[Federal Register Volume 69, Number 229 (Tuesday, November 30, 2004)]
[Proposed Rules]
[Pages 69549-69554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26371]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, 214, 245, and 245a

[CIS No. 2287-03; Docket No. DHS 2004-0020]
RIN 1615-AB13


Removal of the Standardized Request for Evidence Processing 
Timeframe

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend Department of Homeland Security 
(Department) regulations by removing the absolute requirement for, and 
the fixed regulatory time limitations on responses to, a U.S. 
Citizenship and Immigration Services (USCIS) issued Request for 
Evidence (RFE) or Notice of Intent to Deny (NOID). These changes will 
enable USCIS to set an appropriate deadline for responding to an RFE or 
NOID, specific to the type of case, benefit category, or 
classification, and thus improve the process of adjudication of 
applications and petitions by reducing the time a case is held awaiting 
evidence, and by reducing average case processing time. This rule will 
result in improved efficiency in the USCIS adjudication process.
    In addition, this rule also replaces references to the Immigration 
and Naturalization Service (Service) with references to USCIS in light 
of implementation of the Homeland

[[Page 69550]]

Security Act of 2002, Public Law 107-296. This rule also removes 
obsolete regulatory language related to the Replenishment Agricultural 
Worker (RAW) program under section 210A of the Immigration and 
Nationality Act (Act), which was repealed by section 219(ee)(1) of the 
Immigration and Technical Corrections Act of 1994, Public Law 103-416. 
The rule further removes references to the use of qualified designated 
entities for filing of applications for adjustment of status in the 
Seasonal Agricultural Workers (SAW) and legalization programs under 
section 210 and 245A of the Act.

DATES: Written comments must be submitted on or before January 31, 
2005.

ADDRESSES: You may submit comments, identified by DHS Docket No. DHS-
2004-0020, by one of the following methods:
     EPA Federal Partner EDOCKET Web Site: http://www.epa.gov/feddocket. Follow instructions for submitting comments on the Web site. 
The Department of Homeland Security has joined the Environmental 
Protection Agency (EPA) online public docket and comment system on its 
Partner Electronic Docket System (Partner EDOCKET). The Department of 
Homeland Security and its agencies (excluding the United States Coast 
Guard and Transportation Security Administration) will use the EPA 
Federal Partner EDOCKET system. The USCG and TSA (legacy Department of 
Transportation (DOT) agencies) will continue to use the DOT Docket 
Management System until full migration to the electronic rulemaking 
federal docket management system in 2005.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. When submitting comments 
electronically, please include Docket No. DHS-2004-0020 in the subject 
line of the message.
     Mail: The Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To 
ensure proper handling, please reference Docket No. DHS-2004-0020 on 
your correspondence. This mailing address may also be used for paper, 
disk, or CD-ROM submissions.
     Hand Delivery/Courier: U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 111 Massachusetts Avenue, 
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number (202) 
514-3048.
    Instructions: All submissions received must include the agency name 
and Docket No. DHS-2004-0020 for this rulemaking. All comments received 
will be posted without change to http://www.epa.gov/feddocket, 
including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.epa.gov/feddocket. You may also 
access the Federal eRulemaking Portal at http://www.regulations.gov. 
Submitted comments may also be inspected at the Director, Regulatory 
Management Division, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd 
Floor, Washington, DC 20529. To ensure proper handling, please 
reference Docket No. DHS-2004-0020 on your correspondence.

FOR FURTHER INFORMATION CONTACT: Rodger Pitcairn, Program and 
Regulations Development, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd 
Floor, Washington, DC 20529, telephone (202) 514-2685.

SUPPLEMENTARY INFORMATION:

Who Is Affected by This Rule?

    This proposed rule would affect those petitioners and applicants 
who submit applications/petitions for immigration benefits and receive 
requests for evidence (RFEs) or notices of intent to deny (NOIDs) from 
the Department.

What Is an RFE?

