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Title 8 Part 1245

Title 8 → Chapter V → Subchapter B → Part 1245

Electronic Code of Federal Regulations e-CFR

Title 8 Part 1245

e-CFR data is current as of November 16, 2018

Title 8Chapter VSubchapter B → Part 1245


Title 8: Aliens and Nationality


PART 1245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE


Contents
§1245.1   Eligibility.
§1245.2   Application.
§1245.3   Adjustment of status under section 13 of the Act of September 11, 1957, as amended.
§1245.4   Documentary requirements.
§1245.5   Medical examination.
§1245.6   Interview.
§1245.7   Adjustment of status of certain Soviet and Indochinese parolees under the Foreign Operations Appropriations Act for Fiscal Year 1990 (Pub. L. 101-167).
§1245.8   Adjustment of status as a special immigrant under section 101(a)(27)(K) of the Act.
§1245.9   Adjustment of status of certain nationals of the People's Republic of China under Public Law 102-404.
§1245.10   Adjustment of status upon payment of additional sum under section 245(i).
§1245.11   Adjustment of aliens in S nonimmigrant classification.
§1245.12   What are the procedures for certain Polish and Hungarian parolees who are adjusting status to that of permanent resident under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996?
§1245.13   Adjustment of status of certain nationals of Nicaragua and Cuba under Public Law 105-100.
§1245.14   Adjustment of status of certain health care workers.
§1245.15   Adjustment of status of certain Haitian nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
§1245.18   How can physicians (with approved Forms I-140) that are serving in medically underserved areas or at a Veterans Affairs facility adjust status?
§1245.20   Adjustment of status of Syrian asylees under Public Law 106-378.
§1245.21   Adjustment of status of certain nationals of Vietnam, Cambodia, and Laos (section 586 of Public Law 106-429).
§1245.22   Evidence to demonstrate an alien's physical presence in the United States on a specific date.

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277, 112 Stat. 2681; Title VII of Public Law 110-229.

Source: Duplicated from part 245 at 68 FR 9842, Feb. 28, 2003.

Editorial Note: Nomenclature changes to part 1245 appear at 68 FR 9846, Feb. 28, 2003, and 68 FR 10357, Mar. 5, 2003.

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§1245.1   Eligibility.

(a) General. Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application. A special immigrant described under section 101(a)(27)(J) of the Act shall be deemed, for the purpose of applying the adjustment to status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States.

(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and §1245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in §1245.1(c), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status:

(1) Any alien who entered the United States in transit without a visa;

(2) Any alien who, on arrival in the United States, was serving in any capacity on board a vessel or aircraft or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon;

(3) Any alien who was not admitted or paroled following inspection by an immigration officer;

(4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status. This restriction shall not apply to an alien who is:

(i) An immediate relative as defined in section 201(b) of the Act;

(ii) A special immigrant as defined in section 101(a)(27)(H) or (J) of the Act;

(iii) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991; or

(iv) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989), and has not entered into or continued in unauthorized employment on or after November 29, 1990.

(5) Any alien who on or after November 6, 1986 is not in lawful immigration status on the date of filing his or her application for adjustment of status, except an applicant who is an immediate relative as defined in section 201(b) or a special immigrant as defined in section 101(a)(27) (H), (I), or (J).

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27) (H), (I), or (J) of the Act;

(7) Any alien admitted as a visitor under the visa waiver provisions of 8 CFR 212.1(e) or (q), other than an immediate relative as defined in section 201(b) of the Act;

(8) Any alien admitted as a Visa Waiver Pilot Program visitor under the provisions of section 217 of the Act and part 217 of 8 CFR chapter I other than an immediate relative as defined in section 201(b) of the Act;

(9) Any alien who seeks adjustment of status pursuant to an employment-based immigrant visa petition under section 203(b) of the Act and who is not maintaining a lawful nonimmigrant status at the time he or she files an application for adjustment of status; and

(10) Any alien who was ever employed in the United States without the authorization of the Service or who has otherwise at any time violated the terms of his or her admission to the United States as a nonimmigrant, except an alien who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this paragraph, an alien who meets the requirements of §1274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application.

(c) Ineligible aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act:

(1) Any nonpreference alien who is seeking or engaging in gainful employment in the United States who is not the beneficiary of a valid individual or blanket labor certification issued by the Secretary of Labor or who is not exempt from certification requirements under §1212.8(b) of this chapter;

(2) Except for an alien who is applying for residence under the provisions of section 133 of the Immigration Act of 1990, any alien who has or had the status of an exchange visitor under section 101(a)(15)(J) of the Act and who is subject to the foreign residence requirement of section 212(e) of the Act, unless the alien has complied with the foreign residence requirement or has been granted a waiver of that requirement, under that section. An alien who has been granted a waiver under section 212(e)(iii) of the Act based on a request by a State Department of Health (or its equivalent) under Pub. L. 103-416 shall be ineligible to apply for adjustment of status under section 245 of the Act if the terms and conditions specified in section 214(k) of the Act and §1212.7(c)(9) of this chapter have not been met;

(3) Any alien who has nonimmigrant status under paragraph (15)(A), (15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational status which would, if the alien were seeking admission to the United States, entitle the alien to nonimmigrant status under those paragraphs, unless the alien first executes and submits the written waiver required by section 247(b) of the Act and part 247 of 8 CFR chapter 1;

(4) Any alien who claims immediate relative status under section 201(b) or preference status under sections 203(a) or 203(b) of the Act, unless the applicant is the beneficiary of a valid unexpired visa petition filed in accordance with part 204 of 8 CFR chapter 1;

(5) Any alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 or 216A of the Act, regardless of any other quota or non-quota immigrant visa classification for which the alien may otherwise be eligible;

(6) Any alien admitted to the United States as a nonimmigrant defined in section 101(a)(15)(K) of the Act, unless:

(i) In the case of a K-1 fianceé(e) under section 101(a)(15)(K)(i) of the Act or the K-2 child of a fianceé(e) under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-1 fianceé(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fianceé(e) pursuant to §214.2(k) of 8 CFR chapter 1;

(ii) In the case of a K-3 spouse under section 101(a)(15)(K)(ii) of the Act or the K-4 child of a spouse under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-3 spouse to the United States citizen who filed a petition on behalf of the K-3 spouse pursuant to §214.2(k) of 8 CFR chapter I;

(7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of the Act, unless the nonimmigrant is applying for adjustment of status pursuant to the request of a law enforcement authority, the provisions of section 101(a)(15)(S) of the Act, and 8 CFR 1245.11;

(8) Any alien who seeks to adjust status based upon a marriage which occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto.

(i) Commencement of proceedings. The period during which the alien is in deportation, exclusion, or removal proceedings or judicial proceedings relating thereto, commences:

(A) With the issuance of the Form I-221, Order to Show Cause and Notice of Hearing prior to June 20, 1991;

(B) With the filing of a Form I-221, Order to Show Cause and Notice of Hearing, issued on or after June 20, 1991, with the Immigration Court;

(C) With the issuance of Form I-122, Notice to Applicant for Admission Detained for Hearing Before Immigration Judge, prior to April 1, 1997,

(D) With the filing of a Form I-862, Notice to Appear, with the Immigration Court, or

(E) With the issuance and service of Form I-860, Notice and Order of Expedited Removal.

(ii) Termination of proceedings. The period during which the alien is in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto, terminates:

(A) When the alien departs from the United States while an order of exclusion, deportation, or removal is outstanding or before the expiration of the voluntary departure time granted in connection with an alternate order of deportation or removal;

(B) When the alien is found not to be inadmissible or deportable from the United States;

(C) When the Form I-122, I-221, I-860, or I-862 is canceled;

(D) When proceedings are terminated by the immigration judge or the Board of Immigration Appeals; or

(E) When a petition for review or an action for habeas corpus is granted by a Federal court on judicial review.

(iii) Exemptions. This prohibition shall no longer apply if:

(A) The alien is found not to be inadmissible or deportable from the United States;

(B) Form I-122, I-221, I-860, or I-862, is canceled;

(C) Proceedings are terminated by the immigration judge or the Board of Immigration Appeals;

(D) A petition for review or an action for habeas corpus is granted by a Federal court on judicial review;

(E) The alien has resided outside the United States for 2 or more years following the marriage; or

(F) The alien establishes the marriage is bona fide by providing clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, was not entered into for the purpose of procuring the alien's entry as an immigrant, and no fee or other consideration was given (other than to an attorney for assistance in preparation of a lawful petition) for the filing of a petition.

(iv) Request for exemption. No application or fee is required to request the exemption under section 245(e) of the Act. The request must be made in writing and submitted with the Form I-485. Application for Permanent Residence. The request must state the basis for requesting consideration for the exemption and must be supported by documentary evidence establishing eligibility for the exemption.

(v) Evidence to establish eligibility for the bona fide marriage exemption. Section 204(g) of the Act provides that certain visa petitions based upon marriages entered into during deportation, exclusion or related judicial proceedings may be approved only if the petitioner provides clear and convincing evidence that the marriage is bona fide. Evidence that a visa petition based upon the same marriage was approved under the bona fide marriage exemption to section 204(g) of the Act will be considered primary evidence of eligibility for the bona fide marriage exemption provided in this part. The applicant will not be required to submit additional evidence to qualify for the bona fide marriage exemption provided in this part, unless the district director determines that such additional evidence is needed. In cases where the district director notifies the applicant that additional evidence is required, the applicant must submit documentary evidence which clearly and convincingly establishes that the marriage was entered into in good faith and not entered into for the purpose of procuring the alien's entry as an immigrant. Such evidence may include:

(A) Documentation showing joint ownership of property;

(B) Lease showing joint tenancy of a common residence;

(C) Documentation showing commingling of financial resources;

(D) Birth certificates of children born to the applicant and his or her spouse;

(E) Affidavits of third parties having knowledge of the bona fides of the marital relationship, or

(F) Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States.

(vi) Decision. An application for adjustment of status filed during the prohibited period shall be denied, unless the applicant establishes eligibility for an exemption from the general prohibition.

(vii) Denials. The denial of an application for adjustment of status because the marriage took place during the prohibited period shall be without prejudice to the consideration of a new application or a motion to reopen a previously denied application, if deportation or exclusion proceedings are terminated while the alien is in the United States. The denial shall also be without prejudice to the consideration of a new application or motion to reopen the adjustment of status application, if the applicant presents clear and convincing evidence establishing eligibility for the bona fide marriage exemption contained in this part.

(viii) Appeals. An application for adjustment of status to lawful permanent resident which is denied by the district director solely because the applicant failed to establish eligibility for the bona fide marriage exemption contained in this part may be appealed to the Associate Commissioner, Examinations, in accordance with 8 CFR part 103. The appeal to the Associate Commissioner, Examinations, shall be the single level of appellate review established by statute.

(d) Definitions—(1) Lawful immigration status. For purposes of section 245(c)(2) of the Act, the term “lawful immigration status” will only describe the immigration status of an individual who is:

(i) In lawful permanent resident status;

(ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter I;

(iii) In refugee status under section 207 of the Act, such status not having been revoked;

(iv) In asylee status under section 208 of the Act, such status not having been revoked;

(v) In parole status which has not expired, been revoked or terminated; or

(vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.

(2) No fault of the applicant or for technical reasons. The parenthetical phrase other than through no fault of his or her own or for technical reasons shall be limited to:

(i) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization (as, for example, where a designated school official certified under §214.2(f) of 8 CFR chapter I or an exchange propram sponsor under §214.2(j) of 8 CFR chapter I did not provide required notification to the Service of continuation of status, or did not forward a request for continuation of status to the Service); or

(ii) A technical violation resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request). An individual whose refugee or asylum status has expired through passage of time, but whose status has not been revoked, will be considered to have gone out of status for a technical reason.

(iii) A technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from the Service either in person or by mail (as, for example, an individual who is hospitalized with an illness at the time nonimmigrant stay expires). The explanation of such a technical violation shall be accompanied by a letter explaining the circumstances from the hospital or attending physician.

(iv) A technical violation resulting from the Service's application of the maximum five/six year period of stay for certain H-1 nurses only if the applicant was subsequently reinstated to H-1 status in accordance with the terms of Public Law 101-656 (Immigration Amendments of 1988).

(3) Effect of departure. The departure and subsequent reentry of an individual who was employed without authorization in the United States after January 1, 1977 does not erase the bar to adjustment of status in section 245(c)(2) of the Act. Similarly, the departure and subsequent reentry of an individual who has not maintained a lawful immigration status on any previous entry into the United States does not erase the bar to adjustment of status in section 245(c)(2) of the Act for any application filed on or after November 6, 1986.

(e) Special categories—(1) Alien medical graduates. Any alien who is a medical graduate qualified for special immigrant classification under section 101(a)(27)(H) of the Act and is the beneficiary of an approved petition as required under section 204(a)(1)(E)(i) of the Act is eligible for adjustment of status. An accompanying spouse and children also may apply for adjustment of status under this section. Temporary absences from the United States for 30 days or less, during which the applicant was practicing or studying medicine, do not interrupt the continuous presence requirement. Temporary absences authorized under the Service's advance parole procedures will not be considered interruptive of continuous presence when the alien applies for adjustment of status.

(2) Adjustment of certain nurses who were in H-1 nonimmigrant status on September 1, 1989 (Pub. L. 101-238)—(i) Eligibility. An alien is eligible to apply for adjustment of status without regard to the numerical limitations of sections 201 and 202 of the Act if:

(A) The applicant was admitted to the United States in, or had been granted a change of status to, nonimmigrant status under section 101(a)(15)(H)(i) of the Act on or before September 1, 1989, to perform services as a registered nurse (regardless of the date upon which the applicant's authorization to remain in the United States expired or will expire), and the applicant had not thereafter been granted a change to status to any other nonimmigrant classification prior to September 1, 1989,

(B) The applicant has been employed in the United States as a registered nurse for an aggregate of three years prior to the date of application for adjustment of status,

(C) The applicant's continued employment as a registered nurse meets the standards established for certification described in section 212(a)(5)(A)(i) of the Act,

(D) The applicant is the beneficiary of:

(1) A valid, unexpired visa petition filed prior to October 1, 1991, which has been approved to grant the applicant preference status under section 202(a) (3) or (6) of the Act (as in effect prior to October 1, 1991), and is deemed by operation of the automatic conversion provisions of section 4 of Public Law 102-110 (the Armed Forces Immigration Adjustment Act of 1991), to be effective to grant the applicant preference status under section 203(b) (2) or (3) of the Act (as in effect on and after October 1, 1991) because of his or here occupation as a registered nurse, provided the application for adjustment of status is approved no later than October 1, 1993, or

(2) A valid, unexpired visa petition filed on or after October 1, 1991, which has been approved to grant the applicant preference, status under section 203(b) (1), (2), or (3) of this Act (as in effect on and after October 1, 1991) because of his or her occupation as a registered nurse, and

(E) The applicant properly files an application for adjustment of status under the provisions of section 245 of the Act.

(ii) Application period. To benefit from the provisions of Public Law 101-238, an alien must properly file an application for adjustments of status under section 245 of the Act on or before March 20, 1995.

(iii) Application. An applicant for the benefits of Public Law 101-238 must file an application for adjustment of status on Form I-485, accompanied by the fee and supporting documents described in §1245.2 of this part. Beneficiaries of Public Law 101-238 must also submit:

(A) Evidence that the applicant is the beneficiary of:

(1) A valid, unexpired visa petition filed prior to October 1, 1991, which has been approved to grant the applicant preference status under section 203(a) (3) or (6) of the Act (as in effect prior to October 1, 1991) and is deemed by operation of the automatic conversion provisions of section 4 of Public Law 101-110 to be effective to grant the applicant preference status under section 203(b) (2) or (3) of the Act (as in effect on and after October 1, 1991) because of his or her occupation as a registered nurse, provided the application for adjustment of status is approved no later than October 1, 1993, or

(2) A valid, unexpired visa petition filed on or after October 1, 1991, which has been approved to grant the applicant preference status under section 203(b) (1), (2), or (3) of the Act (as in effect on and after October 1, 1991) because of his or her occupation as a registered nurse, and

(B) A request, made on Form ETA 750 submitted in duplicate, for a determination by the district director that the alien is qualified for and will engage in the occupation of registered nurse, as currently listed on Schedule A (20 CFR part 656),

(C) Evidence showing that the applicant has been employed in the United States as a registered nurse for an aggregate of three years prior to the date the application for adjustment of status is filed, in the form of:

(1) Letters from employers stating the beginning and ending dates of employment as a registered nurse, or

(2) Other evidence of employment as a registered nurse, such as pay receipts supported by affidavits of co-workers, which is accompanied by evidence that the nurse has made reasonable efforts to obtain employment letter(s), but has been unable to do so because the current or former employer refuses to issue the letter or has gone out of business,

(D) Evidence that the applicant was licensed, either temporarily or permanently, as a registered nurse during all periods of qualifying employment, and

(E) Evidence which establishes that the applicant was in the United States in H-1 nonimmigrant status for the purpose of performing services as a registered nurse on September 1, 1989.

(iv) Effect of section 245(c)(2). An applicant for the benefits of the adjustment of status provisions of Public Law 101-238 must establish eligibility for adjustment of status under all provisions of section 245 unless those provisions have specifically been waived.

(A) Application for adjustment of status filed on or before October 17, 1991. An applicant who qualifies for the benefits of Public Law 101-238, who properly files an application for adjustment of status on or before October 17, 1991, may be granted adjustment of status even though the alien has engaged or is engaging in unauthorized employment. For purposes of adjustment of status, the applicant will be considered to have continuously maintained a lawful nonimmigrant status throughout his or her stay in the United States as a nonimmigrant and to be in lawful nonimmigrant status at the time the application is filed.

(B) Application for adjustment of status filed after October 17, 1991. An alien who files an application for adjustment of status after October 17, 1991, will not automatically be considered as having maintained lawful nonimmigrant status. An alien who files for adjustment after this date will be subject to the statutory bar of section 245(c)(2) of the Act and will be ineligible to apply for adjustment of status if he or she has failed to continuously maintain lawful nonimmigrant status (other than through no fault of his or her own or for technical reasons); if he or she was not in lawful nonimmigrant status at the time the application was filed; or if he or she was employed without authorization on or after November 29, 1990. Unauthorized employment which has been waived as a basis for ineligibility for adjustment of status may not be used as the basis of a determination that the applicant is ineligible for adjustment of status due to failure to continuously maintain lawful nonimmigrant status.

(C) Motions to reopen. Public Law 101-649 (the Immigration Act of 1990), which became law on November 29, 1990, retroactively amended Public Law 101-238 (the Immigration Nursing Relief Act of 1989). An alien whose application for adjustment of status under the provisions of Public Law 101-238 was denied by the district director before November 29, 1990, because of unauthorized employment, failure to continuously maintain a lawful nonimmigrant status, or not being in lawful immigration status at the time of filing, may file a motion to reopen the adjustment application. The motion to reopen must be made in accordance with the provisions of 8 CFR 103.5. The district director will reopen the application for adjustment of status and enter a new decision based upon the provisions of Public Law 101-238, as amended by Public Law 101-649. Any other alien whose application for adjustment of status was denied may file a motion to reopen or reconsider in accordance with normal statutory and regulatory provisions.

(v) Description of qualifying employment. Qualifying employment as a registered nurse may have taken place at any time before the alien files the application for adjustment of status. It may have occurred before, on, or after the enactment of Public Law 101-238. All qualifying employment must have occurred in the United States. The qualifying employment as a registered nurse may have occurred while the alien was in any immigration status, provided that the alien had been admitted in or changed to H-1 status for the purpose of performing services as a registered nurse on or before September 1, 1989, and had not thereafter changed from H-1 status to any other status before September 1, 1989. The employment need not have been continuous, provided the applicant can establish that he or she engaged in qualifying employment for a total of three or more years. Qualifying employment may include periods when the applicant possessed a provisional, temporary, interim, or other permit or license authorizing the applicant to perform services as a registered nurse; provided the license or permit was issued or recognized by the State Board of Nursing of the state in which the employment was performed. Qualifying employment may not include periods when the applicant performed duties as a registered nurse in violation of any state law regulating the employment of registered nurses in that state.

(vi) Effect of enactment on spouse or child—(A) Spouse or child accompanying principal alien. The accompanying spouse or child of an applicant for adjustment of status who benefits from Public Law 101-238, may also apply for adjustment of status. All benefits and limitations of this section, including those resulting from the implementation of the adjustment of status provisions of section 162(f) of Public Law 101-649, apply equally to the principal applicant and his or her accompanying spouse or child.

