§ 245.15 Adjustment of Status of Certain Haitian Nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA). (Section added effective 6/11/99; 64 FR 25756)

(a) Definitions . As used in this section, the terms:

Abandoned and abandonment mean that both parents have, or the sole or surviving parent has, or in the case of a child who has been placed into a guardianship, the child's guardian or guardians have, willfully forsaken all parental or guardianship rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer these rights to any specific person(s). (Revised 3/24/00; 65 FR 15835 )

Guardian means a person lawfully invested (by order of a competent Federal, State, or local authority) with the power, and charged with the duty, of taking care of, including managing the property, rights, and affairs of, a child.

Orphan and orphaned refer to the involuntary detachment or severance of a child from his or her parents due to any of the following: (Revised 3/24/00; 65 FR 15835 )

(1) The death or disappearance of, desertion by, or separation or loss from both parents, as those terms are defined in § 204.3(b) of this chapter;

(2) The irrevocable and written release of all parental rights by the sole parent, as that term is defined in § 204.3(b) of this chapter, based upon the inability of that parent to provide proper care (within the meaning of that phrase in § 204.3(b) of this chapter) for the child, provided that at the time of such irrevocable release such parent is legally obligated to provide such care; or

(3) The death or disappearance, as that term is defined in section 204.3(b) of this chapter, of one parent and the irrevocable and written release of all parental rights by the sole remaining parent based upon the inability of that parent to provide proper care (within the meaning of that phrase in § 204.3(b) of this chapter) for the child, provided that at the time of such irrevocable release such parent is legally obligated to provide such care.

Parent , father , or mother means a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in paragraphs (A) through (E) of section 101(b)(1) of the Act.

Sole remaining parent means a person who is the child's only parent because:
(Added 3/24/00; 65 FR 15835 )

(1) The child's other parent has died; or

(2) The child's other parent has been certified by competent Haitian authorities to be presumed dead as a result of his or her disappearance, within the meaning of that term as set forth in § 204.3(b) of this chapter.

(b) Applicability of provisions of section 902 of HRIFA in general . Section 902 of Division A of Public Law 105-277, the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA), provides special rules for adjustment of status for certain nationals of Haiti, and without regard to section 241(a)(5) of the Act, if they meet the other requirements of HRIFA. (Introductory text revised 5/31/01; 66 FR 29449 )

(1) Principal applicants . Section 902(b)(1) of HRIFA defines five categories of principal applicants who may apply for adjustment of status, if the alien was physically present in the United States on December 31, 1995:

(i) An alien who filed for asylum before December 31, 1995;

(ii) An alien who was paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest; or

(iii) An alien who at the time of arrival in the United States and on December 31, 1995, was unmarried and under 21 years of age and who:

(A) Arrived in the United States without parents in the United States and has remained, without parents, in the United States since his or her arrival; (Revised 3/24/00; 65 FR 15835 )

(B) Became orphaned subsequent to arrival in the United States; or

(C) Was abandoned by parents or guardians prior to April 1, 1998, and has remained abandoned since such abandonment.

(2) Dependents . Section 902(d) of HRIFA provides for certain Haitian nationals to apply for adjustment of status as the spouse, child, or unmarried son or daughter of a principal HRIFA beneficiary, even if the individual would not otherwise be eligible for adjustment under section 902. The eligibility requirements for dependents are described further in paragraph (d) of this section.

(c) Eligibility of principal HRIFA applicants .A Haitian national who is described in paragraph (b)(1) of this section is eligible to apply for adjustment of status under the provisions of section 902 of HRIFA if the alien meets the following requirements:

(1) Physical presence . The alien is physically present in the United States at the time the application is filed;

(2) Proper application . The alien properly files an application for adjustment of status in accordance with this section, including the evidence described in paragraphs (h), (i), (j), and (k) of this section. For purposes of § 245.15 of this chapter only, an Application to Register Permanent Residence or Adjust Status (Form I-485) submitted by a principal applicant for benefits under HRIFA may be considered to have been properly filed if it:(Revised 3/24/00; 65 FR 15835 )

(i) Is received not later than March 31, 2000, at the Nebraska Service Center, the Board, or the Immigration Court having jurisdiction;

(ii) Has been properly completed and signed by the applicant;

