DOJ Issues Rule for Indochinese Parolee Adjustment

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

DOJ ISSUES RULE FOR INDOCHINESE PAROLEE ADJUSTMENT
Immigrants' Rights Update, Vol. 17, No. 1, February 21, 2003

The U.S. Dept. of Justice (DOJ) has issued final regulations implementing a statute under which Vietnamese, Cambodian, and Laotian nationals who were paroled into the United States as of Oct. 1, 1997, and who have been present here since that date may adjust status to lawful permanent residence. The final rules, published Dec. 26, 2002, set forth eligibility criteria and adjudication procedures for the adjustment program and set a three-year adjudication period for accepting applications. The rule became effective on Jan. 27, 2003.

In the late 1980s, when many Southeast Asians were fleeing their ravaged countries on makeshift boats, the U.S. instituted humanitarian measures allowing many to be admitted to the U.S. as "parolees," as an alternative to admitting them as "refugees." Parolees are individuals who are allowed into the U.S. for emergency, humanitarian, or other purposes that are in the public interest. Indochinese parolees may legally work in the U.S. but, despite their longstanding presence in this country, they have been unable to obtain lawful permanent residence. To redress this problem, in 2000 Congress passed section 586 of P.L. 106-429 to allow Indochinese parolees to adjust their status to permanent residence. The DOJ is only now putting into effect regulations to implement that law.

The 5,000 Adjustments Cap. When it passed the statute, Congress set a cap of 5,000 for all new adjustments under the program. Throughout the legislative and rulemaking process, advocates maintained that such a cap would deny the program's benefits to many Indochinese parolees who otherwise would be eligible to adjust under the law. The DOJ, in acknowledging this problem, stated that while the Immigration and Naturalization Service will stop adjudicating applications after the 5,000 new adjustments limit is reached, it will track how many applications are filed under the program and, when the cap is reached, will inform Congress and the public how many applicants failed to adjust because of the cap. However, the INS will not retain the applications it receives after the cap is reached; rather, it will log, in chronological order according to the time applications are filed, the names of applicants who file after the cap is reached. Applications filed after the cap is reached will be returned to the applicants along with a dated notice encouraging them to retain the documents in the event that the cap is expanded or eliminated. However, if the cap is reached and Congress opts to eliminate or expand the cap, the INS would exercise its discretion to retain all applications filed, along with their related fee payments.

"Place in Line" Determined by Waiver Approval Date. The INS will process applications requiring certain waivers of inadmissibility according to the date the waiver is approved rather than the date the application is received—i.e., such applicants' "places in line" will be determined by when their waivers are granted. The inadmissibility waivers that trigger this provision are those for the criminal, fraud, immigration violations, citizenship ineligibility, and illegal voting grounds.

Eligibility. The INS may adjust the status of nationals or citizens of Vietnam, Cambodia, and Laos who:

were inspected and paroled into the U.S. as of Oct. 1, 1997;
were paroled into the U.S. from Vietnam under the rubric of the Orderly Departure Program (ODP) from a refugee camp in East Asia or from a displaced persons camp administered by the United Nations High Commissioner for Refugees in Thailand;
were physically present in the U.S. prior to and on Oct. 1, 1997;
file an adjustment of status application during the three-year period starting Jan. 27, 2003; and
are admissible in accordance with the admissibility rules specific to this program.

Application Period. The rule sets forth a three-year application period beginning on Jan. 27, 2003, and ending on Jan. 25, 2006. The INS will accept applications after that period but only if the 5,000 adjustments limit has not been reached and the application bears an official postmark dated on or before the final day of the application period. The rule provides that application packets with illegible or missing postmarks will be considered timely filed if they are received within three business days after Jan. 25, 2006.

Application Procedures. Applicants must be physically present in the U.S. to adjust their status under this program. They must submit Form I-485 (Application to Register Permanent Residence or to Adjust Status) with payment of a $186 or a $160 fee, depending on whether they are older or younger than 14 years of age. Applicants ages 14 through 79 also must submit a $50 fingerprinting fee payment, two photographs, a complete G-325A form (Biographic Information), Form I-693 (Medical Examination of Aliens Seeking Adjustment of Status) and, if applicable, an application for a waiver of inadmissibility.

