[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Rules and Regulations]
[Pages 63249-63254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31033]



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  Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / 
Rules and Regulations  

[[Page 63249]]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[INS No. 1607-93]
RIN 1115-AD33


Adjustment of Status; Certain Nationals of the People's Republic 
of China

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule adopts, with one change, an interim rule published 
in the Federal Register on July 1, 1993, by the Immigration and 
Naturalization Service (Service), which implemented the Chinese Student 
Protection Act of 1992 (CSPA). Although the Service no longer accepts 
applications from CSPA principals, this rule finalizes the procedures 
by which the spouses and children of CSPA beneficiaries who have been 
temporarily residing in the United States may become lawful permanent 
residents of this country. It also removes the procedures for granting 
voluntary departure for certain dependents pursuant to recent 
legislative changes.

EFFECTIVE DATE: December 29, 1997.

FOR FURTHER INFORMATION CONTACT:
Pearl B Chang, Chief, Residence and Status Services Branch, Office of 
Adjudications, Immigration and Naturalization Service, 425 I Street, 
NW., Room 3214, Washington, DC 20536, Telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: 

Background

    Executive Order 12711 of April 11, 1990, provided temporary 
protection for certain nationals of the People's Republic of China 
(PRC) and their dependents who were in the United States on or after 
June 5, 1989, up to and including the date of Executive Order 12711. It 
permitted temporary deferral of enforcement of their departure from the 
United States and conferred eligibility for certain other benefits 
through January 1, 1994.
    The CSPA, Public Law 102-404, dated October 9, 1992, was enacted to 
regularize the status of, and extended permanent protections to, most 
of the PRC nationals and their dependents who were covered by Executive 
Order 12711. It provides these persons with the opportunity to become 
lawful permanent residents through adjustment of status under section 
245 of the Immigration and Nationality Act (Act), a procedure whereby 
persons in the United States in temporary immigration status may 
convert to lawful permanent resident status. Section 245 of the Act 
requires most persons seeking to adjust status to show that they meet 
strict eligibility requirements; however, the CSPA allows many of these 
requirements to be waived for eligible CSPA applicants. If the Service 
denies an application for adjustment of status under the CSPA, the 
applicant, if not an arriving alien, may renew his or her application 
in proceedings under 8 CFR part 240. See 8 CFR 245.2(a)(5)(ii). The 
CSPA application period lasted from July 1, 1993, until June 30, 1994.
    The CSPA does not allow every person covered by Executive Order 
12711 to become a lawful permanent resident of the United States. A 
qualified CSPA applicant must have initially entered the United States 
on or before April 11, 1990, and must otherwise be a person described 
in section 1 of the Executive Order 12711; must have resided 
continuously in the United States since April 11, 1990, except for 
brief, casual, and innocent departures; and may not have spent more 
than 90 days in the PRC between April 11, 1990, and October 9, 1992. A 
qualified applicant must also meet the requirements for adjustment of 
status under section 245 of the Act, unless such requirements have been 
expressly waived by, or are waived at the discretion of, the Attorney 
General in accordance with the CSPA.
    On July 1, 1993, at 58 FR 35832-35839, the Service published an 
interim rule with request for comments in the Federal Register. The 
rule established procedures for adjustment of status of persons meeting 
the requirements of the CSPA. The interim rule became effective on July 
1, 1993.
    All CSPA applications had to be filed before July 1, 1994. There 
was no provision in the CSPA for late filings. The CSPA program was a 
success. The Service was able to promptly adjudicate the great majority 
of CSPA applications. A total of 52,425 applicants were granted 
adjustment of status under the CSPA during fiscal years 1993, 1994, and 
1995. A very small number of CSPA applications remain pending. The 
Service is publishing this final rule to respond to comments received 
during the comment period, to further clarify the Service's position on 
the interim rule, and to provide for certain dependents currently in 
the United States who are not yet eligible to file for adjustment of 
status.

