Immigration Lawyers

485 Ancillary Issues

 

 

The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.

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Index

* AC 21 Memorandum (Full Text)

* DOS V and K Visa Regulation

* 245(i) INS Regulation Released (See below)

* DOL Notice to SESAs for 245(i) New Labor Certification Application Handling

* INS Summary of LIFE/245(i) Adjustment

* AILA 245(i) Q&A

* DOS Memorandum of V and K Visa Processing Under LIFE Act of 2000(01/31/01)

* INS 245(i) Memorandum (01/26/01)

* Poverty Guidelines for Affidavit of Support for Family-based Immigration

* Registry Bill of 2001 (H.R. 500)

 

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* AC 21 Memoramdum of 06/19/01 (Full Text)

(Click for INS Website Report of Cronin Memo and Pearson Memo)

 

MEMORANDUM FOR MICHAEL A. PEARSON

EXECUTIVE ASSOCIATE COMMISSIONER

OFFICE OF FIELD OPERATIONS

 

FROM: Michael D. Cronin, Acting Executive Associate Commissioner, Office of Programs

 

SUBJECT; Initial Guidance for Processing H-1B Petitions as Affected by the "American Competitiveness in the Twenty-First Century Act" (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396)

 

On October 17, 2000, former President Clinton signed into law The American Competitiveness in the Twenty-First Century Act, (AC 21) Public Law 106-313. The new law increases the Fiscal Year (FY) H-1B cap and establishes new benefits in the H-1B nonimmigrant classification. All provisions in AC21 are effective upon the date of enactment, October 17, 2000. The H-1B nonimmigrant classification was also modified by the Act of October 17, 2000, Public Law 106-311 which increases the H-1B petition fee, and the Visa Waiver Permanent Program Act, Public Law 106-396 Section 401(2000) which affects the requirements for amended H-1B petitions. These statutes are attached to this memorandum.

 

On January 29, 2001, the Office of Field Operations issued a memorandum entitled "Interim Guidance for Processing H-1B Applicants for Admission as Affected by the American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106-313," (th January 29, 2001, memo). The January 29, 2001 Memo provides interim guidance to Ports of Entry (POEs) for the processing of H-1B applicants for admission. The January 29, 2001, memo remains in effecta nd is also attached to this memorandum.

 

The following guidelines establish interim procedures for use by Service personnel in the processing of new benefits under AC21 and the related legislation. Forthcoming regulations will promulgate substantive standards to be utilized in the adjudication of these new benefits.

 

I. EFFECTIVE DATES

 

* All provisions in AC21 are effective upon the date of enactment, October 17, 2000.

* The numerical limitations and the exemptions from the numerical limitations for the FY 2001 cap commence with petitions filed on September 1, 2000.

* Public Law 106-311 provides for new fee exemptions for certain entities identified below. These exemptions are effective for cases filed on or after October 17, 2000.

* Unless exempt from the fee, all H-1B petitions received by the Service on or after December 17, 2000 must be accompanied by the $1,000 H-1B NJonimmigrant Petitioner Account fee.

* Public Law 106-396, effective as of October 30, 2000, stipulates that amended H-1B petitions will not be required for petitioning employers who are involved in certain forms of corporate restructuring.

 

II. AC 21

A. AC21 Section 102 --Temporary Increase in Visa Allotments

The AC21 Section 102 provides that all H-1B petitions approved between the date the numerical limit was reached in FY 1999, and September 30, 19999, are to be counted retroactively against the FY 1999 limit. This provision covers the H-1B petitions that were approved over the FY 1999 cap.

 

All approved H-1B petitions filed beginning October 1, 1999, up to and including August 31, 2000, are to be counted retroactively against the FY 2000 cap, regardless of the date of approval.

 

AC 21 also increasesthe yearly number of H-1B nonimmigrant visas available to 195,000 for FYs 2001, 2002, and 2003. Starting in FY 2004, the number of H-1B nonimmigrant visas available will return to 65,000 per year. The statute specifies that FY 2001 cap count starts with H-1B petitions filed on or after September 1, 2000.

 

B. AC21 Section 103 and Section 114--Exemptions from the H-1B FY Cap

As of October 17, 2000, the following beneficiaries of approved H-1B petitions are exempt from the H-1B FY cap:

(a) beneficiaries who are in J-1 nonimmigrant status in order to receive graduate medical education or training pursuant to Immigration and Nationality Act(INA) Section 212(e)(iii), and who have obtained a waiver of the 2-year home residency requirement under the provisions of the INA first Section 214(1)(1)(B)(commonly referred to as the Conrad State 20 program); or

(b) beneficiaries who are employed at, or who have received an offer of employment at, an institution of higher education (as defined in the Higher Education Act of 1965 Section 101(a), 20 USC Section 1001(a)), or a related or affiliated non-profit entity; or

(c) beneficiaries who are employed by, or who have received an offer of employment from, a non-profit research organization; or

(d) beneficiaries who are employed by, or who have received an offer of employment from, a governmental research organization; or

(e) beneficiaries who are currently maintaining, or who have held within the last 6 years, H-1B status, and are ineligible for another full six year stay as an H-1B; or

(f) beneficiaries who have been counted once toward the numberical limit, and are the beneficiary of multiple petitions.

 

It is noted that section 103 of the law amends section 214(g)(6) of the Act as follows. An H-1B worker not previously counted toward rthe annual cap who leaves the employment of institution of higher education or a related or affiliated non-profit entity to work as an H-1B at an employer other than one defined in Section 214(g)(5) of the Act will be counted toward the annual cap at that time.

 

C. AC 21 Section 104(c) - "One-Time Protection" benefits, Extension of H-1B Status Permitted where Adjustment Pending under Per Country Limitation

The AC 21 Section 104(c) enables H-1B nonimmigrants with approved I-140 petitions who are unable to adjust status because of per-country limits to be eligible to extend their H-1B nonimmigrant satus until their application for adjustment of status has been adjudicated. An H-1B nonimmigrant is eligible for this benefit even if he or she has exhausted the maximum 6-year period of authorized stay for H-1B nonimmigrants under 8 U.S.C. Section 1184(g)(4), INA Section 214(g)(4). The statute states that the beneficiary must:

(a) have a petition filed on his or her behalf for a prefenerence status under INA Section 203(b)(1),(2),or (3)(an employment based ("EB") petition); and

(b) be eligible to be granted that status except for the per-country limitations.

 

Any H-1B nonimmigrant who meets the statutory requirements above may be approved as the beneficiary of request for an extension of H-1B nonimmigrant status until a decision is made on the nonimmigrant's application for adjustment of status.

 

1. Procedure for Processing "one-time protection" benefits

In order for a nonimmigrant to obtain an extension of H-1B nonimmigrant status under AC21 Section 104(c), a petitioner must file a Form I-129, Petition for Nonimmigrant Worker, wit the appropriate signature, fees, and supporting documentation on behalf of the nonimmigrant. Existing guidelines in the instructions to the Form I-129W, "H-1B Data Collection and Filing Fee Exemption" for payment of the $1,000 H-1B Nonimmigrant Petiioner Account Fee shall be followed. For example, if the petitioner is a nonprofit research organization or the petition is a second or subsequent request for extension of stay filed by that petitioner on behalf of that beneficiary, the petitioner is exempt from payment of $1,000 H-1B Nonimmigrant Petitioner Account Fee. If the petition and request for extension of stay are otherwise approvable, adjudicating officers shall not deny a petition because the nonimmigrant has exhausted the maximum 6-year limit provided for by INA Section 214(g)(4). Extensions of stay under AC 21 Section 104(C) SHALL BE MADE IN INCREMENTS OF THREE YEARS.

 

The status of a dependent of an H-1B nonimmigrant is derivative of and linked to the status of the principal H-1B nonimmigrant. Therefore, dependents are eligible for H-4 status upon the filing of an H-1B petition on behalf of the principal alien and the filing of a Form I-539, Application to Extend/Change Nonimmigrant Status with filing fee and all necessary supporting documentation for the dependent. Dependents shoujld be advised to file the Form I-539 concurrently, whever possible, with the H-1B petition filed on behalf of the principal H-1B nonimmigrant.

 

 

D. AC 21 Section 105 -- Visa portability

The AC 21 Section 105 provides that a nonimmigrant who was previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer files a "nonfrivolous" H-1B petition on the nonimmmigrant's behalf, if:

(a) the nonimmigrant was lawfully admitted to the United States;

(b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and

(c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

 

The status of a dependent of a principal nonimmigrant who is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits.

