[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR245a.4]

[Page 568-579]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
      CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND 
                             NATURALIZATION)
 
     PART 245a_ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR 
 
Subpart A_Immigration Reform and Control Act of 1986 (IRCA) Legalization 
                               Provisions
 
Sec.  245a.4  Adjustment to lawful resident status of certain nationals 
of countries for which extended voluntary departure has been made available.

    (a) Definitions. As used in this section: (1) Act means the 
Immigration and Nationality Act, as amended by the Immigration Reform 
and Control Act of 1986.
    (2) Service means the Immigration and Naturalization Service (INS).
    (3) Resided continuously means that the alien shall be regarded as 
having resided continuously in the United States if, at the time of 
filing of the application for temporary resident status:
    (i) No single absence from the United States has exceeded 45 days, 
and the aggregate of all absences has not exceeded 180 days between July 
21, 1984, through the date the application for temporary resident status 
is filed, unless the alien can establish that due to emergent reasons, 
his or her return to the United States could not be accomplished within 
the time period allowed;
    (ii) The alien was maintaining residence in the United States; and
    (iii) The alien's departure from the United States was not based on 
an order of deportation.

An alien who has been absent from the United States in accordance with 
the Service's advance parole procedures

[[Page 569]]

shall not be considered as having interrupted his or her continuous 
residence as required at the time of filing an application. An alien 
who, after appearing for a scheduled interview to obtain an immigrant 
visa at a Consulate or Embassy in Canada or Mexico but who subsequently 
is not issued an immigrant visa and who is paroled back into the United 
States pursuant to the stateside criteria program, shall be considered 
as having resided continuously.
    (4) Continous residence means that the alien shall be regarded as 
having resided continously in the United States if, at the time of 
applying for adjustment from temporary residence to permanent resident 
status: No single absence from the United States has exceeded 30 days, 
and the aggregate of all absences has not exceeded 90 days between the 
date on which lawful temporary resident status was granted and the date 
permanent resident status was applied for, unless the alien can 
establish that due to emergent reasons or extenuating circumstances 
beyond his or her control, the return to the United States could not be 
accomplished within the time period(s) allowed. A single absence from 
the United States of more than 30 days, and aggregate absences of more 
than 90 days during the period for which continuous residence is 
required for adjustment to permanent resident status, shall break the 
continuity of such residence unless the temporary resident can establish 
to the satisfaction of the district director that he or she did not, in 
fact, abandon his or her residence in the United States during such 
period.
    (5) To make a determination means obtaining and reviewing all 
information required to adjudicate an application for the benefit sought 
and making a decision thereon. If fraud, willful misrepresentation or 
concealment of a material fact, knowingly providing a false writing or 
document, knowingly making a false statement or representation, or any 
other activity prohibited by the Act is established during the process 
of making the determination on the application, the Service shall refer 
the matter to the United States Attorney for prosecution of the alien or 
of any person who created or supplied a false writing or document for 
use in an application for adjustment of status under this part.
    (6) Continuous physical presence means actual continuous presence in 
the United States since December 22, 1987, until filing of any 
application for adjustment of status. Aliens who were outside of the 
United States after enactment may apply for temporary residence if they 
reentered prior to March 21, 1988, provided they meet the continuous 
residence requirements, and are otherwise eligible for legalization.
    (7) Brief, casual, and innocent means a departure authorized by the 
Service (advance parole) subsequent to March 21, 1988, for not more than 
30 days for legitimate emergency or humanitarian purposes unless a 
further period of authorized departure has been granted in the 
discretion of the district director or a departure was beyond the 
alien's control.
    (8) Brief and casual means temporary trips abroad as long as the 
alien establishes a continuing intention to adjust to lawful permanent 
resident status. However, such absences must not exceed the specific 
periods of time required in order to maintain continuous residence.
    (9) Certain nationals of countries for which extended voluntary 
departure has been made available on the basis of a nationality group 
determination at any time during the 5-year period ending on November 1, 
1987 is limited to nationals of Poland, Afghanistan, Ethiopia, and 
Uganda.
    (10) Public cash assistance means income or need-based monetary 
assistance to include, but not limited to, supplemental security income 
received by the alien through federal, state, or local programs designed 
to meet subsistence levels. It does not include assistance in kind, such 
as food stamps, public housing, or other non-cash benefits, nor does it 
include work related compensation or certain types of medical assistance 
(Medicare, Medicaid, emergency treatment, services to pregnant women or 
children under 18 years of age, or treatment in the interest of public 
health).
    (11) Designated entity means any state, local, church, community, 
farm

