[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Rules and Regulations]
[Pages 19100-19107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7228]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 204, 214, 245, 245a
[CIS No. 2287-03]
RIN 1615-AB13
Removal of the Standardized Request for Evidence Processing
Timeframe
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: This rule amends Department of Homeland Security regulations
to provide flexibility to U.S. Citizenship and Immigration Services in
setting the time allowed to applicants and petitioners to respond to a
Request for Evidence or to a Notice of Intent to Deny. This rule also
describes the circumstances under which U.S. Citizenship and
Immigration Services will issue a Request for Evidence or Notice of
Intent to Deny before denying an application or petition, but United
States Citizenship and Immigration Services will continue generally to
provide petitioners and applicants with the opportunity to review and
rebut derogatory information of which he or she is unaware. This rule
also clarifies when petitioners and applicants may submit copies of
documents in lieu of originals.
In addition to these changes, this rule removes obsolete references
to legacy agencies, and it removes obsolete language relating to
certain legalization and agricultural worker programs.
DATES: This final rule is effective June 18, 2007.
FOR FURTHER INFORMATION CONTACT: Rodger Pitcairn, Program and
Regulations Development, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite
3000, Washington, DC 20529, telephone (202) 272-8427.
SUPPLEMENTARY INFORMATION:
I. Background
II. Comments Received in Response to the Proposed Rule
A. Standards and Timeframes for RFE and NOID Responses
B. Not Issuing at Least One RFE; Making Decisions on the Record
C. Uniform Application of the ``Preponderance of Evidence''
Standard
D. Relationship to Premium Processing Regulations
E. Substitution of Form DS-2019; Submitting Copies
F. Application of the Rule
G. Use of the Term ``Biometrics Capture''
H. Technical Correction to Final Rule
III. Statutory and Regulatory Reviews
I. Background
An applicant or petitioner seeking immigration benefits from U.S.
Citizenship and Immigration Services (USCIS) must establish eligibility
for such benefits. 8 CFR 103.2(b)(1). A Request for Evidence (RFE) is a
notice issued by USCIS to an applicant or petitioner seeking
immigration benefits requesting initial or additional evidence to
establish eligibility. Id., 103.2(b)(8). Currently, USCIS must issue an
RFE when evidence is missing from an application or petition. Id. In
addition, USCIS must provide twelve weeks for an applicant or
petitioner to respond to an RFE. Id.
A Notice of Intent to Deny (NOID) is a written notice issued by
USCIS to an applicant or petitioner that USCIS has made a preliminary
decision to deny the application or petition. A NOID may be based on
evidence of ineligibility or on derogatory information known to USCIS,
but not known to the petitioner or applicant. USCIS cannot, however,
issue a NOID based on missing initial evidence if an RFE has not first
been issued. The NOID provides the applicant or petitioner with an
opportunity to inspect and rebut the evidence forming the basis of the
decision to deny the petition or application. An applicant or
petitioner usually is provided thirty days to respond to the evidence.
On November 30, 2004, USCIS published a proposed rule to remove
absolute requirements for, and fixed times to respond to, RFEs and
NOIDs. 69 FR 69549. USCIS received thirteen comments from individuals,
community-based groups that assist nonimmigrants and immigrants pursue
applicants for benefits, law firms, and a national association
representing immigration attorneys. This final rule adopts the proposed
rule with minor changes as discussed below.
II. Comments Received in Response to the Proposed Rule
This final rule addresses requirements that are procedural in
nature and does not alter the substantive rights of applicants or
petitioners for immigration benefits. This final rule, therefore, is
exempt from notice and comment requirements under 5 U.S.C. 553(b)(A),
and could have been promulgated without public notice and comment.
USCIS' decision to promulgate a proposed rule does not alter the
authority to promulgate this rule as a final rule. For example, the
proposed rule contained a presumptive thirty-day minimum time frame for
responses, but, after considering the
[[Page 19101]]
comments and the further development of the program, this final rule
does not include a specific presumptive minimum time frame for
responses. See Hurson Assoc. Inc., v. Glickman, 229 F.3d 277 (D.C. Cir.
2000) (rule eliminating face-to-face process in agency review of
requests for approval was procedural and not subject to notice-and-
comment rulemaking); JEM Broadcasting v. FCC, 22 F.3d 320 (D.C. Cir.
1994) (challenge to the ``hard look'' rules is untimely; elimination of
opportunity to correct errors in application was procedural rule not
subject to notice and comment); see also Public Citizen v. Department
of State, 276 F.3d 634 (D.C. Cir. 2002) (cut-off policy was procedural
and exempt from notice and comment provisions). USCIS, however, values
public comment on the proposed timeframes for RFEs and NOIDs and
accordingly solicited public comment on the proposed rule. The comments
provided to USCIS have been valuable in considering the changes
promulgated in this final rule and are discussed below.
A. Standards and Timeframes for RFE and NOID Responses
In the proposed rule, USCIS suggested eliminating the current
twelve-week standard timeframe for all applicants and petitioners to
respond to an RFE in favor of a more flexible approach that would
tailor the timeframes to the evidence requested and circumstances. The
proposed rule would have set a new minimum response window of
``generally no less than 30-day[s].'' The proposed rule would have made
similar changes for responding to the NOID. USCIS asked for comments on
specific timeframes for various kinds of applications and petitions and
evidence.
