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

[Federal Register: November 1, 2007 (Volume 72, Number 211)]
[Rules and Regulations]               
[Page 61791-61793]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01no07-1]                         


========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================



[[Page 61791]]



DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Part 245

[CIS No. 2420-07; Docket No. USCIS-2007-0047]
RIN 1615-AB62

 
Removal of Receipt Requirement for Certain H and L Adjustment 
Applicants Returning From a Trip Outside the United States

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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

SUMMARY: This rule removes the requirement that certain H and L 
nonimmigrants returning to the United States following a trip abroad 
must present a receipt notice for their adjustment of status 
applications to avoid having such applications deemed abandoned. The 
purpose of this narrow change is to remove an unnecessary documentation 
requirement from the regulations that the Department of Homeland 
Security has determined causes an undue burden on H and L 
nonimmigrants.

DATES: Effective Date: This rule is effective November 1, 2007.

FOR FURTHER INFORMATION CONTACT: Carol Vernon, Regulations and Product 
Management Division, Domestic Operations, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue, Room 2034, Washington, DC 20529, telephone (202) 272-8350.

SUPPLEMENTARY INFORMATION:

I. Background

    Travel outside the United States for an alien who has filed Form I-
485, ``Application to Register Permanent Residence or Adjust Status,'' 
to obtain lawful permanent resident status under section 245 of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1255, may adversely 
affect that application unless the alien takes certain steps before the 
trip. Most applicants must obtain permission from U.S. Citizenship and 
Immigration Services (USCIS) to travel prior to the trip, a process 
referred to as ``advance parole.'' See 8 CFR 212.5 (c) and (f). For 
these applicants, departing the United States without advance parole 
while their adjustment of status applications are pending results in 
automatic abandonment of the applications and constitutes grounds for 
denial. 8 CFR 245.2(a)(4)(ii)(A) & (B).
    However, some applicants do not need to obtain advance parole prior 
to departing from the United States. 8 CFR 245.2(a)(4)(ii)(C) & (D). 
These are applicants who are permitted by statute to maintain a 
nonimmigrant status while they seek to obtain permanent resident 
status. See INA section 214(h), 8 U.S.C. 1184(h). This rulemaking 
applies to such applicants with respect to two qualifying nonimmigrant 
classifications: H-1 and L-1 (including dependents, H-4 and L-2). See 
INA section 101(a)(15)(H) and (L), 8 U.S.C. 1101(a)(15)(H) and (L) 
(describing H and L nonimmigrant classifications); 8 CFR 214.2(h) and 
(l). Both nonimmigrant classifications are employment-based. H-1 
nonimmigrants include the H-1B classification for ``specialty 
occupation'' workers and the H-1C classification for certain registered 
nurses. See 8 CFR 214.2(h)(1)(ii)(A) and (B). L-1 nonimmigrants include 
the L-1A classification for certain intracompany transferees who are 
managers or executives, and the L-1B classification for ``specialized 
knowledge'' workers. See 8 CFR 214.2(l)(ii)(A).
    Under current regulations, adjustment of status applicants 
maintaining H or L nonimmigrant status who depart the United States 
will not be deemed to have abandoned their applications if they did not 
obtain advance parole prior to departure. However, upon return to the 
United States, they must demonstrate to the immigration officer at the 
port of entry that they:
     Remain eligible for H-1/H-4 or L-1/L-2 nonimmigrant 
status;
     Will resume employment with the same employer for which 
they had previously been authorized to work as an H-1 or L-1 
nonimmigrant (not applicable to H-4 or L-2 nonimmigrants);
     Are in possession of a valid H-1/H-4 or L-1/L-2 
nonimmigrant visa (if a visa is required); and
     Are in possession of the original receipt notice for the 
application for adjustment of status, Form I-797, ``Notice of Action'' 
(issued by USCIS).

