[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR245.13]



[Page 516-525]

 

                     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. 245.13  Adjustment of status of certain nationals of Nicaragua 

and Cuba under Public Law 105-100.



    (a) Aliens eligible to apply for adjustment. An alien is eligible to 

apply for adjustment of status under the provisions of section 202 of 

Pub. L. 105-100 as amended and without regard to section 241(a)(5) of 

the Act, if the alien:

    (1) Is a national of Nicaragua or Cuba;

    (2) Except as provided in paragraph (o) of this section, has been 

physically present in the United States for a continuous period 

beginning not later than December 1, 1995, and ending not earlier that 

the date the application for adjustment is granted, excluding:

    (i) Any 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;

    (3) Is not inadmissible to the United States for permanent residence 

under any provisions of section 212(a) of the Act, with the exception of 

paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If available, an 

applicant may apply for an individual waiver as provided in paragraph 

(c) of this section;

    (4) Is physically present in the United States at the time the 

application is filed; and

    (5) Properly files an application for adjustment of status in 

accordance with this section.

    (b) Qualified family members--(1) Existence of relationship at time 

of adjustment.



[[Page 517]]



The spouse, child, or unmarried son or daughter of an alien eligible for 

adjustment of status under the provisions of Pub. L. 105-100 is eligible 

to apply for benefits as a dependent provided the qualifying 

relationship existed when the principal beneficiary was granted 

adjustment of status and the dependent meets all applicable requirements 

of sections 202(a) and (d) of Pub. L. 105-100.

    (2) Spouse and minor children. If physically present in the United 

States, the spouse or minor child of an alien who is eligible for 

permanent residence under the provisions of Pub. L. 105-100 may also 

apply for and receive adjustment of status under this section, provided 

such spouse or child meets the criteria established in paragraph (a) of 

this section, except for the requirement of continuous physical presence 

in the United States since December 1, 1995. Such application may be 

filed concurrently with or subsequent to the filing of the principal's 

application but may not be approved prior to approval of the principal's 

application.

    (3) Unmarried adult sons and daughters. An unmarried son or daughter 

of an alien who is eligible for permanent residence under the provisions 

of Pub. L. 105-100 may apply for and receive adjustment under this 

section, provided such son or daughter meets the criteria established in 

paragraph (a) of this section.

    (c) Applicability of inadmissibility grounds contained in section 

212(a)--(1) General. An applicant for the benefits of the adjustment of 

status provisions of section 202 of Pub. L. 105-100 need not establish 

admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of 

section 212(a) of the Act in order to be able to adjust his or her 

status to that of permanent resident. An applicant under section 202 of 

Pub. L. 105-100 may also apply for one or more of the immigrant waivers 

of inadmissibility under section 212 of the Act, if applicable, in 

accordance with Sec. 212.7 of this chapter.

    (2) Special rule for waiver of inadmissibility grounds for NACARA 

applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An 

applicant for adjustment of status under section 202 of Public Law 105-

100 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 a Form I-

601, Application for Waiver of Grounds of Excludability, with the 

director of the Texas Service Center if the application for adjustment 

is pending at that office, with the district director having 

jurisdiction over the application if the application for adjustment is 

pending at a district office, with the Immigration Judge having 

jurisdiction if the application for adjustment is pending before the 

Immigration Court, or with the Board of Immigration Appeals if the 

appeal is pending before the Board.

    (d) General--(1) Proceedings pending before an Immigration Court. 

Except as provided in paragraph (d)(3) of this section, while an alien 

is in exclusion, deportation, or removal proceedings pending before an 

immigration judge, or has a pending motion to reopen or motion to 

reconsider filed with an immigration judge on or before May 21, 1998, 

sole jurisdiction over an application for adjustment of status under 

section 202 of Public Law 105-100 shall lie with the immigration judge. 

If an alien who has a pending motion to reopen or motion to reconsider 

filed with an immigration judge on or before May 21, 1998 files an 

application for adjustment of status under section 202 of Pub. L. 105-

100, 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 202 of Pub. L. 105-

100. All applications for adjustment of status under section 202 of Pub. 

L. 105-100 filed with an Immigration Court shall be subject to the 

requirements of Sec. Sec. 3.11 and 3.31 of this chapter.

    (2) Proceedings pending before the Board of Immigration Appeals. 

