[Federal Register Volume 65, Number 58 (Friday, March 24, 2000)]
[Rules and Regulations]
[Pages 15846-15857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7205]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 212, 240, 245, 274a and 299

[INS No. 1893-97; AG Order No. 2293-2000]
RIN 1115-AF04


Adjustment of Status for Certain Nationals of Nicaragua and Cuba

AGENCY: Immigration and Naturalization Service, Justice, and Executive 
Office for Immigration Review, Justice.

ACTION: Final rule.

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SUMMARY: This rule implements section 202 of the Nicaraguan Adjustment 
and Central American Relief Act (NACARA) by establishing procedures for 
certain nationals of Nicaragua and Cuba who have been residing in the 
United States to become lawful permanent residents of this country. 
This rule allows them to obtain lawful permanent resident status 
without applying for an immigrant visa at a United States consulate 
abroad, and waives many of the usual requirements for this benefit.

[[Page 15847]]


DATES: This final rule is effective March 24, 2000.

FOR FURTHER INFORMATION CONTACT: For matters relating to the 
Immigration and Naturalization Service--Suzy Nguyen, Adjudications 
Officer, Office of Adjudications, Immigration and Naturalization 
Service, 425 I Street NW, Room 3214, Washington, DC 20536, telephone 
(202) 514-5014; For matters relating to the Executive Office for 
Immigration Review--Chuck Adkins-Blanch, Acting General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2400, Falls Church, VA 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:  

What Are the Basic Provisions of Section 202 of NACARA and the 
Interim Regulation Published on May 21, 1998?

    The Nicaraguan Adjustment and Central American Relief Act (NACARA), 
enacted as title II of the District of Columbia Appropriations Act, 
1998, Public Law 105-100 (111 Stat. 2160, 2193), was signed into law on 
November 19, 1997. As amended by Public Law 105-139 (111 Stat. 2644), 
which was signed into law the same day, section 202 of NACARA allows 
certain Nicaraguan and Cuban nationals who are physically present in 
the United States to adjust status to that of lawful permanent 
resident. In order to be eligible for benefits under NACARA, an 
applicant must be a national of Nicaragua or Cuba; must be admissible 
to the United States under all provisions of section 212(a) of the 
Immigration and Nationality Act (Act), other than those provisions 
specifically excepted by NACARA; must have been physically present in 
the United States for a continuous period beginning not later than 
December 1, 1995, and ending not earlier than the date the application 
for adjustment is filed (not counting absences totaling 180 days or 
less); and must properly file an application before April 1, 2000. In 
addition, certain family members of NACARA beneficiaries are also 
eligible for adjustment of status under NACARA.
    The interim regulation published in the Federal Register by the 
Department of Justice (Department) on May 21, 1998, explained the 
forms, supporting documentation, and process through which a principal 
applicant, or an applicant who is a dependent of a principal applicant, 
may apply for adjustment of status under section 202 of NACARA. It 
provided that an alien who is currently in exclusion, deportation, or 
removal proceedings may file his or her application with the 
immigration court, unless the immigration court administratively closes 
such proceedings for the specific purpose of allowing the alien to 
apply for adjustment before the Immigration and Naturalization Service 
(Service or INS). The regulation also added an eighth method to the 
seven contained in the statute for proving commencement of physical 
presence in the United States. Additionally, it explained the process 
through which a NACARA adjustment applicant may seek authorization to 
work in the United States or to travel outside of the country. Finally, 
the regulation provided a vehicle through which certain aliens who are 
outside the United States may seek authorization to be paroled into the 
country for the purpose of applying for adjustment of status.

How Many Comments Were Received From Interested Parties During the 
Comment Period?

    There were 36 separate comments received from various 
organizations, individuals, and other interested parties. That number 
included three Members of Congress, one representative of a foreign 
government, numerous nongovernmental organizations, and several 
attorneys and law firms. Also included in that number are 2 petitions, 
1 with 426 signatures and the other with 66 signatures, and 124 
identical letters signed by the members of 1 organization, making a 
total of 649 individuals and organizations who participated in the 
public comment process. The Department wishes to thank all participants 
for their insightful comments.

What Were the Specific Comments and How Is the Department Amending 
the Regulation as a Result?

    The issues raised by commenters generally fell into 14 areas, each 
of which will be discussed separately, as follows:

1. Treatment of an Ineligible Spouse or Child

    A significant number of commenters expressed concern about the 
requirement that a spouse or child of a principal applicant be a 
national of Nicaragua or Cuba in order to qualify for the benefits of 
section 202 of NACARA. Some questioned whether the language of the 
statute specified that the dependent be a national of Nicaragua or 
Cuba, while others recognized that the language so specified, but felt 
that the agency has the authority to ``correct'' the language through 
regulation. Still other commenters suggested that the Department create 
a family unity program for ineligible dependents and provide them with 
a blanket waiver of section 212(a)(9)(B) of the Act (which creates a 3-
year bar for aliens who have been unlawfully present for more than 180 
days and a 10-year bar for those who have been unlawfully present for 1 
year or more). While the Department is sympathetic to the problem faced 
by non-Nicaraguan, non-Cuban dependents, section 202(d)(1)(A) of NACARA 
clearly states that the alien spouse must be ``a national of Nicaragua 
or Cuba.'' While the courts have held that an agency has a certain 
amount of latitude in drafting implementing regulations if the statute 
is unclear on an issue, the agency has no such latitude where the 
statute is clear. Only a statutory change can redress the issue of 
eligibility for non-Nicaraguan and non-Cuban dependents. Likewise, a 
statutory change would be required to create a family unity program for 
ineligible dependents and to waive the provisions of section 
212(a)(9)(B) of the Act. Accordingly, no changes are being made to the 
regulation on this point.

2. Other Statutory Issues

    Some commenters wanted clarification in the regulation on whether 
sections 212(a)(6)(B), 240B(d), 241(a)(5) (and also by extension 
212(a)(9)(C)), and ``the former section 242B'' of the Act applied to 
NACARA applicants. One party also requested information regarding the 
number of persons affected by section 241(a)(5) of the Act. Although 
incorporating a discussion of each of these provisions in 8 CFR 245.13 
would unnecessarily complicate the regulation, we have decided to 
address them in this supplementary information.
    Section 212(a)(6)(B) of the Act provides that if an alien failed to 
attend a removal hearing, he or she is inadmissible for a period of 5 
years from his or her subsequent departure or removal. In order to be 
barred from adjusting status under NACARA, an alien would (1) have to 
fail to attend a removal hearing; (2) depart or be removed from the 
United States; (3) re-enter the United States; and (4) apply for 
adjustment under NACARA. If any of these four steps is missing, the 
alien would not be inadmissible under section 212(a)(6)(B) of the Act; 
if all four are present, he or she would be inadmissible and, 
therefore, ineligible for adjustment of status under section 202 of 
NACARA.
    If an alien was permitted to depart voluntarily but failed to do 
so, he or she would be barred by section 240B(d) of

