8 CFR Part 245a — Adjustment of Status to That of Persons Admitted for Temporary or Permanent Resident Status Under Section 245A of the Immigration and Nationality Act

PART 245a—ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE IMMIGRATION AND NATIONALITY ACT Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note. Source: 52 FR 16208, May 1, 1987, unless otherwise noted. Subpart A—Immigration Reform and Control Act of 1986 (IRCA) Legalization Provisions § 245a.1 Definitions. As used in this chapter: (a) Act (b) Service (c)(1) Resided continuously An alien who after appearing for a scheduled interview to obtain an immigrant visa at a Consulate or Embassy in Canada or Mexico but who subsequently is not issued an immigrant visa and who is paroled back into the United States, pursuant to the stateside criteria program, shall be regarded as having been granted advance parole by the Service. (i) No single absence from the United States has exceeded forty-five (45) days, and the aggregate of all absences has not exceeded one hundred and eighty (180) days between January 1, 1982 through the date the application for temporary resident status is filed, unless the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed; (ii) The alien was maintaining residence in the United States; and (iii) The alien's departure from the United States was not based on an order of deportation. An alien who has been absent from the United States in accordance with the Service's advance parole procedures shall not be considered as having interrupted his or her continuous residence as required at the time of filing an application. (2) Continuous residence, (d) In the term alien's unlawful status was known to the government, government known to the government (1) The Service received factual information constituting a violation of the alien's nonimmigrant status from any agency, bureau or department, or subdivision thereof, of the Federal government, and such information was stored or otherwise recorded in the official Service alien file, whether or not the Service took follow-up action on the information received. In order to meet the standard of information constituting a violation of the alien's nonimmigrant status, (2) An affirmative determination was made by the Service prior to January 1, 1982 that the alien was subject to deportation proceedings. Evidence that may be presented by an alien to support an assertion that such a determination was made may include, but is not limited to, official Service documents issued prior to January 1, 1982, i.e. i.e. Unexecuted Forms I-205, Warrant of Deportation; Forms I-265, Application for Order to Show Cause and Processing Sheet; Forms I-541, Order of Denial of Application for Extension of Stay granting a period of time in which to depart the United States without imposition of proceedings, or any other Service record reflecting that the alien's nonimmigrant status was considered by the Service to have terminated or the alien was otherwise determined to be subject to deportation proceedings prior to January 1, 1982, whether or not deportation proceedings were instituted; or (3) A copy of a response by the Service to any other agency which advised that agency that a particular alien had no legal status in the United States or for whom no record could be found. (4) The applicant produces documentation from a school approved to enroll foreign students under § 214.3 which establishes that the said school forwarded to the Service a report that clearly indicated the applicant had violated his or her nonimmigrant student status prior to January 1, 1982. A school may submit an affirmation that the school did forward to the Service the aforementioned report and that the school no longer has available copies of the actual documentation sent. In order to be eligible under this part, the applicant must not have been reinstated to nonimmigrant student status. (e) The term to make a determination (f) The term continuous physical presence (g) Brief, casual, and innocent (h) The term brief and casual absences (i) Public cash assistance (j) Legalization Office (k) Regional Processing Facility (l) Designated entity (m) The term family unity (n) The term prima facie (o) Misdemeanor (p) Felony (q) Subject of an Order to Show Cause (r) A qualified designated entity in good-standing with the Service Subsequent to January 30, 1989, and throughout the period ending on November 6, 1990, a QDE in good-standing may: (1) Serve as an authorized course provider under § 245a.3(b)(5)(i)(C) of this chapter; (2) Administer the IRCA Test for Permanent Residency (proficiency test), provided an agreement has been entered into with and authorization has been given by INS under § 245a.1(s)(5) of this chapter; and, (3) Certify as true and complete copies of original documents submitted in support of Form I-698 in the format prescribed in § 245a.3(d)(2) of this chapter. (s) Satisfactorily pursuing, (1) An applicant for permanent resident status has attended a recognized program for at least 40 hours of a minimum 60-hour course as appropriate for his or her ability level, and is demonstrating progress according to the performance standards of the English/citizenship course prescribed by the recognized program in which he or she is enrolled (as long as enrollment occurred on or after May 1, 1987, course standards include attainment of particular functional skills related to communicative ability, subject matter knowledge, and English language competency, and attainment of these skills is measured either by successful completion of learning objectives appropriate to the applicant's ability level, or attainment of a determined score on a test or tests, or both of these); or (2) An applicant presents a high school diploma or general educational development diploma (GED) from a school in the United States. A GED gained in a language other than English is acceptable only if a GED English proficiency test has been passed. (The curriculum for both the high school diploma and the GED must have included at least 40 hours of instruction in English and U.S. history and government); or (3) An applicant has attended for a period of one academic year (or the equivalent thereof according to the standards of the learning institution), a state recognized, accredited learning institution in the United States and that institution certifies such attendance (as long as the curriculum included at least 40 hours of instruction in English and U.S. history and government); or (4) An applicant has attended courses conducted by employers, social, community, or private groups certified (retroactively, if necessary, as long as enrollment occurred on or after May 1, 1987, and the curriculum included at least 40 hours of instruction in English and U.S. history and government) by the district director or the Director of the Outreach Program under § 245a.3(b)(5)(i)(D) of this chapter; or (5) An applicant attests to having completed at least 40 hours of individual study in English and U.S. history and government and passes the proficiency test for legalization, called the IRCA Test for Permanent Residency, indicating that the applicant is able to read and understand minimal functional English within the context of the history and government of the United States. Such test may be given by INS, as well as, State Departments of Education (SDEs) (and their accredited educational agencies) and Qualified Designated Entities in good-standing (QDEs) upon agreement with and authorization by INS. Those SDEs and QDEs wishing to participate in this effort should write to the Director of the INS Outreach Program at 425 “I” Street, NW., Washington, DC 20536, for further information. (t) Minimal understanding of ordinary English as used in section 245A(b)(1)(D)(i) of the Act means an applicant can satisfy basic survival needs and routine social demands. The person can handle jobs that involve following simple oral and very basic written communication. (u) Curriculum (1) Teach words and phrases in ordinary, everyday usage; (2) Include the content of the Federal Citizenship Text series as the basis for curriculum development (other texts with similar content may be used in addition to, but not in lieu of, the Federal Citizenship Text series); (3) Be designed to provide at least 60 hours of instruction per class level; (4) Be relevant and educationally appropriate for the program focus and the intended audience; and (5) Be available for examination and review by INS as requested. (v) The term developmentally disabled developmental disability The term developmental disability (1) Is attributable to a mental or physical impairment or combination of mental and physical impairments; (2) Is manifested before the person attains age twenty-two; (3) Is likely to continue indefinitely; (4) Results in substantial functional limitations in three or more of the following areas of major life activity: (i) Self-care, (ii) receptive and expressive language, (iii) learning, (iv) mobility, (v) self direction, (vi) capacity for independent living, and (vii) economic self-sufficiency; and (5) Reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated. [52 FR 16208, May 1, 1987, as amended at 52 FR 43845, Nov. 17, 1987; 53 FR 9863, Mar. 28, 1988; 53 FR 23382, June 22, 1988; 53 FR 43992, Oct. 31, 1988; 54 FR 29448, July 12, 1989; 56 FR 31061, July 9, 1991; 78 FR 18472, Mar. 27, 2013] § 245a.2 Application for temporary residence. (a) Application period for temporary residence. (2)(i) [Reserved] (ii) An alien who is the subject of an Order to Show Cause issued under section 242 of the Act during the period beginning on May 5, 1987 and ending on April 4, 1988 must file an application for adjustment of status to that of a temporary resident prior to the thirty-first day after the issuance of the Order to Show Cause. (iii) An alien who is the subject of an Order to Show Cause issued under section 242 of the Act during the period beginning on April 5, 1988 and ending on May 4, 1988 must file an application for adjustment of status to that of a temporary resident not later than May 4, 1988. (iv) An alien, described in paragraphs (a)(2)(i) through (iii) of this section, who fails to file an application for adjustment of status to that of a temporary resident under section 245A(a) of the Act during the respective time period(s), will be statutorily ineligible for such adjustment of status. (b) Eligibility. (1) An alien (other than an alien who entered as a nonimmigrant) who establishes that he or she entered the United States prior to January 1, 1982, and who has thereafter resided continuously in the United States in an unlawful status, and who has been physically present in the United States from November 6, 1986, until the date of filing the application. (2) An alien who establishes that he or she entered the United States as a nonimmigrant prior to January 1, 1982, and whose period of authorized admission expired through the passage of time prior to January 1, 1982, and who has thereafter resided continuously in the United States in an unlawful status, and who has been physically present in the United States from November 6, 1986, until the date of filing the application. (3) An alien who establishes that he or she entered the United States as a nonimmigrant prior to January 1, 1982, and whose unlawful status was known to the Government as of January 1, 1982, and who has thereafter resided continuously in the United States in an unlawful status, and who has been physically present in the United States from November 6, 1986, until the date of filing the application. (4) An alien described in paragraphs (b) (1) through (3) of this section who was at any time a nonimmigrant exchange visitor (as defined in section 101(a)(15)(J) of the Act), must establish that he or she was not subject to the two-year foreign residence requirements of section 212(e) or has fulfilled that requirement or has received a waiver of such requirements and has resided continuously in the United States in unlawful status since January 1, 1982. (5) An alien who establishes that he or she was granted voluntary departure, voluntary return, extended voluntary departure or placed in deferred action category by the Service prior to January 1, 1982 and who has thereafter resided continuously in such status in the United States and who has been physically present in the United States from November 6, 1986 until the date of filing the application. (6) An alien who establishes that he or she was paroled into the United States prior to January 1, 1982, and whose parole status terminated prior to January 1, 1982, and who has thereafter resided continuously in such status in the United States, and who has been physically present in the United States from November 6, 1986, until the date of filing the application. (7) An alien who establishes that he or she is a Cuban or Haitian Entrant who was physically present in the United States prior to January 1, 1982, and who has thereafter resided continuously in the United States, and who has been physically present in the United States from November 6, 1986, until the date of filing the application, without regard to whether such alien has applied for adjustment of status pursuant to section 202 of the Act. (8) An alien's eligibility under the categories described in section 245(a)(2)(b) (1) through (7) and (9) through (15) shall not be affected by entries to the United States subsequent to January 1, 1982 that were not documented on Service Form I-94 (see § 1.4), Arrival-Departure Record. (9) An alien who would be otherwise eligible for legalization and who was present in the United States in an unlawful status prior to January 1, 1982, and reentered the United States as a nonimmigrant, such entry being documented on Service Form I-94, Arrival-Departure Record, in order to return to an unrelinquished unlawful residence. (10) An alien described in paragraph (b)(9) of this section must receive a waiver of the excludable charge 212(a)(19) as an alien who entered the United States by fraud. (11) A nonimmigrant who entered the United