Except as provided in paragraph (d)(3) of this section, in cases where a 

motion to reopen or motion to reconsider filed with the Board on or 

before May 21, 1998, or an appeal, is pending, 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



[[Page 518]]



under section 202 of Public Law 105-100, unless the alien is clearly 

ineligible for adjustment of status under section 202 of Public Law 105-

100. If the immigration judge denies, or the alien fails to file, the 

application for adjustment of status under section 202 of Public Law 

105-100, the immigration judge shall certify the decision to the Board 

for consideration in conjunction with the previously pending appeal or 

motion.

    (3) Administrative closure of pending exclusion, deportation, or 

removal proceedings. (i) In the case of an alien who is in exclusion, 

deportation, or removal proceedings, or has a pending motion to reopen 

or a motion to reconsider such proceedings filed on or before May 21, 

1998, and who appears to be eligible to file an application for 

adjustment of status under section 202 of Pub. L. 105-100, the 

Immigration Court having jurisdiction over such proceedings or motion, 

or if the matter is before the Board on appeal or by motion, the Board, 

shall, upon request of the alien and with the concurrence of the 

Service, administratively close the proceedings, or continue 

indefinitely the motion, to allow the alien to file such application 

with the Service as prescribed in paragraph (g) of this section.

    (ii) In any case not administratively closed in accordance with 

paragraph (d)(3)(i) of this section, 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 202 of Pub. L. 105-100 during the 

course of such proceedings.

    (4)(i) Aliens with final orders 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 202 of Public Law 105-100 by the immigration judge 

or the Board of Immigration Appeals, may apply to the Service for 

adjustment of status under section 202 of Pub. L. 105-100.

    (ii) An alien may file a motion to reopen with the Immigration Court 

or the Board of Immigration Appeals, whichever had jurisdiction last, if 

the alien is present in the United States and subject to a final order 

of exclusion, deportation, or removal and has been denied adjustment of 

status under section 202 of NACARA by an Immigration Court or the Board 

or who never applied for adjustment of status on or before March 31, 

2000, with either the Service, the Immigration Court or the Board, and 

who is now eligible for adjustment as a result of section 1505(a)(1) of 

the Legal Immigration Family Equity Act of 2000 (LIFE) and the LIFE 

amendments, Public Law 106-553 and Public Law 106-554, respectively. As 

provided by Sec. 1505(a)(2) of the LIFE Act and its amendments, such a 

motion to reopen must be filed on or before June 19, 2001.

    (5) Stay of final order of exclusion, deportation, or removal--(i) 

With the Service. The filing of an application for adjustment under 

section 202 of Public Law 105-100 with the Service shall not stay the 

execution of such final order unless the applicant has filed, and the 

Service has approved 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. Absent evidence of the applicant's statutory ineligibility for 

adjustment of status under section 202 of Public Law 105-100 or 

significant negative discretionary factors, a Form I-246 filed by a bona 

fide applicant for adjustment under section 202 of Public Law 105-100 

shall be approved, and the removal of the applicant shall be stayed 

until such time as the application for adjustment has been adjudicated 

in accordance with this section.

    (ii) With EOIR. When the Service refers a decision to an immigration 

judge on a Notice of Certification (Form I-290C) in accordance with 

paragraph (m)(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.

    (6) Effect on applications for adjustment under other provisions of 

the law. Nothing in this section shall be deemed to allow any alien who 

is in either exclusion proceedings that commenced prior to April 1, 

1997, or removal proceedings as an inadmissible arriving alien that 

commenced on or after April 1, 1997,



[[Page 519]]



and who has not been paroled into the United States, to apply for 

adjustment of status under any provision of law other than section 202 

of Pub. L. 105-100.

    (e) Application and supporting documents. Each applicant for 

adjustment of status must file a Form I-485, Application to Register 

Permanent Residence or Adjust Status. An applicant should complete Part 

2 of Form I-485 by checking box ``h--other'' and writing ``NACARA--

Principal'' or ``NACARA--Dependent'' next to that block. Each 

application must be accompanied by:

    (1) The fee prescribed in Sec. 103.7(b)(1) of this chapter;

    (2) 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) Evidence of commencement of physical presence in the United 

States at any time on or before December 1, 1995. Such evidence may 

relate to any time at or after entry and may consist of either:

    (i) Documentation evidencing one or more of the activities specified 

in section 202(b)(2)(A) of Public Law 105-100;

    (ii) A copy of the Form I-94, Record of Arrival and Departure, 

issued to the applicant at the time of his or her inspection and 

admission or parole;

    (iii) Other documentation issued by a Federal, State, or local 

authority provided such other documentation bears the signature, seal, 

or other authenticating instrument of such authority (if the document 

normally bears such instrument), was dated at the time of issuance, and 

bears a date of issuance not later than December 1, 1995. Examples of 

such other documentation include, but are not limited to:

    (A) A State driver's license;

    (B) A State identification card issued in lieu of a driver's license 

to a nondriver;

    (C) A county or municipal hospital record;

    (D) A public college or public school transcript; and

    (E) Income tax records;

    (iv) A copy of a petition on behalf of the applicant that was 

submitted to the Service on or before December 1, 1995, and that lists 

the applicant as being physically present in the United States;

    (v) A certified copy of a Federal, State, or local governmental 

record that was created on or prior to December 1, 1995, shows that the 

applicant was present in the United States at the time, and establishes 

that the applicant sought on his or her own behalf, or some other party 

sought on the applicant's behalf, a benefit from the Federal, State, or 

local governmental agency keeping such record;

    (vi) A certified copy of a Federal, State, or local governmental 

record that was created on or prior to December 1, 1995, shows that the 

applicant was present in the United States at the time, and establishes 

that the applicant submitted an income tax return, property tax payment, 

or similar submission or payment to the Federal, State, or local 

governmental agency keeping such record; or

    (vii) In the case of an applicant who, while under the age of 21, 

attended a private or religious school in the United States on or prior 

to December 1, 1995, a transcript from such private or religious school, 

provided that the school:

    (A) Is registered with, approved by, or licensed by, appropriate 

State or local authorities;

    (B) Is accredited by the State or regional accrediting body, or by 

the appropriate private school association; or

    (C) Maintains enrollment records in accordance with State or local 

requirements or standards;

    (4) Evidence of continuity of physical presence in the United States 

since the last date on or prior to December 1, 1995, on which the 

applicant established commencement of physical presence in the United 

States. Such documentation may have been 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 issuing authority or its 

authorized representative, if the document would normally contain such 

authenticating instrument. Such documentation may include, but is not 

limited to:

    (i) School records;

    (ii) Rental receipts;

    (iii) Utility bill receipts;



[[Page 520]]



    (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;

    (viii) Certified copies of records maintained by organizations 

chartered by the government, such as public utilities, accredited 

private and parochial schools, and banks;

    (ix) If the applicant establishes that a family unit was in 

existence and cohabiting in the United States, documents evidencing the 

physical presence in the United States of another member of that same 

family unit; and

    (x) If the applicant has had 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;

    (5) A copy of the applicant's birth certificate;

    (6) If the applicant is between 14 and 79 years of age, a completed 

Biographic Information Sheet (Form G-325A);

    (7) A report of medical examination, as specified in Sec. 245.5;

    (8) Two photographs, as described in the instructions to Form I-485;

    (9) If the applicant is 14 years of age 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;

    (10) If the applicant is applying as the spouse of another Public 

Law 105-100 beneficiary, 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;

    (11) If the applicant is applying as the child, unmarried son, or 

unmarried daughter of another (principal) beneficiary under section 202 

of Public Law 105-100 who is not the applicant's biological mother, 

copies of evidence (such as the applicant's parent's marriage 

certificate and documents showing the legal termination of all other 

marriages, an adoption decree, or other relevant evidence) to 

demonstrate the relationship between the applicant and the other 

beneficiary;

    (12) 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; and

    (13) If the applicant has departed from and returned to the United 

States since December 1, 1995, an attachment on a plain piece of paper 

showing:

    (i) The date of the applicant's last arrival in the United States 

before or on December 1, 1995;

    (ii) The date of each departure 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.

    (f) Secondary evidence. If the primary evidence required in 

paragraph (e)(4), (e)(9) or (e)(10 of this section is unavailable, 

church or school records, or other secondary evidence pertinent to the 

facts in issue, may be submitted. If



[[Page 521]]



such documents are unavailable, affidavits may be submitted. The 

applicant may submit as many types of secondary evidence as necessary to 

establish the birth, marriage, or other event. Documentary evidence 

establishing that primary evidence is unavailable must accompany 

secondary evidence of birth or marriage in the home country. In 

adjudicating the application for adjustment of status under section 202 

of Public Law 105-100, 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 

(e)(2) and (e)(3) of this section. However, subject to verification by 

the Service, if the documentation specified in paragraphs (e)(2) and 

(e)(3) 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.