(B) Spouse or child residing outside the United States or ineligible for adjustment of status. A spouse or child who is ineligible to apply for adjustment of status as an accompanying spouse or child is not immediately eligible for issuance of an immigrant visa under the provisions of Public Law 101-238. However, the spouse or child may be eligible for visa issuance under other provisions of the Act.

(1) Existing relationship. A spouse or child acquired by the principal alien prior to the approval of the principal's adjustment of status application may be accorded the derivative priority date and preference category of the principal alien. The spouse or child may use the priority date and category when it becomes current, in accordance with existing limitations outlined in sections 201 and 202 of the Act. The priority date is not considered immediately available for these family members under Public Law 101-238.

(2) Relationship entered into after adjustment of status is approved. An alien who acquires lawful permanent residence under the provisions of Public Law 101-238 may file a petition under section 204 of the Act for an alien spouse, unmarried son or unmarried daughter in accordance with existing laws and regulations. The priority date is not considered immediately available for these family members under Public Law 101-238.

(3) Special immigrant juveniles. Any alien qualified for special immigrant classification under section 101(a)(27)(J) of the Act shall be deemed, for the purpose of section 245(a) of the Act, to have been paroled into the United States, regardless of the alien's actual method of entry into the United States. Neither the provisions of section 245(c)(2) nor the exclusion provisions of sections 212(a)(4), (5)(A), or (7)(A) of the Act shall apply to a qualified special immigrant under section 101(a)(27)(J) of the Act. The exclusion provisions of sections 212(a)(2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), or (3)(E) of the Act may not be waived. Any other exclusion provision may be waived on an individual basis for humanitarian purposes, family unity, or when it is otherwise in the public interest; however, the relationship between the alien and the alien's natural parents or prior adoptive parents shall not be considered a factor in a discretionary waiver determination.

(f) Concurrent applications to overcome grounds of inadmissibility. Except as provided in 8 CFR parts 1235 and 1249, an application under this part shall be the sole method of requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an alien in the United States. No fee is required for filing an application to overcome the grounds of inadmissibility of the Act if filed concurrently with an application for adjustment of status under the provisions of the Act of October 28, 1977, and of this part.

(g) Availability of immigrant visas under section 245 and priority dates—(1) Availability of immigrant visas under section 245. An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 is the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

(2) Priority dates. The priority date of an applicant who is seeking the allotment of an immigrant visa number under one of the preference classes specified in section 203(a) or 203(b) of the Act by virtue of a valid visa petition approved in his or her behalf shall be fixed by the date on which such approved petition was filed.

(h) Conditional basis of status. Whenever an alien spouse (as defined in section 216(g)(1) of the Act), an alien son or daughter (as defined in section 216(g)(2) of the Act), an alien entrepreneur (as defined in section 216A(f)(1) of the Act), or an alien spouse or child (as defined in section 216A(f)(2) of the Act) is granted adjustment of status to that of lawful permanent residence, the alien shall be considered to have obtained such status on a conditional basis subject to the provisions of section 216 or 216A of the Act, as appropriate.

(i) Adjustment of status from K-3/K-4 status. An alien admitted to the United States as a K-3 under section 101(a)(15)(K)(ii) of the Act may apply for adjustment of status to that of a permanent resident pursuant to section 245 of the Act at any time following the approval of the Form I-130 petition filed on the alien's behalf, by the same citizen who petitioned for the alien's K-3 status. An alien admitted to the United States as a K-4 under section 101(a)(15)(K)(iii) of the Act may apply for adjustment of status to that of permanent residence pursuant to section 245 of the Act at any time following the approval of the Form I-130 petition filed on the alien's behalf, by the same citizen who petitioned for the alien's parent's K-3 status. Upon approval of the application, the director shall record his or her lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act. An alien admitted to the U.S. as a K-3/K-4 alien may not adjust to that of permanent resident status in any way other than as a spouse or child of the U.S. citizen who originally filed the petition for that alien's K-3/K-4 status.

(Title I of Pub. L. 95-145 enacted Oct. 28, 1977 (91 Stat. 1223), sec. 103 of the Immigration and Nationality Act (8 U.S.C. 1103). Interpret or apply secs. 101, 212, 242 and 245 (8 U.S.C. 1101, 1182, 1252 and 1255))

[30 FR 14778, Nov. 30, 1965]

Editorial Note: For Federal Register citations affecting §1245.1, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

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§1245.2   Application.

(a)General—(1) Jurisdiction—(i) In General. In the case of any alien who has been placed in deportation proceedings or in removal proceedings (other than as an arriving alien), the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file.

(ii) Arriving Aliens. In the case of an arriving alien who is placed in removal proceedings, the immigration judge does not have jurisdiction to adjudicate any application for adjustment of status filed by the arriving alien unless:

(A) The alien properly filed the application for adjustment of status with USCIS while the arriving alien was in the United States;

(B) The alien departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue the previously filed application for adjustment of status;

(C) The application for adjustment of status was denied by USCIS; and

(D) DHS placed the arriving alien in removal proceedings either upon the arriving alien's return to the United States pursuant to the grant of advance parole or after USCIS denied the application.

(2) Proper filing of application—(i) Under section 245. (A) An immigrant visa must be immediately available in order for an alien to properly file an adjustment application under section 245 of the Act See §1245.1(g)(1) to determine whether an immigrant visa is immediately available.

(B) If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i), section 203(a) or section 203(b)(1), (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it meets the filing requirements contained in parts 103 of 8 CFR chapter I and 1245 of this chapter. For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.

(C) A visa petition and an adjustment application are concurrently filed only if:

(1) The visa petitioner and adjustment applicant each file their respective form at the same time, bundled together within a single mailer or delivery packet, with the proper filing fees on the same day and at the same Service office, or;

(2) the visa petitioner filed the visa petition, for which a visa number has become immediately available, on, before or after July 31, 2002, and the adjustment applicant files the adjustment application, together with the proper filing fee and a copy of the Form I-797, Notice of Action, establishing the receipt and acceptance by the Service of the underlying Form I-140 visa petition, at the same Service office at which the visa petitioner filed the visa petition, or;

(3) The visa petitioner filed the visa petition, for which a visa number has become immediately available, on, before, or after July 31, 2002, and the adjustment applicant files the adjustment application, together with proof of payment of the filing fee with the Service and a copy of the Form I-797 Notice of Action establishing the receipt and acceptance by the Service of the underlying Form I-140 visa petition, with the Immigration Court or the Board of Immigration Appeals when jurisdiction lies under paragraph (a)(1) of this section.

(ii) Under the Act of November 2, 1966. An application for the benefits of section 1 of the Act of November 2, 1966 is not properly filed unless the applicant was inspected and admitted or paroled into the United States subsequent to January 1, 1959. An applicant is ineligible for the benefits of the Act of November 2, 1966 unless he or she has been physically present in the United States for one year (amended from two years by the Refugee Act of 1980).

(3) Submission of documents—(i) General. A separate application shall be filed by each applicant for benefits under section 245, or the Act of November 2, 1966. Each application shall be accompanied by an executed Form G-325A, if the applicant has reached his or her 14th birthday. Form G-325A shall be considered part of the application. An application under this part shall be accompanied by the document specified in the instructions which are attached to the application.

(ii) Under section 245. An application for adjustment of status is submitted on Form I-485, Application for Permanent Residence. The application must be accompanied by the appropriate fee as explained in the instructions to the application.

(iii) Under section 245(i). An alien who seeks adjustment of status under the provisions of section 245(i) of the Act must file Form I-485, with the required fee. The alien must also file Supplement A to Form I-485, with any required additional sum.

(iv) Under the Act of November 2, 1966. An application for adjustment of status is made on Form I-485A. The application must be accompanied by Form I-643, Health and Human Services Statistical Data Sheet. The application must include a clearance from the local police jurisdiction for any area in the United States when the applicant has lived for six months or more since his or her 14th birthday.

(4) Effect of departure—(i) General. The effect of a departure from the United States is dependent upon the law under which the applicant is applying for adjustment.

(ii) Under section 245 of the Act. (A) The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceeding by reason of the departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this section, the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States. If the adjustment application of an individual granted advance parole is subsequently denied the individual will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.

(B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.

(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa (if required) and the original I-797 receipt notice for the application for adjustment of status. The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required) and the original copy of the I-797 receipt notice for the application for adjustment of status. The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status.

(D) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful V status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is admissible as a V nonimmigrant.

(iii) Under the Act of November 2, 1966. If an applicant who was admitted or paroled subsequent to January 1, 1959, later departs from the United States temporarily with no intention of abandoning his or her residence, and is readmitted or paroled upon return, the temporary absence shall be disregarded for purposes of the applicant's “last arrival” into the United States in regard to cases filed under section 1 of the Act of November 2, 1966.

(5) Decision—(i) General. The applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial.

(ii) Under section 245 of the Act. If the application is approved, the applicant's permanent residence shall be recorded as of the date of the order approving the adjustment of status. An application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State, except when the applicant has established eligibility for the benefits of Public Law 101-238. No appeal lies from the denial of an application by the director, but the applicant, if not an arriving alien, retains the right to renew his or her application in proceedings under 8 CFR part 1240. Also, an applicant who is a parolee and meets the two conditions described in §1245.2(a)(1) may renew a denied application in proceedings under 8 CFR part 1240 to determine admissibility. At the time of renewal of the application, an applicant does not need to meet the statutory requirement of section 245(c) of the Act, or §1245.1(g), if, in fact, those requirements were met at the time the renewed application was initially filed with the director. Nothing in this section shall entitle an alien to proceedings under section 240 of the Act who is not otherwise so entitled.

(iii) Under the Act of November 2, 1966. If the application is approved, the applicant's permanent residence shall be recorded in accordance with the provisions of section 1. No appeal lies from the denial of an application by the director, but the applicant, if not an arriving alien, retains the right to renew his or her application in proceedings under 8 CFR part 1240. Also, an applicant who is a parolee and meets the two conditions described in §1245.2(a)(1) may renew a denied application in proceedings under 8 CFR part 1240 to determine admissibility.

(b) Application under section 2 of the Act of November 2, 1966. An application by a native or citizen of Cuba or by his spouse or child residing in the United States with him, who was lawfully admitted to the United States for permanent residence prior to November 2, 1966, and who desires such admission to be recorded as of an earlier date pursuant to section 2 of the Act of November 2, 1966, shall be made on Form I-485A. The application shall be accompanied by the Permanent Resident Card, Form I-151 or I-551, issued to the applicant in connection with his lawful admission for permanent residence, and shall be submitted to the director having jurisdiction over the applicant's place of residence in the United States. The decision on the application shall be made by the director. No appeal shall lie from his decision. If the application is approved, the applicant will be furnished with a replacement of his Form I-151 or I-551 bearing the new date as of which the lawful admission for permanent residence has been recorded.

(c) Application under section 214(d) of the Act. An application for permanent resident status pursuant to section 214(d) of the Act shall be filed on Form I-485 with the director having jurisdiction over the applicant's place of residence. A separate application shall be filed by each applicant. If the application is approved, the director shall record the lawful admission of the applicant as of the date of approval. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. No appeal shall lie from the denial of an application by the director but such denial shall be without prejudice to the alien's right to renew his or her application in proceedings under 8 CFR part 240.

[30 FR 14778, Nov. 30, 1965]

Editorial Note: For Federal Register citations affecting §1245.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

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§1245.3   Adjustment of status under section 13 of the Act of September 11, 1957, as amended.

Any application for benefits under section 13 of the Act of September 11, 1957, as amended, must be filed on Form I-485 with the director having jurisdiction over the applicant's place of residence. The benefits under section 13 are limited to aliens who were admitted into the United States under section 101, paragraphs (a)(15)(A)(i), (a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Immigration and Nationality Act who performed diplomatic or semi-diplomatic duties and to their immediate families, and who establish that there are compelling reasons why the applicant or the member of the applicant's immediate family is unable to return to the country represented by the government which accredited the applicant and that adjustment of the applicant's status to that of an alien lawfully admitted for permanent residence would be in the national interest. Aliens whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under section 13. In view of the annual limitation of 50 on the number of aliens whose status may be adjusted under section 13, any alien who is prima facie eligible for adjustment of status to that of a lawful permanent resident under another provision of law shall be advised to apply for adjustment pursuant to such other provision of law. An applicant for the benefits of section 13 shall not be subject to the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act. The applicant shall be notified of the decision and, if the application is denied, of the reasons for the denial and of the right to appeal under the provisions of part 103 of this chapter. Any applications pending with the Service before December 29, 1981 must be resubmitted to comply with the requirements of this section.

(Secs. 103, 245, of the Immigration and Nationality Act, as amended; 71 Stat. 642, as amended, sec. 17, Pub. L. 97-116, 95 Stat. 1619 (8 U.S.C. 1103, 1255, 1255b))

[47 FR 44238, Oct. 7, 1982, as amended at 59 FR 33905, July 1, 1994]

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§1245.4   Documentary requirements.

The provisions of part 1211 of this chapter relating to the documentary requirements for immigrants shall not apply to an applicant under this part.

(Secs. 103, 214, 245 Immigration and Nationality Act, as amended; (8 U.S.C. 1103, 1184, 8 U.S.C. 1255, Sec. 2, 96 Stat. 1157, 8 U.S.C. 1255 note))

[30 FR 14779, Nov. 30, 1965. Redesignated at 48 FR 4770, Feb. 3, 1983, and further redesignated at 52 FR 6322, Mar. 3, 1982, and further redesignated at 56 FR 49481, Oct. 2, 1991]

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§1245.5   Medical examination.

Pursuant to section 232(b) of the Act, an applicant for adjustment of status shall be required to have a medical examination by a designated civil surgeon, whose report setting forth the findings of the mental and physical condition of the applicant, including compliance with section 212(a)(1)(A)(ii) of the Act, shall be incorporated into the record. A medical examination shall not be required of an applicant for adjustment of status who entered the United States as a nonimmigrant spouse, fianceé, or fianceeé of a United States citizen or the child of such an alien as defined in section 101(a)(15)(K) of the Act and §214.2(k) of 8 CFR chapter I if the applicant was medically examined prior to, and as a condition of, the issuance of the nonimmigrant visa; provided that the medical examination must have occurred not more than 1 year prior the date of application for adjustment of status. Any applicant certified under paragraphs (1)(A)(ii) or (1)(A)(iii) of section 212(a) of the Act may appeal to a Board of Medical Officers of the U.S. Public Health Service as provided in section 234 of the Act and part 1235 of this chapter.

[56 FR 49841, Oct. 2, 1991, as amended at 62 FR 10384, Mar. 6, 1997; 66 FR 42595, Aug. 14, 2001]

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§1245.6   Interview.

Each applicant for adjustment of status under this part shall be interviewed by an immigration officer. This interview may be waived in the case of a child under the age of 14; when the applicant is clearly ineligible under section 245(c) of the Act or §1245.1 of this chapter; or when it is determined by the Service that an interview is unnecessary.

[57 FR 49375, Nov. 2, 1992]

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§1245.7   Adjustment of status of certain Soviet and Indochinese parolees under the Foreign Operations Appropriations Act for Fiscal Year 1990 (Pub. L. 101-167).

(a) Application. Each person applying for benefits under section 599E of Public Law 101-167 (103 Stat. 1195, 1263) must file Form I-485, Application to Register Permanent Residence or Adjust Status, with the director having jurisdiction over the applicant's place of residence and must pay the appropriate filing and fingerprinting fee, as prescribed in §103.7 of this chapter. Each application shall be accompanied by Form I-643, Health and Human Services Statistical Data for Refugee/Asylee Adjusting Status, and the results of a medical examination given in accordance with §1245.8. In addition, if the applicant has reached his or her 14th birthday but is not over 79 years of age, the application shall be accompanied by a completed Form G-325A, Biographic Information, and the applicant shall be fingerprinted on Form FD-258, Applicant Card, as prescribed in §103.2(e) of this chapter.

(b) Aliens eligible to apply for adjustment. The benefits of this section shall only apply to an alien who:

(1) Was a national of the Soviet Union, Vietnam, Laos, or Cambodia, and

(2) Was inspected and granted parole into the United States during the period beginning on August 15, 1988, and ending on September 30, 1990, after being denied refugee status.

(c) Eligibility. Benefits under Section 599E of Public Law 101-167 are limited to any alien described in paragraph (b) of this section who:

(1) Applies for such adjustment,

(2) Has been physically present in the United States for at least one year and is physically present in the United States on the date the application for such adjustment is filed,

(3) Is admissible to the United States as an immigrant, except as provided in paragraph (d) of this section, and

(4) Pays a fee for the processing of such application.

(d) Waiver of certain grounds for inadmissibility. The provisions of paragraphs (14), (15), (20), (21), (25), (28) (other than subparagraph (F), and (32) of section 212(a) of the Act shall not apply to adjustment under this section. The Attorney General may waive any other provision of section 212(a) (other than paragraph (23)(B), (27), (29), or (33)) with respect to such an adjustment for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

(e) Date of approval. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission as a lawful permanent resident as of the date of the alien's inspection and parole described in paragraph (b)(2) of this section.

(f) No offset in number of visas available. When an alien is granted the status of having been lawfully admitted for permanent residence under this section, the Secretary of State shall not be required to reduce the number of immigrant visas authorized to be issued under the Immigration and Nationality Act.

[55 FR 24860, July 19, 1990. Redesignated at 56 FR 49841, Oct. 2, 1991, as amended at 59 FR 33905, July 1, 1994; 63 FR 12987, Mar. 17, 1998]

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§1245.8   Adjustment of status as a special immigrant under section 101(a)(27)(K) of the Act.

(a) Application. Each person applying for adjustment of status as a special immigrant under section 101(a)(27)(K) of the Act must file a Form I-485, Application to Register Permanent Residence or Adjust Status, with the director having jurisdiction over the applicant's place of residence. Benefits under this section are limited to aliens who have served honorably (or are enlisted to serve) in the Armed Forces of the United States for at least 12 years, and their spouses and children. For purposes of this section, special immigrants described in section 101(a)(27)(K) of the Act and his or her spouse and children shall be deemed to have been paroled into the United States pursuant to section 245(g) of the Act. Each applicant must file a separate application with the appropriate fee.

(b) Eligibility. The benefits of this section shall apply only to an alien described in section 101(a)(27)(K) of the Act who applies for such adjustment. The accompanying spouse or child of an applicant for adjustment of status who benefits from Public Law 102-110 may also apply for adjustment of status. The provisions of section 245(c) of the Act do not apply to the principal Armed Forces special immigrant or to his or her spouse or child.

(c) Interview of the applicant. Upon completion of the adjustment of status interview for a special immigrant under section 101(a)(27)(K) of the Act, the director shall make a prima facie determination regarding eligibility for naturalization benefits if the applicant is to be granted status as an alien lawfully admitted for permanent residence. If the director determines that the applicant is immediately eligible for naturalization under section 328 or 329 of the Act, the director shall advise the applicant that he or she is eligible to apply for naturalization on Form N-400, Application to File Petition for Naturalization. If the applicant wishes to apply for naturalization, the director shall instruct the applicant concerning the requirements for naturalization and provide him or her with the necessary forms.

(d) Spouse or child outside the United States. When a spouse or child of an alien granted special immigrant status under section 101(a)(27)(K) of the Act is outside the United States, the principal alien may file Form I-824, Application for Action on an Approved Application or Petition, with the office which approved the original application.

(e) Removal provisions of section 237 of the Act. If the Service is made aware by notification from the appropriate executive department or by any other means that a section 101(a)(27)(K) special immigrant who has already been granted permanent residence fails to complete his or her total active duty service obligation for reasons other than an honorable discharge, the alien may become subject to the removal provisions of section 237 of the Act, provided the alien is in one or more of the classes of deportable aliens specified in section 237 of the Act. The Service shall obtain a current Form DD-214, Certificate of Release or Discharge from Active Duty, from the appropriate executive department for verification of the alien's failure to maintain eligibility.

(f) Rescission proceedings under section 246 of the Act. If the Service determines that a military special immigrant under section 101(a)(27)(K) of the Act was not in fact eligible for adjustment of status, the Service may pursue rescission proceedings under section 246 of the Act.

