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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: December 26, 2002 (Volume 67, Number 248)]
[Rules and Regulations]               
[Page 78667-78675]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de02-2]                         


=======================================================================
-----------------------------------------------------------------------


DEPARTMENT OF JUSTICE


Immigration and Naturalization Service


8 CFR Parts 103 and 245


[INS No. 2124-01; AG Order No. 2642-2002]
RIN 1115-AG14


 
Adjustment of Status for Certain Aliens from Vietnam, Cambodia, 
and Laos in the United States


AGENCY: Immigration and Naturalization Service, Justice.


ACTION: Final rule.


-----------------------------------------------------------------------


SUMMARY: This rule finalizes the Department of Justice regulations 
implementing section 586 of Public Law 106-429, which provides for the 
adjustment of status for certain aliens from Vietnam, Cambodia, and 
Laos. Eligible applicants must have been physically present in the 
United States both prior to and on October 1, 1997, and inspected and 
paroled into the United States before October 1, 1997, either from 
Vietnam under the Orderly Departure Program, from a refugee camp in 
East Asia, or from a displaced persons camp administered by the United 
Nations in Thailand. This rule establishes eligibility, evidence, and 
application and adjudication procedures. Starting January 27, 2003, 
aliens who believe they are eligible may apply for permanent residence 
under section 586. This rule also adds a new section in the regulations 
that lists the types of evidence an alien may use to demonstrate his or 
her physical presence in the United States on a specific date.


DATES: This final rule is effective January 27, 2003.


FOR FURTHER INFORMATION CONTACT: Michael Valverde, Residence and Status 
Branch, Immigration and Naturalization Service, 425 I Street, NW, Room 
3214, Washington, DC 20536, Telephone (202) 514-4754.


SUPPLEMENTARY INFORMATION:


What Is Section 568 of Public Law 106-429?


    On November 6, 2000, the President signed Public Law 106-429, the 
Foreign Operations Appropriations Act of 2001. Section 586 of Public 
Law 106-429, 8 U.S.C. 1255 note, provides for adjustment of status to 
that of lawful permanent resident for 5,000 eligible natives or 
citizens of Vietnam, Cambodia, and Laos.


Who Is Eligible for Adjustment of Status to That of Lawful Permanent 
Resident Under Section 586 of Public Law 106-429?


    This final rule establishes the eligibility requirements for 
adjustment of status under section 586 of Public Law 106-429. To be 
eligible, an alien must demonstrate that he or she:
    (1) Is a citizen or native of Vietnam, Cambodia, or Laos;
    (2) Was inspected and paroled into the United States before October 
1, 1997;
    (3) Was physically present in the United States prior to and on 
October 1, 1997;
    (4) Was paroled into the United States:
    (a) From Vietnam under the auspices of the Orderly Departure 
Program;
    (b) From a refugee camp in East Asia; or
    (c) From a displaced persons camp administered by the United 
Nations High Commissioner for Refugees in Thailand;
    (5) Applied for adjustment of status under section 586 of Public 
Law 106-429 during the period beginning on January 27, 2003 and ending 
on January 25, 2006, and paid all appropriate fees; and
    (6) Is otherwise eligible to receive an immigrant visa and 
otherwise admissible to the United States for permanent residence 
except for those grounds of inadmissibility that do not apply or that 
are waived.


What Does This Final Rule Do?


    The preamble to this final rule discusses issues raised in the 
public comment letters submitted regarding the proposed regulation, 
published at 67 FR 45402 (July 9, 2002). This rule makes several 
changes to the regulation in response to those comments, as discussed 
below. Finally, this rule provides instructions for aliens seeking to 
apply for adjustment of status under section 586 and marks the start 
and end dates for the three-year application period.


Public Comment


    The proposed regulation set forth a 60-day period, from July 9, 
2002, until September 9, 2002, for any interested member of the public 
to submit comments on the proposed regulation. The Department of 
Justice (``Department'') received seven letters, raising a total of 23 
distinct issues. These comments are discussed below and are generally 
divided into three sections: comments concerning eligibility and 
evidence for adjustment


[[Page 78668]]


of status under section 586, comments regarding the physical presence 
section, and comments regarding standards for granting a waiver under 
section 212(h) of the Immigration and Nationality Act (``Act'') (8 
U.S.C. 1182(h)).


Comments Regarding the Regulations Pertaining to Section 586 of Public 
Law 106-429


The 5,000 Limit on Adjustments of Status Under Section 586


    Commenters raised two issues about the 5,000 limit on adjustments 
under section 586. First, two commenters requested that the Department 
acknowledge the stated intention of Congress to consider raising the 
total number of adjustments provided for in section 586. Second, one 
commenter went further to state that the Department should retain 
applications received after the 5,000-adjustment limit has been 
reached, pending the Congressional action to raise the limit.
    In response to the first issue, the Department acknowledges that 
the legislative history contains references to Congress's intention to 
consider expanding the 5,000-adjustment cap, if necessary, to 
accommodate otherwise eligible aliens, through future legislation. See 
H.R. Conf. Rep. 106-997, at 106 (2000). Indeed, throughout the 
legislative process and subsequent rulemaking process, non-governmental 
organizations involved with the potentially eligible groups have stated 
that the total number of aliens who would be eligible for adjustment of 
status under section 586 far exceeds 5,000.
    Notwithstanding the possibility that Congress might change the law 
in the future, however, the Department is responsible for implementing 
the law as currently written. This means the Department will track the 
total number of adjustments and stop adjudicating applications after 
the 5,000 limit has been reached. At that time, the Department will 
also notify Congress and the public that the limit has been reached. If 
the limit is raised or removed through future legislation, the 
Department will process applications accordingly.
    In response to the second issue, the Department does not plan to 
keep those applications submitted after the 5,000 limit has been 
reached. The expense of submitting an application to adjust status 
under this provision is significant, currently $305, including 
fingerprint fees. If employment authorization and advance parole 
applications are also submitted, that figure grows to $535. The 
Department believes that it is not in the applicants' interests for the 
Department to retain such large sums of their money for an indefinite 
period of time based on the possibility of future legislation. Rather, 
it is better to return such applications and the accompanying fees and 
allow the same applicants the opportunity to apply again if the limit 
is expanded.
    However, for purposes of processing applications if the 5,000 limit 
is expanded or eliminated, the Department will keep chronological 
records of those applicants who submitted timely applications but did 
not obtain a space within the 5,000 limit. In addition to keeping such 
records, the Department will issue a dated notice to the applicant 
along with the returned application. Aliens are encouraged to retain 
their application package and this notice in case in the 5,000 limit is 
expanded or eliminated.
    Nevertheless, if at the time the 5,000 limit is reached it appears 
that Congress is about to pass legislation to expand or eliminate the 
cap, the Department will use its discretion to decide whether or not to 
keep such applications and the related fees. This final rule adds a new 
8 CFR 245.21(m)(4) to reflect this policy.