[[Page 15848]]

the Act from receiving benefits under certain specified provisions of 
the Act. Because a NACARA applicant would not be seeking benefits under 
one of the sections specified in section 240B(d) of the Act, section 
240B(d) of the Act would not apply.
    Section 241(a)(5) of the Act provides for the reinstatement of a 
removal order against any alien who illegally re-enters the United 
States after having been removed or after having departed voluntarily 
under an order of removal. It also bars any alien whose removal order 
has been reinstated from receiving any relief under the Act. An alien 
who has been previously deported is inadmissible for the applicable 
period set forth in the Act and may only overcome such inadmissibility 
by obtaining the applicable waiver of inadmissibility authorized under 
section 212(a)(9) of the Act (such waiver is more commonly referred to 
as permission to reapply for admission after deportation) before being 
granted adjustment of status (including adjustment under section 202 of 
NACARA). Because such a waiver is relief (from inadmissibility) under 
the Act for which an alien subject to reinstatement is ineligible, a 
previously deported alien who has re-entered the United States 
illegally at a time when his or her previous exclusion, deportation, or 
removal rendered him or her inadmissible to the United States is 
ineligible to adjust status under section 202 of NACARA. The Service 
does not know how many otherwise-eligible Nicaraguans and Cubans are 
barred from adjusting under section 202 due to the provisions of 
section 241(a)(5) of the Act, but judging solely from the volume of 
inquiries received on the issue, the number may be significant.
    The issue of a previous exclusion, deportation, or removal also 
arises in connection with section 212(a)(9)(C)(i)(II) of the Act, which 
provides that:

    Any alien who * * * has been ordered removed under section 
235(B)(1), section 240, or any other provision of law, and who 
enters or attempts to reenter the United States without being 
admitted is inadmissible.

Section 202(a)(2) of NACARA specifically provides that ``[a]n alien 
present in the United States who has been ordered excluded, deported, 
removed, or ordered to depart voluntarily from the United States under 
any provision of the Immigration and Nationality Act may, 
notwithstanding such order, apply for adjustment of status under 
paragraph (1).'' Accordingly, merely having been ordered removed does 
not make an alien inadmissible to the United States and, therefore, 
ineligible for adjustment under NACARA, but departing while under such 
order and then entering or attempting to re-enter without being 
properly admitted does.
    The former section 242B of the Act was replaced by section 
308(b)(6) of IIRIRA, and incorporated into the new section 240(b)(7) of 
the Act. That section bars an alien against whom a final order of 
removal is entered in absentia from eligibility for relief under 
certain specified sections of the Act. As with section 240B(d) of the 
Act, because a NACARA applicant is seeking adjustment under a provision 
of law that is separate from the Act, section 240(b)(7) (formerly 
section 242B) of the Act does not apply.
    Some commenters inquired whether someone who is already a lawful 
permanent resident (LPR) may ``readjust'' under NACARA in order to 
obtain some ancillary benefit. In accordance with Board precedent, see 
e.g., Matter of Krastman, 11 I&N Dec. 720, 721 (BIA 1966), the ability 
of an alien who is an LPR to apply for and be granted adjustment of 
status to that of an alien lawfully admitted for permanent residence is 
limited to cases in which the alien is at risk of losing his or her 
current LPR status, i.e., the alien has been found to be subject to 
removal from the United States. Otherwise, an alien who is currently an 
LPR would have to abandon that status by leaving the United States with 
the intent of abandoning his or her residence in the United States 
before he or she could be considered eligible for NACARA adjustment. 
Like other eligible aliens currently abroad, a former LPR whom the 
Service believes has abandoned his or her status may apply for, and may 
be granted, parole into the United States in order to file a NACARA 
adjustment application. However, since each parole request must be 
considered on its own merits and must be based on either urgent 
humanitarian reasons or significant public benefit, there are no 
guarantees that such a parole request would be approved. The alien 
could end up stranded outside the United States.
    One commenter felt that, because NACARA was modeled after the Cuban 
Adjustment Act of 1966, any Nicaraguan or Cuban who had been in the 
United States for 1 year should be allowed to adjust status. While 
there are certain similarities between the two statutes, there are also 
significant differences, including differences relating to the 
eligibility requirements. Merely being present in the United States for 
a year does not enable someone to apply for adjustment of status under 
NACARA.
    Some commenters wanted the Department to provide an exception for 
those aliens who were deported from the United States more than 180 
days before the NACARA enactment date and who as a result had already 
been absent for more time than allowed under section 202(b)(1) of 
NACARA. This suggested change exceeds the agency's rulemaking authority 
and could only be accomplished through new legislation.

3. Documentation Required for Proving Commencement of Physical Presence

    In the supplementary information relating to the interim 
regulation, the Department specifically requested suggestions from 
interested parties concerning the documentation that may be used to 
establish physical presence in the United States on or prior to 
December 1, 1995. In particular, the Department stated that it was:

soliciting public comments on the need for any additional methods of 
establishing commencement of physical presence in the United States 
and suggestions as to what those additional methods should be, 
including whether the documentary standards listed in 8 CFR 
245.13(e)(3) for demonstrating continuity of physical presence 
should also be applied to the requirement for demonstrating 
commencement of physical presence.

63 FR 27823, 27824 (May 21, 1998).

The rulemaking went on to state that commenters were ``encouraged to 
explain which classes of aliens would benefit from the proposal, and 
how the proposal could be implemented without severely compromising the 
integrity of the adjudicative process.'' Id. 
    The Department received a number of suggestions regarding this 
matter. The suggestions ranged from expanding the list to include any 
type of governmental or nongovernmental document or affidavit that the 
applicant wishes to submit, to condensing the list by limiting it to 
documents issued by an agency of the Federal Government and excluding 
documents issued by State and local authorities. Some commenters wanted 
the Department to accept documents issued by certain private service 
providers, such as physicians, attorneys, nonpublic schools, and the 
clergy. Other commenters wanted the Department to give special 
consideration to persons who, through the nature of their presence in 
the United States, did not create a ``paper trail,'' such as domestic 
servants and elderly ``stay-at-homes.'' One commenter proposed that the 
Department accept any documents that were dated by the government at 
the

[[Page 15849]]