States for duration of status (“D/S”) is one of the following classes, A, A-1, A-2, G, G-1, G-2, G-3 or G-4, whose qualifying employment terminated or who ceased to be recognized by the Department of State as being entitled to such classification prior to January 1, 1982, and who has thereafter continued to reside in the United States in an unlawful status. An alien who was a dependent family member and who may be otherwise eligible for legalization may be considered a member of this class of eligible aliens if the dependent family member was also in A and G status when the principal A or G alien's status terminated or ceased to be recognized by the Department of State. (12) A nonimmigrant who entered the United States for duration of status (“D/S”) in one of the following classes, F, F-1, or F-2, who completed a full course of study, including practical training and whose time period if any to depart the United States after completion of study expired prior to January 1, 1982 and who has remained in the United States in an unlawful status since that time. A dependent F-2 alien otherwise eligible who was admitted into the United States with a specific time period, as opposed to duration of status, documented on Service Form I-94, Arrival-Departure Record that extended beyond January 1, 1982 is considered eligible if the principal F-1 alien is found eligible. (13) An alien who establishes that he or she is a member of the class in the Silva-Levi lawsuit (No. 76-C-4268 (N.D. ILL. March 22, 1977)); that is, an alien from an independent country of the Western Hemisphere who was present in the United States prior to March 11, 1977, and was known by the Immigration and Naturalization Service (INS) to have a priority date for the issuance of an immigrant visa between July 1, 1968 and December 31, 1976, inclusive, and who was clearly eligible for an immigrant visa. (14) An alien who filed an asylum application prior to January 1, 1982 and whose application was subsequently denied or whose application has not yet been decided is considered an alien in an unlawful status known to the government. (15) An alien, otherwise eligible who departed the United States and was paroled into the United States on or before May 1, 1987 in order to return to an unrelinquished unlawful residence. (c) Ineligible aliens. (2) An alien who has assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group or political opinion. (3) An alien excludable under the provisions of section 212(a) of the Act whose grounds of excludability may not be waived, pursuant to section 245A(d)(2)(B)(ii) of this Act. (4) An alien who at any time was a nonimmigrant exchange visitor who is subject to the two-year foreign residence requirement unless the requirement has been satisfied or waived pursuant to the provisions of section 212(e) of the Act who has resided continuously in the United States in an unlawful status since January 1, 1982. (5) [Reserved] (6) An alien who is the subject of an Order to Show Cause issued under section 242 of the Act during the period beginning on May 5, 1987 and ending on April 4, 1988 who does not file an application for adjustment of status to that of temporary resident under section 245A(a) of the Act prior to the thirty-first day after issuance of the order. (7) An alien who is the subject of an Order to Show Cause issued under section 242 of the Act during the period beginning on April 5, 1988 and ending on May 4, 1988 who does not file an application for adjustment of status to that of a temporary resident under section 245A(a) of the Act prior to May 5, 1988. (8) An alien who was paroled into the United States prior to January 1, 1982 and whose parole status terminated or expired subsequent to January 1, 1982, except an alien who was granted advance parole. (d) Documentation. (1) Proof of identity. (i) Passport; (ii) Birth certificate; (iii) Any national identity document from the alien's country of origin bearing photo and fingerprint (e.g., a “cedula” or “cartilla”); (iv) Driver's license or similar document issued by a state if it contains a photo; (v) Baptismal Record/Marriage Certificate; or (vi) Affidavits. (2) Assumed names General. i.e. (ii) Proof of common identity. (3) Proof of residence. (i) Past employment records, which may consist of pay stubs, W-2 Forms, certification of the filing of Federal income tax returns on IRS Form 6166, state verification of the filing of state income tax returns, letters from employer(s) or, if the applicant has been in business for himself or herself, letters from banks and other firms with whom he or she has done business. In all of the above, the name of the alien and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers should be on employer letterhead stationery, if the employer has such stationery, and must include: (A) Alien's address at the time of employment; (B) Exact period of employment; (C) Periods of layoff; (D) Duties with the company; (E) Whether or not the information was taken from official company records; and (F) Where records are located and whether the Service may have access to the records. If the records are unavailable, an affidavit form-letter stating that the alien's employment records are unavailable and why such records are unavailable may be accepted in lieu of (3)(i)(E) and (3)(i)(F) of this paragraph. This affidavit form-letter shall be signed, attested to by the employer under penalty of perjury, and shall state the employer's willingness to come forward and give testimony if requested. (ii) Utility bills (gas, electric, phone, etc.), receipts, or letters from companies showing the dates during which the applicant received service are acceptable documentation. (iii) School records (letters, report cards, etc.) from the schools that the applicant or their children have attended in the United States must show name of school and periods of school attendance. (iv) Hospital or medical records showing treatment or hospitalization of the applicant or his or her children must show the name of the medical facility or physician and the date(s) of the treatment or hospitalization. (v) Attestations by churches, unions, or other organizations to the applicant's residence by letter which: (A) Identifies applicant by name; (B) Is signed by an official (whose title is shown); (C) Shows inclusive dates of membership; (D) States the address where applicant resided during membership period; (E) Includes the seal of the organization impressed on the letter or the letterhead of the organization, if the organization has letterhead stationery; (F) Establishes how the author knows the applicant; and (G) Establishes the origin of the information being attested to. (vi) Additional documents to support the applicant's claim may include: (A) Money order receipts for money sent in or out of the country; (B) Passport entries; (C) Birth certificates of children born in the United States; (D) Bank books with dated transactions; (E) Letters or correspondence between applicant and another person or organization; (F) Social Security card; (G) Selective Service card; (H) Automobile license receipts, title, vehicle registration, etc.; (I) Deeds, mortgages, contracts to which applicant has been a party; (J) Tax receipts; (K) Insurance policies, receipts, or letters; and (L) Any other relevant document. (4) Proof of financial responsibility. (i) Evidence of a history of employment ( i.e. (ii) Evidence that he/she is self-supporting ( i.e. (iii) Form I-134, Affidavit of Support, completed by a spouse in behalf of the applicant and/or children of the applicant or a parent in behalf of children which guarantees complete or partial financial support. Acceptance of the affidavit of support shall be extended to other family members where family circumstances warrant. (5) Burden of proof. (6) Evidence. (e) Filing of application. (i) Require the applicant to file the application in person; or (ii) Require the applicant to file the application by mail; or (iii) Permit the filing of applications either by mail or in person. The applicant must appear for a personal interview at the legalization office as scheduled. If the applicant is 14 years of age or older, the application must be accompanied by a completed Form FD-258 (Applicant Card). (2) At the time of the interview, wherever possible, original documents must be submitted except the following: Official government records; employment or employment-related records maintained by employers, unions, or collective bargaining organizations; medical records; school records maintained by a school or school board; or other records maintained by a party other than the applicant. Copies of records maintained by parties other than the applicant which are submitted in evidence must be certified as true and correct by such parties and must bear their seal or signature or the signature and title of persons authorized to act in their behalf. If at the time of the interview the return of original documents is desired by the applicant, they must be accompanied by notarized copies or copies certified true and correct by a qualified designated entity or by the alien's representative in the format prescribed in § 204.2(j)(1) or (2) of this chapter. At the discretion of the district director, original documents, even if accompanied by certified copies, may be temporarily retained for forensic examination by the Document Analysis Unit at the Regional Processing Facility having jurisdiction over the legalization office to which the documents were submitted. (3) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2. (f) Filing date of application. (g) Selective Service registration. (h) Continuous residence. temporary resident status (i) No single absence from the United States has exceeded forty-five (45) days, and the aggregate of all absences has not exceeded one hundred and eighty (180) days between January 1, 1982 through the date the application for temporary resident status is filed, unless the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed; (ii) The alien was maintaining a residence in the United States; and (iii) The alien's departure from the United States was not based on an order of deportation. (2) An alien who has been absent from the United States in accordance with the Service's advance parole procedures shall not be considered as having interrupted his or her continuous residence as required at the time of filing an application under this section. (i) Medical examination. (j) Interview. (k) Applicability of exclusion grounds Grounds of exclusion not to be applied. (2) Waiver of grounds of exclusion. (3) Grounds of exclusion that may not be waived. (i) Paragraphs (9) and (10) (criminals); (ii) Paragraph (23) (narcotics) except for a single offense of simple possession of thirty grams or less of marijuana; (iii) Paragraphs (27) (prejudicial to the public interest), (28) (communist), and (29) (subversive); (iv) Paragraph (33) (participated in Nazi persecution). (4) Special rule for determination of public charge. (5) Public assistance and criminal history verification. (l) Continuous physical presence since November 6, 1986. (2) A brief, casual and innocent absence means a departure authorized by the Service (advance parole) subsequent to May 1, 1987 of not more than thirty (30) days for legitimate emergency or humanitarian purposes unless a further period of authorized departure has been granted in the discretion of the district director or a departure was beyond the alien's control. (m) Departure. (2) An alien whose application for temporary resident status has been approved may be admitted to the United States upon return as a returning temporary resident provided he or she: (i) Is not under deportation proceedings, such proceedings having been instituted subsequent to the approval of temporary resident status. A temporary resident alien will not be considered deported if that alien departs the United States while under an outstanding order of deportation issued prior to the approval of temporary resident status; (ii) Has not been absent from the United States more than thirty (30) days on the date application for admission is made; (iii) Has not been absent from the United States for an aggregate period of more than 90 days since the date the alien was granted lawful temporary resident status; (iv) Presents Form I-688; (v) Presents himself or herself for inspection; and (vi) Is otherwise admissible. (3) The periods of time in paragraph (m)(2)(ii) and (m)(2)(iii) of this section may be waived at the discretion of the Attorney General in cases where the absence from the United States was due merely to a brief temporary trip abroad due to emergent or extenuating circumstances beyond the alien's control. (n)(1) Employment and travel authorization; general. (2) Employment authorization prior to the granting of temporary resident status. (ii) If an interview appointment cannot be scheduled within 30 days from the date an application is filed at a Service office, authorization to accept employment will be granted, valid until the scheduled appointment date. Employment authorization, both prior and subsequent to an interview, will be restricted to increments of 1 year, pending final determination on the application for temporary resident status. If a final determination has not been made prior to the expiration date on the Employment Authorization Document (Form I-766, Form I-688A or Form I-688B), that date may be extended upon return of the employment authorization document by the applicant to the appropriate Service office. (3) Employment and travel authorization upon grant of temporary resident status. (4) Revocation of employment authorization upon denial of temporary resident status. (o) Decision. (p) Appeal process. (q) Motions. sua sponte (r) Certifications. (s) Date of adjustment to temporary residence. (t) Limitation on access to information and confidentiality. (2) Files and records prepared by designated entities under this section are confidential. The Attorney General and the Service shall not have access to these files and records without the consent of the