[57 FR 33862, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993; 62 FR 10384, Mar. 6, 1997]

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§1245.9   Adjustment of status of certain nationals of the People's Republic of China under Public Law 102-404.

(a) Principal applicant status. All nationals of the People's Republic of China who qualify under the provisions of paragraph (b) of this section may apply for adjustment of status as principals in their own right, regardless of age or marital status. Nationals of other countries who meet the requirements of paragraphs (b) and (c) of this section may apply for adjustment of status as qualified family members.

(b) Aliens eligible to apply for adjustment. An alien is eligible to apply for adjustment of status under the provisions of Public Law 102-404, if the alien:

(1) Is a national of the People's Republic of China or a qualified family member of an eligible national of the People's Republic of China;

(2) Was in the United States at some time between June 5, 1989, and April 11, 1990, inclusive, or would have been in the United States during this time period except for a brief, casual, and innocent departure from this country;

(3) Has resided continuously in the United States since April 11, 1990, except for brief, casual, and innocent absences;

(4) Was not physically present in the People's Republic of China for more than a cumulative total of 90 days between April 11, 1990, and October 9, 1992;

(5) Is admissible to the United States as an immigrant, unless the basis for excludability has been waived;

(6) Establishes eligibility for adjustment of status under all provisions of section 245 of the Act, unless the basis for ineligibility has been waived; and

(7) Properly files an application for adjustment of status under section 245 of the Act.

(c) Qualified family member who is not a national of the People's Republic of China. A qualified family member within the meaning of this section includes the spouse, child, son, or daughter of a national of the People's Republic of China who is eligible for benefits under the provisions of paragraph (b) of this section, provided that:

(1) He or she qualified as the spouse or child (as defined in section 101(b)(1) of the Act) of an eligible national of the People's Republic of China as of April 11, 1990; and

(2) The qualifying relationship continues to exist, or the family member is a son or daughter of an eligible national of the People's Republic of China and the family member was unmarried and under the age of 21 on April 11, 1990.

(d) Waivers of inadmissibility under section 212(a) of the Act. An applicant for the benefits of the adjustment of status provisions of Pub. L. 102-404 is automatically exempted from compliance with the requirements of sections 212(a)(5) and 212(a)(7)(A) of the Act. A Pub. L. 102-404 applicant may also apply for one or more waivers of inadmissibility under section 212(a) of the Act, except for inadmissibility under section 212(a)(2)(C), 212(a)(3)(A), 212(a)(3)(B), 212(a)(3)(C) or 212(a)(3)(E) of the Act.

(e) Waiver of the two-year foreign residence requirement of section 212(e). An applicant for the benefits of the adjustment of status provisions of Public Law 102-404 is automatically exempted from compliance with the two-year foreign residence requirement of section 212(e) of the Act.

(f) Waiver of section 245(c) of the Act. Public Law 102-404 provides that the provisions of section 245(c) of the Act shall not apply to persons applying for the adjustment of status benefits of Public Law 102-404.

(g) Application. Each applicant must file an application for adjustment of status on Form I-485, Application to Register Permanent Residence or Adjust Status, accompanied by the prescribed fee, and the supporting documents specified on the instructions to Form I-485 and described in §1245.2. Secondary evidence may be submitted if the applicant is unable to obtain the required primary evidence. Applicants who are nationals of the People's Republic of China should complete Part 2 of Form I-485 by checking box “h—other” and writing “CSPA—Principal” next to that block. Applicants who are not nationals of the People's Republic of China should complete Part 2 of Form I-485 by checking box “h—other” and writing “CSPA—Qualified Family Member” next to that block. Each applicant for the benefits of Public Law 102-404 must also submit evidence of eligibility for the adjustment of status benefits of Public Law 102-404:

(1) A photocopy of all pages of the applicant's most recent passport or an explanation of why the applicant does not have a passport;

(2) An attachment on a plain piece of paper showing:

(i) The date of the applicant's last arrival in the United States before or on April 11, 1990;

(ii) The date of each departure the applicant made from the United States since that arrival (if the applicant did not depart the United States after the initial date of arrival, the applicant should write “I was in the United States on April 11, 1990, and I have not departed the United States since April 11, 1990”);

(iii) The reason for each departure; and

(iv) The date of each return to the United States.

(3) An attachment on a plain piece of paper showing:

(i) The date the applicant arrived in the People's Republic of China; and

(ii) The date the applicant left the People's Republic of China for each trip the applicant made to the People's Republic of China between April 11, 1990, and October 9, 1992 (if the applicant did not travel to the People's Republic of China, the applicant should write “I was not in the People's Republic of China between April 11, 1990, and October 9, 1992”);

(4) A copy of evidence showing that the applicant was found eligible for benefits under E.O. 12711, such as deferred enforced departure (DED), employment authorization, and/or waiver of the two-year foreign residence requirement, if the applicant previously applied for benefits under E.O. 12711; and

(5) Primary or secondary evidence of a qualifying family relationship to an eligible national of the People's Republic of China, such as a birth or marriage certificate, if the applicant is a qualified family member who is not a national of the People's Republic of China.

(h) Secondary evidence. If any required primary evidence is unavailable, church or school records, or other secondary evidence pertinent to the facts in issue, may be submitted. If such documents are unavailable, affidavits may be submitted. The applicant may submit as many types of secondary evidence as necessary to establish the birth, marriage, or other event. Documentary evidence establishing that primary evidence is unavailable need not accompany secondary evidence of birth or marriage in the People's Republic of China.

(i) Filing. The application period begins on July 1, 1993. To benefit from the provisions of Public Law 102-404 (the Chinese Student Protection Act of 1992), an alien must properly file an application for adjustment of status under section 245 of the Act on or before June 30, 1994. All applications for the benefits of Public Law 102-404 must be submitted by mail to the Service Center having jurisdiction over the applicant's place of residence in the United States. Pursuant to the deactivation clause of Public Law 102-404, if the President of the United States determines and certifies to Congress before July 1, 1993, that conditions in the People's Republic of China permit persons covered by Public Law 102-404 to safely return to the People's Republic of China, no applications for lawful permanent resident status under Public Law 102-404 will be processed or granted.

(j) Immigrant classification and assignment of priority date. Public Law 102-404 provides eligible applicants with automatic classifications as immigrants under section 203(b)(3)(A)(i) of the Act. No immigrant visa petition is required and applicants need not meet the usual requirements for classification as skilled workers. The applicant's priority date shall be the date his or her application for adjustment of status under Public Law 102-404 is properly filed with the Service.

(k) Effect of immigrant visa number limitations. Eligible Public Law 102-404 applicants are exempt from the per-country immigrant visa number limitations of section 202(a)(2) of the Act. Eligible Public Law 102-404 applicants may file an application for adjustment of status under Public Law 102-404 without regard to immigrant visa number limitations of sections 202(a)(2) and 203(b)(3)(A)(i) of the Act. However, the adjustment of status application may not be approved and adjustment of status to that of a lawful permanent resident of the United States may not be granted until a visa number becomes available for the applicant under the worldwide allocation of immigrant visa numbers for employment-based aliens under section 203(b)(3)(A)(i) of the Act. The applicant may request initial or continued employment authorization during this period by filing Form I-765, Application for Employment Authorization. If the applicant needs to travel outside the United States during this period, he or she may file a request for advance parole on Form I-131, Application for Travel Document.

(l) Decision. In the case of an application for adjustment of status filed pursuant to the provisions of Public Law 102-404, the authority conferred upon district directors in 8 CFR part 1245 to accept and adjudicate an application for adjustment of status under section 245 of the Act is delegated exclusively to the service center director having jurisdiction over the applicant's place of residence in the United States. If the service center director transfers the application to the district director, authority to adjudicate an application for adjustment of status filed pursuant to the provisions of Public Law 102-404 lies with the district director having jurisdiction over the applicant's place of residence.

(m) Effect of enactment on family members other than qualified family members. The adjustment of status benefits and waivers provided by Public Law 102-404 do not apply to a spouse or child who is not a qualified family member as defined in paragraph (c) of this section. However, a spouse or child whose relationship to the principal alien was established prior to the approval of the principal's adjustment-of-status application may be accorded the derivative priority date and preference category of the principal alien, in accordance with the provisions of section 203(d) of the Act. The spouse or child may use the priority date and category when it becomes current, in accordance with the limitations set forth in sections 201 and 202 of the Act.

[58 FR 35838, July 1, 1993, as amended at 62 FR 10384, Mar. 6, 1997; 62 FR 63254, Nov. 28, 1997]

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§1245.10   Adjustment of status upon payment of additional sum under section 245(i).

(a) Definitions. As used in this section the term:

(1)(i) Grandfathered alien means an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act) of:

(A) A petition for classification under section 204 of the Act which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed; or

(B) An application for labor certification under section 212(a)(5)(A) of the Act that was properly filed pursuant to the regulations of the Secretary of Labor on or before April 30, 2001, and which was approvable when filed.

(ii) If the qualifying visa petition or application for labor certification was filed after January 14, 1998, the alien must have been physically present in the United States on December 21, 2000. This requirement does not apply with respect to a spouse or child accompanying or following to join a principal alien who is a grandfathered alien as described in this section.

(2) Properly filed means:

(i) With respect to a qualifying immigrant visa petition, that the application was physically received by the Service on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing as provided in §103.2(a)(1) and (a)(2) of 8 CFR chapter I; and

(ii) With respect to a qualifying application for labor certification, that the application was properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.

(3) Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.

(4) Circumstances that have arisen after the time of filing means circumstances similar to those outlined in §1205.1(a)(3)(i) or (a)(3)(ii) of this chapter.

(b) Eligibility. An alien who is included in the categories of restricted aliens under §1245.1(b) and meets the definition of a “grandfathered alien” may apply for adjustment of status under section 245 of the Act if the alien meets the requirements of paragraphs (b)(1) through (b)(7) of this section:

(1) Is physically present in the United States;

(2) Is eligible for immigrant classification and has an immigrant visa number immediately available at the time of filing for adjustment of status;

(3) Is not inadmissible from the United States under any provision of section 212 of the Act, or all grounds for inadmissibility have been waived;

(4) Properly files Form I-485, Application to Register Permanent Residence or Adjust Status on or after October 1, 1994, with the required fee for that application;

(5) Properly files Supplement A to Form I-485 on or after October 1, 1994;

(6) Pays an additional sum of $1,000, unless payment of the additional sum is not required under section 245(i) of the Act; and

(7) Will adjust status under section 245 of the Act to that of lawful permanent resident of the United States on or after October 1, 1994.

(c) Payment of additional sum. An adjustment applicant filing under the provisions of section 245(i) of the Act must pay the standard adjustment application filing fee as specified in §103.7(b)(1) of this chapter. Each application submitted under the provisions of section 245(i) of the Act must be submitted with an additional sum of $1,000. An applicant must submit the additional sum of $1,000 only once per application for adjustment of status submitted under the provisions of section 245(i) of the Act. However, an applicant filing under the provisions of section 245(i) of the Act is not required to pay the additional sum if, at the time the application for adjustment of status is filed, the alien is:

(1) Unmarried and less than 17 years of age;

(2) The spouse of a legalized alien, qualifies for and has properly filed Form I-817, Application for Voluntary Departure under the Family Unity Program, and submits a copy of his or her receipt or approval notice for filing Form I-817; or

(3) The child of a legalized alien, is unmarried and less than 21 years of age, qualifies for and has filed Form I-817, and submits a copy of his or her receipt or approval notice for filing Form I-817. Such an alien must pay the additional sum if he or she has reached the age of 21 years at the time of filing for adjustment of status. Such an alien must meet all other conditions for adjustment of status contained in the Act and in this chapter.

(d) Pending adjustment application with the Service or Executive Office for Immigration Review filed without Supplement A to Form I-485 and additional sum. An alien who filed an adjustment of status application with the Service in accordance with §103.2 of 8 CFR chapter I will be allowed the opportunity to amend such an application to request consideration under the provisions of section 245(i) of the Act, if it appears that the alien is not otherwise ineligible for adjustment of status. The Service shall notify the applicant in writing of the Service's intent to deny the adjustment of status application, and any other requests for benefits that derive from the adjustment application, unless Supplement A to Form I-485 and any required additional sum is filed within 30 days of the date of the notice. If the application for adjustment of status is pending before the Executive Office for Immigration Review (EOIR), EOIR will allow the respondent an opportunity to amend an adjustment of status application filed in accordance with §103.2 of 8 CFR chapter I (to include Supplement A to Form I-485 and proof of remittance to the INS of the required additional sum) in order to request consideration under the provisions of section 245(i) of the Act.

(e) Applications for Adjustment of Status filed before October 1, 1994. The provisions of section 245(i) of the Act shall not apply to an application for adjustment of status that was filed before October 1, 1994. The provisions of section 245(i) of the Act also shall not apply to a motion to reopen or reconsider an application for adjustment of status if the application for adjustment of status was filed before October 1, 1994. An applicant whose pre-October 1, 1994, application for adjustment of status has been denied may file a new application for adjustment of status pursuant to section 245(i) of the Act on or after October 1, 1994, provided that such new application is accompanied by: the required fee; Supplement A to Form I-485; the additional sum required by section 245(i) of the Act; and all other required initial and additional evidence.

(f) Effect of section 245(i) on completed adjustment applications before the Service. (1) Any motion to reopen or reconsider before the Service alleging availability of section 245(i) of the Act must be filed in accordance with §103.5 of 8 CFR chapter I. If said motion to reopen with the Service is granted, the alien must remit to the Service Supplement A to Form I-485 and the additional sum required by section 245(i) of the Act. If the alien had previously remitted Supplement A to Form I-485 and the additional sum with the application which is the subject of the motion to reopen, then no additional sum need be remitted upon such reopening.

(2) An alien whose adjustment application was adjudicated and denied by the Service because of ineligibility under section 245(a) or (c) of the Act and now alleges eligibility due to the availability of section 245(i) of the Act may file a new application for adjustment of status pursuant to section 245(i) of the Act, provided that such new application is accompanied by the required fee for the application, Supplement A to Form I-485, additional sum required by section 245(i) of the Act and all other required and additional evidence.

(g) Aliens deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status. Section 237(a)(4)(B) of the Act renders any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity, as defined in section 212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the Act, persons who are deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status under section 245(a) of the Act. Any person who is deportable under section 237(a)(4)(B) of the Act is also ineligible to adjust status under section 245(i) of the Act.

(h) Asylum or diversity immigrant visa applications. An asylum application, diversity visa lottery application, or diversity visa lottery-winning letter does not serve to grandfather the alien for purposes of section 245(i) of the Act. However, an otherwise grandfathered alien may use winning a diversity visa as a basis for adjustment.

(i) Denial, withdrawal, or revocation of the approval of a visa petition or application for labor certification. The denial, withdrawal, or revocation of the approval of a qualifying immigrant visa petition, or application for labor certification, that was properly filed on or before April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien (including the grandfathered alien's family members) from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition, a diversity visa, or any other ground for adjustment of status under the Act, as appropriate.

(j) Substitution of a beneficiary on an application for a labor certification. Only the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001, will be considered to have been grandfathered for purposes of filing an application for adjustment of status under section 245(i) of the Act. An alien who was previously the beneficiary of the application for the labor certification but was subsequently replaced by another alien on or before April 30, 2001, will not be considered to be a grandfathered alien. An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien.

(k) Changes in employment. An applicant for adjustment under section 245(i) of the Act who is adjusting status through an employment-based category is not required to work for the petitioner who filed the petition that grandfathered the alien, unless he or she is seeking adjustment based on employment for that same petitioner.

(l) Effects of grandfathering on an alien's nonimmigrant status. An alien's nonimmigrant status is not affected by the fact that he or she is a grandfathered alien. Lawful immigration status for a nonimmigrant is defined in §1245.1(d)(1)(ii).

(m) Effect of grandfathering on unlawful presence under section 212(a)(9)(B) and (c) of the Act. If the alien is not in a period of stay authorized by the Attorney General, the fact that he or she is a grandfathered alien does not prevent the alien from accruing unlawful presence under section 212(a)(9)(B) and (C) of the Act.

(n) Evidentiary requirement to demonstrate physical presence on December 21, 2000. (1) Unless the qualifying immigrant visa petition or application for labor certification was filed on or before January 14, 1998, a principal grandfathered alien must establish that he or she was physically present in the United States on December 21, 2000, to be eligible to apply to adjust status under section 245(i) of the Act. If no one document establishes the alien's physical presence on December 21, 2000, he or she may submit several documents establishing his or her physical presence in the United States prior to, and after December 21, 2000.

(2) To demonstrate physical presence on December 21, 2000, the alien may submit Service documentation. Examples of acceptable Service documentation include, but are not limited to:

(i) A photocopy of the Form I-94, Arrival-Departure Record, issued upon the alien's arrival in the United States;

(ii) A photocopy of the Form I-862, Notice to Appear;

(iii) A photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by the Service on or prior to December 21, 2000, placing the applicant in exclusion proceedings under section 236 of the Act (as in effect prior to April 1, 1997);

(iv) A photocopy of the Form I-221, Order to Show Cause, issued by the Service on or prior to December 21, 2000, placing the applicant in deportation proceedings under section 242 or 242A of the Act (as in effect prior to April 1, 1997);

(v) A photocopy of any application or petition for a benefit under the Act filed by or on behalf of the applicant on or prior to December 21, 2000, which establishes his or her presence in the United States, or a fee receipt issued by the Service for such application or petition.

(3) To demonstrate physical presence on December 21, 2000, the alien may submit other government documentation. Other government documentation issued by a Federal, state, or local authority must bear the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), be dated at the time of issuance, and bear a date of issuance not later than December 21, 2000. For this purpose, the term Federal, state, or local authority includes any governmental, educational, or administrative function operated by Federal, state, county, or municipal officials. Examples of such other documentation include, but are not limited to:

(i) A state driver's license;

(ii) A state identification card;

(iii) A county or municipal hospital record;

(iv) A public college or public school transcript;

(v) Income tax records;

(vi) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, state, or local governmental agency keeping such record;

(vii) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, state, or local governmental agency keeping such record;

(viii) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards.

(4) To demonstrate physical presence on December 21, 2000, the alien may submit non-government documentation. Examples of documentation establishing physical presence on December 21, 2000, may include, but are not limited to:

(i) School records;

(ii) Rental receipts;

(iii) Utility bill receipts;

(iv) Any other dated receipts;

(v) Personal checks written by the applicant bearing a bank cancellation stamp;

(vi) Employment records, including pay stubs;

(vii) Credit card statements showing the dates of purchase, payment, or other transaction;

(viii) Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;

(ix) If the applicant established that a family unit was in existence and cohabiting in the United States, documents evidencing the presence of another member of the same family unit; and

(x) For applicants who have ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records.

(5)(i) The adjudicator will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.

(ii) In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service and the Executive Office for Immigration Review (EOIR) having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority (i.e., the Service or EOIR). It shall be the responsibility of the applicant to obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application.

[59 FR 51095, Oct. 7, 1994; 59 FR 53020, Oct. 20, 1994, as amended at 62 FR 10384, Mar. 6, 1997; 62 FR 39424, July 23, 1997; 62 FR 55153, Oct. 23, 1997; 66 FR 16388, Mar. 26, 2001]

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§1245.11   Adjustment of aliens in S nonimmigrant classification.

(a) Eligibility. An application on Form I-854, requesting that an alien witness or informant in S nonimmigrant classification be allowed to adjust status to that of lawful permanent resident, may only be filed by the federal or state law enforcement authority (“LEA”) (which shall include a federal or state court or a United States Attorney's Office) that originally requested S classification for the alien. The completed application shall be filed with the Assistant Attorney General, Criminal Division, Department of Justice, who will forward only properly certified applications to the Commissioner, Immigration and Naturalization Service, for approval. Upon receipt of an approved Form I-854 allowing the S nonimmigrant to adjust status to that of lawful permanent resident, the alien may proceed to file with that Form, Form I-485, Application to Register Permanent Residence or Adjust Status, pursuant to the following process.

(1) Request to allow S nonimmigrant to apply for adjustment of status to that of lawful permanent resident. The LEA that requested S nonimmigrant classification for an S nonimmigrant witness or informant pursuant to section 101(a)(15)(S) of the Act may request that the principal S nonimmigrant be allowed to apply for adjustment of status by filing Form I-854 with the Assistant Attorney General, Criminal Division, in accordance with the instructions on, or attached to, that form and certifying that the alien has fulfilled the terms of his or her admission and classification. The same Form I-854 may be used by the LEA to request that the principals nonimmigrant's spouse, married and unmarried sons and daughters, regardless of age, and parents who are in derivative S nonimmigrant classification and who are qualified family members as described in paragraph (b) of this section similarly be allowed to apply for adjustment of status pursuant to section 101(a)(15)(S) of the Act.