[[Page 570]]

labor organization, voluntary organization, association of agricultural 
employers or individual determined by the Service to be qualified to 
assist aliens in the preparation of applications for legalization 
status.
    (12) Through the passage of time means through the expiration date 
of the nonimmigrant permission to remain in the United States, including 
any extensions and/or change of status.
    (13) Prima facie eligibility means eligibility is established if the 
applicant presents a completed I-687 and specific factual information 
which in the absence of rebuttal will establish a claim of eligibility 
under this part.
    (b) Application for temporary residence--(1) Application for 
temporary residence. (i) An alien who is a national of Poland, Uganda, 
Ethiopia, or Afghanistan who has resided continuously in the United 
States since prior to July 2l, 1984, and who believes that he or she 
meets the eligibility requirements of section 245A of the Act must make 
application within the 21-month period beginning on March 21, 1988, and 
ending on December 22, 1989.
    (ii) An alien who fails to file an application for adjustment of 
status to that of a temporary resident under Sec.  245A.4 of this part 
during the time period, will be statutorily ineligible for such 
adjustment of status.
    (2) Eligibility (i) The following categories of aliens who are not 
otherwise excludable under section 212(a) of the Act are eligible to 
apply for status to that of a person admitted for temporary residence:
    (A) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, (other than an alien who entered as a nonimmigrant) who 
establishes that he or she entered the United States prior to July 21, 
1984, and who has thereafter resided continuously in the United States, 
and who has been physically present in the United States from December 
22, 1987, until the date of filing the application.
    (B) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and establishes that he or she entered the United States as 
a nonimmigrant prior to July 21, 1984, and whose period of authorized 
admission expired through the passage of time prior to January 21, 1985, 
and who has thereafter resided continuously in the United States, and 
who has been physically present in the United States from December 22, 
1987, until the date of filing the application.
    (C) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and establishes that he or she entered the United States as 
a nonimmigrant prior to July 21, 1984, and who applied for asylum prior 
to July 21, 1984, and who has thereafter resided continuously in the 
United States, and who has been physically present in the United States 
from December 22, 1987, until the date of filing the application.
    (D) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, who would otherwise be eligible for temporary resident 
status and who establishes that he or she resided continuously in the 
United States prior to July 21, 1984, and who subsequently reentered the 
United States as a nonimmigrant in order to return to an unrelinquished 
residence. An alien described in this paragraph must have received a 
waiver of 212(a)(19) as an alien who entered the United States by fraud.
    (E) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and was a nonimmigrant who entered the United States in the 
classification A, A-1, A-2, G, G-1, G-2, G-3, or G-4, for Duration of 
Status (D/S), and whose qualifying employment terminated or who ceased 
to be recognized by the Department of State as being entitled to such 
classification prior to January 21, 1985, and who thereafter continued 
to reside in the United States.
    (F) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and who was a nonimmigrant who entered the United States as 
an F, F-1, or F-2 for Duration of Status (D/S), and who completed a full 
course of studies, including practical training (if any), and whose time 
period to depart the United States after completion of studies expired 
prior to January 21, 1985,

[[Page 571]]

and who has thereafter continued to reside in the United States. Those 
students placed in a nunc pro tunc retroactive student status which 
would otherwise preclude their eligibility for legalization under this 
section, must present evidence that they had otherwise terminated their 
status during the requisite time period. A dependent F-2 alien otherwise 
eligible who was admitted into the United States with a specific time 
period, as opposed to duration of status, documented on Service Form I-
94, Arrival-Departure Record that extended beyond July 21, 1984 is 
considered eligible if the principal F-1 alien is found eligible.
    (3) Ineligible aliens. (i) An alien who has been convicted of a 
felony, or three or more misdemeanors.
    (ii) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group, or political opinion.
    (iii) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived.
    (4) Documentation. Evidence to support an alien's eligibility for 
temporary residence status shall include documents establishing proof of 
identity, proof of nationality, proof of residence, and proof of 
financial responsibility, as well as photographs, a completed 
fingerprint card (Form FD-258), and a completed medical report of 
examination (Form I-693). All documentation submitted will be subject to 
Service verification. Applications submitted with unverifiable 
documentation may be denied. Failure by an applicant to authorize 
release to INS of information protected by the Privacy Act and/or 
related laws in order for INS to adjudicate a claim may result in denial 
of the benefit sought. Acceptable supporting documents for the four 
categories of documentation are discussed as follows:
    (i) Proof of identity. Evidence to establish identity is listed 
below in descending order of preference:
    (A) Passport;
    (B) Birth certificate;
    (C) Any national identity document from the alien's country of 
origin bearing photo and fingerprint;
    (D) Driver's license or similar document issued by a state if it 
contains a photo;
    (E) Baptismal Record/Marriage Certificate; or
    (F) Affidavits.
    (ii) Proof of nationality. Evidence to establish nationality is 
listed as follows:
    (A) Passport;
    (B) Birth certificate;
    (C) Any national identity document from the alien's country of 
origin bearing photo and fingerprint;
    (D) Other credible documents, including those created by, or in the 
possession of the INS, or any other documents (excluding affidavits) 
that, when taken singly, or together as a whole, establish the alien's 
nationality.
    (iii) Assumed names--(A) General. In cases where an applicant claims 
to have met any of the eligibility criteria under an assumed name, the 
applicant has the burden of proving that the applicant was in fact the 
person who used that name. The applicant's true identity is established 
pursuant to the requirements of paragraph (b)(4)(i) and (ii) of this 
section. The assumed name must appear in the documentation provided by 
the applicant to establish eligibility. To meet the requirement of this 
paragraph, documentation must be submitted to prove the common identity, 
i.e., that the assumed name was in fact used by the applicant.
    (B) Proof of common identity. The most persuasive evidence is a 
document issued in the assumed name which identifies the applicant by 
photograph, fingerprint, or detailed physical description. Other 
evidence which will be considered are affidavit(s) by a person or 
persons other than the applicant, made under oath, which identify the 
affiant by name and address, state the affiant's relationship to the 
applicant and the basis of the affiant's knowledge of the applicant's 
use of the assumed name. Affidavits accompanied by a photograph which 
has been identified by the affiant as the individual known to the 
affiant under the assumed name in question will carry greater weight.
    (iv) Proof of residence. Evidence to establish proof of continuous 
residence in the United States during the requisite

