正文
DATES: Effective Date: This rule is effective November 1, 2007.
FOR FURTHER INFORMATION CONTACT: Carol Vernon, Regulations and Product
Management Division, Domestic Operations, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 20 Massachusetts
Avenue, Room 2034, Washington, DC 20529, telephone (202) 272-8350.
SUPPLEMENTARY INFORMATION:
I. Background
Travel outside the United States for an alien who has filed Form I-
485, ``Application to Register Permanent Residence or Adjust Status,\'\'
to obtain lawful permanent resident status under section 245 of the
Immigration and Nationality Act (INA), 8 U.S.C. 1255, may adversely
affect that application unless the alien takes certain steps before the
trip. Most applicants must obtain permission from U.S. Citizenship and
Immigration Services (USCIS) to travel prior to the trip, a process
referred to as ``advance parole.\'\' See 8 CFR 212.5 (c) and (f). For
these applicants, departing the United States without advance parole
while their adjustment of status applications are pending results in
automatic abandonment of the applications and constitutes grounds for
denial. 8 CFR 245.2(a)(4)(ii)(A) & (B).
However, some applicants do not need to obtain advance parole prior
to departing from the United States. 8 CFR 245.2(a)(4)(ii)(C) & (D).
These are applicants who are permitted by statute to maintain a
nonimmigrant status while they seek to obtain permanent resident
status. See INA section 214(h), 8 U.S.C. 1184(h). This rulemaking
applies to such applicants with respect to two qualifying nonimmigrant
classifications: H-1 and L-1 (including dependents, H-4 and L-2). See
INA section 101(a)(15)(H) and (L), 8 U.S.C. 1101(a)(15)(H) and (L)
(describing H and L nonimmigrant classifications); 8 CFR 214.2(h) and
(l). Both nonimmigrant classifications are employment-based. H-1
nonimmigrants include the H-1B classification for ``specialty
occupation\'\' workers and the H-1C classification for certain registered
nurses. See 8 CFR 214.2(h)(1)(ii)(A) and (B). L-1 nonimmigrants include
the L-1A classification for certain intracompany transferees who are
managers or executives, and the L-1B classification for ``specialized
knowledge\'\' workers. See 8 CFR 214.2(l)(ii)(A).
Under current regulations, adjustment of status applicants
maintaining H or L nonimmigrant status who depart the United States
will not be deemed to have abandoned their applications if they did not
obtain advance parole prior to departure. However, upon return to the
United States, they must demonstrate to the immigration officer at the
port of entry that they:
Remain eligible for H-1/H-4 or L-1/L-2 nonimmigrant
status;
Will resume employment with the same employer for which
they had previously been authorized to work as an H-1 or L-1
nonimmigrant (not applicable to H-4 or L-2 nonimmigrants);
Are in possession of a valid H-1/H-4 or L-1/L-2
nonimmigrant visa (if a visa is required); and
Are in possession of the original receipt notice for the
application for adjustment of status, Form I-797, ``Notice of Action\'\'
(issued by USCIS).
See 8 CFR 245.2(a)(4)(ii)(C). Preserving the pendency of an
adjustment of status application in this manner does not apply to H-1/
H-4 or L-1/L-2 nonimmigrants who are under exclusion, deportation, or
removal proceedings. In such cases, the Executive Office for
Immigration Review of the Department of Justice has jurisdiction over
the adjustment of status application and 8 CFR 245.2(a)(4)(ii)(A)
governs the effect of travel abroad on those applications.
Because of its varying workload, USCIS recognizes that it is not
always able to ensure immediate issuance and mailing of Form I-797
receipt notices upon receipt of an adjustment of status application. At
times, USCIS therefore may experience delays in processing and issuing
the receipt. This situation places H-1B/H-4 or L-1/L-2 nonimmigrants
who are awaiting a Form I-797 receipt notice, but wish to travel
outside the United States while their adjustment of status application
is pending, in the difficult position of having to decide whether to
cancel a planned trip or risk denial of the adjustment application as a
result of the departure. Either option would result in hardship to the
alien and his or her dependents that the Department of Homeland
Security (DHS) finds is unduly burdensome and unnecessary. This is
because it renders otherwise qualifying adjustment applications
abandoned notwithstanding the fact that the information provided by
presentation of the receipt (evidence of filing of an adjustment
application) is already available to DHS. An alien whose adjustment of
status application is deemed abandoned for failing to present a Form I-
797 receipt notice upon readmission to the United States resulting in a
denial of the application would be forced to incur the time and expense
involved in filing a new adjustment application.