No commenters suggested specific timeframes for each circumstance
and case type, but two commenters suggested expanding the current
twelve-week standard to give applicants and petitioners sixteen weeks
to respond for cases involving asylum claimants and refugees. Another
commenter suggested a general sixty-day timeframe for NOIDs. USCIS did
not propose to extend the current twelve-week maximum, and will not do
so in its final rule. The flexible timeframes will apply to all
applicants and petitioners to whom RFEs are issued.
Several commenters focused on the proposed shift from a twelve-week
standard for responding to all RFEs to flexible timeframes. Five
pointed to the fact that the Department of Labor (DOL) has fixed
timeframes for responding to their RFEs. USCIS evaluates petitions and
applications in a far wider variety of contexts than DOL and for a far
broader array of benefits and services. This fact requires greater
processing flexibility. Accordingly, USCIS declines to adopt the
standards used by DOL.
Two commenters recommended that the current twelve-week RFE
response period remain a standard because it is a predictable baseline.
One also pointed out that the twelve-week standard actually gives a
degree of flexibility because applicants and petitioners can choose to
respond more quickly, often in far less than twelve weeks.
Some commenters focused on the proposed minimum response time. One
objected to the idea that USCIS would ``generally'' give not less than
thirty days to respond, and suggested an actual thirty-day minimum.
Eight commenters considered thirty days to be too short. Several
commenters pointed out that it can take more than thirty days to get
certified copies of tax returns from the Internal Revenue Service
(IRS). Five commenters noted that it is often difficult to obtain
documents from foreign countries. Several pointed specifically to
problems refugees and asylum claimants can experience getting documents
from the country from which they fled. One commenter suggested that
providing a minimum of 45 days to respond would be unreasonable for
most applicants and petitioners.
USCIS recognizes the value of a predictable timeframe for
responding to an RFE or NOID, and did not intend to make this an
unpredictable, discretionary process with timeframes determined by
individual adjudication officers. USCIS will set clear timeframes and
standards for submission of different kinds of evidence in different
circumstances. This rulemaking was designed to give USCIS flexibility
to set the timeframes for responding to RFEs as a matter of agency
practice and procedure and to more specifically set a reasonable time
based upon the nature of the information requested. The timeframes
would be set out in internal guidance to adjudicators. As many
practitioners are aware, this guidance is, as a general matter,
publicly disclosed. At this time, USCIS foresees no reason why this
guidance would not be publicly disclosed after it is developed or
whenever it is adjusted.
Important processing steps (such as background checks) may need to
be repeated if processing extends beyond certain timeframes. Repeating
these steps would significantly delay an eventual acquisition of a
benefit. Longer timeframes can actually work against a timely response
because applicants and petitioners given almost three months to respond
may delay responding simply because they consider that additional time
in the United States to be a benefit.
Recognizing that the majority of applications and petitions are
eventually approved, USCIS does not want to arbitrarily restrict a
reasonable opportunity to submit material to prove eligibility. USCIS
recognizes that documents from certain countries other than the United
States are occasionally difficult to obtain; thus, the timeframe
flexibility will take into account these situations. Nevertheless, most
applicants and petitioners can provide required documents in fewer than
twelve weeks. USCIS also provides information explaining how to acquire
benefits through many sources such as the agency's Web site,
application forms, call centers, brochures, and field offices.
Applicants and petitioners can easily follow the instructions provided
by these resources and obtain all required documents before filing for
immigration benefits. Applicants and petitioners who submit completed
applications or petitions will minimize the need for RFE and facilitate
faster decision by USCIS. CIS has found that in some cases, the
standard twelve week timeframe serves to encourage applicants or
petitioners to submit incomplete applications or petitions, relying on
the RFE process to prompt them to submit the missing documents. The RFE
process and the ensuing delays slows down the processing. Certain
applicants and petitioners are also exploiting the RFE process to
deliberately delay the processing and thus prolong their stay in the
United States. A flexible RFE timeframe will therefore encourage the
applicants and petitioners to file complete applications and petitions
because they risk missing the timeframe and be denied the benefits
sought to do otherwise.
USCIS continues to believe a more flexible standard is necessary
and appropriate to improve adjudication processes, USCIS services, and
the administration and enforcement of immigration laws. The final rule
maintains the current twelve-week standard as a ceiling on the response
time to be provided, and sets a maximum of thirty days to respond to a
NOID. USCIS intends to issue policy guidance setting clear standards
for when a timeframe less than these maximums will be afforded prior to
the effective date of the rule.
With respect to minimum timeframes, the commenters' concerns should
be allayed in part by the fact the final rule does not, as one
commenter feared, let individual adjudicators determine when to offer
less than thirty days to respond to a NOID and how long to give in such
[[Page 19102]]
instances. Further, USCIS' goal is to establish a single set of
guidelines and standards that will cover not only requests by mail, but
also requests for materials made by USCIS during an interview. When
information is requested during an interview, the individual USCIS
offices now set timelines for the submission of missing or required
evidence, often providing less than thirty days for the applicant or
petitioner to respond. This shorter response time has been very
effective both for the agency and for applicants and petitioners. To
ensure that USCIS uses consistent standards across the board, the final
rule removes the proposed thirty-day guideline in favor of the more
specific timelines USCIS will set in its field guidance.
