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Immigration Benefits Business Transformation, Increment I

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AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Final rule; request for comments.

SUMMARY:

The Department of Homeland Security (DHS) is amending its regulations to enable U.S. Citizenship and Immigration Services (USCIS) to migrate from a paper file-based, non-integrated systems environment to an electronic customer-focused, centralized case management environment for benefit processing. This transformation process will allow USCIS to streamline benefit processing, eliminate the capture and processing of redundant data, and reduce the number of and automate its forms. This transformation process will be a phased multi-year initiative to restructure USCIS business processes and related information technology systems. DHS is removing references to form numbers, form titles, expired regulatory provisions, and descriptions of internal procedures, many of which will change during transformation. DHS is also finalizing interim rules that permitted submission of benefit requests with an electronic signature when such requests are submitted in an electronic format rather than on a paper form and that removed references to filing locations for immigration benefits. In addition, in this rule DHS is publishing the final rule for six other interim rules published during the past several years, most of which received no public comments.

DATES:

Effective date: This rule is effective November 28, 2011.

Comment date: Written comments must be submitted on or before October 28, 2011.

ADDRESSES:

You may submit comments, identified by DHS docket number USCIS-2009-0022 by one of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • E-mail: You may submit comments directly to USCIS by e-mail at uscisfrcomment@dhs.gov. Include DHS docket number USCIS-2009-0022 in the subject line of the message.
  • Mail: Sunday Aigbe, Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Suite 5012, Washington, DC 20529-2020. To ensure proper handling, please reference DHS docket number USCIS-2009-0022 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.
  • Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Suite 5012, Washington, DC 20529-2020. Contact Telephone Number is (202) 272-8377.
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FOR FURTHER INFORMATION CONTACT:

Dan Konnerth, Policy Chief, Office of Transformation Coordination, U.S. Citizenship and Immigration Services, Department of Homeland Security, 633 Third St., NW., Washington, DC 20529-2210. Contact Telephone Number is (202) 233-2381.

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SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Background

A. Introduction

B. Authority

C. USCIS Transformation Initiative

D. How Transformation Will Work

E. Other Regulatory Changes Necessary for the Transformation Initiative

III. The Changes Made by This Rule

A. Removing References to Form Numbers and Form Titles

B. Removing References to Position Titles Within USCIS

C. Replacing “Service” With More Specific Component Names and Removing References to Particular USCIS Offices

D. Removing Information About Procedures for Filing and Internal Processing of Benefit Requests

E. Removing Obsolete and Expired Regulatory Provisions; Correcting and Updating Provisions Affected by Statutory Changes

F. Revising or Reorganizing Sections or Paragraphs for Clarity and Consistency and To Remove Duplicative Information

IV. Discussion of Comments Received in Response to the April 29, 2003, Interim Rule

V. Discussion of Other Interim Final Rules Being Finalized

A. Application for Refugee Status; Acceptable Sponsorship Agreement Guaranty of Transportation, RIN 1615-AA24

B. Adjustment of Status for Certain Syrian Nationals Granted Asylum in the United States, RIN 1615-AA57

C. Eliminating the Numerical Cap on Mexican TN Nonimmigrants, RIN 1615-AA96

D. Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004, RIN 1615-AB32

E. Classification of Certain Scientists of the Commonwealth of Independent States of the Former Soviet Union and the Baltic States as Employment-Based Immigrants, RIN 1615-AB14

F. Revoking Grants of Naturalization, RIN 1615-AA30

VI. Discussion of Comments Received in Response to the June 5, 2009, Interim Rule

VII. Regulatory Requirements

A. Administrative Procedure Act

B. Unfunded Mandates Reform Act of 1995

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Executive Order 12866

E. Executive Order 13132

F. Executive Order 12988 Civil Justice Reform

G. Paperwork Reduction Act

H. Regulatory Flexibility Act

I. Public Participation

Interested persons are invited to submit written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to USCIS in developing these procedures will reference a specific portion of this rule, explain the reason for any recommended change, and include data, information, or authority that support the recommended change.

Instructions: All submissions must include the component name and DHS docket number USCIS-2009-0022. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received go to http://www.regulations.gov. Submitted comments may also be inspected at the Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Suite 5012, Washington, DC 20529-2020.

II. Background

A. Introduction

U.S. Citizenship and Immigration Services (USCIS) receives approximately six million immigration benefit requests each year, comprised of more than fifty types of applications and petitions. USCIS historically accepted paper applications and depended on paper files. These applications and Start Printed Page 53765paper files were the only means for USCIS to adjudicate applications and petitions and that paper-based process, by contemporary standards, was inefficient. Until recently, USCIS processed on paper all immigration benefits, verified the identity of applicants, and provided other government agencies with the information required to quickly identify criminals and possible terrorists.

USCIS is modernizing its processes and systems in light of the development of technology to accommodate and encourage greater use of electronic data submission, to include e-filing and electronic interaction. USCIS will not eliminate paper filing at this time but will convert the data from paper filing to an electronic medium when the completed form is received. USCIS will then operate in an electronic environment fostering greater operational efficiency, provide transparency, and improve access to information through online accounts for those who do business with USCIS.

The Department of Homeland Security (DHS) and USCIS began the transformation of USCIS operations by eliminating regulatory references to filing locations for immigration benefits, thereby permitting USCIS to more rapidly adjust filing locations to meet demand and operational needs and to provide that information on petition and application forms and through other means, such as on the USCIS Web site. See Removing References to Filing Locations and Obsolete References to Legacy Immigration and Naturalization Service; Adding a Provision to Facilitate the Expansion of the Use of Approved Electronic Equivalents of Paper Forms, 74 FR 26933 (June 5, 2009) (“Filing Location Rule”).

DHS is expanding on the Filing Location Rule by affording additional flexibility for applicants and petitioners to file, and for USCIS to receive and process, benefit requests, biometrics, and supporting documentation in an electronic environment. For example, amendments in this rule to 8 CFR 103.2(a)(1) (relating to filing), 8 CFR 103.2(a)(7) (relating to receipt dates), and 8 CFR 103.8 (relating to delivery of notices) each replace language geared solely to paper files and benefit requests with language that is equally applicable in a paper or electronic environment.

B. Authority

The Government Paperwork Elimination Act (GPEA), Public Law 105-277, tit. XVII, section 1703, 112 Stat. 2681, 2681-749 (Oct. 21, 1998), 44 U.S.C. 3504 note, provides that, when possible, Federal agencies use electronic forms, electronic filing, and electronic submissions to conduct agency business with the public. GPEA establishes the means for the use and acceptance of electronic signatures. This rule will significantly enhance the ability of USCIS to fully implement GPEA. The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135 (Nov. 25, 2002), 6 U.S.C. 112, and the Immigration and Nationality Act of 1952, as amended (INA or Act), section 103, 8 U.S.C. 1103, charge the Secretary of Homeland Security with administration and enforcement of the immigration and naturalization laws. DHS implemented an electronic signature provision for immigration benefit filings with USCIS in 2003. Electronic Signature on Applications for Immigration and Naturalization Benefits, 68 FR 23010 (April 29, 2003). The Secretary promulgates this final rule under the broad authority to administer the Department of Homeland Security, and the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority.

DHS is also adding new fees to the USCIS fee regulations as required by recent legislation. Effective August 13, 2010, Public Law 111-230 imposes additional fees on certain H-1B and L-1 nonimmigrants. 124 Stat. 2485 (Aug. 13, 2010); New 8 CFR 103.7(b)(1)(v).

C. USCIS Transformation Initiative

USCIS is engaged in an enterprise-wide transformation effort to implement new business processes and to improve service, operational efficiency, and national security. USCIS's new operational environment will employ online accounts, such as those used by many private sector organizations.

Applicants and petitioners will be able to access individualized accounts that will provide electronic access to information on how to apply for benefits, allow easier filing, and permit applicants and petitioners, and their representatives, to track the status of open applications and petitions. Applicants and petitioners will be able to use a secure USCIS Internet Web site to access accounts “on-demand” in an electronic service environment available at all times.

USCIS will develop new automated case management tools to access data electronically, prevent the loss of information, and provide adjudicators with a comprehensive view of an alien's immigration history. USCIS's electronic environment will facilitate and expedite information collection, reduce benefit fraud and result in more consistent and efficient decisions. USCIS is supplementing existing paper filing options by adding more user-friendly electronic filing options.

USCIS will improve many of its internal security, operational efficiency, and public service capabilities as transformation proceeds. USCIS will first allow the creation of accounts for various applicants, followed by enhanced e-filing and case management capabilities, and then improve reporting and Freedom of Information Act (FOIA), 5 U.S.C. 552, tools. Once deployed, these tools will be applied and made available to the immigrant, humanitarian, and nonimmigrant applicant populations.

USCIS's transformation to an electronic environment is based on three objectives and long-term benefits: enhanced national security and integrity of filings, public service, and operational efficiency. USCIS's transformation will use modern electronic audit and investigative methods to improve national security and integrity by identifying potential fraud and other risks by effectively collecting, analyzing and sharing information used to verify an alien's or other individual's identity and eligibility for various immigration benefits. USCIS will use a more complete picture of an alien's immigration history by analyzing information across benefit applications, thus exposing those attempting to perpetrate fraud or who are otherwise ineligible for immigration benefits. For example, an applicant's or beneficiary's marital or employment history in an existing agency file or in another pending application may provide relevant information that differs from the information in the application or petition being adjudicated. A responsible and transparent approach toward the handling of such personal information protects the rights of individuals and organizations interacting with USCIS and thereby fosters their trust and cooperation. At the same time, this approach facilitates authorized sharing of information with partner components of DHS—such as U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE)—in a secure environment that better protects against unauthorized disclosures. This approach will facilitate authorized sharing of information with partner agencies—such as the Department of State (DOS) and the Department of Justice (DOJ). In addition, electronic transmission and storage of information is faster, less costly and more secure than the physical movement of paper files.Start Printed Page 53766

USCIS will improve public service by adjudicating requests for benefits more accurately and quickly, and by providing more timely and accurate information about immigration benefits and the status of benefit requests. Applicants, petitioners, and their representatives will have access to relevant forms, instructions, case status, and other actions and information through online accounts that organize information and transactions to meet their needs. DHS will continue to ensure the confidentiality of its immigration records in accordance with the requirements of the law, including the Privacy Act, 5 U.S.C. 552a,[1] and 8 CFR 208.6. USCIS's transformation to an electronic environment will enable it to become an innovative and agile organization that better understands its workload and best uses all available resources, investing in its people and infrastructure to ensure cost-effective and consistent results.

D. How Transformation Will Work

USCIS adopted a “person-centric” business approach to transformation based on establishing various types of individual and organizational accounts. The key to this approach is encouraging individual applicants, petitioners, beneficiaries, organizations, legal representatives, and others who interact with USCIS to access their own online accounts. Applicants, petitioners, and others will be able to electronically submit benefit requests with supporting documentation, access status information regarding pending benefit requests, change their addresses and contact information, obtain FOIA-related materials, and comply with some registration requirements of the Immigration and Nationality Act.

USCIS's transformation will create an end-to-end electronic adjudicative process encompassing an alien's entire immigration lifecycle, unlike the current process that uses multiple systems and focuses on each individual benefit request. Data initially provided by account holders will be reused, if appropriate, to reduce data entry required for subsequent benefit requests. Additional and revised data will be used to update and enhance account information. Account data submitted to support various immigration benefit transactions will be verified, where feasible and appropriate, through links to other internal and external data systems, potentially reducing the need for applicants and petitioners to provide certain forms of supporting evidence and reducing potential requests for evidence from USCIS.

USCIS's transformation will eventually affect all aspects of USCIS benefit processing operations and technology. This operational concept is intended to standardize processes across USCIS operations relating to case intake, biometrics, background checks, adjudication, scheduling, and notifications. USCIS benefit adjudication operations will be changed incrementally from a paper- and hard copy file-based process to an electronic process, making it possible to process benefit requests more efficiently. With the implementation of these improvements, USCIS will enhance the overall process.

E. Other Regulatory Changes Necessary for the Transformation Initiative

DHS anticipates that additional regulatory changes will be required over the next several years as the transformation of USCIS to an electronic environment progresses. DHS expects, for example, to revise regulations pertaining to filing and handling of immigrant benefit requests to lead to computer system enhancements applied to immigrant applications and benefits. DHS will not make transformation-related changes to 8 CFR part 214 at this time, but will publish a separate rulemaking to address business transformation as well as reorganizing and simplifying that part.

III. The Changes Made by This Rule

DHS is amending those parts of chapter I of 8 CFR that regulate affidavits of support, citizenship and naturalization, employment authorization, nonimmigrant benefits (other than part 214) and related waivers, permanent resident documents, refugee and asylum processing, Temporary Protected Status, and travel documents. These amendments are best understood by the changes effected, rather than as individual amendments to the regulations.

A. Removing Form Title and Number References, and Adding Filing Definitions

DHS is removing references to form numbers and form titles. At this time, USCIS will continue to accept paper submission of most applications, petitions, and benefit requests, although it will phase out references to mandatory use of specific forms for specific purposes in the regulations. Mandating in regulations specific form numbers reduces USCIS's ability to modify its business processes to reflect filing procedures in an electronic environment. Form names and numbers will continue to exist for reference purposes but will not be specifically referenced in the regulations. This rule is an early step in the transformation process and purposely does not remove all form references from all regulations affecting USCIS procedures at this time. Forms identified by number will continue to appear until other parts of DHS regulations are amended to address transformation requirements. The list of prescribed forms will be removed from 8 CFR parts 299 and 499, although USCIS will continue to refer to form numbers on its Internet Web site, at http://www.uscis.gov, and public information telephone scripts. DHS components ICE, and CBP will likewise continue to refer to form numbers on their Internet Web sites, http://www.ice.gov, and http://www.cbp.gov.

In most instances, DHS is removing form names and numbers by replacing the form reference with a generic statement, such as “the form designated by USCIS.” Removal of these references from a paragraph or section in some instances, however, requires changes which cannot be achieved through replacement of a term or phrase. In those instances, the entire paragraph is revised.

DHS is removing references to the specific forms known by form numbers: AR-11, G-28, G-325, I-90, I-94, I-102, I-129, I-130, I-131, I-191, I-192, I-193, I-212, I-290B, I-407, I-512, I-539, I-551, I-566, I-589, I-590, I-601, I-602, I-607, I-644, I-688, I-730, I-765, I-797, I-797A, I-797B, I-821, I-854, I-864, I-864A, I-864P, I-865, I-907, I-914, I-917, I-918, N-300, N-400, N-426, N-565, N-600, and N-643. This list is not intended to be exhaustive, nor are all references to the listed forms removed by this final rule. Additional references to these and other USCIS forms will be phased out in subsequent rules. DHS is not removing references to forms that primarily affect the functions of DHS components other than USCIS.

Enumerating OMB control numbers for USCIS information collection requirements in regulations is no longer necessary and, therefore, 8 CFR 100.7 is being removed. OMB control numbers continue to be displayed on USCIS forms pursuant to the Paperwork Start Printed Page 53767Reduction Act, 44 U.S.C. 3512, and on the USCIS Internet Web site.

DHS is adding new definitions for “application,” “petition,” and “benefit request” to transition from “forms” to either paper or electronic instruments used to seek various immigration benefits. The terms “application” and “petition” are used together, separately, and interchangeably in many sections of chapter I of the 8 CFR and this rule does not affect every reference to those terms. The term “benefit request” is often used in the sections amended by this rule in place of application or petition in the interest of economy of words, to reduce the ambiguity and confusion resulting from the constant use of both terms, improve readability, and to add flexibility for describing what a particular capability may be called when it is converted to an electronic interaction. No substantive change results from defining these terms in this rule.

As the USCIS transformation initiative progresses, electronic versions of forms and digital images of supporting documents will largely replace paper forms and documents for adjudication and records retention purposes. USCIS will specify the process and standards for the transmission of electronic benefit requests and supporting documents on its Internet Web site, but it is intended that these standards will accommodate the technology in most home and public computers so as to be widely accessible.

DHS is adding a definition of “form instructions” to establish that the term refers to the most recent, approved version of such instructions available through the USCIS Internet Web site, regardless of the fact that other editions of these instructions may exist and be in circulation through other sources. Whether published in paper form or on the USCIS web site, all form and form instructions will continue to comply with Paperwork Reduction Act requirements, including public notice and comment periods. 44 U.S.C. 3507. In addition to traditional instructions appended to a USCIS form, the term as defined by this rule encompasses the process information (e.g., filing locations, instructions on the process for submission of supporting documents) that USCIS publishes on its Internet Web site in addition to those traditional instructions, and may also include non-form and non-substantive guidance such as appendices, exhibits, guidebooks, or manuals.

USCIS does not publish its Registration for Classification as Refugee, Form I-590, with instructions for the U.S. Refugee Admissions Program (USRAP), for general public use. Access to the USRAP is managed by DOS, and implemented by its overseas processing entities (OPEs). OPEs assist targeted populations of refugee applicants with preparation of the Registration for Classification as Refugee. As such, the term “form instructions” includes process information that USCIS publishes about the USRAP.

DHS is adding a definition for the terms “execute” or “executed” when referring to completion of an application or petition to request a benefit to ensure consistency across paper and electronic media.

B. Removing References to Position Titles Within USCIS

Wherever possible, DHS is removing references to official position titles used within DHS or used in the past by the former Immigration and Naturalization Service (INS). These titles include director, district director, and commissioner as well as position descriptions such as examiner or adjudicator. Both position titles and delegated authority to perform specific duties assigned to USCIS employees are subject to change, potentially rendering regulatory references inaccurate or delaying implementation of planned operational changes. DHS is revising those titles and position descriptions with USCIS, DHS, or other component names, as appropriate and necessary to provide DHS with the operational flexibility required to facilitate adjudication in an electronic environment. DHS is also replacing obsolete references to the Attorney General, substituting the Secretary where appropriate.

DHS is, for example, amending 8 CFR 103.7(d) by removing the specific titles of USCIS employees who are designated to certify official immigration records. DHS and USCIS will delegate authority to appropriate officials who may be required to fulfill this responsibility.

C. Replacing “Service” With More Specific Component Names and Removing References to Particular USCIS Offices

The definition of “Service” in newly designated 8 CFR 1.2 is amended to provide flexibility and promote the goals of transformation. The regulations in chapter I of the 8 CFR contain provisions that, to varying degrees, govern facets of all of the immigration components of DHS—CBP, ICE, and USCIS. Where DHS has determined that the section being amended by this rule applies only to USCIS, that defined acronym is inserted to replace the previously named office, position, title, or component. Where the section pertains to an action that may have been taken by INS, or a function that is the purview of or shared with another component, the term “the Service” is retained or inserted. Thus, “the Service” in 8 CFR may refer to any immigration-related component of DHS, including USCIS, ICE, or CBP. As DHS does not purport to revise every paragraph within 8 CFR, the absence of a change to an existing usage of “Service” in a particular context does not necessarily indicate a position with respect to component authority in that context. Similarly, remaining references to the former Immigration and Naturalization Service and the acronym INS are replaced by more accurate terms.

D. Removing Information About Procedures for Filing and Internal Processing of Benefit Requests

Some parts of the regulations include details of the internal processing and handling of benefit requests or descriptions relating to submission of paper versions of benefit request forms. Administrative filing requirements, locations, and procedures will not be prescribed in regulations but will be outlined in more flexible methods of conveying instructions. This modification will not change eligibility criteria or evidentiary standards. See, e.g., 8 CFR 212.7(a)(3) (“* * * If the application is approved the director shall complete Form I-607 for inclusion in the alien's file.”). See also 8 CFR 214.2(l)(5)(ii)(E), (“* * * The consular officer shall also endorse all copies of the alien's Form I-129S with the blanket L-1 visa classification and return the original and one copy to the alien. When the alien is inspected for entry into the United States, both copies of the Form I-129S shall be stamped to show a validity period not to exceed three years and the second copy collected and sent to the appropriate Regional Service Center for control purposes.”) These details are not essential to the regulations, do not add substantive requirements or impose limitations, and unnecessarily burden the text of the regulations. To the extent that this information is required to be published, 5 U.S.C. 552(a)(1)(A), (B), DHS will publish an organization and functions rule in part 2 of 8 CFR. DHS is removing these types of provisions because they are subject to change during transformation and because such information is more appropriately included within field manuals and other instructional materials that USCIS can readily revise and describe in more detail.Start Printed Page 53768

Terms such as “in writing,” “written decision,” and “written notice” have not been removed because an electronic transmission constitutes a valid writing. GPEA provides: “Electronic records submitted or maintained in accordance with procedures developed under this title, or electronic signatures or other forms of electronic authentication used in accordance with such procedures, shall not be denied legal effect, validity, or enforceability because such records are in electronic form.” Public Law 105-277, tit. XVII, section 1707, 112 Stat. at 2681-751 (Oct. 21, 1998) . GPEA defines electronic signature as “* * * a method of signing an electronic message that identifies and authenticates a particular person as the source of the electronic message; and indicates such person's approval of the information contained in the electronic message.” Id. Thus, as provided in GPEA, a notice on the status of a request for benefits, a request for additional evidence, and a notice of approval or denial of a request for benefits may be effected by electronic communication if that method is requested by the person who has requested the benefit, notwithstanding a regulatory provision that requires such notice to be “in writing.” Nonetheless, for clarity's sake, 8 CFR 103.8 provides that electronic delivery of notices suffices in appropriate circumstances. See new 8 CFR 103.8.

E. Removing Obsolete and Expired Regulatory Provisions; Correcting and Updating Provisions Affected by Statutory Changes

DHS is also removing regulatory provisions that have expired because of statutory lapses or self-executing time limits, or that are obsolete, and to make non-discretionary corrections to provisions affected by statutory amendments or extensions of time. In addition, DHS revises obsolete statutory and regulatory citations.