Section 214(h) of the INA, 8 U.S.C. 1184(h), establishing the H-1/
H-4 and
[[Page 61792]]
L-1/L-2 nonimmigrant\'s ability to maintain nonimmigrant status while
pursuing permanent resident status, is broad and places no documentary
restrictions on such ability. Further, DHS has determined, in light of
advances in database technology, that the removal of the Form I-797
receipt requirement will not have any adverse impact on its
responsibilities to ensure control over aliens seeking admission to the
United States. Such aliens must establish eligibility for admission, in
any case, before DHS permits them to reenter the United States. In
addition, DHS creates a record of its inspection of the alien,
including the alien\'s application for admission.
II. Regulatory Changes
This rule amends 8 CFR 245.2(a)(4)(ii)(C) to remove the requirement
that an H-1/H-4 or L-1/L-2 nonimmigrant present an original of the Form
I-797 receipt notice for a pending adjustment of status application
upon readmission to the United States following a trip abroad in order
to avoid abandonment of the adjustment of status application as a
result of the departure. This rule makes no other changes to 8 CFR
245.2(a)(4)(ii)(C).
III. Rulemaking Requirements
DHS finds that this rule relates to internal agency management,
procedure, and practice and therefore is exempt from the public comment
requirements of the Administrative Procedure Act (APA) under 5 U.S.C.
553(b)(A). This rule does not alter substantive criteria by which USCIS
will approve or deny applications or determine eligibility for any
immigration benefit. Instead, this rule relieves a document
presentation requirement for certain applicants for immigration
benefits. Specifically, this rule removes the requirement that H-1/H-4
and L-1/L-2 nonimmigrants present a Form I-797 receipt notice for their
adjustment of status applications upon readmission to the United States
after a trip abroad in order to avoid having their applications
abandoned. This document presentation requirement is unnecessary since
it concerns information that is already available to DHS. This final
rule merely eliminates an unnecessary burden on these arriving aliens
and streamlines agency management of its processes. As a result, DHS is
not required to provide the public with an opportunity to submit
comments on the subject matter of this rule.
Moreover, DHS finds that good cause exists under 5 U.S.C. 553(b)(B)
to make the rule effective upon publication in the Federal Register
without prior notice and public comment on the grounds that delaying
implementation of this rule to allow for public comment would be
impracticable and contrary to the public interest. As a result of
USCIS\'s July 17, 2007, announcement that it would accept employment-
based Forms I-485 filed by aliens whose priority dates are current
under Department of State Visa Bulletin No. 107, USCIS received an
unprecedented volume of employment-based applications for adjustment of
status, including those filed by H and L nonimmigrants. Because of the
recent surge in such filings, it will take several weeks for USCIS to
enter the necessary data and issue Form I-797 receipt notices for
employment-based adjustment of status applications. Therefore, it is
important for this rule to take effect as soon as possible to avoid
undue hardship on applicants who may need travel outside the United
States prior to receiving the receipt notice.
In addition, no substantive rights or obligations of the affected
public are changed by this rule. DHS believes the public will welcome
this change. The public needs no time to conform its conduct so as to
avoid violation of these regulations because the rule relieves a
requirement of the existing regulations. Further, this rule will have
no adverse impact on DHS\' adjudicatory responsibilities or ability to
track the foreign travel of affected persons since DHS already records
the admission of all nonimigrants. For these reasons, this rule is
effective immediately under 5 U.S.C. 553(d)(1) and (3).
This rule relates to internal agency management, and, therefore, is
exempt from the provisions of Executive Order Nos. 12630, 12988, 13045,
13132, 13175, 13211, and 13272. This rule is not considered by DHS to
be a ``significant regulatory action\'\' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. Therefore, it has not
been reviewed by the Office of Management and Budget. Further, this
action is not a proposed rule requiring an initial or final regulatory
flexibility analysis under the Regulatory Flexibility Act, 5 U.S.C. 601
et seq. In addition, this rule is not subject to the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., Title
II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. Ch. 17A, 25,
or the E-Government Act of 2002, 44 U.S.C. 3501, note.