Some of the timeframes mentioned by the commenters are not
accurate. For example, the IRS may take up to sixty calendar days to
process a request for an exact copy of a previously filed and processed
tax return. IRS Form 4506 (revised April 2006). The fee for an exact
copy of a previously filed and processed tax return at the present time
is $39. The IRS can, however, provide a transcript of the processed
return within ten business days, currently at no charge. IRS Form 4506T
(revised April 2006). Thus, USCIS acknowledges that it can take more
than thirty days for applicants or petitioners to obtain certified
copies of processed tax returns. However, USCIS permits applicants or
petitioners to submit transcripts of processed tax returns; therefore,
USCIS believes that applicants and petitioners will be able to submit
transcripts of processed tax returns even if response times to RFEs or
NOIDs are as short as thirty days.
USCIS also recognizes the variety of times required to respond to a
document request. A copy of a State driver's license may easily be
provided within ten days, while a standard foreign government document,
such as a current passport that is certified by the issuing government,
may require a longer timeframe. None of these timeframes, however,
restrict the applicant's or petitioner's ability to file all of the
obviously necessary and relevant documents with the original
application.
Several commenters who argued in favor of retaining the twelve-week
standard opportunity to respond to an RFE also asserted that USCIS
should create a new process allowing extension of the twelve-week
response for any good cause. Several other commenters suggested such a
new continuance process should be put in place if USCIS reduces the
current twelve-week standard. One of these commenters stated the agency
should consider an extension of up to thirty days where foreign
documents are to be submitted. Another posited that adjudicators should
have the discretion to set longer response times.
The current twelve-week standard as a maximum limit has proven
effective and efficient to USCIS and its applicants and petitioners.
This twelve-week maximum will remain the standard response timeframe in
many instances. Creating a new process to seek continuances to submit
evidence where the twelve-week cycle remains unchanged or where USCIS
sets shorter response times based on the evidence requested and
circumstances would defeat the purpose of increasing the efficiency and
responsiveness of case processing. Such a process would also often
result in aliens being allowed to remain in the United States for
lengthy periods while they try to acquire evidence that should have
been filed with their application or that is necessary to establishing
their eligibility for the benefit sought. Accordingly, USCIS declines
to adopt any additional procedures.
B. Not Issuing at Least One RFE; Making Decisions on the Record
Ten commenters suggested the proposed regulation would not increase
efficiency. Four suggested that USCIS would use the rule as an
inappropriate tool to reduce its backlog. Three pointed out the
positive aspects of the current RFE process and the opportunity it
creates to emphasize evidence already in the record that the
adjudicator may not have fully considered, to clear up
misunderstandings, and to clarify issues and facts. One commenter
suggested that at least unrepresented applicants and petitioners should
always be given an opportunity to correct problems through the RFE
process. Others recommended that the rule mandate at least one RFE
where there is any type of deficiency.
USCIS agrees that the RFE and NOID procedures play valuable roles.
However, there is no need for an RFE or NOID process if the evidence
initially submitted is sufficient to make a decision of either
eligibility or ineligibility. The applicant or petitioner is
responsible for providing evidence sufficient for USCIS to adjudicate
the application or petition. 8 CFR 103.2(b)(1). USCIS is not
responsible for advising the applicant or petitioner of the evidence
that the applicant or petitioner should submit with each particular
case beyond providing general filing guidance via form instructions and
regulations.
Several commenters focused on the proposed change that would allow
denial of applications and petitions filed without the required initial
evidence instead of sending an RFE. One commenter pointed out
similarities to a previously proposed rule. 56 FR 61201 (Dec. 2, 1991).
The commenter further noted that the previous rulemaking resulted in
the current RFE process that USCIS now seeks to amend. 59 FR 1455
(January 11, 1994).
USCIS recognizes this similarity. When the proposed rule was issued
in 1991, the application and petition forms frequently did not clearly
identify the evidence required to be filed. In response to comments
received in connection with the 1991 proposed rule regarding the forms,
the final rule did not contain the automatic denial process.
Since the 1991 proposed rule, INS and now USCIS have revised the
immigration benefit forms and instructions to list the initial evidence
that applicants or petitioners need to file. The forms, with
instructions in a growing number of languages, are available on paper
and on USCIS' Web site. Given that the forms provide complete
information regarding evidentiary requirements, USCIS believes that the
twelve-week standard RFE requirement for missing initial evidence is
obsolete and filings should be complete at the beginning of the
process.
Recognizing the concern expressed, however, USCIS currently intends
to limit the application of its discretionary authority to deny an
application or petition for lack of initial evidence without an RFE to
cases that are filed with little more than a signature and the proper
fee, and therefore are substantially incomplete or where the applicant
or petitioner has failed to demonstrate a basis for eligibility for the
benefit sought (e.g. an application for adjustment of status as an
immediate relative), where no information or evidence of a covered
relationship is provided. These skeletal applications, or applications
that are filed alleging eligibility for a benefit based upon having
filed a separate benefit application which has since been denied or of
which USCIS has no record, clearly do not establish eligibility. DHS
wishes to make clear that an applicant or petitioner is responsible for
demonstrating eligibility for the benefit sought and that clearly
deficient applications or petitions will not be permitted. As with
RFEs, USCIS intends to issue additional internal
[[Page 19103]]
guidance through policy memoranda, including a stipulated timeframe for
responding to an RFE based on missing initial evidence. In such a case,
even within the context of continuing an opportunity to respond to an
RFE, giving a second opportunity to provide evidence need not result in
deferring case processing for a full twelve weeks.
