Federal Register, Volume 73 Issue 240 (Friday, December 12, 2008)

[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Rules and Regulations]
[Pages 75540-75564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29277]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 212, 214, 245 and 299

[CIS No. 2134-01; DHS Docket No. USCIS-2006-0067]
RIN 1615-AA60

Adjustment of Status to Lawful Permanent Resident for Aliens in T
or U Nonimmigrant Status

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Department of Homeland Security is amending its
regulations to permit aliens in lawful T or U nonimmigrant status to
apply for adjustment of status to lawful permanent resident. T
nonimmigrant status is available to aliens who are victims of a severe
form of trafficking in persons and who are assisting law enforcement in
the investigation or prosecution of the acts of trafficking. U
nonimmigrant status is available to aliens who are victims of certain
crimes and are being helpful to the investigation or prosecution of
those crimes. This rule provides that family members of a principal T
or U nonimmigrant granted or seeking adjustment of status may also
apply for adjustment of status to lawful permanent resident. This rule
also provides for adjustment of status or approval of an immigrant
petition for certain family members of U applicants who were never
admitted to the United States in U nonimmigrant status.

DATES: Effective date: This interim rule is effective January 12, 2009.
Comment date: Written comments must be submitted on or before
February 10, 2009 in order to be assured of consideration.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2006-0067, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department

[[Page 75541]]

of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor,
Washington, DC 20529. To ensure proper handling, please reference DHS
Docket No. USCIS-2006-0067 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)
272-8377.

FOR FURTHER INFORMATION CONTACT: Laura Dawkins, Office of Policy and
Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Second Floor,
Washington, DC 20529, telephone (202) 272-8350.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. Comments that will provide the most assistance to U.S.
Citizenship and Immigration Services in developing these procedures
will refer to a specific portion of the rule, suggest changes to the
regulation text, discuss the reason for the recommended change, and
include data, information, or authority that support the recommended
change.
Instructions: All submissions received should include the agency
name and Docket No. USCIS-2006-0067 for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov,
including e-mail addresses and any other personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529 during
normal business hours by contacting the information contact listed
above.

II. Background and Legislative Authority

This rule implements the Victims of Trafficking and Violence
Protection Act of 2000 (VTVPA), Public Law No. 106-386, 114 Stat. 1464
(Oct. 28, 2000), as amended, to permit aliens in lawful T or U
nonimmigrant status to apply for adjustment of status to lawful
permanent resident.
Aliens who are victims of a severe form of trafficking in persons
and who have complied with any reasonable requests for assistance in
the Federal, State, or local investigation or prosecution of acts of
trafficking, or the investigation of a crime where acts of trafficking
are at least one central reason for the commission of that crime, may
be admitted to the United States under a ``T'' nonimmigrant
classification or ``T visa.'' See Immigration and Nationality Act of
1952, as amended (INA or Act), sections 101(a)(15)(T) and 214(o), 8
U.S.C. 1101(a)(15)(T) and 1184(o). The Department of Justice (DOJ),
through the former Immigration and Naturalization Service (INS),
published regulations implementing the ``T'' nonimmigrant provisions in
2002. 67 FR 4784 (Jan. 31, 2002). Those regulations became effective on
March 4, 2002.
Aliens who are victims of specified criminal activity, including
trafficking, who assist government officials in investigating or
prosecuting those crimes may be admitted to the United States under a
``U'' nonimmigrant classification or ``U visa.'' See INA sections
101(a)(15)(U) and 214(p); 8 U.S.C. 1101(a)(15)(U) and 1184(p). DHS
published regulations implementing the provisions creating the U
nonimmigrant classification on September 17, 2007. 72 FR 53014. The
``U'' regulations became effective October 17, 2007.
This interim final rule implements the provisions of the Act
permitting T and U nonimmigrant aliens to apply for an adjustment
status to that of lawful permanent resident. See INA sections 245(l),
(m); 8 U.S.C. 1255(l), (m). This rule implements the eligibility and
application requirements for such aliens to seek adjustment of status
to lawful permanent resident.

III. Aliens in T Nonimmigrant Status Seeking Adjustment of Status Under
Section 245(l) of the Act

A. Eligibility Requirements for T Nonimmigrants Seeking Adjustment of
Status

This rule promulgates a new 8 CFR 245.23 to list the eligibility
requirements for adjustment of status for T-1 nonimmigrants and their
family members in lawful T-2, T-3, T-4, and T-5 status under section
245(l) of the Act, 8 U.S.C. 1255(l).
1. Admitted as a T Nonimmigrant
All applicants for adjustment of status under section 245(l) of the
Act must have been lawfully admitted to the United States as a T
nonimmigrant and must continue to hold such status at the time of
application. New 8 CFR 245.23(a)(2); 245.23(b)(2).
2. Physical Presence for Requisite Period
T-1 nonimmigrant applicants for adjustment of status under section
245(l) of the Act must have been physically present in the United
States for either: (1) A continuous period of at least 3 years since
the date of admission as a T-1 nonimmigrant; or (2) a continuous period
during the investigation or prosecution of the acts of trafficking,
provided that the Attorney General has determined the investigation or
prosecution is complete, whichever period is less. New 8 CFR
245.23(a)(3); see INA sec. 245(l)(1)(A); 8 U.S.C. 1255(l)(1)(A). With
respect to the requisite continuous physical presence period, this rule
provides that an applicant's date of admission as a T-1 nonimmigrant is
the date that the applicant was first admitted as a T-1 nonimmigrant.
New 8 CFR 245.23(a)(3). For example, if the applicant traveled outside
the United States after being admitted as a T-1 nonimmigrant and
reentered using an advance parole document issued under 8 CFR
245.2(a)(4)(ii)(B), the date that the applicant was first admitted as a
T-1 nonimmigrant will be the date of admission used by USCIS for
determining whether the applicant has satisfied the physical presence
requirement, regardless of how the applicant's Form I-94 ``Arrival-
Departure Record'' is annotated upon his or her reentry (e.g., as ``T
nonimmigrant'' or ``parolee''). New 8 CFR 245.23(a)(3);
245.23(e)(2)(i).
However, this rule also provides that an applicant who travels
outside of the United States for a single period in excess of 90 days
or 180 days in the aggregate will not maintain the continuous physical
presence required to establish eligibility for adjustment. New 8 CFR
245.23(a)(3); see INA sec. 245(l)(3), 8 U.S.C. 1255(l)(3). Unlike for
U-1 nonimmigrants, the Act does not permit T-1 nonimmigrants to exceed
the 90-day or 180-day limitation to assist in an investigation or
prosecution or pursuant to an official certification justifying the
excessive absence. Compare INA sec. 245(l)(3), 8 U.S.C. 1255(l)(3),
with INA sec. 245(m)(2), 8 U.S.C. 1255(m)(2).
3. Admissible at Time of Adjustment
All applicants for adjustment of status under section 245(l) of the
Act must be admissible to the United States under the Act, or otherwise
have been granted a waiver by USCIS of any applicable ground of
inadmissibility, at the time of

[[Page 75542]]

examination for adjustment. New 8 CFR 245.23(a)(4), 245.23(b)(4),
245.23(c)(2) and (3); see INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2); INA
sec. 212(a), 8 U.S.C. 1182(a) (listing grounds of inadmissibility and
available waivers).
4. Good Moral Character
T-1 nonimmigrant applicants for adjustment of status under section
245(l) of the Act must establish that they have been persons of good
moral character since first being lawfully admitted as a T-1
nonimmigrant and until USCIS completes the adjudication of their
applications for adjustment of status. New 8 CFR 245.23(a)(5); see INA
sec. 245(l)(1)(B), 8 U.S.C. 1255(l)(1)(B). However, section 101(f) of
the Act, 8 U.S.C. 1101(f), precludes establishment of good moral
character if, ``during the period for which good moral character is
required to be established,'' an applicant falls into certain
enumerated categories. The list of enumerated categories, however, is
not exclusive. Section 101(f) of the Act also provides that persons who
do not fall within any of the enumerated categories may also be found
to lack good moral character.
Section 101(f)(3) of the Act specifically bars aliens who have
engaged in prostitution or commercialized vice (described in section
212(a)(2)(D) of the Act, 8 U.S.C. 1182(a)(2)(D)), from establishing
good moral character ``during the period for which good moral character
is required to be established.'' Id. The period for which good moral
character must be established under section 212(a)(2)(D) of the Act is
10 years from the date of application, but the period for which good
moral character must be established under section 245(l) of the Act is
a continuous period of at least 3 years since the date of admission or
during the period of investigation or prosecution of the acts of
trafficking, whichever period of time is less. The interplay of these
provisions creates ambiguity and requires interpretation. After
considering the necessary interplay between section 101(f)(3) of the
Act, the 10-year temporal scope of section 212(a)(2)(D) of the Act, and
the more limited period during which good moral character must be shown
for purposes of adjustment of status under section 245(l) of the Act,
USCIS believes, based on the purpose and history of the statute, that
the more limited period is applicable. For example, if an applicant
engaged in prostitution or commercialized vice after he or she was
first lawfully admitted as a T-1 nonimmigrant, USCIS will consider the
applicant to be statutorily precluded under section 101(f)(3) of the
Act from establishing that he or she is a person of good moral
character. If, on the other hand, the applicant engaged in prostitution
or commercialized vice before he or she was first lawfully admitted as
a T-1 nonimmigrant (which in many cases will be related to the
trafficking of that individual), USCIS will not consider the applicant
to be statutorily precluded under section 101(f)(3) of the Act from
establishing that he or she is a person of good moral character because
the applicant's activities did not occur during the period for which
good moral character is required to be established for purposes of
section 245(l) of the Act. This interpretation is consistent with the
primary goal of the statute, which is to provide humanitarian
assistance to victims who are assisting law enforcement in the
investigation or prosecution of their traffickers. In construing the
interplay between the relevant statutory provisions, the proper course
is to adopt that sense of words which best harmonizes with the context,
and then promotes in the fullest manner the policy and objects of
Congress. United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396 (1868);
see generally 2A C. Sands, Sutherland on Statutory Construction sec.
46.05 (rev. 7th ed. 2008). For example, in cases in which an applicant
was forced into sexual slavery or prostitution prior to being granted
T-1 nonimmigrant status, it would be contrary to the purpose of the
statute to prevent the applicant from showing good moral character for
purposes of adjusting status to lawful permanent resident because he or
she had engaged in prostitution within 10 years of the date of the
application for adjustment of status, but before he or she was granted
T-1 nonimmigrant status.
An applicant who is under 14 years of age is generally presumed to
be a person of good moral character and is not required to submit
evidence of good moral character. However, if there is reason to
believe that an applicant who is under 14 years of age may lack good
moral character, USCIS may require evidence of good moral character.
New 8 CFR 245.23(g)(4).
5. Assistance in the Investigation or Prosecution
T-1 nonimmigrant applicants for adjustment of status under section
245(l) of the Act must establish either (i) that during the requisite
period of continuous physical presence they have complied with any
reasonable request for assistance in an ongoing Federal, State, or
local investigation or prosecution of the acts of trafficking, as
defined in 8 CFR 214.11(a), by submitting a document issued by the
Attorney General or his designee certifying that he or she has complied
with any reasonable requests for assistance (new 8 CFR 245.23(d),
245.23(f)(1)), or (ii) that they would suffer extreme hardship
involving unusual and severe harm upon removal from the United States
(new 8 CFR 245.23(d), 245.23(f)(2)).\1\ See INA sec. 245(l)(1)(C), 8
U.S.C. 1255(l)(1)(C).
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\1\ Section 245(l)(1)(C)(i) of the Act requires the Attorney
General to determine whether T-1 nonimmigrant applicants have
complied with any reasonable request for assistance in the
investigation or prosecution of acts of trafficking. This rule does
not address the Attorney General's authority to adjust status under
section 245(l)(1)(C)(i) of the Act.
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Although the T nonimmigrant provisions at section 101(a)(15)(T) of
the Act, 8 U.S.C. 1101(a)(15)(T), exempt children under the age of 18
from the requirement to comply with reasonable requests for assistance,
no similar age-related exemption is included in the adjustment
provisions contained in section 245(l) of the Act, 8 U.S.C. 1255(l).
Accordingly, this rule provides that to establish eligibility for
adjustment of status, T-1 principal applicants under the age of 18 must
either show that they have, since being lawfully admitted as a T
nonimmigrant, complied with any reasonable request for assistance in
the investigation or prosecution of the acts of trafficking, or meet
the alternative ``extreme hardship'' requirement of section
245(l)(1)(C)(ii) of the Act. New 8 CFR 245.23(a)(6)(ii). When
evaluating the reasonableness of a request for assistance made to a
minor since admission as a T nonimmigrant, USCIS will consider the
previous application of the exemption at section
101(a)(15)(T)(i)(III)(bb) of the Act.
6. Extreme Hardship Involving Unusual and Severe Harm
As noted above, section 245(l)(1)(C) of the Act, 8 U.S.C.
1255(l)(1)(C), permits T-1 applicants for adjustment of status the
alternative of establishing they would suffer extreme hardship
involving unusual and severe harm upon removal, in lieu of establishing
assistance in the investigation or prosecution. This rule utilizes
existing extreme hardship standards set forth at 8 CFR 214.11(i), which
were established in the January 31, 2002, interim T nonimmigrant status
rule. New 8 CFR 245.23(a)(6)(ii), 245.23(f)(2). These standards provide
that extreme hardship involving unusual and severe harm may not be
based upon current or future economic detriment, or the lack of or
disruption to social or economic

[[Page 75543]]

opportunities. Both traditional extreme hardship factors and factors
associated with having been a victim of a severe form of trafficking in
persons may be considered. Factors such as serious physical or mental
illness of the applicant that necessitates medical or psychological
attention not reasonably available in the foreign country, the nature
and extent of the physical and psychological consequences of severe
forms of trafficking in persons, and the likelihood that the trafficker
or another acting on behalf of the trafficker in the foreign country
would severely harm the applicant may be relevant to such a
determination.

B. Application Procedures for T Nonimmigrants Seeking Adjustment of
Status

This rule clarifies that the generally applicable adjustment of
status provisions in 8 CFR 245.1 and 245.2 do not apply to applications
for adjustment of status under the new 8 CFR 245.23. The adjustment
provisions contained in section 245(l) of the Act, 8 U.S.C. 1255(l),
are stand-alone provisions and not simply a variation on the general
adjustment rules contained in section 245(a) of the Act, 8 U.S.C.
1255(a). New 8 CFR 245.23(k).
1. Filing the Application To Request Adjustment of Status
This rule requires that each applicant for adjustment of status
under section 245(l) of the Act, 8 U.S.C. 1255(l), submit a complete
application to USCIS: Form I-485, Application to Register Permanent
Residence or Adjust Status, filed in accordance with the form
instructions; applicable fees or application for a fee waiver; and any
additional evidence to fully support the application. New 8 CFR
245.23(a)(1), 245.23(b)(3), 245.23(e). Derivative T nonimmigrants may
not submit an application for adjustment of status before the principal
T-1 alien files an application for adjustment of status. New 8 CFR
245.23(b)(1).
2. Timely Filing
Aliens who properly apply for adjustment of status in accordance
with 8 CFR 245.23 shall remain eligible for adjustment of status. New 8
CFR 214.11(p)(2). T nonimmigrants who fail to apply for adjustment of
status during the prescribed period will lose T nonimmigrant status at
the end of the 4-year period unless that status is extended beyond 4
years because a Federal, State, or local law enforcement official,
prosecutor, judge, or other authority investigating or prosecuting
activity relating to human trafficking certifies that the presence of
the alien in the United States is necessary to assist in the
investigation or prosecution of such activity. New 8 CFR 214.11(p)(1);
see INA sec. 214(o)(7)(B), 8 U.S.C. 1184(o)(7)(B).
In 2006, Congress altered several key aspects of the T nonimmigrant
provisions and the related adjustment of status requirements,
necessitating changes to 8 CFR 214.11(p). Congress extended the
duration of status for a T nonimmigrant from 3 to 4 years and made T
nonimmigrant status renewable beyond the 4-year maximum duration based
on a certification of law enforcement necessity. Public Law No. 109-
162, sec. 821(a), 119 Stat. 2960 (Jan. 5, 2006) (amending INA sec.
214(o)(7), 8 U.S.C. 1184(o)(7)). Without such renewal, however, the
statute is clear that T nonimmigrant status may not extend beyond 4
years even if the individual has properly applied for adjustment of
status.
This rule provides a transition rule for those T nonimmigrants who
accrued 4 years in status prior to promulgation of this rule. Section
214(o)(7) of the Act, 8 U.S.C. 1184(o)(7), prescribes a maximum
duration in T nonimmigrant status of 4 years, unless the T nonimmigrant
receives a law enforcement certification stating that the T
nonimmigrant's presence is necessary to assist in the investigation or
prosecution. Therefore, T nonimmigrants who already accrued 4 years in
status might not continue to hold such status at the time of
application for adjustment of status and would otherwise be ineligible
for adjustment of status. USCIS is therefore creating a transition rule
to allow these aliens, if otherwise eligible, to adjust status if they
file a complete application within 90 days of promulgation of this
rule. New 8 CFR 245.23(a)(2)(ii).
Congress also allowed certain applicants to apply for adjustment of
status before having accrued 3 years of continuous physical presence in
valid T nonimmigrant status. Public Law No. 109-162, sec. 803(a)(1)(B)
(amending INA sec. 245(l)(1)(A), 8 U.S.C. 1255(l)(1)(A)). This rule
revises 8 CFR 214.11(p)(2) to implement the statutory changes.
Applicants for adjustment of status under section 245(l) of the Act
may submit an application for employment authorization (Form I-765,
Application for Employment Authorization, in accordance with the form
instructions) on the basis of 8 CFR 274a.12(c)(9).
3. Initial Evidence
All applicants for adjustment of status under section 245(l) of the
Act must submit all required ``initial evidence'' or supporting
documentation with the Form I-485. 8 CFR 103.2(b)(1). Otherwise, USCIS
will deem the application to be incomplete. If all required initial
evidence is not submitted with the application or the evidence does not
demonstrate statutory eligibility, USCIS may deny the application for
lack of initial evidence, for ineligibility, or for both reasons. In
the alternative, USCIS may request that the missing initial evidence be
submitted within a specified period of time. 8 CFR 103.2(b)(8).
a. Evidence That Applicant Was Admitted in T Nonimmigrant Status
All applicants must submit a copy of the Form I-797, Notice of
Action, granting T nonimmigrant status, with the attached Form I-94
Arrival/Departure Record, or a copy of the applicant's passport with a
T nonimmigrant visa along with a copy of the Form I-94 Arrival/
Departure Record evidencing that the principal alien was admitted into
the United States in T nonimmigrant status. New 8 CFR 245.23(e)(2)(i).
b. Evidence of Continuous Physical Presence
T-1 nonimmigrant applicants may present as evidence of continuity
of physical presence in the United States one or more documents 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 authorized representative of the issuing authority if
the document would normally contain such indicia. New 8 CFR
245.23(e)(2)(i). An applicant may use college transcripts or employment
records, including certification of the filing of Federal or state
income tax returns, to show that an applicant attended school or worked
in the United States throughout the requisite continuous physical
presence period. The applicant may also present documents showing
installment periods, such as a series of monthly rent receipts or
utility bills that cover the same period, to establish continuous
physical presence during that period. See generally 8 CFR 245.22.
An applicant need not submit documentation to show presence on
every single day of the requisite continuous physical presence period,
but there should be no significant chronological gaps in documentation.
Any absence from the United States, even for one day, is significant
for purposes of eligibility because of the