The Processing Prioritization of Applicants Who Do Not Need A Waiver of 
Criminal Grounds of Inadmissibility Under Section 212(h) of the Act


    The Department received three comments that the processing scheme 
set forth in the proposed rule should be changed. The commenters stated 
that applicants who have applied for a waiver of a criminal ground of 
inadmissibility should be given the same processing priority as those 
who do not require such a waiver.
    The Department does not agree with these comments. These 
regulations provide some priority to those applicants who do not 
require a waiver of the criminal, fraud, immigration violator, 
citizenship ineligibility, or illegal voting grounds of 
inadmissibility, over those who do. See 8 CFR 245.21(m)(3). For 
purposes of receiving a number in the queue, applications for waivers 
on other grounds of inadmissibility will be considered as if they were 
applications for adjustment not requiring waivers. For instance, 
applicants for a waiver of a ground of inadmissibility on health-
related grounds (section 212(a)(1) of the Act, 8 U.S.C. 1182(a)(1)) 
will receive a number in the queue as if they were not applying for a 
waiver. Essentially, the first group--those applicants who do not 
require a waiver of the criminal, fraud, immigration violator, 
citizenship ineligibility, or illegal voting grounds of 
inadmissibility--will be assigned a number chronologically by date of 
application relative to the 5,000 limit. The second group will be 
assigned a number chronologically by date of the waiver approval.
    The Department anticipates that an adjudication involving the 
waiver will take longer than an adjudication not involving a waiver, 
and therefore, the Department does not want to slow down the 
adjudication process by giving out numbers to aliens who are not yet 
eligible to receive adjustment of status. It is correct that those 
applicants requiring a waiver will face a disadvantage. In the proposed 
rule, the Department stated that in setting forth this processing 
hierarchy the Department was of the view that those aliens who have not 
engaged in the aforementioned activities, and thereby rendered 
themselves inadmissible, should be treated more favorably than those 
who have engaged in such behavior. The Department continues to be of 
this view, and as such, will not be amending the regulations to reflect 
these three comments.


Eligibility of Persons Who Are Currently in Immigration Proceedings


    The Department received two comments stating that immigration 
judges should have the authority to consider applications for 
adjustment of status under section 586 during immigration proceedings.
    The Department believes that the adjudication of applications for 
adjustment of status under section 586 is best administered by the 
Immigration and Naturalization Service (``Service'') in one central 
location. Moreover, maintaining control of the 5,000 limit on 
adjustments is most efficiently accomplished by centralizing filing and 
adjudication. Because verification of an applicant's claim to 
eligibility under section 586 will most likely require significant 
research by the Service, the Department believes that centralizing the 
application and adjudication at one Service office will provide the 
most efficient service to applicants. As such, the Department will not 
amend the regulations to reflect these comments.
    Additionally, one commenter objected to the requirement that the 
Service concur before an immigration judge or the Board of Immigration 
Appeals (``BIA'') administratively closes the proceedings. The 
commenter argued that an eligible alien could be prevented from 
obtaining benefits under section 586 if the Service failed to join in 
the motion. The commenter stated that eliminating the Service consent 
requirement is necessary to ensure that


[[Page 78669]]


meritorious cases will not be denied consideration where the Service 
does not concur with the motions to close cases. The Department 
disagrees with these comments. Administrative closure of a case is used 
to remove temporarily a case from an immigration judge's calendar or 
from the BIA's docket. As a general matter, ``[a] case may not be 
administratively closed if opposed by either of the parties.'' Matter 
of Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996). Efficiency of 
the immigration court system is increased by requiring parties to agree 
to close a case administratively. The Service, which will adjudicate 
applications for adjustment of status under this regulation, will 
likely concur in administrative closure if it believes the alien is 
eligible for the relief sought. If the alien has other issues to 
resolve before an immigration judge, having the case go forward allows 
those issues to be resolved at the same time the Service adjudicates 
the alien's application to adjust status under section 586. Completing 
concurrently as many processes as possible adds to efficiency of the 
immigration court system.
    The Department does not believe that the regulations will prevent 
any alien's application for adjustment of status under section 586 from 
being considered. The regulations provide that an alien in immigration 
proceedings may apply directly to the Service for adjustment of status 
independent of his or her proceedings. The Service may adjudicate such 
an application without resolution of the proceedings. Moreover, the 
Department points to the distinction between the administrative 
proceedings resulting in an order of removal of an alien and the actual 
removal of the alien. In the unlikely scenario where the Service does 
not concur with the alien's motion for administrative closure, even 
though the alien appears eligible for adjustment under section 586, and 
where the alien is ultimately issued a removal order, the Service has 
discretion to withhold the removal of the alien until the adjustment 
application is resolved. The alien would have to make such a request to 
the district director after the order is issued. The Department notes 
that the granting of adjustment under section 586 is tantamount to 
reopening and vacating any order of removal issued. This final 
regulation will not be amended in response to these comments.


