Entry of Aliens Needed as Witnesses and Informants; Nonimmigrant S Classification [60 FR 44260][FR 49-95]

DOCUMENT NUMBER: FR 49 - 95

FEDERAL REGISTER CITE: 60 FR 44260

DATE PUBLISHED: August 25, 1995

BILLING CODE:4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 208 , 212 , 214 , 236 , 242 , 245 , 248 , 274a , and 299

[INS No. 1683-94; A.G. Order No. 1986-95]

RIN 1115-AD86

Entry of Aliens Needed as Witnesses and Informants;

Nonimmigrant S Classification

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This regulation establishes procedures by which federal and state law enforcement authorities ("LEAs") may secure from the Immigration and Naturalization Service ("the Service") and the Department of State ("State") nonimmigrant classification for alien witnesses and informants who may eventually be granted lawful permanent resident ("LPR") status because of their cooperation. The regulation is necessary to provide uniform standards and responsibilities for the admission, stay, monitoring, adjustment and , if necessary, departure of such alien witnesses and informants and to enable the government to comply with record-keeping and annual reporting requirements imposed by Congress.

DATES: This interim rule is effective August 25, 1995.

ADDRESSES: Please submit written comments in triplicate to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference the INS number 1683-94 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Katharine Auchincloss-Lorr, Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

On September 13, 1994, the President signed the "Violent Crime Control and Law Enforcement Act of 1994." Section 130003 of this legislation, Pub. L. 103-322, creates a new nonimmigrant classification providing for the admission of alien witnesses and informants who may obtain LPR status upon completion of specified conditions. Section 130003 specifically establishes section 101(a)(15)(S) of the Immigration and Nationality Act ("the Act") and authorizes for each relevant fiscal year: (1) One hundred (100) n onimmigrant visas for aliens determined by the Attorney General to possess critical reliable information on a criminal organization or enterprise, willing to provide that information to federal and/or state authorities, and whose presence, upon the Attorney General's determination, is essential to the success of an authorized criminal investigation or the prosecution of an individual involved in the criminal organization or enterprise, and; (2) twenty-five (25) nonimmigrant visas for aliens whom the Secreta ry of State and the Attorney General jointly determine possess critical reliable information about a terrorist organization, enterprise, or operation, are willing to provide or have provided that information to federal authorities, will be or have been placed in danger as a result, and are eligible for a reward under 22 U.S.C. 2708(a). Although these new nonimmigrant classifications would be designated to be S-1 and S-2, respectively, to correspond with the statutory designations, the prior utilization of t hose codes requires that these designations be, respectively, S-5 and S-6. The spouse, married and unmarried sons and daughters, and parents of witnesses and informants in the new nonimmigrant classification may also be granted nonimmigrant status (designated S-7), if the Attorney General (or, where required, the Secretary of State and the Attorney General jointly) considers it appropriate.

Prior to the creation of section 101(a)(15)(S) of the Act, there was no standard procedure for allowing aliens needed to provide testimony or information into the United States. With the creation of the S nonimmigrant classification, Congress has authorized the admission of a limited number of alien witnesses and informants under specified conditions and provides for adjustment to LPR status after the satisfaction of certain conditions.

Regulatory Structure

Briefly stated, the enactment of the provisions creating the S nonimmigrant classification enables the Service to utilize the nonimmigrant framework to establish a process so that requesting LEAs can provide immigration benefits to certain key alien witnesses and informants. Included in the statutory scheme are reporting requirements by the alien to the Attorney General and the Attorney General to Congress.

a. Nonimmigrant Classification

By creating a new nonimmigrant category exclusively for alien witnesses and informants, Congress has authorized a temporary admission for a specific purpose, and subjected such aliens to the degree of scrutiny prior to admission that is imposed on all nonimmigrant classifications. The Act distributes responsibility for implementing its nonimmigrant provisions between the Attorney General and the Department of State; generally, nonimmigrants, including those in S classification, are subject to the jurisdict ion and authority of both agencies. In formulating this regulation, the Service has worked closely with the Department of State, which is issuing a complementary regulation at this time.