[[Page 75544]]

aggregate 180-day restriction on absences from the United States.
Furthermore, if an applicant is aware of documents already
contained in his or her DHS file that establish physical presence, he
or she may merely list those documents, giving the type and date of the
document. Examples of such documents include a written copy of a sworn
statement given to a DHS officer, a document from the law enforcement
agency attesting to the fact that the T-1 nonimmigrant status holder
has continued to comply with requests for assistance, the transcript of
a formal hearing, or a Record of Deportable/Inadmissible Alien, Form I-
213.
To facilitate USCIS' evaluation of an applicant's physical presence
in the United States, this rule provides that an applicant must submit
a copy of his or her passport (or equivalent travel document) and
documentation regarding any departure from the United States and re-
entry, including the dates of departure; time, manner, and place of
return. New 8 CFR 245.23(e)(2)(i).
A signed statement from the T-1 applicant attesting to continuous
physical presence alone will not be sufficient to establish this
eligibility requirement. New 8 CFR 245.23(e)(2)(i). If documentation to
establish continuous physical presence is not available, the applicant
must explain why in an affidavit and provide additional affidavits from
others with first-hand knowledge who can attest to the applicant's
continuous physical presence by specific facts. Id.
This rule further provides that applicants seeking to meet the
alternative continuous physical presence requirement at section
245(l)(1)(A) of the Act (less than 3 years of continuous physical
presence while in T-1 nonimmigrant status if the investigation or
prosecution is complete) must submit a document signed by the Attorney
General, or his designee, as an attachment to the Form I-485,
Supplement E, stating that the investigation or prosecution is
complete. New 8 CFR 245.23(e)(2)(i)(B).
c. Evidence of Admissibility
Applicants who are inadmissible by reason of a ground not waived in
connection with the prior application for T nonimmigrant status must
file an application for a waiver of inadmissibility under section
245(l)(2) of the Act (Form I-601, Application for Waiver of Grounds of
Excludability) with the application to adjust status. New 8 CFR
212.18(a). A separate fee for Form I-601 or a fee waiver request must
be remitted with the form. This rule clarifies that Form I-601 is used
for this purpose and that a fee is charged for waiver of any ground of
inadmissibility. 8 CFR 103.7(b)(1).
Applicants who are inadmissible on security related grounds (INA
sec. 212(a)(3), 8 U.S.C. 1182(a)(3)), as international child abductors
(INA sec. 212(a)(10)(C), 8 U.S.C. 1182(a)(10)(C)), or as former
citizens who renounced citizenship to avoid taxation (INA sec.
212(a)(10)(E), 8 U.S.C. 1182(a)(10)(E)), are not eligible for waivers
of inadmissibility under section 245(l)(2) of the Act. New 8 CFR
245.23(c)(1); see INA sec. 245(l)(2)(B), 8 U.S.C. 1255(l)(2)(B).
USCIS may waive the health-related (INA sec. 212(a)(1), 8 U.S.C.
1182(a)(1)) and public charge (INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4))
grounds of inadmissibility if USCIS determines that a waiver is in the
national interest as a matter of discretion. See INA sec. 245(l)(2)(A).
USCIS understands the waiver of the public charge ground in light of
two other provisions of law, Pub. L. 106-386, sections 107(b)(1)(A) and
(E), 114 Stat. 1464 (Oct. 28, 2000), which provide that victims of a
severe form of trafficking in persons who are over 18 years of age may
be certified by the Secretary of Health and Human Services (HHS) to
receive certain benefits and services ``to the same extent as an alien
who is admitted to the United States as a refugee.'' Victims of a
severe form of trafficking in persons who are under 18 are also
eligible for services, including cash assistance, to the same extent as
refugees, but they do not need to be certified by HHS. Refugees are
provided with special humanitarian benefits because of their vulnerable
circumstances, and are exempt from virtually every aspect of the public
charge determination. Congress has recognized that victims of a severe
form of trafficking in persons are in much the same position as
refugees, and therefore provided specific authority for DHS to exempt
them from the public charge ground of inadmissibility when applying for
T nonimmigrant status. See INA sec. 212(d)(13)(A); 8 U.S.C.
1182(d)(13)(A). However, this statutory exemption does not apply to
adjustment of status. Consequently, at that stage, applicants must
either demonstrate that they are not likely to become public charges
under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), or must apply
for a waiver of that ground of inadmissibility under section
245(l)(2)(A) of the Act, 8 U.S.C. 1255(l)(2)(A). In evaluating waiver
requests, if an applicant is receiving or has received public benefits
as a trafficking victim, USCIS will not consider that fact as
conclusive evidence of the likelihood the applicant will become a
public charge.
USCIS also may waive any other ground of inadmissibility, but only
if USCIS determines that a waiver is in the national interest and that
the activities rendering the applicant inadmissible were caused by or
were incident to the principal alien's trafficking victimization. See
INA sec. 245(l)(2)(B). Applicants seeking such a waiver must establish
that the activities rendering the applicants inadmissible were caused
by or incident to their trafficking victimization, that it is in the
national interest to waive the ground(s) of inadmissibility, and that
the waiver is warranted as a matter of discretion. New 8 CFR
212.18(b)(3).
Under section 212(a)(9)(B)(iii) of the Act, 8 U.S.C. 1182(a)(9),
applicants may be exempted from the unlawful presence ground of
inadmissibility if they can establish that their victimization was ``at
least one central reason'' for their unlawful presence in the United
States. See INA sec. 212(a)(9)(B)(iii)(V), 8 U.S.C.
1182(a)(9)(B)(iii)(V). This rule clarifies that to be a ``central
reason,'' the victimization need not be the sole reason for the
unlawful presence, but the nexus between the victimization and the
unlawful presence must be more than tangential, incidental, or
superficial. New 8 CFR 245.23(c)(3); cf. Matter of J-B-N- & S-M-, 24
I&N 208, 214 (BIA 2007) (interpreting the ``one central reason''
standard in the asylum context). An applicant requesting only an
exemption from section 212(a)(9)(B)(B)(iii)(V) of the Act need not file
a Form I-601. New 8 CFR 245.23(c)(3). The applicant, however, must
submit with his or her Form I-485 evidence sufficient to demonstrate
that the victimization suffered was a central reason for the unlawful
presence in the United States. Id.
As discussed below, applicants whose adjustment of status
applications are denied, including the denial of a request for
exemption from the application of section 212(a)(9)(B) of the Act, and
the denial of an application for a waiver of inadmissibility (Form I-
601) may appeal to the USCIS Administrative Appeals Office (AAO). New 8
CFR 245.23(i).
This rule also clarifies that USCIS may revoke its approval of a
waiver of inadmissibility. New 8 CFR 212.18(d); see also 8 CFR 103.5.
d. Evidence of Good Moral Character
Initial evidence of a T-1 nonimmigrant applicant's good moral
character is the applicant's affidavit attesting to his or her good
moral

[[Page 75545]]

character, accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in the United
States in which the applicant has resided for six or more months during
the requisite period in T-1 nonimmigrant status. New 8 CFR 245.23(g).
If police clearances, criminal background checks, or similar reports
are not available for some or all locations, the applicant may include
an explanation and submit other evidence with his or her affidavit. Id.
A T-1 nonimmigrant applicant who is under 14 years of age is
generally presumed to be a person of good moral character and is not
required to submit evidence of good moral character. However, if USCIS
has reason to believe that an applicant who is under 14 years of age
may lack good moral character, USCIS may require evidence of good moral
character. Id.
e. Evidence of Assistance in the Investigation or Prosecution
To meet the ``assistance'' requirement, T-1 applicants must submit
a document signed by the Attorney General or his designee certifying
that he or she has complied with any reasonable requests for
assistance. New 8 CFR 245.23(d), 245(f)(1).
f. Evidence of Extreme Hardship Involving Unusual and Severe Harm
In lieu of showing continued compliance with requests for
assistance, T-1 applicants may establish that they would suffer extreme
hardship involving unusual and severe harm upon removal from the United
States. Such hardship determinations will be evaluated on a case-by-
case basis, in accordance with the factors described in 8 CFR
214.11(i). No particular piece of evidence will guarantee a finding
that extreme hardship involving unusual and severe harm would result if
the applicant is removed from the United States. To minimize the burden
of submitting voluminous documentary evidence and to streamline the
adjudication of the adjustment application, this rule provides that
where the basis for the hardship claim represents a continuation of the
hardship claimed in the previously approved application for T
nonimmigrant status, the applicant need not re-document the entire
hardship claim, but instead may submit evidence demonstrating that the
previously-established hardship is ongoing. New 8 CFR 245.23(f)(2).
However, in reaching its decision regarding hardship under this
section, USCIS is not bound by its previous hardship determination made
under 8 CFR 214.11(i). Id.
4. Additional Requirements for Derivative Family Members
Derivative family members may apply for adjustment of status under
section 245(l)(1) provided the T-1 principal applicant meets the
eligibility requirements for adjustment of status and the T-1 principal
applicant's adjustment application has been approved, is currently
pending, or is concurrently filed. New 8 CFR 245.23(b).
As with T-1 principal applicants, to be eligible for adjustment of
status under section 245(l) of the Act, derivative family members must
be admissible to the United States under the Act, or otherwise have
been granted a waiver by USCIS of any applicable ground of
inadmissibility, at the time of examination for adjustment. New 8 CFR
245.23(a)(4), 245.23(b)(4), 245.23(c)(2) and (3); see INA sec.
245(l)(2), 8 U.S.C. 1255(l)(2); INA sec. 212(a), 8 U.S.C. 1182(a).
Section 245(l)(2)(B) of the Act also permits USCIS to waive any ground
of inadmissibility that may be applicable to a derivative family
member, except for the grounds related to national security,
international child abduction, and former citizens who renounced
citizenship to avoid taxation. Such a waiver may be granted if USCIS
determines that it is in the national interest to do so and that the
activities rendering the derivative family member inadmissible were
caused by or were incident to the T-1 principal alien's victimization.
See INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2). A waiver application for a
derivative family member will be adjudicated in accordance with new 8
CFR 212.18.
5. Evidence Relating to Discretion
Consistent with all of the other adjustment of status provisions,
section 245(l) of the Act makes adjustment of status to that of a
lawful permanent resident a discretionary benefit. To enable USCIS to
determine whether to exercise discretion favorably, this rule provides
that all T adjustment applicants have the burden of showing that
discretion should be exercised in their favor. New 8 CFR 245.23(e)(3).
Generally, favorable factors such as family ties, hardship, and length
of residence in the United States may be sufficient to merit a
favorable exercise of administrative discretion. However, where adverse
factors are present, the applicant will need to offset these factors by
showing sufficient mitigating equities. This rule permits applicants to
submit information regarding any mitigating factors they wish to be
considered. Id. Depending on the nature of an applicant's adverse
factors, the applicant may be required to clearly demonstrate that the
denial of adjustment of status would result in exceptional and
extremely unusual hardship. Moreover, depending on the gravity of the
alien's adverse factors, such a showing might still be insufficient.
Id. See Matter of Jean, 23 I&N Dec. 373, 383-384 (A.G. 2002), aff'd
Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006). See also Pinentel v.
Mukasey, 530 F.3d 321 (5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991
(9th Cir. 2007). For example, only the most compelling positive factors
would justify a favorable exercise of discretion in cases where the
applicant has committed or been convicted of a serious violent crime, a
crime involving sexual abuse committed upon a child, or multiple drug-
related crimes, or where there are security- or terrorism-related
concerns. Id.
6. Application and Biometric Services Fees
The fee for filing an Application to Register Permanent Residence
or Adjust Status (Form I-485) is listed at 8 CFR 103.7(b). USCIS
recognizes that some applicants for adjustment of status under section
245(l) of the Act may be unable to pay the full application fee.
Applicants who are able to show that they are financially unable to pay
the application fee may submit an application for a fee waiver as
outlined in 8 CFR 103.7(c). This rule also permits a fee waiver for the
Form I-601 fee. The decision whether to grant a fee waiver lies within
the sole discretion of USCIS. Further guidance on fee waivers can be
found on the USCIS Web site currently at http://www.uscis.gov/feewaiver.
In addition to the filing fee for the Form I-485 and Form I-601, if
applicable, applicants will have to submit the established fee for
biometric services, or fee waiver request, for each person ages 14
through 79 inclusive with each application. This fee can also be found
at 8 CFR 103.7(b).

C. Traveling While Application for Adjustment of Status Is Pending

T nonimmigrants applying for adjustment of status, and who are not
in removal, exclusion, or deportation proceedings, must follow the
generally applicable rule that an applicant with a pending adjustment
of status application must obtain advance parole from USCIS. New 8 CFR
245.23(j); 8 CFR 245.2(a)(4)(ii)(B). Advance parole can be requested by
completing and filing Form I-131, Application for Travel Document, in
accordance with the instructions on the form, or any other appropriate
form, before departing

[[Page 75546]]

the United States. Id. If an applicant fails to acquire advance parole
prior to departure, USCIS will deem the application for adjustment of
status abandoned as of the moment of departure from the United States.
If the adjustment of status application of such an individual is
subsequently denied, he or she will be treated as an applicant for
admission subject to sections 212 and 235 of the Act. Id. If a T
nonimmigrant applying for adjustment of status is in removal,
exclusion, or deportation proceedings, USCIS will deem the application
for adjustment of status abandoned as of the moment of the applicant's
departure from the United States if the applicant failed to acquire
advance parole prior to departure. New 8 CFR 245.23(i); 8 CFR
245.2(a)(4)(ii)(A).

D. Decisions on Applications Under Section 245(l) of the Act

1. Annual Limitation on the Number of Adjustments of T-1 Nonimmigrants
USCIS may adjust the status of no more than 5,000 T-1 principal
aliens in a given fiscal year. See INA sec. 245(l)(4)(A), 8 U.S.C.
1255(l)(4)(A). This numerical limitation does not apply to spouses,
children, parents, and unmarried siblings in T-2, T-3, T-4, and T-5
status who seek adjustment of status as derivatives. See INA sec.
245(l)(4)(B), 8 U.S.C. 1255(l)(4)(B).
USCIS will adjudicate applications in the order in which they are
received. Once the numerical limit has been reached in a particular
fiscal year, all pending and subsequently received applications will
continue to be reviewed in the normal process to determine eligibility.
However, USCIS will not approve adjustment of status prior to the
beginning of the next fiscal year and not until a number under the cap
becomes available. New 8 CFR 245.23(l)(2). USCIS will place eligible
applicants who are not granted adjustment of status due solely to the
numerical limit on a waiting list and notify the applicants of that
placement. Id. Applicants on the waiting list will be given priority in
the following fiscal year based on the date the application was
properly filed. Id.
2. Decisions on Applications
USCIS will notify an applicant in writing of its decision on the
adjustment of status and any applicable waiver application. New 8 CFR
245.23(h). If the application is approved, USCIS will issue a notice of
approval, instructing the applicant to go to a local USCIS office or an
Application Support Center to complete Form I-89, which collects the
necessary information to produce the Form I-551 (Alien Registration
Receipt Card or ``green card''). The notice of approval will also
inform the applicant how to obtain temporary evidence of lawful
permanent resident status. Upon approval of an application for
adjustment of status, USCIS will record the alien's admission as a
lawful permanent resident as of the date of such approval. See INA sec.
245(l)(5), 8 U.S.C. 1255(l)(5).
If the application for adjustment of status is denied, the
applicant will be notified in writing of the reasons for the denial and
of the right to appeal the decision to the USCIS Administrative Appeals
Office. New 8 CFR 245.23(i). Because derivative family members'
applications are dependent upon approval of the principal applicant's
adjustment application, this rule also provides that denial of the T-1
principal applicant's application will result in the automatic denial
of a derivative family member's application. Id.