DHS is adding three paragraphs to USCIS fee regulations to reflect statutory fees which are already collected but which were not previously included in regulations. See new 8 CFR 103.7(b)(1)(i)(CCC)-(EEE). The additions provide the $1500 or $750 fee for filing certain H-1B petitions required by the American Competitiveness and Workforce Improvement Act (ACWIA), the additional fee of $500 for filing certain H-1B and L petitions established by Section 426 of the Visa Reform Act of 2004, and the additional $150 fee for H-2B petitions required by the Real ID Act of 2005. See, respectively, INA section 214(c)(9)(B), 8 U.S.C. 1184(c)(9)(B); INA section 214(c)(12)(C), 8 U.S.C. 1184(c)(12)(C); INA section 214(c)(13)(C), 8 U.S.C. 1184(c)(13)(B). These fees are used, generally, for training, scholarships, and fraud detection and prevention. INA sections 286(s), (v), 8 U.S.C. 1356(s), (v). USCIS determines liability for both of these fees and calculates the amount due through a series of questions on the H and L petition form. The determination process is unchanged by this rulemaking. Provisions are also added to prescribe a fee of $2000 for certain H-1B nonimmigrants or $2250 for certain L-1 nonimmigrants as required by recent legislation. Public Law 111-230, section 402, 124 Stat. 2488 (Aug. 13, 2010). Fees collected pursuant to these sections are deposited in the General Fund of the Treasury. Id, at section 402(c). DHS is not required to publish these fees in the CFR since the statute is clear in requiring their collection and use. Nevertheless, most USCIS stakeholders know to refer to 8 CFR 103.7 for the proper USCIS fees, and DHS believes it is a better practice to make sure that these statutorily mandated fees are also clearly delineated along with the fees established administratively by DHS through rulemaking.

Section 209.1(f) is a companion provision to match the existing provision in 8 CFR 209.2(b), which sets out the process and standards for asylees seeking adjustment of status who require a waiver of inadmissibility. Since both refugees and asylees applying for adjustment of status are subject to identical standards for waivers of inadmissibility these standards are now reflected in this section addressing both types of applicants. INA section 209(c), 8 U.S.C. 1159(c).

Since the statutory cap on adjustment by asylees has been removed, the text referencing that cap—at 8 CFR 209.1(a)(1)(vi) and the sentence that follows—are removed. For the same reason, 8 CFR 209.2(a)(2) is revised by removing the last three sentences of the paragraph. See Public Law 109-13, tit. I, section 101(g), 119 Stat. 302 (May 11, 2005), 8 U.S.C. 1101 note.

DHS is revising 8 CFR 209.2(d) to clarify that a medical examination, including compliance with vaccination requirements, is required of asylees applying for adjustment of status. The vaccination supplement no longer exists as a stand-alone document but rather is incorporated into the medical examination. Form instructions provide detailed guidance regarding the medical examination requirement.

DHS is removing 8 CFR 212.8 and 212.9, relating to nonpreference investor visas and to former third and sixth preference employment-based visas, because the provisions are obsolete. The provisions of the Act that provided for these visas were repealed by section 111 of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990).

DHS is removing 8 CFR 212.11, which regards the admissibility of an alien who has been convicted of a violation of a law relating to a controlled substance because it is redundant. This section provided that in determining the admissibility of an alien who has been convicted of a violation of any law relating to a controlled substance, the term controlled substance as used in section 212(a)(23) of the Act shall mean the same as that referenced in the Controlled Substances Act, 21 U.S.C. 801, et seq. Section 212(a)(2) of the Act governs inadmissibility for criminal acts and Section 212(a)(2)(A)(i)(I) specifically includes violations of the Controlled Substance Act. INA section 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II).

DHS revised Section 244.17 to reflect current policies and procedures for re-registration of TPS beneficiaries.

DHS is removing 8 CFR 245.1(e)(2) as obsolete. This section provided for the adjustment of status of certain nonimmigrant registered nurses in accordance with the Immigration Nursing Relief Act of 1989, Public Law 101-238, 103 Stat. 2099 (Dec. 18, 1989), 8 U.S.C. 1182 note. The application period for this provision ended on March 20, 1995, and USCIS no longer has pending applications related to this provision. This regulation also makes related conforming changes to 8 CFR 245.1(g)(1) and 245.2(a)(5)(ii).

Section 245.9 is removed. This section provided for adjustment of status for certain Chinese nationals pursuant to the Chinese Student Protection Act, Pub. L. 102-404, 106 Stat. 1969 (Oct. 9, 1992). The application period for this provision ended June 30, 1994, and USCIS no longer has pending applications related to this provision. Id.

Section 245.12 is removed. This section provided for adjustment of status for certain Polish and Hungarian parolees pursuant to section 646 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009 (Sep. 30, 1996). Persons eligible for benefits under this provision must have been paroled into the U.S. prior to December 31, 1991. USCIS has not received applications pursuant to this section for several years and is unlikely to receive any in the future. Public Law 104-208, 110 Stat. 3009 (Sep. 30, 1996).Start Printed Page 53769

Section 245.13 is removed. This section provided for adjustment of status for certain nationals of Nicaragua and Cuba pursuant to section 202 of the Nicaragua Adjustment and Central American Relief Act, Public Law 105-100, 111 Stat. 2160, 2193 (Nov. 19, 1997). The application period for benefits under this provision ended April 1, 2000. USCIS no longer has pending applications pursuant to this provision. Id.

Section 245.20 is removed . This section provided for adjustment of status of Syrians granted asylum under the Syrian Adjustment Act, Public Law 106-378, 114 Stat. 1442 (Oct. 27, 2000). Eligibility under this provision required entry prior to Dec. 31, 1991. USCIS no longer has pending applications pursuant to this provision and is unlikely to receive any in the future.

Section 245.21 is revised because the Consolidated Appropriations Act of 2005 amended the Indochinese Parolee Act to eliminate the 3-year filing window and 5,000 visa limit.

Parts 264 and 265 are revised to encompass management of fingerprinting, registration, and address reporting requirements in an electronic environment and to remove obsolete references.

This rule adds 8 CFR 316.6 and revises 8 CFR 316.5, 8 CFR 322.2, and 8 CFR 341.5 to conform to the amendments to the Act by the National Defense Authorization Act (NDAA 2008), Public Law 110-181, 122 Stat. 3 (Jan. 28, 2008). The NDAA 2008 provides certain immigration benefits for any qualifying spouse or child of a member of the Armed Forces. Specifically, the NDAA 2008 amended section 319(e) of the Act; 8 U.S.C. 1430(e), to allow certain spouses of members of the Armed Forces to count any qualifying time abroad as continuous residence and physical presence in the United States for purposes of naturalization and to permit such naturalization to occur outside the United States. INA section 319(e), 8 U.S.C. 1430(e); INA section 322(d), 8 U.S.C. 1433(d); 8 U.S.C. 1443a.

This rule revises 8 CFR 319.3 to conform to the amendments to the INA by the National Defense Authorization Act (NDAA 2004), Public Law 108-136, 117 Stat. 1565 (Nov. 24, 2003), which provides certain immigration benefits relating to the naturalization of any qualifying surviving child or parent of a member of the Armed Forces. Specifically, NDAA 2004 provides for the naturalization of any qualifying surviving child or parent of a member of the Armed Forces who dies during a period of honorable service, a benefit only previously afforded to surviving spouses. INA section 319(d), 8 U.S.C. 1430(d).

This rule revises 8 CFR 322.3 to conform to the various legislative amendments to the Act. Specifically, 8 CFR 322.3(a) was revised to conform to the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, enacted on November 2, 2002, which amended section 322 of the Act to allow U.S. citizen grandparents and U.S. citizen legal guardians to apply for naturalization on behalf of a child born and residing outside of the United States. Public Law 107-273, 116 Stat. 1758 (Nov. 2, 2002); see INA section 322, 8 U.S.C. 1433(a). Such an application by the U.S. citizen grandparent or U.S. citizen legal guardian can be made within 5 years of the death of a U.S. citizen parent of a child who could otherwise have been the beneficiary of an application for naturalization under section 322 of the Act. See Id. This change will conform the regulations to legislation and current practice.

In addition, current 8 CFR 322.3(a) requires the citizen parent (or, as appropriate, grandparent or guardian) to include with the application a request concerning when the applicant would like to have the child's naturalization interview scheduled. The form instructions elicit the information needed to schedule the interview. Therefore, there is no need for a separate provision on this point in 8 CFR 322.3(a).

This rule revises 8 CFR 322.3(b) to conform to the amendments to the Act made by the Intercountry Adoption Act of 2000, Public Law 106-279, which added a definition of certain adoptees to section 101(b)(1)(G) of the Act on October 6, 2000. 114 Stat. 825 (Oct. 6, 2000). The new definition describes children adopted in a foreign state that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of May 22, 1993. INA section 101(b)(1)(G), 8 U.S.C. 1101(b)(1)(G). That definition under section 101(b)(1)(G) of the Act corresponds to the visa categories IH-3 and IH-4 and became effective when the Hague Adoption Convention entered into force in the United States on April 1, 2008. See id. USCIS implemented the Intercountry Adoption Act by publishing an interim rule, “Classification of Aliens as Children of United States Citizens Based on Intercountry Adoptions Under the Hague Convention,” on October 4, 2007. See 72 FR 56831 (Oct. 4, 2007). The additional changes in this rule conform to the requirements codified on that date and which have been followed since April 1, 2008.

In addition, several expired and obsolete naturalization-related regulatory provisions have been removed, including 8 CFR: 312.3(a) (standardized citizenship testing), 329.5 (natives of the Philippines with active duty service during World War II), 332.2 (establishment of photographic studios), 334.16-334.18 (naturalization petitions), 335.11-335.13 (naturalization petitions), 338.11 and 338.12 (naturalization court processes), 339.2(c) (reports relating to petitions filed prior to October 1, 1991), and 340.1 (reopening of a naturalization application by a district director pursuant to section 340(h) of the Act).

In 8 CFR 312.3, paragraph (a) is removed because the “standardized citizenship testing” for applicants for naturalization ended on August 30, 1998. See 63 FR 25080 (May 6, 1998).

Section 329.5 is removed because the filing period for submitting an application for naturalization under section 405 of the Immigration Act of 1990, the corresponding statutory naturalization authority, expired on February 3, 1995. See 8 CFR 329.5(e).

Sections 334.16-334.18, 335.11-335.13, and 339.2(c) are removed because they relate to any “petition for naturalization” filed prior to October 1, 1991. Such petitions were under the jurisdiction of the naturalization court until that date. See 8 CFR 310.4; INA section 310, 8 U.S.C. 1421.

F. Revising or Reorganizing Sections or Paragraphs for Clarity and Consistency, and To Remove Duplicative Information

DHS is reorganizing 8 CFR part 1 (Definitions) and 8 CFR part 103 (Immigration Benefits, Biometric Requirements, Availability of Records), without substantive change. The reorganization of these sections does not introduce new obligations, requirements, or procedures. The reorganization is designed to simplify and rearrange existing regulatory requirements in a manner which is easier for the public to identify and understand. This rulemaking also removes regulatory provisions which repeat statutory or other regulatory information or which restate filing information that USCIS routinely includes in its form instructions. None of the changes made effect a substantive change in the law. DHS is also reorganizing certain parts of 8 CFR without substantive change. DHS intends, in the recodification of these regulations, to conform to the understood policy, intent, and purpose of the original regulations, with such Start Printed Page 53770amendments and corrections as will remove ambiguities, contradictions, and other imperfections.

The regulations pertaining to filing and adjudication of immigration benefits are contained in 8 CFR 103.2. That section also incorporates the specific requirements contained in USCIS form instructions. See 8 CFR 103.2(a)(1). Repeating or paraphrasing parts of this information within other regulations that relate to specific benefits is unnecessary, possibly confusing, and may be inaccurate. Such repetition can lead the reader to conclude that a provision is somehow uniquely applicable to that particular benefit type. For example, “* * * The director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist his or her adjudication” is repetitive information found within another regulation. See 8 CFR 214.2(h)(9)(i). Or, “* * * A copy of a document submitted in support of a visa petition filed pursuant to section 214(d) of the Act and this paragraph may be accepted, though unaccompanied by the original, if the copy bears a certification by an attorney, typed or rubber-stamped, in the language set forth in § 204.2(j) of this chapter. However, the original document shall be submitted if requested by the Service” is both repetitive and inaccurate because the referenced paragraph and procedure no longer exist. See also 8 CFR 214.2(k)(1).

This rule organizes 8 CFR part 103 into four subparts: subpart A—Applying for Benefits, Surety Bonds, Fees; subpart B—Biometric Requirements; subpart C—Reserved; and subpart D—Availability of Records.

Section 103.1 is removed. The delegation of authority, formerly found in 8 CFR 103.1(a), was redundant of authority specified in 8 CFR 2.1. Section 103.2(a) is revised, primarily to describe alternate procedures for electronic submission of benefit requests with digital images of supporting documentation. With the definition of “benefit request” added in 8 CFR part 1, the terms “application” and “petition” are being replaced by the term “benefit request” to reduce possible confusion regarding the use of specific paper versions of forms traditionally required to apply for benefits. As stated earlier, the terms “petition” and “application” are not being replaced throughout the rest of this chapter I and will be accorded the meaning now ascribed to them in 8 CFR part 1. Although this paragraph was recently revised, the additional changes made by this rule will clarify filing procedures for both the current environment and the electronic environment.

Section 103.2, paragraph (a)(7) is revised to describe establishment and recordation of filing dates for benefit requests in an electronic environment. That paragraph had previously described procedures that reflected regular mail, hand delivery, and internal actions of USCIS for physically handling paper, such as stamping files with dates by hand. Specific internal procedures for determining how receipt dates and times are to be associated with a particular benefit request for which date and time are appropriate, or even essential, will be established for requests that will be received electronically, in paper format, or both. USCIS realizes that the date of filing is very important when a benefit request has a deadline or a date-specific impact on eligibility. Such benefit requests are not affected by this rule because the date the benefit request is received by USCIS will still be recorded in the system. While the internal process for recording the date when a request is received or complete will not be promulgated, the ability of filers of a benefit request to obtain a definitive receipt date will not be affected by removing the requirement for USCIS to stamp receipt dates.

In addition, 8 CFR 103.2(a)(7) is revised to eliminate possible inconsistency with 8 CFR 103.2(a)(1), clarifying that USCIS may reject a benefit request if data have not been entered in required fields. Further, 8 CFR 103.2(a)(7)(iii) is added to codify the current policy that there is no appeal when a case is rejected in accordance with this section. In USCIS parlance, the term “rejected” means that the benefit request and fee payment are returned for failure to comply with all filing requirements without being fully considered, and can be re-filed when properly completed, while “denied” means that the request is fully adjudicated and considered, and the applicant is determined ineligible for the benefit sought. Appeals of rejections are generally returned without consideration. Therefore, this change is only clarifying and has no substantive effect.

Section 103.2(b)(1) is revised to update terminology and to clarify that every applicant or petitioner must remain eligible for the benefit request at the time of adjudication and that every benefit request must be submitted with all prescribed supporting documentation. USCIS longstanding policy and practice, as well as a basic tenet of administrative law, is that the decision in a particular case is based on the administrative record that exists at the time the decision is rendered. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1972). Thus, the granting of any benefit request by DHS is not based solely on what is provided at the time of the initial request and is contingent on the fact that circumstances will not change during the processing of a benefit request in such a way so as to render the applicant ineligible. This change will reduce any confusion that may exist for those who believe that eligibility is based solely on what is provided at the time of the initial request and instead will clarify that eligibility is subject to change if circumstances change while processing occurs. This clarification may be especially important in the transformed electronic environment. This revision is not a substantive change in eligibility criteria and is thus appropriate for this final rule.

Sections 103.2, paragraphs (b)(4) and (b)(5) are revised to refer applicants and petitioners to form instructions and other sources for information on the format in which supporting documentation must be submitted. It is generally unnecessary to specify the form that an evidentiary document must be in unless a higher degree of authenticity is required than a photocopy or reasonably legible facsimile. The form instructions for a benefit request will clearly spell out when a copy, original, certified, notarized, or other specific type of document is required to meet the applicable evidentiary standard. In its transformation initiative, DHS wants to accept and use scanned or electronic documents whenever possible and believes that this approach will also be the most convenient method for the public. As stated, regulatory provisions that reflect a paper application process impede that goal. Allowing a digital format instead of a copy would not affect a person's eligibility for a benefit. Thus, this change is made without prior public comment.

This rule also eliminates express reference to Form G-884, currently used to request the return of original documents, and advises the public to follow USCIS instructions for requesting such documents. Eliminating reference to a specific form promotes greater regulatory flexibility and better accommodates future processing efficiencies. USCIS anticipates using the current form for several years during the transformation process and will continue to provide instructions for requesting the return of paper documents retained in DHS files through its Internet Web site, the USCIS Start Printed Page 53771Customer Service Center, or other methods. See new 8 CFR 103.2(b)(4).

Section 103.3 is amended by revising the term “shall file” to read “must submit” and revising the phrase “with the office where the unfavorable decision was made” to read “as indicated in the applicable form instructions” in the last sentence in paragraph (a)(2)(i). This change will make this section more consistent with the changes made and terminology used in the Filing Location Rule. The word “shall” is less clear than “must” so substituting “must” clarifies the provision without changing the clear meaning. While the terms “file” and “filing” are not changed throughout 8 CFR by this rule, the amendment is apt in this instance for clarity because the term “file” seems to imply a paper environment, as opposed to “submit,” which lends itself more clearly to both paper and electronic submissions. The provision requiring submission to a certain office location is removed in favor of form instructions which, as defined in this rule, will provide the flexibility to centralize or otherwise shift appeals based on future needs and developments. No substantive change is made to eligibility requirements.

As transformation progresses, USCIS develops system interfaces with other government information systems, reducing reliance on various forms of documentation currently supplied by benefit applicants. For example, proof of military service is more readily obtained by USCIS directly from the Department of Defense than from the applicant. Section 103.2, paragraph (b)(5) has been amended to clarify that USCIS may waive submission of documentation that it may obtain through direct interfaces.

Section 103.5a is redesignated as 103.8 and revised. This revision provides for electronic delivery of notices instead of paper notices in appropriate circumstances at the petitioner's or applicant's request. Absent such a request, a mailed paper notice remains the default option at this time. Amendments to the descriptions of routine and personal service used for delivery of notices now include a specific provision for the use of electronic media for such purposes. For consistency of process, this rule amends other sections to remove specific requirements of notice and instead cross references the notice and service provisions in 8 CFR 103.8.

Section 103.5b is redesignated as 103.9 and revised. References to Form I-824, currently used to request further action on an approved benefit request, are removed. As transformation progresses, it is envisioned that the need for this form will diminish because account holders will request the services currently provided by the form by accessing their own accounts.

Section 103.7, paragraph (d) is amended to remove specific references to officials authorized to certify immigration records. This change will give USCIS flexibility to delegate authority for this activity to various officials as necessary for efficiency.

Section 103.2, paragraph (e), relating to fingerprint requirements, is revised and redesignated as sections 103.16 and 103.17. These sections have been reorganized and revised to reflect that most USCIS biometric collection is now accomplished digitally at USCIS offices. Paragraph (c) of 8 CFR 103.2, explaining the consequences of failure to provide biometric information, must be read in conjunction with 8 CFR 103.2(b)(13), which provides standard exceptions for such failure. This regulation removes references to specific offices where applicants must report for biometrics collection to allow USCIS greater flexibility for handling such matters. USCIS will continue to provide such information through other means.

Newly designated 8 CFR 103.17 describes biometric service fee collection requirements formerly described in 8 CFR 103.2(e). Revisions to this section more clearly reflect existing regulatory requirements regarding the authorized collection of biometrics.

Sections 103.8 through 103.11 and sections 103.21 through 103.36, which pertain to Freedom of Information and Privacy Act requests, are removed because they are outdated. Current DHS policies and procedures on these subjects are contained in 6 CFR part 5. New 8 CFR 103.42 has been added to direct readers to the DHS regulations.

Regulations relating to submission and consideration of benefit requests are located at 8 CFR 103.2(a)(1) (general filing instructions), 8 CFR 103.2(b)(1) (demonstrating eligibility for the benefit), 8 CFR 103.2(b)(16)(ii) (consideration of evidence in discretionary decisions), and in the form instructions such as for Form I-129 “* * * By signing this form you have stated, under penalty of perjury (28 U.S.C. 1746) that all information and documentation submitted with this form are true and correct. You have also authorized the release of any information from your records that USCIS may need to determine eligibility for the benefit you are seeking and consented to USCIS verification of such information.” Accordingly, because processing and handling information which is broadly applicable to all USCIS benefit types is set forth in both 8 CFR 103.2 and in the instructions to various forms, USCIS is removing such information from regulations governing consideration of specific benefits.

Section 207.1(a) is revised to instruct prospective applicants to “submi[t] an application, including biometric information, in accordance with form instructions.” The term “form instructions” is in turn defined in 8 CFR 1.2 as those prescribed by USCIS on its official Internet Web site currently, notwithstanding other versions in circulation, and may also include non-form guidance such as appendices, exhibits, guidebooks, or manuals. In the context of the U.S. Refugee Admissions Program (USRAP), USCIS does not publish its Form I-590, with instructions, for general public use. Instead, access to the USRAP is managed by the DOS, and implemented by its contracted overseas processing entities (OPEs). OPEs assist targeted populations of refugee applicants with preparation of the Form I-590. As such, the term “form instructions,” as defined in 8 CFR 1.2 and used in 8 CFR 207.1(a), does not refer to traditional instructions appended to a USCIS form, but rather the process information that USCIS publishes about the USRAP.

Sections 207.1, paragraphs (b) and (c) are revised by consolidating the existing firm resettlement rule in paragraph (b) and removing paragraph (c). To emphasize the legal relevance of the firm resettlement analysis, this revision moves the third sentence of original paragraph (b) to the forefront. This consolidated provision more clearly articulates that the “considerations” enumerated in new paragraphs (b)(1) through (b)(3) apply to the firm resettlement analysis generally and not, as may be misconstrued from the existing, bifurcated structure, only to an analysis of whether an applicant is “not firmly resettled.” No substantive changes are made by these structural modifications of the firm resettlement rule.

Re-numbered paragraph 207.2(a) has also been re-titled from “hearing” to “interview,” to better reflect the nature of USCIS interaction with refugee applicants. No substantive change is intended.

