[Federal Register Volume 65, Number 136 (Friday, July 14, 2000)]
[Rules and Regulations]
[Pages 43677-43680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17814]



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 Rules and Regulations
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  Federal Register / Vol. 65, No. 136 / Friday, July 14, 2000 / Rules 
and Regulations  

[[Page 43677]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 236, 274a and 299

[INS No. 1823-96]
RIN 1115-AE72


Implementation of Hernandez v. Reno Settlement Agreement; Certain 
Aliens Eligible for Family Unity Benefits After Sponsoring Family 
Member's Naturalization; Additional Class of Aliens Ineligible for 
Family Unity Benefits

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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

SUMMARY: This interim rule amends the Immigration and Naturalization 
Service (Service) regulations to provide changes that are necessary to 
implement that portion of the settlement agreement in Hernandez v. 
Reno, C.A. No. 9:93 CV 63 (E.D. Tex., filed Dec. 30, 1997), requiring 
the development and implementation of a single application form to be 
used in connection with the adjudication of requests for benefits under 
the Family Unity Program, including voluntary departure and an 
employment authorization document. This interim rule also clarifies the 
regulations to provide that certain aliens will not lose their 
eligibility for the Family Unity Program simply because their 
sponsoring family member has become a naturalized United States 
citizen. In addition, this interim rule adds a class of aliens who are 
ineligible for Family Unity benefits. Individuals who, as juveniles, 
committed an act of juvenile delinquency which, if committed by an 
adult would be classified as a felony ``crime of violence against 
another individual,'' are ineligible for benefits under the Family 
Unity Program. Finally, this rule deletes as matter of agency procedure 
the category for Family Unity Program-based employment authorization 
set forth at 8 CFR 274a.12(c)(12). The Service recognizes that this 
category is redundant in light of the existence of a virtually 
identical category set forth at 8 CFR 274a.12(a)(13).

DATES: Effective date: This interim rule is effective July 14, 2000.
    Comment date: Written comments must be submitted on or before 
September 12, 2000.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW, Room 5307, Washington DC 
20536. To ensure proper handling please reference INS No. 1823-96 on 
your correspondence. Comments are available or public inspection at the 
above address by calling (202) 514-3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT: Anne Gyemant, Immigration and 
Naturalization Service, Adjudications Division, 425 I Street, NW, Room 
3214, Washington DC 20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

What Is the Family Unity Program?

    Established by section 301 of the Immigration Act of 1990, IMMACT 
1990, Public Law 101-649 (November 29, 1990), the Family Unity Program 
provides renewable periods of voluntary departure and employment 
authorization for the eligible spouses and children of legalized 
aliens. A legalized alien is a person who has been granted temporary or 
permanent residence status under section 210 (Special Agricultural 
Worker (SAW)) or section 245A (Legalization) programs of the 
Immigration and Nationality Act (Act), or a permanent resident under 
the Cuban/Haitian Adjustment Act under section 202 of the Immigrant 
Reform and Control Act of 1986 (IRCA), Public Law 99-603 (November 6, 
1986). To establish eligibility for the benefits, the family 
relationship must have existed as of May 5, 1988, for the Legalization 
and Cuban/Haitian Adjustment Act programs or as of December 1, 1988, 
for SAW recipients. The family members must also have been present in 
the United States prior to May 5 or December 1, 1988, as applicable, 
and have resided in the U.S. since that date.

What Are the Changes to the Family Unity Program Created by the 
Settlement of the Hernandez v. Reno Class Action Lawsuit?

    As part of the settlement of a Nationwide class action lawsuit, 
Hernandez v. Reno, C.A. No. 9:93 CV 63 (E.D. Tex., filed Dec. 30, 
1997), the Service agreed to revise the existing Family Unity Program 
benefits application system so that an applicant no longer had to file 
one application (Form I-817, Application for Voluntary Departure under 
the Family Unity Program) to receive a grant of voluntary departure 
under the Family Unity Program and then file a separate application 
(Form I-7657, Application for Employment Authorization) to receive an 
employment authorization document. The implementation of this aspect of 
the settlement agreement has involved two phases. During the first 
phase, which was implemented effective January 29, 1998, the Service 
issued supplemental instructions which provided that from then forward, 
the Form I-765 would be treated as a supplement to and not a form 
separate from the Form I-817. The Form I-765 supplement was attached to 
each Form I-817 that was mailed to potential applicants. Applicants 
were encouraged to file the two forms jointly and were required to pay 
only the filing fee applicable to the Form I-817.

What Is the Fee Required for the Form I-817?