 

There are four contexts in which the question of whether a nonimmigrant has lawfully worked or maintained lawful status under the Section 105 portability provisions may arise:

(a) Adjustment of status, when determining whether a nonimmigrant has maintainedlawful status or engaged in unauthorized employment; or

(b) Request for extension of stay, when determining whether a nonimmigrant has maintained lawful status; or

(c) Request for change of nonimmigrant status, when determining whether a nonimmigrant has continued to maintain status; or

(d) Removal proceedings under INA Section 237(a)(1)(c)(I), failure to maintain nonimmigrant status.

 

Until the Service promulgates final regulations addressing the above questions, Service personnel shall consult with Tracy Renaud/Headquarters Immigration Services Division on a case by case basis before denying benefits or issuing Notices to Appear (NTA's) on the ground that the nonimmigrant was not lawfully working or maintaining lawful status under the requirements of the AC 21 Section 105 portability provisions. Headquarteers may direct Service personnel to hold certain applications in abeyance until a final regulation becomes effective, permitting adjudcation of the application. It should be noted that 8 C.F.R. Section 214.1(c)(4) and 8 C.F.R. Section 248.1(b) permit the discretionary excuse, in certain circumstances, of a nonimmigrant's failure to timely file a request for an extension of stay or change of status, and may be applicable in some cases involving portability provisions.

 

The Serviceisformulating a proposed regulation to address the AC 21 Section 105 portability provisions. One key issue involves the scope of the the portability provisions. On the one hand, Congress does not appear to have limited portabiolity benefits only to those who are working lawfully in H-1B status at the time a new employer files a new H-1B petition on their behalf. Nor, on the other hand, does Congress appear to have extended portability benefits to any alien who has ever held H-1B status, no matter how long ago or what the alien's current status in the United States. The Service expects,therefore, to propose a rule that would afford H-1B beneficiaries, who are no longer working for the initial H-1B employer, some reasonable period of time such as 60 days after leaving the initial H-1B employer to begin working for a new H-1B petitioning employer under the portability provisions. It is important tonote that such proposed rule would not, of course, take effect until ithas been publishedas afinal rule, after notice and comment, and any revisions. This prospective statement of policy is provided solely for informational purposes to Service personnel and shall not be utilized as a standard of adjudication in cases involving portability issues, unless and until promulgation of a final rule implementing AC 21 Section 105 with such an interpretation. Service personnel will be notified of any changes in the processing of AC 21 benefits that may occur upon the effective date of a final rule.

 

1. Admission Procedures for Nonimmigrants Claming Portability

The following procedures reflect the Service's January 29, 2001, memo. An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a Port of Entry (POE) pursuant to the portability provisions, upon presentation of the following evidence:

(a) that the applicant is otherwise admissible;

(b) that the applicant, unless exempt, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed withe name of the original petitioner);

(c) that the applicant was previously admitted as an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition's validity dates; and

(d) that an H-1B petition was timely filed on behalf of the applicant, before expiration of the validity dates of the applicant's previously authorized period of stay. This evidence shall be in form of a copy of a dated Form I-797 receipt notice reflecting that a new petiion has been filed, or other credible evidence of timely filing that validated through a CLAIMS query.

 

The nonimmigrant applicant is admissible to the validity date of the previously approved petition, plus 10 days.

 

Applicants for admission who are dependents of nonimmigrants working pursuant to portability must present the following eividence when seeking admission at a POE:

(a) that the dependent is otherwise admissible;

(b) that the dependent is in possession of a valid, unexpired passport and visa, unless exempt;

(c) that the principal nonimmigrant on whom the applicant is dependent was previously admitted as an H-1B or otherwise accorded H-1B status. If the principal nonimmigrant was visa exempt and not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of teh previously issued I-94, the applicant may present a copy of teh principal nonimmigrant's Form I-797, Notice of Action, with the original petition's validity dates; and

(d) that an H-1B petition was timely filed on behalf of the principal nonimmigrant on whom the applicant is dependent, before expiration of teh validity dates of the principal nonimmigrant's previously authorized period of stay. This evidence shall be in the form of a copy of a dated Form I-797 receipt notice reflecting that a new H-1B petition has been filed, or other credible evidence of timely filing that is validated through a CLAIMS query.

 

a. The applicant does not present evidence that an H-1B petition has been timelyfiled on behalf of the principal nonimmigrant.

If the applicant is not in possession of a copy of the Form I-797, or a query of CLAIMS shows no evidence that an H-1B petition has been timely filed, the applicant is not admissible and should be processed acordingly. Generally, an applicant who lacks evidence of a pending H-1B petition should not be processed as an expedited removal unless there is evidence of fraud or misrepresentation.

 

b. The validity dates of the applicant's previously approved nonimmigrant petition have expired.

If the validity dates of the applicant's previously approved nonimmigrant petition have expired, and teh applicant does not present evidence that the new H-1B petition has been approved, he is not admissible under these provisions and should be processed accordingly. Generally, an alien whose petition has expired should not be processed as an expedited removal unless there is evidence of fraud or misrepresentation.

 

E. AC 21 Section 106 -- Special Provisions in Cases of Lengthy Adjudication

AC 21 Section 106 permits H-1B nonimmigrants to obtain an extension of H-1B status beyond the 6-year maximum period, when:

(a) the H-1B nonimmigrant is the beneficiary of an employment based (EB) immigrant petition or an application for adjustment of status; and

(b) 365 days or more have passed since the filing of a labor certification application, Form ETA 750, that is required for the alien to obtain status as an EB immigrant, or 365 days or more have passed since the filing of the EB immigrant petition.

 

The Attorney General is required to grant the extension of stay of such H-1B nonimmigrants in 1-year increments, until a final decision is made on the H-1B nonimmigrant's lawful permanent residence.

 

1. Procedures for Obtaining Extension of Status in Cases of Lengthy Adjudication

In order for an H-1B nonimmigrant to receive an extension of stay under AC 21 Section 106 beyond the maximum 6-year limit, a petitioner must file a Form I-129 on behlaf of the nonimmigrant beneficiary. If the H-1B petition is approved, the petition will be valid for a period of 1 year. One-year extensions of the beneficiary's H-1B status may continue until a final decision is made on the alien's lawful permanent resident status. A petitioner is required to file a new Form I-129 and pay the $110 filing fee for teh request for a 1-year extension of status under AC 21 Section 106. Existing guidelines in the instructions to the Form I-129W for payment of the $1,000 H-1B Nonimmigrant Petitioner Account Fee shall be followed. For example, if the petitioner is a nonprofit research organization or the petition is a second or subsequent request for extension of stay filed by that petitioner on behalf of that beneficiary, the petitioner is exempt from payment of the $1,000 H-1B Nonimmigrant Petitioner Account Fee.

 

The status of a depenjdent of an H-1B nonimmigrant is derivative of and linked to the status of the principal H-1B nonimmigrant. Therefore, dependents are eligible for H-4 status upon the filing of an H-1B petition on behalf of the principal alien, and the filing of a Form I-539 with filing fee and all necessary supporting documentation for the dependent. Dependents should be advised to file the Fomr I-539 concurrently, whenever possible, with the H-1B petition filed on behalf of the principal H-1B nonimmigrant.

 

 

 

F. AC 21 Section 106(c) -- Change of Employment Permitted in Cases of Lengthy Adjustment Adjudication

The AC 21 Section 106(c) provides that the certification or Form I-140 approval of an EB immigrant petition shall remain valid when an alien changes jobs, if:

(a) a Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and

(b) the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

 

1. Procedures for Processing Benefits under AC 21 Section 106(c)

If an alien has complied with the above statutory requirements, adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Under present prqactices, it is expectedthat an I-485 applicant notify the Service when they nolonger intend to enter into employment with the employer who sponsored them on the I-140 petition. The Service should continue to expect the applicant to submit a letter notifying INS of this change in intent. If the Adjudicator has reason to believe that the applicant's intent has changed a Request for Evidence (RFE) may be issued to clarify the applicant's intent in regards to employment.

 

In instances where the applicant no longer intends to be employed by the employer who sponsored him/her on the I-140, the Service should request a letter of employment from the new employer. The letter from the new employer verifying that the job offer exists should contain the new job title, job description and salary. This information is necessary to determine whether the new job is in the same or similar occupation and to determine whether the alien is admissible under the public charge ground of inadmissibility at INA Section 212(a)(4). To determine whether a new job is in the same orsimilar occupational classification as the original jobfor which the certifiction or approval was initially made, the adjudicating officer may consult the Department of Labor's Dictionary of Occupational Titles or its online O*NET classification system or similar publications.