    (g) Filing. The application period begins on June 22, 1998. To 

benefit from the provisions of section 202 of Public Law 105-100, an 

alien must properly file an application for adjustment of status before 

April 1, 2000. Except as provided in paragraph (d) of this section, all 

applications for the benefits of section 202 of Pub. L. 105-100 must be 

submitted by mail to: USINS Texas Service Center, P.O. Box 851804, 

Mesquite, TX 75185-1804. All applications must be accompanied by either 

the correct fee as specified in Sec. 103.7(b)(1) of this chapter; or a 

request for a fee waiver in accordance with Sec. 103.7(c) of this 

chapter. An application received by the Service or Immigration Court 

before April 1, 2000, that has been properly signed and executed and for 

which a waiver of the filing fee has been requested shall be regarded as 

having been filed before the statutory deadline regardless of whether 

the fee waiver request is denied 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. 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 demand 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 applicaion 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. After proper filing of the application, 

the Service will notify the applicant to appear for fingerprinting as 

prescribed in Sec. 103.2(e) of this chapter.

    (h) Jurisdiction. Except as provide din paragraphs (d) and (i) of 

this section, the director of the Texas Service Center shall have 

jurisdiction over all applications for adjustment of status under 

section 202 of Public Law 105-100.

    (i) Interview. (1) Except as provided in paragraphs (d), (i)(2), and 

(i)(3) of this section, all applicants for adjustment of status under 

section 202 of Pub. L. 105-100 must be personally interviewed by an 

immigration officer at a local office of the Service. In any case in 

which the director of the Texas Service Center determines that an 

interview of the applicant is necessary, that director shall forward the 

case to the appropriate local Service office for interview and 

adjudication.

    (2) In the case of an applicant who has submitted evidence of 

commencement of physical presence in the United States consisting of one 

or more of the documents specified in section 202(b)(2)(A)(i) through 

(v) or section 202(b)(2)(A)(vii) of Pub. L. 105-100 and 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, if the director of the Texas Service Center 

determines that the alien is clearly eligible for adjustment of status 

under Pub. L. 105-100 and that an interview of the applicant is not 

necessary, the director may approve the application.

    (3) Upon examination of the application, all supporting 

documentation, all relevant Service records, and all other



[[Page 522]]



relevant law enforcement indices, if the director of the Texas Service 

Center determines that the alien is clearly ineligible for adjustment of 

status under Pub. L. 105-100 and that an interview of the applicant is 

not necessary, the director may deny the application.

    (j) Authorization to be employed in the United States while the 

application is pending--(1) Application. An applicant for adjustment of 

status under section 202 of Pub. L. 105-100 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 fee as set forth in Sec. 103.7(b)(1) 

of this chapter. The applicant may submit Form I-765 concurrently with, 

or subsequent to, the filing of the Form I-485.

    (2) Adjudication and issuance. In general, employment authorization 

may not be issued to an applicant for adjustment of status under section 

202 of Pub. L. 105-100 until the adjustment application has been pending 

for 180 days. However, if Service records contain one or more of the 

documents specified in section 202(b)(2)(A)(i) through (v) and (vii) of 

Pub. L. 105-100, evidence of the applicant's Nicaraguan or Cuban 

nationality, and no indication that the applicant is clearly ineligible 

for adjustment of status under section 202 of Pub. L. 105-100, the 

application for employment authorization may be approved, and the 

resulting document issued immediately upon verification that the Service 

record contains such information. 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 Pub. L. 105-100 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.

    (k) 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 202 of 

Pub. L. 105-100 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 Assistant Commissioner 

for International Affairs; otherwise the Form I-131 must be submitted to 

the director of the Texas 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 her application for adjustment of status 

under section 202 of Public Law 105-100 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 202 of Pub. L. 105-100. 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 202 of Pub. L. 105-100 may request parole authorization for such 

purpose by filing an Application for Travel Document (Form I-131) with 

the Texas Service Center, at P.O. Box 851804, Mesquite, TX 75185-1804. 

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 (e) of this section, except the filing 

fee, the medical report, the fingerprint card, and the local police 

clearances. If the director of the Texas Service Center is satisfied 

that the alien will be eligible for adjustment of status once the alien 

has been paroled into



[[Page 523]]



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. 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. Parole may only be authorized pursuant to the 

authority contained in, and the standards prescribed in, section 

212(d)(5) of the Act.

    (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.

    (l) Approval. If the director approves the application for 

adjustment of status under the provisions of section 202 of Pub. L. 105-

100, the director shall record the alien's lawful admission for 

permanent resident 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 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. If an immigration judge grants or 

if the Board, upon appeal, grants an application for adjustment under 

the provisions of section 202 of Pub. L. 105-100, the alien's lawful 

admission for permanent residence shall be as of the date of such grant.