Comments

    Interested persons were invited to submit written comments on or 
before August 2, 1993. The Service received 349 properly addressed 
written comments during the comment period. The discussion that follows 
summarizes the issues that have been raised relating to the interim 
rule and provides the Service's position on the issues.

General

    The majority of commenters were pleased with the enactment of the 
CSPA. A small number of writers, however, recommended that the law be 
rescinded. Their concerns included the economic and social consequences 
of increased immigration, the CSPA's possible encouragement of unlawful 
immigration, the delays in implementation of democratic reforms in the 
PRC caused by the permanent migration of potential supporters, and the 
possibility that many CSPA beneficiaries would not need the protections 
offered by this legislation. Other writers were disturbed by the 
likelihood that persons who had not been actively involved in the 
democratic movement in the PRC or who had been communist party 
supporters would be able to obtain lawful permanent residence under the 
CSPA
    The Service's implementing regulations cannot be used to rescind or 
change statutory benefits provided by the CSPA. The provisions of this 
rule minimize the potential for abuse of the

[[Page 63250]]

benefits provided by the CSPA, by ensuring that only persons who meet 
the requirements enacted by Congress will become lawful permanent 
residents. Accordingly, the provisions of the rule have not been 
changed because of these recommendations.

Visa Number Allocation for CSPA Applicants

    Many commenters were concerned about the interim rule's requirement 
that a CSPA applicant have an immediately available visa number under 
the worldwide third employment-based skilled worker preference category 
prior to approval of his or her adjustment application. Some writers 
urged the service to approve CSPA adjustments without regard to visa 
number availability, stating that any delay in granting permanent 
residency to qualified applicants would be contrary to the spirit and 
intent of the CSPA. Other commenters recommended that visa numbers for 
CSPA applicants be obtained from the refugee category or from a 
preference classification other than the third employment-based skilled 
worker category, since oversubscription by CSPA applicants could delay 
the immigration of urgently needed skilled workers.
    Adjustments of status under the third employment-based skilled 
worker preference category are subject to several numerical limitations 
under the Act. The CSPA modifies the application of two of these 
restrictions; however, it does not waive all of the applicable 
statutory numerical limitations. The CSPA allows the Service to 
``consider,'' or accept a CSPA adjustment of status application for 
processing, without regard to whether an immigrant visa number is 
immediately available. It also allows applications to be approved 
without regard to the per-country numerical limitations of section 
202(a)(2) of the Act, and provides for a subsequent gradual deduction 
of these numbers from the China per-country quota. It does not allow 
such applicants to be approved without regard to the worldwide 
numerical restrictions of sections 201 and 203 of the Act.
    The CSPA clearly requires applicants to adjust status under the 
third employment-based skilled worker category. Section 2(a)(1) of the 
CSPA directs the Service to regard each CSPA applicant as having been 
approved for classification under section 203(b)(3)(A)(i) of the Act as 
a third employment-based skilled worker.
    A review of the legislative history also supports the rule's 
interpretation of the CSPA. The House report accompanying the CSPA 
clearly shows that CSPA adjustments of status are intended to be placed 
within the worldwide quota of section 201 of the Act. See H.R. No. 826, 
102d Cong., 2d Sess. 5-6 (1992). In the report, Representative Jack 
Brooks states.

    [S.] 1216 places the number of Chinese adjustments within the 
worldwide annual quota of section 201 of the Immigration and 
Nationality Act and deducts from the PRC's per country ceiling each 
year a portion of the number of Chinese who adjust under this act. 
Because the worldwide quota is not waived, applicants will be 
required to await the availability of a visa number * * *. Id.

    In the discussion in the Senate, managers of the bill also 
explained that CSPA adjustments will be counted against the worldwide 
quota. See 138 Cong. Rec. S7150 (daily ed. May 21, 1992). During this 
discussion, Senator Slade Gorton stated:

    * * * A second change involves a provision to count those 
persons receiving permanent residency under new worldwide 
immigration levels as established by the Immigration Act of 1990. 
Additional provisions also address the need to count them under 
China's per country ceiling without adversely affecting ongoing 
immigration from China. Id. At S7150.