alien. (3) No information furnished pursuant to an application for legalization under this section shall be used for any purpose except: (i) To make a determination on the application; or, (ii) for the enforcement of the provisions encompassed in section 245A(c)(6) of the Act, except as provided in paragraph (t)(4) of this section. (4) If a determination is made by the Service that the alien has, in connection with his or her application, engaged in fraud or willful misrepresentation or concealment of a material fact, knowingly provided a false writing or document in making his or her application, knowingly made a false statement or representation, or engaged in any other activity prohibited by section 245A(c)(6) of the Act, the Service shall refer the matter to the United States Attorney for prosecution of the alien or of any person who created or supplied a false writing or document for use in an application for adjustment of status under this part. (5) Information obtained in a granted legalization application and contained in the applicant's file is subject to subsequent review in reference to future benefits applied for (including petitions for naturalization and permanent resident status for relatives). (u) Termination of temporary resident status Termination of temporary resident status; General. (i) It is determined that the alien was ineligible for temporary residence under section 245A of this Act; (ii) The alien commits an act which renders him or her inadmissible as an immigrant, unless a waiver is secured pursuant to § 245a.2(k)(2). (iii) The alien is convicted of any felony, or three or more misdemeanors; (iv) The alien fails to file for adjustment of status from temporary resident to permanent resident on Form I-698 within forty-three (43) months of the date he/she was granted status as a temporary resident under § 245a.1 of this part. (2) Procedure Termination by the Service. (ii) Termination upon entry of final order of deportation or exclusion. ( 1 ( 2 ( 3 (B) In such cases, the entry of a final order of deportation or exclusion will automatically terminate an alien's temporary resident status acquired under section 245A(a)(1) of the Act. (3) Termination not construed as rescission under section 246. termination of status (4) Return to unlawful status after termination. (v) Ineligibility for immigration benefits. (w) Declaration of Intending Citizen. [52 FR 16208, May 1, 1987, as amended at 52 FR 43845, 43846, Nov. 17, 1987; 53 FR 23382, June 22, 1988; 54 FR 29449, July 12, 1989; 56 FR 31061, July 9, 1991; 58 FR 45236, Aug. 27, 1993; 60 FR 21040, May 1, 1995; 60 FR 21975, May 4, 1995; 61 FR 46536, Sept. 4, 1996; 65 FR 82256, Dec. 28, 2000; 78 FR 18472, Mar. 27, 2013; 85 FR 46927, Aug. 3, 2020] § 245a.3 Application for adjustment from temporary to permanent resident status. (a) Application period for permanent residence. (2) No application shall be denied for failure to timely apply before the end of 43 months from the date of actual approval of the temporary resident application. (3) The Service Center Director shall sua sponte reopen and reconsider without fee any application which was previously denied for late filing. No additional fee will be required for those applications which are filed during the twelve month extension period but prior to July 9, 1991. (b) Eligibility. (1) Applies for such adjustment anytime subsequent to the granting of temporary resident status but on or before the end of 43 months from the date of actual approval of the temporary resident application. The alien need not be physically present in the United States at the time of application; however, the alien must establish continuous residence in the United States in accordance with the provisions of paragraph (b)(2) of this section and must be physically present in the United States at the time of interview and/or processing for permanent resident status (ADIT processing); (2) Establishes continuous residence in the United States since the date the alien was granted such temporary residence status. An alien shall be regarded as having resided continuously in the United States for the purpose of this part if, at the time of applying for adjustment from temporary to permanent resident status, or as of the date of eligibility for permanent residence, whichever is later, no single absence from the United States has exceeded thirty (30) days, and the aggregate of all absences has not exceeded ninety (90) days between the date of approval of the temporary resident application, Form I-687 (not the “roll-back” date) and the date the alien applied or became eligible for permanent resident status, whichever is later, unless the alien can establish that due to emergent reasons or circumstances beyond his or her control, the return to the United States could not be accomplished within the time period(s) allowed. A single absence from the United States of more than 30 days, and aggregate absences of more than 90 days during the period for which continuous residence is required for adjustment to permanent residence, shall break the continuity of such residence, unless the temporary resident can establish to the satisfaction of the district director or the Director of the Regional Processing Facility that he or she did not, in fact, abandon his or her residence in the United States during such period; (3) Is admissible to the United States as an immigrant, except as otherwise provided in paragraph (g) of this section; and has not been convicted of any felony, or three or more misdemeanors; and (4)(i)(A) Can demonstrate that the alien meets the requirements of section 312 of the Immigration and Nationality Act, as amended (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States); or (B) Is satisfactorily pursuing a course of study recognized by the Attorney General to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States. (ii) The requirements of paragraph (b)(4)(i) of this section must be met by each applicant. However, these requirements shall be waived without formal application for persons who, as of the date of application or the date of eligibility for permanent residence under this part, whichever date is later, are: (A) Under 16 years of age; or (B) 65 years of age or older; or (C) Over 50 years of age who have resided in the United States for at least 20 years and submit evidence establishing the 20-year qualification requirement. Such evidence must be submitted pursuant to the requirements contained in Section 245a.2(d)(3) of this chapter; or (D) Developmentally disabled as defined at § 245a.1(v) of this chapter. Such persons must submit medical evidence concerning their developmental disability; or (E) Physically unable to comply. The physical disability must be of a nature which renders the applicant unable to acquire the four language skills of speaking, understanding, reading, and writing English in accordance with the criteria and precedence established in OI 312.1(a)(2)(iii) (Interpretations). Such persons must submit medical evidence concerning their physical disability. (iii)(A) Literacy and basic citizenship skills may be demonstrated for purposes of complying with paragraph (b)(4)(i)(A) of this section by: ( 1 ( 2 (B) An applicant who fails to pass the English literacy and/or the U.S. history and government tests at the time of the interview, shall be afforded a second opportunity after six (6) months (or earlier, at the request of the applicant) to pass the tests, submit evidence of passing an INS approved section 312 standardized examination or submit evidence of fulfillment of any one of the “satisfactorily pursuing” alternatives listed at § 245a.1(s) of this chapter. The second interview shall be conducted prior to the denial of the application for permanent residence and may be based solely on the failure to pass the basic citizenship skills requirements. An applicant whose period of eligibility expires prior to the end of the six-month re-test period, shall still be accorded the entire six months within which to be re-tested. (iv) To satisfy the English language and basic citizenship skills requirements under the “satisfactorily pursuing” standard as defined at § 245a.1(s) of this chapter the applicant must submit evidence of such satisfactory pursuit in the form of a “Certificate of Satisfactory Pursuit” (Form I-699) issued by the designated school or program official attesting to the applicant's satisfactory pursuit of the course of study as defined at § 245a.1(s)(1) and (4) of this chapter; or a high school diploma or general educational development diploma (GED) under § 245a.1(s)(2) of this chapter; or certification on letterhead stationery from a state recognized, accredited learning institution under § 245a.1(s)(3) of this chapter; or evidence of having passed the IRCA Test for Permanent Residency under § 245a.1(s)(5) of this chapter. Such applicants shall not then be required to demonstrate that they meet the requirements of § 245a.3(b)(4)(i)(A) of this chapter in order to be granted lawful permanent residence provided they are otherwise eligible. Evidence of “Satisfactory Pursuit” may be submitted at the time of filing Form I-698, subsequent to filing the application but prior to the interview, or at the time of the interview (the applicant's name and A90M number must appear on any such evidence submitted). An applicant need not necessarily be enrolled in a recognized course of study at the time of application for permanent residency. (v) Enrollment in a recognized course of study as defined in § 245a.3(b)(5) and issuance of a “Certificate of Satisfactory Pursuit” must occur subsequent to May 1, 1987. (5) A course of study in the English language and in the history and government of the United States shall satisfy the requirement of paragraph (b)(4)(i) of this section if the course materials for such instruction include textbooks published under the authority of section 346 of the Act, and it is (i) Sponsored or conducted by: (A) An established public or private institution of learning recognized as such by a qualified state certifying agency; (B) An institution of learning approved to issue Forms I-20 in accordance with § 214.3 of this chapter; (C) A qualified designated entity within the meaning of section 245A(c)(2) of the Act, in good-standing with the Service; or (D) Is certified by the district director in whose jurisdiction the program is conducted, or is certified by the Director of the Outreach Program nationally. (ii) A program seeking certification as a course of study recognized by the Attorney General under paragraph (b)(5)(i)(D) of this section shall file Form I-803, Petition for Attorney General Recognition to Provide Course of Study for Legalization: Phase II, with the Director of Outreach for national level programs or with the district director having jurisdiction over the area in which the school or program is located. In the case of local programs, a separate petition must be filed with each district director when a parent organization has schools or programs in more than one INS district. A petition must identify by name and address those schools or programs included in the petition. No fee shall be required to file Form I-803; (A) The Director of Outreach and the district directors may approve a petition where they have determined that ( 1 2 3 (B) Upon approval of the petition the Director of Outreach and district directors shall issue a Certificate of Attorney General Recognition on Form I-804 to the petitioner. If the petition is denied, the petitioner shall be notified in writing of the decision therefor. No appeal shall lie from a denial of Form I-803, except that in such case where the petitions of a local, cross-district program are approved in one district and denied in another within the same State, the petitioner may request review of the denied petition by the appropriate Regional Commissioner. The Regional Commissioner shall then make a determination in this case; (C) Each district director shall compile and maintain lists of programs approved under paragraph (b)(5)(i)(D) of this section within his or her jurisdiction. The Director of Outreach shall compile and maintain lists of approved national level programs. (6) Notice of participation. (i) The name(s) of the school(s)/program(s). (ii) The complete addresses and telephone numbers of sites where courses will be offered, and class schedules. (iii) The complete names of persons who are in charge of conducting English and U.S. history and government courses of study. (iv) A statement that the course of study will issue “Certificates of Satisfactory Pursuit” to temporary resident enrollees according to INS regulations. (v) A list of designated officials of the recognized course of study authorized to sign “Certificates of Satisfactory Pursuit”, and samples of their original signatures. (vi) A statement that if a course provider charges a fee to temporary resident enrollees, the fee will not be excessive. (vii) Evidence of recognition under 8 CFR 245a.3(b)(5)(i)(A), (B), or (C) (e.g., certification from a qualified state certifying agency; evidence of INS approval for attendance by nonimmigrant students, such as the school code number, or the INS identification number from the QDE cooperative agreement). The course provider shall notify the district director, in writing, of any changes to the information contained in the Notice of Participation subsequent to its submission within ten (10) days of such change. A Certificate of Attorney General Recognition to Provide Course of Study for Legalization (Phase II), Form I-804, shall be issued to course providers who have submitted a Notice of Participation in accordance with the provisions of this section by the district director. A Notice of Participation deficient in any way shall be returned to the course provider to correct the deficiency. Upon the satisfaction of the district director that the deficiency has been corrected, the course provider shall be issued Form I-804. Each district director shall compile and maintain lists of recognized courses within his or her district. (7) Fee