    Since the implementation of phase one, the Service revised its fee 
structure including the amount charged for the Form I-817. (See 63 FR 
43604). The amount currently charged as a result of the change is $120. 
The fee is necessary to recover the cost to the Government of both the 
adjudication of a request for voluntary departure and the issuance of 
an employment authorization document under the Family Unity Program. 
(63 FR 1775). A separate application and fee, however, will be required 
of any person granted Family Unity benefits who seeks to replace a 
Family Unity Program benefit based on an employment authorization 
document that is lost, misplaced, mutilated, or destroyed.

[[Page 43678]]

What Is the Single Application System Created Using the Revised 
Form I-817?

    Phase two of the implementation of the ``single application'' 
system agreed to under the Hernandez v. Reno settlement agreement 
involved the development and issuance of a revised Form I-817 that 
would contain sufficient requests for information from the applicant so 
that an employment authorization document could be issued without 
resorting to the use of the Form I-765 as a supplement. Such a form has 
now been developed and has been sent to the Office of Management and 
Budget (OMB) for review. Approval of the revised Form I-817, now 
entitled ``Application for Benefits under the Family Unity Program,'' 
will result in the grant of voluntary departure for a 2-year period and 
the issuance of an employment authorization document valid for the same 
period as the grant of voluntary departure.

Who Is an ``Eligible Immigrant'' Under the Family Unity Program?

    Under the Family Unity Program, an applicant is an ``eligible 
immigrant'' for purposes of the program if he or she is a spouse or 
unmarried child of a legalized alien. A legalized alien has been 
defined under 8 CFR Sec. 236.11 as a temporary or permanent resident 
under section 210 (SAW) and section 245A (Legalization) programs of the 
Act or a permanent resident under the Cuban/Haitian Adjustment Act 
under section 202 of IRCA.
    An alien has been defined, for purposes of this Act, to include, 
``any person not a citizen or national of the United States.'' See 8 
U.S.C. 1101(a)(3) (Supp. IV 1998). The Service recognizes that defining 
``legalized alien'' to include naturalized U.S. citizens is 
exceptional. Nevertheless, in light of the congressional policies of 
family reunification and encouragement of naturalization, we think it 
is clear that Congress did not intend to deprive eligible legalized 
residents of family unity benefits under these provisions on the basis 
of their having obtained U.S. citizenship through naturalization. The 
regulatory definition thus addresses a specific situation and has not 
application outside this context.

Will an Applicant Lose Eligibility if His or Her Sponsoring Family 
Member Naturalizes?

    This rule clarifies that an applicant does not lose eligibility 
under the Family Unity Program when the family member through whom the 
applicant claims eligibility becomes a naturalized U.S. citizen 
provided that the lawful permanent resident maintained status as a 
legalized alien up until the time of his/her naturalization. However, 
the naturalized family member should file a Form I-130, Petition for 
Alien Relative, on the applicant's behalf so that the applicant can 
apply for adjustment of status to become a lawful permanent resident. 
If the applicant is an ``immediate relative,'' which includes the 
spouse, parents and minor children of a U.S. citizen, the naturalized 
family member may apply for adjustment of status by submitting Form I-
485, Application for Adjustment of Status to Permanent Resident at the 
same time as the Form I-130 petition. All other applicants may apply 
for adjustment of status by filing Form I-485 as soon as a Form I-130 
petition is approved for them, and they are notified that a visa number 
is available. The visa number must be available at both the time of 
application and the time of approval of the Form I-485. All approved 
applicants will remain eligible for Family Unity Program benefits until 
their adjustment of status to that of a lawful permanent resident. If 
the sponsoring family member filed a Form I-130 petition for the 
family-based 2A preference category, Spouse and Children and Unmarried 
Sons and Daughters of Permanent Residents, for the applicant before 
naturalization, he may file a new Form I-130 petition after 
naturalization for the family-based 1A preference category, Unmarried 
Sons and Daughters of Citizens. The change of preference classification 
may significantly accelerate the applicant's priority date.

What Is the Purpose of Making Certain Juvenile Offenders a New 
Class of Aliens Ineligible for Family Unity Benefits?

    On September 30, 1996, the President signed the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-
208. Section 383 of IIRIRA provides that aliens who committed a 
specific act of juvenile delinquency, as defined in 18 U.S.C. 5031, are 
ineligible for benefits under the Family Unit Program. Disqualifying 
acts include acts which if committed by an adult, would be classified 
either (1) as a felony crime of violence that involved the use or 
attempted use of physical force against another individual, or (2) a 
felony offense which intrinsically involved a substantial risk of the 
use of such physical force.

What Is the Definition of a ``Juvenile'' Under This Rule, and Where 
Does the Definition Come From?