(2) Certification. Upon receipt of an LEA's request for the adjustment of an alien in S nonimmigrant classification on Form I-854, the Assistant Attorney General, Criminal Division, shall review the information and determine whether to certify the request to the Commissioner in accordance with the instructions on the form.

(3) Submission of requests for adjustment of status to the Commissioner. No application by an LEA on Form I-854 requesting the adjustment to lawful permanent resident status of an S nonimmigrant shall be forwarded to the Commissioner unless first certified by the Assistant Attorney General, Criminal Division.

(4) Decision on request to allow adjustment of S nonimmigrant. The Commissioner shall make the final decision on a request to allow an S nonimmigrant to apply for adjustment of status to lawful permanent resident.

(i) In the event the Commissioner decides to deny an application on Form I-854 to allow an S nonimmigrant to apply for adjustment of status, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to deny.

(ii) Upon approval of the request on Form I-854, the Commissioner shall forward a copy of the approved form to the Assistant Attorney General and the S nonimmigrant, notifying them that the S nonimmigrant may proceed to file Form I-485 and request adjustment of status to that of lawful permanent resident, and that, to be eligible for adjustment of status, the nonimmigrant must otherwise:

(A) Meet the requirements of paragraph (b) of this section, if requesting adjustment as a qualified family member of the certified principal S nonimmigrant witness or informant;

(B) Be admissible to the United States as an immigrant, unless the ground of inadmissibility has been waived;

(C) Establish eligibility for adjustment of status under all provisions of section 245 of the Act, unless the basis for ineligibility has been waived; and

(D) Properly file with his or her Form I-485, Application to Register Permanent Residence or Adjust Status, the approved Form I-854.

(b) Family members—(1) Qualified family members. A qualified family member of an S nonimmigrant includes the spouse, married or unmarried son or daughter, or parent of a principal S nonimmigrant who meets the requirements of paragraph (a) of this section, provided that:

(i) The family member qualified as the spouse, married or unmarried son or daughter, or parent (as defined in section 101(b) of the Act) of the principal S nonimmigrant when the family member was admitted as or granted a change of status to that of a nonimmigrant under section 101(a)(15)(S) of the Act;

(ii) The family member was admitted in S nonimmigrant classification to accompany, or follow to join, the principal S-5 or S-6 alien pursuant to the LEA's request;

(iii) The family member is not inadmissible from the United States as a participant in Nazi persecution or genocide as described in section 212(a)(3)(E) of the Act;

(iv) The qualifying relationship continues to exist; and

(v) The principal alien has adjusted status, has a pending application for adjustment of status or is concurrently filing an application for adjustment of status under section 101(a)(15)(S) of the Act.

(vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if the alien witness or informant has died and, in the opinion of the Attorney General, was in compliance with the terms of his or her S classification under section 245(i) (1) and (2) of the Act.

(2) Other family member. The adjustment provisions in this section do not apply to a family member who has not been classified as an S nonimmigrant pursuant to a request on Form I-854 or who does not otherwise meet the requirements of paragraph (b) of this section. However, a spouse or an unmarried child who is less than 21 years old, and whose relationship to the principal S nonimmigrant or qualified family member was established prior to the approval of the principal S nonimmigrant's adjustment of status application, may be accorded the priority date and preference category of the principal S nonimmigrant or qualified family member, in accordance with the provisions of section 203(d) of the Act. Such a spouse or child:

(i) May use the principal S nonimmigrant or qualified member's priority date and category when it becomes current, in accordance with the limitations set forth in sections 201 and 202 of the Act;

(ii) May seek immigrant visa issuance abroad or adjustment of status to that of a lawful permanent resident of the United States when the priority date becomes current for the spouse's or child's country of chargeability under the fourth employment-based preference classification;

(iii) Must meet all the requirements for immigrant visa issuance or adjustment of status, unless those requirements have been waived;

(iv) Is not applying for adjustment of status under 101(a)(15)(S) of the Act, is not required to file Form I-854, and is not required to obtain LEA certification; and

(v) Will lose eligibility for benefits if the child marries or has his or her twenty-first birthday before being admitted with an immigrant visa or granted adjustment of status.

(c) Waivers of inadmissibility. An alien seeking to adjust status pursuant to the provisions of section 101(a)(15)(S) of the Act may not be denied adjustment of status for conduct or a condition that:

(1) Was disclosed to the Attorney General prior to admission; and

(2) Was specifically waived pursuant to the waiver provisions set forth at section 212(d)(1) and 212(d)(3) of the Act.

(d) Application. Each S nonimmigrant requesting adjustment of status under section 101(a)(15)(S) of the Act must:

(1) File Form I-485, with the prescribed fee, accompanied by the approved Form I-854, and the supporting documents specified in the instructions to Form I-485 and described in 8 CFR 1245.2. Secondary evidence may be submitted if the nonimmigrant is unable to obtain the required primary evidence as provided in 8 CFR 103.2(b)(2). The S nonimmigrant applying to adjust must complete Part 2 of Form I-485 by checking box “h-other” and writing “S” or “S-Qualified Family Member.” Qualified family members must submit documentary evidence of the relationship to the principal S nonimmigrant witness or informant.

(2) Submit detailed and inclusive evidence of eligibility for the adjustment of status benefits of S classification, which shall include:

(i) A photocopy of all pages of the alien's most recent passport or an explanation of why the alien does not have a passport; or

(ii) An attachment on a plain piece of paper showing the dates of all arrivals and departures from the United States in S nonimmigrant classification and the reason for each departure; and

(iii) Primary evidence of a qualifying relationship to the principal S nonimmigrant, such as birth or marriage certificate. If any required primary evidence is unavailable, church or school records, or other secondary evidence may be submitted. If such documents are unavailable, affidavits may be submitted as provided in 8 CFR 103.2(b)(2).

(e) Priority date. The S nonimmigrant's priority date shall be the date his or her application for adjustment of status as an S nonimmigrant is properly filed with the Service.

(f) Visa number limitation. An adjustment of status application under section 101(a)(15)(S) of the Act may be filed regardless of the availability of immigrant visa numbers. The adjustment of status application may not, however, be approved and the alien's adjustment of status to that of lawful permanent resident of the United States may not be granted until a visa number becomes available for the alien under the worldwide allocation for employment-based immigrants under section 201(d) and section 203(b)(4) of the Act. The alien may request initial or continued employment authorization while the adjustment application is pending by filing Form I-765, Application for Employment Authorization. If the alien needs to travel outside the United States during this period, he or she may file a request for advance parole on Form I-131, Application for Travel Document.

(g) Filing and decision. An application for adjustment of status filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall be filed with the district director having jurisdiction over the alien's place of residence. Upon approval of adjustment of status under this section, the district director shall record the alien's lawful admission for permanent residence as of the date of such approval. The district director shall notify the Commissioner and the Assistant Attorney General, Criminal Division, of the adjustment.

(h) Removal under section 237 of the Act. Nothing in this section shall prevent an alien adjusted pursuant to the terms of these provisions from being removed for conviction of a crime of moral turpitude committed within 10 years after being provided lawful permanent residence under this section or for any other ground under section 237 of the Act.

(i) Denial of application. In the event the district director decides to deny an application on Form I-485 and an approved Form I-854 to allow an S nonimmigrant to adjust status, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to deny. A denial of an adjustment application under this paragraph may not be renewed in subsequent removal proceedings.

[60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995, as amended at 62 FR 10384, Mar. 6, 1997]

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§1245.12   What are the procedures for certain Polish and Hungarian parolees who are adjusting status to that of permanent resident under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996?

(a) How do I apply for adjustment of status under this section? (1) Each person applying for adjustment of status, under section 646(b) of Public Law 104-208, must file a completed Form I-485, Application to Register Permanent Residence or Adjust Status, with the correct filing fee, with the Service director having jurisdiction over the applicant's place of residence.

(2) The application must include Form G-325A, Biographic Information and the results of the medical examination made according to §232.1 of 8 CFR chapter I and §1245.5.

(3) The application must include evidence to show the applicant was a national of Poland or Hungary who, after being denied refugee status, was inspected and granted parole into the United States between November 1, 1989, and December 31, 1991.

(4) The applicant must have been physically present in the United States for at least 1 year before filing a Form I-485.

(5) After receiving the Form I-485, the adjudicating Service office will notify each applicant who is 14 years old or older of the time and location for the required fingerprinting.

(b) How is my application for adjustment of status affected if I leave the United States while my application is still pending? The departure from the United States by an applicant for adjustment of status must be considered an abandonment of the application, as provided in §1245.2(a)(4)(ii), unless the applicant was previously granted advance parole for such absence, and was reinspected on returning to the United States.

(c) Which grounds for inadmissibility do not apply or can be waived? The provisions of section 212(a) (4), (5), and (7)(A) of the Act will not apply to adjustment of status under §1245.12. In addition, the director may waive any other ground of inadmissibility except section 212(a)(2)(C) or 212(a)(3)(A), (B), (C), or (E) of the Act, for humanitarian purposes, to ensure family unity, or when it is otherwise in the public interest.

(d) If my application for adjustment of status is approved under §1245.12, what date will be recorded as my admission to permanent residence? On approval of the application for adjustment of status, the date of the applicant's admission to permanent resident status will be the date of the applicant's inspection and parole, as described in paragraph (a) of this section.

[65 FR 20070, Apr. 14, 2000]

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§1245.13   Adjustment of status of certain nationals of Nicaragua and Cuba under Public Law 105-100.

(a) Aliens eligible to apply for adjustment. An alien is eligible to apply for adjustment of status under the provisions of section 202 of Pub. L. 105-100 as amended and without regard to section 241(a)(5) of the Act, if the alien:

(1) Is a national of Nicaragua or Cuba;

(2) Except as provided in paragraph (o) of this section, has been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier that the date the application for adjustment is granted, excluding:

(i) Any periods of absence from the United States not exceeding 180 days in the aggregate; and

(ii) Any periods of absence for which the applicant received an Advance Authorization for Parole (Form I-512) prior to his or her departure from the United States, provided the applicant returned to the United States in accordance with the conditions of such Advance Authorization for Parole;

(3) Is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, with the exception of paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If available, an applicant may apply for an individual waiver as provided in paragraph (c) of this section;

(4) Is physically present in the United States at the time the application is filed; and

(5) Properly files an application for adjustment of status in accordance with this section.

(b) Qualified family members—(1) Existence of relationship at time of adjustment. The spouse, child, or unmarried son or daughter of an alien eligible for adjustment of status under the provisions of Pub. L. 105-100 is eligible to apply for benefits as a dependent provided the qualifying relationship existed when the principal beneficiary was granted adjustment of status and the dependent meets all applicable requirements of sections 202(a) and (d) of Pub. L. 105-100.

(2) Spouse and minor children. If physically present in the United States, the spouse or minor child of an alien who is eligible for permanent residence under the provisions of Pub. L. 105-100 may also apply for and receive adjustment of status under this section, provided such spouse or child meets the criteria established in paragraph (a) of this section, except for the requirement of continuous physical presence in the United States since December 1, 1995. Such application may be filed concurrently with or subsequent to the filing of the principal's application but may not be approved prior to approval of the principal's application.

(3) Unmarried adult sons and daughters. An unmarried son or daughter of an alien who is eligible for permanent residence under the provisions of Pub. L. 105-100 may apply for and receive adjustment under this section, provided such son or daughter meets the criteria established in paragraph (a) of this section.

(c) Applicability of inadmissibility grounds contained in section 212(a)—(1) General. An applicant for the benefits of the adjustment of status provisions of section 202 of Pub. L. 105-100 need not establish admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Act in order to be able to adjust his or her status to that of permanent resident. An applicant under section 202 of Pub. L. 105-100 may also apply for one or more of the immigrant waivers of inadmissibility under section 212 of the Act, if applicable, in accordance with §1212.7 of this chapter.

(2) Special rule for waiver of inadmissibility grounds for NACARA applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An applicant for adjustment of status under section 202 of Public Law 105-100 who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of the Act, may apply for a waiver of these grounds of inadmissibility while present in the United States. Such an alien must file a Form I-601, Application for Waiver of Grounds of Excludability, with the director of the Texas Service Center if the application for adjustment is pending at that office, with the district director having jurisdiction over the application if the application for adjustment is pending at a district office, with the Immigration Judge having jurisdiction if the application for adjustment is pending before the Immigration Court, or with the Board of Immigration Appeals if the appeal is pending before the Board.

(d) General—(1) Proceedings pending before an Immigration Court. Except as provided in paragraph (d)(3) of this section, while an alien is in exclusion, deportation, or removal proceedings pending before an immigration judge, or has a pending motion to reopen or motion to reconsider filed with an immigration judge on or before May 21, 1998, sole jurisdiction over an application for adjustment of status under section 202 of Public Law 105-100 shall lie with the immigration judge. If an alien who has a pending motion to reopen or motion to reconsider filed with an immigration judge on or before May 21, 1998 files an application for adjustment of status under section 202 of Pub. L. 105-100, the immigration judge shall reopen the alien's proceedings for consideration of the adjustment application, unless the alien is clearly ineligible for adjustment of status under section 202 of Pub. L. 105-100. All applications for adjustment of status under section 202 of Pub. L. 105-100 filed with an Immigration Court shall be subject to the requirements of §§3.11 and 3.31 of this chapter.

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

(3) Administrative closure of pending exclusion, deportation, or removal proceedings. (i) In the case of an alien who is in exclusion, deportation, or removal proceedings, or has a pending motion to reopen or a motion to reconsider such proceedings filed on or before May 21, 1998, and who appears to be eligible to file an application for adjustment of status under section 202 of Pub. L. 105-100, the Immigration Court having jurisdiction over such proceedings or motion, or if the matter is before the Board on appeal or by motion, the Board, shall, upon request of the alien and with the concurrence of the Service, administratively close the proceedings, or continue indefinitely the motion, to allow the alien to file such application with the Service as prescribed in paragraph (g) of this section.

(ii) In any case not administratively closed in accordance with paragraph (d)(3)(i) of this section, the immigration judge having jurisdiction over the exclusion, deportation, or removal proceedings shall have jurisdiction to accept and adjudicate any application for adjustment of status under section 202 of Pub. L. 105-100 during the course of such proceedings.

(4)(i) Aliens with final orders of exclusion, deportation, or removal. An alien who is subject to a final order of exclusion, deportation, or removal, and who has not been denied adjustment of status under section 202 of Public Law 105-100 by the immigration judge or the Board of Immigration Appeals, may apply to the Service for adjustment of status under section 202 of Pub. L. 105-100.

(ii) An alien may file a motion to reopen with the Immigration Court or the Board of Immigration Appeals, whichever had jurisdiction last, if the alien is present in the United States and subject to a final order of exclusion, deportation, or removal and has been denied adjustment of status under section 202 of NACARA by an Immigration Court or the Board or who never applied for adjustment of status on or before March 31, 2000, with either the Service, the Immigration Court or the Board, and who is now eligible for adjustment as a result of section 1505(a)(1) of the Legal Immigration Family Equity Act of 2000 (LIFE) and the LIFE amendments, Public Law 106-553 and Public Law 106-554, respectively. As provided by §1505(a)(2) of the LIFE Act and its amendments, such a motion to reopen must be filed on or before June 19, 2001.

(5) Stay of final order of exclusion, deportation, or removal—(i) With the Service. The filing of an application for adjustment under section 202 of Public Law 105-100 with the Service shall not stay the execution of such final order unless the applicant has filed, and the Service has approved an Application for Stay of Removal (Form I-246) in accordance with section 241(c)(2) of the Act and §241.6 of this chapter. Absent evidence of the applicant's statutory ineligibility for adjustment of status under section 202 of Public Law 105-100 or significant negative discretionary factors, a Form I-246 filed by a bona fide applicant for adjustment under section 202 of Public Law 105-100 shall be approved, and the removal of the applicant shall be stayed until such time as the application for adjustment has been adjudicated in accordance with this section.

(ii) With EOIR. When the Service refers a decision to an immigration judge on a Notice of Certification (Form I-290C) in accordance with paragraph (m)(3) of this section, the referral shall not stay the execution of the final order. Execution of such final order shall proceed unless a stay of execution is specifically granted by the immigration judge, the Board, or an authorized Service officer.

(6) Effect on applications for adjustment under other provisions of the law. Nothing in this section shall be deemed to allow any alien who is in either exclusion proceedings that commenced prior to April 1, 1997, or removal proceedings as an inadmissible arriving alien that commenced on or after April 1, 1997, and who has not been paroled into the United States, to apply for adjustment of status under any provision of law other than section 202 of Pub. L. 105-100.

(e) Application and supporting documents. Each applicant for adjustment of status must file a Form I-485, Application to Register Permanent Residence or Adjust Status. An applicant should complete Part 2 of Form I-485 by checking box “h—other” and writing “NACARA—Principal” or “NACARA—Dependent” next to that block. Each application must be accompanied by:

(1) The fee prescribed in §103.7(b)(1) of 8 CFR chapter I;

(2) If the applicant is 14 years of age or older, the fee for fingerprinting prescribed in §103.7(b)(1) of 8 CFR chapter I;

(3) Evidence of commencement of physical presence in the United States at any time on or before December 1, 1995. Such evidence may relate to any time at or after entry and may consist of either:

(i) Documentation evidencing one or more of the activities specified in section 202(b)(2)(A) of Public Law 105-100;

(ii) A copy of the Form I-94, Record of Arrival and Departure, issued to the applicant at the time of his or her inspection and admission or parole;

(iii) Other documentation issued by a Federal, State, or local authority provided such other documentation bears the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), was dated at the time of issuance, and bears a date of issuance not later than December 1, 1995. Examples of such other documentation include, but are not limited to:

(A) A State driver's license;

(B) A State identification card issued in lieu of a driver's license to a nondriver;

(C) A county or municipal hospital record;

(D) A public college or public school transcript; and

(E) Income tax records;

(iv) A copy of a petition on behalf of the applicant that was submitted to the Service on or before December 1, 1995, and that lists the applicant as being physically present in the United States;

(v) A certified copy of a Federal, State, or local governmental record that was created on or prior to December 1, 1995, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, State, or local governmental agency keeping such record;

(vi) A certified copy of a Federal, State, or local governmental record that was created on or prior to December 1, 1995, shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, State, or local governmental agency keeping such record; or

(vii) In the case of an applicant who, while under the age of 21, attended a private or religious school in the United States on or prior to December 1, 1995, a transcript from such private or religious school, provided that the school:

(A) Is registered with, approved by, or licensed by, appropriate State or local authorities;

(B) Is accredited by the State or regional accrediting body, or by the appropriate private school association; or

(C) Maintains enrollment records in accordance with State or local requirements or standards;

(4) Evidence of continuity of physical presence in the United States since the last date on or prior to December 1, 1995, on which the applicant established commencement of physical presence in the United States. Such documentation may have been issued by any governmental or nongovernmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature, seal, or other authenticating instrument of the issuing authority or its authorized representative, if the document would normally contain such authenticating instrument. Such documentation may include, but is not limited to:

(i) School records;

(ii) Rental receipts;

(iii) Utility bill receipts;

(iv) Any other dated receipts;

(v) Personal checks written by the applicant bearing a dated bank cancellation stamp;

(vi) Employment records, including pay stubs;

(vii) Credit card statements showing the dates of purchase, payment, or other transaction;

(viii) Certified copies of records maintained by organizations chartered by the government, such as public utilities, accredited private and parochial schools, and banks;

(ix) If the applicant establishes that a family unit was in existence and cohabiting in the United States, documents evidencing the physical presence in the United States of another member of that same family unit; and

(x) If the applicant has had correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records;

(5) A copy of the applicant's birth certificate;

(6) If the applicant is between 14 and 79 years of age, a completed Biographic Information Sheet (Form G-325A);

(7) A report of medical examination, as specified in §1245.5;

(8) Two photographs, as described in the instructions to Form I-485;

(9) If the applicant is 14 years of age or older, a police clearance from each municipality where the alien has resided for 6 months or longer since arriving in the United States. If there are multiple local law enforcement agencies (e.g., city police and county sheriff) with jurisdiction over the alien's residence, the applicant may obtain a clearance from either agency. If the applicant resides or resided in a State where the State Police maintain a compilation of all local arrests and convictions, a statewide clearance is sufficient. If the applicant presents a letter from the local police agencies involved, or other evidence, to the effect that the applicant attempted to obtain such clearance but was unable to do so because of local or State policy, the director or immigration judge having jurisdiction over the application may waive the local police clearance. Furthermore, if such local police agency has provided the Service or the Immigration Court with a blanket statement that issuance of such police clearance is against local or state policy, the director or immigration judge having jurisdiction over the case may waive the local police clearance requirement regardless of whether the applicant individually submits a letter from that local police agency;

(10) If the applicant is applying as the spouse of another Public Law 105-100 beneficiary, a copy of their certificate of marriage and copies of documents showing the legal termination of all other marriages by the applicant or the other beneficiary;

(11) If the applicant is applying as the child, unmarried son, or unmarried daughter of another (principal) beneficiary under section 202 of Public Law 105-100 who is not the applicant's biological mother, copies of evidence (such as the applicant's parent's marriage certificate and documents showing the legal termination of all other marriages, an adoption decree, or other relevant evidence) to demonstrate the relationship between the applicant and the other beneficiary;

(12) A copy of the Form I-94, Arrival-Departure Record, issued at the time of the applicant's arrival in the United States, if the alien was inspected and admitted or paroled; and

(13) If the applicant has departed from and returned to the United States since December 1, 1995, an attachment on a plain piece of paper showing:

(i) The date of the applicant's last arrival in the United States before or on December 1, 1995;

(ii) The date of each departure from the United States since that arrival;

(iii) The reason for each departure; and

(iv) The date, manner, and place of each return to the United States.

