[Federal Register Volume 70, Number 78 (Monday, April 25, 2005)]
[Rules and Regulations]
[Pages 21129-21132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8176]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 78 / Monday, April 25, 2005 / Rules 
and Regulations  

[[Page 21129]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 204

[CIS No. 2277-03; DHS-2004-0013]
RIN 1615-AB14


Classification of Certain Scientists of the Commonwealth of 
Independent States of the Former Soviet Union and the Baltic States as 
Employment-Based Immigrants

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

ACTION: Interim rule with request for comments.

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

SUMMARY: This interim rule implements changes to the Soviet Scientists 
Immigration Act of 1992 (SSIA), Public Law 102-509, made by the Foreign 
Relations Authorization Act, Fiscal Year 2003, Public Law 107-228. The 
SSIA, as amended, reinstates the authority to allot visas under section 
203(b)(2)(A) of the Immigration and Nationality (Act) to eligible 
scientists or engineers of the independent states of the former Soviet 
Union and the Baltic states with expertise in nuclear, chemical, 
biological, or other high-technology field or defense projects. This 
rule amends the Department of Homeland Security (DHS) regulations to 
codify the new sunset date of September 30, 2006 and the new numerical 
limit of 950 visas (excluding spouses and children if accompanying or 
following to join). The rule also modifies the evidence eligible 
scientists or engineers must submit to establish their expertise or 
work experience in such high technology fields or defense projects.

DATES: Effective date: This interim rule is effective May 25, 2005.
    Comment date: Comments must be submitted on or before June 24, 
2005.

ADDRESSES: You may submit comments, identified by CIS No. 2277-03 or 
DHS 2004-0013, 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.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. When submitting comments 
electronically, please include CIS No. 2277-03 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., 2nd Floor, Washington, DC 20529. To 
ensure proper handling, please reference CIS No. 2277-03 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., 2nd Floor, Washington, DC 20529. Contact Telephone Number (202) 
272-8377.
    Instructions: All submissions received must include the agency name 
and docket number (if available) or Regulatory Information Number (RIN) 
for this rulemaking. All comments received will be posted without 
change to http://www.epa.gov/feddocket, including any personal 
information provided. For detailed instructions on submitting comments 
and additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.
     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 
office of the Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To 
ensure proper handling, please reference CIS No. 2277-03 on your 
correspondence.

FOR FURTHER INFORMATION CONTACT: Efren Hernandez, Chief, Business and 
Trade Branch, Program and Regulation Department, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 111 
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone 
(202) 616-7959.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim rule. USCIS also invites comments that relate to the economic, 
environmental, or federalism affects that might result from this 
interim rule. Comments that will provide the most assistance to USCIS 
in developing these procedures will reference a specific portion of the 
interim rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change. See ADDRESSES above for information on how to submit comments.

What Is the Soviet Scientists Immigration Act of 1992?

    The Soviet Scientists Immigration Act of 1992 (SSIA) provided that 
up to 750 immigrant visas may be allotted under section 203(b)(2)(A) of 
the Immigration and Nationality Act (Act) to eligible scientists or 
engineers of the independent states of the former Soviet Union and the 
Baltic states (excluding spouses and children if accompanying or 
following to join), if the scientists or engineers had expertise in 
nuclear, chemical, biological or other high technology fields or were 
working on such high technology defense projects, as defined by the 
Attorney General. This program expired on October 24, 1996.

What Changes to the Soviet Scientists Immigration Act Were Made by the 
Foreign Relations Authorization Act, Fiscal Year 2003 (Public Law 107-
228)?

    Section 1304 of the Foreign Relations Authorization Act, Fiscal 
Year 2003, amended the SSIA by:
    (1) Reinstating the classification authority for eligible 
scientists and engineers under section 203(b)(2)(A) of the Act;
    (2) Reopening the eligibility period for filing petitions for 4 
years from the date of enactment of the Foreign Relations Authorization 
Act (September 30, 2002);

[[Page 21130]]

    (3) Raising the numerical limit for visas under the program from 
750 to 950;
    (4) Precluding any scientist previously admitted for lawful 
permanent residence from benefits under the SSIA as amended; and
    (5) Requiring the Secretary of Homeland Security to consult with 
the Secretary of State, Secretary of Defense, Secretary of Energy, and 
other heads of appropriate agencies regarding previous experiences with 
implementation of the SSIA and any recommended changes in the 
regulations prescribed under the SSIA.

What Changes Is USCIS Making to Its Regulations?