Eligibility of Persons Who Are Derivative Family Members


    One commenter requested that the final rule be amended to allow for 
the adjustment of derivative family members.
    The Department cannot accommodate the commenter's request. The 
proposed regulations do not include a provision for the adjustment of 
derivative family members of eligible aliens because the statutory 
language of section 586 does not include such a provision. Rather, 
every alien has to be eligible on his or her own behalf. The Department 
notes that the Act does provide a process, albeit a lengthier one, for 
dependent family members of lawful permanent residents to obtain 
permanent resident status. Once his or her adjustment of status 
application is approved, the new lawful permanent resident can submit 
Form I-130, Petition for Alien Relative, for a dependent spouse and 
unmarried children.


Eligibility of Persons Who Traveled After October 1, 1997


    The Department received two comments requesting that the final rule 
be clarified regarding travel by eligible aliens that took place after 
October 1, 1997. In short, the commenters requested that the final rule 
state that otherwise eligible aliens who left the United States after 
initially entering prior to October 1, 1997, via one of the three 
qualifying programs, are not rendered ineligible by virtue of that 
subsequent travel.
    The Department agrees with the commenters that travel subsequent to 
October 1, 1997, does not render an alien ineligible for adjustment of 
status under section 586. The commenters expressed the concern that, 
because such aliens will have a Form I-94, Arrival/Departure Document, 
that is dated after October 1, 1997, the adjustment application will be 
denied because they will not have proof of entry prior to October 1, 
1997. The Department understands that such aliens could have traveled 
and re-entered the United States via parole or another lawful manner of 
entry. In these instances, although the alien may no longer possess the 
documentation of the original entry, evidence of the initial entry may 
be available in Department records, and therefore could be verified 
during adjudication. This final rule, at 8 CFR 245.21(g)(3), provides 
for such an alien to submit an affidavit, in lieu of the initial Form 
I-94, establishing that he or she entered prior to October 1, 1997, via 
one of the three qualifying programs.


Eligibility of Persons Who Entered the United States via Humanitarian 
Parole


    The Department received one comment requesting that the final rule 
clarify that aliens who entered the United States via humanitarian 
parole (rather than public interest parole) are eligible for adjustment 
of status under section 586.
    The Department agrees with the commenter. Section 586 requires only 
that the applicant be paroled into the United States via one of the 
three qualifying programs. While the Department believes the vast 
majority of the potential beneficiaries of section 586 were granted 
public interest parole, some potential beneficiaries were granted 
humanitarian parole. Such aliens, if otherwise qualified, are eligible 
for adjustment of status under section 586. This statement is 
consistent with the proposed regulations at 8 CFR 245.21(a)(2). 
Therefore, the Department has not amended the final regulations.


The Medical Examination Requirement


    One commenter requested that the Department remove the medical 
examination requirement for adjustment under section 586 in the final 
regulations. The commenter stated that the examinations are expensive 
and unnecessary because the aliens have resided in the United States 
for a long period of time.
    The Department believes that the medical examination requirement is 
not an unusual or unduly burdensome requirement and has decided to 
retain the examination requirement in the final regulations. Medical 
examinations are necessary for the applicant to demonstrate that he or 
she is not inadmissible under section 212(a)(1) of the Act (8 U.S.C. 
1182(a)(1)). The fact that aliens have been living in the United States 
for a long period of time does not change this requirement. Department 
regulations require the vast majority of adjustment applicants to 
undergo a medical examination, regardless of the number of years they 
have spent in the United States. For example, all applicants adjusting 
status under section 245(a) of the Act (8 U.S.C. 1255(a)) must undergo 
a medical examination despite the fact that many such applicants have 
been residing in the United States in nonimmigrant status for several 
years.


Making Available the List of Persons Who Entered the United States via 
Auspices of the Orderly Departure Program (``ODP'')


    The Department received one comment requesting that a list of all 
persons who entered the United States under the auspices of the ODP be 
made public.
    While the Department understands the potential utility of this 
request, the


[[Page 78670]]


Department does not disclose such lists of individuals who are 
potentially eligible for immigration benefits. Although The Privacy Act 
of 1974, as amended, does not cover non-resident aliens (under 5 U.S.C. 
552a(a)(2), the term ``individual'' means a citizen of the United 
States or an alien lawfully admitted for permanent residence), 
Department policy generally forbids the release of personal information 
regarding groups of individuals. Individuals who wish to obtain proof 
that they entered the United States via the ODP may so state as part of 
their application for adjustment of status under section 586, or make a 
request for the information via the Freedom of Information Act (FOIA). 
As stated in the proposed rule, the Department likely can verify an 
alien's assertion that he or she entered via the ODP.


The Use of the IV Tracking Number To Demonstrate Eligibility


    The Department received one comment regarding the use of an alien's 
IV tracking number to demonstrate that he or she was processed through 
the ODP. The commenter stated that in some cases, the alien will not 
have a unique identifying IV number, but rather a V number, or an alien 
registration number.
    Aliens processed through the ODP were assigned both IV and V 
numbers. The IV number was assigned to an alien, and any accompanying 
family members, at his or her initial registration with the United 
States Government. Later, a V number was assigned to the alien, and 
accompanying family members, if he or she was scheduled to depart the 
program and enter the United States. Finally, some of those aliens 
granted humanitarian parole in place of public interest parole received 
alien registration numbers as well. The Department regulations require 
only that the applicant demonstrate that he or she was processed via 
the ODP or one of the other two programs. As stated previously, subject 
to verification by the Department, those aliens who were processed via 
the ODP who no longer have any paperwork from the ODP may submit an 
affidavit to the Department in lieu of the actual documentation. See 8 
CFR 245.21(g)(3).