    The definitions to be used in implementing section 383 of IIRIRA 
are drawn from the United States Code. A ``juvenile'' is defined as a 
``person who has not attained his eighteenth birthday.'' 18 U.S.C. 
5031. ``Juvenile deliquency'' is defined as ``the violation of a law of 
the United States committed by a person prior to his eighteenth 
birthday which would have been a crime if committed by an adult.'' 18 
U.S.C. 5031. As a result, the class of aliens ineligible for Family 
Unity Program benefits now includes individuals who, while under the 
age of 18, violated a law of the United States which, if committed by 
an adult, would have constituted either (1) a felony crime of violence 
involving the use or the attempted use of physical force against 
another individual, or (2) a felony offense involving a substantial 
risk of the use of violence against another individual. Section 383 
also applies to any alien who is over the age of 18, and who committed 
such an act of juvenile delinquency before his or her 18th birthday.

What Is the Effective Date of This Section?

    The amendments made by section 383 of IIRIRA apply to benefits 
granted or extended after September 30, 1996.

Good Cause Exception

    The Service's implementation of this rule as an interim rule, with 
provisions for post-promulgation public comments, is based upon the 
``good cause'' exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3). 
The reason and the necessity for immediate implementation of this 
interim rule without prior notice and comment is because parts of this 
rule merely codify in the Service's regulation the statutory mandates 
in section 383 of Public Law 104-208. In addition, some of the changes 
in this rule are beneficial to the affected public in that they either 
serve to implement the Hernandez v. Reno settlement agreement or to 
clarify that certain aliens do not lose eligibility because their 
sponsoring family member has naturalized. Therefore, it is 
impracticable and unnecessary to adopt this rule with the prior notice 
and comment period normally required under 5 U.S.C. 553(b) or with the 
delayed effective date normally required under 5 U.S.C. 553(d). The 
removal of 8 CFR 274a.12(c)(12), Family Unity Program-based employment 
authorization, is an agency rule of

[[Page 43679]]

practice and procedure and, therefore, exempt from the requirements of 
5 U.S.C. 553.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. While this rule does affect individuals, the number 
affected will be minimal. There is no impact on small entities.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

Executive Order 12866

    This rule is 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. Accordingly, this regulation has been submitted to the OMB for 
review.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationships 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 
13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988 Civil Justice Reform

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

Family Policymaking Assessment

    The Commissioner of the Immigration and Naturalization Service has 
reviewed this regulation and has determined that it may affect family 
well-being as that term is used in section 654 of the Treasury-General 
Government Appropriations Act, 1999, Public Law 105-277 Div. A. 
Accordingly, the Service has assessed this action in accordance with 
the criteria specified by section 654(c)(1). This regulation will 
create a positive effect on the family by allowing Family Unity Program 
beneficiaries to retain eligibility when their sponsoring family member 
naturalizes. This will have the effect of keeping families together by 
encouraging their adjustment of status to that of a legal permanent 
resident while allowing them to retain Family Unity Program benefits 
until that time. Additionally, when the sponsoring family member 
naturalizes, the subsequent change of preference classification may 
significantly move forward the applicant's priority date, allowing them 
to adjust their status even sooner. Finally, this regulation will have 
the effect of strengthening the stability of the family and 
establishing an explicit policy concerning the relationship between the 
behavior and personal responsibility of youth, and the norms of 
society.

Paperwork Reduction Act of 1995

    The Service has requested expedited OMB review of the revised Form 
I-817 in order to comply with the settlement agreement in the Hernandez 
v. Reno litigation. During the course of the development of the revised 
Form I-817, the Service made several revisions unrelated to the 
implementation of the Hernandez v. Reno settlement. These additional 
revisions were necessary due to changes in the Family Unity provisions 
and inadmissibility grounds affected by the IIRIRA. Finally, changes 
were made on the form to reflect the changes made to the regulations by 
this interim rule. The Service is requesting comments on revised Form 
I-817.

List of Subjects

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

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

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

    1. The authority citation for part 236 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 
sec. 303(b) of Div. C of Pub. L. No. 104-208, 8 CFR part 2.


    2. Section 236.11 is amended by revising the definition ``Legalized 
alien'' to read as follows:


Sec. 236.11  Definitions.

* * * * *

    For purposes of Secs. 236.10 to 236.18 only, Legalized alien means 
an alien who:
    (1) Is a temporary or permanent resident under section 210 or 245A 
of the Act;
    (2) Is a permanent resident under section 202 of the Immigration 
Reform and Control Act of 1986 (Cuban/Haitian Adjustment); or
    (3) Is a naturalized U.S. citizen who was a permanent resident 
under section 210 or 245A of the Act or section 202 of the Immigrant 
Reform and Control Act of 1986 (IRCA) (Cuban/Haitian Adjustment), and 
maintained such a status until his or her naturalization.