[[Page 572]]

period of time may consist of any combination of the following:
    (A) Past employment records, which may consist of pay stubs, W-2 
Forms, certification of the filing of Federal income tax returns on IRS 
Form 6166, a state verification of the filing of state income tax 
returns, letters from employer(s) or, if the applicant has been in 
business for himself or herself, letters from banks and other firms with 
whom he or she has done business. In all of the above, the name of the 
alien and the name of the employer or other interested organizations 
must appear on the form or letter, as well as relevant dates. Letters 
from employers should be on employer letterhead stationery, if the 
employer has such stationery, and must include:
    (1) Alien's address at the time of employment;
    (2) Exact period of employment;
    (3) Periods of layoff;
    (4) Duties with the company;
    (5) Whether or not the information was taken from official company 
records; and
    (6) Where records are located, whether the Service may have access 
to the records.

If the records are unavailable, an affidavit form letter stating that 
the alien's employment records are unavailable and why such records are 
unavailable may be accepted in lieu of paragraphs (b)(4)(iv)(A)(5) and 
(6) of this section. This affidavit form letter shall be signed, 
attested to by the employer under penalty of perjury, and shall state 
the employer's willingness to come forward and give testimony if 
requested.
    (B) Utility bills (gas, electric, phone, etc.) receipts, or letters 
from companies showing the dates during which the applicant received 
service are acceptable documentation.
    (C) School records (letters, report cards, etc.) from the schools 
that the applicant or his or her children have attended in the United 
States must show the name of school and periods of school attendance.
    (D) Hospital or medical records showing treatment or hospitalization 
of the applicant or his or her children must show the name of the 
medical facility or physician and the date(s) of the treatment or 
hospitalization.
    (E) Attestations by churches, unions, or other organizations as to 
the applicant's residence by letter which:
    (1) Identify applicant by name;
    (2) Are signed by an official (whose title is shown);
    (3) Show inclusive dates of membership;
    (4) State the address where applicant resided during membership 
period;
    (5) Include the seal of the organization impressed on the letter or 
the letterhead of the organization, if the organization has letterhead 
stationery;
    (6) Establish how the author knows the applicant; and
    (7) Establish the origin of the information being attested to.
    (F) Additional documents to support the applicant's claim may 
include:
    (1) Money order receipts for money sent into or out of the country;
    (2) Passport entries;
    (3) Birth certificates of children born in the United States;
    (4) Bank books with dated transactions;
    (5) Letters or correspondence between applicant and other person or 
organization;
    (6) Social Security card;
    (7) Selective Service card;
    (8) Automobile license receipts, title, vehicle registration, etc.;
    (9) Deeds, mortgages, contracts to which applicant has been a party;
    (10) Tax receipts;
    (11) Insurance policies, receipts, or letters; and
    (12) Any other relevant document.
    (v) Proof of financial responsibility. An applicant for adjustment 
of status under this part is subject to the provisions of section 
212(a)(15) of the Act relating to excludability of aliens likely to 
become public charges. Generally, the evidence of employment submitted 
under paragraph (b)(4)(iv)(A) of this section will serve to demonstrate 
the alien's financial responsibility during the documented period(s) of 
employment. If the alien's period(s) of residence in the United States 
include significant gaps in employment or if there is reason to believe 
that the alien may have received public assistance while employed, the 
alien may be required to