The Question Concerning the Public Charge Ground of Inadmissibility on 
Form I-485, Application To Register for Permanent Resident or Adjust 
Status


    The Department received one comment stating that the final rule 
should indicate that applicants for adjustment of status under section 
586 are not required to answer question number two on part three of 
Form I-485, regarding an applicant's use of public assistance. The 
commenter stated that applicants for adjustment of status under section 
586 are exempt from the public charge ground of inadmissibility at 
section 212(a)(4) of the Act (8 U.S.C. 1182(a)(4)), and so the question 
is unnecessary.
    The Department agrees with this comment and has stated in the 
proposed rule and will state in policy memoranda that applicants for 
adjustment of status under section 586 are exempt from section 
212(a)(4) of the Act. As such, the commenter is correct in that an 
answer of ``yes'' to the specified question cannot result in the denial 
of the application because the alien is inadmissible under section 
212(a)(4) of the Act. However, there are some scenarios where the 
answer to this question may indirectly affect the adjudication in ways 
other than inadmissibility under section 212(a)(4) of the Act, such as 
when certain types of immigration benefit fraud are suspected. 
Therefore, full and complete answers to each question on Form I-485, 
including this question, are required. Another reason for retaining the 
question on the form is that the Form I-485 remains the same for all 
adjustment programs. The Department does not create a new form each 
time Congress creates a new adjustment program. As such, the Department 
does not want to issue separate instructions for adjustment under 
section 586. The Department has retained this question on the form.


Employment Authorization Documents


    One commenter requested that the Department provide all applicants 
with employment authorization documents at no charge at the time they 
submit their applications for adjustment. The commenter also stated 
that the final regulations should make it clear that the applicants who 
do not desire employment authorization do not need to submit the 
application for employment authorization along with the application for 
adjustment of status.
    Although as the commenter has stated, many eligible aliens already 
have employment authorization issued under other provisions of law and 
thus do not need employment authorization, the proposed regulation 
provides a means for an alien who desires employment authorization to 
obtain it. If an alien believes he or she cannot pay the application 
fee (currently $120), he or she can request a fee waiver when 
submitting the application. Thus, the Department has retained in the 
final rule the requirement that those aliens desiring employment 
authorization file an application for employment authorization and 
submit the accompanying fee. Another commenter requested that the 
Department regulations make the adjudication of an application for 
employment authorization based upon a section 586 adjustment 
application subject to the 90-day adjudication provision of 8 CFR 
274a.13(d). Under these regulations, that is currently the case. With 
certain exceptions, any application for employment authorization based 
upon an adjustment application filed under 8 CFR part 245--including 8 
CFR 245.21 pertaining to adjustment for certain aliens from Vietnam, 
Cambodia, and Laos--is subject to the 90-day provision of 8 CFR 
274a.13(d) per the regulations. See 8 CFR 274a.12(c)(9); 8 CFR 
274a.13(d). The current regulations do require that a section 586-based 
application for employment authorization be adjudicated within 90 days 
or interim employment authorization must be issued.


Advance Parole Eligibility Requirements


    Three commenters raised the issue of advance parole. They requested 
that the final rule state that the eligibility criteria for obtaining 
advance parole based on a pending application for adjustment filed 
under section 586 is the same as the advance parole criteria for 
adjustment applicants under section 245(a) of the Act (8 U.S.C. 1255). 
Section 245(a) applicants are generally granted advance parole, in the 
discretion of the Service, if they have demonstrated ``any bona fide 
business or personal reason.'' See instructions to Form I-131, 
Application for Travel Document. Without such a standard, one commenter 
suggests that the different Service offices will apply varying 
eligibility standards. The Department does not believe that it needs to 
articulate such a standard in the regulation. The standard for 
obtaining advance parole is the same for those obtaining it in 
connection with an adjustment application filed under section 586 as 
for those obtaining advance parole in connection with other adjustment 
programs; the Form I-131 is the same for each program.
    The Department's proposed regulations provided the alien with the 
ability to obtain advance parole, in the discretion of the Service, 
based on a pending adjustment application under section 586. See 
section 245.21(i) of the proposed regulations. When these final 
regulations are effective, the Department will issue guidance to its 
field officers covering all aspects of this adjustment program, 
including advance parole. The


[[Page 78671]]


Department believes this will ensure consistent treatment of 
applications for advance parole based upon a proper filing for 
adjustment under section 586.
    For those with final orders of removal or more than 180 days of 
unlawful presence in the United States, the ground of inadmissibility 
under section 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)) would not bar 
adjustment under this rule. However, applicants should keep in mind 
that, should their section 586 application be denied, departure from 
the United States may amount to a self-deportation, in which case, 
absent a waiver, they would be inadmissible under section 212(a)(9) of 
the Act for either three or 10 years. In addition, in the case of an 
applicant over 18 years of age who has accrued more than 180 days of 
unlawful presence in the United States, such departure would render the 
alien inadmissible under section 212(a)(9)(B) of the Act (8 U.S.C. 
1182(a)(9)(B)).


Outreach to Potentially Eligible Aliens


    One commenter requested that the Department conduct an outreach 
program in the native languages of the potential beneficiaries to 
ensure that those potential beneficiaries with limited English 
proficiency are aware of the opportunity to adjust status under section 
586.
    The Department agrees that it is important that all potentially 
eligible aliens understand the benefits provided under section 586 as 
well as the eligibility criteria set forth by this provision. Normally, 
when the Department announces the beginning of such an adjustment 
program, the Department develops materials explaining the program, the 
eligibility criteria, the application procedures, and other pertinent 
issues. This material is distributed to local, national, and other 
interested media outlets, and also to non-governmental and community-
based organizations. By their very nature, these groups are best suited 
to provide news and information to specific communities. The section 
586 adjustment program will be no exception to this general practice.


