INS issues final regulations on NACARA adjustment for Nicaraguans, Cubans; documentary requirements liberalized
Immigrants’ Rights Update, Vol. 14, No. 2, April 11, 2000

The Immigration and Naturalization Service has issued final regulations implementing the provisions of section 202 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) which allow eligible nationals of Nicaragua and Cuba to adjust to lawful permanent resident status.  The final regulations contain important improvements over the interim rules that were published on May 21, 1998 (see "INS Issues Interim Regulations for Nicaraguan and Cuban Adjustment under NACARA," Immigrants’ Rights Update, June 17, 1998, p. 1).  However, the impact of these changes may be diminished by the fact that the final regulations were announced just ten days before the statute’s Mar. 31, 2000, application deadline.  Currently, legislative proposals to extend the NACARA filing deadline are pending in Congress (see "INS Defers Removal of Certain Haitians, Nicaraguans, and Cubans Pending Possible Extension of NACARA, HRIFA Filing Deadlines," this page).

The final regulations expand the kinds of evidence that applicants may use to establish that they came to the United States on or before Dec. 1, 1995.  Whereas the interim regulations required that applicants meet this requirement with an official document, the new rules allow them to use private and religious school records for periods of time when they were under age 21.  In addition, applicants can use copies of documents for which a government record exists, even though the document was not issued by a government.  Thus, applicants may submit copies of tax returns or other applications that they have submitted to a local, state, or federal government agency.

The final rules both expand the allowable kinds of evidence and reduce the amount of evidence that applicants must submit in order to meet the statute’s "continuous physical presence" requirement.  Applicants must show that they were continuously present in the U.S. (in other words, without absences totaling over 180 days) between Dec. 1, 1995, and the date their adjustment application is granted.  The interim rules contained a "90-days guideline" that required applicants to provide a document showing that they were present in the U.S. for every three months of this period; the final rules eliminate this requirement.  The final rules also allow applicants to submit documents that pertain to other family members, once a family household has been established.  Although applicants are required to submit a local police clearance for every location where they have lived for six months or longer since age fourteen, this requirement has been waived for communities that are known not to issue police clearances.

Under the NACARA statute, individuals eligible for adjustment who have been ordered deported may be granted a stay to allow them to apply for adjustment.  The final regulations provide that the INS should grant a stay of removal when applicants request it (on Form I-246) unless overriding negative factors apply.

The final rules also simplify procedures for filing NACARA adjustment applications, in recognition of the short time period between the issuance of the regulations and the application deadline.  Applicants are allowed to submit their applications at any local INS district office, sub office, or service center.  These offices have been directed to make arrangements to allow individuals to file their applications up until midnight on the final day for filing, Mar. 31, 2000.  Moreover, applications will not be denied as long as they are properly completed and signed, identify the applicant as a NACARA applicant, and are accompanied by the correct fee or a fee waiver request.  Thus, deficiencies in supporting evidence may be corrected later.  Where individuals request a fee waiver that is later denied, the applicants will be allowed 30 days to submit the fee in order to retain the application’s timely filed status.

The supplementary information to the final regulations also addresses the applicability of "reinstatement of removal" under section 241(a)(5) of the Immigration and Nationality Act to the cases of NACARA adjustment applicants.  This provision of law allows the INS to reinstate a removal order against any noncitizen who illegally reenters the U.S. after having either been removed or departed voluntarily under an order of removal, and the individual "is not eligible for and may not apply for any relief" under the INA.  The supplementary information notes that persons who were deported, excluded, or removed from the U.S. are inadmissible for a specified period of time, unless they obtain permission to apply for readmission.  The INS considers individuals who returned unlawfully to the U.S. following deportation and while subject to this ground of inadmissibility ineligible to seek permission to apply for readmission, because allowing them to do so would constitute "relief" under section 241(a)(5).  The supplementary information states that the INS does not know how many otherwise-eligible Nicaraguans and Cubans are barred from adjusting because of this provision, but "judging solely form the volume of inquiries received on this issue, the number may be significant."

The final regulations are effective as of Mar. 24, 2000.

65 Fed. Reg. 15,846–57 (Mar. 24, 2000).