Finally, under the Paperwork Reduction Act of 1995, Public Law 104-
13, all Departments are required to submit to the Office of Management
and Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule does not affect any information
collections, reporting or recordkeeping requirements under the
Paperwork Reduction Act.
List of Subjects in 8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
0
Accordingly, part 245 of chapter 1 of title 8 of the Code of Federal
Regulations is amended as follows:
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
1. The authority citation for part 245 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.
0
2. Section 245.2 is amended by revising paragraph (a)(4)(ii)(C) as
follows:
Sec. 245.2 Application.
(a) * * *
(4) * * *
(ii) * * *
(C) The travel outside of the United States by an applicant for
adjustment of status who is not under exclusion, deportation, or
removal proceeding and who is in lawful H-1 or L-1 status shall not be
deemed an abandonment of the application if, upon returning to this
country, the alien remains eligible for H or L status, is coming to
resume employment with the same employer for whom he or she had
previously been authorized to work as an H-1 or L-1 nonimmigrant, and,
is in possession of a valid H or L visa (if required). The travel
outside of the United States by an applicant for adjustment of status
who is not under exclusion, deportation, or removal proceeding and who
is in lawful H-4 or L-2 status shall not be deemed an abandonment of
the application if the spouse or parent of such alien through whom the
H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the
alien remains otherwise eligible for H-4 or L-2 status, and, the alien
is in possession of a valid H-4 or L-2 visa (if required). The travel
outside of the United States by an applicant for adjustment of status,
who is not under exclusion, deportation, or removal proceeding and who
is in lawful K-3 or K-4 status shall not be deemed an abandonment of
the application if, upon returning to this country, the alien is in
possession of a valid K-3 or K-4 visa and remains eligible for K-3 or
K-4 status.
* * * * *
[[Page 61793]]
Dated: October 15, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-21506 Filed 10-31-07; 8:45 am]
BILLING CODE 4410-10-P
FOR FURTHER INFORMATION CONTACT: Carol Vernon, Regulations and Product
Management Division, Domestic Operations, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 20 Massachusetts
Avenue, Room 2034, Washington, DC 20529, telephone (202) 272-8350.
SUPPLEMENTARY INFORMATION:
I. Background
Travel outside the United States for an alien who has filed Form I-
485, ``Application to Register Permanent Residence or Adjust Status,\'\'
to obtain lawful permanent resident status under section 245 of the
Immigration and Nationality Act (INA), 8 U.S.C. 1255, may adversely
affect that application unless the alien takes certain steps before the
trip. Most applicants must obtain permission from U.S. Citizenship and
Immigration Services (USCIS) to travel prior to the trip, a process
referred to as ``advance parole.\'\' See 8 CFR 212.5 (c) and (f). For
these applicants, departing the United States without advance parole
while their adjustment of status applications are pending results in
automatic abandonment of the applications and constitutes grounds for
denial. 8 CFR 245.2(a)(4)(ii)(A) & (B).
However, some applicants do not need to obtain advance parole prior
to departing from the United States. 8 CFR 245.2(a)(4)(ii)(C) & (D).
These are applicants who are permitted by statute to maintain a
nonimmigrant status while they seek to obtain permanent resident
status. See INA section 214(h), 8 U.S.C. 1184(h). This rulemaking
applies to such applicants with respect to two qualifying nonimmigrant
classifications: H-1 and L-1 (including dependents, H-4 and L-2). See
INA section 101(a)(15)(H) and (L), 8 U.S.C. 1101(a)(15)(H) and (L)
(describing H and L nonimmigrant classifications); 8 CFR 214.2(h) and
(l). Both nonimmigrant classifications are employment-based. H-1
nonimmigrants include the H-1B classification for ``specialty
occupation\'\' workers and the H-1C classification for certain registered
nurses. See 8 CFR 214.2(h)(1)(ii)(A) and (B). L-1 nonimmigrants include
the L-1A classification for certain intracompany transferees who are
managers or executives, and the L-1B classification for ``specialized
knowledge\'\' workers. See 8 CFR 214.2(l)(ii)(A).