[[Page 573]]

provide proof that he or she has not received public cash assistance. An 
applicant for residence who is determined likely to become a public 
charge and is unable to overcome this determination after application of 
the Special Rule under paragraph (b)(11)(iv)(C) of this section will be 
denied adjustment. The burden of proof to demonstrate the 
inapplicability of this provision of law lies with the applicant who may 
provide:
    (A) Evidence of a history of employment (i.e., employment letter, W-
2 forms, income tax returns, etc.);
    (B) Evidence that he/she is self-supporting (i.e., bank statements, 
stocks, other assets, etc.); or
    (C) Form I-134. Affidavit of Support, completed by a spouse on 
behalf of the applicant and/or children of the applicant or a parent in 
behalf of children which guarantees complete or partial financial 
support. Acceptance of the Affidavit of Support shall be extended to 
other family members in unusual family circumstances.

Generally, the evidence of employment submitted under paragraph 
(b)(4)(iv)(A) of this section will serve to demonstrate the alien's 
financial responsibility during the documented period(s) of employment. 
If the alien's period(s) of residence in the United States include 
significant gaps in employment or if there is reason to believe that the 
alien may have received public assistance while employed, the alien may 
be required to provide proof that he or she has not received public cash 
assistance. An applicant for residence who is likely to become a public 
charge will be denied adjustment.
    (vi) Burden of proof. An alien applying for adjustment of status 
under this part has the burden of proving by a preponderance of the 
evidence that he or she has resided in the United States for the 
requisite periods, is admissible to the United States under the 
provisions of section 245A of the Act, and is otherwise eligible for 
adjustment of status under this section. The inference to be drawn from 
the documentation provided shall depend on the extent of the 
documentation, its credibility and amenability to verification.
    (vii) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. To meet his or her burden of proof, an applicant must 
provide evidence of eligibility apart from his or her own testimony. In 
judging the probative value and credibility of the evidence submitted, 
greater weight will be given to the submission of original 
documentation.
    (5) Filing of application. (i) The application must be filed on Form 
I-687 at an office of a designated entity or at a Service office within 
the jurisdiction of the district where the applicant resides. If the 
application is filed with a designated entity, the alien must have 
consented to having the designated entity forward the application to the 
Service office. In the case of applications filed at a Service office, 
the district director may, at his or her discretion:
    (A) Require the applicant to file the application in person; or
    (B) Require the applicant to file the application by mail; or
    (C) Permit the filing of applications whether by mail or in person.

The applicant must appear for a personal interview at the Service office 
as scheduled. If the applicant is 14 years of age or older, the 
application must be accompanied by a completed Form FD-258 (Applicant 
Card).
    (ii) At the time of the interview, whenever possible, original 
documents must be submitted except the following: Official government 
records; employment or employment-related records maintained by 
employers, union, or collective bargaining organizations; medical 
records; school records maintained by a school or school board; or other 
records maintained by a party other than the applicant. Copies of 
records maintained by parties other than the applicant which are 
submitted in evidence must be certified as true and correct by such 
parties and must bear their seal or signature or the signature and title 
of persons authorized to act in their behalf. If at the time of the 
interview the return of the original document is desired by the 
applicant, the document must be accompanied by notarized copies or 
copies certified true and correct by a qualified designated entity or by 
the alien's representative in the format prescribed in

[[Page 574]]