structure. (8) The Citizenship textbooks to be used by applicants for lawful permanent residence under section 245A of the Act shall be distributed by the Service to appropriate representatives of public schools. These textbooks may otherwise be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402, and are also available at certain public institutions. (9) Maintenance of Student Records. (i) Name (as copied exactly from the I-688A or I-688); (ii) A-number (90 million series); (iii) Date of enrollment; (iv) Attendance records; (v) Assessment records; (vi) Photocopy of signed “Certificate of Satisfactory Pursuit” issued to the student. (10) Issuance of “Certificate of Satisfactory Pursuit” (I-699). (ii) The district director shall reject a certificate if it is determined that the certificate is fraudulent or was fraudulently issued. (iii) The district director shall reject a Certificate if it is determined that the course provider is not complying with INS regulations. In the case of non-compliance, the district director will advise the course provider in writing of the specific deficiencies and give the provider thirty (30) days within which to correct such deficiencies. (iv) District directors will accept Certificates from course providers once it is determined that the deficiencies have been satisfactorily corrected. (v) Course providers which engage in fraudulent activities or fail to conform with INS regulations will be removed from the list of INS approved programs. INS will not accept Certificates from these providers. (vi) Certificates may be accepted if a program is cited for deficiencies or decertified at a later date and no fraud was involved. (vii) Certificates shall not be accepted from a course provider that has been decertified unless the alien enrolled in and had been issued a certificate prior to the decertification, provided that no fraud was involved. (viii) The appropriate State agency responsible for SLIAG funding shall be notified of all decertifications by the district director. (11) Designated official. (ii) The designated official must be a regularly employed member of the school administration whose office is located at the school and whose compensation does not come from commissions for recruitment of foreign students; (iii)(A) The head of the school system or school, the director of the Qualified Designated Entity, the head of a program approved by the Attorney General, or the president or owner of other institutions recognized by the Attorney General must specify a designated official. (B) Each designated official shall have read and otherwise be familiar with the “Requirements and Guidelines for Courses of Study Recognized by the Attorney General”. The signature of a designated official shall affirm the official's compliance with INS regulations; (C) The name, title, and sample signature of each designated official for each recognized course of study shall be on file with the district director in whose jurisdiction the program is conducted. (12) Monitoring by INS. (A) Assure that the program is a course of study recognized by the Attorney General under the provisions of § 245a.3(b)(5). (B) Verify the existence of curriculum as defined in § 245a.1(u) on file for each level of instruction provided in English language and U.S. history and government classes. (C) Assure that “Certificates of Satisfactory Pursuit” are being issued in accordance with § 245a.3(b)(10). (D) Assure that records are maintained on each temporary resident enrollee in accordance with § 245a.3(b)(9). (E) Assure that fees (if any) assessed by the course provider are in compliance in accordance with § 245a.3(b)(7). (ii) If INS has reason to believe that the service is not being provided to the applicant, INS will issue a 24-hour minimum notice to the service provider before any site visit is conducted. (iii) If it is determined that a course provider is not performing according to the standards established in either § 245a.3(b)(10) or (12) of this chapter, the district director shall institute decertification proceedings. Notice of Intent to Decertify shall be provided to the course provider. The course provider has 30 days within which to correct performance according to standards established. If after the 30 days, the district director is not satisfied that the basis for decertification has been overcome, the course provider will be decertified. The appropriate State agency shall be notified in accordance with § 245a.3(b)(10)(viii) of this chapter. A copy of the notice of decertification shall be sent to the State agency. (13) Courses of study recognized by the Attorney General as defined at § 245a.3(b)(5) of this chapter shall provide certain standards for the selection of teachers. Since some programs may be in locations where selection of qualified staff is limited, or where budget constraints restrict options, the following list of qualities for teacher selection is provided as guidance. Teacher selections should include as many of the following qualities as possible: (i) Specific training in Teaching English to Speakers of Other Languages (TESOL); (ii) Experience as a classroom teacher with adults; (iii) Cultural sensitivity and openness; (iv) Familiarity with competency-based education; (v) Knowledge of curriculum and materials adaptation; (vi) Knowledge of a second language. (c) Ineligible aliens. (2) An alien who is inadmissible to the United States as an immigrant, except as provided in § 245a.3(g)(1). (3) An alien who was previously granted temporary resident status pursuant to section 245A(a) of the Act who has not filed an application for permanent resident status under section 245A(b)(1) of the Act by the end of 43 months from the date of actual approval of the temporary resident application. (4) An alien who was not previously granted temporary resident status under section 245A(a) of the Act. (5) An alien whose temporary resident status has been terminated under § 245a.2(u) of this chapter (d) Filing the application. (1) The application must be filed on Form I-698. Form I-698 must be accompanied by the correct fee and documents specified in the instructions. The application will be mailed to the director having jurisdiction over the applicant's place of residence. (2) Certification of documents. (i) An attorney in the format prescribed in § 204.2(j)(1) of this chapter; or (ii) An alien's representative in the format prescribed in § 204.2(j)(2) of this chapter; or (iii) A qualified designated entity (QDE) in good standing as defined in § 245a.1(r) of this chapter, if the copy bears a certification by the QDE in good-standing, typed or rubber-stamped in the following language: I certify that I have compared this copy with its original and it is a true and complete copy. Signed: Date: Name: QDE in good-standing representative Name of QDE in good-standing: Address of QDE in good-standing: INS-QDE Cooperative Agreement Number: (iv) Authentication. (v) Original documents. (3) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2. (4) Applicants who filed for temporary resident status prior to December 1, 1987, are required to submit the results of a serologic test for HIV virus on Form I-693, “Medical Examination of Aliens Seeking Adjustment of Status”, completed by a designated civil surgeon, unless the serologic test for HIV was performed and the results were submitted on Form I-693 when the applicant filed for temporary resident status. Applicants who did submit an I-693 reflecting a serologic test for HIV was performed prior to December 1, 1987, must submit evidence of this fact when filing the I-698 application in order to be relieved from the requirement of submitting another I-693. If such evidence is not available, applicants may note on their I-698 application their prior submission of the results of the serologic test for HIV. This information shall then be verified at the Regional Processing Facility. Applicants having to submit an I-693 pursuant to this section are not required to have a complete medical examination. All HIV-positive applicants shall be advised that a waiver of the ground of excludability under section 212(a)(6) of the Act is available and shall be provided the opportunity to apply for the waiver. To be eligible for the waiver, the applicant must establish that: (i) The danger to the public health of the United States created by the alien's admission to the United States is minimal, (ii) The possibility of the spread of the infection created by the alien's admission to the United States is minimal, and (iii) There will be no cost incurred by any government agency without prior consent of that agency. Provided these criteria are met, the waiver may be granted only for humanitarian purposes, to assure family unity, or when the granting of such a waiver is in the public interest in accordance with § 245a.3(g)(2) of this chapter. (5) If necessary, the validity of an alien's temporary resident card (I-688) will be extended in increments of one (1) year until such time as the decision on an alien's properly filed application for permanent residence becomes final. (6) An application lacking the proper fee or incomplete in any way shall be returned to the applicant with request for the proper fee, correction, additional information, and/or documentation. Once an application has been accepted by the Service and additional information and/or documentation is required, the applicant shall be sent a notice to submit such information and/or documentation. In such case the application Form I-698 shall be retained at the RPF. If a response to this request is not received within 60 days, a second request for correction, additional information, and/or documentation shall be made. If the second request is not complied with by the end of 43 months from the date the application for temporary residence, Form I-687, was approved the application for permanent residence will be adjudicated on the basis of the existing record. (e) Interview. (f) Numerical limitations. (g) Applicability of exclusion grounds Grounds of exclusion not to be applied. (2) Waiver of grounds of excludability. (3) Grounds of exclusion that may not be waived. (i) Paragraphs (9) and (10) (criminals); (ii) Paragraph (15) (public charge) except for an alien who is or was an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act); (iii) Paragraph (23) (narcotics), except for a single offense of simple possession of thirty grams or less of marijuana; (iv) Paragraphs (27) (prejudicial to the public interest), (28) (communists), and (29) (subversives); (v) Paragraph (33) (participated in Nazi persecution). (4) Determination of Likely to become a public charge likely to become a public charge, (i) In determining whether an alien is likely to become a public charge (ii) The Special Rule for determination of public charge, paragraph (g)(4)(iii) of this section, is to be applied only after an initial determination that the alien is inadmissible under the provisions of section 212(a)(15) of the act. (iii) Special Rule. (5) Public cash assistance and criminal history verification. (h) Departure. (i) Decision. (j) Appeal process. (k) Motions. sua sponte. (l) Certifications. (m) Date of adjustment to permanent residence. (n) Limitation on access to information and confidentiality. employee of the Department of Justice or bureau or agency thereof. (2) No information furnished pursuant to an application for permanent resident status under this section shall be used for any purpose except: (i) To make a determination on the application; or (ii) for the enforcement of the provisions encompassed in section 245A(c)(6) of the Act, except as provided in paragraph (n)(3) of this section. (3) If a determination is made by the Service that the alien has, in connection with his or her application, engaged in fraud or willful misrepresentation or concealment of a material fact, knowingly provided a false writing or document in making his or her application, knowingly made a false statement or representation, or engaged in any other activity prohibited by section 245A(c)(6) of the Act, the Service shall refer the matter to the United States Attorney for prosecution of the alien and/or of any person who created or supplied a false writing or document for use in an application for adjustment of status under this part. (4) Information contained in granted legalization files may be used by the Service at a later date to make a decision (i) On an immigrant visa petition or other status filed by the applicant under section 204(a) of the Act; (ii) On a naturalization application submitted by the applicant; (iii) For the preparation of reports to Congress under section 404 of IRCA, or; (iv) For the furnishing of information, at the discretion of the Attorney General, in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under section 8 of title 13, Unites States Code. (o) Rescission. [54 FR 29449, July 12, 1989; 54 FR 43384, Oct. 24, 1989, as amended at 56 FR 31061, July 9, 1991; 57 FR 3926, Feb. 3, 1992; 59 FR 33905, July 1, 1994; 85 FR 46927, Aug. 3, 2020] § 245a.4 Adjustment to lawful resident status of certain nationals of countries for which extended voluntary departure has been made available. (a) Definitions. (1) Act (2) Service (3) Resided continuously (i) No single absence from the United States has exceeded 45 days, and the aggregate of all absences has not exceeded 180 days between July 21, 1984, through the date the application for temporary resident status is filed, unless the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed; (ii) The alien was maintaining residence in the United States; and (iii) The alien's departure from the United States was not based on an order of deportation. An alien who has been absent from the United States in accordance with the Service's advance parole procedures shall not be considered as having interrupted his or her continuous residence as required at the time of filing an application. An alien who, after appearing for a scheduled interview to obtain an immigrant visa at a Consulate or Embassy in Canada or Mexico but who subsequently