[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: 8CFR245.15]



[Page 525-537]

 

                     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 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.



[[Page 526]]



    (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 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



[[Page 527]]



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 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



[[Page 528]]



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 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



[[Page 529]]



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;

    (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



[[Page 530]]



    (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;

    (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,



[[Page 531]]



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 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.



[[Page 532]]



    (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 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



[[Page 533]]



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:

    (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



[[Page 534]]



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 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)



[[Page 535]]



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 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



[[Page 536]]



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 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,



[[Page 537]]



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 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]