    USCIS is amending Sec.  204.10 as follows:

8 CFR 204.10(a)

    Section 204.10(a) is amended to reflect the new sunset date of 
September 30, 2006 and numerical limit of 950 for the number of visas 
that may be allotted under section 203(b)(2)(A) of the Act (excluding 
spouses and children if accompanying or following to join).

8 CFR 204.10(b) and (c)

    Current Sec.  204.10(b) is redesignated as Sec.  204.10(c) and 
amended to address filing requirements and to specify which USCIS 
office will have jurisdiction over Form I-140s filed under the SSIA. 
New Sec.  204.10(b) will now contain the definitions governing this 
provision.

8 CFR 204.10(d)

    Current Sec.  204.10(c) is redesignated as Sec.  204.10(d) and 
addresses the priority dates of any petition filed for this 
classification.

8 CFR 204.10(e)

    Current Sec.  204.10(e) is amended to reflect new evidentiary 
requirements for petitions filed by scientists and engineers under the 
SSIA. Under the original program (SSIA 1992-1996), the regulations 
required applicants to submit documentation relating to their 
particular scientific expertise and prior work experience. This 
required documentation often proved difficult not only to obtain but 
also to assess to determine eligibility.
    Based on discussions with the Department of State, USCIS has 
determined that a more effective administration of the new program 
(SSIA 2002-2006) can be achieved by requiring each applicant to submit 
a statement, signed by the Department of State's Bureau of 
Nonproliferation, attesting to his or her qualifications or expertise 
in nuclear, chemical, biological or other high technology fields or 
verifying his or her work on such high technology defense projects. The 
Bureau of Nonproliferation has been in close contact with this group of 
scientists and with organizations that have employed them for a number 
of years and is better suited to represent the individual applicant's 
qualifications to USCIS. In addition, the Department of State's Visa 
Office usually coordinates with the Bureau of Nonproliferation and 
other appropriate agencies during the security advisory opinion process 
when a visa application involves a scientist or engineer from the 
former Soviet Union. USCIS has determined that this coordination, and 
resulting assessment by Department of State, is sufficient to meet the 
consultation requirements of the SSIA.
    Accordingly, Sec.  204.10(e) provides that the signed statement 
issued by the Department of State's Bureau of Nonproliferation will be 
considered in lieu of the evidence of qualifications previously 
required under the old program. USCIS, however, reserves the right to 
consult independently with the Secretary of Defense, Secretary of 
Energy and other appropriate agency heads on the qualifications or 
expertise of a potential applicant under the SSIA and to accept 
favorable reports from such agencies in addition to the letter from the 
Department of State, Bureau of Nonproliferation.

8 CFR 204.10(f) and (g)

    USCIS is retaining current Sec.  204.10(f) and modifying Sec.  
204.10(g) to provide that USCIS, in addition to consulting with the 
Department of State's Bureau of Nonproliferation, in its discretion may 
consult with other appropriate government agencies and use favorable 
reports from such agencies in addition to the statement from the Bureau 
of Nonproliferation.

8 CFR 204.10(h) and (i)

    Current Sec.  204.10(h) is redesignated as Sec.  204.10(i) and 
divided into two sections addressing approval and denial of petitions. 
New Sec.  204.10(h) codifies section 4(a) of the SSIA, as amended, 
which prohibits scientists previously admitted to lawful permanent 
residence from receiving benefits under the new SSIA program.

8 CFR 204.10(j)

    USCIS creates a new Sec.  204.10(j) that provides for the rejection 
and fee refund of any petition once the program sunsets or the 
numerical limits for the program have been reached.

How Can Potential Applicants Obtain a Letter From the Department of 
State Verifying Their Previous Work Experience?

    Before submitting the petition to USCIS, the applicant must obtain 
a letter from the Department of State's Bureau of Nonproliferation. 
Applicants should submit a written request to the Department of State 
indicating that they are seeking to immigrate to the United States or 
adjust status under the SSIA program and requesting verification of 
their relevant qualifications, expertise, and work experience. Written 
requests should be submitted to: Coordinator for Science Centers, 
Office of Proliferation Threat Reduction, NP/PTR, Room 3327, U.S. 
Department of State, Washington, DC 20520.
    The Bureau of Nonproliferation will review the alien's expertise 
and prior work experience and determine if the expertise and experience 
are, in fact, qualifying under the program. If the Bureau determines 
that the applicant has the requisite expertise and experience, the 
Bureau of Nonproliferation will issue a letter to that effect for 
submission with the Form I-140 visa petition.