Section 207.7(d) is amended by eliminating an outdated, transitional, alternative date (February 28, 2000) for measuring the 2-year deadline by which such petitions must be filed; there is no change to the discretionary extension for humanitarian reasons. Lastly, in anticipation of future processing efficiencies afforded by transformation, this rule eliminates an express Start Printed Page 53772requirement that “separate” petitions be filed for each qualifying family member, in favor of guidance that petitioners file “in accordance with the form instructions.” USCIS contemplates retaining in the “form instructions” the requirement that “separate” petitions be filed for each qualifying family member, until such time that USCIS has in place transformed systems to promote additional processing efficiencies such as consolidating petitions for qualifying family members. This change will accommodate the adoption of such efficiencies without need for a future rulemaking.

Section 207.7(f)(3) is amended by adding an opening phrase to the last sentence, “[f]or a derivative inside or arriving in the United States.” While this section, entitled “Benefits,” applies to both paragraphs (f)(1) (derivative in the United States) and (f)(2) (derivative outside the United States), the last sentence was added to clarify that the benefit of employment authorization, incident to refugee status, becomes available to overseas beneficiaries, not upon approval of the family petition, but upon travel and their admission into the United States as refugees.

Section 208.1(b) is revised by replacing “The Director of International Affairs” with “The Associate Director of USCIS Refugee, Asylum, and International Operations (RAIO)” where it first appears and with “Associate Director of RAIO” in later references. Similarly, section 208.2(a) is revised by replacing “Office of International Affairs” in the title with “Refugee, Asylum, and International Operations (RAIO),” and by replacing “the Office of International Affairs” wherever it appears with “RAIO.” As stated earlier this rule removes specific officers' titles, functions, and authorities where possible, and employee authorities are generally established pursuant to 8 CFR section 2.1. However, DHS has determined that the roles, functions, and authorities of asylum officers and who they report to are sufficiently distinct as provided in the INA so as to preclude substitution of USCIS for those titles where they appear in the Code of Federal Regulations. For example, INA section 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E), under the expedited removal statute, defines “asylum officer” as an “* * * immigration officer who (i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 208, and (ii) is supervised by an officer who meets the conditions described in clause (i) and has had substantial experience adjudicating asylum applications.” Retaining these titles is not expected to impair USRAP and RAIO from applying the principles of transformation to their operations in the future.

Section 208.5(b)(1)(ii) is revised to perfect an amendment made in the Filing Location Rule. In that rule, 8 CFR 208.4(b) was revised by referring applicants to the instructions on the Form I-589 for specific filing information and thereafter by eliminating specific instructions contained in former sections 208.4(b)(1)-(5). This rule implements a conforming amendment to that earlier revision by removing the phrase “pursuant to § 208.4(b)” in the last sentence of 8 CFR 208.5(b)(1)(ii).

Moreover, the Filing Location Rule replaced the term “district director” with “DHS office” in two locations. With the elimination of the reference to the “district director” in former 8 CFR 208.4(b)(5) (relating to asylum applications filed with the district director), the remaining reference to “the DHS office” in new 8 CFR 208.5(b)(1)(ii) lacks an anchor to an earlier reference. To avoid confusion as to whether a specific DHS office is empowered under this provision, 8 CFR 208.5(b)(1)(ii) is revised by replacing “the DHS office” with simply “DHS” wherever it appears.

Section 208.7(c) is amended by replacing a mandatory requirement (if applicable) to submit “proof that he or she has continued to pursue his or her asylum application before an immigration judge or sought administrative or judicial review.” In anticipation of future system efficiencies afforded by transformation that may allow USCIS to gather the data directly from the Executive Office for Immigration Review (EOIR) within the Department of Justice and federal courts, USCIS is modifying this provision by replacing the mandatory production requirement with more flexible text: “* * * USCIS may require that an alien establish * * *”. Until such time that system improvements are in place, USCIS will continue to require production of such evidence and will communicate such requirements through form instructions, as defined in 8 CFR 1.2.

Section 208.21(c) is amended by removing an outdated, transitional, alternative date (February 28, 2000) for measuring the 2-year deadline by which such petitions must be filed; there is no change to the discretionary extension for humanitarian reasons. Lastly, in anticipation of future processing efficiencies afforded by transformation, this rule eliminates an express requirement that “separate” petitions be filed for each qualifying family member, in favor of “in accordance with the form instructions.” USCIS contemplates retaining in the “form instructions” the requirement that “separate” petitions be filed for each qualifying family member, until such time that USCIS has in place transformed systems to promote additional processing efficiencies such as consolidating petitions for qualifying family members.

Section 208.21(d) is revised similar to section 208.21(c) and for the same reasons.

Section 209.1(c) is amended by removing the last clause relating to a vaccination supplement completed by a designated civil surgeon. USCIS recently consolidated the separate vaccination supplement and record of the medical examination into one form, Report of Medical Examination and Vaccination Record. Thus the language referring to a separate supplement is outdated. Relevant guidance will continue to be available in form instructions. This language is also deleted in anticipation of future processing efficiencies wherein civil surgeons may have online accounts through which they may submit reports directly to USCIS instead of completing paper forms.

Section 209.2(e) is revised by removing the first two sentences of the original paragraph, retaining only the last sentence. In the original paragraph, there was an internal inconsistency between the first sentence (requiring interview of all applicants) and the third sentence (allowing USCIS to determine whether an interview was warranted). This revision retains only the sentence that allows USCIS to determine on a case-by-case basis whether an interview is warranted. This result is consistent with the companion paragraph at existing 8 CFR 209.1(d) (refugee adjustment interviews) and current USCIS practice.

Section 209.2(f) is revised for purposes of plain language. To align with the companion paragraph at 8 CFR 209.1(e), text was added stating that USCIS will notify a denied applicant of the right to renew an adjustment request in removal proceedings before EOIR. Otherwise, no substantive change is intended.

Section 223.2 is reorganized and revised for clarity in addition to removing references to forms. The revision also clarifies existing authority to accept and process requests for refugee travel documents overseas.

Several paragraphs within 8 CFR part 264 are revised and reorganized for Start Printed Page 53773clarity. Section 264.1 (registration and fingerprinting requirements) is revised and reorganized, removing obsolete instructions, general information duplicated in 8 CFR 103.2, and fingerprinting requirements now described in 8 CFR 103.16. Section 264.5, paragraph (d) (replacement of permanent resident cards for conditional residents) is revised to remove information included on the form instructions for Form I-90. New 8 CFR 264.5(h) is added to replace information previously located in 8 CFR 264.1(h). Section 264.6 is revised to remove obsolete instructions and for clarity.

IV. Discussion of Comments Received in Response to the April 29, 2003, Interim Rule

DHS published an interim rule with request for comments revising 8 CFR 103.2(a)(2) to permit submission of benefit requests with an electronic signature when such requests are submitted in an electronic format rather than on a paper form. Electronic Signature on Applications and Petitions for Immigration and Naturalization Benefits, 68 FR 23010 (April 29, 2003). That rule implemented the electronic filing and the acceptance of electronic signatures requirement of GPEA and meet the requirements of section 461 of the Homeland Security Act of 2002 for a study of the feasibility of online filing and to establish an electronic tracking system for applications in order to provide applicants with access to the status of their applications. Public Law 107-296 title IV, subtitle E, section 461, 118 Stat. 2202 (Nov. 22, 2002), 6 U.S.C. 278.

USCIS received 13 public comments relating to the interim rule. Virtually all commenters supported the use of electronic signatures and urged USCIS to do more to promote a more robust and user-friendly electronic filing environment. Several of the commenters made specific proposals recommending enhancements to the current limited electronic filing procedures available to applicants and petitioners. Various commenters suggested enhancements to the electronic filing process, such as acceptance of credit cards for electronic payment, re-use of data for subsequent transactions, interfaces and compatibility with commercial immigration software, standards for electronic submission of supporting documents, provisions for attorney-client electronic collaboration in the preparation of benefit requests, improvements to current biometric collection procedures, and protection of the privacy of data. DHS encourages these types of comments in response to this rulemaking. The comments will not be addressed here individually because they exceed the scope of the interim rule, which was limited to the electronic signature process. The broad subject of the comments, electronic filing of USCIS benefit requests, will be more fully addressed as the USCIS transformation progresses.

Several commenters raised concerns about the security of electronic signatures and described the pros and cons of various existing technologies. The interim rule did not specify the technology which will be employed by USCIS for the capture and verification of electronic signatures. As the transformation initiative is implemented, USCIS will explore alternatives and adopt an appropriate solution which is fully compliant with DHS security standards and ensures privacy. Therefore, no changes are made to the interim rule as a result of the comments received and the interim rule is adopted as final without change.

V. Discussion of Other Interim Final Rules Being Finalized

USCIS conducted a review of current and past agency regulatory activities and identified six interim rules for which no public comments were received and which were never completed as final rulemakings. Because some of the provisions of these interim rules are now either expired or further modified by this rulemaking, DHS is adopting them as final and, where appropriate, removing or revising the regulatory language. The interim rules that are adopted as final include:

  • Application for Refugee Status; Acceptable Sponsorship Agreement Guaranty of Transportation, 64 FR 27660 (May 21, 1999);
  • Adjustment of Status for Certain Syrian Nationals Granted Asylum in the United States, 66 FR 27445 (May 17, 2001);
  • Eliminating the Numerical Cap on Mexican TN Nonimmigrants, 69 FR 11287 (March 10, 2004);
  • Allocation of H-1B Visas Created by the H-1B Visa Reform Act of 2004, 70 FR 23775 (May 5, 2005);
  • Classification of Certain Scientists of the Commonwealth of Independent States of the Former Soviet Union and Baltic States as Employment-Based Immigrants, 70 FR 21129 (April 25, 2005); and
  • Revoking Grants of Naturalization, 65 FR 17127 (March 31, 2000).

A summary of, the legal authority for, the public comments received on, and the changes made to each of these interim rules is as follows:

A. Application for Refugee Status; Acceptable Sponsorship Agreement Guaranty of Transportation, RIN 1615-AA24

This interim rule required that all sponsorship agreements be secured before an applicant is granted admission as a refugee at a U.S. port-of-entry (POE). This is a separate decision from whether or not such persons can be admitted to the U.S. in refugee status. This rule permits advantageous treatment for applicants for refugee status who have their eligibility interviews with a DHS officer scheduled before a sponsorship agreement has been secured.

This rule implemented section 702 of the Immigration Act of 1990 (IMMACT 90), Public Law 101-649, 104 Stat. 4978 (Nov. 29, 1990). It allowed a U.S. citizen, a lawful permanent resident petitioner, or an alien applicant for permanent resident status to seek an exemption from the general prohibition against approval of immigration benefits based upon a marriage entered into while the beneficiary or applicant was under deportation, exclusion or related judicial proceedings. The rule established procedures to allow persons with bona fide marriages to obtain immigration benefits without complying with the two year foreign residency requirements instituted by the Immigration Marriage Fraud Amendments of 1988 (IMFA). This rule amended 8 CFR 204.2 and 245.1. USCIS is not modifying these provisions in the current rule.

The Act authorized the Attorney General to admit refugees to the United States under certain conditions. INA section 207, 8 U.S.C. 1157. There is no requirement for an applicant to have secured sponsorship in advance of a determination that he or she meets the Act's definition of refugee. INA section 101(a)(42), 8 U.S.C. 1101(a)(42). This rule clarified that sponsorship is a requirement separate and apart from the determination that an applicant is classified as a refugee.

USCIS received no comments on this interim final rule.

The interim rule amended 8 CFR 207.2. That section is revised further by this rule to accommodate transformation by removing form numbers, job titles, extraneous provisions, and internal procedure. USCIS has not changed the substance of the provisions added by the interim rule.

B. Adjustment of Status for Certain Syrian Nationals Granted Asylum in the United States, RIN 1615-AA57

This rule provided adjustment of status to lawful permanent residents for Start Printed Page 53774certain nationals of Syria. The interim rule discusses the eligibility requirements and sets forth procedures for the application of persons wanting to adjust their status.

The Act provides that all aliens granted asylum are eligible to apply for adjustment of status 1 year after being granted asylum, subject to a maximum of 10,000 per year. INA section 209, 8 U.S.C. 1159. Pub. L. 106-378, 114 Stat. 825 (Oct. 27, 2000), waived the annual limit for a group of Jewish Syrian nationals who were allowed to depart Syria and enter the United States after December 31, 1991, and who were subsequently granted asylum in the United States.

No public comments were received.

This final rule removes 8 CFR 245.20 which was added by the interim rule. That provision is obsolete because no eligible applicants remain.

C. Eliminating the Numerical Cap on Mexican TN Nonimmigrants, RIN 1615-AA96

This interim rule eliminated the annual numerical cap on Mexican Professionals under the North American Free Trade Agreement (NAFTA). It also eliminated the petition for a Mexican-based NAFTA professional and the corresponding labor condition application (LCA) requirement. Mexican citizens who come to the U.S. under a TN classification must apply directly to DOS for a visa. DOS will then adjudicate the alien's eligibility for TN classification. Upon approval and issuance of a visa, the alien may then apply for admission to the United States. These changes to the regulations are consistent with NAFTA's requirement that the annual numerical cap and petition provisions for Mexican professionals sunset by January 1, 2004.

On December 17, 1992, the United States, Canada and Mexico signed the North American Free Trade Agreement (NAFTA), which entered into force on January 1, 1994. Public Law 103-182, title I, section 101, 107 Stat. 2061 (1993), 19 U.S.C. 3311. NAFTA allows for the temporary entry of qualified businesspersons from each of the parties to the agreement. See Public Law 103-182, title III, section 341(a), 107 Stat. 2116 (1993), 19 U.S.C. 3401. Professionals under the NAFTA are admitted to the United States as Trade NAFTA (TN) nonimmigrant aliens. INA section 214(e), 8 U.S.C. 1184(e). In Appendix 1603.D.4 of NAFTA, NAFTA established an annual numerical ceiling of 5,500 on Mexican TN admissions for a period of 10 years. NAFTA Appendix 1603.D.4, INA section 214(e)(4), (5), 8 U.S.C. 1184(e)(4), (5). The interim rule eliminated the annual numerical cap for citizens of Mexico seeking a TN visa as required by expiration of the 10-year period. Id.

No public comments were received.

This rule finalizes the interim rule without change.

D. Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004, RIN 1615-AB32

This interim rule implemented changes made by the Omnibus Appropriations Act for Fiscal Year 2005 to the numerical limits of H-1B nonimmigrant visa category and the fees for filing of H-1B petitions. It also: (1) Informed the public of procedures USCIS used to allocate in fiscal year 2005, as well as for the future fiscal years starting with fiscal year 2006; (2) amended and clarified the process that USCIS will use in the future in allocating all petitions subject to numerical limitations under the Act; and (3) alerted the public about additional fees that must accompany certain H-1B petitions.

An H-1B nonimmigrant is an alien employed in a specialty occupation or a fashion model of distinguished merit and ability. INA section 101(a)(15)(H), 8 U.S.C. 1101(a)(15)(H); 8 CFR 214.2(h)(4). A specialty occupation requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty as a minimum qualification for entry into the United States. Id. The Act provides that the number of nonimmigrants who may be issued H-1B visas or granted H-1B status may not exceed 65,000 per fiscal year. INA section 214(g), 8 U.S.C. 1184(g). The 65,000 cap does not include H-1B employees of institutions of higher education, nonprofit research organizations, or governmental research organizations. The H-1B Visa Reform Act of 2004 added a third exception to the 65,000 limit, by providing that an additional 20,000 visas would be available for an alien who has earned a master's or higher degree from a United States institution of higher education. Omnibus Appropriations Act for Fiscal Year 2005, Public Law 108-447, div. J, title IV, 118 Stat. 2809 (Dec. 8, 2004); INA section 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). This law also raised the American Competitiveness and Workforce Improvement Act of 1998 fee (ACWIA) to $1,500 or $750, depending on the size of the employer, and imposed a $500 fraud prevention and detection fee (fraud fee) on certain employers filing H-1B petitions. Id; INA section 214(c)(9), 8 U.S.C. 1184(c)(9). These fees are required in addition to the base USCIS filing fee.

No public comments were received.

This rule finalizes the interim rule without change.

E. Classification of Certain Scientists of the Commonwealth of Independent States of the Former Soviet Union and the Baltic States as Employment-Based Immigrants, RIN 1615-AB14

This interim rule codified the new sunset date of September 30, 2006, for the Soviet Scientists Immigration Act of 1992 (SSIA). The SSIA allowed USCIS to allot visas to eligible scientists or engineers of the independent states of the former Soviet Union and the Baltic states with expertise in nuclear, chemical, biological, or other high-technology field or defense projects. The rule also codified a new numerical limit of 950 visas (excluding spouses and children if accompanying or following to join).

The SSIA provided that up to 950 immigrant visas may be allotted to eligible scientists or engineers of the independent states of the former Soviet Union and the Baltic states if the scientists or engineers had expertise in nuclear, chemical, biological or other high technology fields or were working on such high technology defense projects, as defined by the Attorney General. Public Law 102-395, title VI, section 610, 106 Stat. 1874 (Oct. 6, 1992); INA section 203(b)(2)(A), 8 U.S.C. 1153(b)(2)(A). This program expired on October 24, 1996. The Foreign Relations Authorization Act, Fiscal Year 2003 reinstated the program and, among other changes not applicable to this interim rule, provided that it would expire 4 years from the date of enactment. Public Law 107-228, div. B, title XIII, section 1304(d), 116 Stat. 1437 (Sept. 30, 2002); INA section 203(b)(2)(A), 8 U.S.C. 1153(b)(2)(A).

No public comments were received.

This rule removes provisions pertaining to the SSIA because they have expired. 8 CFR 204.10.

F. Revoking Grants of Naturalization, RIN 1615-AA30

This rule amended the process by which the Service would administratively reopen and revoke a grant of naturalization. This interim rule changed the burden of proof that the Service would use in revocation proceedings and made other changes to the administrative process. 65 FR 17127 (March 31, 2000).

The Secretary has sole authority to grant a person naturalization as a United States citizen. INA section 310(a), 8 U.S.C. 1421(a). The Act also provides Start Printed Page 53775DHS with the authority “to correct, reopen, alter, modify, or vacate an order naturalizing [a] person” as a United States citizen. INA section 340(h), 8 U.S.C. 1451(h). The interim rule was promulgated under this authority.

No public comments were received.

This rule removes regulations that were invalidated on July 20, 2000, by the Ninth Circuit Court of Appeals in a nationwide class action lawsuit. Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc). That decision held that the Attorney General lacked the statutory authority to promulgate regulations permitting revocation of citizenship of a naturalized citizen through administrative proceedings. Id. See also INA sections 310(a), 340(a), (h), 8 U.S.C. 1421(a), 1451(a), (h). The government did not seek Supreme Court review of that decision, thus USCIS is precluded from using those regulations to revoke naturalization. This rule removes the applicable regulations from 8 CFR 340.10.

VI. Discussion of Comments Received in Response to the June 5, 2009, Interim Rule

On June 5, 2009, DHS published an interim rule in the Federal Register “Removing References to Filing Locations and Obsolete References to Legacy Immigration and Naturalization Service; Adding a Provision To Facilitate the Expansion of the Use of Approved Electronic Equivalents of Paper Forms.” The rule revised many sections of the 8 CFR, many of which are further revised by this rulemaking.

USCIS received only three comments in response to this rulemaking: one from an immigration practitioner, one from an organization of immigration practitioners, and one from an organization representing businesses which frequently rely on international personnel. A discussion of those comments follows.

One commenter noted that the revision to 8 CFR 214.2(l)(2)(i) apparently unintentionally added to the petitioner's burden by requiring that “the petitioner shall advise * * * whether a previous petition has been filed for the same beneficiary * * *” whereas the original language stated “the petitioner shall advise * * * whether it has filed a petition for the same beneficiary.” (Emphasis in original). Although this change was inadvertent and not intended to affect any right, the requirement as revised is entirely consistent with both the INA and the current form instructions. The Act limits the amount of time an alien can spend in the United States as an L-1 or H nonimmigrant (not just for a particular petitioner). See section 214(c)(2)((D) of the Act, 8 U.S.C. 1184.2(c)(2)(D). The current Form I-129, Supplement L, question 2 requires submission of copies of USCIS-issued documents relating to periods of H or L stay in the United States during the past seven years. It does not limit such submission to documents relating to the current petitioner. Accordingly, USCIS has not adopted the commenter's suggestion that we revert to the prior language.

The commenter made an additional comment regarding the omission of the word “of” from the first sentence in 8 CFR 214.2(l)(2)(ii). USCIS appreciates notification by the commenter of the typographical error which will be corrected in this rule. As previously discussed, 8 CFR part 214 will be reorganized in a future transformation-related rulemaking.

Another commenter suggests that USCIS avail itself of the opportunity to revise 8 CFR 212.7 to reflect the fact that K nonimmigrants may apply for a waiver only pursuant to section 212(d)(3) of the Act and that such persons may only apply for a waiver under section 212(h) or 212(i) of the Act at the time of application for adjustment of status. The commenter noted that both the regulation and form instruction for Form I-601, Application for Waiver of Ground of Inadmissibility, are incorrect. USCIS appreciates the comment and the commenter's suggestions may be addressed in a future rulemaking or with a form revision. However, the interim rule was limited to removing filing jurisdiction limitations from regulations. Thus the commenter's suggestion exceeds the scope of the changes made and will not be adopted in this rulemaking.

The final commenter addressed the removal of filing jurisdictions from regulations. The commenter expresses its concern that an accelerated process for changing filing locations could have an adverse impact on the public. The commenter was especially concerned about situations involving statutory or regulatory deadlines for filing where the public may have insufficient notice of the proposed change.

The same commenter, while supportive of USCIS' transformation efforts, offered several suggestions to minimize the potential adverse impacts of this rulemaking. The commenter recommended that, at each place the regulations are amended, to direct the public to “instructions on the form,” and that USCIS add a phrase to explain that form instructions will be available on line, that any change to the filing instructions will be provided to the public by formal announcement no less than 30 days in advance of the change, and that when a filing jurisdiction changes, USCIS offices formerly designated to receive such filings continue to accept them for at least 180 days after the effective date of the change.