IV. Aliens in U Nonimmigrant Status Adjusting Status Under Section
245(m) of the Act

A. Eligibility Requirements for U Nonimmigrants Seeking Adjustment of
Status

This rule promulgates new 8 CFR 245.24 to list the eligibility
requirements for adjustment of status for U-1 nonimmigrants and their
family members in lawful U-2, U-3, U-4, and U-5 nonimmigrant status
under section 245(m) of the Act, 8 U.S.C. 1255(m).
1. Admitted as a U Nonimmigrant
All applicants for adjustment of status under section 245(m) of the
Act must have been lawfully admitted to the United States in U
nonimmigrant status and must continue to hold such status at the time
of the application. New 8 CFR 245.24(b)(2).
This rule provides a transition rule for those aliens who accrued 4
years or more in U interim relief status prior to promulgation of this
rule. Section 214(p)(6) of the Act, 8 U.S.C. 1184(p)(6), prescribes a
maximum duration in U nonimmigrant status of 4 years, unless the U
nonimmigrant receives a law enforcement certification stating that the
U nonimmigrant's presence is necessary to assist in the investigation
or prosecution. Title 8 CFR 214.14(c)(6) provides that aliens with U
interim relief status whose Form I-918, Petition for U Nonimmigrant
Status, is approved will be accorded U nonimmigrant status as of the
date that a request for U interim relief was initially approved.
Therefore, aliens who already accrued 4 years in U interim relief
status might not continue to hold such status at the time of
application for adjustment of status and would otherwise be ineligible
for adjustment of status. USCIS is therefore creating a transition rule
to allow these aliens, if otherwise eligible, to apply to adjust status
within 120 days of approval of the Form I-918. New 8 CFR
245.24(b)(2)(ii). Recipients of U interim relief may apply for
adjustment of status after 4 years in U interim relief status if they
have previously filed a complete Form I-918. Id. If the Form I-918 is
subsequently approved, USCIS will then adjudicate the pending
adjustment application. USCIS believes that this transition rule will
allow applicants to remain eligible to adjust status and will not
penalize those applicants with more than 4 years in U interim relief
status.
2. Physical Presence for Requisite Period
All applicants for adjustment of status under section 245(m) of the
Act must have maintained continuous physical presence in the United
States for at least 3 years since the date of admission as a U
nonimmigrant. New 8 CFR 245.24(b)(3); see INA sec. 245(m)(1)(A), 8
U.S.C. 1255(m)(1)(A). Applicants who have departed from the United
States for any period in excess of 90 days or for any periods exceeding
180 days in the aggregate shall not be considered to have maintained
continuous physical presence. New 8 CFR 245.24(a)(1); see INA sec.
245(m)(2), 8 U.S.C. 1255(m)(2). An absence for any period in excess of
90 days or for any periods exceeding 180 days is permissible only if
the excessive absence is necessary to assist in the investigation or
prosecution of persons in connection with the qualifying criminal
activity or if an official involved in the investigation or prosecution
certifies that the absence is otherwise justified. Id. Absences for
less than 90 days at one time or 180 days in the aggregate will not be
deducted from the requisite continuous physical presence period
required to establish eligibility for adjustment of status and will not
be deemed an interruption of the period. Id.
3. Unreasonable Refusal To Assist in the Investigation or Prosecution
Section 245(m)(1) of the Act, 8 U.S.C. 1255(m)(1), prohibits USCIS
from adjusting the status of an otherwise eligible U nonimmigrant if
the Attorney General determines, based on affirmative evidence, that
the U nonimmigrant unreasonably refused to provide assistance to a
Federal, State, or local criminal investigation or prosecution. USCIS
interprets this

[[Page 75547]]

statutory provision as imposing an ongoing requirement for U-1
nonimmigrants not to refuse unreasonably to provide assistance in an
investigation or prosecution. For a derivative family member of a U-1
nonimmigrant (a U-2, U-3, U-4, or U-5 nonimmigrant) who was not
required to provide such assistance as a prerequisite for obtaining U
nonimmigrant status, USCIS interprets this provision to mean that if
the derivative U-2, U-3, U-4, or U-5 nonimmigrant possessed information
about the qualifying criminal activity on which the U-1 nonimmigrant
petition was based and was asked to assist in the investigation or
prosecution, the derivative U nonimmigrant has a responsibility not to
unreasonably refuse to provide that assistance.
Thus, this rule defines ``refusal to provide assistance in a
criminal investigation or prosecution'' as the refusal by the alien to
provide assistance to an official or law enforcement agency that had
responsibility for the investigation or prosecution of persons in
connection with the qualifying criminal activity after the alien was
granted U nonimmigrant status. New 8 CFR 245.24(a)(5).
The rule provides that the determination of whether an alien's
refusal to provide assistance was unreasonable will be based on all
available affirmative evidence and take into account the totality of
the circumstances and such factors as general law enforcement,
prosecutorial, and judicial practices; the kinds of assistance asked of
other victims of crimes involving an element of force, coercion, or
fraud; the nature of the request to the alien for assistance; the
nature of the victimization; the applicable guidelines for victim and
witness assistance; and the specific circumstances of the applicant,
including fear, severe trauma (either mental or physical), and the age
and maturity of the applicant. New 8 CFR 245.24(a)(5).
In order to facilitate implementation of this statutory
requirement, the rule provides that applicants must submit evidence
that demonstrates whether or not they received requests for assistance
from an official or law enforcement agency that had responsibility for
the investigation or prosecution of persons in connection with the
qualifying criminal activity after the applicants were granted U
nonimmigrant status and the applicants' response to such requests. New
8 CFR 245.24(d)(8); 245.24(e). The applicant is not required to
establish the reasonableness of any refusals to comply with such
requests for assistance, as it is a matter for the Attorney General to
determine whether any refusal was unreasonable. However, it is
appropriate and consistent with the statutory scheme to require the
applicants to describe any requests they received for law enforcement
assistance, to identify the persons or agencies who made the requests,
and to state how they responded to such requests. As a general matter,
the alien is in a proper position to identify such basic facts relating
to whether any such requests for assistance were made to the alien and
how the alien responded to the requests. This information is necessary
for the Attorney General to be able to evaluate whether an alien's
refusal to provide assistance was unreasonable under the circumstances.
Given the range of qualifying offenses for the U visa, USCIS
anticipates that the substantial majority of such crimes will be the
subject of state or local criminal investigations and prosecutions,
rather than cases arising under federal criminal laws, and, in
addition, that many of the investigations and prosecutions may already
have been closed (perhaps for several years) by the time the alien is
applying for adjustment of status, given the requirement that the alien
must be in U nonimmigrant status for 3 years before applying for
adjustment.
In order to facilitate the adjudication of U adjustment
applications, this rule provides an option for applicants to obtain a
document signed by an official or law enforcement agency that had
responsibility for persons in connection with the investigation or
prosecution of the qualifying criminal activity. New 8 CFR
245.24(e)(1). The document should affirm that the applicant complied
with (or did not refuse to comply with) reasonable requests for
assistance in the investigation or prosecution during the requisite
period. Id. Applicants, if they so choose, may satisfy this evidentiary
requirement by submitting a newly executed Form I-918, Supplement B,
``U Nonimmigrant Status Certification.'' New 8 CFR 245.24(e)(2). If the
alien does choose to submit such a document in support of his or her
application, USCIS (with the agreement of DOJ) has concluded that there
would be no need to refer the application to DOJ absent extraordinary
circumstances. This option will thus simplify the evidence aliens are
expected to submit in support of their adjustment applications and will
avoid delays in the adjudicatory process attributable to the
requirement to refer U adjustment applications to DOJ.
USCIS is aware that, in some cases, it may be difficult, if not
impossible, for an applicant to obtain such a document. Therefore, if
an applicant does not submit such a document, the applicant may submit
an affidavit describing the applicant's efforts, if any, to obtain a
newly executed Form I-918, Supplement B, or other evidence describing
whether or not the alien received any request to provide assistance in
a criminal investigation or prosecution and the alien's response to any
such request. New 8 CFR 245.24(e)(2). The applicant should include a
description of all instances of which the applicant is aware in which
the applicant was requested to provide assistance in the criminal
investigation or prosecution of persons in connection with the
qualifying criminal activity after the applicant was granted U
nonimmigrant status and how the alien responded to such requests. Id.
Applicants should also include, when possible, identifying information
about the law enforcement personnel involved in the case and any
information of which the applicant is aware about the status of the
criminal investigation or prosecution, including any charges filed and
the outcome of any criminal proceedings, or whether the investigation
or prosecution was dropped and the reasons. Id. Depending on the
circumstances, evidence might include such documentation as court
documents, police reports, news articles, copies of reimbursement forms
for travel to and from court, and affidavits of other witnesses or
officials. If applicable, an applicant also may choose to provide a
more detailed description of situations where the applicant declined to
comply with requests for assistance because the applicant believed that
the failure to comply with such requests for assistance was reasonable
under the circumstances. Id.
The instructions to the Form I-918, Supplement B, U Nonimmigrant
Status Certification, require that officials who sign a Supplement B in
support of an alien's application for U nonimmigrant status have an
obligation to notify USCIS if the alien has refused to assist in the
investigation or prosecution of persons in connection with the
qualifying criminal activity. At any time, USCIS or DOJ may at its
discretion contact the agency that certified the Form I-918, Supplement
B, or any other law enforcement authority, for information concerning
an applicant's continuing assistance in an investigation or
prosecution. New 8 CFR 245.24(e)(3).
Additionally, in accordance with procedures determined by DOJ and
DHS, USCIS will refer certain applications for adjustment of status,

[[Page 75548]]

including any affirmative evidence of applicants' refusal to provide
assistance in a criminal investigation or prosecution, to DOJ for a
determination of whether the applicant has unreasonably refused to
comply with a request for assistance in an investigation or
prosecution. New 8 CFR 245.24(e)(4). USCIS anticipates referring an
application to DOJ only if a certifying official or agency has provided
evidence that the alien has refused to provide such assistance, or if
there is other affirmative evidence in the record suggesting that the
applicant may have unreasonably refused to provide assistance to the
investigation or prosecution of persons in connection with the
qualifying criminal activity. In these instances, USCIS will request
that DOJ determine, based on all available affirmative evidence,
whether the applicant has unreasonably refused to comply with a request
for assistance. DOJ will have 90 days to provide a written
determination to USCIS, or where appropriate, request an extension of
time to provide such a determination. Id. After such time, USCIS may
adjudicate the application whether or not DOJ has provided a response.
Id.

B. Application Procedures for U Nonimmigrants Seeking Adjustment of
Status

This rule clarifies that the generally applicable adjustment of
status provisions in 8 CFR 245.1 and 8 CFR 245.2 do not apply to
applications for adjustment of status under the new 8 CFR 245.24. The
adjustment provisions contained in section 245(m) of the Act, 8 U.S.C.
1255(m), are stand-alone provisions and not simply a variation of the
general adjustment rules contained in section 245(a) of the Act, 8
U.S.C. 1255(a). New 8 CFR 245.24(l).
This rule also provides that USCIS will maintain sole jurisdiction
over the adjudication of applications to adjust status under section
245(m) of the Act because the statutory language vests this authority
in the Secretary of Homeland Security. New 8 CFR 245.24(f).
This rule designates Form I-485, Application to Register Permanent
Residence or Adjust Status, as the form that a U nonimmigrant status
holder must use to request adjustment of status. New 8 CFR 245.24(d).
The instructions to Form I-485 specify where applicants must file their
application packages.
The rule requires applicants to follow the instructions on the form
for proper completion and to include the proper fees or a fee waiver
request. New 8 CFR 245.24(d). The rule also instructs applicants to
submit supporting evidence to establish continuous physical presence,
as well as any information the applicant would like USCIS to consider
when determining whether adjustment of status is warranted as a matter
of discretion on humanitarian grounds or to ensure family unity, or is
otherwise in the public interest. Id.
1. Evidence That Applicant Was Admitted in U Nonimmigrant Status
All applicants must submit a copy of the Form I-797, Notice of
Action, granting U nonimmigrant status, with the attached Form I-94
Arrival/Departure Record, or a copy of the applicant's passport with a
U nonimmigrant visa along with a copy of the Form I-94 Arrival/
Departure Record evidencing the applicant's admission into the United
States in U nonimmigrant status. New 8 CFR 245.24(d).
2. Evidence Relating to Requests for Assistance in an Investigation or
Prosecution
An application for adjustment of status under section 245(m) of the
Act, 8 U.S.C. 1255(m), may not be approved where the Attorney General
or his designee determines based on affirmative evidence that the
applicant unreasonably refused to provide assistance to an official or
law enforcement agency that had responsibility for the investigation or
prosecution of persons in connection with the qualifying criminal
activity after the applicant was granted U nonimmigrant status. New 8
CFR 245.24(d)(8); 245.24(e).
As discussed above, an applicant can facilitate the adjudication of
the adjustment application by obtaining a document signed by an
official or law enforcement agency that had responsibility for the
investigation or prosecution of persons in connection with the
qualifying criminal activity, affirming that the applicant complied
with (or did not unreasonably refuse to comply with) requests for
assistance in the investigation or prosecution during the requisite
period. New 8 CFR 245.24(e)(1). Applicants may satisfy this option by
submitting a newly executed Form I-918, Supplement B, ``U Nonimmigrant
Status Certification.'' Id.
However, if an applicant does not submit such a document, the
applicant may submit an affidavit describing the applicant's efforts,
if any, to obtain a newly executed Form I-918, Supplement B, or other
evidence describing whether the alien received any request to provide
assistance in a criminal investigation or prosecution and the alien's
response to any such request. New 8 CFR 245.24(e)(2).
3. Evidence of Continuous Physical Presence
All applicants must submit evidence, including an affidavit,
attesting that they have accrued 3 years of continuous physical
presence in the United States since admission in U nonimmigrant status.
New 8 CFR 245.24(d)(9). Such evidence may include one or more documents
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 authorized representative of the issuing authority if
the document would normally contain such indicia. An applicant also may
submit college transcripts or employment records, including
certification of the filing of Federal or state income tax returns, to
show that he or she attended school or worked in the United States
throughout the entire 3-year U nonimmigrant status period. The
applicant also may submit documents showing installment payments, such
as a series of monthly rent receipts or utility bills that cover the
same 3-year period, to establish continuous physical presence. See
generally 8 CFR 245.22.
An applicant need not submit documentation to show presence on
every single day of the 3-year U nonimmigrant status period, but there
should be no significant chronological gaps in documentation. Any
absence from the United States, even for one day, is significant for
purposes of eligibility because of the aggregate 180-day restriction on
absences from the United States.
If the applicant is aware of documents already contained in his or
her DHS file that establish physical presence, he or she need only list
those documents, giving the type and date of the document. Examples of
such documents might include a written copy of a sworn statement given
to a DHS officer, a document from a law enforcement agency attesting to
the fact that the U nonimmigrant has continued to comply with requests
for assistance, the transcript of a formal hearing, or a Record of
Deportable/Inadmissible Alien, Form I-213.
To facilitate USCIS' evaluation of physical presence in the United
States, applicants must submit documentation regarding any departure
and re-entry, including a copy of their passport (or equivalent travel
document) with dates of departure and corresponding time, manner, and
place of return. New 8 CFR

[[Page 75549]]

245.24(d)(5) and (6). Applicants who were absent from the United States
for any period in excess of 90 days or for any periods in the aggregate
of 180 days or more must submit a statement from the investigating or
prosecuting agency certifying that the absences were necessary to
assist in the investigation or prosecution, or were otherwise
justified. Id. The omission of such certification will result in denial
of the application.
A signed statement from the applicant attesting to continuous
physical presence alone will not be sufficient to establish this
eligibility requirement. Id. If documentation to establish continuous
physical presence is not available, the applicant must explain why in
an affidavit and provide additional affidavits from other individuals
with first-hand knowledge who can attest to the applicant's continuous
physical presence by specific facts. Id.
4. Evidence Relating to Admissibility and Discretion
The only ground of inadmissibility applicable to U nonimmigrants
applying for adjustment of status under section 245(m) of the Act is
section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E), which relates
to participants in Nazi persecution, genocide, or the commission of any
act of torture or extrajudicial killing. This ground of inadmissibility
is not waivable for purposes of adjustment of status of U
nonimmigrants. See INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). Otherwise,
U adjustment applicants are not required to establish that they are
admissible on any of the grounds set forth in section 212(a) of the
Act.
Nevertheless, as with all of the other adjustment of status
provisions, section 245(m) of the Act makes adjustment of status under
that section a discretionary benefit. To enable USCIS to determine
whether to exercise discretion favorably, applicants have the burden of
showing that discretion should be exercised in their favor. New 8 CFR
245.24(d)(11). Although U adjustment applicants are not required to
establish that they are admissible, USCIS may take into account all
adverse factors, including acts that would otherwise render the
applicant inadmissible, in making its discretionary decision on the
application. Generally, favorable factors such as family ties,
hardship, and length of residence in the United States may be
sufficient to merit a favorable exercise of administrative discretion.
However, where adverse factors are present, it will be necessary for
the applicant to offset these factors by showing sufficient mitigating
factors. This rule permits applicants to submit information regarding
any mitigating factors they would like USCIS to consider when
determining whether a favorable exercise of discretion is appropriate.
Id. Depending on the nature of an applicant's adverse factors, the
applicant may be required to demonstrate clearly that the denial of
adjustment of status would result in exceptional and extremely unusual
hardship. Moreover, depending on the gravity of the alien's adverse
factors, such a showing might still be insufficient. Id. See Matter of
Jean, 23 I&N Dec. 373, 383-384 (A.G. 2002), aff'd Jean v. Gonzales, 452
F.3d 392 (5th Cir. 2006). See also Pinentel v. Mukasey, 530 F.3d 321
(5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991 (9th Cir. 2007). For
example, only the most compelling positive factors would justify a
favorable exercise of discretion in cases where the applicant has
committed or been convicted of a serious violent crime, a crime
involving sexual abuse committed upon a child, or multiple drug-related
crimes, or where there are security- or terrorism-related concerns. 8
CFR 245.24(d)(11).