    The Service has minimized any adverse impact of the CSPA upon the 
availability of immigrant visa numbers for skilled workers. With the 
assistance of the Department of State, the Service was able to 
significantly streamline CSPA application processing and approve more 
than three-quarters of CSPA adjustment of status applications during 
the final 3 months of fiscal year 1993. These procedural changes 
allowed CSPA applicants to use immigrant visa numbers which would not 
otherwise have been utilized by any immigrant, due to lack of demand.
    The interim rule's provisions concerning immigrant visa number 
limitations reflect statutory requirements of the CSPA and the Act. 
Accordingly, the rule has not been changed in response to these 
comments.

Order of Approval and Priority Date Assignment

    A number of comments addressed the interim rule's procedure for 
determining the order in which adjustments would be granted to eligible 
CSPA applicants. These commenters felt that the date the application 
was properly filed with the Service should not determine the order of 
approval and suggested alternative procedures. Some commenters wanted 
the Service to give preference to applications submitted by students 
because they felt that the CSPA was primarily intended to protect them. 
Other suggestions included approving applications based on the date the 
applicant arrived in the United States; giving priority to applications 
filed by heads of families; delaying the adjustment of Chinese who have 
the right to reside in third countries, such as Hong Kong; and giving 
priority to applications submitted by persons who had not returned to 
the PRC after their initial admission to the United States. A few 
commenters also wanted to know how the Service determines whether an 
application has been ``properly filed.''
    The CSPA does not address the order in which qualified CSPA 
applicants should be allowed to adjust status. In the absence of a 
statutory directive, the Service elected to follow its standard 
practice by assigning each application a priority data based on the 
date on which the properly filed application was received by the 
Service, and by using this priority date to determine the order in 
which available visa numbers would be allocated and adjustments granted 
to qualified applicants. The Service has considered the alternatives 
suggested by these commenters; however, their proposals have not been 
adopted because they could not be efficiently implemented or because 
their implementation would unfairly delay the processing of other 
employment-based third preference skilled workers whose initial 
applications were filed before July 1, 1994.
    Guidelines for determining when an application is considered to be 
properly filed are contained in the Service's regulations at 8 CFR 
103.2(a)(7). An application is not considered properly filed if the 
application has not been properly signed, or unless a fee waiver has 
been granted, if the required fee is not attached.
    Accordingly, the provisions of the rule have not been changed as a 
result of these comments.

Date of Arrival in the United States

    Some commenters objected to the interim rule's requirement that 
eligible CSPA applicants must have been in the United States between 
June 5, 1989, and April 11, 1990. They pointed out that some persons 
who participated in the democratic movement may have been unable to 
leave the PRC or to enter the United States before the cut-off date.
    This regulatory requirement reflects one of the three fundamental 
statutory requisites for CSPA eligibility. Section 2(b)(1) of the CSPA 
requires all eligible applicants to be persons described in section 1 
of Executive Order 12711. Section 1 of Executive Order 12711 covers 
only persons who were in the United States on or after June 5, 1989, up 
to and including April 11, 1990.

[[Page 63251]]

There is no provision of the CSPA or Executive Order 12711 which would 
confer CSPA eligibility on persons who initially arrived in the United 
States after April 11, 1990.
    Criteria for CSPA coverage were discussed several times in both the 
House and the Senate. The record contains no indication that Congress 
intended the Service to grant CSPA benefits to persons who are unable 
to meet this requirement. In the discussion on the final version of the 
bill as it passed in the House, supporters of the legislation addressed 
the fundamental requirements for CSPA eligibility. See 138 Cong. Rec. 
H7819-7820 (daily ed. Aug. 10, 1992). During this discussion, 
Congresswoman Nancy Pelosi explained:

    S. 1216 would allow Chinese nationals who were in the United 
States during the Tiananmen Square massacre to apply for permanent 
residency in the United States. To be eligible for permanent 
residency, the Chinese national must have first, been in the United 
States sometime between June 4, 1989 and April 11, 1990. Id. At 
H7820.