Eight commenters expressed concerns that inexperienced staff given
added discretion might make too many errors; be unaware of relevant
business practices, regulations and law; and write RFEs with excessive
boilerplate requests for unnecessary evidence. One commenter objected
to the idea that USCIS would deny cases simply because an applicant or
petitioner did not submit every piece of evidence requested in an RFE,
pointing out that the current regulations lets applicants and
petitioners request a decision on the record. Conversely, another
commenter suggested that the proposed rule at 8 CFR 103.2(b)(13)(i)
would remove explicit USCIS authority to summarily deny a case as
abandoned for failure to submit initial and additional requested
evidence by a required date. Therefore, the commenter requested that
USCIS reinstate that explicit authority under 8 CFR 103.2(b)(13)(i).
The final rule retains the current process for requesting a
decision on the record. If an applicant or petitioner requests a
decision on the record, USCIS will decide the case based on the record.
This process has been in effect for more than a decade. The process
struck a careful balance between giving a controlled process for
requesting evidence and giving applicants and petitioners the
opportunity to object and ask for a decision on the record. This
balance is also essential to ensuring that the adjudicator will be able
to deny the application or petition on the record, if additional
evidence is needed, but the requested evidence is not received. An
applicant's or petitioner's failure to respond to an RFE can close off
a material line of inquiry or can effectively stop further processing
towards granting an application or petition, and may be considered a
factor in evaluating whether an applicant or petitioner has proven
eligibility for the benefit sought. This final rule incorporates this
concept and also clarifies USCIS' authority to summarily deny a case as
abandoned for failure to reply to an RFE or a NOID by a required date.
The final rule also allows USCIS to deny an application or petition if
the applicant or petitioner fails to provide requested materials, such
as photographs, necessary to complete processing and issuing resultant
documentation.
One commenter thought that this rule would unfairly burden
applicants and petitioners due to the ``failure to appear'' provisions
in 8 CFR 103.2(b)(13). To avoid this result, USCIS has modified the
final rule. The rule now allows for exceptions where there is evidence,
such as a prompt change of address or rescheduling request, that the
agency concludes warrants excusing the failure to appear.
Several commenters expressed concern with the proposed elimination
of 8 CFR 245.18(i), which requires USCIS to issue a NOID to a physician
who does not ``comply with the requirements of paragraphs (f) and
(g).'' After further analysis, the final rule retains the provision and
simply removes the timeframes for the applicant's or petitioner's
response to the NOID in favor of the timeframes USCIS will set for RFEs
and NOIDs.
Another commenter highlighted that NOIDs are currently required by
regulation to provide the benefit seeker with an opportunity to know
and address otherwise unknown adverse information on which a decision
is to be made. This final rule maintains the general requirement for a
NOID prior to any denial based upon derogatory information of which the
petitioner or applicant is unaware. 8 CFR 103.2(b)(16)(i).
C. Uniform Application of the `Preponderance of Evidence' Standard
One commenter approved of the ``preponderance of the evidence''
standard as proposed at 8 CFR 103.2(b)(8)(i). The commenter, however,
objected to the proposed language in 8 CFR 103.2(b)(8)(ii), which
allows USCIS to deny an application or petition, request more evidence,
or notify the applicant or petitioner of its intent to deny if the
``evidence submitted does not fully establish eligibility.'' The
commenter stated,
[c]onflating the preponderance standard with a ``full
eligibility'' standard merges two irreconcilable concepts, unless it
is clear that a preponderance of the evidence does, indeed,
establish full eligibility. The regulation would be more acceptable
if the language were changed to delete the ``fully establish
eligibility'' language, and if language were added to state that the
only cases that may be denied without an RFE are ones in which there
is clear evidence of ineligibility.
(Emphases in original).
In response to these comments, USCIS has modified 8 CFR
103.2(b)(8)(i) to remove the phrase, ``the preponderance of'' and to
modify 8 CFR 103.2(b)(8)(ii) to remove the word ``fully.'' USCIS is
implementing these modifications because it believes that it would be
inappropriate to apply a single standard in 8 CFR 103.2(b)(8)(i) and
(ii) to all USCIS adjudications. Furthermore, these modifications
clarify that adjudications can involve different evidentiary standards
or burdens. Under current regulations, some applications or petitions
must demonstrate a preponderance of the evidence, while other
applications or petitions require clear and convincing evidence, to
establish eligibility.
D. Relationship to Premium Processing Regulations
One commenter asserted that if applied to premium processing
requests, the proposed rule would contravene the existing premium
processing service regulations at 8 CFR 103.2(f). In making this
statement, the commenter interpreted the current premium processing
regulations to require USCIS to issue an RFE or NOID before denying any
application or petition for which premium processing services have been
requested. USCIS appreciates this comment and, to clarify the
applicability of this regulation, 8 CFR 103.2(f) has been modified to
include ``denial'' in the list of appropriate actions.
