[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR245.13]

[Page 524-533]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 245_ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT
 
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. 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

[[Page 525]]

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 
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

[[Page 526]]

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, 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;

[[Page 527]]

    (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;
    (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;

[[Page 528]]

    (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 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.

[[Page 529]]

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 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.

[[Page 530]]

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 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

[[Page 531]]

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 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

[[Page 532]]

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 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

[[Page 533]]

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]