Comments Regarding the Regulations Pertaining to the Demonstration of 
Physical Presence in the United States on a Specific Date


    The Department received one comment that the creation of a single 
section in the regulations regarding the demonstration of physical 
presence for adjustment applicants who need to demonstrate physical 
presence in the United States on a specific date should be accomplished 
via a separate rulemaking.
    The Department disagrees with the comment that a separate rule is 
necessary to create a single section in the regulations regarding the 
demonstration of physical presence on a specific date. As stated in the 
proposed rule, Department regulations already contain several similar 
sections for various adjustment of status provisions containing more or 
less the same physical presence standards. Rather than continue to 
create redundant regulations, the Department believes that it is 
appropriate at this time to bring the provisions together into one 
single section of the regulations. Because the applicants for section 
586 need to demonstrate that they were physically present in the United 
States on October 1, 1997, and because the physical presence part of 
the rulemaking is largely non-substantive and re-organizational in 
nature, it is an appropriate part of this larger rulemaking.


Comments Regarding Waivers of Criminal Grounds of Inadmissibility


The Final Regulations Regarding the Section 586 Rule Should Be 
Promulgated Separately Than the Waiver Provisions of Section 212(h) of 
the Act


    The proposed regulations contained a separate section regarding the 
waiver provisions of section 212(h) of the Act (8 U.S.C. 1182(h)). The 
Department received one comment that the proposed regulations regarding 
the waiver provisions of section 212(h) of the Act (8 U.S.C. 1182(h)) 
should be promulgated in a rule separate from the section 586 rule. The 
Department agrees with this comment and is publishing two separate 
rules instead of one. An interim final rule regarding waivers under 
section 212(h) of the Act is published elsewhere in this issue of the 
Federal Register.


May Section 586 Applicants Apply for Waivers of the Criminal Grounds of 
Inadmissibility?


    Yes. Applicants must demonstrate that they are admissible as an 
immigrant to obtain benefits under section 586, just as they would have 
to do under other adjustment programs. Although section 586(c) provides 
that four grounds of inadmissibility do not apply, and provides special 
rules for waivers of several other grounds, section 586 does not 
mention the availability of waivers for criminal aliens. Even so, the 
Department has determined that criminal aliens who are inadmissible 
under section 212(a)(2) of the Act may apply for a waiver under section 
212(h) of the Act. The Department is aware that many aliens who might 
otherwise be eligible under section 586 are inadmissible on criminal 
grounds. The Attorney General has determined to exercise the discretion 
accorded to him under section 212(h) in connection with applicants 
under section 586. Because section 212(h) is a general provision 
applicable to waivers for immigrants, it is appropriate to adopt 
standards for the exercise of discretion in all cases under section 
212(h), rather than creating a new standard applicable only to the 
Indochinese population covered by section 586. Accordingly, the 
Department is publishing a separate interim rule (published elsewhere 
in this issue of the Federal Register) with regard to the Attorney 
General's authority under section 212(h) of the Act to grant waivers of 
inadmissibility to criminal aliens.


Application for Adjustment of Status Under Section 586


What Is the Application Period for Adjustment of Status Under Section 
586?


    The three-year period for submitting applications for adjustment of 
status under section 586 begins January 27, 2003 and ends January 25, 
2006. See 8 CFR 245.21(b)(1). As stated previously, if the 5,000-
adjustment limit is reached prior to the end of the application period, 
the Department will notify Congress and the public of that fact. If the 
limit is not reached by the end of the three-year application period, 
only those applications received by the Department on or prior to, or 
containing a postmark dated on or prior to January 25, 2006 will be 
accepted for processing.


Where Can I File an Application for Adjustment of Status Under Section 
586?


    Applications for adjustment of status under section 586 should be 
sent to the following address: INS Nebraska Service Center, P.O. Box 
87485, Lincoln, NE 68501-7485.


What Must an Application for Adjustment of Status Under Section 586 
Contain?


    The regulations at 8 CFR 245.21(b)(2) state what constitutes a 
proper application under section 586. An alien must be physically 
present in the United States to apply for adjustment of status under 
section 586. An applicant must submit Form I-485, Application to 
Register Permanent Residence or Adjust Status, along with the 
appropriate


[[Page 78672]]


application fee contained in 8 CFR 103.7(b)(1). Applicants who are 14 
through 79 years of age must also submit the fingerprinting service fee 
provided for in 8 CFR 103.7(b)(1). Each application filed must be 
accompanied by evidence establishing eligibility as provided in 8 CFR 
245.21(g); two photographs as described in the Form I-485 instructions; 
a completed Biographic Information Sheet (Form G-325A) if the applicant 
is between 14 and 79 years of age; a report of medical examination 
(Form I-693 and vaccination supplement) specified in 8 CFR 245.5; and, 
if needed, an application for waiver of inadmissibility. Under Part 2, 
question h of Form I-485, applicants must write ``INDOCHINESE PAROLEE 
P.L. 106-429''.
    The regulations at 8 CFR 245.21(c), (d), and (e), discuss the 
additional filing procedures for aliens in removal proceedings, aliens 
with final orders of removal, and aliens needing waivers of grounds of 
inadmissibility, respectively.


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 this rule will not have a significant economic 
impact on a substantial number of small entities. This rule would 
affect certain individuals from Vietnam, Cambodia, and Laos by 
implementing the adjustment of status provisions of section 586 of 
Public Law 106-429. This rule will have no effect on small entities as 
that term is defined in 5 U.S.C. 601(6).


Unfunded Mandates Reform Act of 1995


    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.


Small Business Regulatory Enforcement Fairness Act of 1996


    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.


Executive Order 12866


    This rule is considered by the Department of Justice, to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget for review.


Executive Order 13132


    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.


Executive Order 12988


    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.