E. Substitution of Form DS-2019; Submitting Copies
One commenter noted that the proposed rule at 8 CFR 103.2(b)(4)
refers to the obsolete Form IAP-66, and suggesting the reference be
updated to the DS-2019 which replaced the IAP-66. This correction has
been incorporated in the final rule.
The same commenter also requested that applicants be permitted to
submit a copy of DS-2019 rather than the original, and suggested
clarification with respect to when originals must be filed. The final
rule clarifies that although copies of other documents may be
submitted, those designed or produced for the purpose of evidence with
a USCIS application, such as the DS-2019, must be submitted in the
original.
As a general rule, applicants and petitioners should be allowed to
keep originals unless the originals are required by regulation to be
submitted. If there is reason to question the authenticity of the
original document for which a photocopy has been submitted, USCIS may
then request the original document. In cases where an applicant or a
petitioner submits original documents when not required, due to the
cost involved in returning
[[Page 19104]]
such documents as a matter of course, USCIS will retain the documents
and make them part of the record. In such cases, applicants or
petitioners who wish to have their original documents returned to them
may submit a written request to the office that originally requested
the records.
F. Application of the Rule
USCIS' ability to issue shorter RFE and NOID response times will
apply to any RFE or NOID issued on or after the effective date of this
rule even if the application or petition was filed before the effective
date of this regulation. USCIS' discretion to deny cases for lack of
required initial evidence without first issuing an RFE, however, will
only extend to petitions and applications that are filed on or after
the effective date of this regulation.
G. Use of the Term ``Biometrics Capture''
USCIS received no comments concerning the use of the term
``biometrics capture,'' rather than ``fingerprinting'' in section
103.2(b)(13)(ii) of the proposed rule. USCIS believes, however, that an
explanation of why that term has been adopted in the final would be
beneficial to the public. While the term, ``biometrics capture''
includes fingerprints, it is in fact meant to be a more inclusive term.
Biometrics capture can include such things as the capture of a digital
photograph or a digital signature. As technology evolves and data
collection requirements change, USCIS may change the biometrics
information it collects or the methods used for such collection. Any
changes made to the capture of biometrics will be reflected in the
instructions of the affected form type and/or request for appearance
for biometrics capture.
H. Technical Correction to the Final Rule
Amendment 3.a. of the proposed rule revised the terms ``the
Service'' or ``Service'' to read ``USCIS'' wherever they appeared in
certain subparagraphs of section 103.2. On May 23, 2006, USCIS
published an interim final rule in the Federal Register which, among
other things, changed any reference to ``the Service'' to read
``USCIS'' in section 103.2.(f)(2). 71 FR 29571. Accordingly, the
proposed revision to section 103.2(f)(2) is no longer necessary and has
been withdrawn from the final rule.
III. Regulatory Requirements
A. Regulatory Flexibility Act
DHS has reviewed this rule in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, DHS certifies
that this rule will not have a significant economic impact on a
substantial number of small entities.
Although some petitions may be submitted by small entities, namely
United States employers seeking nonimmigrant or immigrant labor, this
rule is intended to be more flexible in setting time limits for RFEs or
NOIDs, thereby reducing the timeframe for adjudicating these petitions
without imposing costs on the entities. USCIS recognizes that this
change may have a small impact on small business practices or
productivity due to the change in timeframes for responses to RFEs or
NOIDS. However, USCIS believes that these changes ultimately will
benefit affected small businesses, namely because the reduction in
adjudication timeframes will allow United States employers to receive
the benefit sought at an earlier date (i.e. the ability to hire
temporary or permanent foreign employees).
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 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 5 U.S.C. 804. 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 Order 12866
DHS considers this rule to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, it was submitted to the Office of Management and
Budget for review.
DHS has assessed both the costs and the benefits associated with
this final rule. There are minimal costs to USCIS associated with
instructing adjudicators about the options for dealing with deficient
applications and petitions. Instructions may take the form of policy
memoranda, amendments to the Adjudicator's Field Manual, or local
office training modules. USCIS estimates that any costs will be
absorbed in the current program general expenses that cover issuing
instructions and training.
There are a number of benefits to both USCIS and the public. USCIS
will reduce the number of RFEs and NOIDs and the cycle time for
responses to such notices, thereby reducing the pending backlog of
cases. The public will receive fewer and more specific RFE or NOID
notices, and will benefit from more timely approval of applications and
petitions.
The cost to the public is minimal. Currently, if an RFE or NOID is
issued, the applicant incurs the cost of burden hours to comply with
the RFE and the cost of resubmitting the response. The procedure
remains generally the same, though the processing flow and decision
points have changed to improve overall adjudication efficiency.
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, DHS has 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
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) 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 or recordkeeping
requirements inherent in a rule. This rule does not impose any new
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
[[Page 19105]]
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements.
8 CFR Part 245
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 245a
Aliens, Immigration, Reporting and recordkeeping requirements.