With the creation of the S nonimmigrant category, alien witnesses and informants who intend to reside permanently in the United States may enter only in S classification. Alien witnesses and informants intending a permanent stay will no longer be authorized entry in B nonimmigrant classification. That classification remains available for eligible witnesses and informants seeking temporary admission, who have a residence in a foreign country which they have no intention of abandoning, who will not be employ ed by a United States entity or seek employment while in the United States, and who will not be seeking any of the benefits that flow from S classification.

Similarly, current procedures affecting alien witnesses and informants seeking to be allowed temporarily into the United States pursuant to parole authorization are unchanged by this regulation, except for a new provision defined in 8 CFR 212.14 specifically providing procedures for an LEA who subsequently will apply for S classification on behalf of a witness or informant.

An essential component of the admission process for nonimmigrants who are excludable is the waiver authority accorded the Attorney General under section 212(d) of the Act. In this legislation, Congress created a new provision, section 212(d)(1), enabling the Attorney General to waive all grounds of excludability (except Nazi involvement) for S nonimmigrants, if it is "in the national interest to do so." Section 212(d)(3) waivers will remain available to witnesses and informants who are eligible for B-1 cl assification, pursuant to normal procedures.

The statute preserves the Attorney General's right to institute deportation proceedings for conduct committed after the alien's admission in or change to S classification, or for conduct or a condition not disclosed to the Attorney General prior to the alien's admission in or change to S classification.

b. Controls Imposed by Classification

As a condition for admission and maintenance of status in the United States, an S nonimmigrant is statutorily required to abide by any conditions, limitations, or restrictions imposed by the Attorney General; to file quarterly reports detailing his or her whereabouts and activities "as the Attorney General may require," and to execute a form waiving the right to contest any action for deportation instituted before the nonimmigrant obtains lawful permanent resident status (other than on the basis of an appli cation for withholding of deportation). The statute renders the alien deportable for conduct committed after admission or for conduct or a condition that was not disclosed to the Attorney General prior to admission. Further, in order to maintain status, the S nonimmigrant may not be convicted of any criminal offense punishable by a term of imprisonment of 1 year or more after the date of S classification; change to another nonimmigrant classification; or be authorized admission for more than 3 years.

The S nonimmigrant may adjust status to that of an LPR exclusively by means of the new statutory provisions creating the nonimmigrant classification. These procedures are found in this regulation at 8 CFR 245.11. Finally, the alien may be deported for conviction of a crime of moral turpitude committed within 10 years after being granted LPR status under those new provisions. New provisions for the deportation of alien witnesses and informants have been provided at 8 CFR 242.26. No alien may be admitted t o the United States in S classification more than 5 years after September 13, 1994, the date of enactment of Pub. L. 103-322.

The numeric limit in the S visa provision indicates a Congressional determination that the visa benefit be accorded only in extraordinary circumstances. The legislation is modeled in part after a provision of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403h) authorizing LPR status for no more than 100 aliens per year when the Director of Central Intelligence, the Attorney General, and the Commissioner of the Immigration and Naturalization Service ("Commissioner") determine that the admission of a particular alien is in the national security interest. The S nonimmigrant provision's specific numeric limit authorizing issuance of only 125 visas annually does not include family members. Finally, the Attorney General is required to report annually to Congress on specific aspects of the S classification.

c. Classification Process

To facilitate implementation of this legislation and ensure a thorough awareness of LEA needs, the Service has engaged in a process of consultation with the principal federal LEAs interested in and affected by this nonimmigrant classification. With the assistance of the Department of Justice ("DOJ"), the Criminal Division's Terrorism and Violent Crimes Section ("TVCS"), the Service solicited and received written comments on the procedural aspects of how the visa application, classification, and admission p rocess will work in practice, and a range of related concerns, from two State Department components (the Interagency Counterterrorism Rewards Committee and the Visa Office) and the following DOJ components: the Federal Bureau of Investigation ("FBI"), the Drug Enforcement Administration (DEA), the Marshals Service, and the Criminal Division's Organized Crime and Racketeering Section ("OCRS") and Office of Enforcement Operations ("OEO").