(iii) Identifies the provision of HRIFA under which the applicant is seeking adjustment of status; and

(iv) Is accompanied by either:

(A) The correct fee as specified in § 103.7(b)(1) of this chapter; or

(B) A request for a fee waiver in accordance with § 103.7(c) of this chapter, provided such fee waiver request is subsequently granted; however, if such a fee waiver request is subsequently denied and the applicant submits the require fee within 30 days of the date of any notice that the fee waiver request had been denied, the application shall be regarded as having been filed before the statutory deadline. In addition, in a case over which the Board has jurisdiction, an application received by the Board before April 1, 2000, that has been properly signed and execut ed shall be considered filed before the statutory deadline without payment of the fee or submission of a fee waiver request. Upon remand by the Board, the payment of the fee or a request for a fee waiver shall be made upon submission of the application to the Immigration Court in accordance with 8 CFR 240.11(f) . If a request for a fee waiver is denied, the application shall be considered as having been properly filed with the Immigration Court before the statutory deadline provided that the applicant submits the required fee within 30 days of the date of any notice that the fee waiver request has been denied.

(3) Admissibility . The alien is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, except as provided in paragraph (e) of this section; and

(4) Continuous physical presence . The alien has been physically present in the United States for a continuous period beginning on December 31, 1995, and ending on the date the application for adjustment is granted, except for the following periods of time:

(i) Any period or periods of absence from the United States not exceeding 180 days in the aggregate; and

(ii) Any periods of absence for which the applicant received an Advance Authorization for Parole (Form I-512) prior to his or her departure from the United States, provided the applicant returned to the United States in accordance with the conditions of such Advance Authorization for Parole.

(iii) Any periods of absence from the United States occurring after October 21, 1998, and before July 12, 1999, provided the applicant departed the United States prior to December 31, 1998.

(d) Eligibility of dependents of a principal HRIFA beneficiary . A Haitian national who is the spouse, child, or unmarried son or daughter of a principal beneficiary eligible for adjustment of status under the provisions of HRIFA is eligible to apply for benefits as a dependent, if the dependent alien meets the following requirements:

(1) Physical presence . The alien is physically present in the United States at the time the application is filed;

(2) Proper application . The alien properly files an application for adjustment of status as a dependent in accordance with this section, including the evidence described in paragraphs (h) and (l) of this section;

(3) Admissibility . The alien is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, except as provided in paragraph (e) of this section;

(4) Relationship . The qualifying relationship to the principal alien must have existed at the time the principal was granted adjustment of status and must continue to exist at the time the dependent alien is granted adjustment of status. To establish the qualifying relationship to the principal alien, evidence must be submitted in accordance with § 204.2 of this chapter. Such evidence should consist of the documents specified in § 204.2(a)(1)(i)(B) , (a)(1)(iii)(B) , (a)(2) , (d)(2) , and (d)(5) of this chapter; (Revised 3/24/00; 65 FR 15835 )

(5) Continuous physical presence . If the alien is applying as the unmarried son or unmarried daughter of a principal HRIFA beneficiary, he or she must have been physically present in the United States for a continuous period beginning not later than December 31, 1995, and ending on the date the application for adjustment is granted, as provided in paragraphs (c)(4) and (j) of this section.

(e) Applicability of grounds of inadmissibility contained in section 212(a) . (1) Certain grounds of inadmissibility inapplicable to HRIFA applicants . Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of section 212(a) of the Act are inapplicable to HRIFA principal applicants and their dependents. Accordingly, an applicant for adjustment of status under section 902 of HRIFA need not establish admissibility under those provisions in order to be able to adjust his or her status to that of permanent resident.