    The Service had previously determined that a brief, casual, and 
innocent departure from the United States between June 5, 1989, and 
April 11, 1990, inclusive, would not preclude an individual from 
coverage under section 1 of Executive Order 12711 and eligibility for 
Executive Order 12711 benefits. As explained in the Supplementary 
Information to the interim rule, this same interpretation of the 
Executive Order 12711 requirements is applied when determining whether 
a CSPA applicant is a person described in section 1 of Executive Order 
12711.
    The requirement that an eligible applicant establish that he or she 
was in the United States at some time between June 5, 1989, and April 
11, 1990, inclusive, or would have been in the United States during 
this time period except for a brief, casual, and innocent departure 
from this country, is based upon clear statutory requirements; 
accordingly, it has not been changed.

Physical Presence in the PRC

    Many commenters discussed the prohibition on granting CSPA benefits 
to persons who had remained in the PRC for an aggregate of more than 90 
days during the period between April 11, 1990, and October 9, 1992. 
Most of these writers recommended that the restriction be waived if 
circumstances beyond the applicant's control prevented his or her 
timely departure from the PRC, or if the applicant had obtained an 
advance parole prior to departing the United States. Other commenters 
felt that the rule should be modified to prohibit adjustment of status 
under the CSPA if the applicant traveled to the PRC for any reason 
after April 10, 1990; if the applicant stayed in the PRC for more than 
30 days during the restricted period; or if the applicant stayed in the 
PRC for more than 90 days at any time after April 11, 1990. Some 
writers felt that the interim rule's restriction should be applied only 
if the applicant stayed in the PRC for more than 90 days on any single 
occasion.
    The regulatory restriction on physical presence in the PRC is based 
on the third of the three fundamental statutory requisites for CSPA 
eligibility. Section 2(b)(3) of the CSPA states that the CSPA covers 
only a person who ``was not physically present in the People's Republic 
China for longer than 90 days after such date [April 11, 1990] and 
before the date of the enactment of this Act [October 9, 1992].''
    A review of the legislative history also supports the rule's 
provisions. The fundamental requirements for CSPA eligibility were 
discussed prior to passage of the final version of the bill by the 
House. See 138 Cong. Rec. H7819-7820 (daily ed. Aug. 10, 1992). During 
this discussion, Congresswoman Pelosi explained that to be eligible for 
CSPA benefits the applicant, inter alia, must have ``not been to China 
for more than 90 days after April 11, 1990.'' Id. At H7820 (emphasis 
added).
    There is no indication in this discussion that Congress intended 
the Service to grant CSPA benefits to any person unable to meet basic 
eligibility requirements, or that the 90-day limitation should apply 
only to applicants who had remained in the PRC for more than 90 days on 
any one occasion.
    If eligible, a person who has spent more than 90 days in the PRC 
may be able to request permission to remain in the United States under 
another provision of the Act. For example, a person who has reason to 
fear persecution upon return to his or her home country and believes 
that he or she meets the definition of ``refugee'' found in section 
101(a)(42) of the Act may be eligible to apply under section 208 of the 
Act for asylum.
    The interim rule's provisions concerning physical presence in the 
PRC during the restricted period are based on the statutory 
requirements of the CSPA. Accordingly, the final rule makes no changes 
to these provisions.