Under current regulations, adjustment of status applicants
maintaining H or L nonimmigrant status who depart the United States
will not be deemed to have abandoned their applications if they did not
obtain advance parole prior to departure. However, upon return to the
United States, they must demonstrate to the immigration officer at the
port of entry that they:
Remain eligible for H-1/H-4 or L-1/L-2 nonimmigrant
status;
Will resume employment with the same employer for which
they had previously been authorized to work as an H-1 or L-1
nonimmigrant (not applicable to H-4 or L-2 nonimmigrants);
Are in possession of a valid H-1/H-4 or L-1/L-2
nonimmigrant visa (if a visa is required); and
Are in possession of the original receipt notice for the
application for adjustment of status, Form I-797, ``Notice of Action\'\'
(issued by USCIS).
See 8 CFR 245.2(a)(4)(ii)(C). Preserving the pendency of an
adjustment of status application in this manner does not apply to H-1/
H-4 or L-1/L-2 nonimmigrants who are under exclusion, deportation, or
removal proceedings. In such cases, the Executive Office for
Immigration Review of the Department of Justice has jurisdiction over
the adjustment of status application and 8 CFR 245.2(a)(4)(ii)(A)
governs the effect of travel abroad on those applications.
Because of its varying workload, USCIS recognizes that it is not
always able to ensure immediate issuance and mailing of Form I-797
receipt notices upon receipt of an adjustment of status application. At
times, USCIS therefore may experience delays in processing and issuing
the receipt. This situation places H-1B/H-4 or L-1/L-2 nonimmigrants
who are awaiting a Form I-797 receipt notice, but wish to travel
outside the United States while their adjustment of status application
is pending, in the difficult position of having to decide whether to
cancel a planned trip or risk denial of the adjustment application as a
result of the departure. Either option would result in hardship to the
alien and his or her dependents that the Department of Homeland
Security (DHS) finds is unduly burdensome and unnecessary. This is
because it renders otherwise qualifying adjustment applications
abandoned notwithstanding the fact that the information provided by
presentation of the receipt (evidence of filing of an adjustment
application) is already available to DHS. An alien whose adjustment of
status application is deemed abandoned for failing to present a Form I-
797 receipt notice upon readmission to the United States resulting in a
denial of the application would be forced to incur the time and expense
involved in filing a new adjustment application.
Section 214(h) of the INA, 8 U.S.C. 1184(h), establishing the H-1/
H-4 and
[[Page 61792]]
L-1/L-2 nonimmigrant\'s ability to maintain nonimmigrant status while
pursuing permanent resident status, is broad and places no documentary
restrictions on such ability. Further, DHS has determined, in light of
advances in database technology, that the removal of the Form I-797
receipt requirement will not have any adverse impact on its
responsibilities to ensure control over aliens seeking admission to the
United States. Such aliens must establish eligibility for admission, in
any case, before DHS permits them to reenter the United States. In
addition, DHS creates a record of its inspection of the alien,
including the alien\'s application for admission.
II. Regulatory Changes
This rule amends 8 CFR 245.2(a)(4)(ii)(C) to remove the requirement
that an H-1/H-4 or L-1/L-2 nonimmigrant present an original of the Form
I-797 receipt notice for a pending adjustment of status application
upon readmission to the United States following a trip abroad in order
to avoid abandonment of the adjustment of status application as a
result of the departure. This rule makes no other changes to 8 CFR
245.2(a)(4)(ii)(C).
III. Rulemaking Requirements
DHS finds that this rule relates to internal agency management,
procedure, and practice and therefore is exempt from the public comment
requirements of the Administrative Procedure Act (APA) under 5 U.S.C.
553(b)(A). This rule does not alter substantive criteria by which USCIS
will approve or deny applications or determine eligibility for any
immigration benefit. Instead, this rule relieves a document
presentation requirement for certain applicants for immigration
benefits. Specifically, this rule removes the requirement that H-1/H-4
and L-1/L-2 nonimmigrants present a Form I-797 receipt notice for their
adjustment of status applications upon readmission to the United States
after a trip abroad in order to avoid having their applications
abandoned. This document presentation requirement is unnecessary since
it concerns information that is already available to DHS. This final
rule merely eliminates an unnecessary burden on these arriving aliens
and streamlines agency management of its processes. As a result, DHS is
not required to provide the public with an opportunity to submit
comments on the subject matter of this rule.