(2) Availability of individual waivers . If a HRIFA applicant is inadmissible under any of the other provisions of section 212(a) of the Act for which an immigrant waiver is available, the applicant may apply for one or more of the immigrant waivers of inadmissibility under section 212 of the Act, in accordance with § 212.7 of this chapter. In considering an application for waiver under section 212(g) of the Act by an otherwise statutorily eligible applicant for adjustment of status under HRIFA who was paroled into the United States from the U.S. Naval Base at Guantanamo Bay, for the purpose of receiving treatment of an HIV or AIDS condition, the fact that his or her arrival in the United States was the direct result of a government decision to provide such treatment should be viewed as a significant positive factor when weighing discretionary factors. In considering an application for waiver under sect ion 212(i) of the Act by an otherwise statutorily eligible applicant for adjustment of status under HRIFA who used counterfeit documents to travel from Haiti to the United States, the adjudicator shall, when weighing discretionary factors, take into consideration the general lawlessness and corruption which was widespread in Haiti at the time of the alien's departure, the difficulties in obtaining legitimate departure documents at that time, and other factors unique to Haiti at that time which may have induced the al ien to commit fraud or make willful misrepresentations. (Amended 3/24/00; 65 FR 15835 )

(3) Special rule for waiver of inadmissibility grounds for HRIFA applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act . An applicant for adjustment of status under HRIFA who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of the Act, may apply for a waiver of these grounds of inadmissibility while present in the United States. Such an alien must file Form I-601, Application for Waiver of Grounds of Excludability. If the application for adjustment is pending at the Nebraska Service Center, Form I-601 must be filed with the director of that office. If the application for adjustment is pending at a district office, Form I-601 must be filed with the district director having jurisdiction over the application. If the application for adjustment is pending before the immigration court, Form I-601 must be filed with the immigration judge having jurisdiction, or with the Board of Immigration Appeals if the appeal is pending before the Board. (Added 5/31/01; 66 FR 29449 )

(f) Time for filing of applications . (1) Applications for HRIFA benefits by a principal HRIFA applicant . The application period begins on June 11, 1999. To benefit from the provisions of Section 902 of HRIFA, an alien who is applying for adjustment as a principal applicant must properly file an application for adjustment of status before April 1, 2000.

(2) Applications by dependent aliens . The spouse, minor child, or unmarried son or daughter of an alien who is eligible for adjustment of status as a principal beneficiary under HRIFA may file an application for adjustment of status under this section concurrently with or subsequent to the filing of the application of the principal HRIFA beneficiary. An application filed by a dependent may not be approved prior to approval of the principal's application.

(g) Jurisdiction for filing of applications . (1) Filing of applications with the Service . The Service has jurisdiction over all applications for the benefits of section 902 of HRIFA as a principal applicant or as a dependent under this section, except for applications filed by aliens who are in pending immigration proceedings as provided in paragraph (g)(2) of this section. All applications filed with the Service for the benefits of section 902 of HRIFA must be submitted by mail to: USINS Nebraska Service Center, PO Box 87245, Lincoln, NE 68501-7245. After proper filing of the application, the Service will instruct the applicant to appear for fingerprinting as prescribed in § 103.2(e) of this chapter. The Director of the Nebraska Service Center shall have jurisdiction over all applications filed with the Service for adjustment of status under section 902 of HRIFA, unless the Director refers the applicant for a personal interview at a local Service office as provided in paragraph (o)(1) of this section.

(2) Filing of applications by aliens in pending exclusion, deportation, or removal proceedings. An alien who is in exclusion, deportation, or removal proceedings pending before the Immigration Court or the Board, or who has a pending motion to reopen or motion to reconsider filed with the Immigration Court or the Board on or before May 12, 1999, must apply for HRIFA benefits to the Immigration Court or the Board, as provided in paragraph (p)(1) of this section, rather than to the Service. However, an alien whose proceeding has been administratively closed (see paragraph (p)(4) of this section) may on ly apply for HRIFA benefits with the Service as provided in paragraph (g)(1) of this section.

(3) Filing of applications with the Service by aliens who are subject to a final order of exclusion, deportation, or removal . (i) An alien who is subject to a final order of exclusion, deportation, or removal, and who has not been denied adjustment of status under section 902 of HRIFA by the Immigration Court or the Board, may only apply for HRIFA benefits with the Service as provided in paragraph (g)(1) of this section. This includes applications for HRIFA benefits filed by aliens who have filed a motion to reopen or motion to reconsider a final order after May 12, 1999. (Redesignated as paragraph (g)(3)(i), previously (g)(3) introductory text, 5/31/01; 66 FR 29449 )