USCIS understands and appreciates the commenter's concerns. We realize that numerous changes in filing instructions and locations may be confusing. It is our intent to reduce filing locations and complexity, and change them less often, not more. In the case of time-sensitive benefit requests, USCIS will keep such factors in mind when making changes and make adjustments to the change schedule so as to not result in missing a deadline because of the filing location change.

The commenter suggested that the preamble language describing the USCIS National Customer Service Center (NCSC) as a source of information regarding filing locations be removed because its membership has not gotten consistently reliable information from this source. The commenter recommended that USCIS customer service representatives be directed to consult the online form instructions before offering any advice to applicants regarding filing location. USCIS regrets any incorrect information that may be provided and always endeavors to provide the NCSC staff with information regarding filing requirements so questions may be answered. USCIS encourages the public to report possible erroneous or outdated messages so that they may be corrected. No change to the interim rule is made as a result of this comment.

The commenter also suggests that information about changes to form and filing instructions be posted in a consistent and prominent location on USCIS Web site along with a chronological list of all changes to form instructions, including filing location changes. As the interim rule stated, filing locations are provided on USCIS form instructions. The current official version of the form and instructions are the versions on the USCIS Internet Web site for forms, http://www.uscis.gov/​forms. Also, the USCIS home page will alert the public and stakeholders of any recent or planned filing location changes. In addition, USCIS will continue to publicize filing location changes with press releases. Additional suggestions for improving the Web site and information sharing are welcome.

The commenter also suggested that regulations mandate a 180-day transition period for filing location changes, during which USCIS would Start Printed Page 53776accept such benefit requests at both the prior and new filing location. USCIS works to ensure that benefit requests are not rejected as a result of abrupt changes in filing location. USCIS announces filing changes well in advance and generally includes a transition period considering all factors and circumstances surrounding the change. However, forwarding mail from offices that formerly handled requests to the new office is very expensive and an inefficient use of USCIS fee revenue. USCIS will provide as much lead time as possible before making filing changes and will implement the changes in such a way so as to minimize the impacts of the change. However, a 180 day implementation period for each filing change is impracticable and will not be adopted.

The commenter also expressed a concern that USCIS intends to stop producing and distributing a paper version of its form instructions. As transformation continues, the filing of paper forms is expected to decrease substantially as USCIS expects electronic means to become the preferred filing method. As was the goal of GPEA and has been the experience of other Federal agencies that provide electronic filing options, in the future certain forms or requests may lend themselves to a totally electronic submission with no paper option. Nevertheless, at this time, as stated elsewhere in this preamble, USCIS will continue to provide paper versions of most forms and instructions as well as portable document format or other electronic versions through its Internet Web site. Further, the electronic versions of form instructions will parallel the written form instructions precisely, so the method chosen should cause no inconsistencies in benefit eligibility or adjudication.

The commenter also suggested that USCIS provide access to earlier versions of forms and instructions. Following a form's revisions, USCIS often provides that previous version of the form are acceptable until further notice or for a prescribed period. However, when changes are made to a form because eligibility criteria are changed by law or regulation, the previous version of a form may be outdated, incomplete, and unacceptable. Further, for ease of administration and consistency in adjudication, USCIS prefers to receive the most current version so the employee reviewing the form knows where to look for the required data elements. Thus USCIS sees little value in providing previous versions of forms as a general policy or requirement, and the commenter's suggestion has not been adopted.

The commenter also suggested that any elimination of geographically-based jurisdiction should be coupled with a new model for determining such jurisdiction. The interim rule gave USCIS greater flexibility to alter filing locations, but it does not change how internal responsibilities for adjudicating benefit requests are prescribed. For many benefit requests, notwithstanding their removal from the CFR, filing locations will seldom or not change. USCIS will continue to make changes in filing, appearance or jurisdictional requirements with the convenience of and service to applicants, petitioners, and beneficiaries as a primary concern. Thus, in response to this comment, methods of determining jurisdiction are not revised in this rule.

VII. Regulatory Requirements

A. Administrative Procedure Act

The Administrative Procedure Act (APA) requires DHS to provide public notice and seek public comment on substantive regulations. See 5 U.S.C. 553. The APA, however, excludes certain types of regulations and permits exceptions for other types of regulations from the public notice and comment requirement. DHS issues this rule without providing the opportunity for prior notice and comment for the reasons described below. DHS nevertheless invites comments on this rule and will consider all timely comments submitted during the public comment period as described in the “Public Participation” section.

Removal of form numbers and titles, position titles, and procedural guidance, and reorganization and clarification of 8 CFR. The Administrative Procedure Act (APA) excepts from the prior notice and opportunity for comment requirements “* * * rules of agency organization, procedure or practice.” 5 U.S.C. 553(b)(A). This rule removes form numbers and titles, position titles, and procedural guidance, reorganizes and clarifies parts of 8 CFR, and makes changes such as removing Form I-129, district director, instructions for retaining copies of documents, and instructions for forwarding of files. Accordingly, to the extent that this rule adopts rules of agency organization, procedure or practice, those portions of the rule are excepted from the notice-and-comment requirements under 5 U.S.C. 553(b)(A).

Remove and update outdated provisions. This rule removes provisions of 8 CFR where statutory authorization has expired, corrects provisions required by statutory amendments or extensions, removes extraneous or outdated provisions, and corrects erroneous references. For example, this rule removes references to the Irish Peace Process Cultural and Training Program Act because that law was repealed in 2005 and removes nonpreference investor visas and third and sixth preference employment-based visas because authorization for these visas was repealed in 1990. This rule is a ministerial action necessary to conform regulations with law. Therefore, advance public notice and an opportunity for public comment is unnecessary and not in the public interest. See 5 U.S.C. 553(b)(3)(B).

B. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

D. Executive Orders 13563 and 12866

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office Start Printed Page 53777of Management and Budget has not reviewed it under Executive Order 12866.

There will be no additional costs incurred by any individual or business as a result of the changes in this rule. The rule will clarify and revise existing regulations and does not alter the regulations in a significant manner. Once transformation is complete, USCIS applicants, petitioners, representatives, and others will realize a significant savings in time and effort when submitting immigration benefit requests, seeking case status information, and communicating with USCIS.

E. 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.

F. Executive Order 12988 Civil Justice Reform

Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DHS has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.

G. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting and recordkeeping requirements inherent in a rule. Public Law 104-13, 109 Stat. 163 (May 22, 1995). This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

H. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. When an agency makes changes effective through a final rule for which notice and comment are not necessary, the RFA does not require an agency to prepare a regulatory flexibility analysis. Accordingly, USCIS has not prepared a regulatory flexibility analysis.

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Accordingly, the interim rules published at 68 FR 23010, on April 29, 2003; 64 FR 27660 on May 21, 1999; 66 FR 27445 on May 17, 2001; 69 FR 11287 on March 10, 2004; 70 FR 23775 on May 5, 2005; 70 FR 21129 on April 25, 2005; and 65 FR 17127 on March 31, 2000 are adopted as final without change, and chapter I of title 8 of the Code of Federal Regulations is amended as follows.

Start Amendment Part

1. Part 1 is revised to read as follows:

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PART 1—DEFINITIONS

1.1
Applicability.
1.2
Definitions.
1.3
Lawfully present aliens for purposes of applying for Social Security benefits.
Start Authority

Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Pub. L. 107-296, 116 Stat. 2135; 6 U.S.C. 1 et seq.

End Authority
Applicability.

This part further defines some of the terms already described in section 101 and other sections of the Immigration and Nationality Act (66 Stat. 163), as amended, and such other enactments as pertain to immigration and nationality. These terms are used consistently by components within the Department of Homeland Security including U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services.

Definitions.

As used in this chapter I, the term:

Act or INA means the Immigration and Nationality Act, as amended.

Aggravated felony means a crime (or a conspiracy or attempt to commit a crime) described in section 101(a)(43) of the Act. This definition applies to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date.

Application means benefit request.

Arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act.

Attorney means any person who is eligible to practice law in, and is a member in good standing of the bar of, Start Printed Page 53779the highest court of any State, possession, territory, or Commonwealth of the United States, or of the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law.

Benefit request means any application, petition, motion, appeal, or other request relating to an immigration or naturalization benefit, whether such request is filed on a paper form or submitted in an electronic format, provided such request is submitted in a manner prescribed by DHS for such purpose.

Board means the Board of Immigration Appeals within the Executive Office for Immigration Review, Department of Justice, as defined in 8 CFR 1001.1(e).

Case, unless the context otherwise requires, means any proceeding arising under any immigration or naturalization law, Executive Order, or Presidential proclamation, or preparation for or incident to such proceeding, including preliminary steps by any private person or corporation preliminary to the filing of the application or petition by which any proceeding under the jurisdiction of the Service or the Board is initiated.

CBP means U.S. Customs and Border Protection.

Commissioner means the Commissioner of the Immigration and Naturalization Service prior to March 1, 2003. Unless otherwise specified, references after that date mean the Director of U.S. Citizenship and Immigration Services, the Commissioner of U.S. Customs and Border Protection, and the Director of U.S. Immigration and Customs Enforcement, as appropriate in the context in which the term appears.

Day, when computing the period of time for taking any action provided in this chapter I including the taking of an appeal, shall include Saturdays, Sundays, and legal holidays, except that when the last day of the period computed falls on a Saturday, Sunday, or a legal holiday, the period shall run until the end of the next day which is not a Saturday, Sunday, or a legal holiday.

Department or DHS, unless otherwise noted, means the Department of Homeland Security.

Director or district director prior to March 1, 2003, means the district director or regional service center director, unless otherwise specified. On or after March 1, 2003, pursuant to delegation from the Secretary of Homeland Security or any successive re-delegation, the terms mean, to the extent that authority has been delegated to such official: asylum office director; director, field operations; district director for interior enforcement; district director for services; field office director; service center director; or special agent in charge. The terms also mean such other official, including an official in an acting capacity, within U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, or other component of the Department of Homeland Security who is delegated the function or authority above for a particular geographic district, region, or area.

EOIR means the Executive Office for Immigration Review within the Department of Justice.

Executed or execute means fully completed.

Form when used in connection with a benefit or other request to be filed with DHS to request an immigration benefit, means a device for the collection of information in a standard format that may be submitted in paper format or in an electronic format as prescribed by USCIS on its official Internet Web site. The term Form followed by an immigration form number includes an approved electronic equivalent of such form as may be prescribed by the appropriate component on its official Internet Web site.

Form instructions means instructions on how to complete and where to file a benefit request, supporting evidence or fees, or any other required or preferred document or instrument with a DHS immigration component. Form instructions prescribed by USCIS or other DHS immigration components on their official Internet Web sites will be considered the currently applicable version, notwithstanding paper or other versions that may be in circulation, and may be issued through non-form guidance such as appendices, exhibits, guidebooks, or manuals.

ICE means U.S. Immigration and Customs Enforcement.

Immigration judge means an immigration judge as defined in 8 CFR 1001.1(l).

Immigration officer means the following employees of the Department of Homeland Security, including senior or supervisory officers of such employees, designated as immigration officers authorized to exercise the powers and duties of such officer as specified by the Act and this chapter I: aircraft pilot, airplane pilot, asylum officer, refugee corps officer, Border Patrol agent, contact representative, deportation officer, detention enforcement officer, detention officer, fingerprint specialist, forensic document analyst, general attorney (except with respect to CBP, only to the extent that the attorney is performing any immigration function), helicopter pilot, immigration agent (investigations), immigration enforcement agent, immigration information officer, immigration inspector, immigration officer, immigration services officer, investigator, intelligence agent, intelligence officer, investigative assistant, special agent, other officer or employee of the Department of Homeland Security or of the United States as designated by the Secretary of Homeland Security as provided in 8 CFR 2.1.

Lawfully admitted for permanent residence means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. Such status terminates upon entry of a final administrative order of exclusion, deportation, or removal.

Petition. See Benefit request.

Practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS.

Preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who does not hold himself or herself out as qualified in legal matters or in immigration and naturalization procedure.

Representation before DHS includes practice and preparation as defined in this section.

Representative refers to a person who is entitled to represent others as provided in 8 CFR 292.1(a)(2) through (6) and 8 CFR 292.1(b).

Respondent means an alien named in a Notice to Appear issued in accordance with section 239(a) of the Act, or in an Order to Show Cause issued in accordance with 8 CFR 242.1 (1997) as it existed prior to April 1, 1997.

Secretary, unless otherwise noted, means the Secretary of Homeland Security.Start Printed Page 53780

Service means U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and/or U.S. Immigration and Customs Enforcement, as appropriate in the context in which the term appears.

Service counsel means any immigration officer assigned to represent the Service in any proceeding before an immigration judge or the Board of Immigration Appeals.

Transition program effective date as used with respect to extending the immigration laws to the Commonwealth of the Northern Mariana Islands means November 28, 2009.

USCIS means U.S. Citizenship and Immigration Services.

Lawfully present aliens for purposes of applying for Social Security benefits.

(a) Definition of the term an “alien who is lawfully present in the United States.” For the purposes of 8 U.S.C. 1611(b)(2) only, an “alien who is lawfully present in the United States” means:

(1) A qualified alien as defined in 8 U.S.C. 1641(b);

(2) An alien who has been inspected and admitted to the United States and who has not violated the terms of the status under which he or she was admitted or to which he or she has changed after admission;

(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the Act for less than 1 year, except:

(i) Aliens paroled for deferred inspection or pending removal proceedings under section 240 of the Act; and

(ii) Aliens paroled into the United States for prosecution pursuant to 8 CFR 212.5(b)(3);

(4) An alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure:

(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the Act;

(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of the Act;

(iii) Cuban-Haitian entrants, as defined in section 202(b) of Pub. L. 99-603, as amended;

(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L. 101-649, as amended;

(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision made by the President;

(vi) Aliens currently in deferred action status;

(vii) Aliens who are the spouse or child of a United States citizen whose visa petition has been approved and who have a pending application for adjustment of status;

(5) Applicants for asylum under section 208(a) of the Act and applicants for withholding of removal under section 241(b)(3) of the Act or under the Convention Against Torture who have been granted employment authorization, and such applicants under the age of 14 who have had an application pending for at least 180 days.

(b) Non-issuance of a Notice to Appear and non-enforcement of deportation, exclusion, or removal orders. An alien may not be deemed to be lawfully present solely on the basis of DHS's decision not to, or failure to:

(1) Issue a Notice to Appear; or

(2) Enforce an outstanding order of deportation, exclusion or removal.

End Part Start Part

PART 100—STATEMENT OF ORGANIZATION

End Part Start Amendment Part

2. The authority citation for part 100 continues to read as follows:

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Authority: 8 U.S.C. 1103; 8 CFR part 2.

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[Removed]
Start Amendment Part

3. Section 100.7 is removed.

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PART 103—IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS

End Part Start Amendment Part

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

End Amendment Part Start Authority

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

End Authority Start Amendment Part

5. The heading for part 103 is revised as set forth above.

End Amendment Part Start Amendment Part

6. In part 103, §§ 103.1 through 103.10 are designated under the following subpart A heading:

End Amendment Part

Subpart A—Applying for Benefits, Surety Bonds, Fees

[Removed and Reserved]
Start Amendment Part

7. Section 103.1 is removed and reserved.

End Amendment Part Start Amendment Part

8. Section 103.2 is amended by:

End Amendment Part Start Amendment Part

a. Removing the phrases “petition or application” and “application or petition” and adding in its place the phrase “benefit request”; and by removing the phrase “petitions and applications” and adding in its place the phrase “benefit requests” whenever they appear in the following places:

End Amendment Part Start Amendment Part

i. Paragraph (a)(2);

End Amendment Part Start Amendment Part

ii. Paragraph (a)(3);

End Amendment Part Start Amendment Part

iii. Paragraph (a)(7)(ii);

End Amendment Part Start Amendment Part

iv. Paragraph (b)(6);

End Amendment Part Start Amendment Part

v. Paragraph (b)(7);

End Amendment Part Start Amendment Part

vi. Paragraph (b)(8)(i);

End Amendment Part Start Amendment Part

vii. Paragraph (b)(8)(ii);

End Amendment Part Start Amendment Part

viii. Paragraph (b)(8)(iii);

End Amendment Part Start Amendment Part

ix. Paragraph (b)(9) introductory text;

End Amendment Part Start Amendment Part

x. Paragraph (b)(9)(ii);

End Amendment Part Start Amendment Part

xi. Paragraph (b)(10)(i);

End Amendment Part Start Amendment Part

xii. Paragraph (b)(10)(ii);

End Amendment Part Start Amendment Part

xiii. Paragraph (b)(11);

End Amendment Part Start Amendment Part

xiv. Paragraph (b)(12);

End Amendment Part Start Amendment Part

xv. Paragraph (b)(13)(i);

End Amendment Part Start Amendment Part

xvi. Paragraph (b)(13)(ii);

End Amendment Part Start Amendment Part

xvii. Paragraph (b)(14);

End Amendment Part Start Amendment Part

xviii. Paragraph (b)(15); and

End Amendment Part Start Amendment Part

xix. Paragraph (b)(18); and

End Amendment Part Start Amendment Part

b. Revising the section heading;

End Amendment Part Start Amendment Part

c. Revising paragraph (a)(1);

End Amendment Part Start Amendment Part

d. Revising the term “BCIS” to read “USCIS” in paragraph (a)(2) last sentence;

End Amendment Part Start Amendment Part

e. Revising the term “§ 1.1(f)” to read “§ 1.2” in paragraph (a)(3) first sentence;

End Amendment Part Start Amendment Part

f. Revising paragraph (a)(6);

End Amendment Part Start Amendment Part

g. Revising paragraph (a)(7)(i) and adding paragraph (a)(7)(iii);

End Amendment Part Start Amendment Part

h. Revising paragraph (b)(1);

End Amendment Part Start Amendment Part

i. Revising paragraph (b)(4);

End Amendment Part Start Amendment Part

j. Revising the phrase “by submitting a properly completed and signed Form G-884 to the adjudicating USCIS office” to read “in accordance with instructions provided by USCIS” in paragraph (b)(5) last sentence;

End Amendment Part Start Amendment Part

k. Revising the term “application, petition” to read “benefit request” in paragraph (b)(7) last sentence;

End Amendment Part Start Amendment Part

l. Revising the term “in writing” to read “communicated by regular or electronic mail” in paragraph (b)(8)(iv) first sentence;

End Amendment Part Start Amendment Part

m. Revising the second sentence in paragraph (b)(17)(i);

End Amendment Part Start Amendment Part

n. Revising paragraph (b)(19); and

End Amendment Part Start Amendment Part

o. Removing paragraph (e).

End Amendment Part

The revisions and addition read as follows:

Submission and adjudication of benefit requests.

(a) Filing. (1) Preparation and submission. Every benefit request or other document submitted to DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR chapter 1 to the contrary, and such instructions are incorporated into the regulations requiring its submission. Each benefit request or other document must be filed with fee(s) as required by regulation. Benefit requests which require a person to submit biometric information must also be filed with the biometric service fee in 8 CFR 103.7(b)(1), for each individual who is required to provide biometrics. Filing fees and biometric service fees are non-refundable and, except as otherwise Start Printed Page 53781provided in this chapter I, must be paid when the benefit request is filed.

* * * * *

(6) Where to file. All benefit requests must be filed in accordance with the form instructions.

(7) Receipt date. (i) Benefit requests submitted. A benefit request which is not signed and submitted with the correct fee(s) will be rejected. A benefit request that is not executed may be rejected. Except as provided in 8 CFR parts 204, 245, or 245a, a benefit request will be considered received by USCIS as of the actual date of receipt at the location designated for filing such benefit request whether electronically or in paper format. The receipt date shall be recorded upon receipt by USCIS.

* * * * *

(iii) Rejected benefit requests. A benefit request which is rejected will not retain a filing date. There is no appeal from such rejection.

(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.

* * * * *

(4) Supporting documents. Original or photocopied documents which are required to support any benefit request must be submitted in accordance with the form instructions.

* * * * *

(17) * * *

(i) * * * These records include alien and other files, arrival manifests, arrival records, Department index cards, Immigrant Identification Cards, Certificates of Registry, Declarations of Intention issued after July 1, 1929, Permanent Resident Cards, or other registration receipt forms (provided that such forms were issued or endorsed to show admission for permanent residence), passports, and reentry permits. * * *

* * * * *

(19) Notification of decision. The Service will notify applicants, petitioners, and their representatives as defined in 8 CFR part 1 in writing of a decision made on a benefit request. Documents issued based on the approval of a request for benefits will be sent to the applicant or beneficiary.

* * * * *
[Amended]
Start Amendment Part

9. Section 103.3 is amended by:

End Amendment Part Start Amendment Part

a. Revising the term “shall file” to read “must submit” and revising the phrase “with the office where the unfavorable decision was made” to read “as indicated in the applicable form instructions” in the last sentence in paragraph (a)(2)(i); and

End Amendment Part Start Amendment Part

b. Revising the term “§ 103.9(a) of this part” to read “

End Amendment Part Start Amendment Part

10. Sections 103.8 through 103.11 are removed.

End Amendment Part
[Redesignated as § 103.8]
Start Amendment Part

11. Section 103.5a is redesignated as § 103.8.

End Amendment Part Start Amendment Part

12. Newly redesignated § 103.8 is amended by:

End Amendment Part Start Amendment Part

a. Revising the section heading;

End Amendment Part Start Amendment Part

b. Revising the paragraph (a) heading;

End Amendment Part Start Amendment Part

c. Revising paragraphs (a)(1);

End Amendment Part Start Amendment Part

d. Removing the “.” at the end of paragraph (a)(2)(iv), and adding a “; or” in its place; and by

End Amendment Part Start Amendment Part

e. Adding paragraph (a)(2)(v).

End Amendment Part

The revisions and addition read as follows:

Service of decisions and other notices.
* * * * *

(a) Types of service—(1) Routine service. (i) Routine service consists of mailing the notice by ordinary mail addressed to the affected party and his or her attorney or representative of record at his or her last known address, or

(ii) If so requested by a party, advising the party of such notice by electronic mail and posting the decision to the party's USCIS account.

(2) * * *

(v) If so requested by a party, advising the party by electronic mail and posting the decision to the party's USCIS account.