    See 8 CFR 245.2(a)(4)(ii)(C). Preserving the pendency of an 
adjustment of status application in this manner does not apply to H-1/
H-4 or L-1/L-2 nonimmigrants who are under exclusion, deportation, or 
removal proceedings. In such cases, the Executive Office for 
Immigration Review of the Department of Justice has jurisdiction over 
the adjustment of status application and 8 CFR 245.2(a)(4)(ii)(A) 
governs the effect of travel abroad on those applications.
    Because of its varying workload, USCIS recognizes that it is not 
always able to ensure immediate issuance and mailing of Form I-797 
receipt notices upon receipt of an adjustment of status application. At 
times, USCIS therefore may experience delays in processing and issuing 
the receipt. This situation places H-1B/H-4 or L-1/L-2 nonimmigrants 
who are awaiting a Form I-797 receipt notice, but wish to travel 
outside the United States while their adjustment of status application 
is pending, in the difficult position of having to decide whether to 
cancel a planned trip or risk denial of the adjustment application as a 
result of the departure. Either option would result in hardship to the 
alien and his or her dependents that the Department of Homeland 
Security (DHS) finds is unduly burdensome and unnecessary. This is 
because it renders otherwise qualifying adjustment applications 
abandoned notwithstanding the fact that the information provided by 
presentation of the receipt (evidence of filing of an adjustment 
application) is already available to DHS. An alien whose adjustment of 
status application is deemed abandoned for failing to present a Form I-
797 receipt notice upon readmission to the United States resulting in a 
denial of the application would be forced to incur the time and expense 
involved in filing a new adjustment application.
    Section 214(h) of the INA, 8 U.S.C. 1184(h), establishing the H-1/
H-4 and

[[Page 61792]]

L-1/L-2 nonimmigrant's ability to maintain nonimmigrant status while 
pursuing permanent resident status, is broad and places no documentary 
restrictions on such ability. Further, DHS has determined, in light of 
advances in database technology, that the removal of the Form I-797 
receipt requirement will not have any adverse impact on its 
responsibilities to ensure control over aliens seeking admission to the 
United States. Such aliens must establish eligibility for admission, in 
any case, before DHS permits them to reenter the United States. In 
addition, DHS creates a record of its inspection of the alien, 
including the alien's application for admission.

II. Regulatory Changes

    This rule amends 8 CFR 245.2(a)(4)(ii)(C) to remove the requirement 
that an H-1/H-4 or L-1/L-2 nonimmigrant present an original of the Form 
I-797 receipt notice for a pending adjustment of status application 
upon readmission to the United States following a trip abroad in order 
to avoid abandonment of the adjustment of status application as a 
result of the departure. This rule makes no other changes to 8 CFR 
245.2(a)(4)(ii)(C).

