[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR245.15]

[Page 524-537]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 245_ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT 
RESIDENCE--Table of Contents
 
Sec. 245.15  Adjustment of status of certain Haitian nationals under 
the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).

    (a) Definitions. As used in this section, the terms:
    Abandoned and abandonment mean that both parents have, or the sole 
or surviving parent has, or in the case of a child who has been placed 
into a guardianship, the child's guardian or guardians have, willfully 
forsaken all parental or guardianship rights, obligations, and claims to 
the child, as well

[[Page 525]]

as all control over and possession of the child, without intending to 
transfer these rights to any specific person(s).
    Guardian means a person lawfully invested (by order of a competent 
Federal, State, or local authority) with the power, and charged with the 
duty, of taking care of, including managing the property, rights, and 
affairs of, a child.
    Orphan and orphaned refer to the involuntary detachment or severance 
of a child from his or her parents due to any of the following:
    (1) The death or disappearance of, desertion by, or separation or 
loss from both parents, as those terms are defined in Sec. 204.3(b) of 
this chapter;
    (2) The irrevocable and written release of all parental rights by 
the sole parent, as that term is defined in Sec. 204.3(b) of this 
chapter, based upon the inability of that parent to provide proper care 
(within the meaning of that phrase in Sec. 204.3(b) of this chapter) 
for the child, provided that at the time of such irrevocable release 
such parent is legally obligated to provide such care; or
    (3) The death or disappearance, as that term is defined in Sec. 
204.3(b) of this chapter, of one parent and the irrevocable and written 
release of all parental rights by the sole remaining parent based upon 
the inability of that parent to provide proper care (within the meaning 
of that phrase in Sec. 204.3(b) of this chapter) for the child, 
provided that at the time of such irrevocable release such parent is 
legally obligated to provide such care.
    Parent, father, or mother means a parent, father, or mother only 
where the relationship exists by reason of any of the circumstances set 
forth in paragraphs (A) through (E) of section 101(b)(1) of the Act.
    Sole remaining parent means a person who is the child's only parent 
because:
    (1) The child's other parent has died; or
    (2) The child's other parent has been certified by competent Haitian 
authorities to be presumed dead as a result of his or her disappearance, 
within the meaning of that term as set forth in Sec. 204.3(b) of this 
chapter.
    (b) Applicability of provisions of section 902 of HRIFA in general. 
Section 902 of Division A of Pub. L. 105-277, the Haitian Refugee 
Immigrant Fairness Act of 1998 (HRIFA), provides special rules for 
adjustment of status for certain nationals of Haiti, and without regard 
to section 241(a)(5) of the Act, if they meet the other requirements of 
HRIFA.
    (1) Principal applicants. Section 902(b)(1) of HRIFA defines five 
categories of principal applicants who may apply for adjustment of 
status, if the alien was physically present in the United States on 
December 31, 1995:
    (i) An alien who filed for asylum before December 31, 1995;
    (ii) An alien who was paroled into the United States prior to 
December 31, 1995, after having been identified as having a credible 
fear of persecution, or paroled for emergent reasons or reasons deemed 
strictly in the public interest; or
    (iii) An alien who at the time of arrival in the United States and 
on December 31, 1995, was unmarried and under 21 years of age and who:
    (A) Arrived in the United States without parents in the United 
States and has remained, without parents, in the United States since his 
or her arrival;
    (B) Became orphaned subsequent to arrival in the United States; or
    (C) Was abandoned by parents or guardians prior to April 1, 1998, 
and has remained abandoned since such abandonment.
    (2) Dependents. Section 902(d) of HRIFA provides for certain Haitian 
nationals to apply for adjustment of status as the spouse, child, or 
unmarried son or daughter of a principal HRIFA beneficiary, even if the 
individual would not otherwise be eligible for adjustment under section 
902. The eligibility requirements for dependents are described further 
in paragraph (d) of this section.
    (c) Eligibility of principal HRIFA applicants. A Haitian national 
who is described in paragraph (b)(1) of this section is eligible to 
apply for adjustment of status under the provisions of section 902 of 
HRIFA if the alien meets the following requirements:
    (1) Physical presence. The alien is physically present in the United 
States at the time the application is filed;
    (2) Proper application. The alien properly files an application for 
adjustment

[[Page 526]]