0
Accordingly, Chapter I of Title 8 of the Code of Federal Regulations is
proposed to be amended as follows:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166;
8 CFR part 2.
0
2. Section 103.2 is amended by:
0
a. Revising the term ``INS office or Service Center'' to read ``USCIS
office'' in paragraph (a)(6);
0
b. Revising the term ``Service Center'' to read ``service center''
wherever that term appears in the last sentence of paragraph (a)(7)(i);
0
c. Revising paragraph (b)(1);
0
d. Revising paragraph (b)(4);
0
e. Revising paragraph (b)(5);
0
f. Revising paragraph (b)(8);
0
g. Revising paragraph (b)(11);
0
h Removing the term ``initial'' in paragraph (b)(12), first sentence;
0
i. Revising paragraph (b)(13);
0
j. Revising term ``regional commissioner'' to read ``USCIS Director or
his or her designee'' in paragraph (b)(16)(iii);
0
k. Revising the term ``regional commissioner'' to read ``USCIS Director
or his or her designee'' in the second sentence, and the term
``regional commissioner's'' to read ``USCIS Director's or his or her
designee's'' in the third sentence in paragraph (b)(16)(iv);
0
l. Revising paragraph (b)(17);
0
m. Removing and reserving paragraphs (c) and (d);
0
n. Revising paragraph (f)(1).
The revisions read as follows:
Sec. 103.2 Applications, petitions, and other documents.
* * * * *
(b) * * *
(1) Demonstrating eligibility at time of filing. An applicant or
petitioner must establish that he or she is eligible for the requested
benefit at the time of filing the application or petition. All required
application or petition forms must be properly completed and filed with
any initial evidence required by applicable regulations and/or the
form's instructions. Any evidence submitted in connection with the
application or petition is incorporated into and considered part of the
relating application or petition.
* * * * *
(4) Submitting copies of documents. Application and petition forms,
and documents issued to support an application or petition (such as
labor certifications, Form DS 2019, medical examinations, affidavits,
formal consultations, letters of current employment and other
statements) must be submitted in the original unless previously filed
with USCIS. Official documents issued by the Department or by the
former Immigration and Naturalization Service need not be submitted in
the original unless required by USCIS. Unless otherwise required by the
applicable regulation or form's instructions, a legible photocopy of
any other supporting document may be submitted. Applicants and
petitioners need only submit those original documents necessary to
support the benefit sought. However, original documents submitted when
not required will remain a part of the record.
(5) Request for an original document. USCIS may, at any time,
request submission of an original document for review. The request will
set a deadline for submission of the original document. Failure to
submit the requested original document by the deadline may result in
denial or revocation of the underlying application or benefit. An
original document submitted in response to such a request, when no
longer required by USCIS, will be returned to the petitioner or
applicant upon completion of the adjudication. If USCIS does not return
an original document within a reasonable time after completion of the
adjudication, the petitioner or applicant may request return of the
original document by submitting a properly completed and signed Form G-
884 to the adjudicating USCIS office.
* * * * *
(8) Request for Evidence; Notice of Intent to Deny--(i) Evidence of
eligibility or ineligibility. If the evidence submitted with the
application or petition establishes eligibility, USCIS will approve the
application or petition, except that in any case in which the
applicable statute or regulation makes the approval of a petition or
application a matter entrusted to USCIS discretion, USCIS will approve
the petition or application only if the evidence of record establishes
both eligibility and that the petitioner or applicant warrants a
favorable exercise of discretion. If the record evidence establishes
ineligibility, the application or petition will be denied on that
basis.
(ii) Initial evidence. If all required initial evidence is not
submitted with the application or petition or does not demonstrate
eligibility, USCIS in its discretion may deny the application or
petition for lack of initial evidence or for ineligibility or request
that the missing initial evidence be submitted within a specified
period of time as determined by USCIS.
(iii) Other evidence. If all required initial evidence has been
submitted but the evidence submitted does not establish eligibility,
USCIS may: deny the application or petition for ineligibility; request
more information or evidence from the applicant or petitioner, to be
submitted within a specified period of time as determined by USCIS; or
notify the applicant or petitioner of its intent to deny the
application or petition and the basis for the proposed denial, and
require that the applicant or petitioner submit a response within a
specified period of time as determined by USCIS.
(iv) Process. A request for evidence or notice of intent to deny
will be in writing and will specify the type of evidence required, and
whether initial evidence or additional evidence is required, or the
bases for the proposed denial sufficient to give the applicant or
petitioner adequate notice and sufficient information to respond. The
request for evidence or notice of intent to deny will indicate the
deadline for response, but in no case shall the maximum response period
provided in a request for evidence exceed twelve weeks, nor shall the
maximum response time provided in a notice of intent to deny exceed
thirty days. Additional time to respond
[[Page 19106]]
to a request for evidence or notice of intent to deny may not be
granted.
* * * * *
(11) Responding to a request for evidence or notice of intent to
deny. In response to a request for evidence or a notice of intent to
deny, and within the period afforded for a response, the applicant or
petitioner may: submit a complete response containing all requested
information at any time within the period afforded; submit a partial
response and ask for a decision based on the record; or withdraw the
application or petition. All requested materials must be submitted
together at one time, along with the original USCIS request for
evidence or notice of intent to deny. Submission of only some of the
requested evidence will be considered a request for a decision on the
record.