* * * * *
[Redesignated as § 103.9]
Start Amendment Part

13. Section 103.5b is redesignated as § 103.9.

End Amendment Part Start Amendment Part

14. Section 103.7 is amended by:

End Amendment Part Start Amendment Part

a. Revising the term “BCIS” to read “USCIS” wherever that term appears in paragraph (a)(1);

End Amendment Part Start Amendment Part

b. Adding new paragraphs (b)(1)(i)(CCC), (DDD), and (EEE).

End Amendment Part

The revisions and addition read as follows:

Fees.
* * * * *

(b) * * *

(1) * * *

(i) * * *

(CCC) American Competitiveness and Workforce Improvement Act (ACWIA) fee. $1500 or $750 for filing certain H-1B petitions as described in 8 CFR 214.2(h)(19) and USCIS form instructions.

(DDD) Fraud detection and prevention fee. $500 for filing certain H-1B and L petitions, and $150 for H-2B petitions as described in 8 CFR 214.2(h)(19).

(EEE) Public Law 111-230 fee. Petitioners who are required to submit the Fraud Detection and Prevention Fee described in paragraph (b)(1)(i)(DDD) of this section are also required to submit an additional $2000 for an H-1B petition or an additional $2250 for an L-1 petition if:

(1) The petitioner employs 50 or more persons in the United States;

(2) More than 50 percent of those employees are in H-1B or L-1 status; and

(3) The petition is filed prior to the expiration of section 402 of Public Law 111-230.

* * * * *
Start Amendment Part

15. Newly redesignated § 103.9 is revised to read as follows:

End Amendment Part
Request for further action on an approved benefit request.

(a) Filing a request. A person may request further action on an approved benefit request as prescribed by the form instructions. Requests for further action may be submitted with the original benefit request or following the approval of such benefit.

(b) Processing. The request will be approved if the requester has demonstrated eligibility for the requested action. There is no appeal from the denial of such request.

[Removed]
Start Amendment Part

16. Section 103.12 is removed.

End Amendment Part
[Redesignated as § 103.10]
Start Amendment Part

17. Section 103.37 is redesignated as § 103.10.

End Amendment Part Start Amendment Part

18. Newly redesignated § 103.10 is amended by:

End Amendment Part Start Amendment Part

a. Redesignating paragraphs (g), (h), and (i) as paragraphs (b), (c), and (d) respectively;

End Amendment Part Start Amendment Part

b. Revising the term “paragraph (f) of this section” to read “paragraph (c) of this section or

End Amendment Part Start Amendment Part

c. Adding paragraph (e).

End Amendment Part

The addition reads as follows:

Precedent decisions.
* * * * *

(e) Precedent decisions. Bound volumes of designated precedent Start Printed Page 53782decisions, entitled “Administrative Decisions under Immigration and Nationality Laws of the United States,” may be purchased from the Superintendent of Documents, U.S. Government Printing Office. Prior to publication in volume form, current precedent decisions are available from the Department of Justice, Executive Office for Immigration Review's Virtual Law Library at: http://www.justice.gov/​eoir/​vll/​libindex.html.

Start Amendment Part

19. Section 103.16 is added under an added subpart B heading to read as follows:

End Amendment Part

Subpart B—Biometric Requirements

Collection, use and storage of biometric information.

(a) Use of biometric information. Any individual may be required to submit biometric information if the regulations or form instructions require such information or if requested in accordance with 8 CFR 103.2(b)(9). DHS may collect and store for present or future use, by electronic or other means, the biometric information submitted by an individual. DHS may use this biometric information to conduct background and security checks, adjudicate immigration and naturalization benefits, and perform other functions related to administering and enforcing the immigration and naturalization laws.

(b) Individuals residing abroad. An individual who is required to provide biometric information and who is residing outside of the United States must report to a DHS-designated location to have his or her biometric information collected, whether by electronic or non-electronic means.

Start Amendment Part

20. Section 103.17 is added under subpart B to read as follows:

End Amendment Part
Biometric service fee.

(a) Required fees. DHS will charge a fee, as prescribed in 8 CFR 103.7(b)(1), for collecting biometric information at a DHS office, other designated collection site overseas, or a registered State or local law enforcement agency designated by a cooperative agreement with DHS to provide biometric collection services, to conduct required law enforcement checks, and to maintain this biometric information for reuse to support other benefit requests. Requests for benefits must be submitted with the biometric service fee for all individuals who are required to submit biometric information and a biometric services fee and who reside in the United States at the time of filing for the benefit.

(b) Non-payment of biometric service fee. (1) If a benefit request is received by DHS without the correct biometric service fee, DHS will notify the applicant, petitioner, and, when appropriate, the applicant or petitioner's representative, of the deficiency, and no further action will be taken on the benefit request until payment is received. Failure to submit the correct biometric service fee in response to a notice of deficiency within the time allotted in the notice will result in denial of the benefit request. There is no appeal from the denial of a benefit request for failure to submit the correct biometric service fee. A motion to reopen a benefit request denied for failure to submit the correct biometric service fee will be granted only on proof that:

(i) The correct biometric service fee was submitted at the time of filing the benefit request;

(ii) The correct biometric service fee was submitted in response to the notice of deficiency within the time allotted in the notice; or

(iii) The notice of deficiency was sent to an address other than the address on the benefit request or the notice of representation, or the applicant or petitioner notified DHS, in writing, of a change of address or change of representation subsequent to filing and before the notice of deficiency was sent and the DHS notice of deficiency was not sent to the new address.

(2) If the reason for the deficiency in the biometric service fee is that a check or financial instrument used to pay the biometric service fee is returned as not payable, the remitter must be allowed 14 calendar days to pay the fee and any associated service charges. If the fee and charges are not paid within 14 calendar days, the benefit request will be denied.

[Removed and Reserved]
Start Amendment Part

21. Sections 103.20 through 103.36 are removed.

End Amendment Part

Subpart C—[Reserved]

Start Amendment Part

22. Add reserved subpart C.

End Amendment Part Start Amendment Part

23. Sections 103.38 through 103.41 are designated under the following subpart D heading:

End Amendment Part

Subpart D—Availability of Records

* * * * *
Start Amendment Part

24. In § 103.41, paragraph (c) is revised to read as follows:

End Amendment Part
Genealogy request fees.
* * * * *

(c) Manner of submission. The application and fee must be submitted in accordance with form instructions.

Start Amendment Part

25. Section 103.42 is added under subpart D to read as follows:

End Amendment Part
Rules relating to the Freedom of Information Act (FOIA) and the Privacy Act.

Immigration-related regulations relating to FOIA and the Privacy Act are located in 6 CFR part 5.

Start Part

PART 204—IMMIGRANT PETITIONS

End Part Start Amendment Part

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

End Amendment Part Start Authority

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

End Authority
[Amended]
Start Amendment Part

27. Section 204.3 is amended by:

End Amendment Part Start Amendment Part

a. Revising the term “§ 103.2(e) of this chapter” to read “

End Amendment Part Start Amendment Part

b. Revising the term “BCIS” to read “USCIS”, the term “Form I-600” to read “petition”, and the term “I-600A” to read “advance processing request” wherever the terms appear in paragraph (h)(3)(ii).

End Amendment Part
[Amended]
Start Amendment Part

28. Section 204.4 is amended by:

End Amendment Part Start Amendment Part

a. Revising the term “§ 103.2(e) of this chapter to read “

End Amendment Part Start Amendment Part

b. Removing the phrase “, Form I-360,” in the last sentence in paragraph (d)(1).

End Amendment Part
[Amended]
Start Amendment Part

29. In § 204.6, paragraph (l) is removed and reserved.

End Amendment Part
[Removed and Reserved]
Start Amendment Part

30. Section 204.10 is removed and reserved.

End Amendment Part
[Amended]
Start Amendment Part

31. In § 204.302, paragraph (b), first sentence, is amended by revising the term “

End Amendment Part
[Amended]
Start Amendment Part

32. In § 204.310, paragraph (b), first sentence, is amended by revising the term “

End Amendment Part Start Part

PART 207—ADMISSION OF REFUGEES

End Part Start Amendment Part

33. The authority citation for part 207 continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR part 2.

End Authority Start Amendment Part

34. Section 207.1 is revised to read as follows:

End Amendment Part
Start Printed Page 53783
Eligibility.

(a) Filing. Any alien who believes he or she is a refugee as defined in section 101(a)(42) of the Act, and is included in a refugee group identified in section 207(a) of the Act, may apply for admission to the United States by submitting an application, including biometric information, in accordance with the form instructions, as defined in 8 CFR 1.2.

(b) Firmly resettled. Any applicant (other than an applicant for derivative refugee status under 8 CFR 207.7) who has become firmly resettled in a foreign country is not eligible for refugee status under this chapter I. A refugee is considered to be “firmly resettled” if he or she has been offered resident status, citizenship, or some other type of permanent resettlement by a country other than the United States and has traveled to and entered that country as a consequence of his or her flight from persecution. Any applicant who claims not to be firmly resettled in a foreign country must establish that the conditions of his or her residence in that country are so restrictive as to deny resettlement. In determining whether or not an applicant is firmly resettled in a foreign country, the officer reviewing the matter shall consider the conditions under which other residents of the country live:

(1) Whether permanent or temporary housing is available to the refugee in the foreign country;

(2) Nature of employment available to the refugee in the foreign country; and

(3) Other benefits offered or denied to the refugee by the foreign country which are available to other residents, such as right to property ownership, travel documentation, education, public welfare, and citizenship.

(c) Immediate relatives and special immigrants. Any applicant for refugee status who qualifies as an immediate relative or as a special immigrant shall not be processed as a refugee unless it is in the public interest. The alien shall be advised to obtain an immediate relative or special immigrant visa and shall be provided with the proper petition forms to send to any prospective petitioners. An applicant who may be eligible for classification under sections 203(a) or 203(b) of the Act, and for whom a visa number is now available, shall be advised of such eligibility but is not required to apply.

Start Amendment Part

35. Section 207.2 is revised to read as follows:

End Amendment Part
Applicant processing.

(a) Interview. Each applicant 14 years old or older shall appear in person before an immigration officer for inquiry under oath to determine his or her eligibility for admission as a refugee.

(b) Medical examination. Each applicant shall submit to a medical examination as required by sections 221(d) and 232(b) of the Act.

(c) Sponsorship. Each applicant must be sponsored by a responsible person or organization. Transportation for the applicant from his or her present abode to the place of resettlement in the United States must be guaranteed by the sponsor.

Start Amendment Part

36. Section 207.3 is revised to read as follows:

End Amendment Part
Waivers of inadmissibility.

(a) Authority. Section 207(c)(3) of the Act sets forth grounds of inadmissibility under section 212(a) of the Act which are not applicable and those which may be waived in the case of an otherwise qualified refugee and the conditions under which such waivers may be approved.

(b) Filing requirements. An applicant may request a waiver by submitting an application for a waiver in accordance with the form instructions. The burden is on the applicant to show that the waiver should be granted based upon humanitarian grounds, family unity, or the public interest. The applicant shall be notified in writing of the decision, including the reasons for denial if the application is denied. There is no appeal from such decision.

Start Amendment Part

37. Section 207.4 is revised to read as follows:

End Amendment Part
Approved application.

Approval of a refugee application by USCIS outside the United States authorizes CBP to admit the applicant conditionally as a refugee upon arrival at the port within four months of the date the refugee application was approved. There is no appeal from a denial of refugee status under this chapter.

Start Amendment Part

38. Section 207.5 is revised to read as follows:

End Amendment Part
Waiting lists and priority handling.

Waiting lists are maintained for each designated refugee group of special humanitarian concern. Each applicant whose application is accepted for filing by USCIS shall be registered as of the date of filing. The date of filing is the priority date for purposes of case control. Refugees or groups of refugees may be selected from these lists in a manner that will best support the policies and interests of the United States. The Secretary may adopt appropriate criteria for selecting the refugees and assignment of processing priorities for each designated group based upon such considerations as reuniting families, close association with the United States, compelling humanitarian concerns, and public interest factors.

Start Amendment Part

39. Section 207.7 is amended by:

End Amendment Part Start Amendment Part

a. Revising the term “U.S. Attorney General” to read “Secretary” in paragraph (b)(5);

End Amendment Part Start Amendment Part

b. Revising paragraph (d);

End Amendment Part Start Amendment Part

c. Removing the last two sentences in paragraph (e); and

End Amendment Part Start Amendment Part

d. Revising paragraph (f).

End Amendment Part

The revisions read as follows:

Derivatives of refugees.
* * * * *

(d) Filing. A refugee may request accompanying or following-to-join benefits for his or her spouse and unmarried, minor child(ren) (whether the spouse and children are inside or outside the United States) by filing a petition in accordance with the form instructions. The petition may only be filed by the principal refugee. Family members who derived their refugee status are not eligible to request derivative benefits on behalf of their spouses and child(ren). A petition must be filed for each qualifying family member within 2 years of the refugee's admission to the United States, unless USCIS determines that the filing period should be extended for humanitarian reasons. There is no time limit imposed on a family member's travel to the United States once the petition has been approved, provided that the relationship of spouse or child continues to exist and approval of the petition has not been subsequently revoked. There is no fee for this petition.

* * * * *

(f) Approvals. (1) Spouse or child in the United States. When a spouse or child of a refugee is in the United States and the petition is approved, USCIS will notify the refugee of such approval. Employment will be authorized incident to status.

(2) Spouse or child outside the United States. When a spouse or child of a refugee is outside the United States and the petition is approved, USCIS will notify the refugee of such approval. USCIS will send the approved petition to the Department of State for transmission to the U.S. Embassy or Consulate having jurisdiction over the area in which the refugee's spouse or child is located.

(3) Benefits. The approval of the petition shall remain valid for the duration of the relationship to the refugee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the Start Printed Page 53784principal's status has not been revoked. However, the approved petition will cease to confer immigration benefits after it has been used by the beneficiary for admission to the United States as a derivative of a refugee. For a derivative inside or arriving in the United States, USCIS will issue a document reflecting the derivative's current status as a refugee to demonstrate employment authorization, or the derivative may apply, under 8 CFR 274a.12(a), for evidence of employment authorization.

* * * * *
Start Amendment Part

40. Section 207.9 is revised to read as follows:

End Amendment Part
Termination of refugee status.

The refugee status of any alien (and of the spouse or child of the alien) admitted to the United States under section 207 of the Act will be terminated by USCIS if the alien was not a refugee within the meaning of section 101(a)(42) of the Act at the time of admission. USCIS will notify the alien in writing of its intent to terminate the alien's refugee status. The alien will have 30 days from the date notice is served upon him or her in accordance with 8 CFR 103.8, to present written or oral evidence to show why the alien's refugee status should not be terminated. There is no appeal under this chapter I from the termination of refugee status by USCIS. Upon termination of refugee status, USCIS will process the alien under sections 235, 240, and 241 of the Act.

Start Part

PART 208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

End Part Start Amendment Part

41. The authority citation for part 208 continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.

End Authority
[Amended]
Start Amendment Part

42. Section 208.1 is amended by:

End Amendment Part Start Amendment Part

a. Revising in the last sentence of paragraph (a)(1) the term “

End Amendment Part Start Amendment Part

b. Revising in paragraph (b) the term “The Director of International Affairs” to read “The Associate Director of USCIS Refugee, Asylum, and International Operations (RAIO)”.

End Amendment Part
[Amended]
Start Amendment Part

43. Section 208.2 is amended in paragraph (a) by revising the paragraph heading to read: “Refugee, Asylum, and International Operations (RAIO)” and by revising the terms “the Office of International Affairs” and “The Office of International Affairs” to read: “RAIO” wherever they appear.

End Amendment Part
[Amended]
Start Amendment Part

44. Section 208.5 is amended by:

End Amendment Part Start Amendment Part

a. Removing the phrase “, pursuant to § 208.4(b),” in the last sentence of paragraph (b)(1)(ii);

End Amendment Part Start Amendment Part

b. Revising the phrase “The DHS office” to read “DHS” and by revising the phrase “the DHS office” to read “DHS” in paragraph (b)(1)(ii); and

End Amendment Part Start Amendment Part

c. Revising the term “Attorney General” to read “Secretary” in paragraph (b)(2).

End Amendment Part Start Amendment Part

45. Section 208.7 is amended by:

End Amendment Part Start Amendment Part

a. Revising the phrase “submit a Form I-765, Application for Employment Authorization” to read “request employment authorization” in paragraph (a)(1), first sentence;

End Amendment Part Start Amendment Part

b. Revising the term “Form I-765” to read “employment authorization request” in paragraph (a)(1), last sentence;

End Amendment Part Start Amendment Part

c. Revising the phrase “the Service” to read “USCIS” in paragraph (a)(2), first sentence;

End Amendment Part Start Amendment Part

d. Revising the phrase “the Commissioner” to read “USCIS” in paragraph (b), introductory text; and

End Amendment Part Start Amendment Part

e. Revising paragraph (c), introductory text.

End Amendment Part

The revision reads as follows:

Employment authorization.
* * * * *

(c) Supporting evidence for renewal of employment authorization. In order for employment authorization to be renewed under this section, the alien must request employment authorization in accordance with the form instructions. USCIS may require that an alien establish that he or she has continued to pursue an asylum application before an immigration judge or sought administrative or judicial review. For purposes of employment authorization, pursuit of an asylum application is established by presenting one of the following, depending on the stage of the alien's immigration proceedings:

* * * * *
[Amended]
Start Amendment Part

46. In § 208.9, paragraph (b) is amended by removing the phrase “electronically or through any other means designated by the Attorney General”.

End Amendment Part
[Amended]
Start Amendment Part

47. Section 208.10 is amended by revising the term “the Office of International Affairs” to read “USCIS” in the third sentence.

End Amendment Part
[Amended]
Start Amendment Part

48. In § 208.12, paragraph (a) is amended by revising the term “the Office of International Affairs, other Service offices,” to read “other USCIS offices”.

End Amendment Part
[Amended]
Start Amendment Part

49. In § 208.14, paragraph (b) is amended by revising the term “Office of International Affairs” to read “RAIO”.

End Amendment Part Start Amendment Part

50. Section 208.21 is amended by revising paragraphs (c) and (d) to read as follows:

End Amendment Part
Admission of the asylee's spouse and children.

(c) Spouse or child in the United States. When a spouse or child of an alien granted asylum is in the United States, but was not included in the asylee's application, the asylee may request accompanying or following-to-join benefits for his or her spouse or child, regardless of the status of that spouse or child in the United States, in accordance with the form instructions. The petition must be filed by the asylee for each qualifying family member within 2 years of the date in which he or she was granted asylum status, unless it is determined by USCIS that this period should be extended for humanitarian reasons. Upon approval of the petition, USCIS will notify the asylee of such approval. Employment will be authorized incident to status. To demonstrate employment authorization, USCIS will issue a document reflecting the derivative's current status as an asylee, or the derivative may apply, under 8 CFR 274a.12(a), for evidence of employment authorization. The approval of the derivative benefits petition shall remain valid for the duration of the relationship to the asylee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the principal's status has not been revoked. However, the approved petition will cease to confer immigration benefits after it has been used by the beneficiary for admission to the United States as a derivative of an asylee.

(d) Spouse or child outside the United States. When a spouse or child of an alien granted asylum is outside the United States, the asylee may request accompanying or following-to-join benefits for his or her spouse or child(ren) by filing a separate petition for each qualifying family member in accordance with the form instructions. A petition for each qualifying family member must be filed within 2 years of the date in which the asylee was granted asylum, unless USCIS determines that the filing period should be extended for Start Printed Page 53785humanitarian reasons. When a petition is approved, USCIS will notify the asylee of such approval. USCIS will also send the approved petition to the Department of State for transmission to the U.S. Embassy or Consulate having jurisdiction over the area in which the asylee's spouse or child is located. The approval of the petition shall remain valid for the duration of the relationship to the asylee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the principal's status has not been revoked. However, the approved petition will cease to confer immigration benefits after it has been used by the beneficiary for admission to the United States as a derivative of an asylee.

* * * * *
Start Amendment Part

51. Section 208.24 is amended by:

End Amendment Part Start Amendment Part

a. Revising paragraph (a) introductory text;

End Amendment Part Start Amendment Part

b. Revising paragraph (b) introductory text; and by

End Amendment Part Start Amendment Part

c. Revising the term “§ 3.2 or § 3.23 of this chapter” to read

End Amendment Part

The revisions read as follows:

Termination of asylum or withholding of removal or deportation.

(a) Termination of asylum by USCIS. Except as provided in paragraph (e) of this section, an asylum officer may terminate a grant of asylum made under the jurisdiction of USCIS if, following an interview, the asylum officer determines that:

* * * * *

(b) Termination of withholding of deportation or removal by USCIS. Except as provided in paragraph (e) of this section, an asylum officer may terminate a grant of withholding of deportation or removal made under the jurisdiction of USCIS if the asylum officer determines, following an interview, that:

* * * * *
Start Amendment Part

52. Section 208.30 is amended by revising paragraph (d)(3) to read as follows:

End Amendment Part
Credible fear determinations involving stowaways and applicants for admission found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act.
* * * * *

(d) * * *

(3) The alien may be required to register his or her identity.

* * * * *
[Amended]
Start Amendment Part

53. In § 208.31, paragraph (a) is amended by revising the term “The Service” to read “USCIS” in the last sentence.

End Amendment Part Start Part

PART 209—ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED ASYLUM

End Part Start Amendment Part

54. The authority citation for part 209 continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252, 1282; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.

End Authority Start Amendment Part

55. Section 209.1 is amended by:

End Amendment Part Start Amendment Part

a. Revising paragraph (a)(1);

End Amendment Part Start Amendment Part

b. Revising paragraph (b);

End Amendment Part Start Amendment Part

c. Removing from paragraph (c) last sentence the phrase “, by submitting with the adjustment of status application a vaccination supplement, completed by a designated civil surgeon in the United States”;

End Amendment Part Start Amendment Part

d. Revising paragraphs (d) and (e); and

End Amendment Part Start Amendment Part

e. Adding paragraph (f).