of status in accordance with this section, including the evidence 
described in paragraphs (h), (i), (j), and (k) of this section. For 
purposes of Sec. 245.15 of this chapter only, an Application to 
Register Permanent Residence or Adjust Status (Form I-485) submitted by 
a principal applicant for benefits under HRIFA may be considered to have 
been properly filed if it:
    (i) Is received not later than March 31, 2000, at the Nebraska 
Service Center, the Board, or the Immigration Court having jurisdiction;
    (ii) Has been properly completed and signed by the applicant;
    (iii) Identifies the provision of HRIFA under which the applicant is 
seeking adjustment of status; and
    (iv) Is accompanied by either:
    (A) The correct fee as specified in Sec. 103.7(b)(1) of this 
chapter; or
    (B) A request for a fee waiver in accordance with Sec. 103.7(c) of 
this chapter, provided such fee waiver request is subsequently granted; 
however, if such a fee waiver request is subsequently denied and the 
applicant submits the require fee within 30 days of the date of any 
notice that the fee waiver request had been denied, the application 
shall be regarded as having been filed before the statutory deadline. In 
addition, in a case over which the Board has jurisdiction, an 
application received by the Board before April 1, 2000, that has been 
properly signed and executed shall be considered filed before the 
statutory deadline without payment of the fee or submission of a fee 
waiver request. Upon remand by the Board, the payment of the fee or a 
request for a fee waiver shall be made upon submission of the 
application to the Immigration Court in accordance with 8 CFR 240.11(f). 
If a request for a fee waiver is denied, the application shall be 
considered as having been properly filed with the Immigration Court 
before the statutory deadline provided that the applicant submits the 
required fee within 30 days of the date of any notice that the fee 
waiver request has been denied.
    (3) Admissibility. The alien is not inadmissible to the United 
States for permanent residence under any provisions of section 212(a) of 
the Act, except as provided in paragraph (e) of this section; and
    (4) Continuous physical presence. The alien has been physically 
present in the United States for a continuous period beginning on 
December 31, 1995, and ending on the date the application for adjustment 
is granted, except for the following periods of time:
    (i) Any period or periods of absence from the United States not 
exceeding 180 days in the aggregate; and
    (ii) Any periods of absence for which the applicant received an 
Advance Authorization for Parole (Form I-512) prior to his or her 
departure from the United States, provided the applicant returned to the 
United States in accordance with the conditions of such Advance 
Authorization for Parole.
    (iii) Any periods of absence from the United States occurring after 
October 21, 1998, and before July 12, 1999, provided the applicant 
departed the United States prior to December 31, 1998.
    (d) Eligibility of dependents of a principal HRIFA beneficiary. A 
Haitian national who is the spouse, child, or unmarried son or daughter 
of a principal beneficiary eligible for adjustment of status under the 
provisions of HRIFA is eligible to apply for benefits as a dependent, if 
the dependent alien meets the following requirements:
    (1) Physical presence. The alien is physically present in the United 
States at the time the application is filed;
    (2) Proper application. The alien properly files an application for 
adjustment of status as a dependent in accordance with this section, 
including the evidence described in paragraphs (h) and (l) of this 
section;
    (3) Admissibility. The alien is not inadmissible to the United 
States for permanent residence under any provisions of section 212(a) of 
the Act, except as provided in paragraph (e) of this section;
    (4) Relationship. The qualifying relationship to the principal alien 
must have existed at the time the principal was granted adjustment of 
status and must continue to exist at the time the dependent alien is 
granted adjustment of status. To establish the qualifying relationship 
to the principal alien, evidence must be submitted in accordance with 
Sec. 204.2 of this chapter. Such evidence should consist of the 
documents

[[Page 527]]

specified in Sec. 204.2(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), 
and (d)(5) of this chapter;
    (5) Continuous physical presence. If the alien is applying as the 
unmarried son or unmarried daughter of a principal HRIFA beneficiary, he 
or she must have been physically present in the United States for a 
continuous period beginning not later than December 31, 1995, and ending 
on the date the application for adjustment is granted, as provided in 
paragraphs (c)(4) and (j) of this section.
    (e) Applicability of grounds of inadmissibility contained in section 
212(a)--(1) Certain grounds of inadmissibility inapplicable to HRIFA 
applicants. Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of section 
212(a) of the Act are inapplicable to HRIFA principal applicants and 
their dependents. Accordingly, an applicant for adjustment of status 
under section 902 of HRIFA need not establish admissibility under those 
provisions in order to be able to adjust his or her status to that of 
permanent resident.
    (2) Availability of individual waivers. If a HRIFA applicant is 
inadmissible under any of the other provisions of section 212(a) of the 
Act for which an immigrant waiver is available, the applicant may apply 
for one or more of the immigrant waivers of inadmissibility under 
section 212 of the Act, in accordance with Sec. 212.7 of this chapter. 
In considering an application for waiver under section 212(g) of the Act 
by an otherwise statutorily eligible applicant for adjustment of status 
under HRIFA who was paroled into the United States from the U.S. Naval 
Base at Guantanamo Bay, for the purpose of receiving treatment of an HIV 
or AIDS condition, the fact that his or her arrival in the United States 
was the direct result of a government decision to provide such treatment 
should be viewed as a significant positive factor when weighing 
discretionary factors. In considering an application for waiver under 
section 212(i) of the Act by an otherwise statutorily eligible applicant 
for adjustment of status under HRIFA who used counterfeit documents to 
travel from Haiti to the United States, the adjudicator shall, when 
weighing discretionary factors, take into consideration the general 
lawlessness and corruption which was widespread in Haiti at the time of 
the alien's departure, the difficulties in obtaining legitimate 
departure documents at that time, and other factors unique to Haiti at 
that time which may have induced the alien to commit fraud or make 
willful misrepresentations.
    (3) Special rule for waiver of inadmissibility grounds for HRIFA 
applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An 
applicant for adjustment of status under HRIFA who is inadmissible under 
section 212(a)(9)(A) or 212(a)(9)(C) of the Act, may apply for a waiver 
of these grounds of inadmissibility while present in the United States. 
Such an alien must file Form I-601, Application for Waiver of Grounds of 
Excludability. If the application for adjustment is pending at the 
Nebraska Service Center, Form I-601 must be filed with the director of 
that office. If the application for adjustment is pending at a district 
office, Form I-601 must be filed with the district director having 
jurisdiction over the application. If the application for adjustment is 
pending before the immigration court, Form I-601 must be filed with the 
immigration judge having jurisdiction, or with the Board of Immigration 
Appeals if the appeal is pending before the Board.
    (f) Time for filing of applications--(1) Applications for HRIFA 
benefits by a principal HRIFA applicant. The application period begins 
on June 11, 1999. To benefit from the provisions of section 902 of 
HRIFA, an alien who is applying for adjustment as a principal applicant 
must properly file an application for adjustment of status before April 
1, 2000.
    (2) Applications by dependent aliens. The spouse, minor child, or 
unmarried son or daughter of an alien who is eligible for adjustment of 
status as a principal beneficiary under HRIFA may file an application 
for adjustment of status under this section concurrently with or 
subsequent to the filing of the application of the principal HRIFA 
beneficiary. An application filed by a dependent may not be approved 
prior to approval of the principal's application.
    (g) Jurisdiction for filing of applications--(1) Filing of 
applications with the