Paperwork Reduction Act


    The information collection requirement (Form I-485) contained in 
this rule was previously approved for use by the Office of Management 
and Budget (OMB). The OMB control number for this information 
collection is 1115-0053. This final rule permits certain aliens from 
Vietnam, Cambodia, and Laos to adjust status. In addition to the 
evidence required by Form I-485, this rule at 8 CFR 245.21(g)(2) 
requires applicants to demonstrate that they were physically present in 
the United States on October 1, 1997, by supplying the evidence 
outlined in 8 CFR 245.22. This additional documentation is considered 
an information collection. Written comments are encouraged and will be 
accepted until February 24, 2003.
    Accordingly, the Service has submitted an information collection 
request to the Office of Management and Budget (OMB) for emergency 
review and clearance in accordance with the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). If granted, emergency approval is valid 
for 180 days.
    All comments and suggestions, or questions regarding additional 
information, to include obtaining a copy of the proposed information 
collection instrument, shall be directed to the Immigration and 
Naturalization Service, Regulations and Forms Services Division, 425 I 
Street, NW, Room 4034, Washington, DC 20536; Attention: Richard A. 
Sloan, Director, (202) 514-3291.
    Your comments should address one or more of the following four 
points:
    (1) Evaluating whether the collection of information is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluating the accuracy of the agency's estimate of the burden 
of the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhancing the quality, utility, and clarity of the information 
to be collected; and
    (4) Minimizing the burden of the collection of the information on 
those who are to respond, including through the use of any and all 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.


Overview of This Information Collection


    (1) Type of information collection: New.
    (2) Title of Form/Collection: Application requirements for the 
adjustment of status under section 586 of Public Law 106-429.
    (3) Agency form number, if any, and the applicable component of the 
Department of Justice sponsoring the collection: No form number (File 
No. OMB-27), Immigration and Naturalization Service.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Individuals. Section 586 of Public Law 106-
429 allows certain aliens from Vietnam, Cambodia, and Laos to adjust 
status to lawful permanent resident. The information collection is 
necessary in order for the Service to make a determination that the 
eligibility requirements and conditions are met regarding the alien.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: 5,000 
respondents at 30 minutes per response.
    (6) An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 2,500 burden hours.


List of Subjects


8 CFR Part 103


    Administrative practice and procedure, Authority delegations


[[Page 78673]]


(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.


8 CFR Part 245


    Aliens, Immigration, Reporting and recordkeeping requirements.




    Accordingly, for the reasons set forth in the preamble, parts 103 
and 245 of chapter I of title 8 of the Code of Federal Regulations are 
amended as follows:


PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS


    1. The authority citation for part 103 continues to read as 
follows:


    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 
31 U.S.C. 9701; E.O. 12356; 47 FR 14874, 15557, 3 CFR, 1982 Comp., p 
166; 8 CFR part 2.


    2. Section 103.1(f)(3)(iii)(C) is revised to read as follows:




103.1  Delegations of authority.


* * * * *
    (f) * * *
    (3) * * *
    (iii) * * *
    (C) Indochinese refugee applications for adjustment of status under 
section 103 of the Act of October 28, 1977, or section 586 of Public 
Law 106-429;
* * * * *


PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE


    3. The authority citation for part 245 continues to read as 
follows:


    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; 8 CFR part 2.


    4. Section 245.15(i) is revised to read as follows:




Sec.  245.15  Adjustment of status of certain Haitian nationals under 
the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).


* * * * *
    (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 Sec.  245.22.
* * * * *


    5. Section 245.21 is added to read as follows:




Sec.  245.21  Adjustment of status of certain nationals of Vietnam, 
Cambodia, and Laos (section 586 of Public Law 106-429).


    (a) Eligibility. The Service may adjust the status to that of a 
lawful permanent resident, a native or citizen of Vietnam, Cambodia, or 
Laos who:
    (1) Was inspected and paroled into the United States before October 
1, 1997;
    (2) Was paroled into the United States from Vietnam under the 
auspices of the Orderly Departure Program (ODP), a refugee camp in East 
Asia, or a displaced person camp administered by the United Nations 
High Commissioner for Refugees (UNHCR) in Thailand;
    (3) Was physically present in the United States prior to and on 
October 1, 1997;
    (4) Files an application for adjustment of status in accordance 
with paragraph (b) of this section during the 3-year application 
period; and
    (5) Is otherwise eligible to receive an immigrant visa and is 
otherwise admissible as an immigrant to the United States except as 
provided in paragraphs (e) and (f) of this section.
    (b) Applying for benefits under section 586 of Public Law 106-429. 
(1) Application period. The application period lasts from January 27, 
2003 until January 25, 2006. The Service will accept applications 
received after the end of the application period, but only if the 5,000 
limit on adjustments has not been reached prior to the end of the 
three-year application period, and the application bears an official 
postmark dated on or before the final day of the application period. 
Postmarks will be evaluated in the following manner:
    (i) If the postmark is illegible or missing, the Service will 
consider the application to be timely filed if it is received on or 
before 3 business days after the end of the application period.
    (ii) In all instances, the burden of proof is on the applicant to 
establish timely filing of an application.
    (2) Application. An alien must be physically present in the United 
States to apply for adjustment of status under section 586 of Public 
Law 106-429. An applicant must submit Form I-485, Application to 
Register Permanent Residence or Adjust Status, along with the 
appropriate application fee contained in Sec.  103.7(b)(1) of this 
chapter. Applicants who are 14 through 79 years of age must also submit 
the fingerprinting service fee provided for in Sec.  103.7(b)(1) of 
this chapter. Each application filed must be accompanied by evidence 
establishing eligibility as provided in paragraph (g) of this section; 
two photographs as described in the Form I-485 instructions; a 
completed Biographic Information Sheet (Form G-325A) if the applicant 
is between 14 and 79 years of age; a report of medical examination 
(Form I-693 and vaccination supplement) specified in Sec.  245.5; and, 
if needed, an application for waiver of inadmissibility. Under Part 2, 
question h of Form I-485, applicants must write ``INDOCHINESE PAROLEE 
P.L. 106-429''. Applications must be sent to: INS Nebraska Service 
Center, P.O. Box 87485, Lincoln NE 68501-7485.
    (c) Applications from aliens in immigration proceedings. An alien 
in pending immigration proceedings who believes he or she is eligible 
for adjustment of status under section 586 of Public Law 106-429 must 
apply directly to the Service in accordance with paragraph (b) of this 
section. An immigration judge or the Board of Immigration Appeals may 
not adjudicate applications for adjustment of status under this 
section. An alien who is currently in immigration proceedings who 
alleges eligibility for adjustment of status under section 586 of 
Public Law 106-429 may contact Service counsel after filing an 
application to request the consent of the Service to the filing of a 
joint motion for administrative closure. Unless the Service consents to 
such a motion, the immigration judge or the Board may not defer or 
dismiss the proceeding in connection with section 586 of Public Law 
106-429.
    (d) Applications from aliens with final orders of removal, 
deportation, or exclusion. An alien with a final order of removal, 
deportation, or exclusion who believes he or she is eligible for 
adjustment of status under section 586 of Public Law 106-429 must apply 
directly to the Service in accordance with paragraph (b) of this 
section.
    (1) An application under this section does not automatically stay 
the order of removal, deportation, or exclusion. An alien who is 
eligible for adjustment of status under section 586 of Public Law 106-
429 may request that the district director with jurisdiction over the 
alien grant a stay of removal during the pendency of the application. 
The regulations governing such a request are found at 8 CFR 241.6.
    (2) The Service in general will exercise its discretion not to 
grant a stay of removal, deportation, or exclusion with respect to an 
alien who is inadmissible on any of the grounds specified in paragraph 
(m)(3) of this section, unless there is substantial reason to believe 
that the Service will grant the necessary waivers of inadmissibility.