is not issued an immigrant visa and who is paroled back into the United States pursuant to the stateside criteria program, shall be considered as having resided continuously. (4) Continuous residence (5) To make a determination (6) Continuous physical presence (7) Brief, casual, and innocent (8) Brief and casual (9) Certain nationals of countries for which extended voluntary departure has been made available on the basis of a nationality group determination at any time during the 5-year period ending on November 1, 1987 (10) Public cash assistance (11) Designated entity (12) Through the passage of time (13) Prima facie eligibility (b) Application for temporary residence Application for temporary residence. (ii) An alien who fails to file an application for adjustment of status to that of a temporary resident under § 245A.4 of this part during the time period, will be statutorily ineligible for such adjustment of status. (2) Eligibility (A) An alien who is a national of Poland, Uganda, Ethiopia, or Afghanistan, (other than an alien who entered as a nonimmigrant) who establishes that he or she entered the United States prior to July 21, 1984, and who has thereafter resided continuously in the United States, and who has been physically present in the United States from December 22, 1987, until the date of filing the application. (B) An alien who is a national of Poland, Uganda, Ethiopia, or Afghanistan, and establishes that he or she entered the United States as a nonimmigrant prior to July 21, 1984, and whose period of authorized admission expired through the passage of time prior to January 21, 1985, and who has thereafter resided continuously in the United States, and who has been physically present in the United States from December 22, 1987, until the date of filing the application. (C) An alien who is a national of Poland, Uganda, Ethiopia, or Afghanistan, and establishes that he or she entered the United States as a nonimmigrant prior to July 21, 1984, and who applied for asylum prior to July 21, 1984, and who has thereafter resided continuously in the United States, and who has been physically present in the United States from December 22, 1987, until the date of filing the application. (D) An alien who is a national of Poland, Uganda, Ethiopia, or Afghanistan, who would otherwise be eligible for temporary resident status and who establishes that he or she resided continuously in the United States prior to July 21, 1984, and who subsequently reentered the United States as a nonimmigrant in order to return to an unrelinquished residence. An alien described in this paragraph must have received a waiver of 212(a)(19) as an alien who entered the United States by fraud. (E) An alien who is a national of Poland, Uganda, Ethiopia, or Afghanistan, and was a nonimmigrant who entered the United States in the classification A, A-1, A-2, G, G-1, G-2, G-3, or G-4, for Duration of Status (D/S), and whose qualifying employment terminated or who ceased to be recognized by the Department of State as being entitled to such classification prior to January 21, 1985, and who thereafter continued to reside in the United States. (F) An alien who is a national of Poland, Uganda, Ethiopia, or Afghanistan, and who was a nonimmigrant who entered the United States as an F, F-1, or F-2 for Duration of Status (D/S), and who completed a full course of studies, including practical training (if any), and whose time period to depart the United States after completion of studies expired prior to January 21, 1985, and who has thereafter continued to reside in the United States. Those students placed in a nunc pro tunc (3) Ineligible aliens. (ii) An alien who has assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion. (iii) An alien excludable under the provisions of section 212(a) of the Act whose grounds of excludability may not be waived. (4) Documentation. (i) Proof of identity. (A) Passport; (B) Birth certificate; (C) Any national identity document from the alien's country of origin bearing photo and fingerprint; (D) Driver's license or similar document issued by a state if it contains a photo; (E) Baptismal Record/Marriage Certificate; or (F) Affidavits. (ii) Proof of nationality. (A) Passport; (B) Birth certificate; (C) Any national identity document from the alien's country of origin bearing photo and fingerprint; (D) Other credible documents, including those created by, or in the possession of the INS, or any other documents (excluding affidavits) that, when taken singly, or together as a whole, establish the alien's nationality. (iii) Assumed names General. i.e. (B) Proof of common identity. (iv) Proof of residence. (A) Past employment records, which may consist of pay stubs, W-2 Forms, certification of the filing of Federal income tax returns on IRS Form 6166, a state verification of the filing of state income tax returns, letters from employer(s) or, if the applicant has been in business for himself or herself, letters from banks and other firms with whom he or she has done business. In all of the above, the name of the alien and the name of the employer or other interested organizations must appear on the form or letter, as well as relevant dates. Letters from employers should be on employer letterhead stationery, if the employer has such stationery, and must include: ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 If the records are unavailable, an affidavit form letter stating that the alien's employment records are unavailable and why such records are unavailable may be accepted in lieu of paragraphs (b)(4)(iv)(A)( 5 6 (B) Utility bills (gas, electric, phone, etc.) receipts, or letters from companies showing the dates during which the applicant received service are acceptable documentation. (C) School records (letters, report cards, etc.) from the schools that the applicant or his or her children have attended in the United States must show the name of school and periods of school attendance. (D) Hospital or medical records showing treatment or hospitalization of the applicant or his or her children must show the name of the medical facility or physician and the date(s) of the treatment or hospitalization. (E) Attestations by churches, unions, or other organizations as to the applicant's residence by letter which: ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 ( 7 (F) Additional documents to support the applicant's claim may include: ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 ( 7 ( 8 ( 9 ( 10 ( 11 ( 12 (v) Proof of financial responsibility. (A) Evidence of a history of employment ( i.e. (B) Evidence that he/she is self-supporting ( i.e. (C) Form I-134. Affidavit of Support, completed by a spouse on behalf of the applicant and/or children of the applicant or a parent in behalf of children which guarantees complete or partial financial support. Acceptance of the Affidavit of Support shall be extended to other family members in unusual family circumstances. Generally, the evidence of employment submitted under paragraph (b)(4)(iv)(A) of this section will serve to demonstrate the alien's financial responsibility during the documented period(s) of employment. If the alien's period(s) of residence in the United States include significant gaps in employment or if there is reason to believe that the alien may have received public assistance while employed, the alien may be required to provide proof that he or she has not received public cash assistance. An applicant for residence who is likely to become a public charge will be denied adjustment. (vi) Burden of proof. (vii) Evidence. (5) Filing of application. (A) Require the applicant to file the application in person; or (B) Require the applicant to file the application by mail; or (C) Permit the filing of applications whether by mail or in person. The applicant must appear for a personal interview at the Service office as scheduled. If the applicant is 14 years of age or older, the application must be accompanied by a completed Form FD-258 (Applicant Card). (ii) At the time of the interview, whenever possible, original documents must be submitted except the following: Official government records; employment or employment-related records maintained by employers, union, or collective bargaining organizations; medical records; school records maintained by a school or school board; or other records maintained by a party other than the applicant. Copies of records maintained by parties other than the applicant which are submitted in evidence must be certified as true and correct by such parties and must bear their seal or signature or the signature and title of persons authorized to act in their behalf. If at the time of the interview the return of the original document is desired by the applicant, the document must be accompanied by notarized copies or copies certified true and correct by a qualified designated entity or by the alien's representative in the format prescribed in § 204.2(j)(1) or (2) of this chapter. At the discretion of the district director, original documents, even if accompanied by certified copies, may be temporarily retained for forensic examination by the Document Analysis Unit at the Regional Processing Facility having jurisdiction over the Service office to which the documents were submitted. (iii) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2. (6) Filing date of application. (7) Selective Service registration. (8) Continuous residence. (A) No single absence from the United States has exceeded 45 days, and the aggregate of all absences has not exceeded 180 days between July 2l, 1984, through the date the application for temporary resident status is filed, unless the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed; (B) The alien was maintaining a residence in the United States; and (C) The alien's departure from the United States was not based on an order of deportation. (ii) An alien who has been absent from the United States in accordance with the Service's advance parole procedures shall not be considered as having interrupted his or her continuous residence as required at the time of filing an application under this section. (9) Medical examination. (ii) All applicants who file for temporary resident status are required to include the results of a serological test for the HIV virus on the I-693. All HIV-positive applicants shall be advised that a waiver is available and shall be provided with the opportunity to apply for a waiver. (10) Interview. (11) Applicability of exclusion grounds Grounds of exclusion not to be applied. (ii) Waiver of grounds of exclusion. (iii) Grounds of exclusion that may not be waived. (A) Paragraphs (9) and (10) (criminals); (B) Paragraph (23) (narcotics) except for a single offense of simple possession of thirty grams or less of marijuana; (C) Paragraphs (27) (prejudicial to the public interest), (28) (communist), and (29) (subversive); (D) Paragraph (33) (participated in Nazi persecution). (iv) Determination of Likely to become a public charge likely to become a public charge, (B) In determining whether an alien is likely to become a public charge, (C) An alien who has a consistent employment history which shows the ability to support himself or herself even though his or her income may be below the poverty level may be admissible under this section. The alien's employment history need not be continuous in that it is uninterrupted. It should be continuous in the sense that the alien shall be regularly attached to the workforce, has an income over a substantial period of the applicable time, and has demonstrated the capacity to exist on his or her income without recourse to public cash assistance. The Special Rule is prospective in that the Service shall determine, based on the alien's history, whether he or she is likely to become a public charge. Past acceptance of public cash assistance within a history of consistent employment will enter into this decision. The weight given in considering applicability of the public charge provisions will depend on many factors, but the length of time an applicant has received public cash assistance will constitute a significant factor. It is not necessary to file a waiver in order to apply the Special Rule for Determination of Public Charge. (v) Public assistance and criminal history verification. (12) Continuous physical presence since December 22, 1987. (ii) A brief, casual and innocent absence means a departure authorized by the Service (advance parole) subsequent to March 21, 1988, of not more than thirty (30) days for legitimate emergency or humanitarian purposes unless a further period of authorized departure has been granted in the discretion of the district director or a departure was beyond the alien's control. (13) Departure. (ii) An alien whose application for temporary resident status has been approved may be admitted to the United States upon return as a returning temporary resident provided he or she: (A) Is not under deportation proceedings, such proceedings having been instituted subsequent to the approval of temporary resident status. A temporary resident alien will not be considered deported if that alien departs the United States while under an outstanding order of deportation issued prior to the approval of temporary resident status; (B) Has not been absent from the United States for more than 30 days on the date application for admission is made; (C) Has not been absent from the United States for an aggregate period of more than 90 days since the date the alien was granted lawful temporary resident status; (D) Presents Form I-688; (E) Presents himself or herself for inspection; and (F) Is otherwise admissible. (iii) The periods of time in paragraphs (b)(13)(ii)(B) and (C) of this section may be waived at the discretion of the Attorney General in cases where the absence from the United States was due merely to a brief and casual trip abroad due to emergent or extenuating circumstances beyond the alien's control. (14) Employment and travel authorization General. (ii) Employment and travel authorization prior to the granting of temporary resident