After considering the comments of the principal federal LEAs, the Service has devised a process for authorizing S nonimmigrant classification. This process provides federal and state LEAs access to informants and witnesses, and the benefits of S nonimmigrant classification, to the extent permitted by the statute while ensuring S nonimmigrants are appropriately controlled. The Service will develop procedures to protect the identity of the alien while ensuring maintenance of adequate control.

The process provides for the use of a new Form I-854, Inter-Agency Alien Witness and Informant Record, to record the basis of the nonimmigrant classification, related and prerequisite commitments and responsibilities, and seat-of-government certification of the need for the requested alien. The procedures for use of this new Form will bring uniformity and consistency to the process for authorizing S nonimmigrant classification for eligible criminal aliens with information needed by LEAs and provide a basis for control and tracking of the alien. A fee for the processing of Form I-854 will be proposed under a separate rulemaking. There will be no initial fee for processing of Form I-854, although the fee will go into effect as soon as the Service has responded to comments and a final fee rule has been issued.

Pursuant to Form I-854, S nonimmigrant classification is predicated on a relationship between a witness or informant and the LEA that requests classification. For purposes of this regulation, the term "LEAs" refers to the entities authorized to request S nonimmigrant classification for an alien witness or informant in a given case, namely state and federal law enforcement authorities, which include the United States Attorneys' Offices and state and federal courts. Only a federal LEA may request S-6 nonimm igrant classification, although either a state or federal LEA may request S-5 nonimmigrant classification.

Form I-854 request an LEA seeking S nonimmigrant classification for an alien witness or informant to articulate the reasons why the presence of the alien is needed and to assume responsibility for the alien's admission, stay, and departure. In addition to the seat-of-government certification required for LEAs on Form I-854, where nonimmigrant classification is for purposes of providing testimony, the United States Attorney in whose district a case is being prosecuted must also certify the request on Form I -854.

To provide the Service with information to evaluate the needs, accomplishments, failures, and effectiveness of the S visa process, the Service is requiring that all LEA requests related to S nonimmigrant classification be processed on Form I-854, including requests for change of nonimmigrant classification to the S category or adjustment to LPR status. An LEA seeking S nonimmigrant classification for an alien who is out of status or otherwise in the United States illegally may file Form I-854 as a means of initiating procedures with the Service, subsequent to the Criminal Division's certification, in an effort to have the alien admitted to the United States in lawful status.

d. Criminal Division Certifications

A central concern of the comments offered by interested LEAs during the Service's drafting process was, given the limited number of available S nonimmigrant visas specified under the statute, how requests for this classification will be evaluated. The regulation provides that the Criminal Division of the Justice Department will establish appropriate procedures for receiving and reviewing Form I-854 and determining which applications will be forwarded to the Commissioner with a recommendation for approval. The Criminal Division will be responsible to the Attorney General for ensuring that the cases forwarded to the Service fall within the annual numerical limitation.

No Form I-854 request for S nonimmigrant classification for an alien witness or informant may come to the Service without the Criminal Division's certification. Before being forwarded by the Criminal Division to the Service, an application for S-6 nonimmigrant classification certified by the Criminal Division will be forwarded by the Criminal Division to the Department of State for the appropriate certification.

e. Reporting Requirements

To implement the statutory framework, the regulation imposes two categories of information and reporting requirements on the government. The first involves behavior by the alien that could lead to loss of nonimmigrant status or deportability. The Service must be informed immediately by the responsible LEA of any behavior that renders the alien deportable. This information includes certain criminal conduct, failure to report quarterly, or failure to comply with the authorized terms of the particular S non immigrant classification or the adjustment provisions. The requesting LEA is responsible for supervising, monitoring, and otherwise accounting for the admitted alien's compliance with the statutory and regulatory requirements, for quarterly reporting on "whereabouts and activities" and "other conditions, limitations, or restrictions imposed."