Sec.  204.2(j)(1) or (2) of this chapter. At the discretion of the 
district director, original documents, even if accompanied by certified 
copies, may be temporarily retained for forensic examination by the 
Document Analysis Unit at the Regional Processing Facility having 
jurisdiction over the Service office to which the documents were 
submitted.
    (iii) A separate application (I-687) must be filed by each eligible 
applicant. All fees required by Sec.  103.7(b)(1) of this chapter must 
be submitted in the exact amount in the form of a money order, cashier's 
check, or certified bank check, made payable to the Immigration and 
Naturalization Service. No personal checks or currency will be accepted. 
Fees will not be waived or refunded under any circumstances.
    (6) Filing date of application. The date the alien submits a 
completed application to a Service office or designated entity shall be 
considered the filing date of the application, provided that in the case 
of an application filed at a designated entity the alien has consented 
to having the designated entity forward the application to the Service 
office having jurisdiction over the location of the alien's residence. 
Designated entities are required to forward completed applications to 
the appropriate Service office within 60 days of receipt.
    (7) Selective Service registration. At the time of filing an 
application under this section, male applicants over the age of 17 and 
under the age of 26, are required to be registered under the Military 
Selective Service Act. An applicant shall present evidence that he has 
previously registered under that Act in the form of a letter of 
acknowledgement from the Selective Service System, or such alien shall 
present a completed and signed Form SSS-1 at the time of filing Form I-
687 with the Immigration and Naturalization Service or a designated 
entity. Form SSS-1 will be forwarded to the Selective Service System by 
the Service.
    (8) Continuous residence. (i) For the purpose of this Act, an 
applicant for temporary residence status shall be regarded as having 
resided continuously in the United States if, at the time of filing of 
the application:
    (A) No single absence from the United States has exceeded 45 days, 
and the aggregate of all absences has not exceeded 180 days between July 
2l, 1984, through the date the application for temporary resident status 
is filed, unless the alien can establish that due to emergent reasons, 
his or her return to the United States could not be accomplished within 
the time period allowed;
    (B) The alien was maintaining a residence in the United States; and
    (C) The alien's departure from the United States was not based on an 
order of deportation.
    (ii) An alien who has been absent from the United States in 
accordance with the Service's advance parole procedures shall not be 
considered as having interrupted his or her continuous residence as 
required at the time of filing an application under this section.
    (9) Medical examination. (i) An applicant under this part shall be 
required to submit to an examination by a designated civil surgeon at no 
expense to the government. The designated civil surgeon shall report on 
the findings of the mental and physical condition of the applicant and 
the determination of the alien's immunization status on Form I-693, 
``Medical Examination of Aliens Seeking Adjustment of Status, (Pub. L. 
99-603)''. Results of the medical examination must be presented to the 
Service at the time of interview and shall be incorporated into the 
record. Any applicant certified under paragraphs (1), (2), (3), (4) or 
(5) of section 212(a) of the Act may appeal to a Board of Medical 
Officers of the U.S. Public Health Service as provided in section 234 of 
the Act and part 235 of this chapter.
    (ii) All applicants who file for temporary resident status are 
required to include the results of a serological test for the HIV virus 
on the I-693. All HIV-positive applicants shall be advised that a waiver 
is available and shall be provided with the opportunity to apply for a 
waiver.
    (10) Interview. Each applicant, regardless of age, must appear at 
the appropriate Service office and must be fingerprinted for the purpose 
of issuance of an employment authorization document and Form I-688. Each

[[Page 575]]

applicant shall be interviewed by an immigration officer, except that 
the interview may be waived for a child under 14 years of age, or when 
it is impractical because of the health or advanced age of the 
applicant.
    (11) Applicability of exclusion grounds--(i) Grounds of exclusion 
not to be applied. Paragraphs (14), (workers entering without labor 
certification); (20), (immigrants not in possession of a valid entry 
document); (21), (visas issued without compliance with section 203); 
(25), (illiterates); and (32) (graduates of non-accredited medical 
schools) of section 212(a) of the Act shall not apply to applicants for 
temporary resident status.
    (ii) Waiver of grounds of exclusion. Except as provided in paragraph 
(b)(11)(iii) of this section, the Attorney General may waive any other 
provision of section 212(a) of the Act only in the case of individual 
aliens for humanitarian purposes, to assure family unity, or when the 
granting of such a waiver is in the public interest. If an alien is 
excludable on grounds which may be waived as set forth in this 
paragraph, he or she shall be advised of the procedures for applying for 
a waiver of grounds of excludability on Form I-690. When an application 
for waiver of grounds of excludability is filed jointly with an 
application for temporary residence under this section, it shall be 
accepted for processing at the Service office. If an application for 
waiver of grounds of excludability is submitted after the alien's 
preliminary interview at the Service office, it shall be forwarded to 
the appropriate Regional Processing Facility. All applications for 
waivers of grounds of excludability must be accompanied by the correct 
fee in the exact amount. All fees for applications filed in the United 
States must be in the form of a money order, cashier's check, or bank 
check. No personal checks or currency will be accepted. Fees will not be 
waived or refunded under any circumstances. An application for waiver of 
grounds of excludability under this part shall be approved or denied by 
the director of the Regional Processing Facility in whose jurisdiction 
the alien's application for adjustment of status was filed except that 
in cases involving clear statutory ineligibility or fraud, such 
application may be denied by the district director in whose jurisdiction 
the application is filed, and in cases returned to a Service office for 
re-interview, such application may be approved at the discretion of the 
district director. The applicant shall be notified of the decision and, 
if the application is denied, of the reason therefore. Appeal from an 
adverse decision under this part may be taken by the applicant on Form 
I-694 within 30 days after the service of the notice only to the 
Service's Administrative Appeals Unit pursuant to the provisions of 
section 103.3(a) of this chapter.
    (iii) Grounds of exclusion that may not be waived. Notwithstanding 
any other provision of the Act, the following provisions of section 
212(a) may not be waived by the Attorney General under paragraph 
(b)(11)(ii) of this section:
    (A) Paragraphs (9) and (10) (criminals);
    (B) Paragraph (23) (narcotics) except for a single offense of simple 
possession of thirty grams or less of marijuana;
    (C) Paragraphs (27) (prejudicial to the public interest), (28) 
(communist), and (29) (subversive);
    (D) Paragraph (33) (participated in Nazi persecution).
    (iv) Determination of Likely to become a public charge and the 
special rule. (A) Prior to use of the special rule for determination of 
public charge, an alien must first be determined to be excludable under 
section 212(a)(15) of the Act. If the applicant is determined to be 
likely to become a public charge, he or she may still be admissible 
under the terms of the Special Rule.
    (B) In determining whether an alien is likely to become a public 
charge, financial responsibility of the alien is to be established by 
examining the totality of the alien's circumstances at the time of his 
or her application for legalization. The existence or absence of a 
particular factor should never be the sole criterion for determining if 
an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on the 
alien's age, health, income and vocation.
    (C) An alien who has a consistent employment history which shows the 
ability to support himself or herself even