C. Decisions on Adjustment of Status Applications From U Nonimmigrants

USCIS will give written notice of its decision on the adjustment of
status application to the applicant. New 8 CFR 245.24(f). If the
application is approved, USCIS will issue a notice of approval
instructing the applicant to go to a local USCIS office or Application
Support Center to complete Form I-89, which collects the necessary
information to produce the Form I-551 (Alien Registration Receipt Card
or ``green card''). The notice of approval will also inform the
applicant how to obtain temporary evidence of lawful permanent resident
status. Upon approval of an application for adjustment of status, USCIS
will record the alien's admission as a lawful permanent resident as of
the date of such approval. New 8 CFR 245.24(f)(1); see INA sec.
245(m)(4), 8 U.S.C. 1255(m)(4).
If the application for adjustment of status is denied, the
applicant will be notified in writing of the reasons for the denial and
of the opportunity to appeal the decision to the Administrative Appeals
Office (AAO). New 8 CFR 245.24(f)(2). Because section 245(m) of the Act
gives the Secretary of Homeland Security exclusive authority over
applications for adjustment of status of U nonimmigrants, such
applications may not be renewed or otherwise filed before an
immigration judge in removal proceedings. New 8 CFR 245.24(k). The
Attorney General will publish companion rules amending 8 CFR parts 1240
and 1245.

D. Qualifying Family Members Who Have Never Held U Nonimmigrant Status

Section 245(m) of the Act, 8 U.S.C. 1255(m), allows two categories
of qualifying family members of principal U-1 nonimmigrants to apply
for adjustment of status or an immigrant visa: (1) Family members in
lawful U-2, U-3, U-4, or U-5 nonimmigrant status; and (2) certain
qualifying family members who have never held U nonimmigrant status.
Because the procedures for family members in lawful U status are the
same as those for principal applicants and have already been discussed
above, this section will only discuss those qualified family members
who have never held U nonimmigrant status.
1. Eligibility Requirements
After granting adjustment of status to a U-1 principal applicant,
USCIS may grant lawful permanent resident status to certain spouses,
children, and parents based upon their relationship to the principal
applicant. See INA sec. 245(m)(3), 8 U.S.C. 1255(m)(3). The statute
allows USCIS to extend these derivative benefits only if: (1) The
qualifying family member was never admitted to the United States in U
nonimmigrant status, and (2) it is established that either the family
member or the U-1 principal applicant would suffer extreme hardship if
the qualifying family member is not allowed to remain in or be admitted
to the United States. Id. Because qualifying family members'
applications are dependent upon approval of the principal applicant's
adjustment of status application, this rule provides that denial of the
U-1 principal applicant's application would result in the automatic
denial of a derivative family member's application. New 8 CFR
245.24(h)(2)(ii).
This rule establishes a two-stage application process (described in
detail below) for qualifying family members to obtain lawful permanent
residence. First, the principal applicant must file an immigrant
petition on behalf of the qualifying family member. New 8 CFR
245.24(h). Second, if the immigrant petition is approved, qualifying
family members who are present in the United States may adjust their
status to that of lawful permanent residents, and qualifying family
members outside the United States may go to a U.S. embassy

[[Page 75550]]

or consulate to obtain their immigrant visas. Id.
2. Immigrant Petition Process
This rule establishes a new form for U-1 principal applicants to
file on behalf of qualifying family members: USCIS Form I-929,
``Petition for Qualifying Family Member of a U-1 Nonimmigrant'' (I-
929). New 8 CFR 245.24(h)(1). U-1 principals may file Form I-929
concurrently with, or at any time after they have filed, their Form I-
485 under section 245(m) of the Act. This rule provides, however, that
a Form I-929 may not be approved until the U-1 principal's application
to adjust status is approved. New 8 CFR 245.24(h)(2).
Form I-929 must be filed with the applicable fee, or fee waiver
request, and in accordance with the form instructions. New 8 CFR
245.24(h)(1)(ii). It must be submitted with evidence establishing the
relationship, such as a birth or marriage certificate. New 8 CFR
245.24(h)(1)(iii). If primary evidence is not available, secondary
evidence or affidavits may be submitted in accordance with 8 CFR
103.2(b)(2).
Section 245(m)(3) of the Act, 8 U.S.C. 1255(m)(3), requires the
Secretary to determine whether the U-1 principal or a qualifying family
member would suffer extreme hardship if the family member is not
allowed to remain in or join the U-1 principal in the United States.
This rule, therefore, requires Form I-929 to be submitted with evidence
establishing that the qualifying family member, or the principal U-1
alien, would suffer extreme hardship as described in new 8 CFR
245.24(h)(1)(iv) (to the extent the factors listed are applicable).
USCIS will consider all credible relevant evidence of extreme hardship
and will evaluate each application on a case-by-case basis in
accordance with the factors outlined in new 8 CFR 245.24(h)(1)(iv). The
decision that an applicant has met his or her burden of demonstrating
extreme hardship is a matter of discretion. No particular piece of
evidence will guarantee a finding that extreme hardship would result if
the applicant's family members were not allowed to enter or remain in
the United States.
As discussed above, U adjustment applicants are not required to
establish that they are admissible on any of the grounds set forth in
section 212(a) of the Act, 8 U.S.C. 1182(a), other than on section
212(a)(3)(E) of the Act (relating to participants in Nazi persecution,
genocide, or the commission of any act of torture or extrajudicial
killing), and the companion restrictions set forth in sections 245(a)
and (c) of the Act, 8 U.S.C. 1255(a) and (c), do not apply to
applicants for lawful permanent residence under section 245(m).
Nevertheless, approval of adjustment of status under that section is a
discretionary determination of the Secretary. Consequently, this rule
provides that the qualifying family member has the burden of showing
that discretion should be exercised in his or her favor. Although U
adjustment applicants are not required to establish that they are
admissible on any of the grounds set forth in section 212(a) of the Act
except under section 212(a)(3)(E) of the Act, USCIS may take into
account all adverse factors, including acts that would otherwise render
the applicant inadmissible, in making its discretionary decision on the
application. Generally, favorable factors such as family ties,
hardship, and length of residence in the United States may be
sufficient to merit a favorable exercise of administrative discretion.
However, where adverse factors are present, the applicant must offset
these factors by showing sufficient mitigating equities. This rule
permits applicants to submit information regarding any mitigating
factors they would like USCIS to consider when determining whether a
favorable exercise of discretion is appropriate. New 8 CFR 245.24(h).
Depending on the nature of an applicant's adverse factors, the
applicant may be required to clearly demonstrate that the denial of
adjustment of status would result in exceptional and extremely unusual
hardship. Moreover, depending on the gravity of the alien's adverse
factors, such a showing might still be insufficient. Id. See Matter of
Jean, 23 I&N Dec. 373, 383-384 (A.G. 2002), aff'd Jean v. Gonzales, 452
F.3d 392 (5th Cir. 2006). See also Pinentel v. Mukasey, 530 F.3d 321
(5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991 (9th Cir. 2007). For
example, only the most compelling positive factors would justify a
favorable exercise of discretion in cases where the applicant has
committed or been convicted of a serious violent crime, a crime
involving sexual abuse committed upon a child, or multiple drug-related
crimes, or where there are security- or terrorism-related concerns. Id.
This rule provides that USCIS will provide written notice of its
decision on the Form I-929 to the applicant. New 8 CFR 245.24(h)(2). If
USCIS denies the Form I-929, the applicant will be notified in writing
of the reasons for the denial and of the opportunity to appeal the
decision to the USCIS Administrative Appeals Office. New 8 CFR
245.24(h)(2)(ii).
Upon approval of a Form I-929 for a qualifying family member who is
outside of the United States, USCIS will forward the notice of approval
either to the Department of State's National Visa Center so the
applicant can apply to the consular post for an immigrant visa, or to
the appropriate port of entry for a visa exempt alien. New 8 CFR
245.24(h)(2)(i)(A). Those family members issued immigrant visas under
section 245(m)(3) of the Act, 8 U.S.C. 1255(m)(3), must still establish
admissibility before a U.S. Customs and Border Protection (CBP) officer
when applying for admission to the United States at a port of entry.
Once a Form I-929 is approved for a qualifying family member who is in
the United States, the family member becomes eligible to apply for
adjustment of status.
3. Adjustment of Status for Qualifying Family Members Who Never Held U
Nonimmigrant Status
This rule allows a U-1 principal to file the Form I-929 for
qualifying family members either concurrently with or at a later date
than their Form I-485 application for adjustment of status. Form I-485
must be filed with the appropriate fee or fee waiver request and in
accordance with the form instructions. Upon approval of a Form I-485,
USCIS will issue a notice of approval, instructing the applicant to go
to a local USCIS office or Application Support Center to complete Form
I-89, which collects the necessary information to produce the Form I-
551. The notice of approval also will inform the applicant how to
obtain temporary evidence of lawful permanent resident status. USCIS
will record the alien's admission for lawful permanent residence as of
the date of such approval. New 8 CFR 245.24(i)(2)(i).
If either the Form I-929 or the Form I-485 is denied, USCIS will
notify the applicant in writing of the reasons for the denial and of
the opportunity to appeal the decision to the USCIS Administrative
Appeals Office. New 8 CFR 245.24(i)(2)(ii). Because qualifying family
members' applications depend on approval of the principal applicant's
adjustment application, this rule also provides that denial of the U-1
principal applicant's application will result in the automatic denial
of a qualifying family member's application. Id.
4. Fee To Be Charged for Form I-929, Petition for Qualifying Family
Member of a U-1 Nonimmigrant
USCIS is proposing to charge a fee to recover the costs incurred to
adjudicate

[[Page 75551]]

the petitions for qualifying family members of U-1 nonimmigrants. USCIS
is authorized by law to recover the full cost of processing every Form
I-929. However, the resources required to deliver this benefit are
difficult to estimate due to the small number of potential applicants
and the differing level of complexity involved in the determination of
each application.
To determine a reasonable fee, USCIS reviewed the requirements of
other programs that provide special benefits to the same or similar
user populations as the new Form I-929. Information on other forms,
such as the quantity of information that must be researched, collected,
completed, submitted, and analyzed were used as an indication of the
resources expended by USCIS to deliver the benefit. Those indicators
were compared with that of the Form I-929 to arrive at a fee for the
Form I-929.
The reasonable fee for USCIS to charge a petitioner for
adjudication of a Form I-929 was calculated using several methods. For
ease of administration, USCIS has decided to charge the same fee for
each Form I-929. The one fee policy will be revisited if inequities to
certain groups are noted. The analysis indicated that USCIS should
collect a fee of $215 for each Form I-929 adjudication. A copy of the
detailed fee determination is available from USCIS upon request. USCIS
recognizes that some applicants for adjustment of status may be unable
to pay the full application fee. Applicants who are financially unable
to pay the application fee may submit an application for a fee waiver,
as outlined in 8 CFR 103.7(c). The granting of a fee waiver will be at
the sole discretion of USCIS. Further guidance on USCIS fee waivers can
be found on the USCIS Web site currently at http://www.uscis.gov/feewaiver.

E. Traveling While Application for Adjustment of Status Is Pending

U nonimmigrants who are applying for adjustment of status, and who
are not under exclusion, deportation, or removal proceedings, must
follow the generally applicable rule that an applicant with a pending
adjustment of status application must obtain advance parole from USCIS.
8 CFR 245.2(a)(4)(ii)(B). Advance parole can be requested by completing
and filing Form I-131, Application for Travel Document, in accordance
with the instructions on the form, or any other appropriate form,
before departing the United States. New 8 CFR 245.24(j),
245.2(a)(4)(ii)(B). If such an applicant fails to acquire advance
parole prior to departure, USCIS will deem the application for
adjustment of status abandoned as of the moment of departure from the
United States. If the adjustment of status application of such an
individual is subsequently denied, he or she will be treated as an
applicant for admission subject to sections 212 and 235 of the Act, 8
U.S.C. 1182, 1225. Id. If a U nonimmigrant applying for adjustment of
status is under exclusion, deportation, or removal proceedings, USCIS
will deem the application for adjustment of status abandoned as of the
moment of the applicant's departure from the United States if the
applicant failed to acquire advance parole prior to departure. New 8
CFR 245.24(j), 245.2(a)(4)(ii)(A).

F. Employment Authorization While Adjustment of Status Application Is
Pending

Applicants for adjustment of status under section 245(m) of the Act
may apply for employment authorization on the basis of 8 CFR
274a.12(c)(9). Applicants must submit a Form I-765, Application for
Employment Authorization, in accordance with the form instructions.

G. Application and Biometric Services

As stated above, section 286(m) of the Act, 8 U.S.C. 1356(m),
requires that USCIS collect fees to recover the cost of providing
certain immigration and naturalization benefits.
The required fee for filing an Application to Register Permanent
Residence or Adjust Status (Form I-485) is listed at 8 CFR 103.7(b).
USCIS recognizes that some applicants for adjustment of status may be
unable to pay the full application fee. Applicants who are financially
unable to pay the application fee may submit an application for a fee
waiver as outlined in 8 CFR 103.7(c). The decision whether to grant a
fee waiver lies within the sole discretion of USCIS. Further guidance
on fee waivers can be found on the USCIS Web site currently at http://www.uscis.gov/graphics/formsfee/forms/index.htm.
In addition to the filing fee for the Form I-485, applicants must
submit the established fee for biometric services, or a fee waiver
request, for each person age 14 through 79 inclusive. New 8 CFR
245.24(d)(3). This fee can also be found at 8 CFR 103.7(b).

V. Regulatory Requirements

A. Administrative Procedure Act

USCIS has determined that delaying the effect of this rule during
the period of public comment would be impracticable and contrary to the
public interest. This rule is being published as an interim final rule
and is effective 30 days after publication. USCIS invites comments and
will address those comments in the final rule.
If the implementation of the provisions of this rule were delayed
pending public comments, many aliens could be required to depart the
United States because of the automatic termination of their
nonimmigrant status even though they would become eligible for
adjustment of status upon promulgation of this rule.
An interim rule, New Classification for Victims of Severe Forms of
Trafficking in Persons; Eligibility for ``T'' Nonimmigrant Status,
provided for T nonimmigrant status. 67 FR 4784 (Jan. 31, 2002). As
stated above, a T nonimmigrant's failure to timely apply for adjustment
of status will result in termination of that T status at the end of
that 4-year period unless the T status is extended because law
enforcement certifies that the presence of the alien in the United
States is necessary to assist in an investigation or prosecution. See
INA sec. 214(o)(7)(B), 8 U.S.C. 1184 (o)(7)(B). Currently,
approximately 330 principal T-1 nonimmigrants have been in T
nonimmigrant status for more than 3 years and therefore are eligible to
apply for adjustment of status under this rule immediately upon its
effective date. There is a risk that the 4-year limitation for T
nonimmigrant status will run out for these aliens, resulting in
termination of T nonimmigrant status. Therefore, USCIS has determined
that this rule needs to become effective as soon as possible to ensure
that these aliens can apply for adjustment of status and avoid falling
out of lawful immigration status.
Likewise, U nonimmigrants may apply for adjustment of status after
they have been in lawful U nonimmigrant status for at least 3 years.
See INA sections 101(a)(15)(U), 214(p), and 245(m); 8 U.S.C.
1101(a)(15)(U), 1184(p), and 1255(m). The interim final rule
implementing U nonimmigrant classification was recently published. 72
FR 53014 (Sept. 17, 2007). A U nonimmigrant is eligible to apply for
adjustment of status if the alien was admitted in either U-1, U-2, U-3,
U-4, or U-5 nonimmigrant status and has continuous physical presence
for at least 3 years. New 8 CFR 245.24. Currently, there are
approximately 5,000 aliens who were granted interim benefits before
they could apply for U nonimmigrant status. These aliens were deemed
prima facie eligible for U nonimmigrant status prior to publication of
the regulations for U nonimmigrant status. The U-visa rule provides
that the time spent in interim

[[Page 75552]]

relief will count toward the 3 years of physical presence required for
adjustment of status purposes, 8 CFR 214.14(a)(13), and U nonimmigrant
status will be granted as of the date that a request for U interim
relief was initially approved, 8 CFR 214.14(c)(6). USCIS estimates that
2,100 of the 5,412 aliens currently granted interim benefits pending
publication of the U nonimmigrant regulations will have been in the
United States for 3 years when this rule is published. Therefore, a
similar problem exists for those granted U nonimmigrant status as with
T nonimmigrants if the effective date of this rule is delayed pending
public notice and comment.