    An RFE, described in current regulations at 8 CFR 103.2(b)(8), is a 
request, issued by an adjudicating immigration officer, for the 
applicant or petitioner to provide initial or additional evidence in 
support of an application or petition. RFEs usually are in writing and 
request missing documentary evidence. The documentary evidence 
requested may consist of basic documents that were specified in the 
application/petition forms and/or instructions but which were not 
submitted by the applicant or petitioner. The RFE may also be a request 
for original documents or proper translations, or for other documents 
not specifically identified in the form's instructions but determined 
by the adjudicator to be relevant to the adjudication of the 
application/petition.

What Is a Notice of Intent To Deny?

    A notice of intent to deny (NOID) is a written notice issued to an 
applicant or petitioner when USCIS has made a preliminary decision to 
deny the application or petition. NOIDs may be based on evidence of 
ineligibility and/or on derogatory information of which the applicant 
or petitioner is unaware.

What Is the Current Process for Issuing an RFE or NOID?

    Under 8 CFR 103.2(b)(8), USCIS is required to issue an RFE when 
initial evidence is missing. Initial evidence is evidence specified in 
the regulations and on the application or petition and accompanying 
instructions. USCIS, in its discretion, may also issue an RFE for 
additional evidence. In either case, if USCIS issues an RFE, USCIS must 
provide a standard response period of 12 weeks.
    There are various provisions throughout 8 CFR that authorize or 
require USCIS to issue a NOID to an applicant or petitioner before 
rendering a final decision on the case. NOIDs are designed to provide 
the applicant or petitioner with an opportunity to inspect and rebut 
the evidence in a certain period of time, usually 30 days from the date 
of notice.

Why Is USCIS Changing the Current Process and How Will RFE or NOID 
Issuance Occur Under the Proposed Rule?

    USCIS recognizes that while RFEs are sometimes necessary, RFE 
issuance slows the adjudication process. Some RFEs are simple enough to 
require resubmission within a few weeks; others may require more time. 
USCIS proposes to replace the current 12-week response period reflected 
in 8 CFR 103.2(b)(8) with a more flexible approach, setting response 
periods based on various factors such as the type of benefit sought; 
the type of application or petition filed; the type of evidence needed 
for adjudication; the source and availability of documentation (both 
foreign and domestic); the effect of denial of an application or 
petition on the applicant, petitioner and/or beneficiary (e.g., loss of 
long-held priority dates, loss of valid status or interim benefits); 
the delivery mechanisms to be used for an RFE or NOID; and other case-
specific factors. USCIS also proposes to remove most provisions that 
require issuance of an RFE or NOID in order to allow USCIS greater 
flexibility in deciding cases based on the information received, 
including initial evidence and other relevant materials. Generally, 
USCIS anticipates that the response times for most RFEs or NOIDs that 
are set by USCIS under this proposed rule will not be less than 30 
days. In addition, USCIS will issue RFEs or NOIDs as written notices, 
clearly stating what evidence or information is required, to give the

[[Page 69551]]

applicant or petitioner adequate notice and sufficient information to 
respond to any request.
    The goal for redesigning the RFE and NOID issuance process is to 
allow USCIS flexibility in determining whether to issue RFEs and NOIDs 
and in setting RFE and NOID response periods, mainly through 
implementing field guidance that will address specific circumstances 
encountered by USCIS. Clearly approvable cases should be promptly 
approved, without the need for an RFE. Clearly ineligible cases should 
be denied without an RFE or NOID, even if required initial evidence has 
not been submitted. USCIS also retains its discretion to issue an RFE, 
NOID or deny a case when initial evidence is missing or there is 
insufficient evidence to establish eligibility. The current rule at 8 
CFR 103.2(b)(16)(i) requiring opportunity to rebut derogatory 
information of which the applicant or petitioner is unaware will 
remain.
    USCIS welcomes comments on all aspects of this rule, and 
specifically requests proposals on appropriate standards for RFE or 
NOID issuance as well as for determining appropriate periods for RFE 
and NOID responses. USCIS also welcomes suggestions on actual 
timeframes that should be adopted based on either the application or 
petition being filed or the documentary evidence generally required for 
a particular benefit category. Based on the comments received and 
USCIS' own experience in case adjudication, USCIS will develop 
timeframes and standards for RFE and NOID issuance.