Entry Without Inspection

    Some commenters objected to the interim rule's requirement that, in 
order to be eligible for adjustment of status under the CSPA, an 
applicant must establish that he or she was inspected and admitted or 
paroled into the United States upon his or her last arrival in this 
country. A number of writers felt that entry without inspection should 
not preclude adjustment of status under the CSPA because these persons 
also deserved the protections offered by the CSPA. Others felt that 
persons who reentered the United States with an advance parole after 
having initially entered the country without inspection should not be 
allowed to adjust status because they had violated the U.S. immigration 
laws.
    The CSPA expressly provides for certain rules that shall apply to 
an eligible alien who applies for adjustment of status under section 
245 of the Act. While the CSPA does provide an exemption from 
ineligibility under section 245(c) of the Act, which generally 
precludes adjustment if the applicant has been employed without 
authorization; is not in lawful status when seeking employment-based 
immigrant status; had failed to continuously maintain a lawful 
nonimmigrant status or otherwise violated the terms of a nonimmigrant 
visa; or was admitted to the United States as a crewman, in transit 
without visa status, in S visa status, or under the visa waiver 
programs of sections 212(l) or 217 of the Act, it does not exempt 
applicants from compliance with the requirements of section 245(a) of 
the Act that they be inspected and admitted or paroled into the United 
States. Since the CSPA specifically requires applicants to apply under 
section 245 of the Act; expressly waives a portion of the requirements 
for adjustment under section 245 of the Act (section 245(c) of the 
Act); and makes no mention of waiving the other requirements of section 
245, the Service has determined that CSPA applicants must comply with 
the requirements of section 245(a) of the Act. To date, several courts 
have concurred with the Service's interpretation.
    While the Service cannot waive the requirements of section 245(a) 
of the Act for CSPA applicants, it also cannot impose additional 
restrictions beyond those required by the statute. A person who was 
paroled into the United States upon his or her last arrival meets the 
requirements of section 245(a) of the Act regardless of whether he or 
she had previously entered this country in violation of the immigration 
laws.
    The Service wishes to point out that the Supplementary Information 
to the interim rule contains a typographical error, which may have 
confused some readers. The sentence reading: ``The CSPA also allows 
eligible applicants to

[[Page 63252]]

adjust status without regard to the provisions of section 245(a) of the 
Act.'' should have read: ``The CSPA allows eligible applicants to 
adjust status without regard to the provisions of section 245(c) of the 
Act.'' See 58 FR 35835 (1993). The following paragraph and the interim 
rule's regulatory language correctly state that the requirements of 
section 245(a) of the Act have not been waived. The Service regrets any 
confusion caused by this typographical error, which does not 
necessitate any changes to the final rule.
    The Service received a number of inquiries after the end of the 
comment period concerning the effect of a recently enacted law on 
eligibility under the CSPA. Specifically, section 245(i) of the Act 
allows otherwise qualified persons who entered the United States 
without having been inspected and admitted or paroled to be granted 
adjustment of status upon payment of an additional sum of $1000. This 
provision became effective on October 1, 1994, 3 months after the close 
of the CSPA application period. It is due to sunset on October 23, 
1997. Since the new law applies only to applications filed after 
October 1, 1994, (see 8 CFR 245.10(e)) it has no effect on CSPA 
adjustment-of-status applications. Accordingly, the interim rule's 
requirement that an eligible CSPA applicant show that he or she entered 
the United States following an inspection and admission or parole has 
not been changed.

Ineligibility Under Section 245(d) of the Act

    A small number of commenters felt that otherwise-eligible 
applicants should be allowed to adjust status under the CSPA without 
regard to the provisions of section 245(d) of the Act, or requested 
further clarification concerning this provision.
    Section 245(d) of the Act prohibits the approval of an adjustment-
of-status application filed under section 245 of the Act if the 
applicant is a person lawfully admitted to the United States on a 
conditional basis under section 216 of the Act based on a recent 
marriage to a citizen or lawful permanent resident of the United 
States. It also prohibits the approval of an adjustment-of-status 
application filed under section 245 of the Act if the applicant last 
entered the United States in K-1 or K-2 nonimmigrant status as a 
fiance(e) of a U.S. citizen or as the child of a K-1 nonimmigrant 
fiance(e). By regulation, the Service had created an exception only in 
cases where the adjustment application is based on the marriage to the 
U.S. citizen who filed the fiance(e) petition (See 8 CFR 245.1(c)(6)). 
Since CSPA adjustment-of-status applications are filed under section 
245 of the Act and the CSPA does not waive this restriction, the 
Service must deny a CSPA adjustment-of-status application if the 
adjustment is prohibited under section 245(d) of the Act. The 
prohibition on adjustment of status does not apply to a person whose 
conditional residency under section 216 of the Act has been terminated. 
See Matter of Stockwell, 20 I & N Dec. 309 (BIA 1991). Accordingly, no 
changes have been made as a result of these comments.