time of issuance or receipt, including labor certification requests 
submitted by employers to the Department of Labor and visa petitions 
submitted to the Service.
    Many commenters did not make suggestions as to how the Service 
could improve its ability to detect and deter fraud. Others took the 
view that the Service already has sufficient capability to detect and 
deter fraud through its interview and investigation procedures, and 
that there is no greater risk of fraud in NACARA applications than in 
other adjustment applications.
    In addition, some commenters wanted the Department to clarify that 
under the existing regulations, the Form I-94, Record of Arrival and 
Departure, issued by the Service at the time of the alien's inspection 
and admission or parole is acceptable evidence of commencement of 
physical presence; others wanted the Department to clarify that the 
proof of commencement may relate to any time at or after entry and any 
time on or before December 1, 1995.
    After carefully reviewing all of the comments in this regard, the 
Department has chosen not to expand the categories to include documents 
that are not based upon governmental records for the following reasons. 
The enumerated categories in the statute itself give strong indication 
that Congress intended that applicants provide the most reliable and 
readily verifiable evidence of the commencement of physical presence in 
the United States on or before December 1, 1995. Evidence in the form 
of contemporaneous governmental records (or copies of such 
contemporaneous records) provides the most reliable and readily 
verifiable means of documenting such physical presence. Nongovernmental 
records are generally more difficult to verify. Affidavits submitted by 
the applicant without independent corroboration raise serious 
reliability issues. Affidavits submitted by allegedly disinterested 
third parties on behalf of the applicant would also be problematic in 
that such affidavits would not provide a contemporaneous accounting of 
the relevant facts and therefore raise additional reliability concerns. 
In light of the foregoing, the Department does not think it prudent to 
extend the categories of documents that can be used to demonstrate 
commencement of physical presence beyond those set forth in the interim 
regulation, with one exception.
    This one exception will allow an applicant who had attended a 
recognized private or religious school as a child (i.e., under 21 years 
of age) to submit a transcript from that school as evidence of 
commencement of presence in the United States on or before December 1, 
1995. This exception is being included in the regulation to ensure 
parity with the provisions of the regulation pertaining to the Haitian 
Refugee Immigration Fairness Act (HRIFA), which is in many ways 
comparable to section 202 of NACARA.
    With this one exception, the Department will not expand the 
categories to include documents that are not based on governmental 
records. In so doing, the Department does not want to leave the 
impression that it is disparaging the recordkeeping processes or the 
integrity of nongovernmental organizations and individuals. Nor is the 
Department under the illusion that all governmental records are 
entirely reliable. Experience has shown, however, that governmental 
records are generally easier to verify than nongovernmental records.
    Although one commenter correctly pointed out that the statutory 
list contains only documents that can be verified through the records 
of the Federal Government, the Department does not feel that it has 
sufficient justification at this time to make the requirement more 
restrictive.
    The Department is, however, adopting the suggestions of those 
commenters who proposed that the list be expanded to include other 
documents for which governmental records exist. Beginning on the 
effective date of this final rule, the Department will accept as 
evidence of commencement of physical presence a certified copy of a 
Federal, State, or local governmental record that was created on or 
prior to December 1, 1995, shows that the applicant was present in the 
United States at the time, and establishes that the applicant sought on 
his or her own behalf, or some other party sought on the applicant's 
behalf, a benefit from the Federal, State, or local governmental agency 
maintaining such record. Additionally, the Department will accept as 
evidence of commencement of physical presence a certified copy of a 
Federal, State, or local governmental record that was created on or 
prior to December 1, 1995, that shows that the applicant was present in 
the United States at the time, and establishes that the applicant 
submitted an income tax return, property tax payment, or similar 
submission or payment to the Federal, State, or local governmental 
agency maintaining such record. These changes will allow applicants to 
use records such as income tax returns, labor certification requests, 
and immigrant visa petitions. If the record involved is maintained by 
the Service, such as an immigrant visa petition, the copy need not be 
certified.

4. Documentation Required for Proving Continuity of Physical Presence

    The interim regulation set forth a lower standard for documents 
evidencing continuity of presence, allowing applicants to submit both 
governmental and nongovernmental documents, so long as the document 
``bears the name of the applicant, was dated at the time it was issued, 
and bears the signature of the authorized representative of the issuing 
authority.'' 8 CFR 245.13(e)(3). The interim regulation also provided a 
general guideline which stated that submission of one document for each 
90-day period since December 1, 1995, would normally be sufficient to 
establish continuity. Id.
    The Department received numerous comments regarding evidence needed 
to establish continuity of presence. One commenter suggested that 
evidence pertaining to a child (such as school records) should also 
apply to other family members. Another suggested that a letter from a 
landlord, utility, or bank detailing the records of that person or 
organization should be acceptable. Still others recommended accepting 
affidavits from employers or requiring no documentation at all.
    In response to these suggestions, the Department has decided to 
expand the list of documents that may be used to establish continuity 
of physical presence to include certified copies of records maintained 
by organizations chartered by the government, such as public utilities, 
accredited private and religious schools, and banks. Additionally, if 
the applicant establishes that a family unit was in existence and 
cohabiting in the United States, documents evidencing presence of one 
member of that family unit may be used by other members of that same 
family unit. Letters and affidavits created after the fact, regardless 
of the source, will not be acceptable.
    A number of commenters pointed out that many documents do not 
normally bear the signature or seal of the originator, including many 
documents that are listed in the interim regulation as acceptable, such 
as utility bills and other receipts, employment records, and credit 
card statements. The Department is modifying the regulation to state 
that if the document is normally signed, sealed, issued on letterhead 
stationary, or otherwise authenticated, it must bear such indication of 
authenticity.
    One commenter pointed out that the reference in the interim 
regulation to ``pay checks'' should read ``pay stubs''

[[Page 15850]]

since the applicant would cash, not retain, the former, but might 
retain the latter. This correction is being made.
    Some commenters suggested that the Department be flexible with 
regard to persons who have not created a ``paper trail'' such as 
domestics and the elderly. Others suggested that adjudicators be given 
a wide range of latitude with regard to continuity documents in 
general, urging the Department to be flexible with regard to the 90-day 
guideline.
    Adjudicators already have a fair amount of latitude with regard to 
issues involving continuity of presence. The 90-day guideline was never 
intended to be a hard-and-fast rule, but rather more of a suggestion 
designed to guide applicants in judging the amount of documentation to 
submit. An adjudicator who is otherwise satisfied could always accept 
less frequent documentation as evidence of continuity of physical 
presence. Likewise, an adjudicator who has doubts about the alien's 
claim of continuity could request additional, and more frequent, 
documentation.
    However, the Department has determined that the guideline, which 
had been intended to ease the burden on applicants by assisting them in 
gauging how much documentation to submit, might instead become a 
hindrance and may result in some applicants believing that without a 
certain minimum amount of documentation they are ineligible to apply 
for or receive the benefit of adjustment of status under NACARA. 
Accordingly, the Department is removing the guideline from the 
regulation, and applicants should simply submit sufficient 
documentation to satisfy the adjudicating officer or immigration judge 
that they have maintained continuous presence in the United States 
within the meaning of NACARA.
    As with evidence of commencement, some commenters believed that the 
fraud risk relating to continuity of presence was no greater than in 
other applications, and that the Service's existing resources were 
sufficient to detect and deter fraud. Others felt that the potential 
for fraud in adjustment of status under NACARA is quite high, and that 
the regulation should be carefully drafted in order to combat such 
fraud. The Department takes a very serious view of the potential for 
fraud involved in applications for adjustment of status under section 
202 of NACARA, and finds that regardless of whether or not the fraud 
potential is greater than that pertaining to other applications, there 
is certainly no reason to decrease the minimal level of fraud 
deterrence embodied in the interim regulation.
    Finally, the regulation is being modified to clarify one point 
regarding continuity of presence that some persons may have 
misinterpreted. The statute allows an applicant to be absent from the 
United States for up to 180 days after establishing physical presence 
on or prior to December 1, 1995. Some persons have erroneously 
interpreted this to mean that absences between the last (pre-December 
2, 1995) date on which the applicant commenced physical presence and 
December 1, 1995, do not count toward the 180-day maximum. The correct 
interpretation is that all absences between the last pre-December 2, 
1995, date on which the applicant commenced physical presence and the 
date on which the application is approved count toward the 180-day 
maximum, with the exception of those periods for which time is tolled 
pursuant to Sec. 245.13(o).