Good Cause Exception

    The Department of Homeland Security (DHS) has determined that good 
cause exists under 5 U.S.C. 553(b)(B) to make this rule effective May 
25, 2005, for the following reasons: Section 1304 of the Foreign 
Relations Authorization Act, Fiscal Year 2003 became effective 
immediately upon enactment on September 30, 2002, and will sunset by 
September 30, 2006. The delay in publication of this interim rule for 
consideration of public comments prior to the effective date of the 
rule would only serve to further limit the remaining period within 
which qualifying scientists or engineers may file a Form I-140 petition 
for an immigrant visa (or seek adjustment of status to lawful permanent 
residence) prior to September 30, 2006. DHS also believes that pre-
promulgation comment is unnecessary because of the limited number of 
individuals who may qualify for or be affected by the SSIA (estimated 
at 500); the non-controversial nature of the implementation procedures; 
and the security interests that are facilitated by having a process in 
place for vetting scientists and engineers who might be authorized to 
work in the high-technology fields or on the defense projects that 
qualify under the SSIA program. Publication of this rule as an interim 
rule also will expedite implementation of section 1304 by

[[Page 21131]]

allowing aliens covered by the law to apply for and obtain the benefits 
available under the SSIA.
    Accordingly, DHS finds that it would be impracticable and contrary 
to the public interest to delay implementation of this rule to allow 
the prior notice and comment period normally required under 5 U.S.C. 
553(b)(B). DHS nevertheless invites written comments on this interim 
rule and will consider any timely comments in preparing the final rule.

Regulatory Flexibility Act

    DHS has reviewed this regulation in accordance with the Regulatory 
and Flexibility Act (5 U.S.C. 605(b)), and, by approving it, certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. The SSIA, as amended, is limited 
to 950 eligible independent states and Baltic scientist. Form I-140s 
generally will be filed by individual aliens, or U.S. government 
entities filing on behalf of such individuals, seeking classification 
under section 203(b)(2)(A) of the Act. These petitioners are not 
considered small entities as that term is defined in 5 U.S.C. 601(6).

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 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 Fairness 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 DHS 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 (OMB) for review.
    DHS has assessed both the costs and benefits of this rule as 
required by Executive Order 12866, section 1(b)(6) and has made a 
reasoned determination that the benefits of this regulation justify its 
costs. Briefly, that assessment is as follows: The rule will enhance 
the ability of DHS to administer this very limited program. There are 
no costs to the public associated with this rule, except the fee for 
filing the Form I-140 petition which is borne by the applicant. The 
$190 fee for the Form I-140 petition was established to cover the 
administrative costs of processing the petition. DHS estimates that 
there are approximately 500 visa numbers available under this program: 
300 unused visas from the initial SSIA program before it expired and 
200 new visas based in the increase in the numerical limit from 750 to 
950. DHS estimates that the total cost for this program will be $95,000 
(500 x $190 filing fee for the Form I-140). The program benefits the 
individual scientist-beneficiaries who gain access to the U.S. job 
market and other benefits available to permanent resident aliens. Also, 
the security of the United States is enhanced because the skills and 
knowledge of these scientists can be used within the United States 
rather than by governments or other organizations potentially inimical 
to the national security.

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, it is 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

    This interim rule requires a petitioner to submit a letter from the 
Department of State, Bureau of Nonproliferation, addressing the 
petitioner's scientific or engineering qualifications. Previously USCIS 
captured this information under the Form ETA 750B, OMB No. 44-R1301, as 
part of the evidence requirements contained in the instructions to the 
Form I-140. The State Department letter will be used in lieu of the 
Form ETA 750B. Therefore, petitioners will no longer be required to 
provide information in support of, or complete, the Form ETA 750B, and 
the burden hours associated with the Form ETA 750B for this program are 
removed. Since the letter will be generated by the Department of State 
and issued to the petitioner for submission with the Form I-140, there 
are no additional information collections. Also, there are no 
additional information collections associated with the Form I-140 (OMB 
No. 1615-0015).

List of Subjects in 8 CFR Part 204

    Administrative practice and procedure, Immigration, Reporting and 
record keeping requirements.


0
Accordingly, part 204 of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 204--IMMIGRANT PETITIONS

0
1. 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.


0
2. Section 204.10 is revised to read as follows:


Sec.  204.10  Petitions by, or for, certain scientists of the 
Commonwealth of Independent States or the Baltic states.