status. (B) If an appointment cannot be scheduled within 30 days, authorization to accept employment will be granted, valid until the scheduled appointment date. The appointment letter will be endorsed with the temporary employment authorization. An employment authorization document will be given to the applicant after an interview has been completed by an immigration officer unless a formal denial is issued by a Service office. This temporary employment authorization will be restricted to six-months duration, pending final determination on the application for temporary resident status. (iii) Employment and travel authorization upon grant of temporary resident status. (iv) Revocation of employment authorization upon denial of temporary resident status. (15) Decision. (16) Appeal process. (17) Motions. sua sponte (18) Certifications. (19) Date of adjustment to temporary residence. (20) Termination of temporary resident status Termination of temporary resident status (General). (A) It is determined that the alien was ineligible for temporary residence under § 245a.4 of this part; (B) The alien commits an act which renders him or her inadmissible as an immigrant unless a waiver is obtained, as provided in this part; (C) The alien is convicted of any felony, or three or more misdemeanors; (D) The alien fails to file for adjustment of status from temporary resident to permanent resident within 31 months of the date he or she was granted status as a temporary resident. (ii) Procedure. (iii) Termination not construed as rescission under section 246. termination of status (iv) Return to unlawful status after termination. (21) Ineligibility for immigration benefits. (22) Declaration of intending citizen. (23) Limitation on access to information and confidentiality. employee of the Department of Justice or bureau or agency thereof. (ii) No information furnished pursuant to an application for temporary or permanent resident status under this section shall be used for any purpose except: (A) To make a determination on the application; or, (B) for the enforcement of the provisions encompassed in section 245A(c)(6) of the Act, except as provided in paragraph (b)(23)(iii) of this section. (iii) If a determination is made by the Service that the alien has, in connection with his or her application, engaged in fraud or willful misrepresentation or concealment of a material fact, knowingly provided a false writing or document in making his or her application, knowingly made a false statement or representation, or engaged in any other activity prohibited by section 245A(c)(6) of the Act, the Service shall refer the matter to the United States Attorney for prosecution of the alien or of any person who created or supplied a false writing or document for use in an application for adjustment of status under this part. (iv) Information contained in granted legalization files may be used by the Service at a later date to make a decision on an immigrant visa petition (or other status petition) filed by the applicant under section 204(a), or for naturalization applications submitted by the applicant. (c) Adjustment from temporary to permanent resident status. [54 FR 6505, Feb. 13, 1989, as amended at 54 FR 29455, July 12, 1989; 54 FR 47676, Nov. 16, 1989; 60 FR 21976, May 4, 1995; 65 FR 82256, Dec. 28, 2000; 76 FR 53794, Aug. 29, 2011; 78 FR 18472, Mar. 27, 2013; 85 FR 46927, Aug. 3, 2020] § 245a.5 Temporary disqualification of certain newly legalized aliens from receiving benefits from programs of financial assistance furnished under federal law. (a) Except as provided in § 245a.5(b), any alien who has obtained the status of an alien lawfully admitted for temporary residence pursuant to section 245A of the Act (Adjustment of Status of Certain Entrants Before January 1, 1982, to that of Person Admitted for Lawful Residence) or 210A of the Act (Determinations of Agricultural Labor Shortages and Admission of Additional Special Agricultural Workers) is ineligible, for a period of five years from the date such status was obtained, for benefits financed directly or indirectly, in whole or in part, through the programs identified in § 245a.5(c) of this chapter. (b)(1) Section 245a.5(a) shall not apply to a Cuban or Haitian entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of Public Law 96-422, as in effect on April 1, 1983), or in the case of assistance (other than aid to families with dependent children) which is furnished to an alien who is an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act). (2) With respect to any alien who has obtained the status of an alien lawfully admitted for temporary residence pursuant to section 210A of the Act only, assistance furnished under the Legal Services Corporation Act (42 U.S.C. 2996, et seq. et seq. (3) Section 245a.5(a) shall not apply to benefits financed through the programs identified in § 245a.5(c), which are marked with an asterisk (*), except to the extent that such benefits: (i) Consist of, or are financed by, financial assistance in the form of grants, wages, loan, loan guarantees, or otherwise, which is furnished by the Federal Government directly, or indirectly through a State or local government or a private entity, to eligible individuals or to private suppliers of goods or services to such individuals, or is furnished to a State or local government that provides to such individuals goods or services of a kind that is offered by private suppliers, and (ii) Are targeted to individuals in financial need; either (A) in order to be eligible, individuals must establish that their income or wealth is below some maximum level, or, with respect to certain loan or loan guarantee programs, that they are unable to obtain financing from alternative sources, or at prevailing interest rates, or at rates that would permit the achievement of program goals, or (B) distribution of assistance is directed, geographically or otherwise, in a way that is intended to primarily benefit persons in financial need, as evidenced by references to such intent in the authorizing legislation. (c) The programs of Federal financial assistance referred to in § 245a.5(a) are those identified in the list set forth below. The General Services Administration (GSA) Program Numbers set forth in the right column of the program list refer to the program identification numbers used in the Catalog of Federal Domestic Assistance, published by the United States General Services Administration, as updated through December, 1986. GSA Program Numbers Department of Agriculture: Farm Operating Loans 10.406 Farm Ownership Loans 10.407 Department of Health and Human Services: Assistance Payments—Maintenance Assistance (Maintenance Assistance; Emergency Assistance; State Aid; Aid to Families with Dependent Children) 13.780 Low-Income Home Energy Assistance 13.789 *Community Services Block Grant 13.792 *Community Services Block Grant—Discretionary Awards 13.793 Department of Housing and Urban Development: Mortgage Insurance—Housing in Older, Declining Areas (223(e)) 14.123 Mortgage Insurance—Special Credit Risks (237) 14.140 *Community Development Block Grants/Entitlement Grants 14.218 *Community Development Block Grants/Small Cities Program (Small Cities) 14.219 Section 312 Rehabilitation Loans (312) 14.220 *Urban development action grants 14.221 *Community Development Block Grants/State's Program 14.228 Section 221(d)(3) Mortgage Insurance for Multifamily Rental Housing for Low and Moderate Income Families (Below Market Interest Rate) 14.136 Department of Labor: Senior Community Service Employment Program (SCSEP) 17.235 Office of Personnel Management: Federal Employment for Disadvantaged Youth—Part-Time (Stay-in-School Program) 27.003 Federal Employment for Disadvantaged Youth—Summer (Summer Aides) 27.004 Small Business Administration: Small Business Loans (7(a) Loans) 59.012 Department of Energy: Weatherization Assistance for Low-Income Persons 81.042 Department of Education: Patricia Roberts Harris Fellowships (Graduate and Professional Study; Graduate and Professional Study Opportunity Fellowships; Public Service Education Fellowships) 84.094 Legal Training for the Disadvantaged (The American Bar Association Fund for Public Education) 84.136 Allen J. Ellender Fellowship Program (Ellender Fellowship) 84.148 Legal Services Corporation: Payments to Legal Services Corporation [54 FR 29437, July 12, 1989, as amended at 54 FR 49964, Dec. 4, 1989] § 245a.6 Treatment of denied application under part 245a, Subpart B. If the district director finds that an eligible alien as defined at § 245a.10 has not established eligibility under section 1104 of the LIFE Act (part 245a, Subpart B), the district director shall consider whether the eligible alien has established eligibility for adjustment to temporary resident status under section 245A of the Act, as in effect before enactment of section 1104 of the LIFE Act (part 245a, Subpart A). In such an adjudication using this Subpart A, the district director will deem the “date of filing the application” to be the date the eligible alien establishes that he or she was “front-desked” or that, though he or she took concrete steps to apply, the front-desking policy was a substantial cause of his or her failure to apply. If the eligible alien has established eligibility for adjustment to temporary resident status, the LIFE Legalization application shall be deemed converted to an application for temporary residence under this Subpart A. [67 FR 38350, June 4, 2002] Subpart B—Legal Immigration Family Equity (LIFE) Act Legalization Provisions Source: 66 FR 29673, June 1, 2001, unless otherwise noted. § 245a.10 Definitions. In this Subpart B, the terms: Eligible alien (1) Catholic Social Services, Inc. Meese, Reno Catholic Social Services, Inc., CSS (2) League of United Latin American Citizens INS, Reno Catholic Social Services, Inc., LULAC (3) Zambrano INS, Zambrano Lawful Permanent Resident (LPR) LIFE Act LIFE Legalization Prima facie Written claim for class membership CSS, LULAC Zambrano. [66 FR 29673, June 1, 2001, as amended at 67 FR 38350, June 4, 2002; 67 FR 66532, Nov. 1, 2002] § 245a.11 Eligibility to adjust to LPR status. An eligible alien, as defined in § 245a.10, may adjust status to LPR status under LIFE Legalization if: (a) He or she properly files, with fee, Form I-485, Application to Register Permanent Residence or Adjust Status, with the Service during the application period beginning June 1, 2001, and ending June 4, 2003. (b) He or she entered the United States before January 1, 1982, and resided continuously in the United States in an unlawful status since that date through May 4, 1988; (c) He or she was continuously physically present in the United States during the period beginning on November 6, 1986, and ending on May 4, 1988; (d) He or she is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, except as provided in § 245a.18, and that he or she: (1) Has not been convicted of any felony or of three or more misdemeanors committed in the United States; (2) Has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion; and (3) Is registered or registering under the Military Selective Service Act, if the alien is required to be so registered; and (e) He or she can demonstrate basic citizenship skills. [66 FR 29673, June 1, 2001, as amended at 67 FR 38350, June 4, 2002] § 245a.12 Filing and applications. (a) When to file. (1) If the postmark is illegible or missing, and the application was mailed from within the United States, the Service will consider the application to be timely filed if it is received (2) If the postmark is illegible or missing, and the application was mailed from outside the United States, the Service will consider the application to be timely filed if it is received (3) If the postmark is made by other than the United States Post Office, and is filed from within the United States, the application must bear a date on or before June 4, 2003, and must be received on or before June 9, 2003. (4) If an application filed from within the United States bears a postmark that was made by other than the United States Post Office, bears a date on or before June 4, 2003, and is received after June 9, 2003, the alien must establish: (i) That the application was actually deposited in the mail before the last collection of the mail from the place of deposit that was postmarked by the United States Post Office June 4, 2003; and (ii) That the delay in receiving the application was due to a delay in the transmission of the mail; and (iii) The cause of such delay. (5) If an application filed from within the United States bears both a postmark that was made by other than the United States Post Office and a postmark that was made by the United States Post Office, the Service shall disregard the postmark that was made by other than the United States Post Office. (6) If an application filed from abroad bears both a foreign postmark and a postmark that was subsequently made by the United States Post Office, the Service shall disregard the postmark that was made by the United States Post Office. (7) In all instances, the burden of proof is on the applicant to establish timely filing of an application for LIFE Legalization. (b) Filing of applications in the United States. mail (1) Aliens in exclusion, deportation, or removal proceedings, or who have a pending motion to reopen or motion to reconsider. (2) If an alien has a matter before the Immigration Court or the Board that has been administratively closed for reasons unrelated to this Subpart B, the alien may apply before the Service for LIFE Legalization adjustment of status. (3) Aliens with final orders of exclusion, deportation, or removal. (c) Filing of applications from outside the United States. (d) Application and supporting documentation. (1) The Form I-485 application fee as contained in 8 CFR 106.2. (2) [Reserved] (3) Evidence to establish identity, such as a passport, birth certificate, any national identity document from the alien's country of origin bearing photo and fingerprint, driver's license or similar document issued by a state if it contains a photo, or