 

The Service is currently formulating proposed regulations to establish a policy framework in which to adjudicate AC 21 Section 106(c) benefits. Until the Service promulgates final regulations establishing such a policy framework, adjudicators shall consult, on a case by case basis, with Headquarters before denying cases on the basis that the new job is not in the same or similar classification.

 

 

 

G. AC 21 Section 108 -- Recovery of Visas Obrtained Fraudulently

The AC 21 Section 108 provides that when approval of an H-1B petition is remoked on the basis of fraud or the willful misrepresentation of a material fact, one number shall be restored to the H-1B cap in the FY in which the petition is revoked, regardless of the FY in which the petition was actually approved.

 

Any revocation based on fraud or misrepresentation must be updagted correctly in CLAIMS, and the proper correspondenced shall be sent to the petitioner.

 

 

H. Extensions of Stay beyond the 6-Year Maximum Period of Stay and Unlawful Presence

As described above, AC 21 provides for the extension of H-1B status in cases where an alien's immigrant visa petition or adjustment of status application is pending due to the per-country limitation on visas, or due to a lengthy adjudication process. Therefore, it is possible that an H-1B nonimmigrant may stay beyond the 6-year maximum period of stay defined at INA Section 214(g)(4), yet remain in status under the AC 21 provisions. As long as aliens in these circumstances remain in a period of stay authorized through extensions of nonimmigrant stay, they do not accrue unlawful presence.

 

 

III. OTHER LEGISLATION AFFECTING THE H-1B NONIMMIGRANT

A. Public Law 106-311 -- Increase of the H-1B Nonimmigrant Petitioner Fee from $500 to $1,000

The law raises the H-1B Nonimmigrant Petitioner Fee from $500 to $1,000 effective 60 days after enactment. The ws enacted on October 17, 2000. Therefore, unless exempt by the statute from the H-1B Nonimmigrant Petitioner Fee, all Form I-129 H-1B petitionsreceived by the Service on or after December 17, 2000, mjust be accompanied by the increased H-1B Nonimmigrant Petitioner Fee of $1,000. There are no provisions in the law for waiving the $1,000 H-1B Nonimmigrant Petitioner Fee. The employuer continues to be precluded from requiring an alien beneficiary to reimburse or otherwise compensate the employer for all or part of the H-1B Nonimmigrnt Petitioner Fee. The petitioner may submit separate checks or one single remittance to cover the usual filing fee for thee Form I-129 and the H-1B Nonimmigrant Petitioner Fee.

 

Under Public Law 106-311, the following employers are exempt from the H-1B Nonimmigrant Petitioner Fee, effective October 17, 2000:

(a) a primary or secondary educational institution;

(b) an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. Sec. 1001(a);

(c) a nonprofit entity related to or affiliated with an institution of higher education;

(d) a nonprofit entity which engages in established curriculum-related clinical training of students at an institution of high education;

(e) a nonprofit research organization; or

(f) a governmental research organization.

Guidance on these provisions will be forthcoming in regulation.

 

 

B. Public Law 106-396 -- Exemption of Certain Employers from Requirement to File Amended Petitions

Under the provisions of this law, amended H-1B petitions are not required when the petitioning employer is involved in a corporate restructuring where:

(a) the new corporatge entity succeeds to the interestsand obligations of the original petitioning employer; and

(b) the terms and conditions of employment remain the same, except for the identity of the petitioner.

 

The eligible forms of corporate restructuring may include, but are not limited to, mergers, acquisitions or consolidations. Forthcoming regulations will define the eligible forms of corporate restructuring, and the type of evidence required, including the manner in which that evidence should be submitted for extension of stay requests by the new corporate entity.

 

The statute requires no affirmative action on the part of the employer in these corporate restructuring scenarios. In these instances, the previous approval and previously issued approval notice remain valid. Therefore, the Service willnot issue amended approval notices bearing the new company name. Although not necessary, if an employer wishes to obtain an approval notice bearing the new company name, the appropriate procedure for obtaining a new approval notice will continue to be through the filing of an amended Form I-129 with fee.

 

1. Admission Procedures for H-1B Nonimmigrants Working for Employers Claiming Exemption from the Requirement to file Amended H-1B Petitions

An H-1B applicant for admission who no longer works for the original H-1B petitioner and now works for a new corporate entity claiming exemption from the requirement to file an amended H-1B petition may be admitted at a POE if:

 

(a) he is otherwise admissible;

(b) unless exempt, he is in possession of a valid, unexpired passport and nonimmigrant visa; and

(c) he presents a letter from the new corporate entity stating that:

(i) the new corporate entity has succeeded tothe interests and obligations of the original H-1B petitioning employer; and

(ii) the terms and conditions of employment ofthe H-1B nonimmigrant remain the same.

 

 

 

 

 

 

 

* DOS V and K Visa Regulation of 04/16/01

[Federal Register: April 16, 2001 (Volume 66, Number 73)]
[Rules and Regulations] [Page 19390-19394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap01-6]
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DEPARTMENT OF STATE22 CFR Part 41[Public Notice 3644]
Visas: Nonimmigrant Classes; Legal Immigration Family Equity Act
Nonimmigrants, V and K Classification
AGENCY: Bureau of Consular Affairs, Department of State.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule implements five new nonimmigrant visa categories (V1, V2 and V3 and K3, K4) established pursuant to the Legal Immigration Family Equity (LIFE) Act that was enacted on December 21, 2000. The new categories permit United States consular officers to issue nonimmigrant visas to the spouse, child and, in some instances, the child of the child of a lawful permanent resident alien (LPR) and to the spouse of a United States citizen and the child(ren) of the spouse. Issuance of nonimmigrant visas will permit these aliens to apply for admission into the United States as nonimmigrants where they may await the completion of the immigration process with their U.S. citizen or LPR family member.
DATES: This interim rule is effective April 1, 2001. Written comments must be received no later than June 1, 2001.
ADDRESSES: Written comments may be submitted, in duplicate, to H. Edward Odom, Chief, Legislation and Regulations Division, Visa Office, Room L603-C, SA-1, Department of State, Washington, DC 20520-0106.
FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and Regulations Division, Visa Office, Room L603-C, SA-1, Department of State, Washington, D.C. 20520-0106, (202) 663-1204; or e-mail: odomhe@state.gov.
SUPPLEMENTARY INFORMATION:Background
What is the Purpose of the New Visa Categories and Who Benefits From Them?
On December 21, 2000 the President signed into law the Legal Immigration Family Equity (LIFE) Act, Title XI of H.R. 4942, Pub. L. 106-553. Sections 1102 and 1103 of the LIFE Act add to the existing nonimmigrant categories of section 101(a)(15) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15), two new categories, one subdivided into three subcategories (V1, V2, V3) and the other into two subcategories, (K3, K4). The underlying purpose of this legislation is to reunite families that have been or could be subject to a long period of separation during the process of immigrating to the United States. Therefore, once admitted as a V or K nonimmigrant, the alien generally will be permitted to remain in theUnited States with his or her family until the visa petition is approved or denied. Then, if the petition is approved, the alien may continue to remain until the application for adjustment of status is approved or denied, or may depart to seek the issuance of an immigrant visa at the appropriate consular office abroad. In both the new V and K categories the spouses and children
affected are those for whom an immigrant visa or adjustment of status are not available despite the petition having been filed. The lack of availability of a visa or opportunity to adjust status in many cases may be due to lengthy processing delays. In the cases of many spouses and children of lawful permanent residents (LPRs) it may be due to the fact that no visa number has yet become available to the alien because of the annual numerical limitation placed on immigrant visas in the second preference category.The new category ``V'' is intended for use by certain spouses and unmarried children of LPRs who have filed second preference petitions in their behalf pursuant to INA 203(a)(2)(A), and by the unmarried children of those principal beneficiaries. A spouse who qualifies for V status will be classified as V1. A petitioned-for child will be
classified as V2. A derivative child of either will be classified as V3. Under the LIFE Act, no benefits accrue in the new categories until three or more years after the date on which a second preference petition was filed on behalf of the principal beneficiary.The LIFE Act also adds new subcategory K(ii) to the existing K (fianc(e)) nonimmigrant category. The original K category has been renumbered K(i) and modified to remove derivative children and place them in a new K(iii) subcategory along with the children of an alien classified under the new K(ii) subcategory. Nevertheless, a fiance(e) of a U.S. citizen will continue to be designated K1 for visa purposes.
A derivative child of a K1 alien will still be designated K2. The new K3 visa is intended for use by a spouse of a United States citizen for whom a spousal immediate relative petition has been filed in the United States. The spouse's child(ren) will be designated K4. Unlike the new V3 category, neither existing legislation nor the LIFE Act provides for visa issuance to the child of a child of the spouse or the petitioner.