5. Local Police Clearance Requirements

    Several commenters were concerned about the requirement that 
applicants for adjustment under NACARA submit local police clearances, 
finding it burdensome at best, and impossible to meet at worst. Some 
wanted the provision modified to allow for statewide (instead of local) 
clearances, others wanted it waived for minors or where the applicant's 
local police department refuses to issue a clearance; still others 
wanted it dropped entirely.
    Although there is considerable value in obtaining local police 
clearances in addition to the nationwide fingerprint clearance, for 
certain individuals obtaining such local clearances may be extremely 
difficult or impossible through no fault of the individual. 
Accordingly, the final regulation is being modified to allow the 
director or immigration judge having jurisdiction over the application 
to waive the local police clearance. This waiver will be available upon 
presentation of a letter or similar documentation from the local police 
agencies involved showing that the applicant attempted to obtain such 
clearance but was unable to do so because of local or State policy.
    Additionally, for persons who live, or have lived, in locations 
where the local authorities have made a blanket decision not to issue 
such clearances for immigration purposes, the regulation is being 
modified to provide a general exemption from the local police clearance 
requirement insofar as it relates to time periods when the applicant 
resided in that locale. One example of such location is New York City.
    The regulation is being further clarified to explain that where 
multiple local law enforcement agencies have jurisdiction over an 
alien's residence (e.g., city police and county sheriff), the applicant 
may obtain a clearance from either agency, and that for those 
individuals living in states where the state police maintain a 
compilation of all local arrests and convictions, a statewide clearance 
is sufficient.

6. Determining Nationality

    One commenter suggested that all applicants be required to 
establish nationality through a birth certificate that has been 
certified by the issuing governmental authority in accordance with 8 
CFR 287.6(b).
    All applicants are required to meet the proof of official records 
requirements set forth in 8 CFR 287.6 which, with regard to all 
documents submitted in support of this and other applications, requires 
either an official publication of the record, or a copy attested to by 
an authorized official. However, it should be noted that the Service 
regulation at 8 CFR 103.2(b) permits submission of secondary evidence 
and photocopies of documents under certain circumstances.

7. Fee for Fingerprinting Services

    One commenter requested that the regulation clarify whether the 
applicant must pay an additional $25 fee for fingerprinting, in 
addition to the regular fee for filing an application for adjustment of 
status. Each applicant who is 14 years of age or older must be 
fingerprinted and must pay the fingerprinting fee at the time of filing 
the application for adjustment. The regulation has been clarified in 
this regard.

8. Employment Authorization

    The Department received a number of comments on the employment 
authorization issuance process. As set forth in the interim regulation, 
the current process involves the Service's issuing employment 
authorization on an expedited basis to those applicants whose 
application is supported by evidence that may be verified through 
existing Service records. Other applicants must wait up to 180 days 
(the maximum timeframe allowed under the statute) while the Service 
adjudicates the application for adjustment of status. A number of 
commenters, citing the potential hardship to applicants, wanted the 
Service to issue employment authorization to all applicants immediately 
upon filing; one, citing the

[[Page 15851]]

need to deter fraud, wanted the Service to wait the full 180 days in 
all cases; and one supported the process as set forth in the interim 
regulation. Upon examination of all the comments, the Department has 
concluded that the process set forth in the interim regulation provides 
the best balance between deterring fraud by mala fide applicants and 
alleviating financial hardship for bona fide applicants. Accordingly, 
no changes are being made with regard to the work authorization issue.
    Some commenters pointed out the apparent conflict between the 
statement in the interim rule's supplementary information that the 
Department ``will authorize employment for applicants whose cases have 
been pending for fewer than 180 days only if the applicant applies for 
work authorization and adjustment at the same time,'' and the lack of 
such concurrent filing requirement in Sec. 245.13(j)(2). The Department 
has decided not to require that an applicant file concurrently in order 
to benefit from the more expedited of the two procedures. Accordingly, 
the language in the interim regulation will not be changed.

9. Travel and Parole Issues

    Several commenters expressed concern about the provisions in the 
interim regulation that allow the Director of the Texas Service Center 
(TSC) to authorize parole for aliens outside the United States. One 
questioned the authority of the Attorney General (acting through the 
Director of the TSC) to authorize parole under these circumstances; a 
second did not want the Director of the TSC to authorize any paroles 
for persons to come to the United States; a third wanted the regulation 
to eliminate, or at least to restrict greatly the Director of the TSC's 
ability to authorize parole; and a fourth sought assurance that the 
Service would use a ``tighter screening mechanism'' to prevent abuse.
    An explanation of the parole process, and how it relates to the 
NACARA adjustment program, may help to clarify the Service's approach. 
The authority to authorize parole into the United States is contained 
in section 212(d)(5) of the Act, which states:

    (5)(A) The Attorney General may, except as provided in 
subparagraph (B) or in section 214(f), in his discretion parole into 
the United States temporarily under such conditions as he may 
prescribe only on a case-by-case basis for urgent humanitarian 
reasons or significant public benefit any alien applying for 
admission to the United States, but such parole of such alien shall 
not be regarded as an admission of the alien and when the purposes 
of such parole shall, in the opinion of the Attorney General, have 
been served the alien shall forthwith return or be returned to the 
custody from which he was paroled and thereafter his case shall 
continue to be dealt with in the same manner as that of any other 
applicant for admission to the United States.
    (B) The Attorney General may not parole into the United States 
an alien who is a refugee unless the Attorney General determines 
that compelling reasons in the public interest with respect to that 
particular alien require that the alien be paroled into the United 
States rather than be admitted as a refugee under section 207.

    The Attorney General has delegated her authority to authorize 
parole to the Commissioner of the Immigration and Naturalization 
Service. In the case of an alien who is seeking parole from outside the 
United States, that authority is normally redelegated to the Director 
of the INS Office of International Affairs and to the overseas district 
director having jurisdiction over the area in which the alien is 
located. The effect of the May 21, 1998, regulation was to expand the 
list of persons to whom this authority has been re-delegated to include 
the Director of the TSC for NACARA-related parole requests only. There 
have been no changes in the process for requesting, the standards for 
adjudicating, or the statutory authority for issuing parole. Parole 
determinations will still be made on a case-by-case basis, and the 
applicant for parole will still have to establish that urgent 
humanitarian reasons or significant public benefits exist. If the 
evidence shows that the positive factors (such as the desirability of 
reuniting a family or allowing an otherwise-eligible alien to 
participate in this special adjustment of status program which Congress 
has established) are outweighed by negative discretionary factors, the 
parole request will be denied as a matter of discretion. Minor changes 
have been made in the regulation at Sec. 245.13(k) to clarify this 
point.
    One commenter did not want the Department to issue parole 
authorization to any alien who returned to his or her home country 
during any portion of the 180 days of absence from the United States 
permitted by section 202(b)(1) of NACARA. Although the suggestion might 
be appropriate if NACARA were to require the applicant to establish, 
for example, that he or she would risk persecution or extreme hardship 
if he or she went home, there is no such requirement, and the 
commenter's suggestion will not be adopted.
    One commenter felt that if the Service revoked the alien's parole, 
the regulation should either require the district director to make a 
bond redetermination or authorize the immigration judge to set bond. As 
indicated in the passage cited above, when parole is terminated the 
alien is returned to the custody of the Service and is treated as any 
other applicant for admission. Under existing statutory and regulatory 
provisions, the district director then has the option of placing the 
alien into removal proceedings, admitting the alien (if he or she is 
admissible), or reparoling the alien. If the decision is to admit or 
reparole the alien, the district director may require that certain 
conditions be met, including the posting of an appropriate bond. See 8 
CFR Secs. 212.5(c)(1), 214.1(a)(3).

