INS Issues Interim Regulations for Nicaraguan and Cuban Adjustment under NACARA

IMMIGRATION LAW & POLICY

NACARA

INS ISSUES INTERIM REGULATIONS FOR NICARAGUAN AND CUBAN ADJUSTMENT UNDER NACARA
Immigrants' Rights Update, Vol. 12, No. 4, June 17, 1998

The Immigration and Naturalization Service has issued interim regulations establishing procedures to implement the special adjustment of status provisions of the Nicaragua Adjustment and Central American Relief Act of 1997 (NACARA). The interim rule takes effect on June 22, 1998.

The regulations’ provisions governing eligibility for NACARA adjustment largely track the language of the statute. To be eligible, an applicant must be a national of Cuba or Nicaragua; must be admissible, except as to certain grounds of inadmissibility that are explicitly made not applicable by the NACARA; must have been physically present in the United States for a continuous period from on or before Dec. 1, 1995, to the date of filing an adjustment application (not counting absences totaling 180 days or less); and must properly file an adjustment application before Apr. 1, 2000.

In addition, certain family members are eligible for adjustment under the NACARA. To qualify, a spouse, child (under age 21), or unmarried son or daughter (age 21 or older) of a NACARA beneficiary must also be a national of either Cuba or Nicaragua. These dependents also must be admissible, except for the grounds that are waived by the statute. Dependents must be physically present in the U.S. at the time they apply for adjustment, and they must apply before Apr. 1, 2000.

Unmarried sons or daughters over age 21 also must establish that they have been continuously physically present in the United States since Dec. 1, 1995, not counting absences totaling 180 days or less.

Under the statute, certain grounds of inadmissibility do not apply to applicants for NACARA adjustment. These are the grounds of inadmissibility for the following: likelihood of becoming a public charge, failure to obtain a labor certification, failure to meet the requirements for foreign-trained physicians or foreign health-care workers, entering or remaining in the country illegally, lacking valid entry documents, or accruing more than 180 days of unlawful presence prior to the individual’s last departure or removal.

Persons who currently have exclusion, deportation, or removal proceedings pending before an immigration judge may apply for NACARA adjustment with the immigration court. Alternately, they may move to have the proceedings administratively closed in order to file for adjustment with the INS. Cases that are administratively closed may be reopened if the respondent fails to apply for adjustment prior to Apr. 1, 2000, or if the INS denies the adjustment application. In the latter case, the respondent could seek reconsideration of the denied application in the recalendared proceedings. Persons who filed motions to reopen or reconsider with an IJ on or before May 21, 1998, should apply for NACARA adjustment with the IJ.

Individuals whose cases are pending with the Board of Immigration Appeals or who filed a motion to reopen or reconsider with the BIA prior to May 21, 1998, will have their cases remanded to the IJ, unless they are clearly ineligible for the relief. The remand is for the sole purpose of adjudicating their NACARA adjustment cases. In the event the IJ denies the adjustment, the IJ will certify the case to the BIA for decision. The respondents in such cases will not have to file a new notice of appeal or pay an appeal filing fee.

Individuals who have final orders of removal must file an application for adjustment with the INS. However, if they already filed a motion to reopen or reconsider before May 21, 1998, and it is pending before the BIA or an IJ, then the adjustment application must be filed with the BIA or the IJ. The mere filing of the adjustment application does not stay the execution of the removal order. To request a stay, the applicant must file Form I-246, Application for Stay of Removal. Individuals with final orders of removal who leave the U.S. are considered to have "self-deported" and will have to apply for a waiver to allow them to return to the U.S. to apply for adjustment. To do this, they may file Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal.

Generally, NACARA-eligible aliens who wish to depart the U.S. will be able to apply for advance parole (Form I-512) only if they have filed an adjustment application. However, since some individuals needed to travel before the application procedures were developed, the INS issued a memo on Dec. 24, 1997, instructing district directors to allow NACARA-eligible aliens to apply for advance parole if they needed to travel. For aliens who departed the U.S. with advance parole obtained pursuant to this instruction, the time that they are outside the country in accordance with the conditions of their advance parole will not count towards the 180-day cumulative period that they may be absent from the country and still meet NACARA’s continuous physical presence requirement. In addition, for aliens who departed the country before Dec. 31, 1997, the calculation of the 180-day period is tolled until July 20, 1998, since they left before the INS could implement the Dec. 24, 1997, instruction.

Individuals applying for NACARA adjustment from the INS must send the application to the INS Texas Service Center, P.O. Box 851804, Mesquite, TX 75185-1804. In order to apply for NACARA adjustment, each applicant must file a separate Form I-485, Application to Register for Permanent Residence or Adjust Status, accompanied by the required application fee and supporting documents, described below. In Part 2 of the application ("Application Type") they should check box "h – other" and write "NACARA – Principal" or "NACARA – Dependent" next to that block, as appropriate. Each application must be accompanied by (1) a birth certificate or other record of birth; (2) two photographs as described in the Form I-485 instructions; (3) a completed Form G-325A, Biographic Information Sheet, if the applicant is between 14 and 79 years of age; (4) a report of medical examination; (5) for applicants at least 14 years of age, a local police clearance from each jurisdiction where the alien has resided for six months or longer since arriving in the U.S.; (6) a copy of the applicant’s Form I-94, Arrival-Departure Record, or other evidence of inspection and admission or parole into the U.S., if applicable; (7) one or more documents to establish the commencement of the required period of continuous physical presence; and (8) one or more documents to establish continuity of physical presence. In addition, the applicant must submit a statement showing all departures from and arrivals in the U.S. since Dec. 1, 1995. Finally, if the applicant is applying as a dependent, he or she must submit evidence of the relationship (e.g., a marriage certificate). Fingerprints should not be submitted with the application. After the application is filed, the INS will instruct the applicant regarding procedures for obtaining fingerprints.

The commentary to the regulations discusses examples of the different kinds of evidence that can be used to meet the continuous physical presence requirement. The regulations limit the documents that may be used to establish when the required period of continuous presence commenced. Only INS documents or other documents bearing a governmental seal—whether federal, state, or local—and an issue date no later than Dec. 1, 1995, are acceptable. Generally, there should be no significant chronological gaps in the documentation, but a gap of three months or less is not considered significant. Applicants who are aware of documents already contained in their INS file that establish physical presence may merely list those documents, giving the type and date of each.

Applying for NACARA benefits does not invalidate employment authorization that an individual may have under another provision of the INA. Moreover, individuals may continue to apply to extend such employment authorization after they have applied for NACARA adjustment.

The INS generally will not grant employment authorization to NACARA applicants based on their NACARA adjustment application until the adjustment application has been pending for 180 days. There is an exception to this rule for individuals who apply for work authorization at the same time they apply for adjustment. Individuals who apply for both benefits at the same time may be granted work authorization before 180 days pass, if the individuals’ INS files contain evidence that they are nationals of Nicaragua or Cuba who applied to the INS for an immigration benefit or were placed in deportation or exclusion proceedings not later than Dec. 1, 1995. The commentary to the regulations states that the INS is placing these restrictions on work authorization in order to discourage fraudulent applications. However, the INS especially invites interested parties to submit their views on this topic.

The interim rule takes effect June 22, 1998. The INS invites comments from the public that it will consider in the development of a final rule. Written comments must be submitted on or before July 20, 1998.

[63 Fed. Reg. 27,823–34 (May 21, 1998).]