[[Page 576]]

though his or her income may be below the poverty level may be 
admissible under this section. The alien's employment history need not 
be continuous in that it is uninterrupted. It should be continuous in 
the sense that the alien shall be regularly attached to the workforce, 
has an income over a substantial period of the applicable time, and has 
demonstrated the capacity to exist on his or her income without recourse 
to public cash assistance. The Special Rule is prospective in that the 
Service shall determine, based on the alien's history, whether he or she 
is likely to become a public charge. Past acceptance of public cash 
assistance within a history of consistent employment will enter into 
this decision. The weight given in considering applicability of the 
public charge provisions will depend on many factors, but the length of 
time an applicant has received public cash assistance will constitute a 
significant factor. It is not necessary to file a waiver in order to 
apply the Special Rule for Determination of Public Charge.
    (v) Public assistance and criminal history verification. 
Declarations by an applicant that he or she has not been the recipient 
of public cash assistance and/or has not had a criminal record are 
subject to a verification of facts by the Service. The applicant must 
agree to fully cooperate in the verification process. Failure to assist 
the Service in verifying information necessary for the adjudication of 
the application may result in a denial of the application.
    (12) Continuous physical presence since December 22, 1987. (i) An 
alien applying for adjustment to temporary resident status must 
establish that he or she has been continuously physically present in the 
United States since December 22, 1987. Aliens who were outside of the 
United States on the date of enactment or departed the United States 
after enactment may apply for legalization if they reentered prior to 
March 21, 1988, and meet the continuous residence requirements and are 
otherwise eligible for legalization.
    (ii) A brief, casual and innocent absence means a departure 
authorized by the Service (advance parole) subsequent to March 21, 1988, 
of not more than thirty (30) days for legitimate emergency or 
humanitarian purposes unless a further period of authorized departure 
has been granted in the discretion of the district director or a 
departure was beyond the alien's control.
    (13) Departure. (i) During the time period from the date that an 
alien's application establishing prima facie eligibility for temporary 
resident status is reviewed at a Service office and the date status as a 
temporary resident is granted, the alien applicant can be readmitted to 
the United States provided his or her departure was authorized under the 
Service's advance parole provisions contained in Sec.  212.5(f) of this 
chapter.
    (ii) An alien whose application for temporary resident status has 
been approved may be admitted to the United States upon return as a 
returning temporary resident provided he or she:
    (A) Is not under deportation proceedings, such proceedings having 
been instituted subsequent to the approval of temporary resident status. 
A temporary resident alien will not be considered deported if that alien 
departs the United States while under an outstanding order of 
deportation issued prior to the approval of temporary resident status;
    (B) Has not been absent from the United States for more than 30 days 
on the date application for admission is made;
    (C) Has not been absent from the United States for an aggregate 
period of more than 90 days since the date the alien was granted lawful 
temporary resident status;
    (D) Presents Form I-688;
    (E) Presents himself or herself for inspection; and
    (F) Is otherwise admissible.
    (iii) The periods of time in paragraphs (b)(13)(ii)(B) and (C) of 
this section may be waived at the discretion of the Attorney General in 
cases where the absence from the United States was due merely to a brief 
and casual trip abroad due to emergent or extenuating circumstances 
beyond the alien's control.
    (14) Employment and travel authorization--(i) General. Authorization 
for employment and travel abroad for temporary resident status 
applicants under this section may be granted only by a

[[Page 577]]