III. Rulemaking Requirements

    DHS finds that this rule relates to internal agency management, 
procedure, and practice and therefore is exempt from the public comment 
requirements of the Administrative Procedure Act (APA) under 5 U.S.C. 
553(b)(A). This rule does not alter substantive criteria by which USCIS 
will approve or deny applications or determine eligibility for any 
immigration benefit. Instead, this rule relieves a document 
presentation requirement for certain applicants for immigration 
benefits. Specifically, this rule removes the requirement that H-1/H-4 
and L-1/L-2 nonimmigrants present a Form I-797 receipt notice for their 
adjustment of status applications upon readmission to the United States 
after a trip abroad in order to avoid having their applications 
abandoned. This document presentation requirement is unnecessary since 
it concerns information that is already available to DHS. This final 
rule merely eliminates an unnecessary burden on these arriving aliens 
and streamlines agency management of its processes. As a result, DHS is 
not required to provide the public with an opportunity to submit 
comments on the subject matter of this rule.
    Moreover, DHS finds that good cause exists under 5 U.S.C. 553(b)(B) 
to make the rule effective upon publication in the Federal Register 
without prior notice and public comment on the grounds that delaying 
implementation of this rule to allow for public comment would be 
impracticable and contrary to the public interest. As a result of 
USCIS's July 17, 2007, announcement that it would accept employment-
based Forms I-485 filed by aliens whose priority dates are current 
under Department of State Visa Bulletin No. 107, USCIS received an 
unprecedented volume of employment-based applications for adjustment of 
status, including those filed by H and L nonimmigrants. Because of the 
recent surge in such filings, it will take several weeks for USCIS to 
enter the necessary data and issue Form I-797 receipt notices for 
employment-based adjustment of status applications. Therefore, it is 
important for this rule to take effect as soon as possible to avoid 
undue hardship on applicants who may need travel outside the United 
States prior to receiving the receipt notice.
    In addition, no substantive rights or obligations of the affected 
public are changed by this rule. DHS believes the public will welcome 
this change. The public needs no time to conform its conduct so as to 
avoid violation of these regulations because the rule relieves a 
requirement of the existing regulations. Further, this rule will have 
no adverse impact on DHS' adjudicatory responsibilities or ability to 
track the foreign travel of affected persons since DHS already records 
the admission of all nonimigrants. For these reasons, this rule is 
effective immediately under 5 U.S.C. 553(d)(1) and (3).
    This rule relates to internal agency management, and, therefore, is 
exempt from the provisions of Executive Order Nos. 12630, 12988, 13045, 
13132, 13175, 13211, and 13272. This rule is not considered by DHS to 
be a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. Therefore, it has not 
been reviewed by the Office of Management and Budget. Further, this 
action is not a proposed rule requiring an initial or final regulatory 
flexibility analysis under the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq. In addition, this rule is not subject to the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., Title 
II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. Ch. 17A, 25, 
or the E-Government Act of 2002, 44 U.S.C. 3501, note.
    Finally, under the Paperwork Reduction Act of 1995, Public Law 104-
13, all Departments are required to submit to the Office of Management 
and Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. This rule does not affect any information 
collections, reporting or recordkeeping requirements under the 
Paperwork Reduction Act.

List of Subjects in 8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

0
Accordingly, part 245 of chapter 1 of title 8 of the Code of Federal 
Regulations is amended as follows:

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

0
1. The authority citation for part 245 continues to read as follows:

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

0
2. Section 245.2 is amended by revising paragraph (a)(4)(ii)(C) as 
follows:


Sec.  245.2  Application.

    (a) * * *
    (4) * * *
    (ii) * * *
    (C) The travel outside of the United States by an applicant for 
adjustment of status who is not under exclusion, deportation, or 
removal proceeding and who is in lawful H-1 or L-1 status shall not be 
deemed an abandonment of the application if, upon returning to this 
country, the alien remains eligible for H or L status, is coming to 
resume employment with the same employer for whom he or she had 
previously been authorized to work as an H-1 or L-1 nonimmigrant, and, 
is in possession of a valid H or L visa (if required). The travel 
outside of the United States by an applicant for adjustment of status 
who is not under exclusion, deportation, or removal proceeding and who 
is in lawful H-4 or L-2 status shall not be deemed an abandonment of 
the application if the spouse or parent of such alien through whom the 
H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the 
alien remains otherwise eligible for H-4 or L-2 status, and, the alien 
is in possession of a valid H-4 or L-2 visa (if required). The travel 
outside of the United States by an applicant for adjustment of status, 
who is not under exclusion, deportation, or removal proceeding and who 
is in lawful K-3 or K-4 status shall not be deemed an abandonment of 
the application if, upon returning to this country, the alien is in 
possession of a valid K-3 or K-4 visa and remains eligible for K-3 or 
K-4 status.
* * * * *


[[Page 61793]]


    Dated: October 15, 2007.
Michael Chertoff,
Secretary.
 [FR Doc. E7-21506 Filed 10-31-07; 8:45 am]
BILLING CODE 4410-10-P



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