V Visas
What are the Requirements to Obtain Classification as a V1, V2, or V3 Nonimmigrant?
In order to obtain classification as a nonimmigrant under V1 or V2 the alien applicant must first establish that a second preference (F2A) petition (I-130) as the spouse or child of an LPR had been filed in his or her name on or before the date the LIFE Act was enacted, i.e., December 21, 2000. Further, the applicant must establish that either:
(1) The petition in the applicant's name has not been acted upon after three years or more, or (2) if the petition has been approved, three years or more have passed since the petition was filed and either no visa number has become available because of the worldwide or per country numerical limitation, or even though a number is available the alien's application for[[Page 19391]]adjustment of status or visa application remains pending.In order to obtain nonimmigrant classification under V3, the applicant must establish that he or she is the child of a principal alien entitled to classification under V1 or V2. All applicants must demonstrate that they are otherwise eligible for visa issuance under all other applicable immigration laws, including those pertaining to the exclusion of aliens other than INA 212(a)(6)(A), 212(a)(7) and 212(a)(9)(B) from which they are specifically exempted by the LIFE Act.
When is an Immigrant Visa Application Considered to Remain Pending for the Purpose of Obtaining a V Visa?
As stated, if a visa number is available to the alien, in order for the alien to obtain a V visa the alien's immigrant visa application must ``remain(s) pending''. However, the LIFE Act does not give any indication as to what is meant by the phrase ``application for a visa remains pending''. It could refer to the time period between the date

alien is given an appointment at an embassy or consulate in order to apply for an immigrant visa. Or, it could refer to the time period between the alien's actual application for a visa and the date on which a decision is made on the application. Considerable delay at either stage can cause hardship. In view of the specific wording of the LIFE Act, however, Congress appears to have contemplated that the alien must first actually apply for an immigrant visa before he or she may be considered eligible for a V visa. The application must then remain pending. The Department will thus interpret the phrase ``application for a visa remains pending'' to mean that the alien has applied for an immigrant visa pursuant to current regulations, i.e., has personally appeared before a consular officer and verified by oath or affirmation the statements contained on the Form OF-230 and in all supporting
documents, has previously submitted all forms and documents required in advance of the appearance and paid the visa application processing fee, but no decision has been made to issue a visa or refuse the application. In most cases a visa will either be issued or refused at the time of the alien's personal appearance at the visa interview. The specific requirements for making an application are found at 22 CFR 40.1(l)(2). Refusal criteria are found at 22 CFR 42.81(a).
Must an Applicant for a V Visa Apply at a Particular Consular Post?
Yes. Unless they obtain permission under existing Department procedures to permit them to apply at some other post, applicants for V visas must apply at the consular post designated as the processing post in the underlying immigrant visa petition. Because in many ways the V visa is a substitute for an immigrant visa, much of the information relevant to an immigrant visa is also relevant to this nonimmigrant visa. For example, such information may include local documents
establishing family relationships and in some cases testimony of neighbors or other relatives that help to establish such relationships and other bona fides of the applicants.
Does the Department Intend to Authorize Issuance of V Visas to Persons Who as Children Were Qualified for V Visas, but Who Either ``Age-out'' by Reaching the Age of Twenty-one Years or Marry Prior to Receiving a V Visa?
No. The V visa classification clearly limits the class of qualifying aliens to beneficiaries of the F2A immigrant visa preference. The INA 101(b) definition of ``child'' includes only those persons who are under the age of twenty-one years and unmarried. Thus, while in the LIFE Act Congress clearly seeks to unify families waiting for F2A visas, the law only authorizes the issuance of visas to children who meet the INA definition of child. This rule reflects that limitation.

What Will be the Validity Period of a V Visa?
The Department is instructing consular officers to issue visas to qualified applicants for the usual maximum full validity period of ten years, subject to issuance for a shorter period due to the possibility of age-out, or based upon security concerns or ineligibility waiver limitations. In addition, the separate V visa supplemental application form which every V visa applicant or his or her parent will be required to sign will contain a notice apprising them that if a V2 or V3 child enters into a marriage prior to obtaining adjustment of status the marriage will render a ``child'' ineligible for adjustment of status as a preference immigrant. It will further inform the applicant that such marriage may cause termination of their legal status in the United States.
Will Any Attempt be Made to Notify Potential V Visa Applicants of Their Possible Eligibility for the V Visa?
Yes. In view of the fact that the V visa provision is new and somewhat unusual in terms of prevailing law and practice, the
Department has decided that it will send a special notice about the V visa to all persons with F2A priority dates three years or older for whom it has a record in its files at the National Visa Center (NVC). INS routinely notifies NVC of the approval of immigrant visa petitions for which the beneficiary has requested visa processing at a consular post abroad. The Department maintains a database of all such petitions in which it records information regarding the beneficiary's immigration classification and priority date. Using that information NVC will attempt to contact potential V visa applicants in order to provide them with important information about the V visa and how it may be obtained. In fact, as of March 15, 2001 the Department had already begun making such notifications.
Will the Processing of V Visas Differ From Routine NIV Processing, e.g., Processing for a Tourist or a Student Visa?
Yes. In view of the fact that the aliens in the V categories are essentially intending immigrants who will remain in the United States indefinitely, the Department of State has determined that it is prudent to impose on them requirements generally not routinely applied to other nonimmigrants, other than fiance(e)s. Such requirements relate to the presentation of evidence to establish that the intending immigrant meets health and criminal background standards sufficient to protect
the American public.Under INA 212(a), in order to receive a visa all aliens must establish their eligibility in these areas to the satisfaction of the consular officer. Generally, however, among nonimmigrants, only the fiance(e) visa applicants, who likewise are intending immigrants, have been held to a high evidentiary standard in these areas. Thus, for the purpose of meeting certain INA 212(a) requirements the applicants for the new V visa categories will be held to the same standard applied to fiance(e) visa applicants.
What Specific Documentation Will be Required in Order for V Visa Applicants to Establish Their Eligibility in the Areas of Health and Criminal Background?
With regard to health, all applicants will be required to submit to the medical examination applicable to[[Page 19392]]immigrant visa applicants, with the exception that applicants will not be required to meet the vaccination requirements of INA
212(a)(1)(A)(ii). With regard to criminal background, all applicants will be required to present at the time of visa application a criminal record statement (police certificate) pursuant to the requirements of 22 CFR 42.65(c) and to have their name submitted to the Federal Bureau of Investigation for an NCIC records check.
May an Alien Who Already has Been Granted V Status in the United States by the INS Apply for a V Visa? If so, Will the Procedure to Obtain the Visa be the Same as if the Alien had not Previously Been Granted V Status?
An alien who previously has been granted V status by INS in the United States will need a V visa in order to return to the United States in that status. Therefore, the alien will be eligible to apply for a V visa when traveling abroad. Although the procedures for obtaining the visa will remain the same as it is for aliens who have not previously been granted V status, in most cases the alien will not have to undergo a new medical check or police records check since INS requires both as a part of the procedure for an alien to change status to V and therefore the Department will accept the alien's V status granted by INS as evidence that the alien has met both requirements.K Visas
What are the Requirements to Obtain Classification as a K3 or K4 Nonimmigrant?
In order to obtain classification under K3 the applicant must
demonstrate that his or her marriage to a U.S. citizen is valid, he or she is the beneficiary of an immigrant visa petition (I-130) filed to accord status to the applicant as the spouse of a citizen pursuant to INA 201(b)(2)(A)(i), he or she is the beneficiary of an approved nonimmigrant visa petition (currently form I-129F) in such form as the INS determines is appropriate for the purpose of the issuance of a K3 visa, and that he or she wishes to enter the United States to await the approval of the I-130 petition or the availability of an immigrant visa. The nonimmigrant visa petition must have been filed in the United States by the U.S. citizen spouse of the applicant. In order to obtain classification under K4 the alien must establish that he or she is the child of an alien entitled to K3 classification.
When is an Immigrant Visa Considered not to be Available for the Purpose of Obtaining a K3 Visa?
For the purposes of LIFE Act only, and in the absence of a definition of the term ``availability of an immigrant visa'' in that Act, the Department has given the phrase a narrow interpretation in order to maximize the number of aliens who may benefit from the Act's provisions. Therefore, an immigrant visa will be considered to be available only when the actual approved I-130 petition has been received at the consular post at which the visa application must be filed. If the petition has been received at post, any K3 nonimmigrant visa application filed by the alien spouse will be denied and he or she will have to apply for an immigrant visa.
What Happens if the I-130 has Been Approved but not yet Received at the Processing Post?
Despite the fact that an approved immigrant visa petition may not have been received at post, it may have been forwarded to NVC where many approved immediate relative visa petitions are sent for pre-processing. The Department recognizes that if the petition has actually been approved many alien spouses may prefer to process their immigrant visas rather than the K3 visa. Therefore, when the alien applies for the nonimmigrant K3 visa he or she will be asked by the consular officer whether they wish the consular officer to determine from the NVC whether the approved immigrant visa petition has been received from INS. Subject to the special circumstance noted in the next section, if the applicant wishes, the petition will be forwarded to the processing consular post so the applicant may file an immigrant visa application.
What Happens if an Intending K3 Applicant Opts to have the Immigrant Visa Petition Forwarded Abroad From NVC in Order to Apply for an Immigrant Visa, but the K3 Processing Post is not Authorized to Issue Immigrant Visas?
In that case immigrant visa petition will have to be forwarded to and the applicant will have to file the immigrant visa application at the consular post designated by the Deputy Assistant Secretary of State for Visa Services to process immigrant visa applications for nationals of the country in which the K3 processing post is located.
Must an Applicant for a K3 or K4 Visa Apply at a Particular Consular Post?
Yes. If the marriage of the alien to the U.S. citizen occurred abroad, the LIFE Act requires that the visa be issued in the country in which the marriage took place. In those countries in which there is no consular post, the Department has determined that the alien must apply at the consular post designated by the Deputy Assistant Secretary of State for Visa Services to accept immigrant visa applications from nationals of that country. For spouses married in the United States, since the K3 and K4 visas are a subcategory of the K (fiance(e)) visa, the rules regarding the place of application applicable to other K visas will apply, i.e., in general, applications must be filed in the country of residence of the alien spouse.
Will the Department Use the Same Standards for Issuing Full Validity K3 and K4 Visas and for the Notice to Children of Marriageable Age as Established for the V Visa?
Yes. The Department is authorizing the issuance of ten-year multiple entry visas to K3 and K4 visa recipients, except in those
instances in which the limitations of age (aging-out), security concerns or ineligibility waiver limitations indicate a shorter period of validity is necessary. A special visa application supplement for K3 and K4 applicants will also contain a notice informing them of the potential consequences of marriage by a child recipient of a K4 visa prior to admission to the United States or adjustment of status.
Will the Documentation Required To Obtain K3 and K4 Visas Also Differ From Routine NIV Processing, e.g., Processing for a Tourist or a Student?
Yes. For the reasons stated above with regard to V visa applicants, K3 and K4 visa applicants will be processed via the modified immigrant visa procedure applicable to fiance(e)s. In general, this procedure requires a medical examination and law enforcement background check of the alien.