Service office. INS district directors will determine the Service 
location for the completion of processing travel documentation. In the 
case of an application which has been filed with a designated entity, 
employment authorization may be granted by the Service only after the 
application has been properly received at the Service office.
    (ii) Employment and travel authorization prior to the granting of 
temporary resident status. (A) Permission to travel abroad and accept 
employment may be granted to the applicant after an interview has been 
conducted in connection with an application establishing prima facie 
eligibility for temporary resident status. Permission to travel abroad 
may be granted in emergent circumstances in accordance with the 
Service's advance parole provisions contained in Sec.  212.5(f) of this 
chapter after an interview has been conducted in connection with an 
application establishing prima facie eligibility for temporary resident 
status.
    (B) If an appointment cannot be scheduled within 30 days, 
authorization to accept employment will be granted, valid until the 
scheduled appointment date. The appointment letter will be endorsed with 
the temporary employment authorization. An employment authorization 
document will be given to the applicant after an interview has been 
completed by an immigration officer unless a formal denial is issued by 
a Service office. This temporary employment authorization will be 
restricted to six-months duration, pending final determination on the 
application for temporary resident status.
    (iii) Employment and travel authorization upon grant of temporary 
resident status. Upon grant of an application for adjustment to 
temporary resident status by a Regional Processing Facility, the 
processing facility will forward a notice of approval to the alien at 
his or her last known address, or to his or her legal representative. 
The alien will be required to return to the appropriate INS office, 
surrender the I-688A or employment authorization document previously 
issued, and obtain Form I-688, Temporary Resident Card, authorizing 
employment and travel abroad.
    (iv) Revocation of employment authorization upon denial of temporary 
resident status. Upon denial of an application for adjustment to 
temporary resident status, the alien will be notified that if a timely 
appeal is not submitted, employment authorization shall be automatically 
revoked on the final day of the appeal period. An applicant whose appeal 
period has ended is no longer considered to be an Eligible Legalized 
Alien for the purposes of the administration of State Legalization 
Impact Assistance Grants (SLIAG) funding.
    (15) Decision. The applicant shall be notified in writing of the 
decision. If the application is denied, the reason(s) for the decision 
shall be provided to the applicant. An appeal from an adverse decision 
under this part may be taken by the applicant on Form I-694.
    (16) Appeal process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations (Administrative 
Appeals Unit), the appellate authority designated in Sec.  103.1(f)(2). 
Any appeal shall be submitted to the Regional Processing Facility (RPF) 
with the required fee within 30 days after service of the Notice of 
Denial in accordance with the procedures of Sec.  103.3(a) of this 
chapter. An appeal received after the 30-day period will not be 
accepted. The 30-day period for submission of an appeal begins three 
days after the Notice of Denial is mailed as provided in Sec.  103.5a(b) 
of this Act. If a review of the Record of Proceeding (ROP) is requested 
by the alien or his or her legal representative and an appeal has been 
properly filed, an additional 30 days will be allowed for this review 
beginning at the time the ROP is mailed. A brief may be submitted with 
the appeal form or submitted up to 30 calendar days from the date of 
receipt of the appeal form at the RPF. Briefs filed after submission of 
the appeal should be mailed directly to the RPF. For good cause shown, 
the time within which a brief supporting an appeal may be submitted may 
be extended by the Director of the Regional Processing Facility.
    (17) Motions. The Regional Processing Facility director may sua 
sponte reopen and reconsider any adverse decision. When an appeal to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) has 
been filed, the

[[Page 578]]