What Other Changes Does This Rule Propose To Make?

    This rule clarifies 8 CFR 103.2(b)(5) to reflect that official 
documents issued by the Department (or the former Immigration and 
Naturalization Service) need not be submitted in the original unless 
required by USCIS. Original documents submitted to USCIS (or the former 
Immigration and Naturalization Service) will be returned upon request, 
but USCIS is not precluded from making subsequent requests to reexamine 
original documents.
    This rule expands and restructures current 8 CFR 103.2(b)(8) to 
reflect more accurately the process of responding to an RFE. This 
change is intended to facilitate a respondent's ability to understand 
and address a request for evidence.
    This rule amends 8 CFR 103.2(b)(8) by removing the mandatory 
requirement that USCIS issue an RFE for initial evidence. Instead, 
USCIS, in its discretion, may deny a petition or application when 
required initial evidence is missing. If an applicant or petitioner 
fails to submit the required initial evidence, and USCIS decides to 
deny the application or petition rather than issue an RFE, the 
applicant or petitioner may file a motion to reopen, with fee, as 
provided under 8 CFR 103.5 or file a new application or petition. The 
applicant or petitioner may also file an appeal of the denial if other 
regulatory or statutory authority exists for such appeal.
    This rule also preserves USCIS' discretion to issue an RFE or NOID 
if USCIS determines that the record raises questions of eligibility. If 
USCIS issues an RFE or NOID for additional evidence and a response is 
received, USCIS will adjudicate the application based on the required 
initial evidence and the requested information submitted in response to 
the RFE or NOID. If the applicant or petitioner does not respond to the 
RFE or NOID, USCIS will treat the failure to respond as a statement by 
the applicant or petitioner that he or she believes the record as it 
stands establishes eligibility. Upon passing of the deadline for 
submission of the requested evidence, USCIS will adjudicate the 
application and/or petition based on the record then existing before 
USCIS (e.g., the application or petition and the required initial 
evidence).
    Finally, this rule divides current 8 CFR 103.2(b)(17) into two 
separate paragraphs for improved ease of use and to clarify which 
official records will be accepted to establish lawful admission for 
permanent residence.
    In addition to the proposed changes regarding RFE requests, USCIS 
is making numerous technical changes to 8 CFR 103.2 necessary to 
reflect the recent organizational changes resulting from implementation 
of the Homeland Security Act of 2002, Public Law 107-296.

Are Fee Waivers Available if a Petitioner or Applicant Is Required To 
File a New Application or Petition or, if Eligible, a Motion To Reopen?

    Fee waiver requests may be granted when it has been established 
that the individual is unable to pay the required filing fees, 
including filing fees for motions to reopen. See 8 CFR 103.7(c). To 
apply for a fee waiver, an individual must comply with the provisions 
of 8 CFR 103.7(c). The individual may submit an affidavit, or unsworn 
declaration made pursuant to 28 U.S.C. 1746, that is signed, dated, and 
certified under penalty of perjury, and which states the reasons why 
the individual is unable to pay the filing fee. USCIS will take note of 
any evidence or documentation that is submitted in support of the 
individual's claim that he or she is unable to pay the filing fee. For 
more detailed information on the fee waiver request process please 
visit the USCIS Web site at http://www.uscis.gov.