May an Alien Who Already Has Had Filed in his or her Name an Application for Adjustment of Status, but Who Has Not Previously Applied for a K Visa Obtain a K Visa?
Yes. However, they will be subject to all of the procedures applicable to other K3 applicants, including medical examination and a police record check.

Interim Rule: How Is the Department of State Amending Its Regulations?
The Department is adding new Sec. 41.86 to part 41 of Title 22. This new section will permit consular officers to issue a new category of nonimmigrant visa, the V visa, to certain spouses and children[[Page 19393]]of lawful permanent resident aliens. It is also amending Sec. 41.81 of part 41 of Title 22 by designating the language of the existing section as subsection (a) and adding two new subsections, (b) and (c), that will permit consular officers to issue nonimmigrant visas in new categories K3 and K4 for the spouse of a U.S. citizen and the spouse's child(ren), respectively.

(Courtesy of AILA)

* INS 245(i) Regulation

[Federal Register: March 26, 2001 (Volume 66, Number 58)]
[Rules and Regulations]
[Page 16383-16390]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr01-1]

 

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[[Page 16383]]

 

 

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[INS No. 2078-00; AG Order No. 2411-2001]
RIN 1115-AF91

Adjustment of Status To That Person Admitted for Permanent
Residence; Temporary Removal of Certain Restrictions of Eligibility

AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Department of Justice (Department) is amending its regulations governing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act (Act) to conform the regulations to existing policy and procedures and to remove language that has been superseded by subsequent legislation. Specifically, this interim rule conforms the regulations to include the changes made by the Departments of Commerce, State, Justice and the Judiciary Appropriations Act of 1998 and the Legal Immigration Family Equity Act Amendments of 2000. This rule adds the new sunset date of April 30, 2001, for the filing of qualifying petitions or applications that enable the applicant to apply to adjust status using section 245(i) of the Act, clarifies the effect of the new sunset date on eligibility, and discusses motions to reopen. This means that in order to preserve the ability to apply for adjustment of status under section 245(i), an alien must be the beneficiary of a visa petition for
classification under section 204 of the Act that was filed with the Attorney General, or an application for labor certification properly filed with the Secretary of Labor, on or before April 30, 2001, and determined to have been approvable when filed. This rule also provides guidance on the standard for review of immigrant visa petitions and applications for labor certification filed on or before April 30, 2001.

DATES: Effective date. This rule is effective March 26, 2001.
Comment date. Comments must be submitted on or before May 25, 2001.

ADDRESSES: For matters relating to the Immigration and Naturalization Service (Service), please submit written comments to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 4034, Washington, DC 20536, or via fax to (202) 305-0143. To ensure proper handling, please reference INS number 2078-00 on your correspondence. Comments are available for public inspection at this location by calling (202) 514-3048 to arrange for an appointment. For matters relating to the Executive Office for Immigration Review (EOIR), please submit written comments to Charles Adkins-Blanch, General Counsel, EOIR, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041, or via fax to (703) 305-0443. To ensure proper handling, please reference INS number 2078-00 on your correspondence.

FOR FURTHER INFORMATION CONTACT: For questions regarding the Service, contact Michael Valverde, Residence and Status Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC
20536, Telephone (202) 514-4754.For questions regarding EOIR, contact Charles Adkins-Blanch, General Counsel, EOIR, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041, Telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

Background

What Is Section 245 of the Act?

Section 245 of the Act (8 U.S.C. 1255) allows the Attorney General, in his discretion, to adjust the status of an alien who has an
immigrant visa immediately available to that of a lawful permanent resident (LPR) while the alien remains in the United States in lieu of applying for an immigrant visa at a U.S. consular office abroad, if certain conditions are met. An alien must have been inspected and admitted or paroled, be eligible for an immigrant visa and admissible for permanent residence and, with some exceptions, have maintained lawful nonimmigrant status. The alien must not have engaged in unauthorized employment.

What Is Section 245(i) of the Act?

Section 245(i) of the Act (8 U.S.C. 1255(i)) allows certain aliens with an immigrant visa immediately available to them to apply to adjust status upon payment of a $1,000 surcharge, even though the alien entered the United States without inspection or does not meet the maintenance of status and authorized employment requirements of section 245(c) of the Act (8 U.S.C. 1255(c)). Section 245(i) of the Act does not excuse any grounds of inadmissibility under section 212(a) of the Act (8 U.S.C. 1182(a)).
The Departments of Commerce, State, Justice and the Judiciary Appropriations Act of 1998, Public Law 105-119, section 111 (111 Stat. at 2458) (1997), significantly revised Section 245(i) and set a January 14, 1998, sunset date. After January 14, 1998, an alien could file an application for adjustment of status under Section 245(i) of the Act only if that alien was the beneficiary of either (1) an immigrant visa petition under Section 204 of the Act (8 U.S.C. 1154) that was filed with the Attorney General on or before January 14, 1998; or (2) an application for labor certification that was filed pursuant to the regulations of the Secretary of Labor by the alien's employer on or before that date. Such a visa petition or application for labor certification served to ``grandfather'' the alien beneficiary (that is, to preserve the alien's ability to file an application for adjustment of status under Section 245(i)) if the visa petition or application for labor certification was properly filed on or before the sunset date, under the appropriate regulations, and was approvable when filed.

What Changes Were Made by the Most Recent Amendments to Section 245(i)?

The Legal Immigration Family Equity Act Amendments of 2000, Title XV of Public Law 106-554, section 1502 (114 Stat. at 2764) (enacted Dec. 21, 2000) (the LIFE Act Amendments) extended the Section 245(i) (8 U.S.C. 1255(i)) sunset date from January 14, 1998, to April 30, 2001. That Act also requires[[Page 16384]] that, if the qualifying visa petition or labor certification
application was filed after January 14, 1998, the alien must have been
physically present in the United States on the date of enactment
(December 21, 2000) to be eligible to apply for adjustment of status
under Section 245(i).

What Does This Rule Do?