INS director of the Regional Processing Facility may issue a new 
decision granting the benefit which has been requested. The director's 
new decision must be served on the appealing party within 45 days of 
receipt of any briefs and/or new evidence, or upon expiration of the 
time allowed for the submission of any briefs. Motions to reopen a 
proceeding or reconsider a decision shall not be considered under this 
part.
    (18) Certifications. The Regional Processing Facility director may, 
in accordance with Sec.  103.4 of this chapter, certify a decision to 
the Associate Commissioner, Examinations (Administrative Appeals Unit) 
when the case involves an unusually complex or novel question of law or 
fact. The decision on an appealed case subsequently remanded to the 
Regional Processing Facility director will be certified to the 
Administrative Appeals Unit.
    (19) Date of adjustment to temporary residence. The status of an 
alien whose application for temporary resident status is approved shall 
be adjusted to that of a lawful temporary resident as of the date 
indicated on the application fee receipt issued at the Service office.
    (20) Termination of temporary resident status--(i) Termination of 
temporary resident status (General). The status of an alien lawfully 
admitted for temporary residence under Sec.  245a.4 of this part may be 
terminated at any time. It is not necessary that a final order of 
deportation be entered in order to terminate temporary resident status. 
The temporary resident status may be terminated upon the occurrence of 
any of the following:
    (A) It is determined that the alien was ineligible for temporary 
residence under Sec.  245a.4 of this part;
    (B) The alien commits an act which renders him or her inadmissible 
as an immigrant unless a waiver is obtained, as provided in this part;
    (C) The alien is convicted of any felony, or three or more 
misdemeanors;
    (D) The alien fails to file for adjustment of status from temporary 
resident to permanent resident within 31 months of the date he or she 
was granted status as a temporary resident.
    (ii) Procedure. Termination of an alien's status will be made only 
on notice to the alien sent by certified mail directed to his or her 
last known address, and, if applicable, to his or her representative. 
The alien must be given an opportunity to offer evidence in opposition 
to the grounds alleged for termination of his or her status. Evidence in 
opposition must be submitted within 30 days after the service of the 
Notice of Intent to Terminate. If the alien's status is terminated, the 
director of the Regional Processing Facility shall notify the alien of 
the decision and the reason for the termination, and further notify the 
alien that any Service Form issued to the alien authorizing employment 
and/or travel abroad, or any Form I-688, Temporary Resident Card 
previously issued to the alien will be declared void by the director of 
the Regional Processing Facility within 30 days if no appeal of the 
termination decision is filed within that period. The alien may appeal 
the decision to the Associate Commissioner, Examinations (Administrative 
Appeals Unit). Any appeal along with the required fee, shall be filed 
with the Regional Processing Facility within 30 days after the service 
of the notice of termination. If no appeal is filed within that period, 
the official Service document shall be deemed void, and must be 
surrendered without delay to an immigration officer or to the issuing 
office of the Service.
    (iii) Termination not construed as rescission under section 246. For 
the purposes of this part the phrase termination of status of an alien 
granted lawful temporary residence under this section shall not be 
construed to necessitate a rescission of status as described in section 
246 of the Act, and the proceedings required by the regulations issued 
thereunder shall not apply.
    (iv) Return to unlawful status after termination. Termination of the 
status of any alien previously adjusted to lawful temporary residence 
shall act to return such alien to the status held prior to the 
adjustment, and render him or her amenable to exclusion or deportation 
proceedings under sections 236 or 242 of the Act, as appropriate.
    (21) Ineligibility for immigration benefits. An alien whose status 
is adjusted to that of a lawful temporary resident

[[Page 579]]

under Sec.  245a.4 of this part is not entitled to submit a petition 
pursuant to section 203(a)(2), nor is such alien entitled to any other 
benefit or consideration accorded under the Act to aliens lawfully 
admitted for permanent residence.
    (22) Declaration of intending citizen. An alien who has been granted 
the status of temporary resident under Sec.  245a.4 of this part may 
assert a claim of discrimination on the basis of citizenship status 
under section 274B of the Act only if he or she has previously filed 
Form I-772 (Declaration of Intending Citizen) after being granted such 
status. The Declaration of Intending Citizen is not required as a basis 
for filing a petition for naturalization; nor shall it be regarded as a 
right to United States citizenship; nor shall it be regarded as evidence 
of a person's status as a resident.
    (23) Limitation on access to information and confidentiality. (i) No 
person other than a sworn officer or employee of the Department of 
Justice or bureau or agency thereof, will be permitted to examine 
individual applications. For purposes of this part, any individual 
employed under contract by the Service to work in connection with the 
Legalization Program shall be considered an employee of the Department 
of Justice or bureau or agency thereof.
    (ii) No information furnished pursuant to an application for 
temporary or permanent resident status under this section shall be used 
for any purpose except:
    (A) To make a determination on the application; or,
    (B) for the enforcement of the provisions encompassed in section 
245A(c)(6) of the Act, except as provided in paragraph (b)(23)(iii) of 
this section.
    (iii) If a determination is made by the Service that the alien has, 
in connection with his or her application, engaged in fraud or willful 
misrepresentation or concealment of a material fact, knowingly provided 
a false writing or document in making his or her application, knowingly 
made a false statement or representation, or engaged in any other 
activity prohibited by section 245A(c)(6) of the Act, the Service shall 
refer the matter to the United States Attorney for prosecution of the 
alien or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (iv) Information contained in granted legalization files may be used 
by the Service at a later date to make a decision on an immigrant visa 
petition (or other status petition) filed by the applicant under section 
204(a), or for naturalization applications submitted by the applicant.
    (c) Adjustment from temporary to permanent resident status. The 
provisions of Sec.  245a.3 of this part shall be applied to aliens 
adjusting to permanent residence under this part.

[54 FR 6505, Feb. 13, 1989, as amended at 54 FR 29455, July 12, 1989; 54 
FR 47676, Nov. 16, 1989; 60 FR 21976, May 4, 1995; 65 FR 82256, Dec. 28, 
2000]