[[Page 528]]

Service. The Service has jurisdiction over all applications for the 
benefits of section 902 of HRIFA as a principal applicant or as a 
dependent under this section, except for applications filed by aliens 
who are in pending immigration proceedings as provided in paragraph 
(g)(2) of this section. All applications filed with the Service for the 
benefits of section 902 of HRIFA must be submitted by mail to: USINS 
Nebraska Service Center, PO Box 87245, Lincoln, NE 68501-7245. After 
proper filing of the application, the Service will instruct the 
applicant to appear for fingerprinting as prescribed in Sec. 103.2(e) 
of this chapter. The Director of the Nebraska Service Center shall have 
jurisdiction over all applications filed with the Service for adjustment 
of status under section 902 of HRIFA, unless the Director refers the 
applicant for a personal interview at a local Service office as provided 
in paragraph (o)(1) of this section.
    (2) Filing of applications by aliens in pending exclusion, 
deportation, or removal proceedings. An alien who is in exclusion, 
deportation, or removal proceedings pending before the Immigration Court 
or the Board, or who has a pending motion to reopen or motion to 
reconsider filed with the Immigration Court or the Board on or before 
May 12, 1999, must apply for HRIFA benefits to the Immigration Court or 
the Board, as provided in paragraph (p)(1) of this section, rather than 
to the Service. However, an alien whose proceeding has been 
administratively closed (see paragraph (p)(4) of this section) may only 
apply for HRIFA benefits with the Service as provided in paragraph 
(g)(1) of this section.
    (3)(i) Filing of applications with the Service by aliens who are 
subject to a final order of exclusion, deportation, or removal. An alien 
who is subject to a final order of exclusion, deportation, or removal, 
and who has not been denied adjustment of status under section 902 of 
HRIFA by the Immigration Court or the Board, may only apply for HRIFA 
benefits with the Service as provided in paragraph (g)(1) of this 
section. This includes applications for HRIFA benefits filed by aliens 
who have filed a motion to reopen or motion to reconsider a final order 
after May 12, 1999.
    (ii) An alien present in the United States who is subject to a final 
order of exclusion, deportation, or removal and has been denied 
adjustment of status under section 902 of HRIFA by the Immigration Court 
or the Board, or who never applied for adjustment of status with the 
Service, an Immigration Court, or the Board on or before March 31, 2000, 
and who was made eligible for HRIFA benefits under the Legal Immigration 
Family Equity Act of 2000 (LIFE Act) and LIFE amendments, Public Law 
106-553 and Public Law 106-554, respectively, may file a motion to 
reopen with either the Immigration Court or the Board, whichever had 
jurisdiction last. As provided by the LIFE Act, motions to reopen must 
be filed on or before June 19, 2001.
    (iii) Stay of final order of exclusion, deportation, or removal. The 
filing of an application for adjustment under section 902 of HRIFA with 
the Service shall not stay the execution of such final order unless the 
applicant has requested and been granted a stay in connection with the 
HRIFA application. An alien who has filed a HRIFA application with the 
Service may file an Application for Stay of Removal (Form I-246) in 
accordance with section 241(c)(2) of the Act and Sec. 241.6 of this 
chapter.
    (iv) Grant of stay. Absent evidence of the applicant's statutory 
ineligibility for adjustment of status under section 902 of HRIFA or 
significant negative discretionary factors, a Form I-246 filed by a bona 
fide applicant for adjustment under section 902 of HRIFA shall be 
approved and the removal of the applicant shall be stayed until such 
time as the Service has adjudicated the application for adjustment in 
accordance with this section.
    (h) Application and supporting documents. Each applicant for 
adjustment of status must file an Application to Register Permanent 
Residence or Adjust Status (Form I-485). An applicant should complete 
Part 2 of Form I-485 by checking box ``h--other'' and writing ``HRIFA--
Principal'' or ``HRIFA--Dependent'' next to that block. Each application 
must be accompanied by:
    (1) Application fee. The fee for Form I-485 prescribed in Sec. 
103.7(b)(1) of this chapter;

[[Page 529]]