Secondly, the statute requires an annual report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate. The regulation provides that the Justice Department's Criminal Division, in cooperation with the Service, will prepare this report evaluating the program's effectiveness.

f. Period of Authorized Stay

The statute explicitly provides that the period of admission on an alien in S nonimmigrant classification "may not exceed 3 years" and that such period "may not be extended by the Attorney General." For this reason, the Attorney General has determined that the S nonimmigrant classification must be limited to situations where an alien is reasonably expected to provide the desired assistance within the authorized 3-year period. The Service, therefore, has amended 8 CFR 214.1 accordingly and will require the alien to depart the United States after the 3-year period. The LEA will be responsible for ensuring departure. Parole may not be used to extend a period of stay or to authorize a reentry. However, an S nonimmigrant who departs prior to adjustment may subsequently be readmitted in the same classification consistent with the process set forth herein.

g. Change of Status

The regulation at 8 CFR 214.2(t)(12) implements the prohibition in section 101(a)(15)(S) concerning change of status. Aliens cannot be admitted in S-5 nonimmigrant classification and change status to S-6 nonimmigrant classification, nor can they change to any other nonimmigrant classification. Pursuant to new procedures set forth at 8 CFR 248.3(h), aliens in nonimmigrant categories other than S may apply to and, if eligible, change their status to S nonimmigrant classification, unless specifically prohibi ted from so doing by section 248 of the Act.

h. Deportation and Exclusion

Aliens in S nonimmigrant classification will be required as a condition for admission and stay in lawful nonimmigrant status to certify Form I-854, waiving their entitlement to a deportation hearing pursuant to the statute. This rule amends the deportation regulations at 8 CFR part 242 to include aliens in S nonimmigrant classification. The exclusion regulations have similarly been amended at 8 CFR 236.10. Due to the limited nature of this nonimmigrant classification and its significance to the law enfor cement community, deportation and other procedures that would effectively terminate an alien's S nonimmigrant classification will not be initiated without the concurrence of the Assistant Attorney General, Criminal Division.

i. Employment Authorization

An employment authorization document ("EAD") for S nonimmigrants will be issued through normal procedures. The regulation specifies that, pursuant to the terms of 8 CFR part 274a, S nonimmigrants are authorized to work in the United States and that the LEA may assist the alien in applying for employment authorization.

j. Criminal Conduct

Section 212(d)(1) of the Act provides that the Service can institute deportation proceedings against an S nonimmigrant for conduct committed after the alien's admission into the United States or for conduct or a condition that was not disclosed to the Attorney General prior to the alien's classification as a nonimmigrant under section 101(a)(15)(S) of the Act. Accordingly, the Service will take appropriate steps to remove such an alien.

In addition, section 214(j)(4)(B) of the Act requires, as a condition for the admission, and continued lawful status, the S nonimmigrant "may not be convicted of any criminal offense punishable by a term of imprisonment of 1 year or more after the date of such admission."

The revised parole provisions at 8 CFR 212.14 enable an alien to be paroled into the United States so that an LEA can secure a guilty plea and conviction. In such a case, upon the recommendation of an LEA and the approval of a certified request on Form I-854, the Service may terminate the parole authorized to such an alien, waive the nonimmigrant visa requirement as provided under section 212(d)(4) of the Act, exercise the discretionary waiver authority provided under section 212(d)(1) of the Act, and auth orize the alien's admission into the United States in S nonimmigrant classification.