* * * * *
(13) Effect of failure to respond to a request for evidence or a
notice of intent to deny or to appear for interview or biometrics
capture--(i) Failure to submit evidence or respond to a notice of
intent to deny. If the petitioner or applicant fails to respond to a
request for evidence or to a notice of intent to deny by the required
date, the application or petition may be summarily denied as abandoned,
denied based on the record, or denied for both reasons. If other
requested material necessary to the processing and approval of a case,
such as photographs, are not submitted by the required date, the
application may be summarily denied as abandoned.
(ii) Failure to appear for biometrics capture, interview or other
required in-person process. Except as provided in 8 CFR 335.6, if USCIS
requires an individual to appear for biometrics capture, an interview,
or other required in-person process but the person does not appear, the
application or petition shall be considered abandoned and denied unless
by the appointment time USCIS has received a change of address or
rescheduling request that the agency concludes warrants excusing the
failure to appear.
* * * * *
(17) Verifying claimed permanent resident status--(i) Department
records. The status of an applicant or petitioner who claims that he or
she is a permanent resident of the United States or was formerly a
permanent resident of the United States will be verified from official
Department records. 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 (Form I-
551), Alien Registration Receipt Cards (Form I-151), other registration
receipt forms (Forms AR-3, AR-3a, and AR-103, provided that such forms
were issued or endorsed to show admission for permanent residence),
passports, and reentry permits. An official record of a Department
index card must bear a designated immigrant visa symbol and must have
been prepared by an authorized official of the Department in the course
of processing immigrant admissions or adjustments to permanent resident
status. Other cards, certificates, declarations, permits, and passports
must have been issued or endorsed to show admission for permanent
residence. Except as otherwise provided in 8 CFR part 101, and in the
absence of countervailing evidence, such official records will be
regarded as establishing lawful admission for permanent residence.
(ii) Assisting self-petitioners who are spousal-abuse victims. If a
self-petitioner filing a petition under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is
unable to present primary or secondary evidence of the abuser's status,
USCIS will attempt to electronically verify the abuser's citizenship or
immigration status from information contained in the Department's
automated or computerized records. Other Department records may also be
reviewed at the discretion of the adjudicating officer. If USCIS is
unable to identify a record as relating to the abuser, or the record
does not establish the abuser's immigration or citizenship status, the
self-petition will be adjudicated based on the information submitted by
the self-petitioner.
* * * * *
(c) Reserved.
(d) Reserved.
* * * * *
(f) Requests for Premium Processing Service--(1) Filing
information. A petitioner or applicant requesting Premium Processing
Service shall submit Form I-907 with the appropriate fee to the
Director of the service center having jurisdiction over the application
or petition. Premium Processing Service guarantees 15 calendar day
processing of certain employment-based petitions and applications. The
15 calendar day processing period begins when USCIS receives Form I-
907, with the fee, at the designated address contained in the
instructions to the form. USCIS will refund the fee for Premium
Processing Service, but continue to process the case, unless within 15
calendar days of receiving the application or petition and Form I-907,
USCIS issues and serves on the petitioner or applicant an approval
notice, a denial notice, a notice of intent to deny, a request for
evidence, or opens an investigation relating to the application or
petition for fraud or misrepresentation.
* * * * *
Sec. 103.2 [Amended]
0
3. Section 103.2 is further amended by:
0
a. Revising the terms ``the Service'' or ``Service'' to read ``USCIS''
wherever those terms appear in the following paragraphs:
0
i. Paragraph (a)(7)(i), in the first sentence and the first time it
appears in the last sentence;
0
ii. Paragraph (b)(2)(ii), in the last sentence;
0
iii. Paragraph (b)(2)(iii);
0
iv. Paragraph (b)(3);
0
v. Paragraph (b)(6);
0
vi. Paragraph (b)(7);
0
vii. Paragraph (b)(9), in the introductory text;
0
viii. Paragraph (b)(10);
0
ix. Paragraph (d)(2);
0
x. Paragraph (e)(1);
0
xi. Paragraph (e)(2);
0
xii. Paragraph (e)(3), in the introductory text;
0
xiii. Paragraph (e)(3)(iii);
0
xiv. Paragraph (e)(4)(i);
0
xv. Paragraph (e)(4)(iii), in the introductory text;
0
xvi. Paragraph (e)(4)(iii)(C);
0
xvii. Paragraph (e)(4)(iv), in the second sentence;
0
xviii. Paragraph (f)(3), the first and last time the term appears in
the last sentence;
0
xix. Paragraph (f)(4), the first time the term appears in the first
sentence;
0
xx. Paragraph (f)(4), the first time the term appears in the second
sentence; and
0
xxi. Paragraph (f)(4), in the third sentence.
0
b. Revising the term ``Service's'' to read ``USCIS' '' in the following
paragraphs:
0
i. Paragraph (b)(15);
0
ii. Paragraph (e)(3)(iii); and
0
iii. Paragraph (e)(4)(iii)(C).
PART 204--IMMIGRANT PETITIONS
0
4. The authority citation for part 204 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255, 1641; 8 CFR part 2.
Sec. 204.1 [Amended]
0
5. Section 204.1 is amended by removing paragraph (h).
[[Page 19107]]
Sec. 204.2 [Amended]
0
6. Section 204.2 is amended by:
0
a. Removing paragraph (c)(3)(ii) and by redesignating paragraph
(c)(3)(iii) as (c)(3)(ii);
0
b. Removing paragraph (e)(3)(ii) and by redesignating paragraph
(e)(3)(iii) as (e)(3)(ii).
