a) of the Act. Under section 245(i) of the 
Act, however, such persons, if admissible, are eligible to apply for 
adjustments of status upon payment, in most cases, of a substantial 
surcharge fee. The Service intends to address the issues relating to 
section 212(a)(9) of the Act in a separate proposed rulemaking.

Good Cause Exception

    The Service's implementation of this rule as a second interim rule, 
with provisions for post-promulgation public comments, is based upon 
the ``good cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B), (d)(3). 
See Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991). 
The immediate implementation of this second interim rule without prior 
notice and comment is necessary to implement statutory changes which 
have already gone into effect. Consequently, there is insufficient time 
to provide pre-publication notice and comment. The Service will fully 
consider all comments submitted during the comment period. The Service 
notes that this second interim rule continues to allow certain persons 
who were previously ineligible for adjustment of status to obtain 
lawful permanent residence without having to incur the high costs of 
travel abroad.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant adverse economic impact on a substantial 
number of small entities. By temporarily removing certain restrictions 
on eligibility for adjustment of status in accordance with the statute, 
the rule will eliminate inconvenience to a number of individuals 
currently in the United States who otherwise would be required to incur 
significant monetary expenses by traveling abroad to apply for an 
immigrant visa at a United States consulate or embassy. This second 
interim rule will have no effect on small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service 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 adopted herein will 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.

Executive Order 12988 Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

    This interim rule does not impose any new reporting or 
recordkeeping requirements. The information collection requirements 
contained in this rule were previously approved for use by the Office 
of Management and Budget (OMB). The OMB control numbers for these 
collections are contained in 8 CFR 299.5, Display of control numbers.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Fees, Forms, Freedom of Information, Privacy, 
Reporting and recordkeeping, Surety bonds.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Aliens, Immigration, employment authorization and employee 
requirements.

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

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.


Sec. 103.7  [Amended]

    2. In Sec. 103.7(b)(1), the entry for ``Supplement A to Form I-
485'' is amended by revising the fee of ``$650.00'' to read: 
``$1,000''.
    3. In Sec. 103.7, paragraph (c)(1) is amended in the last sentence 
by removing the phrase ``except as directed in section 245(i) of the 
Act''.

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

    4. The authority citation for part 245 continues to read as 
follows:

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


[[Page 39424]]


    5. Section 245.1 is amended by:
    a. Removing ``.'' at the end of paragraph (b)(7), and replacing it 
with a ``;'';
    b. Removing the ``.'' at the end of paragraph (b)(8), and replacing 
it with a ``;''; and by adding paragraphs (b)(9) and (b)(10), to read 
as follows:


Sec. 245.1  Eligibility.

* * * * *
    (b) * * *
    (9) Any alien who seeks adjustment of status pursuant to an 
employment-based immigrant visa petition under section 203(b) of the 
Act and who is not maintaining a lawful nonimmigrant status at the time 
he or she files an application for adjustment of status; and
    (10) Any alien who was ever employed in the United States without 
the authorization of the Service or who has otherwise at any time 
violated the terms of his or her admission to the United States as a 
nonimmigrant, except an alien who is an immediate relative as defined 
in section 201(b) of the Act or a special immigrant as defined in 
section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of 
this paragraph, an alien who meets the requirements of 
Sec. 274a.12(c)(9) of this chapter shall not be deemed to have engaged 
in unauthorized employment during the pendency of his or her adjustment 
application.
* * * * *
    6. Section 245.10 is amended by:
    a. Revising paragraph (a)(6);
    b. Revising paragraph (b) introductory text;
    c. Revising paragraph (b)(3);
    d. Revising paragraphs (c), (d) and (e); and by
    e. Adding new paragraphs (f) and (g), to read as follows:


Sec. 245.10  Adjustment of status upon payment of additional sum under 
Public Law 103-317.