B. 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, certifies that
this rule will not have a significant economic impact on a substantial
number of small entities because of the following factors. The rule
applies to individuals, not small entities, and allows certain aliens
who are victims of severe forms of trafficking in persons or victims of
crimes listed in section 101(a)(15)(U) of the Act to adjust their
status to lawful permanent residents; it has no effect on small
entities as that term is defined in 5 U.S.C. 601(6).

C. 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.

D. 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 U.S.-based companies to compete with foreign-based
companies in domestic and export markets.

E. Executive Order 12866 (Regulatory Planning and Review)

This rulemaking is a ``significant'' regulatory action under
Executive Order 12866. As required by section 6(a)(3)(C) of the
Executive Order, USCIS prepared an assessment of the benefits and costs
anticipated to occur as a result of this rule for the Office of
Management and Budget.
The VTVPA was intended to combat trafficking in persons with
preventative measures, prosecution of traffickers, and protection of
victims. USCIS adjudicates applications for immigration benefits filed
by victims of a severe form of trafficking in persons and other
specified crimes. According to findings from the National Crime
Victimization Survey, in 2005, U.S. residents age 12 or older
experienced approximately 23 million crimes; 22% (5.2 million) were
crimes of violence. For every 1,000 persons age 12 or older, there
occurred: 1 rape or sexual assault, 1 assault with injury, and 3
robberies. However, only 49.9 percent of all violent crimes are
reported to police.\2\ Aliens, especially those without legal
immigration status, are often reluctant to help in the investigation or
prosecution of those crimes. And, while there is no specific data on
alien victims of crime, demographic statistics indicate that aliens may
be victimized at even higher rates than citizens. For example, in 2005,
persons in households with an annual income under $7,500 experienced
higher rates of robbery and assault than persons in households with
higher income levels. In addition, Hispanics were victims of overall
violence at a rate higher than non-Hispanics, making up 15% of all
violent crime victims, but only 13% of the population. U visas are
intended, in part, to help overcome this reluctance to aid in law
enforcement.
---------------------------------------------------------------------------

\2\ U.S. Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, Criminal Victimization, http://www.ojp.gov/bjs/cvictgen.htm.
---------------------------------------------------------------------------

As of May 2004, the U.S. Government estimated that 14,500 to 17,500
people are trafficked annually into the United States and 600,000 to
800,000 are trafficked globally. Also, 80 percent of trafficking
victims are female, 70 percent of those are trafficked for commercial
sex, and most victims trafficked to the U.S. come from East Asia and
the Pacific.
1. Economic Impacts--Fees
This rule and the VTVPA, as amended, are intended to enhance the
ability of law enforcement and to advance humanitarian goals. The main
benefits of a rule change imposed by Congress to address such concerns
tend to be intangible. Nonetheless, DHS has assessed both the costs and
benefits of this rule and they are as follows:
USCIS uses fees to fund the cost of processing applications and
associated support benefits, providing benefits to asylum and refugee
applicants, and providing benefits to other immigrants at no charge.
The fees to be collected as a result of this rule will be approximately
$2,955,880 in the first year after this rule is published, $1,932,880
in the second year, and average about $32,472,880 per year in the third
and subsequent years. To estimate the new fee collections to be
generated by this rule, USCIS estimated the fees to be collected for
new applications for adjustment of status from T and U nonimmigrants
and their eligible family members. After that, we estimated fees from
associated applications that are required such as biometrics, and
others that are likely to occur in direct connection with applications
for adjustment, such as employment authorization or travel
authorization.
T adjustment. Currently, there are 787 persons with T nonimmigrant
status as principals (T-1) and 682 in the United States who are
derivatives (relatives) of the principal (T-2, T-3, T-4, T-5), for a
total of 1,469 persons with T visas.
Primary T-1. Approximately 330 T-1 nonimmigrants have been in such
status for 3 years and are therefore eligible to apply for adjustment
of status to that of a lawful permanent resident under this rule. Thus,
at least those 330 T-1 nonimmigrants are expected to apply for
adjustment of status in the year after this rule takes effect. The fee
for Form I-485 is $930.\3\ Thus, an estimated annual fee collection of
$306,900 for adjustment for T status for primary T nonimmigrants will
result directly from this rule. The numbers of applications and fees
collected are expected to be similar in future years.
---------------------------------------------------------------------------

\3\ Children under 14 applying with a parent must pay $600 and
the fee is waivable for certain applicants, but for this analysis,
no adjustments are made in this analysis for any fee waivers or
reduced fees for children under 14.
---------------------------------------------------------------------------

Derivatives. Of the 682 derivatives of the principal (T-2, T-3, T-
4, T-5 nonimmigrants), it is estimated that 286 have been in the
country for 3 years or more, using the same ratio of T-1 nonimmigrants
who have been in the U.S. for 3 years (330 of 787, or 42%). As a
result, 286 primary T-1 derivatives are eligible and will apply for
adjustment of status under this rule. This would result in fees
collected from applications for adjustment of status for T-1 derivative
nonimmigrants of $265,980 in the first

[[Page 75553]]

year this interim rule is effective (286 x $930 Form I-485 fee). This
figure is expected to be similar in future years.
U-adjustment (U-1). In the supporting documents for the rule ``New
Classification for Victims of Criminal Activity; Eligibility for `U'
Nonimmigrant Status'' (``U-visa rule''), USCIS estimated that
approximately 12,000 people will apply for U nonimmigrant status in the
first year after that rule is effective. However, no more than 10,000
principal aliens may be granted U nonimmigrant status in a given fiscal
year (October 1 through September 30). For the purposes of this rule
and this accompanying analysis, USCIS estimates that the 10,000 cap
will be reached each year. USCIS also estimates that every U
nonimmigrant will apply for adjustment of status as soon as he or she
can, if they can and if still in the country, following publication of
this interim rule. Thus, USCIS expects that 10,000 aliens will be
eligible to apply for adjustment of status after they have been in U
status for 3 years. USCIS estimates that each such U-1 nonimmigrant
will apply and submit Form I-485, and the prescribed fee, although most
U adjustments will not occur until 3 years after the U-visa rule was
effective. In year 3, therefore, additional fees expected to be
collected by USCIS under this rule are $9,300,000 ($930 fee for form I-
485 x 10,000). Results are expected to be similar in subsequent years.
Interim relief. Approximately 5,412 people were granted deferred
action and work authorization benefits by USCIS based on a
determination that they were prima facie eligible for U nonimmigrant
status prior to publication of the regulations for U status. The U-visa
rule provides that the time spent in interim relief will be counted
toward the 3-year physical presence required for adjustment of status.
Of those 5,412 people, USCIS estimates that 2,100 will have been
continuously present for 3 years when this rule is published; 1,000
more will qualify in year 2 of this rule being effective. This will
result in fee income from petitions for U adjustments of $1,953,000
(2,100 x $930) in year 1, and $930,000 in year 2. The additional 1,312
will qualify in future years.
Derivatives (U-2). The 10,000 per fiscal year limitation does not
apply to spouses, children, parents, and unmarried siblings who are
accompanying or following to join the principal alien victim. Thus, it
is estimated that relatives of U nonimmigrants will apply for
adjustment of status approximately 3 years following the effective date
of their approval for U nonimmigrant status. USCIS estimates that each
U nonimmigrant will bring an average of about two family members to the
United States and that those family members will want to adjust their
status when they are eligible. The fee income generated by the
resulting 20,000 applicants each remitting a fee of $930 results in fee
income of $18,600,000 in year 3 after the rule becomes effective, and
thereafter.
Family members who are not U nonimmigrants--``Qualifying Family
Members.'' New Form I-929, Petition for Qualifying Family Member of a
U-1 nonimmigrant, will be used by U nonimmigrants to request derivative
benefits for qualifying family members who never held U nonimmigrant
status. U nonimmigrants may also petition for derivative status on
behalf of resident family members by submitting a Form I-918,
Supplement A, ``Petition for Qualifying Family Member of U-1
Recipient,'' for each qualifying family member either at the same time
or after filing his or her own Form I-918. To apply for adjustment, U
nonimmigrants must submit Form I-485. For those family members in the
United States who have never had U nonimmigrant status, the U
nonimmigrant may apply for adjustment for those family members by
submitting Form I-929, after or concurrently with their own request for
adjustment of status submitted on Form I-485 with both fees, plus the
biometric services fee or fee waiver requests.
Family members never admitted to the United States. Qualifying
family members who are present in the United States may apply for
immigrant visas on behalf of qualifying family members outside the
United States. If the Form I-929 is approved for such family members,
the family members may go to a U.S. embassy or consulate to obtain
their immigrant visa. USCIS estimates that 20,000 people will apply for
derivative U visas annually as nonresidents, because the principal can
apply to bring a family member to the United States as soon as the
principal applies for a U nonimmigrant visa. It is logical that many
aliens will do that on their initial Forms I-918 rather than wait until
they apply for a visa or seek to bring them to the United States after
they apply for adjustment of status. Thus, it is estimated that only
2,000 of the 20,000 people who will apply for U visas will have family
members who apply for this benefit, and that they will only apply for
an average of one family member each. Consequently, the new Form I-929,
``Petition for Qualifying Family Member of a U-1 Nonimmigrant,'' will
result in additional fee collections of about $430,000 per year,
beginning in the first year that this rule is in effect, and continuing
consistently thereafter.
Employment authorization. USCIS charges no additional fee for an
employment authorization request by an applicant who has paid the I-485
fee. Thus, no fee income is estimated from primary or secondary T or U
nonimmigrants applying for adjustment of status under this rule for
employment authorizations.
Travel document. USCIS charges no fee for an I-131 filed by an
applicant who has paid the Form I-485 application fee. Therefore, an I-
131 fee will only be charged to U derivatives who will be submitting
the new Form I-929 without a concurrent Form I-485. However, very few
applicants are expected to do so. Thus, no fee income is estimated from
Form I-131 as a result of this rule.
Biometric services fees. USCIS will collect a fee for biometrics
services for adjustment applications from T and U nonimmigrants and
their derivative family members. For the purposes of this analysis it
is assumed that all of the 31,000 estimated applications submitted per
year under this rule will have to submit biometrics. Also, all of the
2,000 estimated annual Forms I-929 are estimated to require the
collection of biometrics and payment of the applicable fee. The USCIS
biometrics services fee is $80. The resultant fee income will be
$2,480,000.
Waiver of grounds of inadmissibility. T nonimmigrants who apply for
adjustment of status may need an inadmissibility waiver before they may
be granted adjustment of status. As a result, such applicants must
submit Form I-601, Application for Waiver of Grounds of
Inadmissibility, and pay the applicable $545 fee or request a fee
waiver as outlined in 8 CFR 103.7(c). USCIS estimates that this
requirement will apply to about 2,000 nonimmigrants who apply for
adjustment of status. Therefore, this will result in additional fee
collections per year of $1,090,000.
2. Benefits
The benefits of this rule stem mainly from an understanding of the
problems that this rule and the underlying statutes are intended to
address.
Trafficking. The U.S. government has condemned human trafficking as
an affront to human dignity and a heinous crime. By authorizing
adjustment of status for T and U nonimmigrants and their eligible
family members, this rule is another step in the U.S. government's
efforts to combat human trafficking in the United States. Recent cases
point

[[Page 75554]]

out the magnitude of human trafficking, efforts of law enforcement to
combat the problem, the personal toll it can take on its victims, and
the real need to address the problem:
In January 2008, Jimmie Lee Jones was sentenced to serve
15 years on federal charges of conspiring to engage in sex trafficking
and transporting young women across state lines for purposes of
prostitution. Jones conspired to force six victims, including two
juveniles, to engage in commercial sex acts through force, fraud and
coercion. He lured and recruited the minor and adult victims into
prostitution with promises of legitimate modeling or exotic dancing
work and used physical violence, threats of violence, deception, and
other forms of coercion to compel the victims to work as prostitutes.
In 2005 in New Jersey, at least 30 girls and young women--
some as young as 14--were smuggled from Honduras to Hudson County,
where they were forced into virtual slavery in bars and beaten if they
tried to leave. On July 21, 2005, ten members of this smuggling ring
were indicted. Subsequently, 3 traffickers were sentenced to the
maximum sentence, 3 more traffickers have entered guilty pleas and are
awaiting sentencing and four more are awaiting trial in Honduras.
In January 2004, Juan Carlos Soto was sentenced to 23
years in prison for smuggling women from Honduras and El Salvador into
the U.S., and forcing them to stay in his so-called ``safe houses''
until they had ``worked off'' their debt to him. During the day, these
women were forced to perform domestic work, while at night they were
repeatedly raped and forced to provide sexual services.
In the largest trafficking case in U.S. history, Kil Soo
Lee ran the Daewoosa garment factory in American Samoa. The government
charged that Kil brought over 250 Vietnamese and Chinese nationals into
American Samoa, mostly young women, to work as sewing machine
operators. Victims were held for up to two years and forced to work
through extreme food deprivation, beatings, and physical restraint. The
victims were held in barracks on a guarded company compound, threatened
with confiscation of their passports, deportation, economic bankruptcy,
severe economic hardship to family members, false arrest, and other
consequences. On February 21, 2003, Kil was convicted of numerous
federal criminal violations, including involuntary servitude, and was
later sentenced to 40 years in prison.
In 1997, the New York City Police Department unearthed an
immigrant smuggling scheme involving as many as 62 deaf-mute Mexican
immigrants who had been persuaded to come to the United States with
promises of jobs. These immigrants were forced to beg on the streets of
New York City for eighteen hours a day, seven days a week and meet a
$600 per week quota. They were subjected to beatings, electrocution,
mental abuse, and sexual molestation.
In 1995, El Monte, California police raided a garment
factory and discovered 72 Thai nationals who had been lured to the
United States with promises of employment, forced to work in a garment
shop up to eighteen hours a day, seven days a week, and were paid less
than sixty cents an hour. The owners restrained them by threats and
physical violence.
Moreover, human trafficking is often intertwined with other illicit
activities such as fraud, extortion, racketeering, money laundering,
bribery of public officials, drug trafficking, document forgery, and
gambling.
Authorizing adjustment of status for such victims uses USCIS
benefits as part of a collaborative federal effort incorporating
immigration status issues, which are often at the forefront of a
victim's concern. The VTVPA, as amended, takes a victim-centered
approach to addressing trafficking. Trafficking victims are often
reluctant to testify due to fear of reprisals against themselves or
their family members, or fear of removal from the United States to
countries where they can face additional hardships, retribution, or
alienation. Additionally, trafficking victims not familiar with their
rights may be afraid to report their abusers for fear of their own
detention, prosecution, or deportation. This effort is coupled with
additional state and federal criminal laws, government benefits,
services, and protections for victims.
By passing the VTVPA, and subsequent amendments thereto, Congress
recognized that victims of severe trafficking should be protected if
they assist in prosecution of the traffickers, rather than be punished
and deported for unlawful entry, or unauthorized employment. The
protections provided by this law address the lack of legal rights,
protection, and access to the legal system because of the illegal
presence of trafficking victims.
Violent crime. Congress created the U nonimmigrant status (``U
visa'') to provide immigration protection to crime victims who assist
in the investigation and prosecution of those crimes. Although there
are no specific data on alien crime victims, statistics maintained by
DOJ have shown that aliens, especially those aliens without legal
status, are often reluctant to help in the investigation or prosecution
of crimes. U visas are intended to help overcome this reluctance and
aid law enforcement accordingly.
3. Costs
Government costs. This rule requires no outlays of congressionally-
appropriated funds. The requirements of this rule and the associated
benefits are funded by fees collected from persons requesting these
benefits. The fees are deposited into the Immigration Examinations Fee
Account. These fees are used to fund the full cost of processing
immigration and naturalization benefit applications and petitions,
biometric services, and associated support services.
Paperwork costs. The T nonimmigrant adjustment of status provisions
of this rule will increase the information collection burden hours
imposed on the public. First, as indicated above, USCIS estimates that
31,000 adjustment applications will be received per year. USCIS
estimates that each applicant will need an average of 7.25 hours to
complete and submit the information required under this rule. Thus, the
public burden (in hours) will increase by approximately 224,750 burden
hours as a result of the additional Forms I-485 that will be submitted
as a result of this rule.
By adding the new Form I-929, the U nonimmigrant adjustment of
status provisions are estimated to add an estimated 2,000 applicants
per year to the burden currently required for the U visa program. USCIS
estimates that it will require an average of one hour per applicant to
complete and submit the information required under this rule. Thus, the
public burden (in hours) will increase by approximately 2,000 burden
hours as a result of the additional Forms I-929 that will be submitted
as a result of this rule.
USCIS estimates that 13,000 U-2 nonimmigrants will apply for
employment authorization by submitting Form I-765. The public reporting
burden for this form is estimated to average 3 hours and 25 minutes per
response. Thus, the public burden will increase by approximately 44,417
hours as a result of the additional Forms I-765 that will be submitted
as a result of this rule.
USCIS estimates that it also will receive about 2,970 requests per
year for advance parole, on average, beginning in the third year
following the effective date of this rule that would not be