PART 214--NONIMMIGRANT CLASSES
0
7. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to Executive Order 13323, published January 2, 2004), 1186a, 1187,
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 643, Pub. L.
104-208; 110 Stat. 3009-708; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901, note, and 1931, note, respectively.
Sec. 214.2 [Amended]
0
8. Section 214.2 is amended by:
0
a. Removing paragraph (h)(10)(ii) and by redesignating paragraph
(h)(10)(iii) as (h)(10)(ii);
0
b. Removing paragraph (k)(10)(iii);
0
c. Removing paragraph (l)(8)(i) and by redesignating paragraphs
(l)(8)(ii) and (l)(8)(iii) as (l)(8)(i) and (l)(8)(ii) respectively;
0
d. Revising paragraph (o)(7); and
0
e. Revising paragraph (p)(9).
The revisions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(o) * * *
(7) The petitioner shall be notified of the decision, the reasons
for the denial, and the right to appeal the denial under 8 CFR part
103.
* * * * *
(p) * * *
(9) The petitioner shall be notified of the decision, the reasons
for the denial, and the right to appeal the denial under 8 CFR part
103. There is no appeal from a decision to deny an extension of stay to
the alien or a change of nonimmigrant status.
* * * * *
0
9. Section 214.11 is amended by revising paragraph (k)(2) to read as
follows:
Sec. 214.11 Alien victims of severe forms of trafficking in persons.
* * * * *
(k) * * *
(2) Determination by USCIS. An application for T-1 status under
this section will not be treated as a bona fide application until USCIS
has provided the notice described in paragraph (k)(3) of this section.
In the event that an application is incomplete or if the application is
complete but does not present sufficient evidence to establish prima
facie eligibility for each required element of T nonimmigrant status,
USCIS will follow the procedures provided in 8 CFR 103.2(b) for
requesting additional evidence, issuing a notice of intent to deny, or
adjudicating the case on the merits.
* * * * *
0
10. Section 214.15 is amended by revising paragraph (d) to read as
follows:
Sec. 214.15 Certain spouses and children of lawful permanent
residents.
* * * * *
(d) The definition of ``pending petition.'' For purposes of this
section, a pending petition is defined as a petition to accord a status
under section 203(a)(2)(A) of the Act that was filed with USCIS under
section 204 of the Act on or before December 21, 2000, and has not been
adjudicated. In addition, the petition must have been properly filed
according to 8 CFR 103.2(a), and if, subsequent to filing, USCIS
returns the petition to the applicant for any reason or makes a request
for evidence or issues a notice of intent to deny under 8 CFR 103.2(b),
the petitioner must comply with the request within the time period set
by USCIS. If USCIS denies a petition but the petitioner appeals that
decision, the petition will be considered pending until the
administrative appeal is decided by USCIS. A petition rejected by USCIS
as not properly filed is not considered to be pending.
* * * * *
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
11. The authority citation for part 245 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.
0
12. Section 245.18 is amended by revising paragraph (i) to read as
follows:
Sec. 245.18 How can physicians with approved Forms I-140 that are
serving in medically underserved areas or at a Veterans Affairs
facility adjust status?
* * * * *
(i) What if the physician does not comply with the requirements of
paragraphs (f) and (g) of this section? If an alien physician does not
submit (in accordance with paragraphs (f) and (g) of this section)
proof that he or she has completed the service required under 8 CFR
204.12(a), USCIS shall serve the alien physician with a written notice
of intent to deny the alien physician's application for adjustment of
status and, after the denial is finalized, to revoke approval of the
Form I-140 and national interest waiver. The written notice shall
require the alien physician to provide the evidence required by
paragraph (f) or (g) of this section. If the alien physician fails to
submit the evidence within the allotted time, USCIS shall deny the
alien physician's application for adjustment of status and shall revoke
approval of the Form I-140 and of the national interest waiver.
* * * * *
PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF
THE IMMIGRATION AND NATIONALITY ACT
0
13. The authority citation for part 245a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.
0
14. Section 245a.20 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 245a.20 Decisions, appeals, motions, and certifications.
(a) * * *
(2) Denials. The alien shall be notified in writing of the decision
of denial and of the reason(s) therefore. An applicant affected under
this part by an adverse decision is entitled to file an appeal on Form
I-290B Notice of Appeal to the Administrative Appeals Office (AAO),
with the required fee specified in 8 CFR 103.7(b)(1). Renewal of
employment authorization issued pursuant to 8 CFR 245a.13 will be
granted until a final decision has been rendered on appeal or until the
end of the appeal period if no appeal is filed. After exhaustion of an
appeal, an alien who believes that the grounds for denial have been
overcome may submit another application with fee, provided that the
application is submitted on or before June 4, 2003.
* * * * *
Sec. 245a.33 [Amended]
0
15. Section 245a.33 is amended by removing the second sentence of
paragraph (b).
Dated: March 27, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-7228 Filed 4-16-07; 8:45 am]
BILLING CODE 4410-10-P