The previous regulations relating to Section 245(i) of the Act (8
U.S.C. 1255(i)), 8 CFR 245.10, were never amended to conform to the
1997 statutory changes to Section 245(i). The Department had developed
a set of guidelines to implement Section 245(i) for aliens who were
grandfathered (i.e., who were the beneficiaries of qualifying visa
petitions or labor certification applications filed by the sunset
date). In view of the changes made by the LIFE Act Amendments and the
apparent intention of Congress to apply the amended law consistently
with past interpretations, this rule is intended to conform Sec. 245.10
to the existing standards and to implement the new physical presence
requirement. The rule also eliminates provisions from the existing
regulation that have been obsolete since the 1997 amendments to Section
245(i).

How Does an Alien Become Grandfathered for Purposes of Section 245(i)
of the Act?

To be grandfathered for purposes of Section 245(i) of the Act (8
U.S.C. 1255(i)), the alien must be the beneficiary of an immigrant visa
petition or a labor certification application that (1) is filed on or
before April 30, 2001, and (2) meets the requirements of the Act and
these regulations. A visa petition or labor certification application
that meets all of the applicable requirements so as to grandfather the
alien beneficiary is referred to as a qualifying visa petition or a
qualifying labor certification application. In addition, if the
qualifying petition or qualifying application was filed after January
14, 1998, the alien beneficiary must also have been physically present
in the United States on December 21, 2000, to be eligible to apply for
adjustment under Section 245(i). The physical presence requirement is
discussed later.
Since Section 245(i) was amended in 1997, the Department has
adopted what has come to be known as an ``alien-based'' reading of
Section 245(i). This means that the alien is grandfathered by the
filing of a qualifying visa petition or qualifying labor certification
application, for purposes of preserving the alien's eligibility to
apply to adjust status under Section 245(i), but the alien is not
limited to that particular petition or application as the only possible
basis for adjustment of status. The qualifying petition or application
that grandfathers the alien serves to preserve the alien's opportunity
to file for adjustment of status under Section 245(i) at a later time,
at which point the grandfathered alien becomes eligible for adjustment
of status on any proper basis.
For example, if an alien is properly grandfathered as the
beneficiary of a qualifying visa petition or qualifying application
that was filed on or before April 30, 2001, the alien would also be
eligible to adjust status under Section 245(i) if he or she later won a
diversity visa.

Are the Dependent Family Members of a Grandfathered Alien Also
Considered To Be Grandfathered?

Yes, a dependent spouse or child (if eligible under section 203(d)
of the Act (8 U.S.C. 1153(d))) who is accompanying or following to join
a grandfathered alien is also considered to be grandfathered by the
qualifying petition or qualifying application for labor certification,
if the relationship exists before the principal alien adjusts his or
her status.

What Documents Must Be Filed on or Before April 30, 2001?

The new sunset date of April 30, 2001, is the deadline for the
filing of a qualifying visa petition or qualifying labor certification
application in order to grandfather the alien beneficiary. To preserve
the alien's ability to apply in the future for adjustment of status
under Section 245(i) (8 U.S.C. 1255(i)), an alien must be the
beneficiary of either (1) a qualifying Section 204 of the Act (8 U.S.C.
1154) immigrant visa petition that is properly filed with the Attorney
General on or before April 30, 2001, and which is determined to have
been approvable when filed; or (2) a qualifying application for labor
certification that is properly filed on or before April 30, 2001,
according to the regulations of the Secretary of Labor, and which is
determined to have been approvable when filed.
An alien is not required to file his or her application for
adjustment of status under Section 245(i) on or before April 30, 2001.
If an alien is grandfathered (because he or she is the beneficiary of a
qualifying visa petition or qualifying labor certification application
filed on or before April 30, 2001), the alien will be able to submit
the actual application for adjustment of status under Section 245(i) at
any later time when an immigrant visa becomes available to the alien.

What Are the Requirements for a Qualifying Immigrant Visa Petition?

An alien becomes grandfathered for purposes of Section 245(i) of
the Act (8 U.S.C. 1255(i)) if he or she is the beneficiary of an
immigrant visa petition under Section 204 of the Act (8 U.S.C. 1154) on
his or her behalf that is properly filed with the Service on or before
April 30, 2001. This includes any of the following:
Form I-130, Petition for Alien Relative, filed on behalf
of the alien beneficiary;
Form I-140, Immigrant Petition for Alien Worker, filed by
an employer on behalf of the beneficiary;
Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant, filed on behalf of the beneficiary or submitted as a self-
petition under Section 204(a)(1)(A)(iii) or (a)(1)(A)(iv) filed by an
eligible alien; and
Form I-526, Immigrant Petition by Alien Entrepreneur.
In any case, the visa petition must be determined to have been
approvable when filed in order to grandfather the alien for purposes of
Section 245(i), as discussed below.
A visa petition does not serve to grandfather the alien beneficiary
if that alien has previously obtained lawful permanent resident status
on the basis of that visa petition.
Other types of applications or petitions for immigration benefits--
including but not limited to asylum applications, diversity visa
applications, and diversity visa lottery-winning letters--do not serve
to grandfather an alien for purposes of Section 245(i), because they do
not satisfy the statutory requirement that the alien must be the
beneficiary of a qualifying immigrant visa petition for classification
under Section 204 of the Act filed with the Attorney General or a
qualifying labor certification application filed with the Secretary of
Labor. Under current law, unless an alien is properly grandfathered as
the beneficiary of a qualifying visa petition or qualifying application
that was properly filed on or before April 30, 2001, the alien will not
be able to take advantage of Section 245(i) even if he or she becomes
eligible for an immigrant visa at some later date.

When Is an Immigrant Visa Petition ``Properly Filed on or Before April
30, 2001''?

To be considered properly filed, for purposes of grandfathering,
the immigrant visa petition must be physically received by the Service
prior

[[Page 16385]]

to the close of business on or before April 30, 2001, or if mailed, be
postmarked on or before April 30, 2001.
The Service is applying the exception for grandfathering visa
petitions contained in the regulations at 8 CFR Sec. 103.2(a)(7), which
require that a petition must be physically received and stamped by the
Service in order to be considered properly filed. For the purpose of
grandfathering under section 245(i) of the Act (8 U.S.C. 1255(i)) only,
the Service will accept as properly filed, visa petitions that are
postmarked on or before April 30, 2001. In addition, given the April
30, 2001, sunset date, the Service notes that it will accept visa
petitions that contain at least the minimum amount of information
required by 8 CFR 103.2(a). Petitions that do not contain the names of
the petitioner and the beneficiary, the proper fee, and the signature
of the petitioner will not be accepted for filing.

When Is an Immigrant Visa Application ``Approvable When Filed'' for
Grandfathering Purposes?

Not all immigrant visa petitions that are properly filed on or
before April 30, 2001, will serve to grandfather the alien beneficiary
for purposes of Section 245(i) of the Act (8 U.S.C. Sec. 1255(i)). In
interpreting the language of Section 245(i) since it was amended in
1997, the Department has also required that the visa petition must have
been ``approvable when filed'' to qualify the alien beneficiary for
grandfathering.
``Approvable when filed'' means that, as of the date of filing the
immigrant visa petition, the petition was properly filed, meritorious
in fact, and non-frivolous (``frivolous'' meaning patently without
substance). For example, a visa petition is not approvable when filed
if it is fraudulent or if the named beneficiary did not have, at the
time of filing, the appropriate family relationship or employment
relationship that would support the issuance of an immigrant visa.
As noted, the Department recognizes that some immigrant visa
petitions may be filed initially without all of the necessary
information for the Service to adjudicate the petition. In that case,
the existing regulations at 8 CFR 103.2(b)(8) provide a process for the
Service to request additional evidence and to allow the petitioner a
period of 12 weeks to submit that additional evidence in support of the
petition.
It is important to note, though, that all eligibility requirements
must be satisfied before an immigrant visa petition can be approved. A
visa petition will not qualify an alien for grandfathering unless the
Service is able to determine, based on the available information
(including additional evidence submitted by the petitioner after the
filing of the petition) that the petition was approvable when filed.
If the Deparment has already approved the visa petition at the time
the alien files an application for adjustment of status, it was
approvable when filed, except as discussed below, and thus provides a
basis for grandfathering. However, a visa petition may still serve as
the basis for grandfathering even if it has not been adjudicated by the
Service as of April 30, 2001. As discussed below, the adjudication of
the visa petition on the merits is distinct from the question of
whether the petition qualifies for grandfathering because it was
approvable when filed.

What if an Immigrant Visa Petition Is Properly Filed on or Before April
30, 2001, but Is Later Denied, Withdrawn, or Revoked?