Waivers of Inadmissibility

    Several commenters asked the Service to modify the interim rule's 
provisions concerning inadmissibility under section 212(a) of the Act. 
Some commenters were concerned that the elderly or persons first 
entering the labor market would be unable to meet public charge 
requirements and asked that a blanket waiver be provided. Other writers 
felt that inadmissibility for health reasons was unfair and asked the 
Service to automatically waive that basis for inadmissibility. A few 
commenters asked the Service to include stronger statements concerning 
ineligibility based on current or former communist party membership and 
not to waive inadmissibility on this basis unless the applicant has 
provided evidence that his or her membership has been terminated.
    The CSPA provides two blanket waivers of inadmissibility under 
section 212(a) of the Act. It automatically waives inadmissibility 
under section 212(a)(5) of the Act because the applicant did not obtain 
a labor certification or failed to meet certain requirements applicable 
to foreign-trained physicians. It also provides a blanket waiver of the 
provisions of section 212(a)(7)(A) of the Act relating to documentary 
requirements for entry as an immigrant. The CSPA also allows most other 
grounds of inadmissibility under section 212(a) of the Act to be 
individually waived at the discretion of the Attorney General for 
purposes of ensuring family unity or if approval of the waiver is 
otherwise in the public interest. Both health-related and public charge 
inadmissibility may be waived for these reasons at the discretion of 
the Attorney General. There is, however, no statutory foundation for 
providing a blanket waiver of inadmissibility on this basis, nor does 
such a blanket waiver appear to be necessary. Inadmissibility based on 
communist party membership may also be individually waived at the 
discretion of the Attorney General for purposes of ensuring family 
unity, if approval of a waiver is otherwise in the public interest, or 
if the applicant qualifies for any of the waivers provided in section 
212(a)(3)(D) of the Act. The Service will, of course, deny an 
adjustment-of-status application filed by any person who is a current 
or former communist party member who does not qualify for a waiver. An 
applicant who has terminated communist party membership is encouraged 
to provide evidence of the termination with his or her application.
    Accordingly, the interim rule's provisions relating to 
inadmissibility under section 212(a) of the Act have not been changed.

Dual Nationality

    A few commenters discussed whether persons who are nationals of 
both the PRC and a second country should be allowed to adjust status 
under the CSPA. One commenter felt that dual nationals should not be 
allowed to adjust status under the CSPA, while another writer felt that 
a CSPA applicant should not be bound by the country of nationality 
claimed or established at the time of entry for the duration of his or 
her stay in the United States. A third commenter wanted clarification 
of dual nationality as it applies to persons bearing Hong Kong travel 
documents.
    Although the Service explained its position concerning dual 
nationality in the Supplementary Information to the interim rule, the 
interim rule's regulatory language merely requires CSPA principal 
applicants to be nationals of the PRC. As explained in the 
Supplementary Information, the Service would not necessarily preclude a 
person who is a dual national of the PRC and one or more other 
countries from satisfying the PRC nationality requirement under the 
CSPA. The Service has held for other purposes, however, that a person 
is bound by the nationality claimed at the time of entry into the 
United States for the duration of his or her stay and sees no reason to 
alter this practice for purposes of the CSPA. Accordingly, no changes 
have been made as a result of these comments.