    (2) Fingerprinting fee. If the applicant is 14 years of age or 
older, the fee for fingerprinting prescribed in Sec. 103.7(b)(1) of 
this chapter;
    (3) Identifying information. (i) A copy of the applicant's birth 
certificate or other record of birth as provided in paragraph (m) of 
this section;
    (ii) A completed Biographic Information Sheet (Form G-325A), if the 
applicant is between 14 and 79 years of age;
    (iii) A report of medical examination, as specified in Sec. 245.5 
of this chapter; and
    (iv) Two photographs, as described in the instructions to Form I-
485;
    (4) Arrival-Departure Record. A copy of the Form I-94, Arrival-
Departure Record, issued at the time of the applicant's arrival in the 
United States, if the alien was inspected and admitted or paroled;
    (5) Police clearances. If the applicant is 14 years old or older, a 
police clearance from each municipality where the alien has resided for 
6 months or longer since arriving in the United States. If there are 
multiple local law enforcement agencies (e.g., city police and county 
sheriff) with jurisdiction over the alien's residence, the applicant may 
obtain a clearance from either agency. If the applicant resides or 
resided in a State where the State police maintain a compilation of all 
local arrests and convictions, a statewide clearance is sufficient. If 
the applicant presents a letter from the local police agencies involved, 
or other evidence, to the effect that the applicant attempted to obtain 
such clearance but was unable to do so because of local or State policy, 
the director or immigration judge having jurisdiction over the 
application may waive the local police clearance. Furthermore, if such 
local police agency has provided the Service or the Immigration Court 
with a blanket statement that issuance of such police clearance is 
against local or State policy, the director or immigration judge having 
jurisdiction over the case may waive the local police clearance 
requirement regardless of whether the applicant individually submits a 
letter from that local police agency;
    (6) Proof of Haitian nationality. If the applicant acquired Haitian 
nationality other than through birth in Haiti, a copy of the certificate 
of naturalization or certificate of citizenship issued by the Haitian 
government; and
    (7) Additional supporting evidence. Additional supporting evidence 
pertaining to the applicant as provided in paragraphs (i) through (l) of 
this section.
    (i) Evidence of presence in the United States on December 31, 1995. 
An alien seeking HRIFA benefits as a principal applicant must provide 
with the application evidence establishing the alien's presence in the 
United States on December 31, 1995. Such evidence may consist of the 
evidence listed in Sec. 245.22.
    (j) Evidence of continuity of presence in the United States since 
December 31, 1995. An alien seeking HRIFA benefits as a principal 
applicant, or as the unmarried son or daughter of a principal applicant, 
must provide with the application evidence establishing continuity of 
the alien's physical presence in the United States since December 31, 
1995. (This requirement does not apply to a dependent seeking HRIFA 
benefits as the spouse or minor child of a principal applicant.)
    (1) Evidence establishing presence. Evidence establishing the 
continuity of the alien's physical presence in the United States since 
December 31, 1995, may consist of any documentation issued by any 
governmental or nongovernmental authority, provided such evidence bears 
the name of the applicant, was dated at the time it was issued, and 
bears the signature, seal, or other authenticating instrument of the 
authorized representative of the issuing authority, if the document 
would normally contain such authenticating instrument.
    (2) Examples. Documentation establishing continuity of physical 
presence may include, but is not limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a dated bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, payment, 
or other transaction;

[[Page 530]]

    (viii) Certified copies of records maintained by organizations 
chartered by the Federal or State government, such as public utilities, 
accredited private and religious schools, and banks;
    (ix) If the applicant establishes that a family unit was in 
existence and cohabiting in the United States, documents evidencing 
presence of another member of that same family unit; and
    (x) For applicants who have had ongoing correspondence or other 
interaction with the Service, a list of the types and dates of such 
correspondence or other contact that the applicant knows to be contained 
or reflected in Service records.
    (3) Evidence relating to absences from the United States since 
December 31, 1995. If the alien is applying as a principal applicant, or 
as the unmarried son or daughter of a principal applicant, and has 
departed from and returned to the United States since December 31, 1995, 
the alien must provide with the application an attachment on a plain 
piece of paper showing:
    (i) The date of the applicant's last arrival in the United States 
before December 31, 1995;
    (ii) The date of each departure (if any) from the United States 
since that arrival;
    (iii) The reason for each departure; and
    (iv) The date, manner, and place of each return to the United 
States.
    (k) Evidence establishing the alien's eligibility under section 
902(b) of HRIFA. An alien seeking HRIFA benefits as a principal 
applicant must provide with the application evidence establishing that 
the alien satisfies one of the eligibility standards described in 
paragraph (b)(1) of this section.
    (1) Applicant for asylum. If the alien is a principal applicant who 
filed for asylum before December 31, 1995, the applicant must provide 
with the application either:
    (i) A photocopy of the first page of the Application for Asylum and 
Withholding of Removal (Form I-589); or
    (ii) If the alien is not in possession of a photocopy of the first 
page of the Form I-589, a statement to that effect giving the date of 
filing and the location of the Service office or Immigration Court at 
which it was filed;
    (2) Parolee. If the alien is a principal applicant who was paroled 
into the United States prior to December 31, 1995, after having been 
identified as having a credible fear of persecution, or paroled for 
emergent reasons or reasons deemed strictly in the public interest, the 
applicant must provide with the application either:
    (i) A photocopy of the Arrival-Departure Record (Form I-94) issued 
when he or she was granted parole; or
    (ii) If the alien is not in possession of the original Form I-94, a 
statement to that effect giving the date of parole and the location of 
the Service port-of-entry at which parole was authorized.
    (3) Child without parents. If the alien is a principal applicant who 
arrived in the United States as a child without parents in the United 
States, the applicant must provide with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(3)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Evidence establishing the absence of the child's parents, which 
may include either:
    (A) Evidence showing the deaths of, or disappearance or desertion 
by, the applicant's parents; or
    (B) Evidence showing that the applicant's parents did not live in 
the United States with the applicant. Such evidence may include, but is 
not limited to, documentation or affidavits showing that the applicant's 
parents have been continuously employed outside the United States, are 
deceased, disappeared, or abandoned the applicant prior to the 
applicant's arrival, or were otherwise engaged in activities showing 
that they were not in the United States, or (if they have been in the 
United States) that the applicant