[[Page 75555]]

received otherwise. The public reporting burden for Form I-131 is
estimated to average 55 minutes per application. Thus, the public
burden will increase by approximately 2,723 burden hours as a result of
the additional Forms I-131 that will be submitted as a result of this
rule.
For the estimate of the per hour cost of time spent on the forms
resulting from this rule, USCIS used the hourly wage from the Bureau of
Labor Statistics, Employment Cost Trends, Private Industry, All
Workers, Wages and Salaries, Cost of Compensation (Cost per hour
worked), Third Quarter, 2006. That figure is $18.04 per hour. Thus, the
paperwork burden that this rule adds on the public is estimated to cost
respondents $4,940,976 in time spent on preparing and submitting the
required information [$18.04 x 273,890 (224,750 + 2,000 + 44,417 +
2,723)].
4. Analysis of Alternatives
Some alternatives exist as cost-effective means for administering
the T and U nonimmigrant adjustment provisions from the standpoint of
government outlays and burden on applicants. However, many alternatives
are not realistic if USCIS is to achieve its legislative mandate and
when considered in the interest of consistency with how the current T
and U nonimmigrant programs are administered.
T nonimmigrant adjustment of status: No more than 5,000 T-1
principal aliens may have their status adjusted to that of a lawful
permanent resident in a given fiscal year (October 1 through September
30). This numerical limitation does not apply to relatives in
derivative status who seek adjustment of status. Therefore, the
potential exists that the number of approvable petitions per fiscal
year will exceed the numerical limit (i.e., cap). However, USCIS has
not come close to reaching the cap in all of the fiscal years combined
since the T nonimmigrant rule was promulgated 4.5 years ago. Since that
time, only 787 aliens have been granted principal T-1 nonimmigrant
status. Thus, it is unlikely that the numerical cap will be reached in
any fiscal year in the near future.
USCIS did not consider alternatives to handling applications for
adjustment of status. Ease of administration dictates that adjustment
of status applications from T nonimmigrants would be best handled on a
first in, first out basis, because that is the way applications for T
status are currently handled. If petitions are received after the limit
is reached, they will be reviewed to determine whether they are
approvable but for the numerical cap. Approvable petitions reviewed
after the numerical cap has been reached will be placed on a waiting
list, and written notice will be sent to the petitioners. Priority on
the waiting list will be based upon the date on which the petition is
filed. At the beginning of the next fiscal year, petitions on the
waiting list will be granted first. Advantages to this approach include
allowing the alien victim to remain in the United States to assist in
the investigation or prosecution of criminal activity. If petitions for
adjustment of status exceed the annual cap, USCIS must maintain a
waiting list; however, that is not projected to occur. Thus,
incremental implementation and additional alternatives were not
considered or analyzed.
U nonimmigrant adjustment of status: The number of grants of U
nonimmigrant status that may be made in a fiscal year is limited by an
annual cap of 10,000. In the U nonimmigrant rule, USCIS decided to
adjudicate petitions on a first in, first out basis with additional
procedures for petitions received after the numerical cap has been
reached. There are no numerical caps on the applications for adjustment
of status for U nonimmigrants. Therefore, adjustment of status
applications from U nonimmigrants and their derivatives will be handled
on a first in, first out basis, with no procedures for dealing with U
adjustment retrogression.\4\ Additional alternatives that would have
provided that applications for adjustment of status from U
nonimmigrants would be handled differently than those of U
nonimmigrants were not considered.
---------------------------------------------------------------------------

\4\ When visas are limited by statute, a petitioner's priority
is determined by the date the petition was filed and visas are often
available only to applicants whose priority dates are before a
certain cut-off date. This roll-back in priority dates is what is
commonly referred to as ``visa number retrogression.''
---------------------------------------------------------------------------

5. Summary
The provisions of this rule are essential to the effective
administration of the T and U nonimmigrant adjustment of status
provisions. This rule will further humanitarian interests by protecting
victims of human trafficking and victims of other serious crimes who
have provided assistance to U.S. law enforcement in the investigation
or prosecution of such crimes. Also, this rule will strengthen the
ability of the law enforcement agencies to investigate and prosecute
crimes by providing immigration benefits to victims.
The estimated economic effects of this rule are summarized as
follows:
The estimated fees to be collected as a result of this
rule will be approximately $2,955,880 in the first year after this rule
is published, $1,932,880 in the second year, and an average about
$32,472,880 per year in the third and subsequent years after taking
effect.
No more than 5,000 T-1 principal aliens may have their
status adjusted to that of a lawful permanent resident in a given
fiscal year, but this numerical limitation does not apply to adjustment
of status of U nonimmigrants or qualifying relatives of T or U
nonimmigrants.
An estimated 330 T nonimmigrants are expected to apply for
adjustment of status in the year following the effective date of this
rule.
An estimated 286 family members of T nonimmigrants are
expected to apply for adjustment of status in the year following the
effective date of this rule.
After the U nonimmigrant rule has been in effect for 3
years, an estimated 10,000 principal U nonimmigrants are expected to
apply for adjustment of status.
An estimated 20,000 relatives of U nonimmigrants will
apply for adjustment of status within approximately 3 years following
receipt of derivative U nonimmigrant status.
An estimated 2,000 aliens will apply for immigrant visas
or adjustment of status under special provisions for certain family
members of aliens who adjusted their status as U nonimmigrants where
the qualifying family members are not physically present in the United
States or are in the United States, but not currently in U nonimmigrant
status.
With respect to the paperwork burden on the public, this
rule is estimated to cost respondents $4,940,976 in time spent on
preparing and submitting the required information.
This rule requires no outlay of congressionally-appropriated funds. All
costs will be covered by fees collected by the agency.

F. Executive Order 13132 (Federalism)

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

[[Page 75556]]

of a federalism summary impact statement.

G. 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.

H. Family Assessment

I have reviewed this regulation and determined that it may affect
family well-being as that term is defined in section 654 of the
Treasury General Appropriations Act, 1999, Public Law No. 105-277, Div.
A. Accordingly, I have assessed this action in accordance with the
criteria specified by section 654(c)(1). This regulation will
positively affect family well-being by encouraging vulnerable
individuals who have been victims of a severe form of trafficking in
persons or other specified criminal activity to report the trafficking
and criminal activity and to aid law enforcement in the investigation
and prosecution of cases and by providing critical assistance and
benefits to victims. Additionally, this regulation provides the means
for both victims and qualified family members to adjust their status to
lawful permanent residence, thereby ensuring family unity and
stability.

I. Paperwork Reduction Act of 1995

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (PRA), all Departments are required to submit to the
Office of Management and Budget (OMB), for review and approval, any
reporting or record-keeping requirements inherent in a rule. The
information collection requirements contained in this rule have been
cleared by OMB under the provisions of the Paperwork Reduction Act. 44
U.S.C. Chapter 35; 5 CFR 1320. Clearance numbers for these collections
are contained in 8 CFR 299.5, Display Control Numbers and are noted
herein. Form I-131, Application for Travel Document, OMB Control Number
1615-0013; Form I-290B, Notice of Appeal to the Administrative Appeals
Office, OMB Control Number 1615-0095; Form I-485, Application to
Register Permanent Residence or Adjust Status, OMB Control Number 1615-
0023; Form I-601, Application for Waiver of Grounds of Excludability,
OMB Control Number 1615-0029; Form I-765, Application for Employment
Authorization, OMB Control Number 1615-0040.
However, the current number of respondents listed for these
information collections on the OMB's inventory of approved information
collections will have to be increased to reflect the increase in the
number of respondents and burden hours as a result of this rule. In
addition, since this rule requires applicants submitting those forms to
pay the corresponding fees, the annual costs for these information
collections will also increase. Accordingly, USCIS has submitted an
update for the annual cost burden and number of respondents using OMB's
automated Office of Information and Regulatory Affairs Consolidated
Information System (ROCIS).
Additionally, USCIS will make non-substantive minor edits to Forms
I-131, I-601, and I-765, to reflect the new usage by T and U
nonimmigrants applying for adjustment of status. These forms, with the
minor edits, have been submitted to OMB for review and approval.
This interim rule permits certain T and U nonimmigrants to adjust
their status to that of lawful permanent residents. In addition to the
evidence required by Form I-485, this rule at 8 CFR 245.23(a) requires
T adjustment applicants to demonstrate continuous physical presence in
the United States for a requisite period, good moral character for a
requisite period, and continued cooperation with law enforcement
authorities or extreme hardship, by supplying the evidence outlined in
8 CFR 245.23(e)(2). For U adjustment applicants, in addition to the
evidence required by Form I-485, the rule at 8 CFR 245.24(a) requires
applicants to demonstrate continuous physical presence for at least 3
years and that they have not unreasonably refused to provide assistance
in the criminal investigation or prosecution by supplying the evidence
outlined in 8 CFR 245.24(d)(1) and 245.24(e)(2). These additional
documentation requirements are considered an information collection and
will be included on new Supplement E to Form I-485.
This rule also requires that U-1 nonimmigrants who are applying for
adjustment of status and wish to petition for immigrant visas or lawful
permanent residence on behalf of family members who have never held U
nonimmigrant status submit new Form I-929, Petition for Qualifying
Family Member of a U-1 Nonimmigrant, with fee in accordance with the
instructions on the form. This requirement is considered a new
information collection.
Since this is an interim rule, these information collections have
been submitted and approved by OMB under the emergency review and
clearance procedures covered under the PRA. USCIS is requesting
comments on these two information collections until February 10, 2009.
When submitting comments on the information collection(s), your
comments should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the agency, including whether the information
will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of any and all
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of Information Collection for Form I-485, and Supplement
A, and Supplement E:
a. Type of information collection: Revision of currently approved
collection.
b. Title of Form/Collection: Application to Register Permanent
Residence or Adjust Status.
c. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-485,
and Supplement A and E; U.S. Citizenship and Immigration Services.
d. Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals. Sections 245(l) and (m) of the
Act allow certain T and U nonimmigrants to adjust status to that of
lawful permanent residents. This interim rule designates Form I-485 as
the form for use by applicants for such benefits. (Supplement A of Form
I-485 is used by persons seeking to adjust their status under the
provisions of section 245(i) of the Act and therefore will not be used
by T and U nonimmigrants who are applying to adjust their status.)
Supplement E of Form I-485 provides additional instructions to T and U
nonimmigrants seeking to adjust their status and includes documentation
requirements not found on Form I-485 itself. The information collection
is necessary in order for USCIS to make a determination that the
eligibility requirements and conditions are met regarding the
applicant.

[[Page 75557]]

e. An estimate of the total number of respondents and the amount of
time estimated for an average respondent to respond: Form I-485--
617,033 respondents at 6.25 hours per response, Supplement A--3,888
respondents at 0.216 hours per response, Supplement E--33,112 at 0.75
hours per response.
f. An estimate of the total of public burden (in hours) associated
with the collection: Approximately 3,882,129 burden hours.
Overview of Information Collection for Form I-929:
a. Type of information collection: New information collection.
b. Title of Form/Collection: Petition for Qualifying Family Member
of a U-1 Nonimmigrant.
c. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-929;
U.S. Citizenship and Immigration Services.
d. Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals. Section 245(m) of the Act allows
certain qualifying family members who have never held U nonimmigrant
status to seek lawful permanent residence or apply for immigrant visas.
Before such family members may apply for adjustment of status or seek
immigrant visas, the U-1 nonimmigrant who has been granted adjustment
of status must file an immigrant petition on behalf of the qualifying
family member using Form I-929. The information collection is necessary
in order for USCIS to make a determination that the eligibility
requirements and conditions are met regarding the qualifying family
member.
e. An estimate of the total number of respondents and the amount of
time estimated for an average respondent to respond: 2,000 respondents
at 1 hour per response.
f. An estimate of the total of public burden (in hours) associated
with the collection: Approximately 2,000 burden hours.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Regulatory Management
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529, Attention: Chief, 202-272-8377.

List of Subjects

8 CFR Part 103

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

8 CFR Part 212

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

8 CFR Part 214

Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

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

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
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; Pub. L. 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.

0
2. Section 103.7 is amended by revising the entry for Form I-601 and
adding the entry for ``Form I-929'' in proper alpha-numeric sequence in
paragraph (b)(1), and revising paragraph (c)(5) to read as follows:

Sec. 103.7 Fees.

* * * * *
(b) * * *
(1) * * *
Form I-601. For filing an application for waiver of ground of
inadmissibility--$545.
* * * * *
Form I-929. For U-1 principal applicant to submit for each
qualifying family member who plans to seek an immigrant visa or
adjustment of U status--$215.
* * * * *
(c) * * *
(5) No fee relating to any application, petition, appeal, motion,
or request made to U.S. Citizenship and Immigration Services may be
waived under paragraph (c)(1) of this section except for the following:
(i) Biometrics; Form I-90; Form I-751; Form I-765; Form I-817; I-
929; Form N-300; Form N-336; Form N-400; Form N-470; Form N-565; Form
N-600; Form N-600K; and Form I-290B and motions filed with U.S.
Citizenship and Immigration Services relating to the specified forms in
this paragraph (c); and
(ii) Only in the case of an alien in lawful nonimmigrant status
under sections 101(a)(15)(T) or (U) of the Act; an applicant under
section 209(b) of the Act; an approved VAWA self-petitioner; or an
alien to whom section 212(a)(4) of the Act does not apply with respect
to adjustment of status: Form I-485 and Form I-601; and
(iii) Form I-192 and Form I-193 (only in the case of an alien
applying for lawful nonimmigrant status under sections 101(a)(15)(T) or
(U)).
* * * * *

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

0
3. 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; 8 CFR part 2.

0
4. Section 212.18 is added to read as follows:

Sec. 212.18 Applications for waivers of inadmissibility in connection
with an application for adjustment of status by T nonimmigrant status
holders.

(a) Filing the waiver application. An alien applying for a waiver
of inadmissibility under section 245(l)(2) of the Act in connection
with an application for adjustment of status under 8 CFR 245.23(a) or
(b) must submit:
(1) A completed Form I-485 application package;
(2) The appropriate fee in accordance with 8 CFR 103.7(b)(1) or an
application for a fee waiver; and, as applicable,
(3) Form I-601, Application for Waiver of Grounds of Excludability.
(b) Treatment of waiver application. (1) USCIS may not waive an
applicant's inadmissibility under sections 212(a)(3), 212(a)(10)(C), or
212(a)(10)(E) of the Act.
(2) If an applicant is inadmissible under sections 212(a)(1) or (4)
of the Act, USCIS may waive such inadmissibility if it determines that
granting a waiver is in the national interest.
(3) If any other provision of section 212(a) renders the applicant
inadmissible, USCIS may grant a waiver of inadmissibility if the
activities rendering the alien inadmissible were caused by or were
incident to the victimization and USCIS determines that it is in the
national interest to waive

[[Page 75558]]

the applicable ground or grounds of inadmissibility.
(c) Other waivers. Nothing in this section shall be construed as
limiting an alien's ability to apply for any other waivers of
inadmissibility for which he or she may be eligible.
(d) Revocation. The Secretary of Homeland Security may, at any
time, revoke a waiver previously granted through the procedures
described in 8 CFR 103.5.

PART 214--NONIMMIGRANT CLASSES

0
5. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to E.O. 13323, 69 FR 241), 1186a, 1187, 1221, 1281, 1282, 1301-1305,
1372, 1379, 1731-32, section 643, Pub. L. 104-208, 110 Stat. 3009-
708; 48 U.S.C. 1901, note, and 1931 note; 8 CFR part 2.