Moreover, DHS finds that good cause exists under 5 U.S.C. 553(b)(B)
to make the rule effective upon publication in the Federal Register
without prior notice and public comment on the grounds that delaying
implementation of this rule to allow for public comment would be
impracticable and contrary to the public interest. As a result of
USCIS\'s July 17, 2007, announcement that it would accept employment-
based Forms I-485 filed by aliens whose priority dates are current
under Department of State Visa Bulletin No. 107, USCIS received an
unprecedented volume of employment-based applications for adjustment of
status, including those filed by H and L nonimmigrants. Because of the
recent surge in such filings, it will take several weeks for USCIS to
enter the necessary data and issue Form I-797 receipt notices for
employment-based adjustment of status applications. Therefore, it is
important for this rule to take effect as soon as possible to avoid
undue hardship on applicants who may need travel outside the United
States prior to receiving the receipt notice.
In addition, no substantive rights or obligations of the affected
public are changed by this rule. DHS believes the public will welcome
this change. The public needs no time to conform its conduct so as to
avoid violation of these regulations because the rule relieves a
requirement of the existing regulations. Further, this rule will have
no adverse impact on DHS\' adjudicatory responsibilities or ability to
track the foreign travel of affected persons since DHS already records
the admission of all nonimigrants. For these reasons, this rule is
effective immediately under 5 U.S.C. 553(d)(1) and (3).
This rule relates to internal agency management, and, therefore, is
exempt from the provisions of Executive Order Nos. 12630, 12988, 13045,
13132, 13175, 13211, and 13272. This rule is not considered by DHS to
be a ``significant regulatory action\'\' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. Therefore, it has not
been reviewed by the Office of Management and Budget. Further, this
action is not a proposed rule requiring an initial or final regulatory
flexibility analysis under the Regulatory Flexibility Act, 5 U.S.C. 601
et seq. In addition, this rule is not subject to the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., Title
II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. Ch. 17A, 25,
or the E-Government Act of 2002, 44 U.S.C. 3501, note.
Finally, under the Paperwork Reduction Act of 1995, Public Law 104-
13, all Departments are required to submit to the Office of Management
and Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule does not affect any information
collections, reporting or recordkeeping requirements under the
Paperwork Reduction Act.
List of Subjects in 8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
0
Accordingly, part 245 of chapter 1 of title 8 of the Code of Federal
Regulations is amended as follows:
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
1. The authority citation for part 245 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.
0
2. Section 245.2 is amended by revising paragraph (a)(4)(ii)(C) as
follows:
Sec. 245.2 Application.
(a) * * *
(4) * * *
(ii) * * *
(C) The travel outside of the United States by an applicant for
adjustment of status who is not under exclusion, deportation, or
removal proceeding and who is in lawful H-1 or L-1 status shall not be
deemed an abandonment of the application if, upon returning to this
country, the alien remains eligible for H or L status, is coming to
resume employment with the same employer for whom he or she had
previously been authorized to work as an H-1 or L-1 nonimmigrant, and,
is in possession of a valid H or L visa (if required). The travel
outside of the United States by an applicant for adjustment of status
who is not under exclusion, deportation, or removal proceeding and who
is in lawful H-4 or L-2 status shall not be deemed an abandonment of
the application if the spouse or parent of such alien through whom the
H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the
alien remains otherwise eligible for H-4 or L-2 status, and, the alien
is in possession of a valid H-4 or L-2 visa (if required). The travel
outside of the United States by an applicant for adjustment of status,
who is not under exclusion, deportation, or removal proceeding and who
is in lawful K-3 or K-4 status shall not be deemed an abandonment of
the application if, upon returning to this country, the alien is in
possession of a valid K-3 or K-4 visa and remains eligible for K-3 or
K-4 status.
* * * * *
[[Page 61793]]
Dated: October 15, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-21506 Filed 10-31-07; 8:45 am]
BILLING CODE 4410-10-P
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