(f) Secondary evidence. If the primary evidence required in paragraph (e)(4), (e)(9) or (e)(10 of this section is unavailable, church or school records, or other secondary evidence pertinent to the facts in issue, may be submitted. If such documents are unavailable, affidavits may be submitted. The applicant may submit as many types of secondary evidence as necessary to establish the birth, marriage, or other event. Documentary evidence establishing that primary evidence is unavailable must accompany secondary evidence of birth or marriage in the home country. In adjudicating the application for adjustment of status under section 202 of Public Law 105-100, the Service or immigration judge shall determine the weight to be given such secondary evidence. Secondary evidence may not be submitted in lieu of the documentation specified in paragraphs (e)(2) and (e)(3) of this section. However, subject to verification by the Service, if the documentation specified in paragraphs (e)(2) and (e)(3) is already contained in the Service's file relating to the applicant, the applicant may submit an affidavit to that effect in lieu of the actual documentation.

(g) Filing. The application period begins on June 22, 1998. To benefit from the provisions of section 202 of Public Law 105-100, an alien must properly file an application for adjustment of status before April 1, 2000. Except as provided in paragraph (d) of this section, all applications for the benefits of section 202 of Pub. L. 105-100 must be submitted by mail to: USINS Texas Service Center, P.O. Box 851804, Mesquite, TX 75185-1804. All applications must be accompanied by either the correct fee as specified in §103.7(b)(1) of 8 CFR chapter I; or a request for a fee waiver in accordance with §103.7(c) of 8 CFR chapter I. An application received by the Service or Immigration Court before April 1, 2000, that has been properly signed and executed and for which a waiver of the filing fee has been requested shall be regarded as having been filed before the statutory deadline regardless of whether the fee waiver request is denied provided that the applicant submits the required fee within 30 days of the date of any notice that the fee waiver request has been denied. In a case over which the Board has jurisdiction, an application received by the Board before April 1, 2000, that has been properly signed and executed shall be considered filed before the statutory deadline without payment of the fee or submission of a fee waiver request. Upon demand by the Board, the payment of the fee or a request for a fee waiver shall be made upon submission of the application to the Immigration Court in accordance with 8 CFR 1240.11(f). If a request for a fee waiver is denied, the application shall be considered as having been properly filed with the Immigration Court before the statutory deadline provided that the applicant submits the required fee within 30 days of the date of any notice that the fee waiver request has been denied. After proper filing of the application, the Service will notify the applicant to appear for fingerprinting as prescribed in §103.2(e) of 8 CFR chapter I.

(h) Jurisdiction. Except as provide din paragraphs (d) and (i) of this section, the director of the Texas Service Center shall have jurisdiction over all applications for adjustment of status under section 202 of Public Law 105-100.

(i) Interview. (1) Except as provided in paragraphs (d), (i)(2), and (i)(3) of this section, all applicants for adjustment of status under section 202 of Pub. L. 105-100 must be personally interviewed by an immigration officer at a local office of the Service. In any case in which the director of the Texas Service Center determines that an interview of the applicant is necessary, that director shall forward the case to the appropriate local Service office for interview and adjudication.

(2) In the case of an applicant who has submitted evidence of commencement of physical presence in the United States consisting of one or more of the documents specified in section 202(b)(2)(A)(i) through (v) or section 202(b)(2)(A)(vii) of Pub. L. 105-100 and upon examination of the application, including all other evidence submitted in support of the application, all relevant Service records and all other relevant law enforcement indices, if the director of the Texas Service Center determines that the alien is clearly eligible for adjustment of status under Pub. L. 105-100 and that an interview of the applicant is not necessary, the director may approve the application.

(3) Upon examination of the application, all supporting documentation, all relevant Service records, and all other relevant law enforcement indices, if the director of the Texas Service Center determines that the alien is clearly ineligible for adjustment of status under Pub. L. 105-100 and that an interview of the applicant is not necessary, the director may deny the application.

(j) Authorization to be employed in the United States while the application is pending—(1) Application. An applicant for adjustment of status under section 202 of Pub. L. 105-100 who wishes to obtain initial or continued employment authorization during the pendency of the adjustment application must file an Application for Employment authorization (Form I-765), with fee as set forth in §103.7(b)(1) of 8 CFR chapter I. The applicant may submit Form I-765 concurrently with, or subsequent to, the filing of the Form I-485.

(2) Adjudication and issuance. In general, employment authorization may not be issued to an applicant for adjustment of status under section 202 of Pub. L. 105-100 until the adjustment application has been pending for 180 days. However, if Service records contain one or more of the documents specified in section 202(b)(2)(A)(i) through (v) and (vii) of Pub. L. 105-100, evidence of the applicant's Nicaraguan or Cuban nationality, and no indication that the applicant is clearly ineligible for adjustment of status under section 202 of Pub. L. 105-100, the application for employment authorization may be approved, and the resulting document issued immediately upon verification that the Service record contains such information. If the Service fails to adjudicate the application for employment authorization upon expiration of the 180-day waiting period or within 90 days of the filing of application for employment authorization, whichever comes later, the alien shall be eligible for interim employment authorization in accordance with §1274a.13(d) of this chapter. Nothing in this section shall preclude an applicant for adjustment of status under Pub. L. 105-100 from being granted an initial employment authorization or an extension of employment authorization under any other provision of law or regulation for which the alien may be eligible.

(k) Parole authorization for purposes of travel—(1) Travel from and return to the United States while the application for adjustment of status is pending. If an applicant for benefits under section 202 of Pub. L. 105-100 desires to travel outside, and return to, the United States while the application for adjustment of status is pending, he or she must file a request for advance parole authorization on an Application for Travel Document (Form I-131), with fee as set forth in §103.7(b)(1) of 8 CFR chapter I and in accordance with the instructions on the form. If the alien is either in deportation or removal proceedings, or subject to a final order of deportation or removal, the Form I-131 must be submitted to the Assistant Commissioner for International Affairs; otherwise the Form I-131 must be submitted to the director of the Texas Service Center, who shall have jurisdiction over such applications. Unless the applicant files an advance parole request prior to departing from the United States, and the Service approves such request, his or her application for adjustment of status under section 202 of Public Law 105-100 is deemed to be abandoned as of the moment of his or her departure. Parole may only be authorized pursuant to the authority contained in, and the standards prescribed in, section 212(d)(5) of the Act.

(2) Parole authorization for the purpose of filing an application for adjustment of status under section 202 of Pub. L. 105-100. An otherwise eligible applicant who is outside the United States and wishes to come to the United States in order to apply for benefits under section 202 of Pub. L. 105-100 may request parole authorization for such purpose by filing an Application for Travel Document (Form I-131) with the Texas Service Center, at P.O. Box 851804, Mesquite, TX 75185-1804. Such application must be supported by a photocopy of the Form I-485 that the alien will file once he or she has been paroled into the United States. The applicant must include photocopies of all the supporting documentation listed in paragraph (e) of this section, except the filing fee, the medical report, the fingerprint card, and the local police clearances. If the director of the Texas Service Center is satisfied that the alien will be eligible for adjustment of status once the alien has been paroled into the United States and files the application, he or she may issue an Authorization for Parole of an Alien into the United States (Form I-512) to allow the alien to travel to, and be paroled into, the United States for a period of 60 days. The applicant shall have 60 days from the date of parole to file the application for adjustment of status. If the alien files the application for adjustment of status within that 60-day period, the Service may re-parole the alien for such time as is necessary for adjudication of the application. Failure to file such application for adjustment of status within 60 days shall result in the alien being returned to the custody of the Service and being examined as an arriving alien applying for admission. Such examination will be conducted in accordance with the provisions of section 235(b)(1) of the Act if the alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act, or section 240 of the Act if the alien is inadmissible under any other grounds. Parole may only be authorized pursuant to the authority contained in, and the standards prescribed in, section 212(d)(5) of the Act.

(3) Effect of departure on an outstanding warrant of exclusion, deportation, or removal. If an alien who is the subject of an outstanding final order of exclusion, deportation, or removal departs from the United States, with or without an advance parole authorization, such final order shall be executed by the alien's departure. The execution of such final order shall not preclude the applicant from filing an Application for Permission to Reapply for Admission Into the United States After Deportation or Removal (Form I-212) in accordance with §1212.2 of this chapter.

(l) Approval. If the director approves the application for adjustment of status under the provisions of section 202 of Pub. L. 105-100, the director shall record the alien's lawful admission for permanent resident as of the date of such approval and notify the applicant accordingly. The director shall also advise the alien regarding the delivery of his or her Permanent Resident Card and of the process for obtaining temporary evidence of alien registration. If the alien had previously been issued a final order of exclusion, deportation, or removal, such order shall be deemed canceled as of the date of the director's approval of the application for adjustment of status. If the alien had been in exclusion, deportation, or removal proceedings that were administratively closed, such proceedings shall be deemed terminated as of the date of approval of the application for adjustment of status by the director. If an immigration judge grants or if the Board, upon appeal, grants an application for adjustment under the provisions of section 202 of Pub. L. 105-100, the alien's lawful admission for permanent residence shall be as of the date of such grant.

(m) Denial and review of decision. (1) If the director denies the application for adjustment of status under the provisions of section 202 of Public Law 105-100, the director shall notify the applicant of the decision. The director shall also:

(i) In the case of an alien who is not maintaining valid nonimmigrant status and who had not previously been placed in exclusion, deportation or removal proceedings, initiate removal proceedings in accordance with §1239.1 of this chapter during which the alien may renew his or her application for adjustment of status under section 202 of Public Law 105-100; or

(ii) In the case of an alien whose previously initiated exclusion, deportation, or removal proceedings had been administratively closed or continued indefinitely under paragraph (d)(3) of this section, advise the Immigration Court that had administratively closed the proceedings, or the Board, as appropriate, of the denial of the application. Upon a motion to recalendar filed by the Service, the Immigration Court or the Board will then recalendar or reinstate the prior exclusion, deportation or removal proceedings, during which the alien may renew his or her application for adjustment under section 202 of Public Law 105-100; or

(iii) In the case of an alien who is the subject of an outstanding final order of exclusion, deportation, or removal, refer the decision to deny the application by filing a Form I-290C, Notice of Certification, with the Immigration Court that issued the final order for consideration in accordance with paragraph (n) of this section.

(2) Aliens who were denied adjustment of status by the director, but who are now eligible for such adjustment of status pursuant to section 1505(a)(1) of the LIFE Act and amendments, and have not been referred to immigration proceedings as specified in paragraph (m)(1) of this section may file a motion to reopen with the Service. If an alien has been referred to the Immigration Court or has filed an appeal with the Board after an Immigration Court has denied the application for adjustment under NACARA section 202, and proceedings are pending, then the application for adjustment of status will be adjudicated in accordance with section 1505(a) of the LIFE Act and its amendments. An alien present in the United States subject to a final order of removal after his or her application was denied by an Immigration Court or the Board, but who was made eligible for adjustment pursuant to section 1505(a) of the LIFE Act and its amendments may file a motion to reopen with the Immigration Court or the Board, whichever had jurisdiction last. Pursuant to section 1505(a)(2) of the LIFE Act and its amendments, motions to reopen proceedings before the Immigration Court or the Board must be filed on or before June 19, 2001.

(n) Action of immigration judge upon referral of decision by a Notice of Certification (Form I-290C)—(1) General. Upon the referral by a Notice of Certification (Form I-290C) of a decision to deny the application, in accordance with paragraph (m)(3) of this section, and under the authority contained in §1003.10 of this chapter, the immigration judge shall conduct a hearing to determine whether the alien is eligible for adjustment of status under section 202 of Public Law 105-100. Such hearing shall be conducted under the same rules of procedure as proceedings conducted under part 1240 of this chapter, except the scope of review shall be limited to a determination on the alien's eligibility for adjustment of status under section 202 of Public Law 105-100. During such proceedings all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, removability, and eligibility for any form of relief other than adjustment of status under section 202 of Public Law 105-100. Should the alien fail to appear for such hearing, the immigration judge shall deny the application for adjustment under section 202 of Public Law 105-100.

(2) Appeal of immigration judge decision. Once the immigration judge issues his or her decision on the application, either the alien or the Service may appeal the decision to the Board. Such appeal must be filed pursuant to the requirements for appeals to the Board from an immigration judge decision set forth in §§1003.3 and 1003.8 of this chapter.

(3) Rescission of the decision of an immigration judge. The decision of an immigration judge under paragraph (n)(1) of this section denying an application for adjustment under section 202 of Public Law 105-100 for failure to appear may be rescinded only:

(i) Upon a motion to reopen filed within 180 days after the date of the denial if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act;

(ii) Upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice of the hearing in person (or, if personal service was not practicable, through service by mail to the alien or to the alien's counsel of record, if any) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien; or

(iii) Upon a motion to reopen filed not later than June 19, 2001, by an alien present in the United States who became eligible for adjustment of status under section 202 of Public Law 105-100, as amended by section 1505, Public Law 106-554.

(o) Transition period provisions for tolling the physical presence in the United States provision for certain individuals—(1) Departure without advance authorization for parole. In the case of an otherwise eligible applicant who departed the United States on or before December 31, 1997, the physical presence in the United States provision of section 202(b)(1) of Pub. L. 105-100 is tolled as of November 19, 1997, and until July 20, 1998.

(2) Departure with advance authorization for parole. In the case of an alien who departed the United States after having been issued an Authorization for parole of an Alien into the United States (Form I-512), and who returns to the United States in accordance with the conditions of that document, the physical presence in the United States requirement of section 202(b)(1) of Pub. L. 105-100 is tolled while the alien is outside the United States pursuant to the issuance of the Form I-512.

(3) Request for parole authorization from outside the United States. In the case of an alien who is outside the United States and submits an application for parole authorization in accordance with paragraph (k)(2) of this section, and such application for parole authorization is granted by the Service, the physical presence in the United States provisions of section 202(b)(1) of Pub. L. 105-100 is tilled from the date the application is received at the Texas Service Center until the alien is paroled into the United States pursuant to the issuance of the Form I-512.

(Approved by the Office of Management and Budget under Control Number 1115-0221)

[63 FR 27829, May 21, 1998, as amended at 65 FR 15854, Mar. 24, 2000; 66 FR 29451, May 31, 2001]

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§1245.14   Adjustment of status of certain health care workers.

An alien applying for adjustment of status to perform labor in a health care occupation as described in 8 CFR 1212.15(c) must present evidence at the time he or she applies for adjustment of status, and, if applicable, at the time of the interview on the application, that he or she has a valid certificate issued by the Commission on Graduates of Foreign Nursing Schools or the National Board of Certification in Occupational Therapy.

[63 FR 55012, Oct. 14, 1998]

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§1245.15   Adjustment of status of certain Haitian nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).

(a) Definitions. As used in this section, the terms:

Abandoned and abandonment mean that both parents have, or the sole or surviving parent has, or in the case of a child who has been placed into a guardianship, the child's guardian or guardians have, willfully forsaken all parental or guardianship rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer these rights to any specific person(s).

Guardian means a person lawfully invested (by order of a competent Federal, State, or local authority) with the power, and charged with the duty, of taking care of, including managing the property, rights, and affairs of, a child.

Orphan and orphaned refer to the involuntary detachment or severance of a child from his or her parents due to any of the following:

(1) The death or disappearance of, desertion by, or separation or loss from both parents, as those terms are defined in §204.3(b) of 8 CFR chapter I;

(2) The irrevocable and written release of all parental rights by the sole parent, as that term is defined in §204.3(b) of 8 CFR chapter I, based upon the inability of that parent to provide proper care (within the meaning of that phrase in §204.3(b) of 8 CFR chapter I) for the child, provided that at the time of such irrevocable release such parent is legally obligated to provide such care; or

(3) The death or disappearance, as that term is defined in §204.3(b) of 8 CFR chapter I, of one parent and the irrevocable and written release of all parental rights by the sole remaining parent based upon the inability of that parent to provide proper care (within the meaning of that phrase in §204.3(b) of 8 CFR chapter I) for the child, provided that at the time of such irrevocable release such parent is legally obligated to provide such care.

Parent, father, or mother means a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in paragraphs (A) through (E) of section 101(b)(1) of the Act.

Sole remaining parent means a person who is the child's only parent because:

(1) The child's other parent has died; or

(2) The child's other parent has been certified by competent Haitian authorities to be presumed dead as a result of his or her disappearance, within the meaning of that term as set forth in §204.3(b) of 8 CFR chapter I.

(b) Applicability of provisions of section 902 of HRIFA in general. Section 902 of Division A of Pub. L. 105-277, the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA), provides special rules for adjustment of status for certain nationals of Haiti, and without regard to section 241(a)(5) of the Act, if they meet the other requirements of HRIFA.

(1) Principal applicants. Section 902(b)(1) of HRIFA defines five categories of principal applicants who may apply for adjustment of status, if the alien was physically present in the United States on December 31, 1995:

(i) An alien who filed for asylum before December 31, 1995;

(ii) An alien who was paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest; or

(iii) An alien who at the time of arrival in the United States and on December 31, 1995, was unmarried and under 21 years of age and who:

(A) Arrived in the United States without parents in the United States and has remained, without parents, in the United States since his or her arrival;

(B) Became orphaned subsequent to arrival in the United States; or

(C) Was abandoned by parents or guardians prior to April 1, 1998, and has remained abandoned since such abandonment.

(2) Dependents. Section 902(d) of HRIFA provides for certain Haitian nationals to apply for adjustment of status as the spouse, child, or unmarried son or daughter of a principal HRIFA beneficiary, even if the individual would not otherwise be eligible for adjustment under section 902. The eligibility requirements for dependents are described further in paragraph (d) of this section.

(c) Eligibility of principal HRIFA applicants. A Haitian national who is described in paragraph (b)(1) of this section is eligible to apply for adjustment of status under the provisions of section 902 of HRIFA if the alien meets the following requirements:

(1) Physical presence. The alien is physically present in the United States at the time the application is filed;

(2) Proper application. The alien properly files an application for adjustment of status in accordance with this section, including the evidence described in paragraphs (h), (i), (j), and (k) of this section. For purposes of §1245.15 of this chapter only, an Application to Register Permanent Residence or Adjust Status (Form I-485) submitted by a principal applicant for benefits under HRIFA may be considered to have been properly filed if it:

(i) Is received not later than March 31, 2000, at the Nebraska Service Center, the Board, or the Immigration Court having jurisdiction;

(ii) Has been properly completed and signed by the applicant;

(iii) Identifies the provision of HRIFA under which the applicant is seeking adjustment of status; and

(iv) Is accompanied by either:

(A) The correct fee as specified in §103.7(b)(1) of this chapter; or

(B) A request for a fee waiver in accordance with §103.7(c) of 8 CFR chapter I, provided such fee waiver request is subsequently granted; however, if such a fee waiver request is subsequently denied and the applicant submits the require fee within 30 days of the date of any notice that the fee waiver request had been denied, the application shall be regarded as having been filed before the statutory deadline. In addition, in a case over which the Board has jurisdiction, an application received by the Board before April 1, 2000, that has been properly signed and executed shall be considered filed before the statutory deadline without payment of the fee or submission of a fee waiver request. Upon remand by the Board, the payment of the fee or a request for a fee waiver shall be made upon submission of the application to the Immigration Court in accordance with 8 CFR 1240.11(f). If a request for a fee waiver is denied, the application shall be considered as having been properly filed with the Immigration Court before the statutory deadline provided that the applicant submits the required fee within 30 days of the date of any notice that the fee waiver request has been denied.