10. Jurisdictional Issues Between the Service and the Executive Office 
for Immigration Review (EOIR)

    One commenter suggested that the regulation be modified to allow an 
alien whose application for adjustment is denied by the Service to 
renew his or her application in proceedings before the Immigration 
Court regardless of whether the proceedings occur before or after the 
March 31, 2000, expiration date of the NACARA program. Although section 
202(a)(1)(A) of NACARA provides that applications for adjustment must 
be filed by March 31, 2000, section 202(e) of NACARA also provides that 
applicants for adjustment of status shall have the same right to, and 
procedures for, administrative review as are provided to other 
applicants for adjustment under section 245 of the Act, or aliens 
subject to removal proceedings under section 240 of the Act. The 
Department interprets the deadline in section 202(a)(1)(A) of NACARA as 
relating only to the initial application for adjustment and not to any 
renewed application in removal proceedings following a denial of the 
initial application by the Service, provided that initial application 
was properly filed. The regulation is being modified accordingly.
    Another commenter contended that all initial applications must be 
filed before the Service, and that EOIR only has appellate 
jurisdiction. The Department does not agree. The authority to 
adjudicate applications for adjustment of status under section 202 of 
NACARA rests with the Attorney General. It is well within her authority 
to assign initial jurisdiction over the applications to the Service 
(for those aliens who are not in removal proceedings) and to the 
Immigration Court (for those aliens who are in such proceedings), and 
to provide that the Board of Immigration Appeals has

[[Page 15852]]

appellate jurisdiction over cases decided by immigration judges. This 
arrangement is in keeping with the provisions of section 202(e) of 
NACARA.
    One commenter suggested that aliens in proceedings before the 
Immigration Court be afforded the option of applying for adjustment 
before either the Service or the Immigration Court. Section 
245.13(d)(3) already provides an alien in proceedings with a mechanism 
by which he or she may request administrative closure of such 
proceedings for the purpose of seeking adjustment of status under 
section 202 of NACARA before the Service.
    One commenter suggested that aliens whose requests for 
administrative closure are granted be required to apply for adjustment 
before the Service within a fixed number of days of the granting of 
administrative closure. The Department considered this approach when 
drafting the interim regulation, but concluded that the difficulties 
inherent in administering it would far exceed any benefits.
    Finally, one commenter suggested that for those cases which are 
referred to an immigration judge on a Form I-290C, Notice of 
Certification, for a ``NACARA-only hearing'' because the applicant had 
already been subject to an order of exclusion, deportation, or removal 
at the time the application was filed, the ``NACARA-only hearing'' 
should be conducted under the same rules of procedure as the proceeding 
in which the alien received the order of exclusion, deportation, or 
removal. Under this suggestion, an alien who was placed in exclusion or 
deportation proceedings prior to the enactment of IIRIRA would not be 
subject to the post-IIRIRA Immigration Court procedures. The Department 
does not agree with this suggestion, since the ``NACARA-only hearing'' 
is a new proceeding, not a reopening of the old exclusion or 
deportation proceeding.

11. Compliance With the Unfunded Mandates Reform Act of 1995

    One commenter suggested that the interim rule implicated the 
Unfunded Mandates Reform Act of 1995. The interim rule merely 
implements a statutory provision providing permanent residency for 
certain qualified aliens. Neither the statute nor the interim rule 
mandates a State or local jurisdiction to provide any services not 
already provided to aliens who adjust their status to that of lawful 
permanent resident under other provisions of immigration law. The 
Department has no reason to believe that the implementation of section 
202 of NACARA will result in any expenditures by State or local 
governments that are in contravention of the Unfunded Mandates Act.

12. Waiver of Interviews

    The Department received a wide range of comments regarding waiver 
of interviews. One commenter stated that all applicants should be 
interviewed; a second wanted fewer restrictions on the types of 
interviews the Director of the TSC can waive; and a third wanted the 
Service to waive interviews for all children under age 14. It is 
important to remember that the Service does not waive interviews in 
order to avoid work for itself or inconvenience to the applicant, but 
rather because doing so enables it to concentrate its limited resources 
on those cases most warranting interview. The Department believes this 
can be best accomplished by giving the Director of the TSC the 
authority to waive interviews only in those cases that, first, are 
supported by evidence of commencement of physical presence that can be 
verified through Service records; second, have no unresolved questions 
about the applicant's eligibility; and third, do not require a waiver 
of inadmissibility. Accordingly, no changes will be made in the 
regulation in this regard.

13. Stay of Removal

    A number of commenters felt that the Service should either grant 
stays of removal to all applicants for adjustment of status under 
section 202 of NACARA (i.e., without fee or application), or require 
the application but waive the fee. Most of those who expressed the 
former view cited subsections 202(c)(1) and (2) of NACARA in support of 
their view. However, those subsections read:

    (1) IN GENERAL--The Attorney General shall provide by regulation 
for an alien subject to a final order of deportation or removal to 
seek a stay of such order based on the filing of an application 
under subsection (a).
    (2) DURING CERTAIN PROCEEDINGS--Notwithstanding any provision of 
the Immigration and Nationality Act, the Attorney General shall not 
order any alien to be removed from the United States, if the alien 
is in exclusion, deportation, or removal proceedings under any 
provision of such Act and has applied for adjustment of status under 
subsection (a), except where the Attorney General has rendered a 
final administrative determination to deny the application. 
[Emphasis Added]

    Taken together, these two subsections clearly indicate that 
Congress intended that, with regard to any alien who is the beneficiary 
of a properly-filed application for adjustment of status under section 
202 of NACARA and who is in exclusion, deportation, or removal 
proceedings before an immigration judge, or whose case is on appeal to 
the Board of Immigration Appeals (the Board), neither the immigration 
judge nor the Board may issue an order of exclusion, deportation, or 
removal unless and until the application for adjustment is denied. The 
alien does not need to file any request, motion, or other form beyond 
the application for adjustment itself in order to benefit from this 
automatic protection.
    There is no such automatic protection with regard to an alien who 
became the subject of a final order of exclusion, deportation, or 
removal prior to his or her filing the application for adjustment under 
section 202 of NACARA. If the alien wishes to receive protection from 
the enforcement of an existing order of exclusion, deportation, or 
removal, he or she must ``seek a stay of such order.'' The process for 
seeking a stay of removal is to file Form I-246, Application for Stay 
of Removal, and pay the required fee, through the local Service office. 
It must be noted that the filing of Form I-246 is not a prerequisite to 
applying for, or being granted, benefits under section 202 of NACARA; 
the decision to seek a stay of removal is strictly up to the alien. 
Accordingly, no change will be made to the regulation regarding the 
process for seeking a stay of removal. However, the Department does see 
a need for guidelines on the adjudication of such request for stay of 
removal. Accordingly, the regulation is being modified to reflect that, 
absent significant negative discretionary factors, if an alien files 
Form I-246, pays the fee, and submits evidence of the filing of an 
application for adjustment of status under section 202 of NACARA, 
execution of the order of exclusion, deportation, or removal shall be 
stayed until a decision is reached on the application for adjustment of 
status.