0
6. Sections 214.11(p)(1) and (2) are revised to read as follows:

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

* * * * *
(p) Duration of T nonimmigrant status.
(1) In general. An approved T nonimmigrant status shall expire
after 4 years from the date of approval. The status may be extended if
a Federal, State, or local law enforcement official, prosecutor, judge,
or other authority investigating or prosecuting activity relating to
human trafficking certifies that the presence of the alien in the
United States is necessary to assist in the investigation or
prosecution of such activity. At the time an alien is approved for T
nonimmigrant status or receives an extension, USCIS shall notify the
alien when his or her nonimmigrant status will expire. The applicant
shall immediately notify USCIS of any changes in the applicant's
circumstances that may affect eligibility under section
101(a)(15)(T)(i) of the Act and this section.
(2) Information pertaining to adjustment of status. USCIS will
notify an alien granted T nonimmigrant status of the requirement to
timely apply for adjustment of status, and that the failure to apply
for adjustment of status in accordance with 8 CFR 245.23 will result in
termination of the alien's T nonimmigrant status at the end of the 4-
year period unless that status is extended in accordance with paragraph
(p)(1) of this section. Aliens who properly apply for adjustment of
status to that of a person admitted to permanent residence in
accordance with 8 CFR 245.23 shall remain eligible for adjustment of
status.
* * * * *

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

0
7. 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.

0
8. Section 245.23 is added to read as follows:

Sec. 245.23 Adjustment of aliens in T nonimmigrant classification.

(a) Eligibility of principal T-1 applicants. Except as described in
paragraph (c) of this section, an alien may be granted adjustment of
status to that of an alien lawfully admitted for permanent residence,
provided the alien:
(1) Applies for such adjustment;
(2)(i) Was lawfully admitted to the United States as a T-1
nonimmigrant, as defined in 8 CFR 214.11(a)(2); and
(ii) Continues to hold such status at the time of application, or
accrued 4 years in T-1 nonimmigrant status and files a complete
application before April 13, 2009;
(3) Has been physically present in the United States for a
continuous period of at least 3 years since the first date of lawful
admission as a T-1 nonimmigrant or has been physically present in the
United States for a continuous period during the investigation or
prosecution of acts of trafficking and the Attorney General has
determined that the investigation or prosecution is complete, whichever
period of time is less; provided that if the applicant has departed
from the United States for any single period in excess of 90 days or
for any periods in the aggregate exceeding 180 days, the applicant
shall be considered to have failed to maintain continuous physical
presence in the United States for purposes of section 245(l)(1)(A) of
the Act;
(4) Is admissible to the United States under the Act, or otherwise
has been granted a waiver by USCIS of any applicable ground of
inadmissibility, at the time of examination for adjustment;
(5) Has been a person of good moral character since first being
lawfully admitted as a T-1 nonimmigrant and until USCIS completes the
adjudication of the application for adjustment of status; and
(6)(i) Has, since first being lawfully admitted as a T-1
nonimmigrant and until the conclusion of adjudication of the
application, complied with any reasonable request for assistance in the
investigation or prosecution of acts of trafficking, as defined in 8
CFR 214.11(a), or
(ii) Would suffer extreme hardship involving unusual and severe
harm upon removal from the United States, as provided in 8 CFR
214.11(i).
(b) Eligibility of derivative family members. A derivative family
member of a T-1 nonimmigrant status holder may be granted adjustment of
status to that of an alien lawfully admitted for permanent residence,
provided:
(1) The T-1 principal nonimmigrant has applied for adjustment of
status under this section and meets the eligibility requirements
described under subsection (a);
(2) The derivative family member was lawfully admitted to the
United States in T-2, T-3, T-4, or T-5 nonimmigrant status as the
spouse, parent, sibling, or child of a T-1 nonimmigrant, and continues
to hold such status at the time of application;
(3) The derivative family member has applied for such adjustment;
and
(4) The derivative family member is admissible to the United States
under the Act, or otherwise has been granted a waiver by USCIS of any
applicable ground of inadmissibility, at the time of examination for
adjustment.
(c) Exceptions. An alien is not eligible for adjustment of status
under paragraphs (a) or (b) of this section if:
(1) The alien's T nonimmigrant status has been revoked pursuant to
8 CFR 214.11(s);
(2) The alien is described in sections 212(a)(3), 212(a)(10)(C), or
212(a)(10)(E) of the Act; or
(3) The alien is inadmissible under any other provisions of section
212(a) of the Act and has not obtained a waiver of inadmissibility in
accordance with 8 CFR 212.18 or 214.11(j). Where the applicant
establishes that the victimization was a central reason for the
applicant's unlawful presence in the United States, section
212(a)(9)(B)(iii) of the Act is not applicable, and the applicant need
not obtain a waiver of that ground of inadmissibility. The applicant,
however, must submit with the Form I-485 evidence sufficient to
demonstrate that the victimization suffered was a central reason for
the unlawful presence in the United States. To qualify for this
exception, the victimization need not be the sole reason for the
unlawful presence but the nexus between the victimization and the
unlawful presence must be more than tangential, incidental, or
superficial.

[[Page 75559]]

(d) Jurisdiction. USCIS shall determine whether a T-1 applicant for
adjustment of status under this section was lawfully admitted as a T-1
nonimmigrant and continues to hold such status, has been physically
present in the United States during the requisite period, is admissible
to the United States or has otherwise been granted a waiver of any
applicable ground of inadmissibility, and has been a person of good
moral character during the requisite period. The Attorney General shall
determine whether the applicant received a reasonable request for
assistance in the investigation or prosecution of acts of trafficking
as defined in 8 CFR 214.11(a), and, if so, whether the applicant
complied in such request. If the Attorney General determines that the
applicant failed to comply with any reasonable request for assistance,
USCIS shall deny the application for adjustment of status unless USCIS
finds that the applicant would suffer extreme hardship involving
unusual and severe harm upon removal from the United States.
(e) Application.
(1) General. Each T-1 principal applicant and each derivative
family member who is applying for adjustment of status must file Form
I-485, Application to Register Permanent Residence or Adjust Status,
and
(i) Accompanying documents, in accordance with the form
instructions;
(ii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for
a fee waiver;
(iii) The biometric services fee prescribed by 8 CFR 103.7(b)(1) or
an application for a fee waiver;
(iv) A photocopy of the alien's Form I-797, Notice of Action,
granting T nonimmigrant status;
(v) A photocopy of all pages of the alien's most recent passport or
an explanation of why the alien does not have a passport;
(vi) A copy of the alien's Form I-94, Arrival-Departure Record; and
(vii) Evidence that the applicant was lawfully admitted in T
nonimmigrant status and continues to hold such status at the time of
application. For T nonimmigrants who traveled outside the United States
and re-entered using an advance parole document issued under 8 CFR
245.2(a)(4)(ii)(B), the date that the alien was first admitted in
lawful T status will be the date of admission for purposes of this
section, regardless of how the applicant's Form I-94 ``Arrival-
Departure Record'' is annotated.
(2) T-1 principal applicants. In addition to the items in paragraph
(e)(1) of this section, T-1 principal applicants must submit:
(i) Evidence, including an affidavit from the applicant and a
photocopy of all pages of all of the applicant's passports valid during
the required period (or equivalent travel document or a valid
explanation of why the applicant does not have a passport), that he or
she has been continuously physically present in the United States for
the requisite period as described in paragraph (a)(2) of this section.
Applicants should submit evidence described in 8 CFR 245.22. A signed
statement from the applicant attesting to the applicant's continuous
physical presence alone will not be sufficient to establish this
eligibility requirement. If additional documentation is not available,
the applicant must explain why in an affidavit and provide additional
affidavits from others with first-hand knowledge who can attest to the
applicant's continuous physical presence by specific facts.
(A) If the applicant has departed from and returned to the United
States while in T-1 nonimmigrant status, the applicant must submit
supporting evidence showing the dates of each departure from the United
States and the date, manner and place of each return to the United
States.
(B) Applicants applying for adjustment of status under this section
who have less than 3 years of continuous physical presence while in T-1
nonimmigrant status must submit a document signed by the Attorney
General or his designee, attesting that the investigation or
prosecution is complete.
(ii) Evidence of good moral character in accordance with paragraph
(g) of this section; and
(iii)(A) Evidence that the alien has complied with any reasonable
request for assistance in the investigation or prosecution of the
trafficking as described in paragraph (f)(1) of this section since
having first been lawfully admitted in T-1 nonimmigrant status and
until the adjudication of the application; or
(B) Evidence that the alien would suffer extreme hardship involving
unusual and severe harm if removed from the United States as described
in paragraph (f)(2) of this section.
(3) Evidence relating to discretion. Each T applicant bears the
burden of showing that discretion should be exercised in his or her
favor. Where adverse factors are present, an applicant may offset these
by submitting supporting documentation establishing mitigating equities
that the applicant wants USCIS to consider. Depending on the nature of
adverse factors, the applicant may be required to clearly demonstrate
that the denial of adjustment of status would result in exceptional and
extremely unusual hardship. Moreover, depending on the gravity of the
adverse factors, such a showing might still be insufficient. For
example, only the most compelling positive factors would justify a
favorable exercise of discretion in cases where the applicant has
committed or been convicted of a serious violent crime, a crime
involving sexual abuse committed upon a child, or multiple drug-related
crimes, or where there are security- or terrorism-related concerns.
(f) Assistance in the investigation or prosecution or a showing of
extreme hardship. Each T-1 principal applicant must establish, to the
satisfaction of the Attorney General, that since having been lawfully
admitted as a T-1 nonimmigrant and up until the adjudication of the
application, he or she complied with any reasonable request for
assistance in the investigation or prosecution of the acts of
trafficking, as defined in 8 CFR 214.11(a), or establish, to the
satisfaction of USCIS, that he or she would suffer extreme hardship
involving unusual and severe harm upon removal from the United States.
(1) Each T-1 applicant for adjustment of status under section
245(l) of the Act must submit a document issued by the Attorney General
or his designee certifying that the applicant has complied with any
reasonable requests for assistance in the investigation or prosecution
of the human trafficking offenses during the requisite period; or
(2) In lieu of showing continued compliance with requests for
assistance, an applicant may establish, to the satisfaction of USCIS,
that he or she would suffer extreme hardship involving unusual and
severe harm upon removal from the United States. The hardship
determination will be evaluated on a case-by-case basis, in accordance
with the factors described in 8 CFR 214.11(i). Where the basis for the
hardship claim represents a continuation of the hardship claimed in the
application for T nonimmigrant status, the applicant need not re-
document the entire claim, but rather may submit evidence to establish
that the previously established hardship is ongoing. However, in
reaching its decision regarding hardship under this section, USCIS is
not bound by its previous hardship determination made under 8 CFR
214.11(i).
(g) Good moral character. A T-1 nonimmigrant applicant for
adjustment of status under this section must demonstrate that he or she
has been a person of good moral character since

[[Page 75560]]

first being lawfully admitted as a T-1 nonimmigrant and until USCIS
completes the adjudication of their applications for adjustment of
status. Claims of good moral character will be evaluated on a case-by-
case basis, taking into account section 101(f) of the Act and the
standards of the community. The applicant must submit evidence of good
moral character as follows:
(1) An affidavit from the applicant attesting to his or her good
moral character, accompanied by a local police clearance or a state-
issued criminal background check from each locality or state in the
United States in which the applicant has resided for 6 or more months
during the requisite period in continued presence or T-1 nonimmigrant
status.
(2) If police clearances, criminal background checks, or similar
reports are not available for some or all locations, the applicant may
include an explanation and submit other evidence with his or her
affidavit.
(3) USCIS will consider other credible evidence of good moral
character, such as affidavits from responsible persons who can
knowledgeably attest to the applicant's good moral character.
(4) An applicant who is under 14 years of age is generally presumed
to be a person of good moral character and is not required to submit
evidence of good moral character. However, if there is reason to
believe that an applicant who is under 14 years of age may lack good
moral character, USCIS may require evidence of good moral character.
(h) Filing and decision. An application for adjustment of status
from a T nonimmigrant under section 245(l) of the Act shall be filed
with the USCIS office identified in the instructions to Form I-485.
Upon approval of adjustment of status under this section, USCIS will
record the alien's lawful admission for permanent residence as of the
date of such approval and will notify the applicant in writing.
Derivative family members' applications may not be approved before the
principal applicant's application is approved.
(i) Denial. If the application for adjustment of status or the
application for a waiver of inadmissibility is denied, USCIS will
notify the applicant in writing of the reasons for the denial and of
the right to appeal the decision to the Administrative Appeals Office
(AAO) pursuant to the AAO appeal procedures found at 8 CFR 103.3.
Denial of the T-1 principal applicant's application will result in the
automatic denial of a derivative family member's application.
(j) Effect of Departure. If an applicant for adjustment of status
under this section departs the United States, he or she shall be deemed
to have abandoned the application, and it will be denied. If, however,
the applicant is not under exclusion, deportation, or removal
proceedings, and he or she filed a Form I-131, Application for Travel
Document, in accordance with the instructions on the form, or any other
appropriate form, and was granted advance parole by USCIS for such
absences, and was inspected and paroled upon returning to the United
States, he or she will not be deemed to have abandoned the application.
If the adjustment of status application of such an individual is
subsequently denied, he or she will be treated as an applicant for
admission subject to sections 212 and 235 of the Act. If an applicant
for adjustment of status under this section is under exclusion,
deportation, or removal proceedings, USCIS will deem the application
for adjustment of status abandoned as of the moment of the applicant's
departure from the United States.
(k) Inapplicability of 8 CFR 245.1 and 245.2. Sections 245.1 and
245.2 of this chapter do not apply to aliens seeking adjustment of
status under this section.
(l) Annual cap of T-1 principal applicant adjustments. (1) General.
The total number of T-1 principal applicants whose status is adjusted
to that of lawful permanent residents under this section may not exceed
the statutory cap in any fiscal year.
(2) Waiting list. All eligible applicants who, due solely to the
limit imposed in section 245(l)(4) of the Act and paragraph (m)(1) of
this section, are not granted adjustment of status will be placed on a
waiting list. USCIS will send the applicant written notice of such
placement. Priority on the waiting list will be determined by the date
the application was properly filed, with the oldest applications
receiving the highest priority. In the following fiscal year, USCIS
will proceed with granting adjustment of status to applicants on the
waiting list who remain admissible and eligible for adjustment of
status in order of highest priority until the available numbers are
exhausted for the given fiscal year. After the status of qualifying
applicants on the waiting list has been adjusted, any remaining numbers
for that fiscal year will be issued to new qualifying applicants in the
order that the applications were properly filed.

0
9. Section 245.24 is added to read as follows:

Sec. 245.24 Adjustment of aliens in U nonimmigrant status.

(a) Definitions. As used in this section, the term:
(1) Continuous Physical Presence means the period of time that the
alien has been physically present in the United States and must be a
continuous period of at least 3 years since the date of admission as a
U nonimmigrant continuing through the date of the conclusion of
adjudication of the application for adjustment of status. If the alien
has departed from the United States for any single period in excess of
90 days or for any periods in the aggregate exceeding 180 days, the
applicant must include a certification from the agency that signed the
Form I-918, Supplement B, in support of the alien's U nonimmigrant
status that the absences were necessary to assist in the criminal
investigation or prosecution or were otherwise justified.
(2) Qualifying Family Member means a U-1 principal applicant's
spouse, child, or, in the case of an alien child, a parent who has
never been admitted to the United States as a nonimmigrant under
sections 101(a)(15)(U) and 214(p) of the Act.
(3) U Interim Relief means deferred action and work authorization
benefits provided by USCIS or the Immigration and Naturalization
Service to applicants for U nonimmigrant status deemed prima facie
eligible for U nonimmigrant status prior to publication of the U
nonimmigrant status regulations.
(4) U Nonimmigrant means an alien who is in lawful U-1, U-2, U-3,
U-4, or U-5 status.
(5) Refusal to Provide Assistance in a Criminal Investigation or
Prosecution is the refusal by the alien to provide assistance to a law
enforcement agency or official that had responsibility for the
investigation or prosecution of persons in connection with the
qualifying criminal activity after the alien was granted U nonimmigrant
status. The Attorney General will determine whether the alien's refusal
was unreasonable under the totality of the circumstances based on all
available affirmative evidence. The Attorney General may take into
account such factors as general law enforcement, prosecutorial, and
judicial practices; the kinds of assistance asked of other victims of
crimes involving an element of force, coercion, or fraud; the nature of
the request to the alien for assistance; the nature of the
victimization; the applicable guidelines for victim and witness
assistance; and the specific circumstances of the applicant, including
fear, severe traumatization (both mental and physical), and the age and
maturity of the applicant.
(b) Eligibility of U Nonimmigrants. Except as described in
paragraph (c) of this section, an alien may be granted