[[Page 531]]

and his or her parents did not reside together.
    (4) Orphaned child. If the alien is a principal applicant who is or 
was a child who became orphaned subsequent to arrival in the United 
States, the applicant must provide with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(4)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Either:
    (A) The death certificates of both parents (or in the case of a 
child having only one parent, the death certificate of the sole parent) 
showing that the death or deaths occurred after the date of the 
applicant's arrival in the United States;
    (B) Evidence from a State, local, or other court or governmental 
authority having jurisdiction and authority to make decisions in matters 
of child welfare establishing the disappearance of, the separation or 
loss from, or desertion by, both parents (or, in the case of a child 
born out of wedlock who has not been legitimated, the sole parent); or
    (C) Evidence of:
    (1) Either:
    (i) The child having only a sole parent, as that term is defined in 
Sec. 204.3(b) of this chapter;
    (ii) The death of one parent; or
    (iii) Certification by competent Haitian authorities that one parent 
is presumed dead as a result of his or her disappearance, within the 
meaning of that term as set forth in Sec. 204.3(b) of this chapter; and
    (2) A copy of a written statement executed by the sole parent, or 
the sole remaining parent, irrevocably releasing all parental rights 
based upon the inability of that parent to provide proper care for the 
child.
    (5) Abandoned child. If the alien is a principal applicant who was 
abandoned by parents or guardians prior to April 1, 1998, and has 
remained abandoned since such abandonment, the applicant must provide 
with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(5)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Either:
    (A) Evidence from a State, local, or other court or governmental 
authority having jurisdiction and authority to make decisions in matters 
of child welfare establishing such abandonment; or
    (B) Evidence to establish that the applicant would have been 
considered to be abandoned according to the laws of the State where he 
or she resides, or where he or she resided at the time of the 
abandonment, had the issue been presented to the proper authorities.
    (l) Evidence relating to applications by dependents under section 
902(d) of HRIFA--(1) Evidence of spousal relationship. If the alien is 
applying as the spouse of a principal HRIFA beneficiary, the applicant 
must provide with the application a copy of their certificate of 
marriage and copies of documents showing the legal termination of all 
other marriages by the applicant or the other beneficiary.
    (2) Evidence of parent-child relationship. If the applicant is 
applying as the child, unmarried son, or unmarried daughter of a 
principal HRIFA beneficiary, and the principal beneficiary is not the 
applicant's biological mother, the applicant must provide with the 
application evidence to demonstrate the parent-child relationship 
between the principal beneficiary and the applicant. Such evidence may 
include copies

[[Page 532]]

of the applicant's parent's marriage certificate and documents showing 
the legal termination of all other marriages, an adoption decree, or 
other relevant evidence.
    (m) Secondary evidence. Except as otherwise provided in this 
paragraph, if the primary evidence required in this section is 
unavailable, church or school records, or other secondary evidence 
pertinent to the facts in issue, may be submitted. If such documents are 
unavailable, affidavits may be submitted. The applicant may submit as 
many types of secondary evidence as necessary to establish birth, 
marriage, or other relevant events. Documentary evidence establishing 
that primary evidence is unavailable must accompany secondary evidence 
of birth or marriage in the home country. The unavailability of such 
documents may be shown by submission of a copy of the written request 
for a copy of such documents which was sent to the official keeper of 
the records. In adjudicating the application for adjustment of status 
under section 902 of HRIFA, the Service or immigration judge shall 
determine the weight to be given such secondary evidence. Secondary 
evidence may not be submitted in lieu of the documentation specified in 
paragraphs (i) or (j) of this section. However, subject to verification 
by the Service, if the documentation specified in this paragraph or in 
paragraphs (h)(3)(i), (i), (j), (l)(1), and (l)(2) of this section is 
already contained in the Service's file relating to the applicant, the 
applicant may submit an affidavit to that effect in lieu of the actual 
documentation.
    (n) Authorization to be employed in the United States while the 
application is pending--(1) Application for employment authorization. An 
applicant for adjustment of status under section 902 of HRIFA who wishes 
to obtain initial or continued employment authorization during the 
pendency of the adjustment application must file an Application for 
Employment Authorization (Form I-765) with the Service, including the 
fee as set forth in Sec. 103.7(b)(1) of this chapter. The applicant may 
submit Form I-765 either concurrently with or subsequent to the filing 
of the application for HRIFA benefits on Form I-485.
    (2) Adjudication and issuance. Employment authorization may not be 
issued to an applicant for adjustment of status under section 902 of 
HRIFA until the adjustment application has been pending for 180 days, 
unless the Director of the Nebraska Service Center verifies that Service 
records contain evidence that the applicant meets the criteria set forth 
in section 902(b) or 902(d) of HRIFA, and determines that there is no 
indication that the applicant is clearly ineligible for adjustment of 
status under section 902 of HRIFA, in which case the Director may 
approve the application for employment authorization, and issue the 
resulting document, immediately upon such verification. If the Service 
fails to adjudicate the application for employment authorization upon 
expiration of the 180-day waiting period, or within 90 days of the 
filing of application for employment authorization, whichever comes 
later, the alien shall be eligible for interim employment authorization 
in accordance with Sec. 274a.13(d) of this chapter. Nothing in this 
section shall preclude an applicant for adjustment of status under HRIFA 
from being granted an initial employment authorization or an extension 
of employment authorization under any other provision of law or 
regulation for which the alien may be eligible.
    (o) Adjudication of HRIFA applications filed with the Service--(1) 
Referral for interview. Except as provided in paragraphs (o)(2) and 
(o)(3) of this section, all aliens filing applications for adjustment of 
status with the Service under this section must be personally 
interviewed by an immigration officer at a local office of the Service. 
If the Director of the Nebraska Service Center determines that an 
interview of the applicant is necessary, the Director shall forward the 
case to the appropriate local Service office for interview and 
adjudication.
    (2) Approval without interview. Upon examination of the application, 
including all other evidence submitted in support of the application, 
all relevant Service records and all other relevant law enforcement 
indices, the Director may approve the application without an interview 
if the Director determines that:

[[Page 533]]

    (i) The alien's claim to eligibility for adjustment of status under 
section 902 of HRIFA is verified through existing Service records; and
    (ii) The alien is clearly eligible for adjustment of status.
    (3) Denial without interview. If, upon examination of the 
application, all supporting documentation, all relevant Service records, 
and all other relevant law enforcement indices, the Director determines 
that the alien is clearly ineligible for adjustment of status under 
HRIFA and that an interview of the applicant is not necessary, the 
Director may deny the application.
    (p) Adjudication of HRIFA applications filed in pending exclusion, 
deportation, or removal proceedings--(1) Proceedings pending before an 
Immigration Court. Except as provided in paragraph (p)(4) of this 
section, the Immigration Court shall have sole jurisdiction over an 
application for adjustment of status under this section filed by an 
alien who is in exclusion, deportation, or removal proceedings pending 
before an immigration judge or the Board, or who has a pending motion to 
reopen or motion to reconsider filed with an immigration judge or the 
Board on or before May 12, 1999. The immigration judge having 
jurisdiction over the exclusion, deportation, or removal proceedings 
shall have jurisdiction to accept and adjudicate any application for 
adjustment of status under section 902 of HRIFA during the course of 
such proceedings. All applications for adjustment of status under 
section 902 of HRIFA filed with an Immigration Court shall be subject to 
the requirements of Sec. Sec. 3.11 and 3.31 of this chapter.
    (2) Motion to reopen or motion to reconsider. If an alien who has a 
pending motion to reopen or motion to reconsider timely filed with an 
immigration judge on or before May 12, 1999, files an application for 
adjustment of status under section 902 of HRIFA, the immigration judge 
shall reopen the alien's proceedings for consideration of the adjustment 
application, unless the alien is clearly ineligible for adjustment of 
status under section 902 of HRIFA.
    (3) Proceedings pending before the Board. Except as provided in 
paragraph (d)(4) of this section, in the case of an alien who either has 
a pending appeal with the Board or has a pending motion to reopen or 
motion to reconsider timely filed with the Board on or before May 12, 
1999, the Board shall remand, or reopen and remand, the proceedings to 
the Immigration Court for the sole purpose of adjudicating an 
application for adjustment of status under section 902 of HRIFA, unless 
the alien is clearly ineligible for adjustment of status under section 
902 of HRIFA. If the immigration judge denies, or the alien fails to 
file, the application for adjustment of status under section 902 of 
HRIFA, the immigration judge shall certify the decision to the Board for 
consideration in conjunction with the applicant's previously pending 
appeal or motion.
    (4) Administrative closure of exclusion, deportation, or removal 
proceedings. (i) An alien who is in exclusion, deportation, or removal 
proceedings, or who has a pending motion to reopen or a motion to 
reconsider such proceedings filed on or before May 12, 1999, may request 
that the proceedings be administratively closed, or that the motion be 
indefinitely continued, in order to allow the alien to file such 
application with the Service as prescribed in paragraph (g) of this 
section. If the alien appears to be eligible to file an application for 
adjustment of status under this section, the Immigration Court or the 
Board (whichever has jurisdiction) shall, with the concurrence of the 
Service, administratively close the proceedings or continue indefinitely 
the motion.
    (ii) In the case of an otherwise-eligible alien whose exclusion, 
deportation, or removal proceedings have been administratively closed 
for reasons not specified in this section, the alien may only apply 
before the Service for adjustment of status under this section.
    (q) Approval of HRIFA applications--(1) Applications approved by the 
Service. If the Service approves the application for adjustment of 
status under the provisions of section 902 of HRIFA, the director shall 
record the alien's lawful admission for permanent residence as of the 
date of such approval and notify the applicant accordingly. The director 
shall also advise the alien regarding the delivery of his or her 
Permanent Resident Card and of the process for