    (m) Denial and review of decision. (1) If the director denies the 

application for adjustment of status under the provisions of section 202 

of Public Law 105-100, the director shall notify the applicant of the 

decision. The director shall also:

    (i) 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, initiate removal proceedings in 

accordance with Sec. 239.1 of this chapter during which the alien may 

renew his or her application for adjustment of status under section 202 

of Public Law 105-100; or

    (ii) In the case of an alien whose previously initiated exclusion, 

deportation, or removal proceedings had been administratively closed or 

continued indefinitely under paragraph (d)(3) of this section, advise 

the Immigration Court that had administratively closed the proceedings, 

or the Board, as appropriate, of the denial of the application. Upon a 

motion to recalendar filed by the Service, the Immigration Court or the 

Board will then recalendar or reinstate the prior exclusion, deportation 

or removal proceedings, during which the alien may renew his or her 

application for adjustment under section 202 of Public Law 105-100; or

    (iii) In the case of an alien who is the subject of an outstanding 

final order of exclusion, deportation, or removal, refer the decision to 

deny the application by filing a Form I-290C, Notice of Certification, 

with the Immigration Court that issued the final order for



[[Page 524]]



consideration in accordance with paragraph (n) of this section.

    (2) Aliens who were denied adjustment of status by the director, but 

who are now eligible for such adjustment of status pursuant to section 

1505(a)(1) of the LIFE Act and amendments, and have not been referred to 

immigration proceedings as specified in paragraph (m)(1) of this section 

may file a motion to reopen with the Service. If an alien has been 

referred to the Immigration Court or has filed an appeal with the Board 

after an Immigration Court has denied the application for adjustment 

under NACARA section 202, and proceedings are pending, then the 

application for adjustment of status will be adjudicated in accordance 

with section 1505(a) of the LIFE Act and its amendments. An alien 

present in the United States subject to a final order of removal after 

his or her application was denied by an Immigration Court or the Board, 

but who was made eligible for adjustment pursuant to section 1505(a) of 

the LIFE Act and its amendments may file a motion to reopen with the 

Immigration Court or the Board, whichever had jurisdiction last. 

Pursuant to section 1505(a)(2) of the LIFE Act and its amendments, 

motions to reopen proceedings before the Immigration Court or the Board 

must be filed on or before June 19, 2001.

    (n) Action of immigration judge upon referral of decision 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 (m)(3) of this section, and 

under the authority contained in Sec. 3.10 of this chapter, the 

immigration judge shall conduct a hearing to determine whether the alien 

is eligible for adjustment of status under section 202 of Public Law 

105-100. 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 on the 

alien's eligibility for adjustment of status under section 202 of Public 

Law 105-100. During such proceedings all parties are prohibited from 

raising or considering any other issues, including but not limited to 

issues of admissibility, deportability, removability, and eligibility 

for any form of relief other than adjustment of status under section 202 

of Public Law 105-100. Should the alien fail to appear for such hearing, 

the immigration judge shall deny the application for adjustment under 

section 202 of Public Law 105-100.

    (2) Appeal of immigration judge 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 judge decision set forth in Sec. Sec. 3.3 and 3.8 of this 

chapter.

    (3) Rescission of the decision of an immigration judge. The decision 

of an immigration judge under paragraph (n)(1) of this section denying 

an application for adjustment under section 202 of Public Law 105-100 

for failure to appear may be rescinded 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 the alien 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 the alien 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 section 202 of Public Law 105-100, as amended by section 

1505, Public Law 106-554.

    (o) Transition period provisions for tolling the physical presence 

in the United States provision for certain individuals--(1) Departure 

without advance authorization for parole. In the case of an otherwise 

eligible applicant who departed the United States on or before December 

31, 1997, the physical presence in the United States provision of 

section 202(b)(1) of Pub. L. 105-100 is tolled as of



[[Page 525]]



November 19, 1997, and until July 20, 1998.

    (2) 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 202(b)(1) of Pub. L. 105-100 is tolled while the 

alien is outside the United States pursuant to the issuance of the Form 

I-512.

    (3) 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 (k)(2) 

of this section, and such application for parole authorization is 

granted by the Service, the physical presence in the United States 

provisions of section 202(b)(1) of Pub. L. 105-100 is tilled from the 

date the application is received at the Texas Service Center until the 

alien is paroled into the United States pursuant to the issuance of the 

Form I-512.



(Approved by the Office of Management and Budget under Control Number 

1115-0221)



[63 FR 27829, May 21, 1998, as amended at 65 FR 15854, Mar. 24, 2000; 66 

FR 29451, May 31, 2001]