End Amendment Part

The revisions read as follows:

Adjustment of status of refugees.
* * * * *

(a) Eligibility. (1) Every alien in the United States who is classified as a refugee under 8 CFR part 207, whose status has not been terminated, is required to apply to USCIS one year after entry in order for USCIS to determine his or her admissibility under section 212 of the Act, without regard to paragraphs (4), (5), and (7)(A) of section 212(a) of the Act.

* * * * *

(b) Application. Upon admission to the United States, every refugee entrant will be notified of the requirement to submit an application for permanent residence one year after entry. An application for the benefits of section 209(a) of the Act must be submitted along with the biometrics required by 8 CFR 103.16 and in accordance with the applicable form instructions.

* * * * *

(d) Interview. USCIS will determine, on a case-by-case basis, whether an interview by an immigration officer is necessary to determine the applicant's admissibility for permanent resident status under this part.

(e) Decision. USCIS will notify the applicant in writing of the decision on his or her application. There is no appeal of a denial, but USCIS will notify an applicant of the right to renew the request for permanent residence in removal proceedings under section 240 of the Act. If the applicant is found to be admissible for permanent residence under section 209(a) of the Act, USCIS will approve the application, admit the applicant for lawful permanent residence as of the date of the alien's arrival in the United States, and issue proof of such status.

(f) Inadmissible Alien. An applicant who is inadmissible to the United States as described in 8 CFR 209.1(a)(1), may, under section 209(c) of the Act, have the grounds of inadmissibility waived by USCIS except for those grounds under sections 212(a)(2)(C) and 212(a)(3)(A), (B), (C), or (E) of the Act for humanitarian purposes, to ensure family unity, or when it is otherwise in the public interest. An application for the waiver may be requested with the application for adjustment, in accordance with the form instructions.

Start Amendment Part

56. Section 209.2 is amended by:

End Amendment Part Start Amendment Part

a. Revising the term “the director” to read “USCIS” whenever that term appears in paragraph (a)(2);

End Amendment Part Start Amendment Part

b. Removing the undesignated paragraph at the end of paragraph (a)(1);

End Amendment Part Start Amendment Part

c. Removing the second, third, and last sentences in paragraph (a)(2); and

End Amendment Part Start Amendment Part

d. Revising paragraphs (b) through (f).

End Amendment Part

The revisions read as follows:

Adjustment of status of aliens granted asylum.
* * * * *

(b) Inadmissible Alien. An applicant who is not admissible to the United States as described in 8 CFR 209.2(a)(1)(v), may, under section 209(c) of the Act, have the grounds of inadmissibility waived by USCIS except for those grounds under sections 212(a)(2)(C) and 212(a)(3)(A), (B), (C), or (E) of the Act for humanitarian purposes, to ensure family unity, or when it is otherwise in the public interest. An application for the waiver may be requested with the application for adjustment, in accordance with the form instructions. An applicant for adjustment under this part who has had the status of an exchange alien nonimmigrant under section 101(a)(15)(J) of the Act, and who is subject to the foreign resident requirement of section 212(e) of the Act, shall be eligible for adjustment without regard to the foreign residence requirement if otherwise eligible for adjustment.

(c) Application. An application for the benefits of section 209(b) of the Act may be filed in accordance with the form instructions. If an alien has been placed in removal, deportation, or exclusion proceedings, the application can be filed and considered only in proceedings under section 240 of the Act.

(d) Medical examination. For an alien seeking adjustment of status under section 209(b) of the Act, the alien shall Start Printed Page 53786submit a medical examination to determine whether any grounds of inadmissibility described under section 212(a)(1)(A) of the Act apply. The asylee is also required to establish compliance with the vaccination requirements described under section 212(a)(1)(A)(ii) of the Act.

(e) Interview. USCIS will determine, on a case-by-case basis, whether an interview by an immigration officer is necessary to determine the applicant's admissibility for permanent resident status under this part.

(f) Decision. USCIS will notify the applicant in writing of the decision on his or her application. There is no appeal of a denial, but USCIS will notify an applicant of the right to renew the request in removal proceedings under section 240 of the Act. If the application is approved, USCIS will record the alien's admission for lawful permanent residence as of the date one year before the date of the approval of the application, but not earlier than the date of the approval for asylum in the case of an applicant approved under paragraph (a)(2) of this section.

Start Part

PART 211—DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS

End Part Start Amendment Part

57. The authority citation for part 211 continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 CFR part 2.

End Authority Start Amendment Part

58. Section 211.1 is amended by:

End Amendment Part Start Amendment Part

a. Revising paragraph (b)(3); and

End Amendment Part Start Amendment Part

b. Removing paragraph (d).

End Amendment Part

The revision reads as follows:

Visas.

(b) * * *

(3) If an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad believes that good cause exists for his or her failure to present an unexpired immigrant visa, permanent resident card, or reentry permit, the alien may file an application for a waiver of this requirement with the DHS officer with jurisdiction over the port of entry where the alien arrives. To apply for this waiver, the alien must file the designated form with the fee prescribed in 8 CFR 103.7(b)(1). If the alien's permanent resident card was lost or stolen and the alien has been absent for less than one year, rather than the waiver application the alien must apply for a replacement card as described in 8 CFR 264.5. In the exercise of discretion, the DHS officer who has jurisdiction over the port of entry where the alien arrives may waive the alien's lack of an immigrant visa, permanent resident card, or reentry permit and admit the alien as a returning resident if DHS is satisfied that the alien has established good cause for the alien's failure to present an immigrant visa, permanent resident card, or reentry permit. Filing a request to replace a lost or stolen card will serve as both application for replacement and as application for waiver of passport and visa, without the obligation to file a separate waiver application.

* * * * *
[Amended]
Start Amendment Part

59. In § 211.2, paragraph (b) is amended in the second sentence by revising the phrase “file Form I-193, Application for Waiver of Passport and/or Visa”, to read “apply on the form specified by USCIS”.

End Amendment Part Start Amendment Part

60. Section 211.3 is amended by:

End Amendment Part Start Amendment Part

a. Revising the section heading; and

End Amendment Part Start Amendment Part

b. Revising the term “Form I-551” to read “a permanent resident card” whenever the term appears in the first sentence.

End Amendment Part

The revision reads as follows:

Expiration of immigrant visa or other travel document.
* * * * *
[Amended]
Start Amendment Part

61. Section 211.5 is amended by:

End Amendment Part Start Amendment Part

a. Revising the phrase “Form I-551 or I-688 shall become” to read “the alien's permanent resident card becomes” in the last sentence in paragraph (b); and

End Amendment Part Start Amendment Part

b. Revising the term “on Form I-90” to read “in accordance with

End Amendment Part Start Part

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

End Part Start Amendment Part

62. The authority citation for part 212 continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note (Pub. L. 108-458, § 7209, 118 Stat. 3638; Public Law 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.

End Authority
[Amended]
Start Amendment Part

63. In § 212.1, paragraph (n) is removed and reserved.

End Amendment Part
[Amended]
Start Amendment Part

64. Section 212.2 is amended by revising the term “the Form I-212” or “Form I-212” to read “the application” wherever it appears in the following places:

End Amendment Part Start Amendment Part

a. Paragraph (b)(1);

End Amendment Part Start Amendment Part

b. Paragraph (b)(2);

End Amendment Part Start Amendment Part

c. Paragraph (e), in the last sentence;

End Amendment Part Start Amendment Part

d. Paragraph (f);

End Amendment Part Start Amendment Part

e. Paragraph (i)(1) introductory text; and

End Amendment Part Start Amendment Part

f. Paragraph (i)(2).

End Amendment Part Start Amendment Part

65. Section 212.2 is further amended by:

End Amendment Part Start Amendment Part

a. Revising the term “sections 212(a)(17) and 212(d)(3)(A) of the Act and § 212.4 of this part” to read “sections 212(a)(9)(A) and 212(d)(3)(A) of the Act and

End Amendment Part Start Amendment Part

b. Revising the phrase “Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal,” to read “an application on the form designated by USCIS with the fee prescribed in

End Amendment Part Start Amendment Part

c. Revising the phrase “an application on Form I-212” to read “the application on the form designated by USCIS with the fee prescribed in

End Amendment Part Start Amendment Part

d. Revising the phrase “the Form I-212 to the Service office with jurisdiction over the area within which the consular officer is located” to read “the application to the designated USCIS office” in paragraph (c)(2);

End Amendment Part Start Amendment Part

e. Revising the phrase “Form I-212” to read “the waiver request on the form designated by USCIS” in the first sentence in paragraph (d);

End Amendment Part Start Amendment Part

f. Revising the phrase “Form I-601, Application for Waiver of Grounds of Excludability, must be filed simultaneously with the Form I-212” to read “he or she must file both waiver requests simultaneously on the forms designated by USCIS with the fees prescribed in

End Amendment Part Start Amendment Part

g. Revising the phrase “Form I-212, Application for Permission to Reapply” to read “the application on the form designated by USCIS” in the second sentence in paragraph (e);

End Amendment Part Start Amendment Part

h. Revising the phrase “file Form I-212” to read “apply on the form designated by USCIS with the fee prescribed in

End Amendment Part Start Amendment Part

i. Removing the last sentence in paragraph (g)(1) introductory text;

End Amendment Part Start Amendment Part

j. Removing paragraphs (g)(1)(i) and (ii);

End Amendment Part Start Amendment Part

k. Revising the term “

End Amendment Part Start Amendment Part

l. Revising the phrase “Form I-212 or Form I-601 concurrently with the Form I-131, Application for Travel Document” to read “waiver form concurrently with the parole request” in the first sentence in paragraph (g)(2);

End Amendment Part Start Amendment Part

m. Removing the last sentence in paragraph (g)(2); and by

End Amendment Part Start Amendment Part

n. Revising the phrase “section 212(a)(16) or (17) of the Act” to read “section 212(a)(9)(A) of the Act” in the second sentence of paragraph (j).

End Amendment Part
[Amended]
Start Amendment Part

66. In § 212.3, paragraph (a) is amended by revising the phrase “Form I-191, Application for Advance Permission to Return to Unrelinquished Domicile” to read “the form designated by USCIS with the fee prescribed in

End Amendment Part
[Amended]
Start Amendment Part

67. Section 212.4 is amended by:

End Amendment Part Start Amendment Part

a. Revising the term “Form I-192 to the district director in charge of the applicant's intended port of entry prior to the applicant's arrival in the United States”, to read “the form designated by USCIS with the fee prescribed in

End Amendment Part Start Amendment Part

b. Removing the term “of Form I-854, Inter-Agency Alien Witness and Informant Record,” in the first sentence of paragraph (j)(1); and

End Amendment Part Start Amendment Part

c. Revising the phrase “the Commissioner shall” to read “USCIS will” in the first sentence in paragraph (j)(1);

End Amendment Part Start Amendment Part

d. Revising the phrase “The Commissioner” or “the Commissioner” to read “USCIS” wherever the term appears in the second and third sentences in paragraph (j)(1); and

End Amendment Part Start Amendment Part

e. Revising the phrase “the Commissioner” to read “USCIS” in the second sentence in paragraph (j)(2).

End Amendment Part
[Amended]
Start Amendment Part

68. In § 212.5, paragraph (f) is amended by revising the term “Form I-512” to read “an appropriate document authorizing travel”.

End Amendment Part Start Amendment Part

69. Section 212.7 is amended by:

End Amendment Part Start Amendment Part

a. Revising the section heading;

End Amendment Part Start Amendment Part

b. Revising the paragraph (a)(1);

End Amendment Part Start Amendment Part

c. Revising paragraph (a)(3);

End Amendment Part Start Amendment Part

d. Revising in paragraph (a)(4), fourth sentence, the phrase “deportable in a deportation proceeding” to read “deportable in deportation proceedings or removable in removal proceedings”;

End Amendment Part Start Amendment Part

e. Revising the paragraph (b)(1);

End Amendment Part Start Amendment Part

f. Removing paragraph (b)(3);

End Amendment Part Start Amendment Part

g. Revising in the first sentence in paragraph (b)(4)(i) the phrase “section 212(a) (1) or (3) (because of mental retardation or because of a past history of mental illness)” to read “section 212(a)(1)(A)(iii) of the Act” and the phrase “an executed Form I-601 to the consular or Service office” to read “a waiver request”;

End Amendment Part Start Amendment Part

h. Removing the last sentence in paragraph (b)(4)(i);

End Amendment Part Start Amendment Part

i. Redesignating paragraphs (b)(4) and (5) as paragraphs (b)(2) and (3), respectively;

End Amendment Part Start Amendment Part

j. Revising the term “Form I-612” to read “the form designated by USCIS” in paragraph (c)(5);

End Amendment Part Start Amendment Part

k. Revising the term “the Service” to read “USCIS” in the last sentence in paragraph (c)(9)(vi) introductory text;

End Amendment Part Start Amendment Part

l. Removing the phrase “with the Service” in the first sentence in paragraph (c)(9)(vi)(B); and

End Amendment Part Start Amendment Part

m. Revising the term “Form I-797 (and/or I-797A and I-797B)” to read “the USCIS approval notice” in paragraph (c)(9)(vi)(B)(

End Amendment Part

The revisions read as follows:

Waiver of certain grounds of inadmissibility.

(a) Filing and adjudication of waivers under sections 212(g), (h), or (i) of the Act. (1) Application procedures. Any alien who is inadmissible under sections 212(g), (h), or (i) of the Act who is eligible for a waiver of such inadmissibility may file on the form designated by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions. When filed at the consular section of an embassy or consulate, the Department of State will forward the application to USCIS for a decision after the consular official concludes that the alien is otherwise admissible.

* * * * *

(3) Decision. USCIS will provide a written decision and, if denied, advise the applicant of appeal procedures in accordance with 8 CFR 103.3.

* * * * *

(b) Section 212(g) waivers for certain medical conditions. (1) Application. Any alien who is inadmissible under section 212(a)(1)(A)(i), (ii), or (iii) of the Act and who is eligible for a waiver under section 212(g) of the Act may file an application as described in paragraph (a)(1) of this section. The family member specified in section 212(g) of the Act may file the waiver application for the applicant if the applicant is incompetent to file the waiver personally.

* * * * *
[Removed and Reserved]
Start Amendment Part

70. Section 212.8 is removed and reserved.

End Amendment Part
[Removed and Reserved]
Start Amendment Part

71. Section 212.9 is removed and reserved.

End Amendment Part Start Amendment Part

72. Section 212.10 is revised to read as follows:

End Amendment Part
Section 212(k) waiver.

Any applicant for admission who is in possession of an immigrant visa, and who is inadmissible under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied, the application may be renewed in removal proceedings before an immigration judge as provided in 8 CFR part 1240.

[Removed and Reserved]
Start Amendment Part

73. Section 212.11 is removed and reserved.

End Amendment Part
[Amended]
Start Amendment Part

74. Section 212.14 is amended by:

End Amendment Part Start Amendment Part

a. Revising the phrase “a completed Form I-854, Inter-Agency Alien Witness and Informant Record,” to read “an application for S nonimmigrant status on the form designated for such purposes” in paragraph (a)(1)(i);

End Amendment Part Start Amendment Part

b. Revising the phrase “a completed Form I-854” to read “the completed application” in the first sentence of paragraph (a)(2)(iii);

End Amendment Part Start Amendment Part

c. Revising the phrase “Form I-854 requesting” to read “completed application for” in the second sentence of paragraph (a)(2)(iii); and

End Amendment Part Start Amendment Part

d. Revising the phrase “a Form I-854” to read “the application” in paragraph (a)(2)(iii), last sentence.

End Amendment Part
[Amended]
Start Amendment Part

75. Section 212.15 is amended by:

End Amendment Part Start Amendment Part

a. Revising the phrase “shall submit Form I-905, Application for Authorization to Issue Certification for Health Care Workers” to read “must apply on the form designated by USCIS in accordance with the form instructions” in the first sentence of paragraph (j)(1) introductory text;

End Amendment Part Start Amendment Part

b. Revising the phrase “As required on Form I-905, the” to read “The” in the last sentence of paragraph (j)(1), introductory text;

End Amendment Part Start Amendment Part

c. Revising the term “shall submit Form I-905” to read “must apply” in the first sentence of paragraph (j)(2)(i);

End Amendment Part Start Amendment Part

d. Revising the phrase “shall submit Form I-905, Application for Authorization to Issue Certification for Health Care Workers with the appropriate fee contained in

End Amendment Part Start Amendment Part

e. Revising the phrase “After receipt of Form I-905, USCIS shall, in all cases,” to read “USCIS will” in paragraph (j)(3)(i);

End Amendment Part Start Amendment Part

f. Removing the phrase “to the Associate Commissioner for Examinations” from paragraph (j)(3)(iii);

End Amendment Part Start Amendment Part

g. Revising the phrase “a Form I-905 requesting,” to read “a request for” in the second sentence of paragraph (l); and

End Amendment Part Start Amendment Part

h. Revising the term “Form I-905” to read “the request” in the second sentence of paragraph (m)(2) introductory text.

End Amendment Part
[Amended]
Start Amendment Part

76. Section 212.16 is amended by

End Amendment Part Start Amendment Part

a. Revising the term “Form I-192” to read “the request on the form designated by USCIS”, by revising the term “the Service” to read “USCIS”, and by revising the phrase “completed Form I-914 application package” to read “application” in paragraph (a);

End Amendment Part Start Amendment Part

b. Revising the terms “the Commissioner”, “The Service”, and “the Service” to read “USCIS” wherever those terms appear in paragraph (b); and by

End Amendment Part Start Amendment Part

c. Revising the term “The Commissioner” to read “USCIS” in paragraph (d).

End Amendment Part Start Amendment Part

77. Section 212.17 is amended by:

End Amendment Part Start Amendment Part

a. Revising paragraph (a); and by

End Amendment Part Start Amendment Part

b. Revising the term “Form I-192” to read “the waiver” wherever the term appears in paragraph (b).

End Amendment Part

The revision reads as follows:

Applications for the exercise of discretion relating to U nonimmigrant status.

(a) Filing the waiver application. An alien applying for a waiver of inadmissibility under section 212(d)(3)(B) or (d)(14) of the Act (waivers of inadmissibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14), in connection with a petition for U nonimmigrant status being filed pursuant to 8 CFR 214.14, must submit the waiver request and the petition for U nonimmigrant status on the forms designated by USCIS in accordance with the form instructions. An alien in U nonimmigrant status who is seeking a waiver of section 212(a)(9)(B) of the Act, 8 U.S.C. 1182(a)(9)(B) (unlawful presence ground of inadmissibility triggered by departure from the United States), must file the waiver request prior to his or her application for reentry to the United States in accordance with the form instructions.

* * * * *
Start Part

PART 213A—AFFIDAVITS OF SUPPORT ON BEHALF OF ALIENS

End Part Start Amendment Part

78. The authority citation for part 213a continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1183a; 8 CFR part 2.

End Authority
[Amended]
Start Amendment Part

79. Section 213a.1 is amended by:

End Amendment Part Start Amendment Part

a. Revising in the definition of

End Amendment Part Start Amendment Part

b. Revising in the definition of

End Amendment Part Start Amendment Part

c. Revising in the definition of

End Amendment Part Start Amendment Part

d. Revising in the definition of

End Amendment Part Start Amendment Part

e. Revising in the definition of

End Amendment Part Start Amendment Part

80-82. Section 213a.2 is amended by:

End Amendment Part Start Amendment Part

a. Revising paragraphs (a)(1)(i) through (a)(1)(v)(A);

End Amendment Part Start Amendment Part

b. Revising the phrase “Form I-864 or Form I-864A” to read “affidavit of support or required affidavit of support attachment form” in the first sentence of paragraph (a)(1)(v)(B);

End Amendment Part Start Amendment Part

c. Revising the phrase “Form I-864 and any Form I-864A” to read “affidavit of support and any required affidavit of support attachment” in the last sentence of paragraph (a)(1)(v)(B);

End Amendment Part Start Amendment Part

d. Revising the phrase “the Form I-130 or Form I-600 immigrant visa petition (or the Form I-129F petition, for a K nonimmigrant seeking adjustment)” to read “relative, orphan or fiancé(e) petition” in the first sentence of paragraph (b)(1);

End Amendment Part Start Amendment Part

e. Revising the phrase “in Form I-864P Poverty Guidelines” to read “the Poverty Guidelines” in paragraph (c)(2)(i)(A);

End Amendment Part Start Amendment Part

f. Revising the term “Form I-864” to read “affidavit of support” in paragraph (c)(2)(iii)(A)(

End Amendment Part Start Amendment Part

g. Revising paragraph (c)(2)(iii)(C);

End Amendment Part Start Amendment Part

h. Revising the phrase “filed USCIS Form I-407, Abandonment of Lawful Permanent Resident Status” to read “abandoned permanent resident status, executing the form designated by USCIS for recording such action” in paragraph (e)(2)(i)(C);

End Amendment Part Start Amendment Part

i. Revising the phrase “Form I-864 or Form I-864A” to read ” affidavit of support and any required attachments” wherever the term appears in paragraph (f);

End Amendment Part Start Amendment Part

j. Revising the phrase “the signed Form(s) I-864 (and any Form(s) I-864A)” to read “any relevant affidavit(s) and attachments” in paragraph (g)(1); and

End Amendment Part Start Amendment Part

k. Revising paragraphs (g)(2)(i) and (ii).

End Amendment Part Start Amendment Part

l. Section 213a.2 is further amended by revising the terms “Form I-864”, “the Form I-864”, and “a Form I-864” to read “an affidavit of support” wherever those terms or phrases appear in the following places:

End Amendment Part Start Amendment Part

i. Paragraph (b), introductory text;

End Amendment Part Start Amendment Part

ii. Paragraph (b)(1);

End Amendment Part Start Amendment Part

iii. Paragraph (b)(2);

End Amendment Part Start Amendment Part

iv. Paragraph (c)(1)(ii)(B);

End Amendment Part Start Amendment Part

v. Paragraph (c)(2)(i)(A);

End Amendment Part Start Amendment Part

vi. Paragraph (c)(2)(i)(B);

End Amendment Part Start Amendment Part

vii. Paragraph (c)(2)(i)(C)(

End Amendment Part Start Amendment Part

viii. Paragraph (c)(2)(i)(C)(

End Amendment Part Start Amendment Part

ix. Paragraph (c)(2)(i)(D);

End Amendment Part Start Amendment Part

x. Paragraph (c)(2)(ii)(C);

End Amendment Part Start Amendment Part

xi. Paragraph (c)(2)(iii)(D);

End Amendment Part Start Amendment Part

xii. Paragraph (c)(2)(v);

End Amendment Part Start Amendment Part

xiii. Paragraph (c)(2)(vi);

End Amendment Part Start Amendment Part

xiv. Paragraph (d);

End Amendment Part Start Amendment Part

xv. Paragraph (e)(1);

End Amendment Part Start Amendment Part

xvi. Paragraph (e)(2)(i) introductory text;

End Amendment Part Start Amendment Part

xvii. Paragraph (e)(2)(i)(D);

End Amendment Part Start Amendment Part

xviii. Paragraph (e)(2)(ii);

End Amendment Part Start Amendment Part

xix. Paragraph (e)(3); and

End Amendment Part Start Amendment Part

xx. Paragraph (f) heading.