[[Page 75561]]

adjustment of status to that of an alien lawfully admitted for
permanent residence, provided the alien:
(1) Applies for such adjustment;
(2)(i) Was lawfully admitted to the United States as either a U-1,
U-2, U-3, U-4 or U-5 nonimmigrant, as defined in 8 CFR 214.1(a)(2), and
(ii) Continues to hold such status at the time of application; or
accrued at least 4 years in U interim relief status and files a
complete adjustment application within 120 days of the date of approval
of the Form I-918, Petition for U Nonimmigrant Status;
(3) Has continuous physical presence for 3 years as defined in
paragraph (a)(1) of this section;
(4) Is not inadmissible under section 212(a)(3)(E) of the Act;
(5) Has not unreasonably refused to provide assistance to an
official or law enforcement agency that had responsibility in an
investigation or prosecution of persons in connection with the
qualifying criminal activity after the alien was granted U nonimmigrant
status, as determined by the Attorney General, based on affirmative
evidence; and
(6) Establishes to the satisfaction of the Secretary that the
alien's presence in the United States is justified on humanitarian
grounds, to ensure family unity, or is in the public interest.
(c) Exception. An alien is not eligible for adjustment of status
under paragraph (b) of this section if the alien's U nonimmigrant
status has been revoked pursuant to 8 CFR 214.14(h).
(d) Application Procedures for U nonimmigrants. Each U nonimmigrant
who is requesting adjustment of status must submit:
(1) Form I-485, Application to Register Permanent Residence or
Adjust Status, in accordance with the form instructions;
(2) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a
fee waiver;
(3) The biometric services fee as prescribed in 8 CFR 103.7(b)(1)
or an application for a fee waiver;
(4) A photocopy of the alien's Form I-797, Notice of Action,
granting U nonimmigrant status;
(5) A photocopy of all pages of all of the applicant's passports
valid during the required period (or equivalent travel document or a
valid explanation of why the applicant does not have a passport) and
documentation showing the following:
(i) The date of any departure from the United States during the
period that the applicant was in U nonimmigrant status;
(ii) The date, manner, and place of each return to the United
States during the period that the applicant was in U nonimmigrant
status; and
(iii) If the applicant has been absent from the United States for
any period in excess of 90 days or for any periods in the aggregate of
180 days or more, a certification from the investigating or prosecuting
agency that the absences were necessary to assist in the investigation
or prosecution of the criminal activity or were otherwise justified;
(6) A copy of the alien's Form I-94, Arrival-Departure Record;
(7) Evidence that the applicant was lawfully admitted in U
nonimmigrant status and continues to hold such status at the time of
application;
(8) Evidence pertaining to any request made to the alien by an
official or law enforcement agency for assistance in an investigation
or prosecution of persons in connection with the qualifying criminal
activity, and the alien's response to such request;
(9) Evidence, including an affidavit from the applicant, that he or
she has continuous physical presence for at least 3 years as defined in
paragraph (a)(1) of this section. Applicants should submit evidence
described in 8 CFR 245.22. A signed statement from the applicant
attesting to continuous physical presence alone will not be sufficient
to establish this eligibility requirement. If additional documentation
is not available, the applicant must explain why in an affidavit and
provide additional affidavits from others with first-hand knowledge who
can attest to the applicant's continuous physical presence by specific:
(10) Evidence establishing that approval is warranted. Any other
information required by the instructions to Form I-485, including
whether adjustment of status is warranted as a matter of discretion on
humanitarian grounds, to ensure family unity, or is otherwise in the
public interest.
(11) Evidence relating to discretion. An applicant has the burden
of showing that discretion should be exercised in his or her favor.
Although U adjustment applicants are not required to establish that
they are admissible, USCIS may take into account all factors, including
acts that would otherwise render the applicant inadmissible, in making
its discretionary decision on the application. Where adverse factors
are present, an applicant may offset these by submitting supporting
documentation establishing mitigating equities that the applicant wants
USCIS to consider when determining whether or not a favorable exercise
of discretion is appropriate. Depending on the nature of the adverse
factors, the applicant may be required to clearly demonstrate that the
denial of adjustment of status would result in exceptional and
extremely unusual hardship. Moreover, depending on the gravity of the
adverse factors, such a showing might still be insufficient. For
example, USCIS will generally not exercise its discretion favorably in
cases where the applicant has committed or been convicted of a serious
violent crime, a crime involving sexual abuse committed upon a child,
or multiple drug-related crimes, or where there are security- or
terrorism-related concerns.
(e) Continued assistance in the investigation or prosecution. Each
applicant for adjustment of status under section 245(m) of the Act must
provide evidence of whether or not any request was made to the alien to
provide assistance, after having been lawfully admitted as a U
nonimmigrant, in an investigation or prosecution of persons in
connection with the qualifying criminal activity, and his or her
response to any such requests.
(1) An applicant for adjustment of status under section 245(m) of
the Act may submit a document signed by an official or law enforcement
agency that had responsibility for the investigation or prosecution of
persons in connection with the qualifying criminal activity, affirming
that the applicant complied with (or did not unreasonably refuse to
comply with) reasonable requests for assistance in the investigation or
prosecution during the requisite period. To meet this evidentiary
requirement, applicants may submit a newly executed Form I-918,
Supplement B, ``U Nonimmigrant Status Certification.''
(2) If the applicant does not submit a document described in
paragraph (e)(1) of this section, the applicant may submit an affidavit
describing the applicant's efforts, if any, to obtain a newly executed
Form I-918, Supplement B, or other evidence describing whether or not
the alien received any request to provide assistance in a criminal
investigation or prosecution, and the alien's response to any such
request.
(i) The applicant should also include, when possible, identifying
information about the law enforcement personnel involved in the case
and any information, of which the applicant is aware, about the status
of the criminal investigation or prosecution, including any charges
filed and the outcome of any criminal proceedings, or whether the
investigation or prosecution was dropped and the reasons.
(ii) If applicable, an applicant may also provide a more detailed
description

[[Page 75562]]

of situations where the applicant refused to comply with requests for
assistance because the applicant believed that the requests for
assistance were unreasonable.
(3) In determining whether the applicant has satisfied the
continued assistance requirement, USCIS or the Department of Justice
may at its discretion contact the certifying agency that executed the
applicant's original Form I-918, Supplement B, ``U Nonimmigrant Status
Certification'' or any other law enforcement agency.
(4) In accordance with procedures determined by the Department of
Justice and the Department of Homeland Security, USCIS will refer
certain applications for adjustment of status to the Department of
Justice for determination of whether the applicant unreasonably refused
to provide assistance in a criminal investigation or prosecution. If
the applicant submits a document described in paragraph (e)(1) of this
section, USCIS will not refer the application for consideration by the
Department of Justice absent extraordinary circumstances. In other
cases, USCIS will only refer an application to the Department of
Justice if an official or law enforcement agency has provided evidence
that the alien has refused to comply with requests to provide
assistance in an investigation or prosecution of persons in connection
with the qualifying criminal activity or if there are other affirmative
evidence in the record suggesting that the applicant may have
unreasonably refused to provide such assistance. In these instances,
USCIS will request that the Department of Justice determine, based on
all available affirmative evidence, whether the applicant unreasonably
refused to provide assistance in a criminal investigation or
prosecution. The Department of Justice will have 90 days to provide a
written determination to USCIS, or where appropriate, request an
extension of time to provide such a determination. After such time,
USCIS may adjudicate the application whether or not the Department of
Justice has provided a response.
(f) Decision. The decision to approve or deny a Form I-485 filed
under section 245(m) of the Act is a discretionary determination that
lies solely within USCIS's jurisdiction. After completing its review of
the application and evidence, USCIS will issue a written decision
approving or denying Form I-485 and notify the applicant of this
decision.
(1) Approvals. If USCIS determines that the applicant has met the
requirements for adjustment of status and merits a favorable exercise
of discretion, USCIS will approve the Form I-485. Upon approval of
adjustment of status under this section, USCIS will record the alien's
lawful admission for permanent residence as of the date of such
approval.
(2) Denials. Upon the denial of an application for adjustment of
status under section 245(m) of the Act, the applicant will be notified
in writing of the decision and the reason for the denial in accordance
with 8 CFR part 103. If an applicant chooses to appeal the denial to
the Administrative Appeals Office pursuant to the provisions of 8 CFR
103.3, the denial will not become final until the appeal is
adjudicated.
(g) Filing petitions for qualifying family members. A principal U-1
applicant may file an immigrant petition under section 245(m)(3) of the
Act on behalf of a qualifying family member as defined in paragraph
(a)(2) of this section, provided that:
(1) The qualifying family member has never held U nonimmigrant
status;
(2) The qualifying family relationship, as defined in paragraph
(a)(2) of this section, exists at the time of the U-1 principal's
adjustment and continues to exist through the adjudication of the
adjustment or issuance of the immigrant visa for the qualifying family
member;
(3) The qualifying family member or the principal U-1 alien, would
suffer extreme hardship as described in 8 CFR 245.24(g) (to the extent
the factors listed are applicable) if the qualifying family member is
not allowed to remain in or enter the United States; and
(4) The principal U-1 alien has adjusted status to that of a lawful
permanent resident, has a pending application for adjustment of status,
or is concurrently filing an application for adjustment of status.
(h) Procedures for filing petitions for qualifying family members.
(1) Required documents. For each qualifying family member who plans
to seek an immigrant visa or adjustment of status under section
245(m)(3) of the Act, the U-1 principal applicant must submit, either
concurrently with, or after he or she has filed, his or her Form I-485:
(i) Form I-929 in accordance with the form instructions;
(ii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for
a fee waiver;
(iii) Evidence of the relationship listed in paragraph (a)(2) of
this section, such as a birth or marriage certificate. If primary
evidence is unavailable, secondary evidence or affidavits may be
submitted in accordance with 8 CFR 103.2(b)(2);
(iv) Evidence establishing that either the qualifying family member
or the U-1 principal alien would suffer extreme hardship if the
qualifying family member is not allowed to remain in or join the
principal in the United States. Extreme hardship is evaluated on a
case-by-case basis, taking into account the particular facts and
circumstances of each case. Applicants are encouraged to document all
applicable factors in their applications, as the presence or absence of
any one factor may not be determinative in evaluating extreme hardship.
To establish extreme hardship to a qualifying family member who is
physically present in the United States, an applicant must demonstrate
that removal of the qualifying family member would result in a degree
of hardship beyond that typically associated with removal. Factors that
may be considered in evaluating whether removal would result in extreme
hardship to the alien or to the alien's qualifying family member
include, but are not limited to:
(A) The nature and extent of the physical or mental abuse suffered
as a result of having been a victim of criminal activity;
(B) The impact of loss of access to the United States courts and
criminal justice system, including but not limited to, participation in
the criminal investigation or prosecution of the criminal activity of
which the alien was a victim, and any civil proceedings related to
family law, child custody, or other court proceeding stemming from the
criminal activity;
(C) The likelihood that the perpetrator's family, friends, or
others acting on behalf of the perpetrator in the home country would
harm the applicant or the applicant's children;
(D) The applicant's needs for social, medical, mental health, or
other supportive services for victims of crime that are unavailable or
not reasonably accessible in the home country;
(E) Where the criminal activity involved arose in a domestic
violence context, the existence of laws and social practices in the
home country that punish the applicant or the applicant's child(ren)
because they have been victims of domestic violence or have taken steps
to leave an abusive household;
(F) The perpetrator's ability to travel to the home country and the
ability and willingness of authorities in the home country to protect
the applicant or the applicant's children; and
(G) The age of the applicant, both at the time of entry to the
United States and at the time of application for adjustment of status;
and

[[Page 75563]]

(v) Evidence, including a signed statement from the qualifying
family member and other supporting documentation, to establish that
discretion should be exercised in his or her favor. Although qualifying
family members are not required to establish that they are admissible
on any of the grounds set forth in section 212(a) of the Act other than
on section 212(a)(3)(E) of the Act, USCIS may take into account all
factors, including acts that would otherwise render the applicant
inadmissible, in making its discretionary decision on the application.
Where adverse factors are present, an applicant may offset these by
submitting supporting documentation establishing mitigating equities
that the applicant wants USCIS to consider when determining whether or
not a favorable exercise of discretion is appropriate. Depending on the
nature of the adverse factors, the applicant may be required to clearly
demonstrate that the denial of adjustment of status would result in
exceptional and extremely unusual hardship. Moreover, depending on the
gravity of the adverse factors, such a showing might still be
insufficient. For example, USCIS will generally not exercise its
discretion favorably in cases where the applicant has committed or been
convicted of a serious violent crime, a crime involving sexual abuse
committed upon a child, or multiple drug-related crimes, or where there
are security- or terrorism-related concerns.
(2) Decision. The decision to approve or deny a Form I-929 is a
discretionary determination that lies solely within USCIS's
jurisdiction. The Form I-929 for a qualifying family member may not be
approved, however, until such time as the principal U-1 applicant's
application for adjustment of status has been approved. After
completing its review of the application and evidence, USCIS will issue
a written decision and notify the applicant of that decision in
writing.
(i) Approvals. (A) For qualifying family members who are outside of
the United States, if the Form I-929 is approved, USCIS will forward
notice of the approval either to the Department of State's National
Visa Center so the applicant can apply to the consular post for an
immigrant visa, or to the appropriate port of entry for a visa exempt
alien.
(B) For qualifying family members who are physically present in the
United States, if the Form I-929 is approved, USCIS will forward notice
of the approval to the U-1 principal applicant.
(ii) Denials. If the Form I-929 is denied, the applicant will be
notified in writing of the reason(s) for the denial in accordance with
8 CFR part 103. If an applicant chooses to appeal the denial to the
Administrative Appeals Office pursuant to 8 CFR 103.3, the denial will
not become final until the appeal is adjudicated. Denial of the U-1
principal applicant's application will result in the automatic denial
of a qualifying family member's Form I-929. There shall be no appeal of
such an automatic denial.
(i) Application procedures for qualifying family members who are
physically present in the United States to request adjustment of
status. (1) Required documents. Qualifying family members in the United
States may request adjustment of status by submitting:
(i) Form I-485, Application to Register Permanent Residence or
Adjust Status, in accordance with the form instructions;
(ii) An approved Form I-929, Petition for Qualifying Family Member
of a U-1 Nonimmigrant;
(iii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for
a fee waiver; and
(iv) The biometric services fee as prescribed in 8 CFR 103.7(b)(1)
or an application for a fee waiver.
(2) Decision. The decision to approve or deny Form I-485 is a
discretionary determination that lies solely within USCIS's
jurisdiction. After completing its review of the application and
evidence, USCIS will issue a written decision approving or denying Form
I-485 and notify the applicant of this decision in writing.
(i) Approvals. Upon approval of a Form I-485 under this section,
USCIS shall record the alien's lawful admission for permanent residence
as of the date of such approval.
(ii) Denial. Upon the denial of any application for adjustment of
status, the applicant will be notified in writing of the decision and
the reason for the denial in accordance with 8 CFR part 103. If an
applicant chooses to appeal the denial to the Administrative Appeals
Office pursuant to the provisions of 8 CFR 103.3, the denial will not
become final until the appeal is adjudicated. During the appeal period,
the applicant may not obtain or renew employment authorization under 8
CFR 274a.12(c)(9). Denial of the U-1 principal applicant's application
will result in the automatic denial of a qualifying family member's
Form I-485; such an automatic denial is not appealable.
(j) Effect of departure. If an applicant for adjustment of status
under this section departs the United States, he or she shall be deemed
to have abandoned the application, and it will be denied. If, however,
the applicant is not under exclusion, deportation, or removal
proceedings, and he or she filed a Form I-131, Application for Travel
Document, in accordance with the instructions on the form, or any other
appropriate form, and was granted advance parole by USCIS for such
absences, and was inspected and paroled upon returning to the United
States, he or she will not be deemed to have abandoned the application.
If the adjustment of status application of such an individual is
subsequently denied, he or she will be treated as an applicant for
admission subject to sections 212 and 235 of the Act. If an applicant
for adjustment of status under this section is under exclusion,
deportation, or removal proceedings, USCIS will deem the application
for adjustment of status abandoned as of the moment of the applicant's
departure from the United States.
(k) Exclusive jurisdiction. USCIS shall have exclusive jurisdiction
over adjustment applications filed under section 245(m) of the Act.
(l) Inapplicability of 8 CFR 245.1 and 245.2. The provisions of 8
CFR 245.1 and 245.2 do not apply to aliens seeking adjustment of status
under section 245(m) of the Act.

PART 299--PRESCRIBED FORMS

0
10. The authority citation in part 299 continues to read as follows:

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

0
11. Section 299.1 is amended in the table by adding the entries ``I-
485, Supplement E'' and ``I-929'', in proper alpha/numeric sequence to
read as follows:

Sec. 299.1 Prescribed forms.

* * * * *

[[Page 75564]]

------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------

* * * * * * *
I-485, Supplement E............ 10/31/08 T and U Nonimmigrant
Supplement to Form I-
485 Instructions.

* * * * * * *
I-929.......................... 10/31/08 Petition for Qualifying
Family Member of a U-1
Nonimmigrant.

* * * * * * *
------------------------------------------------------------------------

0
12. Section 299.5 is amended in the table by adding the entries ``I-
485, Supplement E'' and ``I-929'', in proper alpha/numeric sequence to
read as follows:

Sec. 299.5 Display of control numbers.

* * * * *

------------------------------------------------------------------------
Currently assigned
Form No. Form title OMB control No.
------------------------------------------------------------------------

* * * * * * *
I-485, Supplement E......... T and U Nonimmigrant 1615-0023
Supplement to Form
I-485 Instructions.

* * * * * * *
I-929....................... Petition for 1615-0106
Qualifying Family
Member of a U-1
Nonimmigrant.

* * * * * * *
------------------------------------------------------------------------

Paul A. Schneider,
Deputy Secretary.
[FR Doc. E8-29277 Filed 12-11-08; 8:45 am]
BILLING CODE 9111-97-P