An immigrant visa petition on behalf of an alien beneficiary that
is properly filed on or before April 30, 2001, but is subsequently
denied or withdrawn, or the approval of which is revoked, may still
serve to grandfather the alien, depending on the reasons for the
disposition of the visa petition. The issue is whether the visa
petition was approvable when filed.
Changed Circumstances Arising After the Time of Filing
As long as a qualifying visa petition was approvable when filed,
the petition will still grandfather the alien even if the petition was
denied or revoked due to circumstances arising after the filing of the
petition as outlined at 8 CFR Sec. 205.1(a)(3)(i) or (ii). Such changed
circumstances would include but are not limited to a child who has
reached age 21 before the principal alien could adjust status, an
employer going out of business, or a valid, bona fide marriage ending
in divorce before the alien could adjust status.
These same principles apply where the petitioner withdraws an
immigrant visa petition. For example, an employer that had filed an
immigrant visa petition for an alien may suffer a business reversal 18
months after the date of filing and, as a result, withdraw the
petition. In that case, the alien would still continue to be
grandfathered for purposes of Section 245(i) of the Act, if the
petition was approvable at the time of filing.
Under the ``alien-based'' reading, a grandfathered alien is not
limited to filing for adjustment of status using the particular visa
petition that provided the basis for grandfathering. Thus, a properly
grandfathered alien with a petition that was denied or revoked due to
circumstances arising after the filing of the petition may apply to
adjust status using any other proper basis for adjustment. Although
grandfathered by the denied or revoked petition, the alien may not use
that petition as an adjustment basis, given that the petition was not
approved.
Immigrant Visa Petitions Denied or Revoked Based on Ineligibility
When the Service has denied an immigrant visa petition (or has
revoked a prior approval) based on ineligibility at the time of filing,
the petition does not qualify to grandfather the alien beneficiary for
purposes of section 245(i). Such ineligibility may be based on
meritless or fraudulent petitions, such as those in which the claimed
family or employment relationship at the time of the filing cannot
serve as the basis for issuance of an immigrant visa.

When Is a Labor Certification Application ``Properly Filed on or Before
April 30, 2001''?

To be considered properly filed, for purposes of grandfathering
under Section 245(i) of the Act (8 U.S.C. 1255(i)), a labor
certification application must be filed on or before April 30, 2001,
according to the regulations established by the Department of Labor, 20
CFR 656.21. The sponsoring employer must properly complete and sign ETA
Form 750, Parts A and B. The Labor Department considers an application
for labor certification that is filed and accepted at a State
Employment Security Agency (SESA) to be properly filed.

What Happens if an Employer Substitutes a New Beneficiary on a Labor
Certification Application After April 30, 2001?

Only the alien who was the beneficiary of an application for labor
certification on or before April 30, 2001, will be considered to be
grandfathered for purposes of Section 245(i) of the Act (8 U.S.C.
1255(i)).

When Is an Application for Labor Certification ``Approvable When
Filed'' for Grandfathering Purposes?

Not all applications for labor certification that are properly
filed on or before April 30, 2001, will serve to grandfather the alien
beneficiary for purposes of Section 245(i) of the Act (8 U.S.C.
1255(i)). In interpreting the language of Section 245(i) since it was
amended in 1997, the Department has also required that the application
for

[[Page 16386]]

labor certification must have been ``approvable when filed'' to qualify
the alien beneficiary for grandfathering.
``Approvable when filed'' means that, as of the date of filing of
the application for labor certification, the application was properly
filed, meritorious in fact, and non-frivolous (``frivolous'' meaning
patently without substance).

What Happens if an Alien Is Already in Immigration Proceedings?

If an alien is already in immigration proceedings and believes that
he or she may be eligible to apply to adjust status under Section
245(i) of the Act (8 U.S.C. 1255(i)), he or she should raise the matter
with the Immigration Judge or the Board of Immigration Appeals
according to the established procedures. Certain aliens in exclusion
proceedings and certain arriving aliens, however, cannot apply for
Section 245(i) adjustment.

If an Alien Already Is the Subject of a Final Order of Removal,
Deportation or Exclusion, What is the Procedure for Moving To Reopen
Based on Section 245(i)?

The LIFE Act Amendments contain no special provisions for reopening
cases under Section 245(i) of the Act (8 U.S.C. 1255(i)) where an alien
already is the subject of a final order of removal, deportation or
exclusion. Accordingly, motions to reopen based on Section 245(i) will
be governed by the Department's current rules regarding motions to
reopen, 8 CFR 3.23 (before the Immigration Judge) and 3.2 (before the
Board of Immigration Appeals), which contain time and numerical
limitations on the filing of such motions. See 8 CFR 3.23(b)(1) and
3.2(c)(2). The rules, however, do provide for limited exceptions to
these time and numerical limitations, among which is a motion to reopen
filed jointly by the alien and the Service counsel in the case.
Therefore, an alien who is the subject of a final order who alleges
eligibility for adjustment of status under Section 245(i) may contact
the Service counsel to request the filing of a joint motion to reopen.
The Service will exercise its discretion in reviewing these cases.
However, there are provisions in the Immigration and Nationality Act
which limit the Attorney General's ability to grant certain forms of
discretionary relief, including adjustment of status, for a period of
time, to particular categories of aliens with final orders, including
but not limited to aliens whose orders were entered in absentia for
failure to appear, and aliens who failed to voluntarily depart the
United States within the time period specified.

How is an Alien's Nonimmigrant Status in the United States Affected if
he or she is Grandfathered?

An alien's nonimmigrant status in the United States is not affected
by the fact that he or she is grandfathered. The petition that serves
to grandfather the alien neither extends an alien's nonimmigrant status
nor authorizes employment in the United States. The immigrant visa
petition or application for labor certification that serves to
grandfather the alien does not serve to stay any order of removal,
deportation, or exclusion.

What Effect Does a Grandfathering Petition Have on an Alien's Unlawful
Presence in the United States if he or she Has Entered Without
Inspection or Remained Beyond the Authorized Period of Admission?

The mere filing of a visa petition or application for a labor
certification that has the effect of grandfathering the alien has no
effect on an alien's unlawful presence in the United States and does
not place the alien in a ``period of stay authorized by the Attorney
General'' for purposes of section 212(a)(9)(B) of the Act (8 U.S.C.
1182(a)(9)(B)). Absent some other factor placing the alien in such a
period of authorized stay, the alien continues to accrue periods of
unlawful presence until he or she properly files an application for
adjustment of status. A properly filed application for adjustment of
status under Section 245(i) of the Act (8 U.S.C. 1255(i)) places the
alien in a ``period of stay authorized by the Attorney General'' for
purposes of section 212(a)(9)(B) and (C) of the Act (8 U.S.C.
1182(a)(9)(B) and (C)).
Filing an application for adjustment of status stops the accrual of
unlawful presence, but does not eliminate periods of unlawful presence
accrued before such filing.

When Is an Alien Applying for Adjustment of Status Under Section 245(i)
Required to Demonstrate Physical Presence in the United States?

If an alien is the beneficiary of a qualifying immigrant visa
petition, or qualifying application for labor certification, that was
filed after January 14, 1998, then the alien must have been physically
present in the United States on December 21, 2000, to be eligible to
use Section 245(i) of the Act (8 U.S.C. 1255(i)). The physical presence
requirement does not apply if the qualifying petition or application
was filed on or before January 14, 1998, regardless of when the Section
245(i) application for adjustment of status itself is filed.
Proof of a grandfathered alien's physical presence is not required
to be presented when a visa petition or labor certification application
is filed; such proof must be presented when the alien files the Section
245(i) application for adjustment of status itself.

How Can an Applicant Demonstrate That he or she Was Physically Present
in the United States on December 21, 2000?