baptismal record/marriage certificate. (4) [Reserved] (5) A report of medical examination, as specified in § 245.5 of this chapter. (6) [Reserved] (7) Proof of application for class membership in CSS, LULAC, Zambrano (8) Proof of continuous residence in an unlawful status since prior to January 1, 1982, through May 4, 1988, as described in § 245a.15. (9) Proof of continuous physical presence from November 6, 1986, through May 4, 1988, as described in § 245a.16. (10) Proof of citizenship skills as described in § 245a.17. This proof may be submitted either at the time of filing the application, subsequent to filing the application but prior to the interview, or at the time of the interview. (e) Burden of proof. (f) Evidence. [66 FR 29673, June 1, 2001, as amended at 67 FR 38350, June 4, 2002; 76 FR 53794, Aug. 29, 2011; 85 FR 46927, Aug. 3, 2020] § 245a.13 During pendency of application. (a) In general. (1) May not be deported or removed from the United States; (2) Is authorized to engage in employment in the United States and is provided with an “employment authorized” endorsement or other appropriate work permit; and (3) Is allowed to travel and return to the United States as described at paragraph (e) of this section. Any domestic LIFE Legalization applicant who departs the United States while his or her application is pending without advance parole may be denied re-admission to the United States as described at paragraph (e) of this section. (b) Determination of filing of claim for class membership. CSS, LULAC, Zambrano (c) Prima facie eligibility. (1) The application was properly filed under this Subpart B during the application period; and (2) The applicant establishes that he or she filed the requisite claim for class membership in the CSS, LULAC, Zambrano (d) Authorization to be employed in the United States while the application is pending Application for employment authorization. (2) Adjudication and issuance. (e) Travel while the application is pending. (1) An applicant for LIFE Legalization benefits who wishes to travel during the pendency of the application and who is applying from within the United States should file, with his or her application for adjustment, at the National Benefit Center, a Form I-131, Application for Travel Document, with fee as set forth in 8 CFR 106.2. The Service shall approve the Form I-131 and issue an advance parole document, unless the Service finds that the alien's application does not establish a prima facie claim to adjustment of status under LIFE Legalization. (2) An eligible alien who has properly filed a Form I-485 pursuant to this Subpart B, and who needs to travel abroad pursuant to the standards prescribed in section 212(d)(5) of the Act, may file a Form I-131 with the district director having jurisdiction over his or her place of residence. (3) If an alien travels abroad and returns to the United States with a grant of advance parole, the Service shall presume that the alien is entitled to return under section 1104(c)(3)(B) of the LIFE Act, unless, in a removal or expedited removal proceeding, the Service shows by a preponderance of the evidence, that one or more of the provisions of § 245a.11(d) makes the alien ineligible for adjustment of status under LIFE Legalization. (4) If an alien travels abroad and returns without a grant of advance parole, he or she shall be denied admission and shall be subject to removal or expedited removal unless the alien establishes, clearly and beyond doubt, that: (i) He or she filed an application for adjustment pursuant to LIFE Legalization during the application period that presented a prima facie claim to adjustment of status under LIFE Legalization; and, (ii) His or her absence was either a brief and casual trip consistent with an intention on the alien's part to pursue his or her LIFE Legalization adjustment application, or was a brief temporary trip that occurred because of the alien's need to tend to family obligations relating to a close relative's death or illness or similar family need. (5) An applicant for LIFE Legalization benefits who applies for admission into the United States shall not be subject to the provisions of section 212(a)(9)(B) of the Act. (6) Denial of admission under this section is not a denial of the alien's application for adjustment. The alien may continue to pursue his or her application for adjustment from abroad, and may also appeal any denial of such application from abroad. Such application shall be adjudicated in the same manner as other applications filed from abroad. (f) Stay of final order of exclusion, deportation, or removal. [66 FR 29673, June 1, 2001, as amended at 67 FR 38351, June 4, 2002; 85 FR 46927, Aug. 3, 2020] § 245a.14 Application for class membership in the CSS, LULAC, Zambrano The Service will first determine whether an alien filed a written claim for class membership in the CSS, LULAC, Zambrano CSS, LULAC, Zambrano (a) An Employment Authorization Document (EAD) or other employment document issued by the Service pursuant to the alien's class membership in the CSS, LULAC, Zambrano (b) Service document(s) addressed to the alien, or his or her representative, granting or denying the class membership, which includes date, alien's name and A-number; (c) The questionnaire for class member applicant under CSS, LULAC, Zambrano (d) Service document(s) addressed to the alien, or his or her representative, discussing matters pursuant to the class membership application, which includes date, alien's name and A-number. These include, but are not limited to the following: (1) Form I-512, Parole authorization, or denial of such; (2) Form I-221, Order to Show Cause; (3) Form I-862, Notice to Appear; (4) Final order of removal or deportation; (5) Request for evidence letter (RFE); or (6) Form I-687 submitted with the class membership application. (e) Form I-765, Application for Employment Authorization, submitted pursuant to a court order granting interim relief. (f) An application for a stay of deportation, exclusion, or removal pursuant to a court's order granting interim relief. (g) Any other relevant document(s). [66 FR 29673, June 1, 2001, as amended at 67 FR 38351, June 4, 2002] § 245a.15 Continuous residence in an unlawful status since prior to January 1, 1982, through May 4, 1988. (a) General. (b) Evidence. (2) The following evidence may establish an alien's unlawful status in the United States: (i) Form I-94 (see § 1.4), Arrival-Departure Record; (ii) Form I-20A-B, Certificate of Eligibility for Nonimmigrant (F-1) Student Status—For Academic and Language Students; (iii) Form IAP-66, Certificate of Eligibility for Exchange Visitor Status; (iv) A passport; or (v) Nonimmigrant visa(s) issued to the alien. (c) Continuous residence. (1) No single absence from the United States has exceeded forty-five (45) days, and the aggregate of all absences has not exceeded one hundred and eighty (180) days between January 1, 1982, and May 4, 1988, unless the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed; (2) The alien was maintaining residence in the United States; and (3) The alien's departure from the United States was not based on an order of deportation. (d) Unlawful status. (1) An eligible alien who entered the United States without inspection prior to January 1, 1982. (2) Nonimmigrants. (i) A or G nonimmigrants. (ii) F nonimmigrants. (iii) Nonimmigrant exchange visitors. (A) Was not subject to the 2-year foreign residence requirement of section 212(e) of the Act; or (B) Has fulfilled the 2-year foreign residence requirement of section 212(e) of the Act; or (C) Has received a waiver for the 2-year foreign residence requirement of section 212(e) of the Act. (3) Asylum applicants. (4) Aliens considered to be in unlawful status. (i) An eligible alien who was granted voluntary departure, voluntary return, extended voluntary departure, or placed in deferred action category by the Service prior to January 1, 1982. (ii) An eligible alien who is a Cuban or Haitian entrant (as described in paragraph (1) or (2)(A) of section 501(e) of Public Law 96-422 and at § 212.5(g) of this chapter), who entered the United States before January 1, 1982. Pursuant to section 1104(c)(2)(B)(iv) of the LIFE Act, such alien is considered to be in an unlawful status in the United States. (iii) An eligible alien who was paroled into the United States prior to January 1, 1982, and whose parole status terminated prior to January 1, 1982. (iv) An eligible alien who entered the United States before January 1, 1982, and whose entries to the United States subsequent to January 1, 1982, were not documented on Form I-94. [66 FR 29673, June 1, 2001, as amended at 78 FR 18472, Mar. 27, 2013] § 245a.16 Continuous physical presence from November 6, 1986, through May 4, 1988. (a) The Service will determine whether an alien was continuously physically present in the United States from November 6, 1986, through May 4, 1988, based on the evidence provided by the alien. An alien must provide with the application evidence establishing his or her continuous physical presence in the United States from November 6, 1986, through May 4, 1988. Evidence establishing the alien's continuous physical presence in the United States from November 6, 1986, to May 4, 1988, may consist of any documentation 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 authorized representative of the issuing authority, if the document would normally contain such authenticating instrument. (b) For purposes of this section, an alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences from the United States. Also, brief, casual, and innocent absences from the United States are not limited to absences with advance parole. Brief, casual, and innocent absence(s) as used in this paragraph means temporary, occasional trips abroad as long as the purpose of the absence from the United States was consistent with the policies reflected in the immigration laws of the United States. (c) An alien who has been absent from the United States in accordance with the Service's advance parole procedures shall not be considered as having interrupted his or her continuous physical presence as required at the time of filing an application under this section. [66 FR 29673, June 1, 2001, as amended at 67 FR 38351, June 4, 2002] § 245a.17 Citizenship skills. (a) Requirements. (1) He or she has complied with the same requirements as those listed for naturalization applicants under §§ 312.1 and 312.2 of this chapter; or (2) He or she has a high school diploma or general educational development diploma (GED) from a school in the United States. A GED gained in a language other than English is acceptable only if a GED English proficiency test has been passed. (The curriculum for both the high school diploma and the GED must have included at least 40 hours of instruction in English and United States history and government). The applicant may submit a high school diploma or GED either at the time of filing Form I-485, subsequent to filing the application but prior to the interview, or at the time of the interview (the applicant's name and A-number must appear on any such evidence submitted); or (3) He or she has attended, or is attending, a state recognized, accredited learning institution in the United States, and that institution certifies such attendance. The course of study at such learning institution must be for a period of one academic year (or the equivalent thereof according to the standards of the learning institution) and the curriculum must include at least 40 hours of instruction in English and United States history and government. The applicant may submit certification on letterhead stationery from a state recognized, accredited learning institution either at the time of filing Form I-485, subsequent to filing the application but prior to the interview, or at the time of the interview (the applicant's name and A-number must appear on any such evidence submitted). (b) Second interview. (c) Exceptions. (1) Is 65 years of age or older on the date of filing; or (2) Is developmentally disabled as defined under § 245a.1(v). [66 FR 29673, June 1, 2001, as amended at 67 FR 38351, June 4, 2002] § 245a.18 Ineligibility and applicability of grounds of inadmissibility. (a) Ineligible aliens. (2) An alien who has assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion is ineligible for adjustment of status under this Subpart B. (b) Grounds of inadmissibility not to be applied. (c) Waiver of grounds of inadmissibility. (1) Special rule for waiver of inadmissibility grounds for LIFE Legalization applicants under sections 212(a)(9)(A) and 212(a)(9)(C) of the Act. (2) Grounds of inadmissibility that may not be waived. (i) Section 212(a)(2)(A)(i)(I) (crimes involving moral turpitude); (ii) Section 212(a)(2)(A)(i)(II) (controlled substance, except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marijuana); (iii) Section 212(a)(2)(B) (multiple criminal convictions); (iv) Section 212(a)(2)(C) (controlled substance traffickers); (v) Section 212(a)(3) (security and related grounds); and (vi) Section 212(a)(4) (public charge) except for an alien who is or was an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act). If a LIFE Legalization applicant is determined to be inadmissible under section 212(a)(4) of the Act, he or she may still be admissible under the Special Rule described under paragraph (d)(3) of this section. (d)(1) In determining whether an alien is “likely to become a public charge”, financial responsibility of the alien is to be established by examining the totality of the alien's circumstance at the time of his or her application for adjustment. The existence or absence of a particular factor should never be the sole criteria for determining if an alien is likely to become a public charge. The determination of financial responsibility should be a prospective evaluation based on the alien's age, health, family status, assets, resources, education and skills. (2) An alien who has a consistent employment history that shows the ability to support himself or herself even though his or her income