14. Typographical Errors, Technical Corrections and Stylistic Changes

    One commenter pointed out that the regulation, as published in the 
Federal Register on May 21, 1998, contained a typographical error in 8 
CFR 245.13(e)(2) wherein ``1997'' was typed instead of ``1995''. The 
May 21, 1998, version also contained the typographic error ``Untied'' 
instead of ``United'' in Sec. 245.13(e)(12). These errors are being 
corrected. It should also be noted that on June 29, 1998, and again on 
July 21, 1998, the Federal Register published notices correcting two 
other typographical errors in the May 21 version. The first notice 
corrected the first sentence of the segment of the supplementary 
information entitled

[[Page 15853]]

``What Happens if an Application is Denied by the Immigration Court?'' 
to read: ``If the Immigration Court denies the NACARA adjustment 
application of an alien in exclusion, deportation, or removal 
proceedings before the Immigration Court, the decision may be appealed 
to the Board along with and under the same procedures as all other 
issues before the Immigration Court in those proceedings.'' The second 
notice corrected the reference in Sec. 240.41 to read ``Public Law 105-
100'' instead of ``Pub L. 100''; it also corrected the amendatory 
language for the appropriate phrase in Sec. 274a.13(d) to read 
``Sec. 274a.12(c)(8), which is governed by paragraph (a)(2) of this 
section, and Sec. 274a.12(c)(9) insofar as it is governed by 
Sec. 245.13(j) of this chapter.''
    A second commenter requested that the Department incorporate into 
the regulation a number of issues that were discussed in the 
supplementary information. In particular, the commenter wanted the 
Department to include in the regulation provisions specifying the 
procedure and language used by the Service to notify an alien whose 
application has been approved of the delivery of the Permanent 
Residence Card and the process for obtaining temporary evidence of 
alien registration. The commenter also wanted the Department to include 
in the regulation provisions specifying the procedure and language used 
by the Service to notify an alien whose application has been denied of 
the Service's decision and the right to renew the application for 
adjustment in proceedings before an immigration judge. Finally, the 
commenter requested that the regulation contain more specificity 
regarding the process by which the Board may remand a case to the 
immigration judge. Several of these suggestions have been adopted, 
especially where needed for purposes of clarity. Other suggestions 
pertained to matters that are standard to the adjudication process and 
are either already covered elsewhere in the regulation or are so basic 
as to not warrant special coverage in this particular section of the 
regulation.
    Additionally, the Department has noted that in the interim 
regulation published on May 21, 1998, it failed to provide a mechanism 
whereby persons outside the United States who are seeking parole 
authorization pursuant to Sec. 245.13(k)(2) and who must file either an 
Application for Permission to Reapply for Admission to the United 
States After Deportation or Removal (Form I-212) or an Application for 
Waiver of Grounds of Excludability (Form I-601) could file such 
applications concurrently with the request for parole authorization. 
This oversight has been corrected by making slight modifications to 
Secs. 212.2 and 212.7. These modifications will allow such applicants 
to file Forms I-212 and I-601 with the Director of the TSC concurrently 
with the Form I-131.
    Finally, it has come to the Department's attention that the 
application of current regulations (8 CFR Sec. 103.2(a)(7)) and 
practice to NACARA applications filed with fee waiver requests may 
inadvertently result in certain applicants later being deemed to have 
missed the application deadline due to no fault on the part of the 
applicant. Currently an application submitted with a fee waiver request 
is not considered properly filed and does not retain a receipt date 
until the fee waiver is granted. In cases where a fee waiver is denied, 
the application is returned to the applicant with instructions to 
resubmit the application with the appropriate fee at which time the 
application will be considered properly filed and will be assigned a 
receipt date. Thus, under current regulations and practice were the 
Service or Immigration Court to deny a request for a waiver of the 
NACARA application fee after March 31, 2000, and return the 
application, the alien could not file another application with the fee 
because the filing deadline would have already passed. Given the 
statutorily mandated filing deadline of March 31, 2000, the Department 
believes that it would be appropriate to modify the regulations with 
respect to this group of cases to avoid a potentially harsh and 
irreversible result. Accordingly, the regulations are being amended to 
afford an applicant whose NACARA fee waiver request is denied the 
opportunity to submit the required fee within 30 days of notice that 
the fee waiver request was denied and thereby maintain a timely filing 
date.
    In addition, in a case over which the Board has jurisdiction, an 
application received by the Board before April 1, 2000, that has been 
properly signed and executed is considered to be filed before the 
statutory deadline without payment of the fee or submission of a fee 
waiver request. Upon remand by the Board, the payment of the fee or a 
request for a fee waiver is made upon submission of the application to 
the Immigration Court in accordance with 8 CFR 240.11(f). The 
regulations are being amended to afford an applicant whose NACARA 
adjustment fee waiver request is denied the opportunity to submit the 
required fee within 30 days of the notice that the fee waiver request 
was denied. If the required fee is not paid within 30 days, the 
applicant will no longer be considered to have filed a timely NACARA 
adjustment application.

Good Cause Exception

    The Department's implementation of this final rule effective upon 
publication in the Federal Register is based upon the ``good cause'' 
exception found at 5 U.S.C. 553(d)(3). By statute, all NACARA 
adjustment applicants must file their applications before April 1, 
2000. Immediate implementation of this final rule is necessary to 
ensure that NACARA applicants are able to avail themselves of the 
modifications made in this final rule as soon as possible before the 
end of the application period. Accordingly, delaying the effective date 
of this final rule for 30 days would be contrary to the public 
interest.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule allows certain 
Nicaraguan and Cuban nationals 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 considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Executive Order 13132

    This 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 section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 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

[[Page 15854]]

on the ability of United States-based companies to compete with 
foreign-based companies in domestic and export markets.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 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.

Paperwork Reduction Act

    The information collection requirement contained in this rule (Form 
I-485 Supplement B) has been revised. Accordingly, it has been 
submitted and approved by the Office of Management and Budget (OMB) in 
accordance with the Paperwork Reduction Act. The changes to the form 
are effective with the issuance of this rule.

Plain Language in Government Writing

    The President's June 1, 1998, Memorandum published at 63 FR 31885, 
concerning Plain Language in Government Writing, applies to this 
proposed rule.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies)

8 CFR Part 212

    Administrative practice and procedure, Aliens, Passports and visas, 
Immigration, Reporting and recordkeeping requirements.

8 CFR Part 240

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 8 CFR Parts 3, 240, 245, 
274a, and 299, which was published at 63 FR 27823 on May 21, 1998, is 
adopted as a final rule with the following changes, and part 212 is 
amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; 8 CFR part 2.