Applicants for adjustment under Section 245(i) of the Act (8 U.S.C.
1255(i)) who are covered by the physical presence requirement must
submit, at the time they file the Section 245(i) application for
adjustment of status, evidence that they were physically present in the
United States on December 21, 2000.
The Act is silent as to the methods by which an applicant may
demonstrate his or her physical presence in the United States on that
date. This rule provides guidance as to what evidence an applicant may
submit to prove physical presence in the United States on December 21,
2000. This guidance largely corresponds to the existing regulations at
8 CFR 245.15(i) for aliens who must demonstrate physical presence on a
specific date for purposes of the Haitian Refugee Immigrant Fairness
Act of 1998 (HRIFA). The rule will incorporate, in part, the forms of
documentation accepted in HRIFA regarding physical presence (8 CFR
245.15(i) and (j)(2)) and adopt them as examples of possible proof of
physical presence for section 245(i). The Department is also soliciting
comments on what type of evidence can be best utilized to demonstrate
physical presence on December 21, 2000.
In some cases, a single document may suffice to establish the
applicant's physical presence on December 21, 2000. In most cases,
however, the alien may need to submit several documents, because most
applicants may not possess documentation that contains the exact date
of December 21, 2000. In such instances, the applicant should submit
sufficient documentation establishing the applicant's physical presence
in the United States prior to and after December 21, 2000.
An alien may make the demonstration of physical presence by
submitting a photocopy of a Federal, state, or local government-issued
document(s) that demonstrates the alien's physical presence in the
United States on December 21, 2000 (or before and after that date). If
the alien is not in

[[Page 16387]]

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. Examples of such Service issued
documents include, but are not limited to, Form I-94, Arrival-Departure
Record, Form I-862, Notice to Appear, Form I-122, Notice to Applicant
for Admission Detained for Hearing before Immigration Judge, or Form I-
221, Order to Show Cause. Examples of such Federal, state, or local
government issued documents include, but are not limited to, a state
driver's license or identification card, a county or municipal hospital
record, a public college or public school transcript, income tax
records, 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, or a transcript from a
private or religious school that is registered with, or approved or
licensed by, appropriate State or local authorities.
If there are no government-issued documents that demonstrate an
alien's physical presence on December 21, 2000, the Service will accept
and evaluate non-government issued documents. Such documentation must
bear the name of the applicant, have been dated at the time it was
issued, and bear the seal or signature of the issuing authority (if the
documentation is normally signed or sealed), be issued on letterhead
stationery, or be otherwise authenticated. A personal affidavit
attesting to physical presence on December 21, 2000, will not be
accepted without additional evidence to validate the affidavit.
Examples of such non-government issued documents include, but are not
limited to, school records, rental receipts, utility bills, cancelled
personal checks, employment records, or credit card statements.
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.

Do the Dependent Family Members of a Grandfathered Alien Need to Meet
the December 21, 2000, Physical Presence Requirement?

No, the dependent spouse or children of a grandfathered alien are
not required to meet the physical presence requirement. Only the
principal beneficiary of an immigrant visa petition or application for
labor certification filed after January 14, 1998, and on or before
April 30, 2001, needs to demonstrate his or her physical presence in
the United States on December 21, 2000.

What Outdated Information Is Being Removed From the Regulations?

The Department amends 8 CFR 245.10 to remove language made obsolete
by Public Law 105-119 and Public Law 106-554, specifically: language
that refers to fee amounts for applications filed before December 29,
1996; and language that ends the application period for adjustment
applications on October 23, 1997. The new language conforms the
regulations to the existing law and established procedures.

Congressional Review Act

Although this rule falls under the category of major rule as that
term is defined in 5 U.S.C. 804(2)(A), the Department finds that under
5 U.S.C. 808(2) good cause exists for immediate implementation of this
regulation upon publication in the Federal Register. The reason and
necessity for immediate implementation are as follows: Under the
statutory (LIFE Act) changes that went into effect on December 21,
2000, individuals who want preserve their ability to adjust their
immigration status under section 245(i) of the Act must do so by April
30, 2001. Accordingly, because there is a very short window of
opportunity for these individuals to apply, the Department finds that
delaying the effective date of this rule is impracticable, unnecessary,
and contrary to the public interest.

Good Cause Exception

The Department's implementation of this rule as an interim rule
with provisions for post-promulgation comment, and with an immediate
effective date, is based on the ``good cause'' exceptions found at 5
U.S.C. 553(b)(3)(B) and (d)(3). The implementation of this rule without
prior notice and comment, and without a delayed effective date, is
necessary to implement recently enacted statutory changes that took
effect upon enactment on December 21, 2000. There is a very short
window of opportunity (ending on April 30, 2001) provided by the new
law for the filing of immigrant visa petitions and applications for
labor certification, in order to preserve the ability of eligible
aliens to adjust their status under Section 245(i) of the Act (8 U.S.C.
1255(i)).
This rule implements a portion of the LIFE Act Amendments by
setting forth the procedural instructions on the proper filing of
immigrant visa petitions, applications for labor certification, and
applications for adjustment of status under Section 245(i). Certain
individuals, if they miss the opportunity to use Section 245(i) to
adjust their status while in the United States, may be subject to the 3
or 10 year bars to admission under Section 212(a)(9) (8 U.S.C.
1182(a)(9)) if they leave the United States to apply for an immigrant
visa at a U.S. consular office abroad. It would be impractical and
contrary to the public interest to publish a proposed rule or to delay
the effective date of these procedural instructions, because the public
comment period and a delayed effective date would consume most of the
very limited time statutorily available for qualified applicants to
take advantage of the new law. The Department will fully consider all
comments about this interim rule that are submitted during the comment
period.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule affects
individuals by temporarily removing certain restrictions on eligibility
for adjustment of status in accordance with Public Law 110-119. This
rule is intended to eliminate inconvenience to a number of individuals
currently in the United States who otherwise would be required to incur
significant monetary expenses by traveling abroad to apply for an
immigrant visa at a United States consulate or embassy. This interim
rule will have no effect on small entities as that term is defined in 5
U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in 1 year, and it will not significantly or uniquely
affect small governments.

[[Page 16388]]

Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is a major rule as defined by the Small Business
Regulatory Enforcement Act of 1996. This rule will result in an effect
on the economy of approximately:
$178,300,000 for 2001,
$99,200,000 for 2002, and
$91,900,000 for 2003.
This increase in cost is directly associated with the expected
increase in the number of applications for adjustment of status
submitted under section 245(i) of the Act (8 U.S.C. 1255(i)) with the
required $1,000 penalty fee and other associated applications. Section
1502 of the LIFE Amendments, Public Law 106-554, reinstates section
245(i) until April 30, 2001. The reinstatement of section 245(i)
provides some previously ineligible individuals with the opportunity to
file the proper forms to preserve their ability to use section 245(i).
The Service projects that in fiscal year 2001, a total 946,000
applications will be submitted because of the reinstatement of section
245(i) of the Act as follows:
500,000 Forms I-130;
50,000 Forms I-140;
148,500 Forms I-765;
82,500 Forms I-131; and
165,000 Forms I-485.
In addition, the Department of Labor projects that at least 40,000
Forms ETA 750 will be submitted. The Service projects that in fiscal
year 2002, a total of 324,000 total applications will be submitted as
follows:
121,500 Forms I-765;
67,500 Forms I-131; and
135,000 Forms I-485.
The Service projects that in fiscal year 2003, a total of 300,000
applications will be submitted as follows:
112,500 Forms I-765;
62,500 Forms I-131; and
125,000 Forms I-485.

Executive Order 12866

This rule is considered by the Department of Justice to be an
``economically significant regulatory action'' under Executive Order
12866, Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget for review.

Executive Order 13132

This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

Executive Order 12988

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

Paperwork Reduction Act

This interim rule does not impose any new reporting or
recordkeeping requirements. The information collection requirements
pertaining to this rule were previously approved for use by the Office
of Management and Budget (OMB). The OMB control numbers for these
collections are contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects in 8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

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

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

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

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; Sec. 902, Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.

2. Section 245.10 is amended by:
a. Revising the section heading;
b. Removing paragraph (c);
c. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c)
respectively;
d. Adding a new paragraph (a);
e. Revising newly redesignated paragraph (b) introductory text;
f. Revising newly redesignated paragraphs (b)(4), (b)(5), and
(b)(7);
g. Revising newly redesignated paragraph (c) introductory text;
h. Revising the phrase ``receipt of approval'' to read ``receipt or
approval'' in the first sentence of newly redesignated paragraph
(c)(3);
i. Revising paragraph (d);
j. Revising paragraph (e);
k. Revising paragraph (f); and
l. Adding new paragraphs (h), (i), (j), (k), (l), (m), and (n).
The additions and revisions to read as follows:

 

Sec. 245.10 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 Sec. 103.2(a)(1) and (a)(2) of this
chapter; 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

[[Page 16389]]

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 Sec. 205.1(a)(3)(i) or
(a)(3)(ii) of this chapter.
(b) Eligibility. An alien who is included in the categories of
restricted aliens under Sec. 245.1(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:
* * * * *
(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;
* * * * *
(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 Sec. 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:
* * * * *
(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 Sec. 103.2 of this
chapter 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 Sec. 103.2 of this chapter (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 Sec. 103.5 of this chapter. 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.
* * * * *
(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 Sec. 245.1(d)(1)(ii).
(m) Effect of grandfathering on unlawful presence under section

[[Page 16390]]

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. F