(3) Admissibility. The alien is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, except as provided in paragraph (e) of this section; and

(4) Continuous physical presence. The alien has been physically present in the United States for a continuous period beginning on December 31, 1995, and ending on the date the application for adjustment is granted, except for the following periods of time:

(i) Any period or periods of absence from the United States not exceeding 180 days in the aggregate; and

(ii) Any periods of absence for which the applicant received an Advance Authorization for Parole (Form I-512) prior to his or her departure from the United States, provided the applicant returned to the United States in accordance with the conditions of such Advance Authorization for Parole.

(iii) Any periods of absence from the United States occurring after October 21, 1998, and before July 12, 1999, provided the applicant departed the United States prior to December 31, 1998.

(d) Eligibility of dependents of a principal HRIFA beneficiary. A Haitian national who is the spouse, child, or unmarried son or daughter of a principal beneficiary eligible for adjustment of status under the provisions of HRIFA is eligible to apply for benefits as a dependent, if the dependent alien meets the following requirements:

(1) Physical presence. The alien is physically present in the United States at the time the application is filed;

(2) Proper application. The alien properly files an application for adjustment of status as a dependent in accordance with this section, including the evidence described in paragraphs (h) and (l) of this section;

(3) Admissibility. The alien is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, except as provided in paragraph (e) of this section;

(4) Relationship. The qualifying relationship to the principal alien must have existed at the time the principal was granted adjustment of status and must continue to exist at the time the dependent alien is granted adjustment of status. To establish the qualifying relationship to the principal alien, evidence must be submitted in accordance with §204.2 of this chapter. Such evidence should consist of the documents specified in §204.2(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of 8 CFR chapter I;

(5) Continuous physical presence. If the alien is applying as the unmarried son or unmarried daughter of a principal HRIFA beneficiary, he or she must have been physically present in the United States for a continuous period beginning not later than December 31, 1995, and ending on the date the application for adjustment is granted, as provided in paragraphs (c)(4) and (j) of this section.

(e) Applicability of grounds of inadmissibility contained in section 212(a)—(1) Certain grounds of inadmissibility inapplicable to HRIFA applicants. Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of section 212(a) of the Act are inapplicable to HRIFA principal applicants and their dependents. Accordingly, an applicant for adjustment of status under section 902 of HRIFA need not establish admissibility under those provisions in order to be able to adjust his or her status to that of permanent resident.

(2) Availability of individual waivers. If a HRIFA applicant is inadmissible under any of the other provisions of section 212(a) of the Act for which an immigrant waiver is available, the applicant may apply for one or more of the immigrant waivers of inadmissibility under section 212 of the Act, in accordance with §1212.7 of this chapter. In considering an application for waiver under section 212(g) of the Act by an otherwise statutorily eligible applicant for adjustment of status under HRIFA who was paroled into the United States from the U.S. Naval Base at Guantanamo Bay, for the purpose of receiving treatment of an HIV or AIDS condition, the fact that his or her arrival in the United States was the direct result of a government decision to provide such treatment should be viewed as a significant positive factor when weighing discretionary factors. In considering an application for waiver under section 212(i) of the Act by an otherwise statutorily eligible applicant for adjustment of status under HRIFA who used counterfeit documents to travel from Haiti to the United States, the adjudicator shall, when weighing discretionary factors, take into consideration the general lawlessness and corruption which was widespread in Haiti at the time of the alien's departure, the difficulties in obtaining legitimate departure documents at that time, and other factors unique to Haiti at that time which may have induced the alien to commit fraud or make willful misrepresentations.

(3) Special rule for waiver of inadmissibility grounds for HRIFA applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An applicant for adjustment of status under HRIFA who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of the Act, may apply for a waiver of these grounds of inadmissibility while present in the United States. Such an alien must file Form I-601, Application for Waiver of Grounds of Excludability. If the application for adjustment is pending at the Nebraska Service Center, Form I-601 must be filed with the director of that office. If the application for adjustment is pending at a district office, Form I-601 must be filed with the district director having jurisdiction over the application. If the application for adjustment is pending before the immigration court, Form I-601 must be filed with the immigration judge having jurisdiction, or with the Board of Immigration Appeals if the appeal is pending before the Board.

(f) Time for filing of applications—(1) Applications for HRIFA benefits by a principal HRIFA applicant. The application period begins on June 11, 1999. To benefit from the provisions of section 902 of HRIFA, an alien who is applying for adjustment as a principal applicant must properly file an application for adjustment of status before April 1, 2000.

(2) Applications by dependent aliens. The spouse, minor child, or unmarried son or daughter of an alien who is eligible for adjustment of status as a principal beneficiary under HRIFA may file an application for adjustment of status under this section concurrently with or subsequent to the filing of the application of the principal HRIFA beneficiary. An application filed by a dependent may not be approved prior to approval of the principal's application.

(g) Jurisdiction for filing of applications—(1) Filing of applications with the Service. The Service has jurisdiction over all applications for the benefits of section 902 of HRIFA as a principal applicant or as a dependent under this section, except for applications filed by aliens who are in pending immigration proceedings as provided in paragraph (g)(2) of this section. All applications filed with the Service for the benefits of section 902 of HRIFA must be submitted by mail to: USINS Nebraska Service Center, PO Box 87245, Lincoln, NE 68501-7245. After proper filing of the application, the Service will instruct the applicant to appear for fingerprinting as prescribed in §103.2(e) of this chapter. The Director of the Nebraska Service Center shall have jurisdiction over all applications filed with the Service for adjustment of status under section 902 of HRIFA, unless the Director refers the applicant for a personal interview at a local Service office as provided in paragraph (o)(1) of this section.

(2) Filing of applications by aliens in pending exclusion, deportation, or removal proceedings. An alien who is in exclusion, deportation, or removal proceedings pending before the Immigration Court or the Board, or who has a pending motion to reopen or motion to reconsider filed with the Immigration Court or the Board on or before May 12, 1999, must apply for HRIFA benefits to the Immigration Court or the Board, as provided in paragraph (p)(1) of this section, rather than to the Service. However, an alien whose proceeding has been administratively closed (see paragraph (p)(4) of this section) may only apply for HRIFA benefits with the Service as provided in paragraph (g)(1) of this section.

(3)(i) Filing of applications with the Service by aliens who are subject to a final order of exclusion, deportation, or removal. An alien who is subject to a final order of exclusion, deportation, or removal, and who has not been denied adjustment of status under section 902 of HRIFA by the Immigration Court or the Board, may only apply for HRIFA benefits with the Service as provided in paragraph (g)(1) of this section. This includes applications for HRIFA benefits filed by aliens who have filed a motion to reopen or motion to reconsider a final order after May 12, 1999.

(ii) An alien present in the United States who is subject to a final order of exclusion, deportation, or removal and has been denied adjustment of status under section 902 of HRIFA by the Immigration Court or the Board, or who never applied for adjustment of status with the Service, an Immigration Court, or the Board on or before March 31, 2000, and who was made eligible for HRIFA benefits under the Legal Immigration Family Equity Act of 2000 (LIFE Act) and LIFE amendments, Public Law 106-553 and Public Law 106-554, respectively, may file a motion to reopen with either the Immigration Court or the Board, whichever had jurisdiction last. As provided by the LIFE Act, motions to reopen must be filed on or before June 19, 2001.

(iii) Stay of final order of exclusion, deportation, or removal. The filing of an application for adjustment under section 902 of HRIFA with the Service shall not stay the execution of such final order unless the applicant has requested and been granted a stay in connection with the HRIFA application. An alien who has filed a HRIFA application with the Service may file an Application for Stay of Removal (Form I-246) in accordance with section 241(c)(2) of the Act and §1241.6 of this chapter.

(iv) Grant of stay. Absent evidence of the applicant's statutory ineligibility for adjustment of status under section 902 of HRIFA or significant negative discretionary factors, a Form I-246 filed by a bona fide applicant for adjustment under section 902 of HRIFA shall be approved and the removal of the applicant shall be stayed until such time as the Service has adjudicated the application for adjustment in accordance with this section.

(h) Application and supporting documents. Each applicant for adjustment of status must file an Application to Register Permanent Residence or Adjust Status (Form I-485). An applicant should complete Part 2 of Form I-485 by checking box “h—other” and writing “HRIFA—Principal” or “HRIFA—Dependent” next to that block. Each application must be accompanied by:

(1) Application fee. The fee for Form I-485 prescribed in §103.7(b)(1) of 8 CFR chapter I;

(2) Fingerprinting fee. If the applicant is 14 years of age or older, the fee for fingerprinting prescribed in §103.7(b)(1) of 8 CFR chapter I;

(3) Identifying information. (i) A copy of the applicant's birth certificate or other record of birth as provided in paragraph (m) of this section;

(ii) A completed Biographic Information Sheet (Form G-325A), if the applicant is between 14 and 79 years of age;

(iii) A report of medical examination, as specified in §1245.5 of this chapter; and

(iv) Two photographs, as described in the instructions to Form I-485;

(4) Arrival-Departure Record. A copy of the Form I-94, Arrival-Departure Record, issued at the time of the applicant's arrival in the United States, if the alien was inspected and admitted or paroled;

(5) Police clearances. If the applicant is 14 years old or older, a police clearance from each municipality where the alien has resided for 6 months or longer since arriving in the United States. If there are multiple local law enforcement agencies (e.g., city police and county sheriff) with jurisdiction over the alien's residence, the applicant may obtain a clearance from either agency. If the applicant resides or resided in a State where the State police maintain a compilation of all local arrests and convictions, a statewide clearance is sufficient. If the applicant presents a letter from the local police agencies involved, or other evidence, to the effect that the applicant attempted to obtain such clearance but was unable to do so because of local or State policy, the director or immigration judge having jurisdiction over the application may waive the local police clearance. Furthermore, if such local police agency has provided the Service or the Immigration Court with a blanket statement that issuance of such police clearance is against local or State policy, the director or immigration judge having jurisdiction over the case may waive the local police clearance requirement regardless of whether the applicant individually submits a letter from that local police agency;

(6) Proof of Haitian nationality. If the applicant acquired Haitian nationality other than through birth in Haiti, a copy of the certificate of naturalization or certificate of citizenship issued by the Haitian government; and

(7) Additional supporting evidence. Additional supporting evidence pertaining to the applicant as provided in paragraphs (i) through (l) of this section.

(i) Evidence of presence in the United States on December 31, 1995. An alien seeking HRIFA benefits as a principal applicant must provide with the application evidence establishing the alien's presence in the United States on December 31, 1995. Such evidence may consist of the evidence listed in §1245.22.

(j) Evidence of continuity of presence in the United States since December 31, 1995. An alien seeking HRIFA benefits as a principal applicant, or as the unmarried son or daughter of a principal applicant, must provide with the application evidence establishing continuity of the alien's physical presence in the United States since December 31, 1995. (This requirement does not apply to a dependent seeking HRIFA benefits as the spouse or minor child of a principal applicant.)

(1) Evidence establishing presence. Evidence establishing the continuity of the alien's physical presence in the United States since December 31, 1995, may consist of any documentation 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 authenticating instrument.

(2) Examples. Documentation establishing continuity of physical presence may include, but is not limited to:

(i) School records;

(ii) Rental receipts;

(iii) Utility bill receipts;

(iv) Any other dated receipts;

(v) Personal checks written by the applicant bearing a dated bank cancellation stamp;

(vi) Employment records, including pay stubs;

(vii) Credit card statements showing the dates of purchase, payment, or other transaction;

(viii) Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;

(ix) If the applicant establishes that a family unit was in existence and cohabiting in the United States, documents evidencing presence of another member of that same family unit; and

(x) For applicants who have had ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records.

(3) Evidence relating to absences from the United States since December 31, 1995. If the alien is applying as a principal applicant, or as the unmarried son or daughter of a principal applicant, and has departed from and returned to the United States since December 31, 1995, the alien must provide with the application an attachment on a plain piece of paper showing:

(i) The date of the applicant's last arrival in the United States before December 31, 1995;

(ii) The date of each departure (if any) from the United States since that arrival;

(iii) The reason for each departure; and

(iv) The date, manner, and place of each return to the United States.

(k) Evidence establishing the alien's eligibility under section 902(b) of HRIFA. An alien seeking HRIFA benefits as a principal applicant must provide with the application evidence establishing that the alien satisfies one of the eligibility standards described in paragraph (b)(1) of this section.

(1) Applicant for asylum. If the alien is a principal applicant who filed for asylum before December 31, 1995, the applicant must provide with the application either:

(i) A photocopy of the first page of the Application for Asylum and Withholding of Removal (Form I-589); or

(ii) If the alien is not in possession of a photocopy of the first page of the Form I-589, a statement to that effect giving the date of filing and the location of the Service office or Immigration Court at which it was filed;

(2) Parolee. If the alien is a principal applicant who was paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest, the applicant must provide with the application either:

(i) A photocopy of the Arrival-Departure Record (Form I-94) issued when he or she was granted parole; or

(ii) If the alien is not in possession of the original Form I-94, a statement to that effect giving the date of parole and the location of the Service port-of-entry at which parole was authorized.

(3) Child without parents. If the alien is a principal applicant who arrived in the United States as a child without parents in the United States, the applicant must provide with the application:

(i) Evidence, showing the date, location, and manner of his or her arrival in the United States, such as:

(A) A photocopy of the Form I-94 issued at the time of the alien's arrival in the United States;

(B) A copy of the airline or vessel records showing transportation to the United States;

(C) Other similar documentation; or

(D) If none of the documents in paragraphs (k)(3)(i)(A)-(C) of this section are available, a statement from the applicant, accompanied by whatever evidence the applicant is able to submit in support of that statement; and

(ii) Evidence establishing the absence of the child's parents, which may include either:

(A) Evidence showing the deaths of, or disappearance or desertion by, the applicant's parents; or

(B) Evidence showing that the applicant's parents did not live in the United States with the applicant. Such evidence may include, but is not limited to, documentation or affidavits showing that the applicant's parents have been continuously employed outside the United States, are deceased, disappeared, or abandoned the applicant prior to the applicant's arrival, or were otherwise engaged in activities showing that they were not in the United States, or (if they have been in the United States) that the applicant and his or her parents did not reside together.

(4) Orphaned child. If the alien is a principal applicant who is or was a child who became orphaned subsequent to arrival in the United States, the applicant must provide with the application:

(i) Evidence, showing the date, location, and manner of his or her arrival in the United States, such as:

(A) A photocopy of the Form I-94 issued at the time of the alien's arrival in the United States;

(B) A copy of the airline or vessel records showing transportation to the United States;

(C) Other similar documentation; or

(D) If none of the documents in paragraphs (k)(4)(i)(A)-(C) of this section are available, a statement from the applicant, accompanied by whatever evidence the applicant is able to submit in support of that statement; and

(ii) Either:

(A) The death certificates of both parents (or in the case of a child having only one parent, the death certificate of the sole parent) showing that the death or deaths occurred after the date of the applicant's arrival in the United States;

(B) Evidence from a State, local, or other court or governmental authority having jurisdiction and authority to make decisions in matters of child welfare establishing the disappearance of, the separation or loss from, or desertion by, both parents (or, in the case of a child born out of wedlock who has not been legitimated, the sole parent); or

(C) Evidence of:

(1) Either:

(i) The child having only a sole parent, as that term is defined in §204.3(b) of this chapter;

(ii) The death of one parent; or

(iii) Certification by competent Haitian authorities that one parent is presumed dead as a result of his or her disappearance, within the meaning of that term as set forth in §204.3(b) of this chapter; and

(2) A copy of a written statement executed by the sole parent, or the sole remaining parent, irrevocably releasing all parental rights based upon the inability of that parent to provide proper care for the child.

(5) Abandoned child. If the alien is a principal applicant who was abandoned by parents or guardians prior to April 1, 1998, and has remained abandoned since such abandonment, the applicant must provide with the application:

(i) Evidence, showing the date, location, and manner of his or her arrival in the United States, such as:

(A) A photocopy of the Form I-94 issued at the time of the alien's arrival in the United States;

(B) A copy of the airline or vessel records showing transportation to the United States;

(C) Other similar documentation; or

(D) If none of the documents in paragraphs (k)(5)(i)(A)-(C) of this section are available, a statement from the applicant, accompanied by whatever evidence the applicant is able to submit in support of that statement; and

(ii) Either:

(A) Evidence from a State, local, or other court or governmental authority having jurisdiction and authority to make decisions in matters of child welfare establishing such abandonment; or

(B) Evidence to establish that the applicant would have been considered to be abandoned according to the laws of the State where he or she resides, or where he or she resided at the time of the abandonment, had the issue been presented to the proper authorities.

(l) Evidence relating to applications by dependents under section 902(d) of HRIFA—(1) Evidence of spousal relationship. If the alien is applying as the spouse of a principal HRIFA beneficiary, the applicant must provide with the application a copy of their certificate of marriage and copies of documents showing the legal termination of all other marriages by the applicant or the other beneficiary.

(2) Evidence of parent-child relationship. If the applicant is applying as the child, unmarried son, or unmarried daughter of a principal HRIFA beneficiary, and the principal beneficiary is not the applicant's biological mother, the applicant must provide with the application evidence to demonstrate the parent-child relationship between the principal beneficiary and the applicant. Such evidence may include copies of the applicant's parent's marriage certificate and documents showing the legal termination of all other marriages, an adoption decree, or other relevant evidence.

(m) Secondary evidence. Except as otherwise provided in this paragraph, if the primary evidence required in this section is unavailable, church or school records, or other secondary evidence pertinent to the facts in issue, may be submitted. If such documents are unavailable, affidavits may be submitted. The applicant may submit as many types of secondary evidence as necessary to establish birth, marriage, or other relevant events. Documentary evidence establishing that primary evidence is unavailable must accompany secondary evidence of birth or marriage in the home country. The unavailability of such documents may be shown by submission of a copy of the written request for a copy of such documents which was sent to the official keeper of the records. In adjudicating the application for adjustment of status under section 902 of HRIFA, the Service or immigration judge shall determine the weight to be given such secondary evidence. Secondary evidence may not be submitted in lieu of the documentation specified in paragraphs (i) or (j) of this section. However, subject to verification by the Service, if the documentation specified in this paragraph or in paragraphs (h)(3)(i), (i), (j), (l)(1), and (l)(2) of this section is already contained in the Service's file relating to the applicant, the applicant may submit an affidavit to that effect in lieu of the actual documentation.

(n) Authorization to be employed in the United States while the application is pending—(1) Application for employment authorization. An applicant for adjustment of status under section 902 of HRIFA who wishes to obtain initial or continued employment authorization during the pendency of the adjustment application must file an Application for Employment Authorization (Form I-765) with the Service, including the fee as set forth in §103.7(b)(1) of 8 CFR chapter I. The applicant may submit Form I-765 either concurrently with or subsequent to the filing of the application for HRIFA benefits on Form I-485.

(2) Adjudication and issuance. Employment authorization may not be issued to an applicant for adjustment of status under section 902 of HRIFA until the adjustment application has been pending for 180 days, unless the Director of the Nebraska Service Center verifies that Service records contain evidence that the applicant meets the criteria set forth in section 902(b) or 902(d) of HRIFA, and determines that there is no indication that the applicant is clearly ineligible for adjustment of status under section 902 of HRIFA, in which case the Director may approve the application for employment authorization, and issue the resulting document, immediately upon such verification. If the Service fails to adjudicate the application for employment authorization upon expiration of the 180-day waiting period, or within 90 days of the filing of application for employment authorization, whichever comes later, the alien shall be eligible for interim employment authorization in accordance with §1274a.13(d) of this chapter. Nothing in this section shall preclude an applicant for adjustment of status under HRIFA from being granted an initial employment authorization or an extension of employment authorization under any other provision of law or regulation for which the alien may be eligible.