Regulatory Flexibility Act

    DHS has reviewed this rule in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, DHS certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. Although some petitions may be 
submitted by small entities, namely U.S. employers seeking nonimmigrant 
or immigrant labor, this rule is intended to be more flexible in 
setting time limits for RFEs or NOIDs, thereby reducing the timeframe 
for adjudicating these petitions without imposing costs. USCIS 
recognizes that this change may have a small impact on small business 
practices or productivity due to the change in timeframes for responses 
to RFEs or NOIDS. However, USCIS believes these changes ultimately will 
benefit affected small businesses, namely because the reduction in 
adjudication timeframes will allow U.S. employers to receive the 
benefit sought at an earlier date (i.e., the ability to hire temporary 
or permanent foreign employees). USCIS intends to set response times 
for RFEs or NOIDs generally at not less than 30 days. USCIS welcomes 
suggestions on actual timeframes that should be adopted based on either 
the application or petition being filed or the documentary evidence 
generally required for a particular benefit category. Based on the 
comments received and USCIS' own experience in case adjudication, USCIS 
will develop timeframes and standards for RFE and NOID issuance.

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 one 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.

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

[[Page 69552]]

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 Homeland Security to 
be a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. Accordingly, this rule 
has been submitted to the Office of Management and Budget for review.
    The Department has assessed both the costs and the benefits 
associated with this proposed rule. There are no identifiable 
alternatives associated with RFE or NOID issuance. In addition, there 
are minimal costs to the Department associated with instructing 
adjudicators about the options for dealing with inadequate information. 
There are benefits to both USCIS and the public. USCIS will reduce the 
number of RFEs and NOIDs and the cycle time for responses to such 
notices, potentially reducing the pending backlog of cases. The public 
will receive fewer and more specific RFE or NOID notices and benefit 
from faster approval of applications and petitions. USCIS welcomes 
comments specifically on the impact on U.S. employers who file 
employment-related applications or petitions and on any potential costs 
that may be associated with implementation of this rule.

Executive Order 13132

    This rule 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, DHS has determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting or recordkeeping 
requirements inherent in a rule. This rule does not impose any new 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 204

    Administrative practice and procedure, Immigration, Reporting and 
recordkeeping requirements.

8 CFR Part 214

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

8 CFR Part 245

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

8 CFR Part 245a

    Aliens, Immigration, Reporting and recordkeeping requirements.

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

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

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

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 
8 CFR part 2.

    2. Section 103.2 is amended by:
    a. Revising the term ``INS office or Service Center'' to read 
``USCIS office'' in paragraph (a)(6);
    b. Revising the term ``Service Center'' to read ``service center'' 
wherever that term appears in the last sentence of paragraph (a)(7)(i);
    c. Revising paragraph (b)(1);
    d. Revising paragraph (b)(4);
    e. Revising paragraph (b)(5);
    f. Revising paragraph (b)(8);
    g. Revising paragraph (b)(11);
    h. Removing the term ``initial'' in paragraph (b)(12), first 
sentence of text;
    i. Revising paragraph (b)(13);
    j. Revising term ``regional commissioner'' to read ``USCIS Director 
or his or her designee'' in paragraph (b)(16)(iii);
    k. Revising the term ``regional commissioner'' to read ``USCIS 
Director or his or her designee'' in the second sentence, and the term 
``regional commissioner's'' to read ``USCIS Director's or his or her 
designee's'' in the third sentence in paragraph (b)(16)(iv);
    l. Revising paragraph (b)(17); and by
    m. Removing and reserving paragraphs (c) and (d); The revisions 
read as follows:


Sec.  103.2  Applications, petitions, and other documents.