End Amendment Part Start Amendment Part

m. Section 213a.2 is further amended by revising the terms “Form I-864A”, “the Form I-864A”, or “a Form I-864A” to read “an affidavit of support attachment” wherever those terms or phrases appear in the following places:

End Amendment Part Start Amendment Part

i. Paragraph (c)(2)(i)(C)(

End Amendment Part Start Amendment Part

ii. Paragraph (c)(2)(i)(C)(

End Amendment Part Start Amendment Part

iii. Paragraph (c)(2)(i)(C)(

End Amendment Part Start Amendment Part

iv. Paragraph (c)(2)(i)(C)(

End Amendment Part Start Amendment Part

v. Paragraph (c)(2)(i)(C)(

End Amendment Part Start Amendment Part

vi. Paragraph (c)(2)(i)(D);

End Amendment Part Start Amendment Part

vii. Paragraph (c)(2)(iii)(B) introductory text;

End Amendment Part Start Amendment Part

viii. Paragraph (c)(2)(v);

End Amendment Part Start Amendment Part

ix. Paragraph (c)(2)(vi);

End Amendment Part Start Amendment Part

x. Paragraph (e)(1);

End Amendment Part Start Amendment Part

xi. Paragraph (e)(2)(i) introductory text;

End Amendment Part Start Amendment Part

xii. Paragraph (e)(2)(i)(D);

End Amendment Part Start Amendment Part

xiii. Paragraph (e)(2)(ii);

End Amendment Part Start Amendment Part

xiv. Paragraph (e)(3); and

End Amendment Part Start Amendment Part

xv. Paragraph (f) heading.

End Amendment Part

The revisions read as follows:

Use of affidavit of support.

(a) Applicability of section 213a affidavit of support. (1)(i)(A) In any case specified in paragraph (a)(2) of this section, an intending immigrant is Start Printed Page 53789inadmissible as an alien likely to become a public charge, unless the qualified sponsor specified in paragraph (b) of this section or a substitute sponsor and, if necessary, a joint sponsor, has executed on behalf of the intending immigrant an affidavit of support on the applicable form designated by USCIS in accordance with the requirements of section 213A of the Act and the form instructions. Each reference in this section to the affidavit of support or the form is deemed to be a reference to all such forms designated by USCIS for use by a sponsor for compliance with section 213A of the Act.

(B) If the intending immigrant claims that, under paragraph (a)(2)(ii)(A), (C), or (E) of this section, the intending immigrant is exempt from the requirement to file an affidavit of support, the intending immigrant must include with his or her application for an immigrant visa or adjustment of status an exemption request on the form designated by USCIS for this purpose.

(ii) An affidavit of support is executed when a sponsor signs and submits the appropriate forms in accordance with the form instructions to USCIS or the Department of State, as appropriate.

(iii) A separate affidavit of support is required for each principal beneficiary.

(iv) Each immigrant who will accompany the principal intending immigrant must be included on the affidavit. See paragraph (f) of this section for further information concerning immigrants who intend to accompany or follow the principal intending immigrant to the United States.

(v)(A) Except as provided for under paragraph (a)(1)(v)(B) of this section, the Department of State consular officer, immigration officer, or immigration judge will determine the sufficiency of the affidavit of support based on the sponsor's, substitute sponsor's, or joint sponsor's reasonably expected household income in the year in which the intending immigrant filed the application for an immigrant visa or for adjustment of status, and based on the evidence submitted with the affidavit of support and the Poverty Guidelines in effect when the intending immigrant filed the application for an immigrant visa or adjustment of status.

* * * * *

(c) * * *

(2) * * *

(iii) * * *

(C) Joint sponsor. A joint sponsor must execute a separate affidavit of support on behalf of the intending immigrant(s) and be willing to accept joint and several liabilities with the sponsor or substitute sponsor. A joint sponsor must meet all the eligibility requirements under paragraph (c)(1) of this section, except that the joint sponsor is not required to file a visa petition on behalf of the intending immigrant. The joint sponsor must demonstrate his or her ability to support the intending immigrant in the manner specified in paragraph (c)(2) of this section. A joint sponsor's household income must meet or exceed the income requirement in paragraph (c)(2)(iii) of this section unless the joint sponsor can demonstrate significant assets as provided in paragraph (c)(2)(iv)(A) of this section. The joint sponsor's household income must equal at least 125 percent of the Poverty Guidelines for the joint sponsor's household size, unless the joint sponsor is on active duty in the Armed Forces and the intending immigrant is the joint sponsor's spouse or child, in which case the joint sponsor's household income is sufficient if it equals at least 100 percent of the Poverty Guidelines for the joint sponsor's household size. An intending immigrant may not have more than one joint sponsor, but, if the joint sponsor's household income is not sufficient to meet the income requirement with respect to the principal intending immigrant, any spouse and all the children who, under section 203(d) of the Act, seek to accompany the principal intending immigrant, then the joint sponsor may specify on the affidavit that it is submitted only on behalf of the principal intending immigrant and those accompanying family members specifically listed on the affidavit. The remaining accompanying family members will then be inadmissible under section 212(a)(4) of the Act unless a second joint sponsor submits an affidavit(s) on behalf of all the remaining family members who seek to accompany the principal intending immigrant and who are not included in the first joint sponsor's affidavit. There may not be more than two joint sponsors for the family group consisting of the principal intending immigrant and the accompanying spouse and children.

* * * * *

(g) * * *

(2)(i) To avoid inadmissibility under section 212(a)(4) of the Act, an alien who applies for an immigrant visa, admission, or adjustment of status as an alien who is following-to-join a principal intending immigrant must submit a new affidavit(s) of support, together with all documents or other evidence necessary to prove that the new affidavits comply with the requirements of section 213A of the Act and 8 CFR part 213a.

(ii) When paragraph (g)(2)(i) of this section requires the filing of a new affidavit for an alien who seeks to follow-to-join a principal sponsored immigrant, the same sponsor who filed the visa petition and affidavit of support for the principal sponsored immigrant must file the new affidavit on behalf of the alien seeking to follow-to-join. If that person has died, then the alien seeking to follow-to-join is inadmissible unless a substitute sponsor, as defined by 8 CFR 213a.1, signs a new affidavit that meets the requirements of this section. Persons other than the person or persons who signed the original joint affidavits on behalf of the principal sponsored immigrant may sign a new joint affidavit on behalf of an alien who seeks to follow-to-join a principal sponsored immigrant.

* * * * *
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83. Section 213a.3 is revised to read as follows:

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Change of address.

(a) Submission of address change. (1) Filing requirements. If the address of a sponsor (including a substitute sponsor or joint sponsor) changes while the sponsor's support obligation is in effect, the sponsor shall file a change of address notice within 30 days, in a manner as prescribed by USCIS on its address change form instructions.

(2) Proof of mailing. USCIS will accept a photocopy of the change of address form together with proof of the form's delivery to USCIS as evidence that the sponsor has complied with this requirement.

(3) Electronic notices. USCIS will provide the sponsor with a receipt notice for an address change.

(4) Alien sponsors. If the sponsor is an alien, the sponsor must still comply with the requirements of 8 CFR 265.1 to notify USCIS of his or her change of address.

(b) Civil penalty. If the sponsor fails to give notice in accordance with paragraph (a) of this section, DHS may impose on the sponsor a civil penalty in an amount within the penalty range established in section 213A(d)(2)(A) of the Act. Except, if the sponsor, knowing that the sponsored immigrant has received any means-tested public benefit, fails to give notice in accordance with paragraph (a) of this section, DHS may impose on the sponsor a civil penalty in an amount within the penalty range established in section 213A(d)(2)(B) of the Act. The procedure for imposing a civil penalty is established at 8 CFR part 280.

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[Amended]
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84. Section 213a.4 is amended by:

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a. Revising the term “

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b. Revising the phrases “a Form I-864 or Form I-864A” and “the Form I-864 or Form I-864A” to read “an affidavit of support” in the first sentence in paragraph (a)(3).

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85. Section 213a.5 is revised to read as follows:

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Relationship of this part to other affidavits of support.

Nothing in this part precludes the continued use of other affidavits of support provided by USCIS in a case other than a case described in § 213a.2(a)(2). The obligations of section 213A of the Act do not bind a person who executes such other USCIS affidavits of support. Persons sponsoring an Amerasian alien described in section 204(f)(2) of the Act remain subject to the provisions of section 204(f)(4)(B) of the Act and 8 CFR 204.4(i), as appropriate.

Start Part

PART 223—REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE PAROLE DOCUMENTS

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86. The authority citation for part 223 continues to read as follows:

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Authority: 8 U.S.C. 1103, 1181, 1182, 1186a, 1203, 1225, 1226, 1227, 1251; Protocol Relating to the Status of Refugees, Nov. 1, 1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR part 2.

End Authority Start Amendment Part

87. Section 223.2 is revised to read as follows:

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Application and processing.

(a) Application. An applicant must submit an application for a reentry permit, refugee travel document, or advance parole on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

(b) Filing eligibility. (1) Reentry permit. An applicant for a reentry permit must file such application while in the United States and in status as a lawful permanent resident or conditional permanent resident.

(2) Refugee travel document. (i) Except as provided in paragraph (b)(2)(ii) of this section, an applicant for a refugee travel document must submit the application while in the United States and in valid refugee status under section 207 of the Act, valid asylum status under section 208 of the Act or is a permanent resident who received such status as a direct result of his or her asylum or refugee status.

(ii) Discretionary authority to accept a refugee travel document application from an alien not within the United States. As a matter of discretion, the Service office with jurisdiction over a port-of-entry or pre-flight inspection location where the alien is seeking admission, or the overseas Service office where the alien is physically present, may accept and adjudicate an application for a refugee travel document from an alien who previously had been admitted to the United States as a refugee, or who previously had been granted asylum status in the United States, and who departed from the United States without having applied for such refugee travel document, provided the officer:

(A) Is satisfied that the alien did not intend to abandon his or her refugee or asylum status at the time of departure from the United States;

(B) The alien did not engage in any activities while outside the United States that would be inconsistent with continued refugee or asylum status; and

(C) The alien has been outside the United States for less than 1 year since his or her last departure.

(c) Ineligibility. (1) Prior document still valid. An application for a reentry permit or refugee travel document will be denied if the applicant was previously issued a reentry permit or refugee travel document which is still valid, unless it was returned to USCIS or it is demonstrated that it was lost.

(2) Extended absences. A reentry permit issued to a person who, since becoming a permanent resident or during the last five years, whichever is less, has been outside the United States for more than four years in the aggregate, shall be limited to a validity of one year, except that a permit with a validity of two years may be issued to:

(i) A permanent resident described in 8 CFR 211.1(a)(6) or (a)(7);

(ii) A permanent resident employed by a public international organization of which the United States is a member by treaty or statute, and his or her permanent resident spouse and children; or

(iii) A permanent resident who is a professional athlete who regularly competes in the United States and worldwide.

(3) Permanent resident entitled to nonimmigrant diplomatic or treaty status. A permanent resident entitled to nonimmigrant status under section 101(a)(15)(A), (E), or (G) of the Act because of occupational status may only be issued a reentry permit if the applicant executes and submits with the application, or has previously executed and submitted, a written waiver as required by 8 CFR part 247.

(d) Effect of travel before a decision is made. Departure from the United States before a decision is made on an application for a reentry permit or refugee travel document will not affect the application.

(e) Processing. USCIS may approve or deny a request for a reentry permit or refugee travel document as an exercise of discretion. If it approves the application, USCIS will issue an appropriate document.

(f) Effect on proceedings. Issuance of a reentry permit or refugee travel document to a person in exclusion, deportation, or removal proceedings shall not affect those proceedings.

(g) Appeal. Denial of an application for a reentry permit or refugee travel document may be appealed in accordance with 8 CFR 103.3.

Start Part

PART 235—INSPECTION OF PERSONS APPLYING FOR ADMISSION

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88. The authority citation for part 235 is revised to read as follows:

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Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 1228, 1365a note, 1379, 1731-32; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 U.S.C. 1185 note (Pub. L. 108-458, § 7209, 118 Stat. 3638).

End Authority
[Amended]
Start Amendment Part

89. In § 235.3, paragraph (b)(1)(i) is amended by revising the term “§ 1.1(q) of this chapter” to read “

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[Amended]
Start Amendment Part

90. In § 235.8, paragraph (e) is amended by revising the term “§ 1.1(q) of this chapter” to read “

End Amendment Part Start Part

PART 236—APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

End Part Start Amendment Part

91. The authority citation for part 236 continues to read as follows:

End Amendment Part Start Authority

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.

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[Amended]
Start Amendment Part

92. In § 236.2, paragraph (a) is amended by revising the term “§ 103.5a(c) of this chapter” to read “

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[Amended]
Start Amendment Part

93. Section 236.16 is amended by revising the phrase “using Form I-131, Application for Travel Document” to read “in accordance with 8 CFR

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[Amended]
Start Amendment Part

94. In § 236.18, paragraph (b) is amended by revising the term “§ 103.5a of this chapter” to read “

End Amendment Part Start Part

PART 238—EXPEDITED REMOVAL OF AGGRAVATED FELONS

End Part Start Amendment Part

95. The authority citation for part 238 continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1228; 8 CFR part 2.

End Authority Start Amendment Part

96. In § 238.1, paragraph (b)(2)(i) is amended by revising the term “§§ 103.5a(a)(2) and 103.5a(c)(2) of this chapter” to read “

End Amendment Part Start Part

PART 240—VOLUNTARY DEPARTURE, SUSPENSION OF DEPORTATION AND SPECIAL RULE CANCELLATION OF REMOVAL

End Part Start Amendment Part

97. The heading for part 240 is revised as set forth above.

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98. The authority citation for part 240 continues to read as follows:

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Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; sections 202 and 203, Pub. L. 105-100, 111 Stat. 2160, 2193; section 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR part 2.

End Authority Start Amendment Part

99. Section 240.67 is amended by revising paragraph (a) introductory text to read as follows:

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Procedure for interview before an asylum officer.

(a) Fingerprinting requirements. USCIS will notify each applicant 14 years of age or older to appear for an interview only after the applicant has complied with fingerprinting requirements pursuant to 8 CFR 103.16, and USCIS has received a definitive response from the FBI that a full criminal background check has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:

* * * * *
Start Part

PART 241—APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

End Part Start Amendment Part

100. The authority citation for part 241 continues to read as follows:

End Amendment Part Start Authority

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101, et seq.); 8 CFR part 2.

End Authority
[Amended]
Start Amendment Part

101. In § 241.4, paragraph (d)(2), first sentence is amended by revising the term “

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102. Section 241.5 is amended by revising paragraph (a)(5) to read as follows:

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Conditions of release after removal period.

(a) * * *

(5) A requirement that the alien provide DHS with written notice of any change of address in the prescribed manner.

* * * * *
Start Part

PART 244—TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES

End Part Start Amendment Part

103. The authority citation for part 244 continues to read as follows:

End Amendment Part Start Authority

Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.

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[Amended]
Start Amendment Part

104. Section 244.3 is amended by:

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a. Revising the term “the Service” to read “USCIS” in the first sentence in paragraph (b);

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b. Removing the phrase “of grounds of inadmissibility on Form I-601 (Application for waiver of grounds of excludability)” in the second sentence in paragraph (b);

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c. Revising the term “The Service” to read “USCIS” in paragraph (c) introductory text.

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[Amended]
Start Amendment Part

105. In § 244.4, paragraph (b) is amended by revising the term “section 243(h)(2) of the Act” to read “section 208(b)(2)(A) of the Act”.

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[Amended]
Start Amendment Part

106. In § 244.5, paragraph (a) is amended by revising the term “the Attorney General” to read “DHS” wherever the term appears.

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107. Section 244.6 is revised to read as follows:

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Application.

(a) An application for Temporary Protected Status must be submitted in accordance with the form instructions, the applicable country-specific Federal Register notice that announces the procedures for TPS registration or re-registration, and 8 CFR 103.2, except as otherwise provided in this section, with the appropriate fees and biometric information as described in 8 CFR 103.7(b)(1), 103.16, and 103.17.

(b) An applicant for TPS may also request employment authorization pursuant to 8 CFR 274a. Those applicants between the ages of 14 and 65 who are not requesting authorization to work will not be charged a fee for an application for employment authorization.

[Amended]
Start Amendment Part

108. Section 244.7 is amended by:

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a. Revising the phrase “Form I-821, Application for Temporary Protected Status” to read “the form designated by USCIS with any prescribed fees and in accordance with the form instructions” in paragraph (a); and

End Amendment Part Start Amendment Part

b. Revising the term “Attorney General” to read “DHS” in paragraph (b).

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[Amended]
Start Amendment Part

109. In § 244.9, paragraph (a)(4) is amended by revising the phrase “Form I-551 or Form I-94” to read “evidence of admission for lawful permanent residence or nonimmigrant status”.

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110. Section 244.10 is amended by:

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a. Revising the section heading; and

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b. Revising paragraphs (a), (b) (c) and (d).

End Amendment Part

The revisions read as follows:

Decision and appeal.

(a) Temporary treatment benefits. USCIS will grant temporary treatment benefits to the applicant if the applicant establishes prima facie eligibility for Temporary Protected Status in accordance with 8 CFR 244.5.

(b) Temporary Protected Status. Upon review of the evidence presented, USCIS may approve or deny the application for Temporary Protected Status in the exercise of discretion, consistent with the standards for eligibility in 8 CFR 244.2, 244.3, and 244.4.

(c) Denial. The initial decision to deny Temporary Protected Status, a waiver of inadmissibility, or temporary treatment benefits shall be in writing served in person or by mail to the alien's most recent address provided to the Service and shall state the reason(s) for the denial. Except as otherwise provided in this section, the alien will be given written notice of his or her right to appeal. If an appeal is filed, the administrative record shall be forwarded to the USCIS AAO for review and decision, except as otherwise provided in this section.

(1) If the basis for the denial of the Temporary Protected Status constitutes a ground for deportability or inadmissibility which renders the alien ineligible for Temporary Protected Status under § 244.4 or inadmissible under § 244.3(c), the decision shall Start Printed Page 53792include a charging document which sets forth such ground(s).

(2) If such a charging document is issued, the alien shall not have the right to appeal the USCIS decision denying Temporary Protected Status as provided in 8 CFR 103.3. However, the decision will also apprise the alien of his or her right to a de novo determination of his or her eligibility for Temporary Protected Status in removal proceedings pursuant to section 240 of the Act and 8 CFR 1244.18.

(d) Administrative appeal. The appellate decision will be served in accordance with 8 CFR 103.8. If the appeal is dismissed, the decision must state the reasons for dismissal.

(1) If the appeal is dismissed on appeal under 8 CFR 244.18(b), the decision shall also apprise the alien of his or her right to a de novo determination of eligibility for Temporary Protected Status in removal proceedings pursuant to section 240 of the Act and 8 CFR 1244.18.

(2) If the appeal is dismissed, USCIS may issue a charging document if no charging document is presently filed with the Immigration Court.

(3) If a charging document has previously been filed or is pending before the Immigration Court, either party may move to re-calendar the case after the administrative appeal is dismissed.

* * * * *
[Amended]
Start Amendment Part

111. Section 244.11 is amended by revising the term “§ 3.3 of this chapter” to read “

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[Amended]
Start Amendment Part

112. Section 244.12, is amended by:

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a. Revising the term “the INS” to read “USCIS” in paragraphs (a) and (c); and

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b. Revising the phrase “appealed to the Administrative Appeals Unit” to read “pending administrative appeal” in paragraph (d).

End Amendment Part
[Amended]
Start Amendment Part

113. Section 244.14 is amended by:

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a. Revising the term “

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b. Revising the term “The director” to read “USCIS” in paragraph (a) introductory text;

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c. Revising the term “the district director” to read “USCIS” in paragraph (a)(2) last sentence;

End Amendment Part Start Amendment Part

d. Revising the term “Attorney General” to read “DHS” in paragraph (a)(3);

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e. Revising the term “

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f. Revising the term “§ 240.14(a)(3)” to read “

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[Amended]
Start Amendment Part

114. In § 244.16, the term “the Department of Justice” is revised to read “DHS”.

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115. Section 244.17 is revised to read as follows:

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Periodic registration.

(a) Aliens granted Temporary Protected Status must re-register periodically in accordance with USCIS instructions. Such registration applies to nationals of those foreign states designated or redesignated for more than one year by DHS. Applicants for periodic re-registration must apply during the registration period provided by USCIS. Re-registering applicants will not need to re-pay the TPS application fee that was required for initial registration except that aliens requesting employment authorization must submit the application fee for employment authorization. The biometric service fee described in 103.7(b), or an approved fee waiver, will be required of applicants age 14 and over. By completing the application, applicants attest to their continuing eligibility. Such applicants do not need to submit additional supporting documents unless USCIS requests them to do so.

(b) If an alien fails to register without good cause, USCIS will withdraw Temporary Protected Status. USCIS may, for good cause, accept and approve an untimely registration request.