The precise meaning of parole in an immigration context is quite different from the parole with which LEAs are normally familiar. Under the parole authority provided in section 212(d)(5) of the Act, the Attorney General has the discretion to permit an otherwise inadmissible alien to proceed into the United States temporarily and under specific safeguards. Parole is granted on a case-by-case basis and, if granted, does not constitute admission into the United States. The paroled alien does not make an ent ry as defined by section 101(a)(13) of the Act and, as a result, is subject to exclusion proceedings (not deportation proceedings) if the terms and conditions of the parole are violated. The due process rights of aliens subject to exclusion proceedings are more limited than those of aliens subject to deportation proceedings.

Parole may be authorized only for emergent reasons or reasons deemed strictly in the public interest and is available only if the Service has custody of the alien. It should not be used as a means of circumventing a waiver of inadmissibility. In an immigration context, parole is considered, in itself, a form of constructive custody, and is available only to an alien "applying for admission to the United States." A request for parole of an alien in exclusion proceedings and in Service custody must be made pursuant to the terms of 8 CFR 212.5 or, in the case of an alien for which S classification is being sought, 8 CFR 212.14. Due to the requirement that the alien be "applying for admission," parole is not available to aliens who have effected an entry. Aliens who have been "paroled" (in the criminal sense) from prison or who are in prison, and who are deemed to be arriving aliens may not be granted parole unless the Service has custody.

k. Monitoring and Control

The regulation and the certifications on Form I-854 require that, as a prerequisite to S nonimmigrant classification, the requesting LEA assume responsibility, during the period of the S nonimmigrant's presence in the United States, for the safety of the public and for keeping the Service appropriately informed of matters that might impact on the alien's immigration status. Once an alien achieves immigrant status through adjustment from S nonimmigrant classification to LPR status, the LEAs responsibility f or monitoring and reporting will cease. In addition, if the Marshals Service assumes responsibility for the alien, LEA monitoring will be minimal. Further, an alien will become deportable upon the commission of conduct that violates either the regulatory requirements or the specified terms and limitations of the authorized status. In such a case, the LEA should immediately advise the Service, request that the Service proceed to remove the alien, and assist with, and verify, the alien's departure. Consis tent with this monitoring responsibility, an LEA is responsible for ensuring departure, if necessary, and verifying departure in a manner acceptable to the Service, so that monitoring is formally concluded.

l. Adjustment

Section 245(i) of the Act provides for the "Exclusive Means of Adjustment" of aliens admitted as S nonimmigrants. The Service has interpreted this to mean that S nonimmigrants may not adjust to permanent resident status pursuant to section 506(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies 1995 Appropriations Act, Public Law 103-317, which allows most otherwise ineligible persons to adjust status upon payment of an additional sum. The provisions for "Exclusive M eans of Adjustment" for S nonimmigrants provide clearly that these statutory terms and conditions are to be the exclusive means of adjustment for S nonimmigrants described in section 101(a)(15)(S) of the Act. Adjustment of status pursuant to terms other than those specified therein are not available to aliens in S classification.

In the statute, Congress appears inadvertently to have created a new, second subsection 245(i) of the Act, which the Service interprets as an error. There is no indication that Congress intended to repeal or superseded the provisions of section 506(b) of Public Law 103-317, enacted one month earlier. The Service regards the establishment of the second subsection 245(i) of the Act as a numbering error and will recommend that Congress enact a technical amendment to redesignate the Crime Bill's provision as subsection 245(j) of the Act.

The regulations, at 8 CFR 212.14(a)(1)(vi) and 214.2(t)(4)(i), place certain restrictions on the promises LEAs can make to alien witnesses and informants for whom they seek parole or S nonimmigrant classification.

Changes to Current Regulations

This interim rule implements section 130003 of Public Law 103-322, which establishes section 101(a)(15)(S) of the Act. It amends 8 CFR at parts 208, 212, 214, 236, 242, 245, 248, 274a, and 299 to provide uniform and consistent application, admission, reporting, control, deportation, and adjustment criteria for the entry, parole, and stay of alien witnesses and informants who intend to remain in the United States.