* * * * *
    (b) * * * (1) Demonstrating eligibility at time of filing. An 
applicant or petitioner must establish that he or she is eligible for 
the requested benefit at the time of filing the application or 
petition. All required application or petition forms must be properly 
completed and filed with any initial evidence required by applicable 
regulations and/or the form's instructions. Failure to submit with the 
petition or application all of the initial evidence that is required by 
the applicable regulations or form instructions may result in denial of 
the petition or application without further notice to the petitioner or 
applicant. Any evidence submitted in connection with the application or 
petition is incorporated into and considered part of the relating 
application or petition.
* * * * *
    (4) Submitting copies of documents. Application and petition forms, 
and documents issued to support an application or petition, such as 
labor certifications, Form IAP-66, medical examinations, affidavits, 
formal consultations, letters of current employment and other 
statements, must be submitted in the original unless previously filed 
with USCIS. Official documents issued by the Department need not be 
submitted in the original unless required by USCIS. Unless otherwise 
required by the applicable regulation or form's instructions, a legible 
photocopy of any other supporting document may be submitted.
    (5) Request for an original document. USCIS may, at any time, 
request submission of an original document for review. The request will 
state a deadline for submission of the original document. Failure to 
submit the requested original by the deadline may result in denial or 
revocation of the underlying application or benefit. An original 
document submitted in response to such a request, when no longer 
required by USCIS, will be returned to the petitioner or

[[Page 69553]]

applicant upon completion of the adjudication.
* * * * *
    (8) Request for evidence. (i) Evidence of eligibility or 
ineligibility. If the preponderance of the evidence submitted with the 
application or petition establishes eligibility, USCIS will approve the 
application or petition, except that in any case in which the 
applicable statute or regulation makes the approval of a petition or 
application a matter entrusted to USCIS discretion, USCIS will approve 
the petition or application only if the preponderance of the evidence 
of record establishes not only that the petitioner or applicant is 
eligible for the benefit sought but also that the petitioner or 
applicant warrants a favorable exercise of discretion. If there is 
evidence in the record that establishes ineligibility, the application 
or petition will be denied on that basis.
    (ii) Action on insufficient initial evidence. If the evidence 
submitted does not fully establish eligibility, USCIS may, according to 
the agency's implementing guidance: Deny the application or petition 
for lack of initial evidence or for ineligibility; request more 
information or evidence from the applicant or petitioner within a 
specified period of time as determined by USCIS; or notify the 
applicant or petitioner of its intent to deny the application or 
petition and of the basis for the proposed denial and require a 
response within a specified period of time as determined by USCIS. If 
USCIS issues a RFE or NOID, the RFE or NOID will be in writing and 
specify the type of evidence required or the bases for denial to give 
the applicant or petitioner adequate notice and sufficient information 
to respond to such notice. The time allowed for response to a request 
for evidence or notice of intent to deny generally will not be less 
than thirty (30) days.
* * * * *
    (11) Responding to a request for evidence or notice of intent to 
deny. If USCIS issues a request for evidence or a notice of intent to 
deny, the applicant or petitioner may respond at any time prior to the 
deadline set by USCIS. An applicant or petitioner may also withdraw the 
application or petition at any time during the period provided for 
response. All requested materials should be submitted together at one 
time, along with the original USCIS request for evidence or notice of 
intent to deny. Submission of only some of the requested evidence will 
be considered a request for a decision on the record. After the 
deadline for response, or after USCIS' receipt of a response, the 
application or petition will be adjudicated based on the record then 
existing (e.g. the application or petition, required initial evidence 
and any relevant information submitted in response to the request for 
evidence or notice of intent to deny).
* * * * *
    (13) Effect of failure to respond to a request for evidence or a 
notice of intent to deny or to appear for interview or fingerprinting. 
(i) Failure to submit evidence or respond to a notice of intent to 
deny. If any requested evidence or a response to a notice of intent to 
deny is not submitted by the required date, the failure to submit such 
evidence or response shall be treated as a request for a decision based 
on the record then existing (e.g. the application or petition and 
required initial evidence) and the application or petition shall be 
adjudicated accordingly.
    (ii) Failure to appear for fingerprinting or interview. Except as 
provided in 8 CFR 335.6, if an individual requested to appear for 
fingerprinting or for an interview does not appear and USCIS has not 
received either a request for rescheduling by the date of the 
fingerprinting appointment or interview, or a withdrawal of the 
application or petition, the application or petition shall be 
considered abandoned and denied accordingly.
* * * * *
    (17) Verifying claimed citizenship or permanent resident status. 
(i) Department records. The status of an applicant or petitioner who 
claims that he or she is a permanent resident of the United States or 
was formerly a permanent resident of the United States will be verified 
from official Department records. These records include alien and other 
files, arrival manifests, arrival records, Department index cards, 
Immigrant Identification Cards, Certificates of Registry, Declarations 
of Intention issued after July 1, 1929, Permanent Resident Cards (Form 
I-551), Alien Registration Receipt Cards (Form I-151), other 
registration receipt forms (Form AR-3, AR-3a, and AR-103, provided that 
such forms were issued or endorsed to show admission for permanent 
residence), passports, and reentry permits. An official record of a 
Department index card must bear a designated immigrant visa symbol and 
must have been prepared by an authorized official of the Department in 
the course of processing immigrant admissions or adjustments to 
permanent resident status. Other cards, certificates, declarations, 
permits, and passports must have been issued or endorsed to show 
admission for permanent residence. Except as otherwise provided in 8 
CFR part 101, and in the absence of countervailing evidence, such 
official records will be regarded as establishing lawful admission for 
permanent residence.
    (ii) Assisting self-petitioners who are spousal abuse victims. If a 
self-petitioner filing a petition under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is 
unable to present primary or secondary evidence of the abuser's status, 
USCIS will attempt to verify electronically the abuser's citizenship or 
immigration status from information contained in the Department's 
automated or computerized records. Other Department records may also be 
reviewed at the discretion of the adjudicating officer. If USCIS is 
unable to identify a record as relating to the abuser, or the record 
does not establish the abuser's immigration or citizenship status, the 
self-petition will be adjudicated based on the information submitted by 
the self-petitioner.
* * * * *