Start Amendment Part

116. Section 244.18 is amended by revising paragraphs (b) and (d) to read as follows:

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Issuance of charging documents; detention.
* * * * *

(b) The filing of the charging document by DHS with the Immigration Court renders inapplicable any other administrative, adjudication or review of eligibility for Temporary Protected Status. The alien shall have the right to a de novo determination of his or her eligibility for Temporary Protected Status in removal proceedings pursuant to section 240 of the Act and 8 CFR 1244.18. Review by the Board of Immigration Appeals shall be the exclusive administrative appellate review procedure. If an appeal is already pending before the Administrative Appeals Office (AAO), USCIS will notify the AAO of the filing of the charging document, in which case the pending appeal shall be dismissed and the record of proceeding returned to the jurisdiction where the charging document was filed.

* * * * *

(d) An alien who is determined by USCIS deportable or inadmissible upon grounds which would have rendered the alien ineligible for such status as provided in 8 CFR 244.3(c) and 8 CFR 244.4 may be detained under the provisions of this chapter pending removal proceedings. Such alien may be removed from the United States upon entry of a final order of removal.

Start Part

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

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117. The authority citation for part 245 is revised to read as follows:

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Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105-100, section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112 Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.

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118. Section 245.1 is amended by:

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a. Revising the term to “section 214(k)” to read: “section 214(l)” in the last sentence in paragraph (c)(2);

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b. Removing and reserving paragraph (e)(2);

End Amendment Part Start Amendment Part

c. Revising the third sentence in paragraph (g)(1); and by

End Amendment Part Start Amendment Part

d. Removing the fourth sentence in paragraph (g)(1).

End Amendment Part

The revision reads as follows:

Eligibility.
* * * * *

(g) * * *

(1) * * * A preference immigrant visa is considered available for accepting and processing if the applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). * * *

* * * * *
[Amended]
Start Amendment Part

119. Section 245.2 is amended by removing the phrase “, except when the applicant has established eligibility for the benefits of Public Law 101-238” in the second sentence in paragraph (a)(5)(ii).

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120. In § 245.7, paragraph (a) is revised to read as follows:

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§ 245.7 Adjustment of status of certain Soviet and Indochinese parolees under the Foreign Operations Appropriations Act for Fiscal Year 1990 (Pub. L. 101-167). (a) Application. Each person applying for benefits under section 599E of Public Law 101-167, 103 Stat. 1195, 1263, must file an application on the form prescribed by Start Printed Page 53793USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

* * * * *
[Removed and Reserved]
Start Amendment Part

121. Section 245.9 is removed and reserved.

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122. In § 245.10, paragraph (n)(2) is revised to read as follows:

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Adjustment of status upon payment of additional sum under Public Law 103-317.
* * * * *

(n) * * *

(2) To demonstrate physical presence on December 21, 2000, the alien may submit copies of documents issued by the former INS or EOIR such as arrival-departure forms or notices to appear in immigration court.

* * * * *
Start Amendment Part

123. In § 245.11, remove the last two sentences in paragraph (f) and add a new sentence to read as follows:

End Amendment Part
Adjustment of aliens in S nonimmigrant classification.
* * * * *

(f) * * * The applicant may request employment authorization or permission to travel outside the United States while the application is pending by filing an application pursuant to 8 CFR 274a.13 or 8 CFR 223.2.

* * * * *
[Removed and Reserved]
Start Amendment Part

124. Section 245.12 is removed and reserved.

End Amendment Part
[Removed and Reserved]
Start Amendment Part

125. Section 245.13 is removed and reserved.

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126. Section 245.15 is amended by:

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a. Revising the phrase “Advance Authorization for Parole (Form I-512)” to read “advance parole authorization” and revising the phrase “Advance Authorization for Parole” to read “authorization” in paragraph (c)(4)(ii);

End Amendment Part Start Amendment Part

b. Revising paragraph (g)(1);

End Amendment Part Start Amendment Part

c. Revising paragraph (n)(1);

End Amendment Part Start Amendment Part

d. Revising the phrase “the Director of the Nebraska Service Center verifies that Service” to read “USCIS verifies that DHS” and by revising the term “the Director may approve” to read “USCIS may approve” in the first sentence in paragraph (n)(2);

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e. Revising the term “the Service” to read “USCIS” in the second sentence in paragraph (n)(2);

End Amendment Part Start Amendment Part

f. Revising paragraph (s)(1);

End Amendment Part Start Amendment Part

g. Revising paragraph (t)(1);

End Amendment Part Start Amendment Part

h. Revising the phrase “an Application for Travel Document (Form I-131) with the Nebraska Service Center, at P.O. Box 87245, Lincoln, NE 68501-7245” to read “a request on the form designated by USCIS with the fee prescribed in

End Amendment Part Start Amendment Part

i. Revising the term “Form I-485” to read “application for adjustment of status” in the second sentence in paragraph (t)(2)(i).

End Amendment Part

The revisions read as follows:

Adjustment of Status of Certain Haitian Nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
* * * * *

(g) * * *

(1) Filing of applications with USCIS. USCIS has jurisdiction over all applications for the benefits of section 902 of HRIFA as a principal applicant or as a dependent under this section, except for applications filed by aliens who are in pending immigration proceedings as provided in paragraph (g)(2) of this section. All applications filed with USCIS for the benefits of section 902 of HRIFA must be submitted on the form designated by USCIS with the fees prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions. After proper filing of the application, USCIS will instruct the applicant to appear for biometrics collection as prescribed in 8 CFR 103.16.

* * * * *

(n) * * *

(1) Application for employment authorization. An applicant for adjustment of status under section 902 of HRIFA who wishes to obtain initial or continued employment authorization during the pendency of the adjustment application must file an application on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions. The applicant may submit the application either concurrently with or subsequent to the filing of the application for HRIFA benefits.

* * * * *

(s) Action of immigration judge upon referral of decision by a notice of certification. (1) General. Upon the referral by a notice of certification of a decision to deny the application, in accordance with paragraph (r)(3) of this section, the immigration judge will conduct a hearing to determine whether the alien is eligible for adjustment of status under section 902 of HRIFA in accordance with this paragraph (s)(1).

* * * * *

(t) * * *

(1) Travel from and return to the United States while the application for adjustment of status is pending. If an applicant for benefits under section 902 of HRIFA desires to travel outside, and return to, the United States while the application for adjustment of status is pending, he or she must file a request for advance parole authorization on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions. Unless the applicant files an advance parole request prior to departing from the United States and USCIS approves such request, his or her application for adjustment of status under section 902 of HRIFA is deemed to be abandoned as of the moment of departure. Parole may only be authorized pursuant to the authority contained in, and the standards prescribed in, section 212(d)(5) of the Act.

* * * * *
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127. Section 245.18 is amended by:

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a. Revising the section heading;

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b. Revising paragraph (d)(1);

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c. Revising the term “the Service” to read “USCIS” in paragraph (d)(2); and

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d. Revising the last sentence in paragraph (k).

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The revisions read as follows:

Physicians with approved employment-based petitions serving in a medically underserved area or a Veterans Affairs facility.
* * * * *

(d) Employment authorization. (1) Once USCIS has approved a petition described in paragraph (a) of this section, the alien physician may apply for permanent residence and employment authorization on the forms designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

* * * * *

(k) * * * Such physicians may apply for advance parole on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

* * * * *
[Removed and Reserved]
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128. Section 245.20 is removed and reserved.

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129-130. Section 245.21 is amended by:

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a. Adding the word “and” at the end of paragraph (a)(3);

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b. Removing paragraph (a)(4);

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c. Redesignating paragraph (a)(5) as paragraph (a)(4);

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d. Revising paragraph (b);

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e. Revising the second sentence in paragraph (d)(1);

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f. Revising paragraph (d)(2);

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g. Revising the last sentence in paragraph (f);

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h. Revising paragraph (h);

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i. Revising paragraph (i);

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j. Revising the terms, “Service” and “Service's” to read “USCIS'” in paragraph (j);

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k. Removing paragraph (m); and

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l. By revising the terms “The Service” and “the Service” to read “USCIS” wherever the terms appear in the following paragraphs:

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i. Paragraph (a) introductory text;

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ii. Paragraph (c);

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iii. Paragraph (d) introductory text;

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iv. Paragraph (d)(4);

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v. Paragraph (g)(3);

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vi. Paragraph (j);

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vii. Paragraph (k); and

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viii. Paragraph (l).

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The revisions read as follows:

Adjustment of status of certain nationals of Vietnam, Cambodia, and Laos.
* * * * *

(b) Application. An applicant must submit an application on the form designated by USCIS with the fee specified in 8 CFR 103.7(b)(1) and in accordance with the form instructions. Applicants who are 14 through 79 years of age must also submit the biometrics service fee described in 8 CFR 103.17.

* * * * *

(d) * * *

(1) * * * An alien who is eligible for adjustment of status under section 586 of Public Law 106-429 may request a stay of removal during the pendency of the application. * * *

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

* * * * *

(f) * * * In order to obtain a waiver for any of these grounds, the applicant must submit an application on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

* * * * *

(h) Employment authorization. Applicants who want to obtain employment authorization based on a pending application for adjustment of status under this section may apply on the form specified by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

(i) Travel while an application to adjust status is pending. An applicant who wishes to travel outside the United States while the application is pending must obtain advance permission by filing the application specified by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

* * * * *
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131. In § 245.22, paragraph (c) is revised to read as follows:

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

(c) DHS-issued documentation. An applicant for permanent residence may demonstrate physical presence by submitting DHS-issued (or predecessor agency-issued) documentation such as an arrival-departure form or notice to appear in immigration proceedings.

* * * * *
Start Part

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

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

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

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133. The heading for part 245a is revised as set forth above.

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[Amended]
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134. In § 245a.4, paragraph (b)(16), third sentence is amended by revising the term “§ 103.5a(b) of this Act” to read “

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[Amended]
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135. In § 245a.12, paragraph (b) introductory text, third sentence is amended by revising the term “fingerprinting as prescribed in § 103.2(e) of this chapter” to read “fingerprinting as prescribed in

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[Amended]
Start Amendment Part

136. In § 245a.37, paragraph (b) is amended by revising the term “§ 103.5a of this chapter” to read “

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PART 248—CHANGE OF NONIMMIGRANT CLASSIFICATION

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137. The authority citation for part 248 continues to read as follows:

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Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

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[Amended]
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138. Section 248.1 is amended by:

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a. Revising the term “the Service” to read “USCIS” in paragraph (b) introductory text;

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b. Revising the term “the Service” to read “USCIS” in paragraph (b)(1);

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c. Revising the phrase “The district director or service center director shall” to read “USCIS will” in the second sentence in paragraph (c)(1);

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d. Revising the phrase “The district director or service center director” to read “USCIS” in the last sentence in paragraph (c)(3); and

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e. Removing the phrase “before the Service” in the last sentence in paragraph (c)(3).

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139. Section 248.3 is amended by:

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a. Adding introductory text;

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b. Revising paragraph (a);

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c. Revising paragraph (b);

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d. Revising the phrase “Form I-539 and be accompanied by a Form I-566, completed and endorsed in accordance with the instructions on that form” to read “the prescribed application accompanied by the appropriate endorsement from the Department of State recommending the change of status” in the second sentence in paragraph (c);

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e. Removing and reserving paragraph (d);

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f. Revising the term “sections 101(a)(15)(E), (H), (I), (J), (L), or (Q)(ii) of the Act” to read “sections 101(a)(15)(E), (H), (I), (J), or (L) of the Act” in paragraph (e)(2);

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g. Revising the term “the district director” to read “USCIS” in the last sentence in paragraph (f); and

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h. Revising the phrase “Form I-539, Application to Extend/Change Nonimmigrant Status, with the appropriate fee, and Form I-854, Inter-Agency Alien Witness and Informant Record, with attachments” to read “the forms designated by USCIS with the fee prescribed in

End Amendment Part

The revisions read as follows:

Petition and application.

Requests for a change of status must be filed on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b) and in accordance with the form instructions.

(a) Petition by employer. An employer must submit a petition for a change of status to E-1 treaty trader, E-2 treaty investor, H-1C, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN nonimmigrant.

(b) Application by nonimmigrant. (1) Individual applicant. Any nonimmigrant who seeks to change status to:

(i) A dependent nonimmigrant classification as the spouse or child of Start Printed Page 53795a principal whose nonimmigrant classification is listed in paragraph (a) of this section, or

(ii) Any other nonimmigrant classification not listed in paragraph (a) of this section must apply for a change of status on his or her own behalf.

(2) Multiple applicants. More than one person may be included in an application where the co-applicants are all members of a single family group and either all hold the same nonimmigrant status or one holds a nonimmigrant status and the co-applicants are his or her spouse and/or children who hold derivative nonimmigrant status based on the principal's nonimmigrant status.

* * * * *
Start Part

PART 264—REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED STATES

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140. The authority citation for part 264 continues to read as follows:

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Authority: 8 U.S.C. 1103, 1201, 1201a, 1301-1305; 8 CFR part 2.

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141. Section 264.1 is amended by:

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a. Removing the entry for Form “I-485A” from the table in paragraph (a);

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b. Removing the entries for Forms “I-688”, “I-688A” and “I-688B” from the table in paragraph (b);

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c. Adding the entries for “Form I-862” and “Form I-863” in proper numerical sequence in the table in paragraph (b);

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d. Revising paragraph (c);

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e. Revising the term “Service” to read “USCIS” in paragraph (d);

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f. Revising paragraph (g); and

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g. Removing paragraphs (h) and (i).

End Amendment Part

The revisions read as follows:

Registration and fingerprinting.
* * * * *

(b) * * *

Form No. and Class

* * * * *

Form I-862, Notice to Appear—Aliens against whom removal proceedings are being instituted.

Form I-863, Notice of Referral to Immigration Judge—Aliens against whom removal proceedings are being instituted.

* * * * *

(c) Replacement of alien registration. Any alien whose registration document is not available for any reason must immediately apply for a replacement document in the manner prescribed by USCIS.

* * * * *

(g) Registration and fingerprinting of children who reach age 14. Within 30 days after reaching the age of 14, any alien in the United States not exempt from alien registration under the Act and this chapter must apply for registration and fingerprinting, unless fingerprinting is waived under paragraph (e) of this section, in accordance with applicable form instructions.

(1) Permanent residents. If such alien is a lawful permanent resident of the United States and is temporarily absent from the United States when he reaches the age of 14, he must apply for registration and provide a photograph within 30 days of his or her return to the United States in accordance with applicable form instructions. The alien, if a lawful permanent resident of the United States, must surrender any prior evidence of alien registration. USCIS will issue the alien new evidence of alien registration.

(2) Others. In the case of an alien who is not a lawful permanent resident, the alien's previously issued registration document will be noted to show that he or she has been registered and the date of registration.

[Amended]
Start Amendment Part

142. In § 264.2, paragraph (d) is amended by revising the term “be fingerprinted on Form FD-258, Applicant Card, as prescribed in § 103.2(e) of this chapter” to read “be fingerprinted as prescribed in

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143. Section 264.5 is amended by:

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a. Revising paragraph (a);

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b. Revising the term “Form I-90” to read “the designated form” wherever the term appears in paragraphs (c)(1) and (2);

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c. Revising paragraph (d) introductory text;

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d. Revising paragraph (e);

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e. Revising paragraph (g) and by

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f. Adding paragraphs (h) and (i).

End Amendment Part

The revisions read as follows:

Application for replacement Permanent Resident Card.

(a) Filing instructions. A request to replace a Permanent Resident Card must be filed in accordance with the appropriate form instructions and with the fee specified in 8 CFR 103.7(b)(1); except that no fee is required for an application filed pursuant to paragraphs (b)(7) through (9) of this section, or paragraphs (d)(2) or (4) of this section.

* * * * *

(d) Conditional permanent residents required to file. A conditional permanent resident whose card is expiring may apply to have the conditions on residence removed in accordance with 8 CFR 216.4 or 8 CFR 216.6. A conditional resident who seeks to replace a permanent resident card that is not expiring within 90 days may apply for a replacement card on the form prescribed by USCIS:

* * * * *

(e) Supporting documentation. (1) The prior Permanent Resident Card must be surrendered to USCIS if a new card is being requested in accordance with paragraphs (b)(2) through (5) and (b)(8) and (9) of this section.

(2) A request to replace a Permanent Resident Card filed pursuant to paragraph (b)(4) of this section must include evidence of the name change such as a court order or marriage certificate.

(3) A request to replace a Permanent Resident Card in order to change any other biographic data on the card must include documentary evidence verifying the new data.

* * * * *

(g) Eligibility for evidence of permanent residence while in deportation, exclusion, or removal proceedings. A person in deportation, exclusion, or removal proceedings is entitled to evidence of permanent resident status until ordered excluded, deported, or removed. USCIS will issue such evidence in the form of a temporary permanent resident document that will remain valid until the proceedings are concluded. Issuance of evidence of permanent residence to an alien who had permanent resident status when the proceedings commenced shall not affect those proceedings.

(h) Temporary evidence of registration. USCIS may issue temporary evidence of registration and lawful permanent resident status to a lawful permanent resident alien who is departing temporarily from the United States and has applied for issuance of a replacement permanent resident card if USCIS is unable to issue and deliver such card prior to the alien's contemplated return to the United States. The alien must surrender such temporary evidence upon receipt of his or her permanent resident card.

(i) Waiver of requirements. USCIS may waive the photograph, in person filing, and fingerprinting requirements of this section in cases of confinement due to advanced age or physical infirmity.

Start Amendment Part

144. Section 264.6 is revised to read as follows:

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Application for a nonimmigrant arrival-departure record.

(a) Eligibility. USCIS may issue a new or replacement arrival-departure record to a nonimmigrant who seeks:Start Printed Page 53796

(1) To replace a lost or stolen record;

(2) To replace a mutilated record; or

(3) Was not issued an arrival-departure record pursuant to 8 CFR 235.1(h)(1)(i), (iii), (iv), (v), or (vi) when last admitted as a nonimmigrant, and has not since been issued such record but now requires one.

(b) Application. A nonimmigrant may request issuance or replacement of a nonimmigrant arrival-departure record by applying on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions.

(c) Processing. A pending application filed under paragraph (a) of this section is temporary evidence of registration. If the application is approved, USCIS will issue an arrival-departure document. There is no appeal from the denial of this application.

Start Part

PART 265—NOTICES OF ADDRESS

End Part Start Amendment Part

145. The authority citation for part 265 is revised to read as follows:

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Authority: 8 U.S.C. 1103 and 1305.

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146. Section 265.1 is revised to read as follows:

End Amendment Part
Reporting change of address.

Except for those exempted by section 263(b) of the Act, all aliens in the United States required to register under section 262 of the Act must report each change of address and new address within 10 days of such change in accordance with instructions provided by USCIS.

Start Part

PART 270—PENALTIES FOR DOCUMENT FRAUD

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147. The authority citation for part 270 continues to read as follows:

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Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

End Authority
[Amended]
Start Amendment Part

148. Section 270.2 is amended by revising the term “§ 103.5a(a)(2) of this chapter” to read “

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a. Paragraph (d) and

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b. Paragraph (i).

End Amendment Part Start Part

PART 274a—CONTROL OF EMPLOYMENT OF ALIENS

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149. The authority citation for part 274a continues to read as follows:

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Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

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150. Section 274a.12 is amended by:

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a. Revising the term “BCIS” to read “USCIS” wherever that term appears in paragraph (a)(5);

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b. Revising paragraph (b)(6)(iv);

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c. Revising the term “BCIS” to read “USCIS” in paragraph (c) introductory text;

End Amendment Part Start Amendment Part

d. Revising paragraph (c)(1);

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e. Revising paragraph (c)(4); and

End Amendment Part Start Amendment Part

f. Removing and reserving paragraph (c)(23).

End Amendment Part

The revisions read as follows:

Classes of aliens authorized to accept employment.
* * * * *

(b) * * *

(6) * * *

(iv) An employment authorization document under paragraph (c)(3)(i)(C) of this section based on a 17-month STEM Optional Practical Training extension, and whose timely filed employment authorization request is pending and employment authorization issued under paragraph (c)(3)(i)(B) of this section has expired. Employment is authorized beginning on the expiration date of the authorization issued under paragraph (c)(3)(i)(B) of this section and ending on the date of USCIS' written decision on the current employment authorization request, but not to exceed 180 days; or

* * * * *

(c) * * *

(1) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (A-1 or A-2) pursuant to 8 CFR 214.2(a)(2) and who presents an endorsement from an authorized representative of the Department of State;

* * * * *

(4) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (G-1, G-3 or G-4) pursuant to 8 CFR 214.2(g) and who presents an endorsement from an authorized representative of the Department of State;

* * * * *
Start Amendment Part

151. Section 274a.13 is amended by:

End Amendment Part Start Amendment Part

a. Revising paragraph (a);

End Amendment Part Start Amendment Part

b. Removing the term “INS” in paragraph (b); and

End Amendment Part Start Amendment Part

c. Revising paragraph (d).

End Amendment Part

The revision reads as follows:

Application for employment authorization.

(a) Application. Aliens authorized to be employed under sections 274a.12(a)(3), (4), (6) through (8), (a)(10) through (15), and (a)(20) must file an application in order to obtain documentation evidencing this fact.

(1) Aliens who may apply for employment authorization under 8 CFR 274a.12(c), except for those who may apply under 8 CFR 274a.12(c)(8), must apply on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions. The approval of applications filed under 8 CFR 274a.12(c), except for 8 CFR 274a.12(c)(8), are within the discretion of USCIS. Where economic necessity has been identified as a factor, the alien must provide information regarding his or her assets, income, and expenses.

(2) An initial employment authorization request for asylum applicants under 8 CFR 274a.12(c)(8) must be filed on the form designated by USCIS in accordance with the form instructions. The applicant also must submit a copy of the underlying application for asylum or withholding of deportation, together with evidence that the application has been filed in accordance with 8 CFR 208.3 and 208.4. An application for an initial employment authorization or for a renewal of employment authorization filed in relation to a pending claim for asylum shall be adjudicated in accordance with 8 CFR 208.7. An application for renewal or replacement of employment authorization submitted in relation to a pending claim for asylum, as provided in 8 CFR 208.7, must be filed, with fee or application for waiver of such fee.

* * * * *

(d) Interim employment authorization. USCIS will adjudicate the application within 90 days from the date of receipt of the application, except in the case of an initial application for employment authorization under 8 CFR 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and 8 CFR 274a.12(c)(9) in so far as it is governed by