    (a) General. A petition to classify an alien under section 
203(b)(2) of the Act as a scientist or engineer of the eligible 
independent states of the former Soviet Union or the Baltic states must 
be filed on Form I-140, Immigrant Petition for Alien Worker. The 
petition may be filed by the alien, or anyone in the alien's behalf. 
USCIS must approve a petition filed on behalf of the alien on or before 
September 30, 2006, or until 950 petitions have been approved on behalf 
of eligible scientists, whichever is earliest.
    (b) Definitions. As used in this section the term:
    Baltic states mean the sovereign nations of Latvia, Lithuania, and 
Estonia.
    Eligible independent states and Baltic scientists means aliens:
    (1) Who are nationals of any of the independent states of the 
former Soviet Union or the Baltic states; and
    (2) Who are scientists or engineers who have expertise in nuclear, 
chemical, biological, or other high-technology field which is clearly 
applicable to the design, development, or production of ballistic 
missiles, nuclear, biological, chemical, or other

[[Page 21132]]

high-technology weapons of mass destruction, or who are working on 
nuclear, chemical, biological, or other high-technology defense 
projects, as defined by the Secretary of Homeland Security, that are 
clearly applicable to the design, development, and production of 
ballistic missiles, nuclear, biological, chemical, or other high-
technology weapons of mass destruction.
    Independent states of the former Soviet Union means the sovereign 
nations of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, 
Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and 
Uzbekistan.
    (c) Filing requirements. (1) Application form and time limits. A 
petition to classify an alien under section 203(b)(2)(A) of the Act as 
a scientist from the eligible independent states of the former Soviet 
Union or the Baltic states must be filed on Form I-140, Immigrant 
Petition for Alien Worker. The petition may be filed by the alien, or 
by anyone on the alien's behalf. Such petition must be properly filed 
with all initial evidence described in paragraph (e) of this section by 
September 30, 2006 or before the limit of 950 visas has been reached, 
whichever is earliest. To clarify that the petition is for a Soviet 
scientist, the petitioner should clearly print the words ``SOVIET 
SCIENTIST'' in Part 2 of Form I-140 and check block ``d'', indicating 
the petition is for a member of the professions holding an advanced 
degree or an alien of exceptional ability.
    (2) Jurisdiction. Form I-140 must be filed with the service center 
having jurisdiction over the alien's place of intended residence in the 
United States.
    (d) Priority date. The priority date of any petition filed for this 
classification is the date the completed, signed petition (including 
all initial evidence as defined in paragraph (e) of this section and 
the correct fee) is properly filed with the USCIS.
    (e) Initial evidence. The petition must be accompanied by:
    (1) Evidence that the alien is a national of one of the independent 
states of the former Soviet Union or one of the Baltic States as 
defined in paragraph (b) of this section. Such evidence may include, 
but is not limited to, identifying page(s) from a passport issued by 
the former Soviet Union, or by one of the independent or Baltic states; 
and
    (2) A letter from the Department of State, Bureau of 
Nonproliferation that verifies that the alien possesses expertise in 
nuclear, chemical, biological, or other high-technology field or who 
has prior or current work experience in high-technology defense 
projects which are clearly applicable to the design, development, or 
production of ballistic missiles, nuclear, biological, chemical, or 
other high-technology weapons of mass destruction and endorses the 
applicant as having exceptional ability in one or more of these fields. 
Such endorsement shall establish that the alien possesses exceptional 
ability in the relevant field.
    (f) No offer of employment required. Neither an offer of employment 
nor a labor certification is required for this classification.
    (g) Consultation with other United States Government agencies. 
USCIS may consult with other United States Government agencies, such as 
the Departments of Defense and Energy or other relevant agencies with 
expertise in nuclear, chemical, biological, or other high-technology 
defense projects. USCIS may, in its discretion, accept a favorable 
report from such agencies as evidence in addition to the documentation 
prescribed under paragraph (e) of this section.
    (h) Aliens previously granted permanent residence. No alien 
previously granted lawful permanent residence may request or be granted 
classification or any benefits under this provision.
    (i) Decision. (1) Approval. If the petition is approved and the 
beneficiary is outside the United States the applicant will be notified 
of the decision and the petition will be forwarded to the National Visa 
Center. If the beneficiary is in the United States and seeks to apply 
for adjustment of status, the petition will be retained by USCIS.
    (2) Denial. If the petition is denied, the petitioner will be 
advised of the decision and of the right to appeal in accordance with 8 
CFR part 103.
    (j) Rejection. Petitions filed under this provision on or after 
September 30, 2006 or after the limit of 950 visas has been reached 
will be rejected and the fee refunded.

    Dated: April 15, 2005.
Michael Chertoff,
Secretary.
[FR Doc. 05-8176 Filed 4-22-05; 8:45 am]
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