Late Arriving Dependents

    Most commenters discussed the benefits provided to family members 
in the United States who are unable to qualify for CSPA adjustment of 
status because they arrived in the United States after April 11, 1990. 
Many writers felt that these late arriving dependents (LADs) should be 
allowed to adjust status under the CSPA or should be granted benefits 
similar to those

[[Page 63253]]

provided to qualified CSPA principals. They suggested that LADs be 
granted benefits such as: A waiver of per-country quota limitations; a 
waiver of the 2-year home-country residency requirement of section 
212(e) of the Act; a waiver of the requirements of section 245(c) of 
the Act; placement under the second family-sponsored preference 
category; and establishment of a family unity program similar to that 
provided for the spouses and children of persons who adjusted status 
under the Immigration Reform and Control Act of 1986, Public Law 99-
603. Some commenters objected to the rumored inclusion of LADs in the 
second employment-based preference category. Other writers asked that 
LADs be granted liberal approval of advance parole requests and 
employment authorization; excused from presenting birth and marriage 
certificates with an adjustment-of-status application; allowed to file 
adjustment-of-status applications at the Service Centers; permitted to 
apply for adjustment of status before the principal's CSPA adjustment 
application is approved; granted adjustment if the principal could have 
adjusted under the CSPA but chose to utilize another classification; 
and allowed to adjust status or to apply for immigrant visas in a third 
country, rather than being forced to return to the PRC.
    As discussed in the Supplementary Information to the interim rule, 
the CSPA requires eligible applicants to meet three basic eligibility 
requirements. He or she: (1) Must have initially entered the United 
States on or before April 11, 1990, and must otherwise be a person 
described in section 1 of Executive Order 12711; (2) must have resided 
continuously in the United States since April 11, 1990, except for 
brief, casual, and innocent departures; and (3) may not have spent more 
than 90 days in the PRC between April 11, 1990, and October 9, 1992. 
Persons who do not meet these requirements cannot adjust status under 
the CSPA or be granted CSPA benefits. The CSPA also provides no 
authority to waive any of the statutory requirements of the Act for 
persons who do not meet the eligibility requirements for CSPA 
adjustment of status. Section 203(d) of the Act, however, allows a 
spouse or child who is not otherwise entitled to an immigrant status 
and the immediate issuance of an immigrant visa to be eligible for the 
same preference immigrant classification and priority date if the 
relationship existed at the time the principal became a lawful 
permanent resident. A LAD who is the spouse or child of a CSPA 
principal may, therefore, use the principal's CSPA priority date under 
the third employment-based preference classification and seek immigrant 
visa issuance or adjustment of status when the priority date becomes 
current. LADs who were unable to maintain lawful nonimmigrant status 
have been allowed to remain in the United States in voluntary departure 
status pending the availability of the appropriate visa numbers.
    The ability of the Attorney General to grant voluntary departure 
has been limited by the enactment of 240B of the Act which took effect 
on April 1, 1997. Section 240B of the Act limited the grant of 
voluntary departure in lieu of removal proceedings or before the 
conclusion thereof, to a period not to exceed 120 days including 
extensions. If such relief was granted at the conclusion of removal 
proceedings, the period may not exceed 60 days including extensions. 
Persons granted voluntary departure under such circumstances may not 
receive work authorization. However, if the grant of voluntary 
departure was given either during, or at the conclusion of, exclusion 
or deportation proceedings that were commenced prior to April 1, 1997, 
the Attorney General may grant voluntary departure for an unspecified 
period of time consistent with both Service regulations and policies. 
Persons granted voluntary departure under these circumstances may 
continue to receive employment authorization.
    Although in recent months the third employment-based skilled worker 
category has once again become current, not all remaining LADs will be 
able to file for adjustment of status immediately. Recognizing that 
with the new restrictions on duration, voluntary departure is no longer 
an adequate option for such aliens, the Service may consider granting 
remaining LADs deferred action on a case-by-case basis. Accordingly, 8 
CFR 245.9(m) has been amended to remove the reference to voluntary 
departure. This regulation is being adopted as a final rule without 
public comment because such comment is both impracticable and 
unnecessary. This change simply amends Service regulations to reflect a 
statutory change which severely curtails and, in the vast majority of 
cases, effectively nullifies part of the existing regulation.
    In cases where an LAD requests that the Service grant deferred 
action, the Service will proceed according to section X of the 
Service's Standard Operating Procedures for Enforcement Officers: 
Arrest, Detention, Processing and Removal (1997). Specifically, a 
Service director may, in his or her discretion, recommend deferral of 
(removal). Deferred action recognizes that the Service has limited 
enforcement resources and that every attempt should be made 
administratively to use these resources in a manner which will achieve 
the greatest impact under the immigration laws. Deferred action does 
not confer any immigration status on an alien, nor is it in any way a 
reflection of an alien's lawful immigration status. It does not affect 
periods of unlawful presence previously accrued or accruing while in 
such ``status'' as defined in section 212(a)(9) of the Act, and does 
not alter the status of any alien who is present in the United States 
without being inspected and admitted. Under no circumstances does 
deferred action cure any defect in status under any section of the Act 
for any purpose. Since deferred action is not an immigration status, no 
alien has the right to deferred action. It is used solely for the 
administrative convenience of, and in the discretion of, the Service 
and confers no protection or benefit on an alien. Deferred action does 
not preclude the Service from commencing removal proceedings at any 
time against an alien. While in deferred action status, an alien may be 
granted work authorization pursuant to 8 CFR 274a.12(c)(14).
    LADs who apply for adjustment of status in the United States while 
section 245(i) of the Act remains in effect may adjust status despite 
ineligibility under section 245(c) of the Act upon payment of the 
additional sum.