[[Page 534]]

obtaining temporary evidence of alien registration. If the alien had 
previously been issued a final order of exclusion, deportation, or 
removal, such order shall be deemed canceled as of the date of the 
director's approval of the application for adjustment of status. If the 
alien had been in exclusion, deportation, or removal proceedings that 
were administratively closed, such proceedings shall be deemed 
terminated as of the date of approval of the application for adjustment 
of status by the director.
    (2) Applications approved by an immigration judge or the Board. If 
an immigration judge or (upon appeal) the Board grants an application 
for adjustment under the provisions of section 902 of HRIFA, the date of 
the alien's lawful admission for permanent residence shall be the date 
of such grant.
    (r) Review of decisions by the Service denying HRIFA applications--
(1)(i) Denial notification. If the Service denies the application for 
adjustment of status under the provisions of section 902 of HRIFA, the 
director shall notify the applicant of the decision and of any right to 
renew the application in proceedings before the Immigration Court.
    (ii) An alien made eligible for adjustment of status under HRIFA by 
the LIFE Act amendments and whose case has not been referred to EOIR 
under paragraphs (r)(2) or (r)(3) of this section, may file a motion to 
reopen with the Service.
    (2) Renewal of application for HRIFA benefits in removal, 
deportation, or exclusion proceedings. An alien who is not the subject 
of a final order of removal, deportation, or exclusion may renew his or 
her application for adjustment under section 902 of HRIFA during the 
course of such removal, deportation, or exclusion proceedings.
    (i) Initiation of removal proceedings. In the case of an alien who 
is not maintaining valid nonimmigrant status and who had not previously 
been placed in exclusion, deportation, or removal proceedings, the 
director shall initiate removal proceedings in accordance with Sec. 
239.1 of this chapter.
    (ii) Recalendaring or reinstatement of prior proceedings. In the 
case of an alien whose previously initiated exclusion, deportation, or 
removal proceeding had been administratively closed or continued 
indefinitely under paragraph (p)(4) of this section, the director shall 
make a request for recalendaring or reinstatement to the Immigration 
Court that had administratively closed the proceeding, or the Board, as 
appropriate, when the application has been denied. The Immigration Court 
or the Board will then recalendar or reinstate the prior exclusion, 
deportation, or removal proceeding.
    (iii) Filing of renewed application. A principal alien may file a 
renewed application for HRIFA benefits with the Immigration Court either 
before or after March 31, 2000, if he or she had filed his or her 
initial application for such benefits with the Service on or before 
March 31, 2000. A dependent of a principal applicant may file such 
renewed application with the Immigration Court either before or after 
March 31, 2000, regardless of when he or she filed his or her initial 
application for HRIFA benefits with the Service.
    (3) Aliens with final orders. In the case of an alien who is the 
subject of an outstanding final order of exclusion, deportation, or 
removal, the Service shall refer the decision to deny the application by 
filing a Notice of Certification (Form I-290C) with the Immigration 
Court that issued the final order for consideration in accordance with 
paragraph (s) of this section.
    (4)(i) An alien whose case has been referred to the Immigration 
Court under paragraphs (r)(2) or (r)(3) of this section, or who filed an 
appeal with the Board after his or her application for adjustment of 
status under section 902 of HRIFA was denied, and whose proceedings are 
pending, and who is now eligible for adjustment of status under HRIFA as 
amended by section 1505(b) of the LIFE Act and its amendments, may renew 
the application for adjustment of status with either the Immigration 
Court or the Board, whichever has jurisdiction. The application will be 
adjudicated in accordance with section 1505(b) of the LIFE Act and its 
amendments.
    (ii) An alien present in the United States who is subject to a final 
order of exclusion, deportation or removal after his or her HRIFA 
adjustment application was denied by an Immigration

[[Page 535]]

Court or the Board, but who was made eligible for HRIFA adjustment as a 
result of section 1505(b) of the LIFE Act and its amendments, may file a 
motion to reopen with either the Immigration Court or the Board, 
whichever had jurisdiction last. Such motion to reopen must be filed on 
or before June 19, 2001.
    (s) Action on decisions referred to the Immigration Court by a 
Notice of Certification (Form I-290C)--(1) General. Upon the referral by 
a Notice of Certification (Form I-290C) of a decision to deny the 
application, in accordance with paragraph (r)(3) of this section, the 
immigration judge shall conduct a hearing, under the authority contained 
in Sec. 3.10 of this chapter, to determine whether the alien is 
eligible for adjustment of status under section 902 of HRIFA. Such 
hearing shall be conducted under the same rules of procedure as 
proceedings conducted under part 240 of this chapter, except the scope 
of review shall be limited to a determination of the alien's eligibility 
for adjustment of status under section 902 of HRIFA. During such 
proceedings, all parties are prohibited from raising or considering any 
unrelated issues, including, but not limited to, issues of 
admissibility, deportability, removability, and eligibility for any 
remedy other than adjustment of status under section 902 of HRIFA. 
Should the alien fail to appear for such hearing, the immigration judge 
shall deny the application for adjustment under section 902 of HRIFA.
    (2) Stay pending review. When the Service refers a decision to the 
Immigration Court on a Notice of Certification (Form I-290C) in 
accordance with paragraph (r)(3) of this section, the referral shall not 
stay the execution of the final order. Execution of such final order 
shall proceed unless a stay of execution is specifically granted by the 
immigration judge, the Board, or an authorized Service officer.
    (3) Appeal of Immigration Court decision. Once the immigration judge 
issues his or her decision on the application, either the alien or the 
Service may appeal the decision to the Board. Such appeal must be filed 
pursuant to the requirements for appeals to the Board from an 
Immigration Court decision set forth in Sec. Sec. 3.3 and 3.8 of this 
chapter.
    (4) Rescission or reopening of the decision of an Immigration Court. 
The decision of an Immigration Court under paragraph (s)(1) of this 
section denying an application for adjustment under section 902 of HRIFA 
for failure to appear may be rescinded or reopened only:
    (i) Upon a motion to reopen filed within 180 days after the date of 
the denial if the alien demonstrates that the failure to appear was 
because of exceptional circumstances as defined in section 240(e)(1) of 
the Act;
    (ii) Upon a motion to reopen filed at any time if the alien 
demonstrates that he or she did not receive notice of the hearing in 
person (or, if personal service was not practicable, through service by 
mail to the alien or to the alien's counsel of record, if any) or the 
alien demonstrates that he or she was in Federal or State custody and 
the failure to appear was through no fault of the alien; or
    (iii) Upon a motion to reopen filed not later than June 19, 2001, by 
an alien present in the United States who became eligible for adjustment 
of status under HRIFA, as amended by section 1505, of Public Law 106-
554.
    (t) Parole authorization for purposes of travel--(1) Travel from and 
return to the United States while the application for adjustment of 
status is pending. If an applicant for benefits under section 902 of 
HRIFA desires to travel outside, and return to, the United States while 
the application for adjustment of status is pending, he or she must file 
a request for advance parole authorization on an Application for Travel 
Document (Form I-131), with fee as set forth in Sec. 103.7(b)(1) of 
this chapter and in accordance with the instructions on the form. If the 
alien is either in deportation or removal proceedings, or subject to a 
final order of deportation or removal, the Form I-131 must be submitted 
to the Director, Office of International Affairs; otherwise the Form I-
131 must be submitted to the Director of the Nebraska Service Center, 
who shall have jurisdiction over such applications. Unless the applicant 
files an advance parole request prior to departing from the United 
States, and the Service approves such request, his or