[[Page 78674]]


    (3) An immigration judge or the Board may not grant a motion to re-
open or stay in connection with an application under this section.
    (4) If the Service approves the application, the approval will 
constitute the automatic re-opening of the alien's immigration 
proceedings, vacating of the final order of removal, deportation, or 
exclusion, and termination of the reopened proceedings.
    (e) Grounds of inadmissibility that do not apply. In making a 
determination of whether an applicant is otherwise eligible for 
admission to the United States for lawful permanent residence under the 
provisions of section 586 of Public Law 106-429, the grounds of 
inadmissibility under sections 212(a)(4), (a)(5), (a)(7)(A), and (a)(9) 
of the Act shall not apply.
    (f) Waiver of grounds of inadmissibility. In connection with an 
application for adjustment of status under this section, the alien may 
apply for a waiver of the grounds of inadmissibility under sections 
212(a)(1), (a)(6)(B), (a)(6)(C), (a)(6)(F), (a)(8)(A), (a)(10)(B), and 
(a)(10)(D) of the Act as provided in section 586(c) of Public Law 106-
429, if the alien demonstrates that a waiver is necessary to prevent 
extreme hardship to the alien, or to the alien's spouse, parent, son or 
daughter who is a U.S. citizen or an alien lawfully admitted for 
permanent residence. In addition, the alien may apply for any other 
waiver of inadmissibility under section 212 of the Act, if eligible. In 
order to obtain a waiver for any of these grounds, an applicant must 
submit Form I-601, Application for Waiver of Grounds of Excludability, 
with the application for adjustment.
    (g) Evidence. Applicants must submit evidence that demonstrates 
they are eligible for adjustment of status under section 586 of Public 
Law 106-429. Such evidence shall include the following:
    (1) A birth certificate or other record of birth;
    (2) Documentation to establish that the applicant was physically 
present in the United States on October 1, 1997, under the standards 
set forth in Sec.  245.22 of this chapter.
    (3) A copy of the applicant's Arrival-Departure Record (Form I-94) 
or other evidence that the alien was inspected or paroled into the 
United States prior to October 1, 1997, from one of the three programs 
listed in paragraph (a)(2) of this section. Subject to verification, 
documentation pertaining to paragraph (a)(2) of this section is already 
contained in Service files and the applicant may submit an affidavit to 
that effect in lieu of actual documentation.
    (h) Employment authorization. Applicants who want to obtain 
employment authorization based on a pending application for adjustment 
of status under this section may submit Form I-765, Application for 
Employment Authorization, along with the application fee listed in 8 
CFR 103.7(b)(1). If the Service approves the application for employment 
authorization, the applicant will be issued an employment authorization 
document.
    (i) Travel while an application to adjust status is pending. An 
alien may travel abroad while an application to adjust status is 
pending. Applicants must obtain advance parole in order to avoid the 
abandonment of their application to adjust status. An applicant may 
obtain advance parole by filing Form I-131, Application for a Travel 
Document, along with the application fee listed in 8 CFR 103.7(b)(1). 
If the Service approves Form I-131, the alien will be issued Form I-
512, Authorization for the Parole of an Alien into the United States. 
Aliens granted advance parole will still be subject to inspection at a 
port-of-entry.
    (j) Approval and date of admission as a lawful permanent resident. 
When the Service approves an application to adjust status to that of 
lawful permanent resident based on section 586 of Public Law 106-429, 
the applicant will be notified in writing of the Service's decision. In 
addition, the record of the alien's admission as a lawful permanent 
resident will be recorded as of the date of the alien's inspection and 
parole into the United States, as described in paragraph (a)(1) of this 
section.
    (k) Notice of denial. When the Service denies an application to 
adjust status to that of lawful permanent resident based on section 586 
of Public Law 106-429, the applicant will be notified of the decision 
in writing.
    (l) Administrative review. An alien whose application for 
adjustment of status under section 586 of Public Law 106-429 is denied 
by the Service may appeal the decision to the Administrative Appeals 
Office in accordance with 8 CFR 103.3(a)(2).
    (m) Number of adjustments permitted under this section. (1) Limit. 
No more than 5,000 aliens may have their status adjusted to that of a 
lawful permanent resident under section 586 of Public Law 106-429.
    (2) Counting procedures. Each alien granted adjustment of status 
under this section will count towards the 5,000 limit. The Service will 
assign a tracking number, ascending chronologically by filing date, to 
all applications properly filed in accordance with paragraphs (b) and 
(g) of this section. Except as described in paragraph (m)(3) of this 
section, the Service will adjudicate applications in that order until 
it reaches 5,000 approvals under this part. Applications initially 
denied but pending on administrative appeal will retain their place in 
the queue by virtue of their tracking number, pending the Service's 
adjudication of the appeal.
    (3) Applications submitted with a request for the waiver of a 
ground of inadmissibility. In the discretion of the Service, 
applications that do not require adjudication of a waiver of 
inadmissibility under section 212(a)(2), (a)(6)(B), (a)(6)(F), 
(a)(8)(A), or (a)(10)(D) of the Act may be approved and assigned 
numbers within the 5,000 limit before those applications that do 
require a waiver of inadmissibility under any of those provisions. 
Applications requiring a waiver of any of those provisions will be 
assigned a tracking number chronologically by the date of approval of 
the necessary waivers rather than the date of filing of the 
application.
    (4) Procedures when the 5,000 limit is reached. The Service will 
track the total number of adjustments and stop processing applications 
after the 5,000 limit has been reached. When the limit is reached, the 
Service will return any additional applications to applicants with a 
dated notice encouraging applicants to retain their application package 
and the notice in the event the 5,000 limit is expanded or eliminated 
and the alien wishes to apply again. The Service will keep an 
identifying chronological record of the application for purposes of 
processing applications under this section if the 5,000 limit 
subsequently is expanded or eliminated. If at the time the 5,000 limit 
is reached, it appears that Congress is about to pass legislation to 
expand or eliminate the cap, the Service retains the discretion to 
retain such applications and the related fees.