(ii) An alien present in the United States who is subject to a final order of exclusion, deportation, or removal and has been denied adjustment of status under section 902 of HRIFA by the Immigration Court or the Board, or who never applied for adjustment of status with the Service, an Immigration Court, or the Board on or before March 31, 2000, and who was made eligible for HRIFA benefits under the Legal Immigration Family Equity Act of 2000 (LIFE Act) and LIFE amendments, Public Law 106-553 and Public Law 106-554 , respectively, may file a motion to reopen with either the Immigration Court or the Board, whichever had jurisdiction last. As provided by the LIFE Act, motions to reopen must be filed on or before June 19, 2001. (Added 5/31/01; 66 FR 29449 )

(iii) Stay of final order of exclusion, deportation, or removal . The filing of an application for adjustment under section 902 of HRIFA with the Service shall not stay the execution of such final order unless the applicant has requested and been granted a stay in connection with the HRIFA application. An alien who has filed a HRIFA application with the Service may file an Application for Stay of Removal (Form I-246) in accordance with section 241(c)(2) of the Act and § 241.6 of this chapter. (Redesignated as paragraph (g)(3)(iii), previously (g)(3)(i), 5/31/01; 66 FR 29449 )

(iv) Grant of stay . Absent evidence of the applicant's statutory ineligibility for adjustment of status under section 902 of HRIFA or significant negative discretionary factors, a Form I-246 filed by a bona fide applicant for adjustment under section 902 of HRIFA shall be approved and the removal of the applicant shall be stayed until such time as the Service has adjudicated the application for adjustment in accordance with this section. (Redesignated as paragraph (g)(3)(iv), previously (g)(3)(ii), 5/31/01; 66 FR 29449 )

(h) Application and supporting documents . Each applicant for adjustment of status must file an Application to Register Permanent Residence or Adjust Status (Form I-485). An applicant should complete Part 2 of Form I-485 by checking box ``h--other'' and writing "HRIFA--Principal" or "HRIFA--Dependent" next to that block. Each application must be accompanied by:

(1) Application fee . The fee for Form I-485 prescribed in § 103.7(b)(1) of this chapter;

(2) Fingerprinting fee . If the applicant is 14 years of age or older, the fee for fingerprinting prescribed in § 103.7(b)(1) of this chapter;

(3) Identifying information .

(i) A copy of the applicant's birth certificate or other record of birth as provided in paragraph (m) of this section;

(ii) A completed Biographic Information Sheet (Form G-325A), if the applicant is between 14 and 79 years of age;

(iii) A report of medical examination, as specified in § 245.5 of this chapter; and

(iv) Two photographs, as described in the instructions to Form I-485;

(4) Arrival-Departure Record . A copy of the Form I-94, Arrival-Departure Record, issued at the time of the applicant's arrival in the United States, if the alien was inspected and admitted or paroled;

(5) Police clearances . If the applicant is 14 years old or older, a police clearance from each municipality where the alien has resided for 6 months or longer since arriving in the United States. If there are multiple local law enforcement agencies (e.g., city police and county sheriff) with jurisdiction over the alien's residence, the applicant may obtain a clearance from either agency. If the applicant resides or resided in a State where the State police maintain a compilation of all local arrests and convictions, a statewid e clearance is sufficient. If the applicant presents a letter from the local police agencies involved, or other evidence, to the effect that the applicant attempted to obtain such clearance but was unable to do so because of local or State policy, the director or immigration judge having jurisdiction over the application may waive the local police clearance. Furthermore, if such local police agency has provided the Service or the Immigration Court with a blanket statement that issuance of such police cleara nce is against local or State policy, the director or immigration judge having jurisdiction over the case may waive the local police clearance requirement regardless of whether the applicant individually submits a letter from that local police agency; (Revised 3/24/00; 65 FR 15835 )

(6) Proof of Haitian nationality . If the applicant acquired Haitian nationality other than through birth in Haiti, a copy of the certificate of naturalization or certificate of citizenship issued by the Haitian government; and

(7) Additional supporting evidence . Additional supporting evidence pertaining to the applicant as provided in paragraphs (i) through (l) of this section.

(i) Evidence of presence in the United States on December 31, 1995 . An alien seeking HRIFA benefits as a principal applicant must provide with the application evidence establishing the alien's presence in the United States on December 31, 1995. Such evidence may consist of the evidence listed in § 245.22 . (Revised effective 1/27/03; 67 FR 78667 )