The rules instruct applicants to write "INDOCHINESE PAROLEE, P.L. 106-429" under Part 2, Question H of the I-485. Applicants must include evidence establishing their eligibility and send their completed application packets to the INS service center in Lincoln, Nebraska (INS Service Center, P.O. Box 87485, Lincoln, NE 68501-7485).

Applicants in Removal Proceedings or with Final Orders. Under the rules of this program, only the INS may adjudicate Indochinese parolees' adjustment of status applications. Parolees who are in removal proceedings must request the INS's consent to file a joint motion for administrative closure. Neither the immigration judge presiding over the proceedings nor the Board of Immigration Appeals may dismiss or defer the proceedings without the INS's consent.

Persons seeking to adjust status under this program who have final orders of removal, deportation, or exclusion must submit their applications to the INS. However, such an application does not automatically stay the order of removal, deportation, or exclusion. Individuals must separately request a discretionary stay with the INS district director who has jurisdiction over the individual's case. The rules for seeking such a stay are found at 8 CFR sec. 241.6.

Grounds of Inadmissibility. Under the statute, certain grounds of inadmissibility do not apply to Indochinese parolee adjustment. These include the grounds under INA secs. 212(a)(4) (public charge), 212(a)(5) (labor certifications), 212(a)(7) (documentation requirements), and 212(a)(9) (unlawful presence).

Many other grounds of inadmissibility may be waived. Inadmissibility under INA secs. 212(a)(1) (health), (a)(6)(B) (failure to attend removal proceedings), (a)(6)(C) (misrepresentation), (a)(6)(F) (subject of civil penalty), (a)(8)(A) (ineligibility for U.S. citizenship), (a)(10)(B) (guardian required to accompany helpless immigrant), and (a)(10)(D) (unlawful voters) may be waived if the applicant demonstrates that the waiver is necessary to prevent extreme hardship to the applicant, his or her spouse or parent, or a U.S. citizen or lawful permanent resident son or daughter. The applicant may also apply for any other waiver of inadmissibility under INA sec. 212 by filing Form I-601.

Evidence Required. The rule creates a new section within the regulations that lays out the requirements concerning the evidence applicants must present to demonstrate that they were physically present in the U.S. on a specific date. This rule applies to Haitians applying for adjustment under the Haitian Refugee Immigration Fairness Act of 1998 and may be applied to other adjustment of status programs in the future.

To establish that they were physically present in the U.S. on a specific date, applicants may submit INS-issued documents. The rule provides some examples of INS documents that are acceptable as proof but explicitly states that additional documents may also be presented. Some of the documents noted in the rule are the following: Form I-94 (Arrival-Departure Record), Form I-862 (Notice to Appear), Form I-221 (former Order to Show Cause), or any application for a benefit under the INA filed by or on behalf of the applicant on or prior to the date on which it is required that the applicant have been present in the U.S. INS fee receipts are also acceptable proof.

Other types of government documentation also may be presented as proof of physical presence as of the required date. Such documentation must bear the signature, seal, or other authenticating instrument of the governmental authority (if the document normally bears such an instrument); it must be dated at the time of issuance; and its issuance date must not be later than the required date. Examples of such documents include but are not limited to the following: a state driver's license, a state I.D. card, a county or municipal hospital record, a public college or public school transcript, tax records, or a certified copy of a federal, state, or local governmental record. The applicant may also submit any other relevant documents, and the adjudicator will consider them on a case-by-case basis.

The rule also allows applicants to present transcripts or enrollment records provided by private or religious schools that are registered, approved, and licensed and that maintain enrollment records in accordance with state or local requirements. Such evidence will be accepted only to document the physical presence of an applicant who attended the school and who is under 21 years old on the date that he or she is required to have been in the U.S. in order to qualify for adjustment.

The applicant bears the responsibility of providing copies of the applicable government records. Applicants who do not possess certain documents but believe that their INS file contains them may submit a statement with the name and location of the government agency that issued the document, the type of document issued, and its issuance date.

Under the rule, applicants who can find no document to establish that they were physically present as of the required date may submit several documents showing that they were physically present in the U.S. prior to and after that date.

67 Fed. Reg. 78,667 (Dec. 26, 2002).