(o) Adjudication of HRIFA applications filed with the Service—(1) Referral for interview. Except as provided in paragraphs (o)(2) and (o)(3) of this section, all aliens filing applications for adjustment of status with the Service under this section must be personally interviewed by an immigration officer at a local office of the Service. If the Director of the Nebraska Service Center determines that an interview of the applicant is necessary, the Director shall forward the case to the appropriate local Service office for interview and adjudication.

(2) Approval without interview. Upon examination of the application, including all other evidence submitted in support of the application, all relevant Service records and all other relevant law enforcement indices, the Director may approve the application without an interview if the Director determines that:

(i) The alien's claim to eligibility for adjustment of status under section 902 of HRIFA is verified through existing Service records; and

(ii) The alien is clearly eligible for adjustment of status.

(3) Denial without interview. If, upon examination of the application, all supporting documentation, all relevant Service records, and all other relevant law enforcement indices, the Director determines that the alien is clearly ineligible for adjustment of status under HRIFA and that an interview of the applicant is not necessary, the Director may deny the application.

(p) Adjudication of HRIFA applications filed in pending exclusion, deportation, or removal proceedings—(1) Proceedings pending before an Immigration Court. Except as provided in paragraph (p)(4) of this section, the Immigration Court shall have sole jurisdiction over an application for adjustment of status under this section filed by an alien who is in exclusion, deportation, or removal proceedings pending before an immigration judge or the Board, or who has a pending motion to reopen or motion to reconsider filed with an immigration judge or the Board on or before May 12, 1999. The immigration judge having jurisdiction over the exclusion, deportation, or removal proceedings shall have jurisdiction to accept and adjudicate any application for adjustment of status under section 902 of HRIFA during the course of such proceedings. All applications for adjustment of status under section 902 of HRIFA filed with an Immigration Court shall be subject to the requirements of §§1003.11 and 1003.31 of this chapter.

(2) Motion to reopen or motion to reconsider. If an alien who has a pending motion to reopen or motion to reconsider timely filed with an immigration judge on or before May 12, 1999, files an application for adjustment of status under section 902 of HRIFA, the immigration judge shall reopen the alien's proceedings for consideration of the adjustment application, unless the alien is clearly ineligible for adjustment of status under section 902 of HRIFA.

(3) Proceedings pending before the Board. Except as provided in paragraph (d)(4) of this section, in the case of an alien who either has a pending appeal with the Board or has a pending motion to reopen or motion to reconsider timely filed with the Board on or before May 12, 1999, the Board shall remand, or reopen and remand, the proceedings to the Immigration Court for the sole purpose of adjudicating an application for adjustment of status under section 902 of HRIFA, unless the alien is clearly ineligible for adjustment of status under section 902 of HRIFA. If the immigration judge denies, or the alien fails to file, the application for adjustment of status under section 902 of HRIFA, the immigration judge shall certify the decision to the Board for consideration in conjunction with the applicant's previously pending appeal or motion.

(4) Administrative closure of exclusion, deportation, or removal proceedings. (i) An alien who is in exclusion, deportation, or removal proceedings, or who has a pending motion to reopen or a motion to reconsider such proceedings filed on or before May 12, 1999, may request that the proceedings be administratively closed, or that the motion be indefinitely continued, in order to allow the alien to file such application with the Service as prescribed in paragraph (g) of this section. If the alien appears to be eligible to file an application for adjustment of status under this section, the Immigration Court or the Board (whichever has jurisdiction) shall, with the concurrence of the Service, administratively close the proceedings or continue indefinitely the motion.

(ii) In the case of an otherwise-eligible alien whose exclusion, deportation, or removal proceedings have been administratively closed for reasons not specified in this section, the alien may only apply before the Service for adjustment of status under this section.

(q) Approval of HRIFA applications—(1) Applications approved by the Service. If the Service approves the application for adjustment of status under the provisions of section 902 of HRIFA, the director shall record the alien's lawful admission for permanent residence as of the date of such approval and notify the applicant accordingly. The director shall also advise the alien regarding the delivery of his or her Permanent Resident Card and of the process for obtaining temporary evidence of alien registration. If the alien had previously been issued a final order of exclusion, deportation, or removal, such order shall be deemed canceled as of the date of the director's approval of the application for adjustment of status. If the alien had been in exclusion, deportation, or removal proceedings that were administratively closed, such proceedings shall be deemed terminated as of the date of approval of the application for adjustment of status by the director.

(2) Applications approved by an immigration judge or the Board. If an immigration judge or (upon appeal) the Board grants an application for adjustment under the provisions of section 902 of HRIFA, the date of the alien's lawful admission for permanent residence shall be the date of such grant.

(r) Review of decisions by the Service denying HRIFA applications—(1)(i) Denial notification. If the Service denies the application for adjustment of status under the provisions of section 902 of HRIFA, the director shall notify the applicant of the decision and of any right to renew the application in proceedings before the Immigration Court.

(ii) An alien made eligible for adjustment of status under HRIFA by the LIFE Act amendments and whose case has not been referred to EOIR under paragraphs (r)(2) or (r)(3) of this section, may file a motion to reopen with the Service.

(2) Renewal of application for HRIFA benefits in removal, deportation, or exclusion proceedings. An alien who is not the subject of a final order of removal, deportation, or exclusion may renew his or her application for adjustment under section 902 of HRIFA during the course of such removal, deportation, or exclusion proceedings.

(i) Initiation of removal proceedings. In the case of an alien who is not maintaining valid nonimmigrant status and who had not previously been placed in exclusion, deportation, or removal proceedings, the director shall initiate removal proceedings in accordance with §1239.1 of this chapter.

(ii) Recalendaring or reinstatement of prior proceedings. In the case of an alien whose previously initiated exclusion, deportation, or removal proceeding had been administratively closed or continued indefinitely under paragraph (p)(4) of this section, the director shall make a request for recalendaring or reinstatement to the Immigration Court that had administratively closed the proceeding, or the Board, as appropriate, when the application has been denied. The Immigration Court or the Board will then recalendar or reinstate the prior exclusion, deportation, or removal proceeding.

(iii) Filing of renewed application. A principal alien may file a renewed application for HRIFA benefits with the Immigration Court either before or after March 31, 2000, if he or she had filed his or her initial application for such benefits with the Service on or before March 31, 2000. A dependent of a principal applicant may file such renewed application with the Immigration Court either before or after March 31, 2000, regardless of when he or she filed his or her initial application for HRIFA benefits with the Service.

(3) Aliens with final orders. In the case of an alien who is the subject of an outstanding final order of exclusion, deportation, or removal, the Service shall refer the decision to deny the application by filing a Notice of Certification (Form I-290C) with the Immigration Court that issued the final order for consideration in accordance with paragraph (s) of this section.

(4)(i) An alien whose case has been referred to the Immigration Court under paragraphs (r)(2) or (r)(3) of this section, or who filed an appeal with the Board after his or her application for adjustment of status under section 902 of HRIFA was denied, and whose proceedings are pending, and who is now eligible for adjustment of status under HRIFA as amended by section 1505(b) of the LIFE Act and its amendments, may renew the application for adjustment of status with either the Immigration Court or the Board, whichever has jurisdiction. The application will be adjudicated in accordance with section 1505(b) of the LIFE Act and its amendments.

(ii) An alien present in the United States who is subject to a final order of exclusion, deportation or removal after his or her HRIFA adjustment application was denied by an Immigration Court or the Board, but who was made eligible for HRIFA adjustment as a result of section 1505(b) of the LIFE Act and its amendments, may file a motion to reopen with either the Immigration Court or the Board, whichever had jurisdiction last. Such motion to reopen must be filed on or before June 19, 2001.

(s) Action on decisions referred to the Immigration Court by a Notice of Certification (Form I-290C)—(1) General. Upon the referral by a Notice of Certification (Form I-290C) of a decision to deny the application, in accordance with paragraph (r)(3) of this section, the immigration judge shall conduct a hearing, under the authority contained in §3.10 of this chapter, to determine whether the alien is eligible for adjustment of status under section 902 of HRIFA. Such hearing shall be conducted under the same rules of procedure as proceedings conducted under part 240 of this chapter, except the scope of review shall be limited to a determination of the alien's eligibility for adjustment of status under section 902 of HRIFA. During such proceedings, all parties are prohibited from raising or considering any unrelated issues, including, but not limited to, issues of admissibility, deportability, removability, and eligibility for any remedy other than adjustment of status under section 902 of HRIFA. Should the alien fail to appear for such hearing, the immigration judge shall deny the application for adjustment under section 902 of HRIFA.

(2) Stay pending review. When the Service refers a decision to the Immigration Court on a Notice of Certification (Form I-290C) in accordance with paragraph (r)(3) of this section, the referral shall not stay the execution of the final order. Execution of such final order shall proceed unless a stay of execution is specifically granted by the immigration judge, the Board, or an authorized Service officer.

(3) Appeal of Immigration Court decision. Once the immigration judge issues his or her decision on the application, either the alien or the Service may appeal the decision to the Board. Such appeal must be filed pursuant to the requirements for appeals to the Board from an Immigration Court decision set forth in §§1003.3 and 1003.8 of this chapter.

(4) Rescission or reopening of the decision of an Immigration Court. The decision of an Immigration Court under paragraph (s)(1) of this section denying an application for adjustment under section 902 of HRIFA for failure to appear may be rescinded or reopened only:

(i) Upon a motion to reopen filed within 180 days after the date of the denial if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act;

(ii) Upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice of the hearing in person (or, if personal service was not practicable, through service by mail to the alien or to the alien's counsel of record, if any) or the alien demonstrates that he or she was in Federal or State custody and the failure to appear was through no fault of the alien; or

(iii) Upon a motion to reopen filed not later than June 19, 2001, by an alien present in the United States who became eligible for adjustment of status under HRIFA, as amended by section 1505, of Public Law 106-554.

(t) Parole authorization for purposes of travel—(1) Travel from and return to the United States while the application for adjustment of status is pending. If an applicant for benefits under section 902 of HRIFA desires to travel outside, and return to, the United States while the application for adjustment of status is pending, he or she must file a request for advance parole authorization on an Application for Travel Document (Form I-131), with fee as set forth in §103.7(b)(1) of 8 CFR chapter I and in accordance with the instructions on the form. If the alien is either in deportation or removal proceedings, or subject to a final order of deportation or removal, the Form I-131 must be submitted to the Director, Office of International Affairs; otherwise the Form I-131 must be submitted to the Director of the Nebraska Service Center, who shall have jurisdiction over such applications. Unless the applicant files an advance parole request prior to departing from the United States, and the Service approves such request, his or her application for adjustment of status under section 902 of HRIFA is deemed to be abandoned as of the moment of his or her departure. Parole may only be authorized pursuant to the authority contained in, and the standards prescribed in, section 212(d)(5) of the Act.

(2) Parole authorization for the purpose of filing an application for adjustment of status under section 902 of HRIFA. (i) An otherwise eligible applicant who is outside the United States and wishes to come to the United States in order to apply for benefits under section 902 of HRIFA may request parole authorization for such purpose by filing an Application for Travel Document (Form I-131) with the Nebraska Service Center, at P.O. Box 87245, Lincoln, NE 68501-7245. Such application must be supported by a photocopy of the Form I-485 that the alien will file once he or she has been paroled into the United States. The applicant must include photocopies of all the supporting documentation listed in paragraph (h) of this section, except the filing fee, the medical report, the fingerprint card, and the local police clearances.

(ii) If the Director of the Nebraska Service Center is satisfied that the alien will be eligible for adjustment of status once the alien has been paroled into the United States and files the application, he or she may issue an Authorization for Parole of an Alien into the United States (Form I-512) to allow the alien to travel to, and be paroled into, the United States for a period of 60 days.

(iii) The applicant shall have 60 days from the date of parole to file the application for adjustment of status. If the alien files the application for adjustment of status within that 60-day period, the Service may re-parole the alien for such time as is necessary for adjudication of the application. Failure to file such application for adjustment of status within 60 days shall result in the alien being returned to the custody of the Service and being examined as an arriving alien applying for admission. Such examination will be conducted in accordance with the provisions of section 235(b)(1) of the Act if the alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act, or section 240 of the Act if the alien is inadmissible under any other grounds.

(iv) Parole may only be authorized pursuant to the authority contained in, and the standards prescribed in, section 212(d)(5) of the Act. The authority of the Director of the Nebraska Service Center to authorize parole from outside the United States under this provision shall expire on March 31, 2000.

(3) Effect of departure on an outstanding warrant of exclusion, deportation, or removal. If an alien who is the subject of an outstanding final order of exclusion, deportation, or removal departs from the United States, with or without an advance parole authorization, such final order shall be executed by the alien's departure. The execution of such final order shall not preclude the applicant from filing an Application for Permission to Reapply for Admission Into the United States After Deportation or Removal (Form I-212) in accordance with §1212.2 of this chapter.

(u) Tolling the physical presence in the United States provision for certain individuals—(1) Departure with advance authorization for parole. In the case of an alien who departed the United States after having been issued an Authorization for Parole of an Alien into the United States (Form I-512), and who returns to the United States in accordance with the conditions of that document, the physical presence in the United States requirement of section 902(b)(1) of HRIFA is tolled while the alien is outside the United States pursuant to the issuance of the Form I-512.

(2) Request for parole authorization from outside the United States. In the case of an alien who is outside the United States and submits an application for parole authorization in accordance with paragraph (t)(2) of this section, and such application for parole authorization is granted by the Service, the physical presence requirement contained in section 902(b)(1) of HRIFA is tolled from the date the application is received at the Nebraska Service Center until the alien is paroled into the United States pursuant to the issuance of the Form I-512.

(3) Departure without advance authorization for parole. In the case of an otherwise-eligible applicant who departed the United States on or before December 31, 1998, the physical presence in the United States provision of section 902(b)(1) of HRIFA is tolled as of October 21, 1998, and until July 12, 1999.

(v) Judicial review of HRIFA adjustment of status determinations. Pursuant to the provisions of section 902(f) of HRIFA, there shall be no judicial appeal or review of any administrative determination as to whether the status of an alien should be adjusted under the provisions of section 902 of HRIFA.

[64 FR 25767, May 12, 1999, as amended at 65 FR 15844, Mar. 24, 2000; 66 FR 29452, May 1, 2001; 67 FR 78673, Dec. 26, 2002]

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§1245.18   How can physicians (with approved Forms I-140) that are serving in medically underserved areas or at a Veterans Affairs facility adjust status?

(a) Which physicians are eligible for this benefit? Any alien physician who has been granted a national interest waiver under §204.12 of 8 CFR chapter 1 may submit Form I-485 during the 6-year period following Service approval of a second preference employment-based immigrant visa petition.

(b) Do alien physicians have special time-related requirements for adjustment? (1) Alien physicians who have been granted a national interest waiver under §204.12 of 8 CFR chapter I must meet all the adjustment of status requirements of this part.

(2) The Service shall not approve an adjustment application filed by an alien physician who obtained a waiver under section 203(b)(2)(B)(ii) of the Act until the alien physician has completed the period of required service established in §204.12 of 8 CFR chapter I.

(c) Are the filing procedures and documentary requirements different for these particular alien physicians? Alien physicians submitting adjustment applications upon approval of an immigrant petition are required to follow the procedures outlined within this part with the following modifications.

(1) Delayed fingerprinting. Fingerprinting, as noted in the Form I-485 instructions, will not be scheduled at the time of filing. Fingerprinting will be scheduled upon the physician's completion of the required years of service.

(2) Delayed medical examination. The required medical examination, as specified in §1245.5, shall not be submitted with Form I-485. The medical examination report shall be submitted with the documentary evidence noting the physician's completion of the required years of service.

(d) Are alien physicians eligible for Form I-766, Employment Authorization Document? (1) Once the Service has approved an alien physician's Form I-140 with a national interest waiver based upon full-time clinical practice in an underserved area or at a Veterans Affairs facility, the alien physician should apply for adjustment of status to that of lawful permanent resident on Form I-485, accompanied by an application for an Employment Authorization Document (EAD), Form I-765, as specified in §274a.12(c)(9) of 8 CFR chapter I.

(2) Since section 203(b)(2)(B)(ii) of the Act requires the alien physician to complete the required employment before the Service can approve the alien physician's adjustment application, an alien physician who was in lawful nonimmigrant status when he or she filed the adjustment application is not required to maintain a nonimmigrant status while the adjustment application remains pending. Even if the alien physician's nonimmigrant status expires, the alien physician shall not be considered to be unlawfully present, so long as the alien physician is practicing medicine in accordance with §204.5(k)(4)(iii) of 8 CFR chapter I.

(e) When does the Service begin counting the physician's 5-year or 3-year medical practice requirement? Except as provided in this paragraph, the 6-year period during which a physician must provide the required 5 years of service begins on the date of the notice approving the Form I-140 and the national interest waiver. Alien physicians who have a 3-year medical practice requirement must complete their service within the 4-year period beginning on that date.

(1) If the physician does not already have employment authorization and so must obtain employment authorization before the physician can begin working, then the period begins on the date the Service issues the employment authorization document.

(2) If the physician formerly held status as a J-1 nonimmigrant, but obtained a waiver of the foreign residence requirement and a change of status to that of an H-1B nonimmigrant, pursuant to section 214(1) of the Act, as amended by section 220 of Public Law 103-416, and §212.7(c)(9) of 8 CFR chapter I, the period begins on the date of the alien's change from J-1 to H-1B status. The Service will include the alien's compliance with the 3-year period of service required under section 214(l) in calculating the alien's compliance with the period of service required under section 203(b)(2)(B)(ii)(II) of the Act and this section.

(3) An alien may not include any time employed as a J-1 nonimmigrant physician in calculating the alien's compliance with the 5 or 3-year medical practice requirement. If an alien is still in J-1 nonimmigrant status when the Service approves a Form I-140 petition with a national interest job offer waiver, the aggregate period during which the medical practice requirement period must be completed will begin on the date the Service issues an employment authorization document.

(f) Will the Service provide information to the physician about evidence and supplemental filings? The Service shall provide the physician with the information and the projected timetables for completing the adjustment process, as described in this paragraph. If the physician either files the Form I-485 concurrently with or waits to subsequently file the Form I-485 while the previously filed Form I-140 is still pending, then the Service will given this information upon approval of the Form I-140. If the physician does not file the adjustment application until after approval of the Form I-140 visa petition, the Service shall provide this information upon receipt of the Form I-485 adjustment application.

(1) The Service shall note the date that the medical service begins (provided the physician already had work authorization at the time the Form I-140 was filed) or the date that an employment authorization document was issued.

(2) A list of the evidence necessary to satisfy the requirements of paragraphs (g) and (h) of this section.

(3) A projected timeline noting the dates that the physician will need to submit preliminary evidence two years and 120 days into his or her medical service in an underserved area or VA facility, and a projected date six years and 120 days in the future on which the physician's final evidence of completed medical service will be due.

(g) Will physicians be required to file evidence prior to the end of the 5 or 3-year period? (1) For physicians with a 5-year service requirement, no later than 120 days after the second anniversary of the approval of Petition for Immigrant Worker, Form I-140, the alien physician must submit to the Service Center having jurisdiction over his or her place of employment documentary evidence that proves the physician has in fact fulfilled at least 12 months of qualifying employment. This may be accomplished by submitting the following.

(i) Evidence noted in paragraph (h) of this section that is available at the second anniversary of the I-140 approval.

(ii) Documentation from the employer attesting to the fill-time medical practice and the date on which the physician began his or her medical service.

(2) Physicians with a 3-year service requirement are not required to make a supplemental filing, and must only comply with the requirements of paragraph (h) of this section.

(h) What evidence is needed to prove final compliance with the service requirement? No later than 120 days after completion of the service requirement established under §204.12(a) of this section, an alien physician must submit to the Service Center having jurisdiction over his or her place of employment documentary evidence that proves the physician has in fact satisfied the service requirement. Such evidence must include, but is not limited to:

(1) Individual Federal income tax returns, including copies of the alien'sW-2 forms, for the entire 3-year period or the balance years of the 5-year period that follow the submission of the evidence required in paragraph (e) of this section;

(2) Documentation from the employer attesting to the full-time medical service rendered during the required aggregate period. The documentation shall address instances of breaks in employment, other than routine breaks such as paid vacations;

(3) If the physician established his or her own practice, documents noting the actual establishment of the practice, including incorporation of the medical practice (if incorporated), the business license, and the business tax returns and tax withholding documents submitted for the entire 3 year period, or the balance years of the 5-year period that follow the submission of the evidence required in paragraph (e) of this section.