Other than the changes to 8 CFR 214.2(t) previously discussed, the following specific changes to Title 8 of the Code of Federal Regulations are necessary to fully implement this regulation:

8 CFR 208.2 and 208.16 are amended to enable asylum officers to determine whether an alien classified pursuant to section 101(a0(15)(S) of the Act is entitled to withholding of deportation.

8 CFR 212.1(m) is added to require that aliens seeking admission in S nonimmigrant classification must be in possession of appropriate documents issued by an American consular officer.

8 CFR 212.4(i) is added to enable the Attorney General to determine pursuant to section 101(a)(15)(S) of the Act whether to exercise the discretion to waive a ground of excludability, other than under section 212(a)(3)(E) of the Act, if it is in the national interest to do so. The Service may remove an alien classified as a nonimmigrant under section 101(a)(15)(S) of the Act for conduct committed after the alien's admission to the United States or for conduct or a condition undisclosed to the Attorney Gene ral prior to the alien's admission in, or change to, S nonimmigrant classification.

8 CFR 212.14 is added to specify the process by which LEAs may obtain parole status for alien witnesses and informants who intend to apply for S nonimmigrant classification.

8 CFR 214.1(a)(2) is amended to add nonimmigrant classifications for S-5, S-6, and S-7.

8 CFR 214.1(c)(3) is amended to add a reference to nonimmigrants defined in section 101(a)(15)(S) of the Act, so that such aliens are ineligible for an extension of stay beyond a total of 3 years.

8 CFR 236.10 is added to provide exclusion procedures for aliens requesting admission in S nonimmigrant classification.

8 CFR 242.26 is added to provide deportation procedures for aliens in S nonimmigrant classification who, as a condition of their admission and stay in lawful status in the United States, must waive their right to a deportation hearing and to contest, other than on the basis of an application for withholding of deportation, any action for deportation instituted before lawful permanent resident status is obtained.

8 CFR 245.11 is added to set forth the exclusive terms of adjustment of status to that of lawful permanent resident for an S nonimmigrant.

8 CFR 248.2(b) is amended by removing the reference to "or (K)" to read "(K), or (S)" in order to prohibit change of status from S classification.

8 CFR 248.3(h) is added to set forth procedures for change of nonimmigrant classification to S classification pursuant to the request of a law enforcement agency.

8 CFR 274a.12(c) is amended to authorize aliens in S classification to apply for employment authorization. Pursuant to 8 CFR 274a.12(c)(21), an alien granted S nonimmigrant classification may apply for employment authorization by filing Form I-765, Application for Employment Authorization, with the applicable fee.

8 CFR 299.1 is amended to add Form I-854 to the list of prescribed Service forms.

8 CFR 299.5 is amended to add Form I-854 to the listing of Service forms approved by the Office of Management and Budget.

Good Cause Exception

The Attorney General has determined that there is good cause for publishing this as an interim rule. Law enforcement authorities need access to the benefits provided in this legislation, which cannot be conferred without these regulatory provisions and the guidance, controls, and structure they afford. Since prior notice and public comment with respect to this interim rule are impracticable and contrary to the public interest under these circumstances, there is good cause under 5 U.S.C. 553 to make it effe ctive upon publication. We will consider comments received within 60 days of publication of this interim rule in the Federal Register.

Regulatory Flexibility Act

The Attorney General in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities for purposes of that Act.

Executive Order 12866

This rule is not considered by the Attorney General to be a "significant regulatory action" under Executive Order 12866, section 3(f) Regulatory Planning and Review, and accordingly, this rule has not been reviewed by the Office of Management and Budget.

Executive Order 12612

The regulation herein will not have substantial direct effects on the states, on the relationship between the federal government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have significant federalism implications to warrant the preparation of a Federalism Assessment.

Paperwork Reduction Act

The information collection requirements contained in this rule have been cleared by the Office of Management and Budget, under the provisions of the Paperwork Reduction Act. The clearance number for this collection is contained in 8 CFR 299.5, Display of Control Numbers.