    3. Section 236.12(a)(2) is revised to read as follows:


Sec. 236.12  Eligibility.

    (a) * * *
    (2) That as of May 5, 1988, (in the case of a relationship to a 
legalized alien described in subsection (b)(2)(B) or (b)(2) (C) of 
section 301 of IMMACT 90) or as of December 1, 1988, (in the case of a 
relationship to a legalized alien described in subsection (b)(2) (A) of 
section 301 of IMMACT 90), he or she was the spouse or unmarried child 
of a legalized alien, and that he or she has been eligible continuously 
since that time for family-sponsored immigrant status under section 
203(a) (1), (2), or (3) or as an immediate relative under section 201 
(b)(2) of the Act based on the same relationship.
* * * * *

[[Page 43680]]


    4. Section 236.13 is amended by:
    a. Removing the ``or'' at the end of paragraph (b);
    b. Removing the period at the end of paragraph (c), and inserting 
in its place a ``; or'' ; and by
    c. Adding a new paragraph (d) to read as follows:


Sec. 236.13  Ineligible aliens.

* * * * *
    (d) An alien who has committed an act of juvenile delinquency (as 
defined in 18 U.S.C. 5031) which if committed by an adult would be 
classified as:
    (1) A felony crime of violence that has an element the use or 
attempted use of physical force against another individual; or
    (2) A felony offense that by its nature involves a substantial risk 
that physical force against another individual may be used in the 
course of committing the offense.

    5. Section 236.14(a) is revised to read as follows:


Sec. 236.14  Filing.

    (a) General. An application for benefits under the Family Unity 
Program must be filed at the service center having jurisdiction over 
the alien's place of residence. A Form I-817 Application for Benefits 
Under the Family Unity Program, must be filed with the correct fee 
required in Sec. 103.7(b)(1) of this chapter and the required 
supporting documentation. A separate application with appropriate fee 
and documentation must be filed for each person claiming eligibility.
* * * * *

    6. Section 236.15 is amended by revising paragraphs (d), (e), and 
(f) to read as follows:


Sec. 236.15  Voluntary departure and eligibility for employment.

* * * * *
    (d) Employment authorization. An alien granted benefits under the 
Family Unity Program is authorized to be employed in the United States 
and will receive an employment authorization document. The validity 
period of the employment authorization document will coincide with the 
period of voluntary departure.
    (e) Extension of voluntary departure. An application for an 
extension of voluntary departure under the Family Unity Program must be 
filed by the alien on Form I-817 along with the correct fee required in 
Sec. 103.7(b)(1) of this chapter and the required supporting 
documentation. The submission of a copy of the previous approval notice 
will assist in shortening the processing time. An extension may be 
granted if the alien continues to be eligible for benefits under the 
Family Unity Program. However, an extension may not be approved if the 
legalized alien is a lawful permanent resident, or a naturalized U.S. 
citizen who was a lawful permanent resident under section 210 or 245A 
of the Act or section 202 of the Immigration Reform and Control Act of 
1986 (IRCA), Pub. L. 66-903, and maintained such status until his or 
her naturalization, and a petition for family-sponsored immigrant 
status has not been filed on behalf of the applicant. In such case, the 
Service will notify the alien of the reason for the denial and afford 
him or her the opportunity to file another Form I-817 once the 
petition, Form I-130, has been filed on his or her behalf. No charging 
document will be issued for a period of 90 days from the date of the 
denial.
    (f) Supporting documentation for extension application. Supporting 
documentation need not include documentation provided with the previous 
application(s). The extension application shoud only include changes to 
previous applications and evidence of continuing eligibility since the 
date of prior approval.


Sec. 236.18   [Amended]

    7. Section 236.18 is amended by removing the phrase ``or who are'' 
from paragraph (a)(2).

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

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

Sec. 274a.12   [Amended]

    9. Section 274a.12 is amended by removing and reserving paragraph 
(c)(12).

PART 299--IMMIGRATION FORMS

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

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


    11. Section 299.1 is amended in the table by revising the entry for 
Form I-817 to read as follows:


Sec. 299.1   Prescribed forms.

* * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
           Form No.                   Edition date                                                     Title
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
I-817........................  05-30-99                    Application for Benefits under the Family Unity Program.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: July 5, 2000.
Doris Meissner,
Commissioner, Immigrationa nd Naturalization Service.
[FR Doc. 00-17814 Filed 7-13-00; 8:45 am]
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