    2. Section 212.2(g)(3) is amended by:
    a. Removing the reference to ``Sec. 245.15(l)'' and adding in its 
place ``Sec. 245.15(t)(2)'', and by
    b. Adding a new sentence at the end of the paragraph to read as 
follows:


Sec. 212.2  Consent to reapply for admission after deportation, 
removal, or departure at Government expense.

* * * * *
    (g) * * *
    (3) * * * If an alien who is an applicant for parole authorization 
under Sec. 245.13(k)(2) of this chapter requires consent to reapply for 
admission after deportation, removal, or departure at Government 
expense, or a waiver under section 212(g), 212(h), or 212(i) of the 
Act, he or she may file the requisite Form I-212 or Form I-601 at the 
Texas Service Center concurrently with the Form I-131, Application for 
Travel Document.
* * * * *

    3. Section 212.7 is amended by:
    a. Adding a new paragraph (a)(1)(iv);
    b. Removing the word ``or'' at the end of paragraph (b)(2)(iii);
    c. Removing the period at the end of paragraph (b)(2)(iv) and 
adding in its place a ``; or''; and by
    d. Adding a new paragraph (b)(2)(v), to read as follows:


Sec. 212.7  Waiver of certain grounds of excludability.

    (a) * * *
    (1) * * *
    (iv) Parole authorization applicant under Sec. 245.13(k)(2) of this 
chapter. An applicant for parole authorization under Sec. 245.13(k)(2) 
of this chapter who is inadmissible and seeks a waiver under section 
212(h) or (i) of the Act must file an application on Form I-601 with 
the Director of the Texas Service Center adjudicating the Form I-131.
* * * * *
    (b) * * *
    (2) * * *
    (v) The Texas Service Center if the alien is outside the United 
States and is seeking parole authorization under Sec. 245.13(k)(2) of 
this chapter.
* * * * *

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; sec. 202, Pub. L. 
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; 8 CFR part 2.

    5. Section 245.13 is amended by:
    a. Revising paragraph (d)(2);
    b. Adding a sentence at the end of paragraph (d)(5)(i);
    c. Revising paragraph (e);
    d. Adding five new sentences immediately before the last sentence 
in paragraph (g);
    e. Revising the last sentence in paragraph (j)(1);
    f. Revising the last sentence in paragraph (k)(1);
    g. Adding a sentence at the end of paragraph (k)(2);

    h. Adding a new sentence immediately after the first sentence in 
paragraph (l);
    i. Revising the first sentence in the introductory text in 
paragraph (m); and by
    j. Revising paragraphs (m)(1) and (m)(2), to read as follows:


Sec. 245.13  Adjustment of status of certain nationals of Nicaragua and 
Cuba under Public Law 105-100.

* * * * *
    (d) * * *
    (2) Proceedings pending before the Board of Immigration Appeals. 
Except as provided in paragraph (d)(3) of this section, in cases where 
a motion to reopen or motion to reconsider filed with the Board on or 
before May 21, 1998, or an appeal, is pending, the Board shall remand, 
or reopen and remand, the proceedings to the Immigration Court for the 
sole purpose of adjudicating an application for adjustment of status 
under section 202 of Public Law 105-100, unless the alien is clearly 
ineligible for adjustment of status under section 202 of Public Law 
105-100. If the immigration judge denies, or the alien fails to file, 
the application for adjustment of status under section 202 of Public 
Law 105-100, the immigration judge shall certify the decision to the 
Board for consideration in conjunction with the previously pending 
appeal or motion.
* * * * *

[[Page 15855]]

    (5) * * *
    (i) With the Service. * * * Absent evidence of the applicant's 
statutory ineligibility for adjustment of status under section 202 of 
Public Law 105-100 or significant negative discretionary factors, a 
Form I-246 filed by a bona fide applicant for adjustment under section 
202 of Public Law 105-100 shall be approved, and the removal of the 
applicant shall be stayed until such time as the application for 
adjustment has been adjudicated in accordance with this section.
* * * * *
    (e) Application and supporting documents. Each applicant for 
adjustment of status must file a Form I-485, Application to Register 
Permanent Residence or Adjust Status. An applicant should complete Part 
2 of Form I-485 by checking box ``h--other'' and writing ``NACARA--
Principal'' or ``NACARA--Dependent'' next to that block. Each 
application must be accompanied by:
    (1) The fee prescribed in Sec. 103.7(b)(1) of this chapter;
    (2) If the applicant is 14 years of age or older, the fee for 
fingerprinting prescribed in Sec. 103.7(b)(1) of this chapter;
    (3) Evidence of commencement of physical presence in the United 
States at any time on or before December 1, 1995. Such evidence may 
relate to any time at or after entry and may consist of either:
    (i) Documentation evidencing one or more of the activities 
specified in section 202(b)(2)(A) of Public Law 105-100;
    (ii) A copy of the Form I-94, Record of Arrival and Departure, 
issued to the applicant at the time of his or her inspection and 
admission or parole;
    (iii) Other documentation issued by a Federal, State, or local 
authority provided such other documentation bears the signature, seal, 
or other authenticating instrument of such authority (if the document 
normally bears such instrument), was dated at the time of issuance, and 
bears a date of issuance not later than December 1, 1995. Examples of 
such other documentation include, but are not limited to:
    (A) A State driver's license;
    (B) A State identification card issued in lieu of a driver's 
license to a nondriver;
    (C) A county or municipal hospital record;
    (D) A public college or public school transcript; and
    (E) Income tax records;
    (iv) A copy of a petition on behalf of the applicant that was 
submitted to the Service on or before December 1, 1995, and that lists 
the applicant as being physically present in the United States;
    (v) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to December 1, 1995, shows that the 
applicant was present in the United States at the time, and establishes 
that the applicant sought on his or her own behalf, or some other party 
sought on the applicant's behalf, a benefit from the Federal, State, or 
local governmental agency keeping such record;
    (vi) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to December 1, 1995, shows that the 
applicant was present in the United States at the time, and establishes 
that the applicant submitted an income tax return, property tax 
payment, or similar submission or payment to the Federal, State, or 
local governmental agency keeping such record; or
    (vii) In the case of an applicant who, while under the age of 21, 
attended a private or religious school in the United States on or prior 
to December 1, 1995, a transcript from such private or religious 
school, provided that the school:
    (A) Is registered with, approved by, or licensed by, appropriate 
State or local authorities;
    (B) Is accredited by the State or regional accrediting body, or by 
the appropriate private school association; or
    (C) Maintains enrollment records in accordance with State or local 
requirements or standards;
    (4) Evidence of continuity of physical presence in the United 
States since the last date on or prior to December 1, 1995, on which 
the applicant established commencement of physical presence in the 
United States. Such documentation may have been issued by any 
governmental or nongovernmental authority, provided such evidence bears 
the name of the applicant, was dated at the time it was issued, and 
bears the signature, seal, or other authenticating instrument of the 
issuing authority or its authorized representative, if the document 
would normally contain such authenticating instrument. Such 
documentation may include, but is not limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a dated bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, 
payment, or other transaction;
    (viii) Certified copies of records maintained by organizations 
chartered by the government, such as public utilities, accredited 
private and parochial schools, and banks;
    (ix) If the applicant establishes that a family unit was in 
existence and cohabiting in the United States, documents evidencing the 
physical presence in the United States of another member of that same 
family unit; and
    (x) If the applicant has had correspondence or other interaction 
with the Service, a list of the types and dates of such correspondence 
or other contact that the applicant knows to be contained or reflected 
in Service records;
    (5) A copy of the applicant's birth certificate;
    (6) If the applicant is between 14 and 79 years of age, a completed 
Biographic Information Sheet (Form G-325A);
    (7) A report of medical examination, as specified in Sec. 245.5;
    (8) Two photographs, as described in the instructions to Form I-
485;
    (9) If the applicant is 14 years of age or older, a police 
clearance from each municipality where the alien has resided for 6 
months or longer since arriving in the United States. If there are 
multiple local law enforcement agencies (e.g., city police and county 
sheriff) with jurisdiction over the alien's residence, the applicant 
may obtain a clearance from either agency. If the applicant resides or 
resided in a State where the State Police maintain a compilation of all 
local arrests and convictions, a statewide clearance is sufficient. If 
the applicant presents a letter from the local police agencies 
involved, or other evidence, to the effect that the applicant attempted 
to obtain such clearance but was unable to do so because of local or 
State policy, the director or immigration judge having jurisdiction 
over the application may waive the local police clearance. Furthermore, 
if such local police agency has provided the Service or the Immigration 
Court with a blanket statement that issuance of such police clearance 
is against local or state policy, the director or immigration judge 
having jurisdiction over the case may waive the local police clearance 
requirement regardless of whether the applicant individually submits a 
letter from that local police agency;
    (10) If the applicant is applying as the spouse of another Public 
Law 105-100 beneficiary, a copy of their certificate of marriage and 
copies of documents showing the legal termination of all