Sec.  103.2  [Amended]

    3. Section 103.2 is further amended by:
    a. Revising the terms ``the Service'' or ``Service'' to read 
``USCIS'' wherever those terms appear in the following paragraphs:

--Paragraph (a)(7)(i) first sentence and first time it appears in the 
last sentence;
--Paragraph (b)(2)(ii) in the last sentence;
--Paragraph (b)(2)(iii);
--Paragraph (b)(3);
--Paragraph (b)(6);
--Paragraph (b)(7);
--Paragraph (b)(9) introductory text;
--Paragraph (b)(10);
--Paragraph (e)(1);
--Paragraph (e)(2);
--Paragraph (e)(3) introductory text;
--Paragraph (e)(3)(iii);
--Paragraph (e)(4)(i);
--Paragraph (e)(4)(iii) introductory text;
--Paragraph (e)(4)(iii)(C);
--Paragraph (e)(4)(iv) second sentence;
--Paragraph (f)(1) in the third sentence;
--Paragraph (f)(1), the first time the term appears in the fourth 
sentence;
--Paragraph (f)(2), the first time the term appears in the first 
sentence;
--Paragraph (f)(3), the first and last time the term appears in the 
last sentence;
--Paragraph (f)(4), the first time the term appears in the first 
sentence;
--Paragraph (f)(4), the first time the term appears in the second 
sentence; and
--Paragraph (f)(4), in the third sentence.

    b. Revising the term ``Service's'' to read ``USCIS''' in the 
following paragraphs:


[[Page 69554]]


--Paragraph (b)(15);
--Paragraph (e)(3)(iii); and
--Paragraph (e)(4)(iii)(C).
* * * * *

PART 204--IMMIGRANT PETITIONS

    4. The authority citation for part 204 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1255, 1641; 8 CFR part 2.


Sec.  204.1  [Amended]

    5. Section 204.1 is amended by removing paragraph (h).


Sec.  204.2  [Amended]

    6. Section 204.2 is amended by:
    a. Removing paragraph (c)(3)(ii) and by redesignating (c)(3)(iii) 
as (c)(3)(ii);
    b. Removing paragraph (e)(3)(ii) and by redesignating (e)(3)(iii) 
as (e)(3)(ii).