    (a) * * *
    (6) Pays an additional sum of $1,000, unless payment of the 
additional sum is not required under section 245(i) of the Act; and
* * * * *
    (b) Payment of additional sum. An adjustment applicant filing under 
the provisions of section 245(i) of the Act must pay the standard 
adjustment application filing fee as specified in Sec. 103.7(b)(1) of 
this chapter. Each application submitted to the Service under the 
provisions of section 245(i) of the Act on or after October 1, 1994, 
and before December 29, 1996, must be submitted with an additional sum 
of $650. Each application submitted to the Service under the provisions 
of section 245(i) of the Act on or after December 29, 1996, must be 
submitted with an additional sum of $1,000. If a determination is made 
by an officer of the Service on or after December 29, 1996, that an 
applicant is subject to section 245(i) of the Act, and the Form I-485 
is not accompanied by Supplement A to Form I-485 and, if required by 
section 245(i), the additional sum of $1,000, the applicant will be 
afforded the opportunity to amend the application by submitting 
Supplement A, the additional sum of $1,000, if required, and any other 
required documentation. However, an applicant filing under the 
provisions of section 245(i) of the Act is not required to pay the 
additional sum if, at the time the application for adjustment of status 
is filed, the alien is:
* * * * *
    (3) The child of a legalized alien, is unmarried and less than 21 
years of age, qualifies for and has filed Form I-817, and submits a 
copy of his or her receipt of approval notice for filing Form I-817. 
Such an alien must pay the additional sum if he or she has reached the 
age of 21 years at the time of filing for adjustment of status. Such an 
alien must meet all other conditions for adjustment of status contained 
in the Act and in this chapter.
    (c) Application period. The Service may not approve an application 
for adjustment of status pursuant to section 245(i) of the Act if such 
application was filed either before October 1, 1994, or after September 
30, 1997. If an alien attempts to file an adjustment of status 
application under the provisions of section 245(i) after September 30, 
1997, the Service will accept the application and base filing fee, as 
set forth in Sec. 103.7(b)(1) of this chapter, return the additional 
sum of $1,000 to the alien, and adjudicate the application pursuant to 
section 245(a) of the Act. If the alien, in such a case, is not 
eligible for adjustment of status, the Service will issue a written 
notice advising the alien of the denial of the application for 
adjustment of status.
    (d) Adjustment application filed on or after October 1, 1994, and 
before October 1, 1997, without Supplement A to Form I-485 and 
additional sum. An adjustment of status applicant will be allowed the 
opportunity to amend an adjustment of status application filed in 
accordance with Sec. 103.2 of this chapter on or after October 1, 1994, 
and before October 1, 1997, in order to request consideration under the 
provisions of section 245(i) of the Act, if it appears that the alien 
is not otherwise ineligible for adjustment of status. The Service shall 
notify the applicant in writing of the Service's intent to deny the 
adjustment of status application, and any other requests for benefits 
which derive from the adjustment application, unless supplement A to 
Form I-485 and any required additional sum is filed within 30 days of 
the date of the notice.
    (e) Applications for Adjustment of Status filed before October 1, 
1994. The provisions of section 245(i) of the Act shall not apply to an 
application for adjustment of status that was filed before October 1, 
1994. The provisions of section 245(i) of the Act also shall not apply 
to a motion to reopen or reconsider an application for adjustment of 
status if the application for adjustment of status was filed before 
October 1, 1994. An applicant whose pre-October 1, 1994, application 
for adjustment of status has been denied may file a new application for 
adjustment of status pursuant to section 245(i) of the Act on or after 
October 1, 1994, and before October 1, 1997, provided that such new 
application is accompanied by: the required fee; Supplement A to Form 
I-485; and additional sum required by section 245(i) of the Act; and 
all other required initial and additional evidence.
    (f) Completion of processing of pending applications. An 
application for adjustment of status filed subsequent to September 30, 
1994, and prior to October 1, 1997, shall be adjudicated to completion 
by an officer of the Service, regardless of whether the final decision 
is made after September 30, 1997. The provisions of paragraph (d) of 
this section regarding amended applications shall apply to all such 
applications. The Service may consider a motion to reopen or reconsider 
an application for adjustment of status on the basis of section 245(i) 
of the Act only if:
    (1) The application for adjustment of status was filed on or after 
October 1, 1994, and before October 1, 1997, and
    (2) Prior to October 1, 1997, the applicant submitted Supplement A 
to Form I-485, any additional sum required by section 245(i), and any 
other required documentation.
    (g) Aliens deportable under section 237(a)(4)(B) of the Act are 
ineligible to adjust status. Section 237(a)(4)(B) of the Act renders 
any alien who has engaged, is engaged, or at any time after admission 
engages in any terrorist activity, as defined in section 
212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of 
the Act, persons who are deportable under section 237(a)(4)(B) of the 
Act are ineligible to adjust status under section 245(a) of the Act. 
Any person who is deportable under section 237(a)(4)(B) of

[[Page 39425]]

the Act is also ineligible to adjust status under section 245(i) of the 
Act.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

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

    8. Section 274a.12 is amended by:
    a. Removing the ``;'' at the end of paragraph (c)(9) and replacing 
it with a ``.''; and by
    b. Adding two new sentences at the end of the paragraph (c)(9), to 
read as follows:


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

* * * * *
    (c) * * *
    (9) * * * For purposes of section 245(c)(8) of the Act, an alien 
will not be deemed to be an ``unauthorized alien'' as defined in 
section 274A(h)(3) of the Act while his or her properly filed Form I-
485 application is pending final adjudication, if the alien has 
otherwise obtained permission from the Service pursuant to 8 CFR 
274a.12 to engage in employment, or if the alien had been granted 
employment authorization prior to the filing of the adjustment 
application and such authorization does not expire during the pendency 
of the adjustment application. Upon meeting these conditions, the 
adjustment applicant need not file an application for employment 
authorization to continue employment during the period described in the 
preceding sentence;
* * * * *
    Dated: June 15, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-19242 Filed 7-22-97; 8:45 am]
BILLING CODE 4410-10-M