may be below the poverty level is not excludable under paragraph (c)(2)(vi) of this section. The alien's employment history need not be continuous in that it is uninterrupted. In applying the Special Rule, the Service will take into account an alien's employment history in the United States to include, but not be limited to, employment prior to and immediately following the enactment of IRCA on November 6, 1986. However, the Service will take into account that an alien may not have consistent employment history due to the fact that an eligible alien was in an unlawful status and was not authorized to work. Past acceptance of public cash assistance within a history of consistent employment will enter into this decision. The weight given in considering applicability of the public charge provisions will depend on many factors, but the length of time an applicant has received public cash assistance will constitute a significant factor. It is not necessary to file a waiver in order to apply the Special Rule for determination of public charge. (3) In order to establish that an alien is not inadmissible under paragraph (c)(2)(vi) of this section, an alien may file as much evidence available to him or her establishing that the alien is not likely to become a public charge. An alien may have filed on his or her behalf a Form I-134, Affidavit of Support. The failure to submit Form I-134 shall not constitute an adverse factor. (e) Public cash assistance and criminal history verification. [66 FR 29673, June 1, 2001, as amended at 67 FR 38351, June 4, 2002; 85 FR 46927, Aug. 3, 2020] § 245a.19 Interviews. (a) All aliens filing applications for adjustment of status with the Service under this section must be personally interviewed, except that the adjudicative interview may be waived for a child under the age of 14, or when it is impractical because of the health or advanced age of the applicant. Applicants will be interviewed by an immigration officer as determined by the Director of the National Benefit Center. An applicant failing to appear for the scheduled interview may, for good cause, be afforded another interview. Where an applicant fails to appear for two scheduled interviews, his or her application shall be denied for lack of prosecution. Applications for LIFE Legalization adjustment may be denied without interview if the applicant is determined to be statutorily ineligible. (b) At the time of the interview, wherever possible, original documents must be submitted except the following: official government records; employment or employment-related records maintained by employers, unions, or collective bargaining organizations; medical records; school records maintained by a school or school board; or other records maintained by a party other than the applicant. Copies of records maintained by parties other than the applicant which are submitted in evidence must be certified as true and correct by such parties and must bear their seal or signature or the signature and title of persons authorized to act in their behalf. (c) If at the time of the interview the return of original documents is desired by the applicant, they must be accompanied by notarized copies or copies certified true and correct by the alien's representative. At the discretion of the district director, original documents, even if accompanied by certified copies, may be temporarily retained for forensic examination by the Service. [66 FR 29673, June 1, 2001, as amended at 85 FR 46927, Aug. 3, 2020] § 245a.20 Decisions, appeals, motions, and certifications. (a) Decisions Approval of applications. (2) Denials. (b) Appeals process. (1) If an appeal is filed from within the United States, it must be received by the Service within 30 calendar days after service of the Notice of Denial (NOD) in accordance with the procedures of § 103.3(a) of this chapter. An appeal received after the 30 day period has tolled will not be accepted. The 30 day period for submitting an appeal begins 3 days after the NOD is mailed. If a review of the Record of Proceeding (ROP) is requested by the alien or his or her legal representative, and an appeal has been properly filed, an additional 30 days will be allowed for this review from the time the ROP is photocopied and mailed. (2) If an applicant's last known address of record was outside the United States, and the NOD was mailed to that foreign address, the appeal must be received by the Service within 60 calendar days after service of the NOD in accordance with the procedures of § 103.3(a) of this chapter. An appeal received after the 60 day period has tolled will not be accepted. The 60-day period for submitting an appeal begins 3 days after the NOD is mailed. (c) Motions. sua sponte. (d) Certifications. (e) Effect of final adjudication of application on aliens previously in proceedings Upon the granting of an application. (2) Upon the denial of an application Where proceedings were administratively closed. (ii) Where final order was stayed. [66 FR 29673, June 1, 2001, as amended at 67 FR 38352, June 4, 2002; 72 FR 19107, Apr. 17, 2007; 85 FR 46927, Aug. 3, 2020] § 245a.21 Confidentiality. (a) No person other than a sworn officer or employee of the Department of Justice or bureau or agency thereof, will be permitted to examine individual applications. For purposes of this part, any individual employed under contract by the Service to work in connection with the LIFE Legalization provisions shall be considered an employee of the Department of Justice or bureau or agency thereof. (b) No information furnished pursuant to an application for permanent resident status under this Subpart B shall be used for any purpose except: (1) To make a determination on the application; (2) For the enforcement of the provisions encompassed in section 245A(c)(6) of the Act, except as provided in paragraphs (c) of this section; or (3) For the purposes of rescinding, pursuant to section 246(a) of the Act (8 U.S.C. 1256(a)), any adjustment of status obtained by the alien. (c) If a determination is made by the Service that the alien has, in connection with his or her application, engaged in fraud or willful misrepresentation or concealment of a material fact, knowingly provided a false statement or document in making his or her application, knowingly made a false statement or representation, or engaged in any other activity prohibited by section 245A(c)(6) of the Act, the Service shall refer the matter to the United States Attorney for prosecution of the alien and/or of any person who created or supplied a false statement or document for use in an application for adjustment of status under this Subpart B. (d) Information contained in granted files may be used by the Service at a later date to make a decision: (1) On an immigrant visa petition or other status filed by the applicant under section 204(a) of the Act; (2) On a naturalization application submitted by the applicant; (3) For the preparation of reports to Congress under section 404 of the Immigration Reform and Control Act of 1986; or (4) For the furnishing of information, at the discretion of the Attorney General, in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under 13 U.S.C. 8. (e) Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes. § 245a.22 Rescission. (a) Rescission of adjustment of status under LIFE Legalization shall occur only under the procedures of 8 CFR part 246. (b) Information furnished by an eligible alien pursuant to any application filed under LIFE Legalization may be used by the Attorney General, and other officials and employees of the Department of Justice and any bureau or agency thereof, for purposes of rescinding, pursuant to 8 CFR part 246, any adjustment of status obtained by the alien. §§ 245a.23-245a.29 [Reserved] Subpart C—LIFE Act Amendments Family Unity Provisions Source: 66 FR 29673, June 1, 2001, unless otherwise noted. § 245a.30 Description of program. This Subpart C implements the Family Unity provisions of section 1504 of the LIFE Act Amendments, Public Law 106-554. § 245a.31 Eligibility. An alien who is currently in the United States may obtain Family Unity benefits under section 1504 of the LIFE Act Amendments if he or she establishes that: (a) He or she is the spouse or unmarried child under the age of 21 of an eligible alien (as defined under § 245a.10) at the time the alien's application for Family Unity benefits is adjudicated and thereafter; (b) He or she entered the United States before December 1, 1988, and resided in the United States on such date; and (c) If applying for Family Unity benefits on or after June 5, 2003, he or she is the spouse or unmarried child under the age of 21 of an alien who has filed a Form I-485 pursuant to this Subpart B. [66 FR 29673, June 1, 2001, as amended at 67 FR 38352, June 4, 2002] § 245a.32 Ineligible aliens. The following categories of aliens are ineligible for Family Unity benefits under the LIFE Act Amendments: (a) An alien who has been convicted of a felony or of three or more misdemeanors in the United States; or (b) An alien who has ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion; or (c) An alien who has been convicted by a final judgment of a particularly serious crime and who is a danger to the community of the United States; or (d) An alien who the Attorney General has serious reasons to believe has committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or (e) An alien who the Attorney General has reasonable grounds to believe is a danger to the security of the United States. § 245a.33 Filing. (a) General. (b) Decision. (c) Referral of denied cases for consideration of issuance of notice to appear. [66 FR 29673, June 1, 2001, as amended at 72 FR 19107, Apr. 17, 2007; 85 FR 46927, Aug. 3, 2020] § 245a.34 Protection from removal, eligibility for employment, and period of authorized stay. (a) Scope of protection. (1) Section 237(a)(1)(A) of the Act (aliens who were inadmissible at the time of entry or adjustment of status), except that the alien may be removed if he or she is inadmissible because of a ground listed in section 212(a)(2) (criminal and related grounds) or in section 212(a)(3) (security and related grounds) of the Act; or (2) Section 237(a)(1)(B) of the Act (aliens present in the United States in violation of the Act or any other law of the United States); (3) Section 237(a)(1)(C) of the Act (aliens who violated their nonimmigrant status or violated the conditions of entry); or (4) Section 237(a)(3)(A) of the Act (aliens who failed to comply with the change of address notification requirements). (b) Duration of protection from removal. (1) In the case of an alien who has been granted Family Unity benefits under the LIFE Act Amendments based on the principal alien's application for LIFE Legalization, any evidence of protection from removal shall be dated to expire 1 year after the date of approval, or the day before the alien's 21st birthday, whichever comes first. (2) In the case of an alien who has been granted Family Unity benefits under the LIFE Act Amendments based on the principal alien's adjustment to LPR status pursuant to his or her LIFE Legalization application, any evidence of protection from removal shall be dated to expire 2 years after the date of approval, or the day before the alien's 21st birthday, whichever comes first. (c) Employment authorization. (1) In the case of an alien who has been granted Family Unity benefits based on the principal alien's application for LIFE Legalization, the validity period of the employment authorization document shall be dated to expire 1 year after the date of approval of the Form I-817, or the day before the alien's 21st birthday, whichever comes first. (2) In the case of an alien who has been granted Family Unity benefits based on the principal alien's adjustment to LPR status pursuant to his or her LIFE Legalization application, the validity period of the employment authorization document shall be dated to expire 2 years after the date of approval of the Form I-817, or the day before the alien's 21st birthday, whichever comes first. (d) Period of authorized stay. [66 FR 29673, June 1, 2001, as amended at 67 FR 38352, June 4, 2002] § 245a.35 Travel outside the United States. (a) An alien who departs the United States while his or her application for Family Unity benefits is pending will be deemed to have abandoned the application and the application will be denied. (b) An alien granted Family Unity benefits under the LIFE Act Amendments who intends to travel outside the United States temporarily must apply for advance authorization using Form I-131. The authority to grant an application for advance authorization for an alien granted Family Unity benefits under the LIFE Act Amendments rests solely with the Service. An alien who is granted advance authorization and returns to the United States in accordance with such authorization, and who is found not to be inadmissible under section 212(a)(2) or (3) of the Act, shall be paroled into the United States. He or she shall be provided the remainder of the protection from removal period previously granted under the Family Unity provisions of the LIFE Act Amendments. § 245a.36 [Reserved] § 245a.37 Termination of Family Unity Program benefits. (a) Grounds for termination. (1) A determination is made that Family Unity benefits were acquired as the result of fraud or willful misrepresentation of a material fact; (2) The beneficiary commits an act or acts which render him or her ineligible for Family Unity benefits under the LIFE Act Amendments; (3) The alien, upon whose status Family Unity benefits under the LIFE Act were based, fails to apply for LIFE Legalization by June 4, 2003, has his or her LIFE Legalization application denied, or loses his or her LPR status; or (4) A qualifying relationship to the alien, upon whose status Family Unity benefits under the LIFE Act Amendments were based, no longer exists. (b) Notice procedure. (c) Effect of termination. [66 FR 29673, June 1, 2001, as amended at 67 FR 38352, June 4, 2002; 76 FR 53794, Aug. 29, 2011]

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