[[Page 15856]]

other marriages by the applicant or the other beneficiary;
    (11) If the applicant is applying as the child, unmarried son, or 
unmarried daughter of another (principal) beneficiary under section 202 
of Public Law 105-100 who is not the applicant's biological mother, 
copies of evidence (such as the applicant's parent's marriage 
certificate and documents showing the legal termination of all other 
marriages, an adoption decree, or other relevant evidence) to 
demonstrate the relationship between the applicant and the other 
beneficiary;
    (12) A copy of the Form I-94, Arrival-Departure Record, issued at 
the time of the applicant's arrival in the United States, if the alien 
was inspected and admitted or paroled; and
    (13) If the applicant has departed from and returned to the United 
States since December 1, 1995, an attachment on a plain piece of paper 
showing:
    (i) The date of the applicant's last arrival in the United States 
before or on December 1, 1995;
    (ii) The date of each departure from the United States since that 
arrival;
    (iii) The reason for each departure; and
    (iv) The date, manner, and place of each return to the United 
States.
* * * * *
    (g) Filing. * * * All applications must be accompanied by either 
the correct fee as specified in Sec. 103.7(b)(1) of this chapter; or a 
request for a fee waiver in accordance with Sec. 103.7(c) of this 
chapter. An application received by the Service or Immigration Court 
before April 1, 2000, that has been properly signed and executed and 
for which a waiver of the filing fee has been requested shall be 
regarded as having been filed before the statutory deadline regardless 
of whether the fee waiver request is denied provided that the applicant 
submits the required fee within 30 days of the date of any notice that 
the fee waiver request has been denied. In a case over which the Board 
has jurisdiction, an application received by the Board before April 1, 
2000, that has been properly signed and executed shall be considered 
filed before the statutory deadline without payment of the fee or 
submission of a fee waiver request. Upon demand by the Board, the 
payment of the fee or a request for a fee waiver shall be made upon 
submission of the application to the Immigration Court in accordance 
with 8 CFR 240.11(f). If a request for a fee waiver is denied, the 
applicaion shall be considered as having been properly filed with the 
Immigration Court before the statutory deadline provided that the 
applicant submits the required fee within 30 days of the date of any 
notice that the fee waiver request has been denied. * * *
    (j)  * * *
    (1) Application. * * * The applicant may submit Form I-765 
concurrently with, or subsequent to, the filing of the Form I-485.
* * * * *
    (k) * * *
    (1) Travel from and return to the United States while the 
application for adjustment of status is pending. * * * Unless the 
applicant files an advance parole request prior to departing from the 
United States, and the Service approves such request, his or her 
application for adjustment of status under section 202 of Public Law 
105-100 is deemed to be abandoned as of the moment of his or her 
departure. Parole may only be authorized pursuant to the authority 
contained in, and the standards prescribed in, section 212(d)(5) of the 
Act.
    (2) Parole authorization for the purpose of filing an application 
for adjustment of status under section 202 of Public Law 105-100. * * * 
Parole may only be authorized pursuant to the authority contained in, 
and the standards prescribed in, section 212(d)(5) of the Act.
* * * * *
    (l) Approval. * * * The director shall also advise the alien 
regarding the delivery of his or her Permanent Resident Card and of the 
process for obtaining temporary evidence of alien registration. * * *
    (m) Denial and review of decision. If the director denies the 
application for adjustment of status under the provisions of section 
202 of Public Law 105-100, the director shall notify the applicant of 
the decision, and of any right to renew the application in proceedings 
before the immigration judge. * * *
    (1) In the case of an alien who is not maintaining valid 
nonimmigrant status and who had not previously been placed in 
exclusion, deportation, or removal proceedings, initiate removal 
proceedings in accordance with Sec. 239.1 of this chapter, during which 
the alien may renew his or her application for adjustment of status 
under section 202 of Public Law 105-100. Such renewed application may 
be filed with the Immigration Court before, on, or after March 31, 
2000, provided the initial application was properly filed with the 
Service on or before March 31, 2000; or
    (2) In the case of an alien whose previously initiated exclusion, 
deportation, or removal proceeding had been administratively closed or 
continued indefinitely under paragraph (d)(3) of this section, advise 
the Immigration Court that had administratively closed the proceeding, 
or the Board, as appropriate, of the denial of the application. The 
Immigration Court or the Board will then recalendar or reinstate the 
prior exclusion, deportation, or removal proceeding, during which 
proceeding the alien may renew his or her application for adjustment 
under section 202 of Public Law 105-100. Such renewed application may 
be filed with the Immigration Court before, on, or after March 31, 
2000, provided the initial application was properly filed with the 
Service on or before March 31, 2000; or
* * * * *

PART 299--IMMIGRATION FORMS

    6. The authority citation for part 299 continues to read as 
follows:

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

    7. Section 299.1 is amended in the table by revising the entry for 
Form ``I-485 Supplement B'' to read as follows:


Sec. 299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
            Form No.              Edition date            Title
------------------------------------------------------------------------
 
*                  *                  *                  *
                                     *
I-485 Supplement B.............        12-01-99  NACARA Supplement to
                                                  Form I-485
                                                  Instructions.
 
*                  *                  *                  *
                                     *
------------------------------------------------------------------------



[[Page 15857]]

    Dated: March 15, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-7205 Filed 3-21-00; 3:47 pm]
BILLING CODE 4410-10-P