(i) What if the physician does not comply with the requirements of paragraphs (f) and (g) of this section? If an alien physician does not submit (in accordance with paragraphs (f) and (g) of this section) proof that he or she has completed the service required under §204.12(a) of 8 CFR chapter I, the Service shall serve the alien physician with a written notice of intent to deny the alien physician's application for adjustment of status and, after the denial is finalized, to revoke approval of the Form I-140 and national interest waiver. The written notice shall require the alien physician to provide the evidence required by paragraph (f) or (g) of this section within 30 days of the date of the written notice. The Service shall not extend this 30-day period. If the alien physician fails to submit the evidence within the 30-day period established by the written notice, the Service shall deny the alien physician's application for adjustment of status and shall revoke approval of the Form I-140 and of the national interest waiver.

(j) Will a Service officer interview the physician? (1) Upon submission of the evidence noted in paragraph (h) of this section, the Service shall match the documentary evidence with the pending form I-485 and schedule the alien physician for fingerprinting at an Application Support Center.

(2) The local Service office shall schedule the alien for an adjustment interview with a Service officer, unless the Service waives the interview as provided in §1245.6. The local Service office shall also notify the alien if supplemental documentation should either be mailed to the office, or brought to the adjustment interview.

(k) Are alien physicians allowed to travel outside the United States during the mandatory 3 or 5-year service period? An alien physician who has been granted a national interest waiver under §204.12 of this chapter and has a pending application for adjustment of status may travel outside of the United States during the required 3 or 5-year service period by obtaining advanced parole prior to traveling. Alien physicians may apply for advanced parole by submitting form I-131, Application for Travel Document, to the Service office having jurisdiction over the alien physician's place of business.

(l) What if the Service denies the adjustment application? If the Service denies the adjustment application, the alien physician may renew the application in removal proceedings.

[65 FR 53895, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000; 65 FR 57944, Sept. 27, 2000; 67 FR 49563, July 31, 2002]

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§1245.20   Adjustment of status of Syrian asylees under Public Law 106-378.

(a) Eligibility. An alien is eligible to apply to adjust status under Public Law 106-378 if the alien is:

(1) A Jewish national of Syria;

(2) Arrived in the United States after December 31, 1991, after being permitted by the Syrian Government to depart from Syria;

(3) Is physically present in the United States at the time of filing the application to adjust status;

(4) Applies for adjustment of status no later than October 26, 2001, or has a pending application for adjustment of status under the Act that was filed with the Service before October 27, 2000;

(5) Has been physically present in the United States for at least 1 year after being granted asylum;

(6) Has not firmly resettled in any foreign country; and

(7) Is admissible as an immigrant under the Act at the time of examination for adjustment.

(b) Qualified family members. The spouse, child, or unmarried son or daughter of an alien eligible for adjustment under Public Law 106-378 is eligible to apply for adjustment of status under this section if the alien meets the criteria set forth in paragraphs (a)(4) through (a)(7) of this section.

(c) Grounds not to be applied and waivers. The grounds of inadmissibility found at section 212(a)(4) of the Act, relating to public charge, and at section 212(a)(7)(A) of the Act, relating to documentation, do not apply to applicants for adjustment of status under Public Law 106-378. Applicants may also request the waivers found at sections 212(h), (i), and (k) of the Act, to the extent they are eligible.

(d) Application—(1) New applications. An applicant must submit From I-485, Application to Register Permanent Residence or Adjust Status, along with the appropriate application fee as stated in §103.7(b)(1) of 8 CFR chapter I, to the Nebraska Service Center. The application must physically be received by the Nebraska Service Center no later than close of business on October 26, 2001. Applicants 14 years of age or older must also submit the fingerprinting service fee provided for in §103.7(b)(1) of this chapter. Each application filed must be accompanied by two photographs as described in the Form I-485 instructions; a completed Biographic Information Sheet (Form G-325A) if the applicant is between 14 and 79 years of age; and a report of medical examination (Form I-693 and vaccination supplement) as specified in 8 CFR 245.5. On Form I-485, Part 2, question “h”, applicants must write “SYRIAN ASYLEE—P.L. 106-378” to indicate that they are applying based on this provision.

(2) Filing of requests to change the basis of a pending Form I-485—(i) Request. An eligible Syrian national with a Form I-485 that is currently pending with the Service may request that the basis of his or her Form I-485 be changed to Public Law 106-378. The alien must submit this request in writing to the Nebraska Service Center. The request may only be granted if the 2,000 adjustment limit specified in paragraph (i) of this section has not yet been reached. The 2,000 adjustment limit includes both new and pending Form I-485 petitions. The applicant should clearly annotate “SYRIAN ASYLEE P.L. 106-378” on the envelope to identify the correspondence.

(ii) Time limit. If the Form I-485 was filed before October 27, 2000, there is no time limit for requesting a change of basis for adjustment of status. However, if the Form I-485 was filed on or after October 27, 2001, then the Service must receive the request for change of basis no later than October 27, 2001.

(e) Evidence. Applicants must submit evidence that demonstrates they are eligible for adjustment of status under Public Law 106-378. Required evidence includes the following:

(1) A copy of the alien's passport;

(2) A copy of the applicant's Arrival-Departure Record (Form I-94) or other evidence of inspection and admission or parole into the United States after December 31, 1991;

(3) Documentation including, but not limited to, those listed at §1245.15(j)(2) to establish physical presence in the United States for at least 1 year after being granted asylum;

(4) If the applicant is the spouse of a principal alien applying for adjustment, he or she must submit a marriage certificate, if available, or other evidence to demonstrate the marriage; and

(5) If the applicant is the child of a principal alien applying for adjustment of status, he or she must submit a birth certificate, if available, or other evidence to demonstrate the relationship.

(f) Employment authorization. Applicants who want to obtain employment authorization based on a pending application for adjustment of status under Public Law 106-378 may submit Form I-765, Application for Employment Authorization, along with the application fee listed in §103.7(b)(1) of 8 CFR chapter I. If the Service approves the application for employment authorization, the applicant will be issued an employment authorization document.

(g) Travel while an application to adjust status is pending. Applicants who wish to travel abroad and re-enter the United States while an application for adjustment of status is pending without being considered to have abandoned that application must obtain advance parole prior to departing the United States. To obtain advance parole, applicants must file Form I-131, Application for a Travel Document, along with the application fee listed in §103.7(b)(1) of 8 CFR chapter I. If the Service approves Form I-131, the alien will be issued Form I-512, Authorization for the Parole of an Alien into the United States.

(h) Approval and date of admission as a lawful permanent resident. When the Service approves an application to adjust status to that of lawful permanent resident based on Public Law 106-378, the applicant will be notified in writing of the Service's decision. In addition, the record of the alien's admission as a lawful permanent resident will be recorded as of the date 1 year before the approval of the application.

(i) Number of adjustments under Public Law 106-378. No more than 2,000 aliens may have their status adjusted to that of lawful permanent resident under Public Law 106-378.

(j) Notice of Denial—(1) General. When the Service denies an application to adjust status to that of lawful permanent resident based on Public Law 106-378, the applicant will be notified of the decision and the reason for the denial in writing.

(2) Cases involving requests to change the basis of a pending Form I-485. If an applicant who requested that a pending Form I-485, be considered under Public Law 106-378, is found to be ineligible under Public Law 106-378, but he or she appears eligible for adjustment under the original section of the Act under which the Form I-485 was filed, the Service will provide the applicant with notice of this fact. Processing the Form I-485 under the original provision of law will resume as appropriate.

(k) Administrative review. An alien whose application for adjustment of status under Public Law 106-378 is denied by the Service may not appeal the decision. However, the denial will be without prejudice to the alien's right to renew the application in proceedings under 8 CFR part 1240 provided that the 2,000 statutory limit on such adjustments has not yet been reached.

[66 FR 27448, May 17, 2001]

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§1245.21   Adjustment of status of certain nationals of Vietnam, Cambodia, and Laos (section 586 of Public Law 106-429).

(a) Eligibility. The Service may adjust the status to that of a lawful permanent resident, a native or citizen of Vietnam, Cambodia, or Laos who:

(1) Was inspected and paroled into the United States before October 1, 1997;

(2) Was paroled into the United States from Vietnam under the auspices of the Orderly Departure Program (ODP), a refugee camp in East Asia, or a displaced person camp administered by the United Nations High Commissioner for Refugees (UNHCR) in Thailand;

(3) Was physically present in the United States prior to and on October 1, 1997;

(4) Files an application for adjustment of status in accordance with paragraph (b) of this section during the 3-year application period; and

(5) Is otherwise eligible to receive an immigrant visa and is otherwise admissible as an immigrant to the United States except as provided in paragraphs (e) and (f) of this section.

(b) Applying for benefits under section 586 of Public Law 106-429—(1) Application period. The application period lasts from January 27, 2003 until January 25, 2006. The Service will accept applications received after the end of the application period, but only if the 5,000 limit on adjustments has not been reached prior to the end of the three-year application period, and the application bears an official postmark dated on or before the final day of the application period. Postmarks will be evaluated in the following manner:

(i) If the postmark is illegible or missing, the Service will consider the application to be timely filed if it is received on or before 3 business days after the end of the application period.

(ii) In all instances, the burden of proof is on the applicant to establish timely filing of an application.

(2) Application. An alien must be physically present in the United States to apply for adjustment of status under section 586 of Public Law 106-429. An applicant must submit Form I-485, Application to Register Permanent Residence or Adjust Status, along with the appropriate application fee contained in §103.7(b)(1) of this chapter. Applicants who are 14 through 79 years of age must also submit the fingerprinting service fee provided for in §103.7(b)(1) of this chapter. Each application filed must be accompanied by evidence establishing eligibility as provided in paragraph (g) of this section; two photographs as described in the Form I-485 instructions; a completed Biographic Information Sheet (Form G-325A) if the applicant is between 14 and 79 years of age; a report of medical examination (Form I-693 and vaccination supplement) specified in §1245.5; and, if needed, an application for waiver of inadmissibility. Under Part 2, question h of Form I-485, applicants must write “INDOCHINESE PAROLEE P.L. 106-429”. Applications must be sent to: INS Nebraska Service Center, P.O. Box 87485, Lincoln NE 68501-7485.

(c) Applications from aliens in immigration proceedings. An alien in pending immigration proceedings who believes he or she is eligible for adjustment of status under section 586 of Public Law 106-429 must apply directly to the Service in accordance with paragraph (b) of this section. An immigration judge or the Board of Immigration Appeals may not adjudicate applications for adjustment of status under this section. An alien who is currently in immigration proceedings who alleges eligibility for adjustment of status under section 586 of Public Law 106-429 may contact Service counsel after filing an application to request the consent of the Service to the filing of a joint motion for administrative closure. Unless the Service consents to such a motion, the immigration judge or the Board may not defer or dismiss the proceeding in connection with section 586 of Public Law 106-429.

(d) Applications from aliens with final orders of removal, deportation, or exclusion. An alien with a final order of removal, deportation, or exclusion who believes he or she is eligible for adjustment of status under section 586 of Public Law 106-429 must apply directly to the Service in accordance with paragraph (b) of this section.

(1) An application under this section does not automatically stay the order of removal, deportation, or exclusion. An alien who is eligible for adjustment of status under section 586 of Public Law 106-429 may request that the district director with jurisdiction over the alien grant a stay of removal during the pendency of the application. The regulations governing such a request are found at 8 CFR 241.6.

(2) The Service in general will exercise its discretion not to grant a stay of removal, deportation, or exclusion with respect to an alien who is inadmissible on any of the grounds specified in paragraph (m)(3) of this section, unless there is substantial reason to believe that the Service will grant the necessary waivers of inadmissibility.

(3) An immigration judge or the Board may not grant a motion to re-open or stay in connection with an application under this section.

(4) If the Service approves the application, the approval will constitute the automatic re-opening of the alien's immigration proceedings, vacating of the final order of removal, deportation, or exclusion, and termination of the reopened proceedings.

(e) Grounds of inadmissibility that do not apply. In making a determination of whether an applicant is otherwise eligible for admission to the United States for lawful permanent residence under the provisions of section 586 of Public Law 106-429, the grounds of inadmissibility under sections 212(a)(4), (a)(5), (a)(7)(A), and (a)(9) of the Act shall not apply.

(f) Waiver of grounds of inadmissibility. In connection with an application for adjustment of status under this section, the alien may apply for a waiver of the grounds of inadmissibility under sections 212(a)(1), (a)(6)(B), (a)(6)(C), (a)(6)(F), (a)(8)(A), (a)(10)(B), and (a)(10)(D) of the Act as provided in section 586(c) of Public Law 106-429, if the alien demonstrates that a waiver is necessary to prevent extreme hardship to the alien, or to the alien's spouse, parent, son or daughter who is a U.S. citizen or an alien lawfully admitted for permanent residence. In addition, the alien may apply for any other waiver of inadmissibility under section 212 of the Act, if eligible. In order to obtain a waiver for any of these grounds, an applicant must submit Form I-601, Application for Waiver of Grounds of Excludability, with the application for adjustment.

(g) Evidence. Applicants must submit evidence that demonstrates they are eligible for adjustment of status under section 586 of Public Law 106-429. Such evidence shall include the following:

(1) A birth certificate or other record of birth;

(2) Documentation to establish that the applicant was physically present in the United States on October 1, 1997, under the standards set forth in §1245.22 of this chapter.

(3) A copy of the applicant's Arrival-Departure Record (Form I-94) or other evidence that the alien was inspected or paroled into the United States prior to October 1, 1997, from one of the three programs listed in paragraph (a)(2) of this section. Subject to verification, documentation pertaining to paragraph (a)(2) of this section is already contained in Service files and the applicant may submit an affidavit to that effect in lieu of actual documentation.

(h) Employment authorization. Applicants who want to obtain employment authorization based on a pending application for adjustment of status under this section may submit Form I-765, Application for Employment Authorization, along with the application fee listed in 8 CFR 103.7(b)(1). If the Service approves the application for employment authorization, the applicant will be issued an employment authorization document.

(i) Travel while an application to adjust status is pending. An alien may travel abroad while an application to adjust status is pending. Applicants must obtain advance parole in order to avoid the abandonment of their application to adjust status. An applicant may obtain advance parole by filing Form I-131, Application for a Travel Document, along with the application fee listed in 8 CFR 103.7(b)(1). If the Service approves Form I-131, the alien will be issued Form I-512, Authorization for the Parole of an Alien into the United States. Aliens granted advance parole will still be subject to inspection at a port-of-entry.

(j) Approval and date of admission as a lawful permanent resident. When the Service approves an application to adjust status to that of lawful permanent resident based on section 586 of Public Law 106-429, the applicant will be notified in writing of the Service's decision. In addition, the record of the alien's admission as a lawful permanent resident will be recorded as of the date of the alien's inspection and parole into the United States, as described in paragraph (a)(1) of this section.

(k) Notice of denial. When the Service denies an application to adjust status to that of lawful permanent resident based on section 586 of Public Law 106-429, the applicant will be notified of the decision in writing.

(l) Administrative review. An alien whose application for adjustment of status under section 586 of Public Law 106-429 is denied by the Service may appeal the decision to the Administrative Appeals Office in accordance with 8 CFR 103.3(a)(2).

(m) Number of adjustments permitted under this section—(1) Limit. No more than 5,000 aliens may have their status adjusted to that of a lawful permanent resident under section 586 of Public Law 106-429.

(2) Counting procedures. Each alien granted adjustment of status under this section will count towards the 5,000 limit. The Service will assign a tracking number, ascending chronologically by filing date, to all applications properly filed in accordance with paragraphs (b) and (g) of this section. Except as described in paragraph (m)(3) of this section, the Service will adjudicate applications in that order until it reaches 5,000 approvals under this part. Applications initially denied but pending on administrative appeal will retain their place in the queue by virtue of their tracking number, pending the Service's adjudication of the appeal.

(3) Applications submitted with a request for the waiver of a ground of inadmissibility. In the discretion of the Service, applications that do not require adjudication of a waiver of inadmissibility under section 212(a)(2), (a)(6)(B), (a)(6)(F), (a)(8)(A), or (a)(10)(D) of the Act may be approved and assigned numbers within the 5,000 limit before those applications that do require a waiver of inadmissibility under any of those provisions. Applications requiring a waiver of any of those provisions will be assigned a tracking number chronologically by the date of approval of the necessary waivers rather than the date of filing of the application.

(4) Procedures when the 5,000 limit is reached. The Service will track the total number of adjustments and stop processing applications after the 5,000 limit has been reached. When the limit is reached, the Service will return any additional applications to applicants with a dated notice encouraging applicants to retain their application package and the notice in the event the 5,000 limit is expanded or eliminated and the alien wishes to apply again. The Service will keep an identifying chronological record of the application for purposes of processing applications under this section if the 5,000 limit subsequently is expanded or eliminated. If at the time the 5,000 limit is reached, it appears that Congress is about to pass legislation to expand or eliminate the cap, the Service retains the discretion to retain such applications and the related fees.

[67 FR 78673, Dec. 26, 2002]

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§1245.22   Evidence to demonstrate an alien's physical presence in the United States on a specific date.

(a) Evidence. Generally, an alien who is required to demonstrate his or her physical presence in the United States on a specific date in connection with an application to adjust status to that of an alien lawfully admitted for permanent residence should submit evidence according to this section. In cases where a more specific regulation relating to a particular adjustment of status provision has been issued in the 8 CFR, such regulation is controlling to the extent that it conflicts with this section.

(b) The number of documents. If no one document establishes the alien's physical presence on the required date, he or she may submit several documents establishing his or her physical presence in the United States prior to and after that date.

(c) Service-issued documentation. To demonstrate physical presence on a specific date, the alien may submit Service-issued documentation. Examples of acceptable Service documentation include, but are not limited to, photocopies of:

(1) Form I-94, Arrival-Departure Record, issued upon the alien's arrival in the United States;

(2) Form I-862, Notice to Appear, issued by the Service on or before the required date;

(3) Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by the Service on or prior to the required date, placing the applicant in exclusion proceedings under section 236 of the Act (as in effect prior to April 1, 1997);

(4) Form I-221, Order to Show Cause, issued by the Service on or prior to the required date, placing the applicant in deportation proceedings under section 242 or 242A (redesignated as section 238) of the Act (as in effect prior to April 1, 1997); or

(5) Any application or petition for a benefit under the Act filed by or on behalf of the applicant on or prior to the required date that establishes his or her presence in the United States, or a fee receipt issued by the Service for such application or petition.

(d) Government-issued documentation. To demonstrate physical presence on the required date, the alien may submit other government documentation. Other government documentation issued by a Federal, State, or local authority must bear the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), be dated at the time of issuance, and bear a date of issuance not later than the required date. For this purpose, the term Federal, State, or local authority includes any governmental, educational, or administrative function operated by Federal, State, county, or municipal officials. Examples of such other documentation include, but are not limited to:

(1) A state driver's license;

(2) A state identification card;

(3) A county or municipal hospital record;

(4) A public college or public school transcript;

(5) Income tax records;

(6) A certified copy of a Federal, State, or local governmental record that was created on or prior to the required date, shows that the applicant was present in the United States at the time, and establishes that the applicant sought in his or her own behalf, or some other party sought in the applicant's behalf, a benefit from the Federal, State, or local governmental agency keeping such record;

(7) A certified copy of a Federal, State, or local governmental record that was created on or prior to the required date, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, State, or local governmental agency keeping such record; or

(8) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards. Such evidence will only be accepted to document the physical presence of an alien who was in attendance and under the age of 21 on the specific date that physical presence in the United States is required.

(e) Copies of records. It shall be the responsibility of the applicant to obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application. If the alien is not in possession of such a document or documents, but believes that a copy is already contained in the Service file relating to him or her, he or she may submit a statement as to the name and location of the issuing Federal, State, or local government agency, the type of document and the date on which it was issued.

(f) Other relevant document(s) and evaluation of evidence. The adjudicator will consider any other relevant document(s) as well as evaluate all evidence submitted, on a case-by-case basis. The Service may require an interview when necessary.

(g) Accuracy of documentation. In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority.

[67 FR 78674, Dec. 26, 2002]

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