Other Dependents

    Some commenters asked for further clarification about benefits 
available under the CSPA to sons and daughters who reach 21 years of 
age or marry. Other writers asked that family members living in the PRC 
be paroled into the United States or be issued nonimmigrant visas to 
immigrate to the United States.
    A son or daughter who is over the age of 21 and meets the CSPA 
eligibility requirements, including arrival in the United States before 
April 11, 1990, may adjust status under the CSPA without regard to age 
or marital status at the time of adjustment. See 8 CFR 245.9(c)(2), 
which specifies only that he or she was unmarried and under the age of 
21 on April 11, 1990. A spouse or child who does not meet the CSPA 
requirements may be eligible to adjust status as a family-based second 
preference immigrant. The CSPA, however, provides no authority for 
parole of family members into the United States, nor does it allow the 
use

[[Page 63254]]

of nonimmigrant visas to immigrate to this country.
    Accordingly, no changes have been made as a result of these 
comments.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Commissioner of the 
Immigration and Naturalization Service certifies that this rule will 
not, if promulgated, have a significant adverse economic impact on a 
substantial number of small entities. This rule allows certain 
nationals of the PRC to apply for adjustment of status; it has no 
effect on small entities as that term is defined in 5 U.S.C. 601(6).

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 regulation 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.

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 12988 Civil Justice Reform

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

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 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.

List of Subjects in 8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 8 CFR part 245 which was 
published at 58 FR 35832 on July 1, 1993, is adopted as a final rule 
with the following change:

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

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

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

    2. In Sec. 245.9, paragraph (m) is revised to read as follows:


Sec. 245.9  Adjustment of Status of Certain Nationals of the People's 
Republic of China under Public Law 102-404.

* * * * *
    (m) Effect of enactment on family members other than qualified 
family members. The adjustment of status benefits and waivers provided 
by Public Law 102-404 do not apply to a spouse or child who is not a 
qualified family member as defined in paragraph (c) of this section. 
However, a spouse or child whose relationship to the principal alien 
was established prior to the approval of the principal's adjustment-of-
status application may be accorded the derivative priority date and 
preference category of the principal alien, in accordance with the 
provisions of section 203(d) of the Act. The spouse or child may use 
the priority date and category when it becomes current, in accordance 
with the limitations set forth in sections 201 and 202 of the Act.

    Dated: October 31, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-31033 Filed 11-26-97; 8:45 am]
BILLING CODE 4410-10-M