[[Page 536]]

her application for adjustment of status under section 902 of HRIFA is 
deemed to be abandoned as of the moment of his or her departure. Parole 
may only be authorized pursuant to the authority contained in, and the 
standards prescribed in, section 212(d)(5) of the Act.
    (2) Parole authorization for the purpose of filing an application 
for adjustment of status under section 902 of HRIFA. (i) An otherwise 
eligible applicant who is outside the United States and wishes to come 
to the United States in order to apply for benefits under section 902 of 
HRIFA may request parole authorization for such purpose by filing an 
Application for Travel Document (Form I-131) with the Nebraska Service 
Center, at P.O. Box 87245, Lincoln, NE 68501-7245. Such application must 
be supported by a photocopy of the Form I-485 that the alien will file 
once he or she has been paroled into the United States. The applicant 
must include photocopies of all the supporting documentation listed in 
paragraph (h) of this section, except the filing fee, the medical 
report, the fingerprint card, and the local police clearances.
    (ii) If the Director of the Nebraska Service Center is satisfied 
that the alien will be eligible for adjustment of status once the alien 
has been paroled into the United States and files the application, he or 
she may issue an Authorization for Parole of an Alien into the United 
States (Form I-512) to allow the alien to travel to, and be paroled 
into, the United States for a period of 60 days.
    (iii) The applicant shall have 60 days from the date of parole to 
file the application for adjustment of status. If the alien files the 
application for adjustment of status within that 60-day period, the 
Service may re-parole the alien for such time as is necessary for 
adjudication of the application. Failure to file such application for 
adjustment of status within 60 days shall result in the alien being 
returned to the custody of the Service and being examined as an arriving 
alien applying for admission. Such examination will be conducted in 
accordance with the provisions of section 235(b)(1) of the Act if the 
alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the 
Act, or section 240 of the Act if the alien is inadmissible under any 
other grounds.
    (iv) Parole may only be authorized pursuant to the authority 
contained in, and the standards prescribed in, section 212(d)(5) of the 
Act. The authority of the Director of the Nebraska Service Center to 
authorize parole from outside the United States under this provision 
shall expire on March 31, 2000.
    (3) Effect of departure on an outstanding warrant of exclusion, 
deportation, or removal. If an alien who is the subject of an 
outstanding final order of exclusion, deportation, or removal departs 
from the United States, with or without an advance parole authorization, 
such final order shall be executed by the alien's departure. The 
execution of such final order shall not preclude the applicant from 
filing an Application for Permission to Reapply for Admission Into the 
United States After Deportation or Removal (Form I-212) in accordance 
with Sec. 212.2 of this chapter.
    (u) Tolling the physical presence in the United States provision for 
certain individuals--(1) Departure with advance authorization for 
parole. In the case of an alien who departed the United States after 
having been issued an Authorization for Parole of an Alien into the 
United States (Form I-512), and who returns to the United States in 
accordance with the conditions of that document, the physical presence 
in the United States requirement of section 902(b)(1) of HRIFA is tolled 
while the alien is outside the United States pursuant to the issuance of 
the Form I-512.
    (2) Request for parole authorization from outside the United States. 
In the case of an alien who is outside the United States and submits an 
application for parole authorization in accordance with paragraph (t)(2) 
of this section, and such application for parole authorization is 
granted by the Service, the physical presence requirement contained in 
section 902(b)(1) of HRIFA is tolled from the date the application is 
received at the Nebraska Service Center until the alien is paroled into 
the United States pursuant to the issuance of the Form I-512.
    (3) Departure without advance authorization for parole. In the case 
of an otherwise-eligible applicant who departed

[[Page 537]]

the United States on or before December 31, 1998, the physical presence 
in the United States provision of section 902(b)(1) of HRIFA is tolled 
as of October 21, 1998, and until July 12, 1999.
    (v) Judicial review of HRIFA adjustment of status determinations. 
Pursuant to the provisions of section 902(f) of HRIFA, there shall be no 
judicial appeal or review of any administrative determination as to 
whether the status of an alien should be adjusted under the provisions 
of section 902 of HRIFA.

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