PART 214--NONIMMIGRANT CLASSES

    7. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant 
to Executive Order 13323, published January 2, 2004), 1186a, 1187, 
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 643, Pub. L. 
104-208; 110 Stat. 3009-708; section 141 of the Compacts of Free 
Association with the Federated States of Micronesia and the Republic 
of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 
1901, note, and 1931, note, respectively.


Sec.  214.2  [Amended]

    8. Section 214.2 is amended by:
    a. Removing paragraph (h)(10)(ii) and by redesignating (h)(10)(iii) 
as (h)(10)(ii);
    b. Removing paragraph (k)(10)(iii);
    c. Removing paragraph (l)(8)(i) and by redesignating (l)(8)(ii) and 
(l)(8)(iii) as (l)(8)(i) and (l)(8)(ii) respectively;
    d. Revising paragraph (o)(7); and by
    e. Revising paragraph (p)(9).
    The revisions read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (o) * * *
    (7) The petitioner shall be notified of the decision, the reasons 
for the denial, and the right to appeal the denial under 8 CFR part 
103.
* * * * *
    (p) * * *
    (9) The petitioner shall be notified of the decision, the reasons 
for the denial, and the right to appeal the denial under 8 CFR part 
103. There is no appeal from a decision to deny an extension of stay to 
the alien or a change of nonimmigrant status.
* * * * *
    8. Section 214.11 is amended by revising paragraph (k)(2) to read 
as follows:


Sec.  214.11  Alien victims of severe forms of trafficking in persons.

* * * * *
    (k) * * *
    (2) Determination by USCIS. An application for T-1 status under 
this section will not be treated as a bona fide application until USCIS 
has provided the notice described in paragraph (k)(3) of this section. 
In the event that an application is incomplete or if the application is 
complete but does not present sufficient evidence to establish prima 
facie eligibility for each required element of T nonimmigrant status, 
USCIS will follow the procedures provided in 8 CFR 103.2(b)(8) for 
requesting additional evidence, issuing a notice of intent to deny, or 
adjudicating the case on the merits.
    9. Section 214.15 is amended by revising the second sentence of 
paragraph (d) to read as follows:


Sec.  214.15  Certain spouses and children of lawful permanent 
residents.

* * * * *
    (d) The definition of ``pending''. * * * In addition, the petition 
must have been properly filed according to 8 CFR 103.2(a), and if, 
subsequent to filing, USCIS returns the petition to the applicant for 
any reason or makes a request for evidence or issues a notice of intent 
to deny under 8 CFR 103.2(b)(8), the petitioner must comply with the 
request within the time period set by USCIS. * * *
* * * * *

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

    10. 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.


Sec.  245.18  [Amended]

    11. Section 245.18 is amended by removing and reserving paragraph 
(i).

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR 
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF 
THE IMMIGRATION AND NATIONALITY ACT

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

    Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.

    13. Section 245a.20 is amended by revising paragraph (a)(2) to read 
as follows:


Sec.  245a.20  Decisions, appeals, motions, and certifications.

    (a) * * *
    (2) Denials. The alien shall be notified in writing of the decision 
of denial and of the reason(s) therefor. An applicant affected under 
this part by an adverse decision is entitled to file an appeal on Form 
I-290B, Notice of Appeal to the Administrative Appeals Office (AAO), 
with required fee specified in 8 CFR 103.7(b)(1). Renewal of employment 
authorization issued pursuant to Sec.  245a.13 will be granted until a 
final decision has been rendered on appeal or until the end of the 
appeal period if no appeal is filed. After exhaustion of an appeal, an 
alien who believes that the grounds for denial have been overcome may 
submit another application with fee, provided that the application is 
submitted on or before June 4, 2003.
* * * * *


Sec.  245a.33  [Amended]

    14. Section 245a.33 is amended by removing the second sentence of 
paragraph (b).

    Dated: November 18, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-26371 Filed 11-29-04; 8:45 am]
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