    6. Section 245.22 is added to read as follows:




Sec.  245.22  Evidence to demonstrate an alien's physical presence in 
the United States on a specific date.


    (a) Evidence. Generally, an alien who is required to demonstrate 
his or her physical presence in the United States on a specific date in 
connection with an application to adjust status to that of an alien 
lawfully admitted for permanent residence should submit evidence 
according to this section. In cases where a more specific regulation 
relating to a particular adjustment of status provision has been issued 
in the 8 CFR, such


[[Page 78675]]


regulation is controlling to the extent that it conflicts with this 
section.
    (b) The number of documents. If no one document establishes the 
alien's physical presence on the required date, he or she may submit 
several documents establishing his or her physical presence in the 
United States prior to and after that date.
    (c) Service-issued documentation. To demonstrate physical presence 
on a specific date, the alien may submit Service-issued documentation. 
Examples of acceptable Service documentation include, but are not 
limited to, photocopies of:
    (1) Form I-94, Arrival-Departure Record, issued upon the alien's 
arrival in the United States;
    (2) Form I-862, Notice to Appear, issued by the Service on or 
before the required date;
    (3) Form I-122, Notice to Applicant for Admission Detained for 
Hearing before Immigration Judge, issued by the Service on or prior to 
the required date, placing the applicant in exclusion proceedings under 
section 236 of the Act (as in effect prior to April 1, 1997);
    (4) Form I-221, Order to Show Cause, issued by the Service on or 
prior to the required date, placing the applicant in deportation 
proceedings under section 242 or 242A (redesignated as section 238) of 
the Act (as in effect prior to April 1, 1997); or
    (5) Any application or petition for a benefit under the Act filed 
by or on behalf of the applicant on or prior to the required date that 
establishes his or her presence in the United States, or a fee receipt 
issued by the Service for such application or petition.
    (d) Government-issued documentation. To demonstrate physical 
presence on the required date, the alien may submit other government 
documentation. Other government documentation issued by a Federal, 
State, or local authority must bear the signature, seal, or other 
authenticating instrument of such authority (if the document normally 
bears such instrument), be dated at the time of issuance, and bear a 
date of issuance not later than the required date. For this purpose, 
the term Federal, State, or local authority includes any governmental, 
educational, or administrative function operated by Federal, State, 
county, or municipal officials. Examples of such other documentation 
include, but are not limited to:
    (1) A state driver's license;
    (2) A state identification card;
    (3) A county or municipal hospital record;
    (4) A public college or public school transcript;
    (5) Income tax records;
    (6) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to the required date, shows that 
the applicant was present in the United States at the time, and 
establishes that the applicant sought in his or her own behalf, or some 
other party sought in the applicant's behalf, a benefit from the 
Federal, State, or local governmental agency keeping such record;
    (7) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to the required date, that shows 
that the applicant was present in the United States at the time, and 
establishes that the applicant submitted an income tax return, property 
tax payment, or similar submission or payment to the Federal, State, or 
local governmental agency keeping such record; or
    (8) A transcript from a private or religious school that is 
registered with, or approved or licensed by, appropriate State or local 
authorities, accredited by the State or regional accrediting body, or 
by the appropriate private school association, or maintains enrollment 
records in accordance with State or local requirements or standards. 
Such evidence will only be accepted to document the physical presence 
of an alien who was in attendance and under the age of 21 on the 
specific date that physical presence in the United States is required.
    (e) Copies of records. It shall be the responsibility of the 
applicant to obtain and submit copies of the records of any other 
government agency that the applicant desires to be considered in 
support of his or her application. If the alien is not in possession of 
such a document or documents, but believes that a copy is already 
contained in the Service file relating to him or her, he or she may 
submit a statement as to the name and location of the issuing Federal, 
State, or local government agency, the type of document and the date on 
which it was issued.
    (f) Other relevant document(s) and evaluation of evidence. The 
adjudicator will consider any other relevant document(s) as well as 
evaluate all evidence submitted, on a case-by-case basis. The Service 
may require an interview when necessary.
    (g) Accuracy of documentation. In all cases, any doubts as to the 
existence, authenticity, veracity, or accuracy of the documentation 
shall be resolved by the official government record, with records of 
the Service having precedence over the records of other agencies. 
Furthermore, determinations as to the weight to be given any particular 
document or item of evidence shall be solely within the discretion of 
the adjudicating authority.


    Dated: December 19, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-32607 Filed 12-24-02; 8:45 am]
BILLING CODE 4410-10-U





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