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Removal of the Standardized Request for Evidence Processing
Timeframe

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.

ACTION: Proposed rule.

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

SUMMARY: This rule proposes to amend Department of Homeland Security
(Department) regulations by removing the absolute requirement for, and
the fixed regulatory time limitations on responses to, a U.S.
Citizenship and Immigration Services (USCIS) issued Request for
Evidence (RFE) or Notice of Intent to Deny (NOID). These changes will
enable USCIS to set an appropriate deadline for responding to an RFE or
NOID, specific to the type of case, benefit category, or
classification, and thus improve the process of adjudication of
applications and petitions by reducing the time a case is held awaiting
evidence, and by reducing average case processing time. This rule will
result in improved efficiency in the USCIS adjudication process.
In addition, this rule also replaces references to the Immigration
and Naturalization Service (Service) with references to USCIS in light
of implementation of the Homeland

[[Page 69550]]

Security Act of 2002, Public Law 107-296. This rule also removes
obsolete regulatory language related to the Replenishment Agricultural
Worker (RAW) program under section 210A of the Immigration and
Nationality Act (Act), which was repealed by section 219(ee)(1) of the
Immigration and Technical Corrections Act of 1994, Public Law 103-416.
The rule further removes references to the use of qualified designated
entities for filing of applications for adjustment of status in the
Seasonal Agricultural Workers (SAW) and legalization programs under
section 210 and 245A of the Act.

DATES: Written comments must be submitted on or before January 31,
2005.

ADDRESSES: You may submit comments, identified by DHS Docket No. DHS-
2004-0020, by one of the following methods:
EPA Federal Partner EDOCKET Web Site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/feddocket.
Follow instructions for submitting comments on the Web site.

The Department of Homeland Security has joined the Environmental
Protection Agency (EPA) online public docket and comment system on its
Partner Electronic Docket System (Partner EDOCKET). The Department of
Homeland Security and its agencies (excluding the United States Coast
Guard and Transportation Security Administration) will use the EPA
Federal Partner EDOCKET system. The USCG and TSA (legacy Department of
Transportation (DOT) agencies) will continue to use the DOT Docket
Management System until full migration to the electronic rulemaking
federal docket management system in 2005.
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

Follow the instructions for submitting comments.
E-mail: rfs.regs@dhs.gov. When submitting comments
electronically, please include Docket No. DHS-2004-0020 in the subject
line of the message.
Mail: The Director, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference Docket No. DHS-2004-0020 on
your correspondence. This mailing address may also be used for paper,
disk, or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number (202)
514-3048.
Instructions: All submissions received must include the agency name
and Docket No. DHS-2004-0020 for this rulemaking. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/feddocket,

including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/feddocket You may also access the Federal eRulemaking Portal at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

Submitted comments may also be inspected at the Director, Regulatory
Management Division, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd
Floor, Washington, DC 20529. To ensure proper handling, please
reference Docket No. DHS-2004-0020 on your correspondence.

FOR FURTHER INFORMATION CONTACT: Rodger Pitcairn, Program and
Regulations Development, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd
Floor, Washington, DC 20529, telephone (202) 514-2685.

SUPPLEMENTARY INFORMATION:

Who Is Affected by This Rule?

This proposed rule would affect those petitioners and applicants
who submit applications/petitions for immigration benefits and receive
requests for evidence (RFEs) or notices of intent to deny (NOIDs) from
the Department.

What Is an RFE?

An RFE, described in current regulations at 8 CFR 103.2(b)(8), is a
request, issued by an adjudicating immigration officer, for the
applicant or petitioner to provide initial or additional evidence in
support of an application or petition. RFEs usually are in writing and
request missing documentary evidence. The documentary evidence
requested may consist of basic documents that were specified in the
application/petition forms and/or instructions but which were not
submitted by the applicant or petitioner. The RFE may also be a request
for original documents or proper translations, or for other documents
not specifically identified in the form's instructions but determined
by the adjudicator to be relevant to the adjudication of the
application/petition.

What Is a Notice of Intent To Deny?

A notice of intent to deny (NOID) is a written notice issued to an
applicant or petitioner when USCIS has made a preliminary decision to
deny the application or petition. NOIDs may be based on evidence of
ineligibility and/or on derogatory information of which the applicant
or petitioner is unaware.

What Is the Current Process for Issuing an RFE or NOID?

Under 8 CFR 103.2(b)(8), USCIS is required to issue an RFE when
initial evidence is missing. Initial evidence is evidence specified in
the regulations and on the application or petition and accompanying
instructions. USCIS, in its discretion, may also issue an RFE for
additional evidence. In either case, if USCIS issues an RFE, USCIS must
provide a standard response period of 12 weeks.
There are various provisions throughout 8 CFR that authorize or
require USCIS to issue a NOID to an applicant or petitioner before
rendering a final decision on the case. NOIDs are designed to provide
the applicant or petitioner with an opportunity to inspect and rebut
the evidence in a certain period of time, usually 30 days from the date
of notice.

Why Is USCIS Changing the Current Process and How Will RFE or NOID
Issuance Occur Under the Proposed Rule?

USCIS recognizes that while RFEs are sometimes necessary, RFE
issuance slows the adjudication process. Some RFEs are simple enough to
require resubmission within a few weeks; others may require more time.
USCIS proposes to replace the current 12-week response period reflected
in 8 CFR 103.2(b)(8) with a more flexible approach, setting response
periods based on various factors such as the type of benefit sought;
the type of application or petition filed; the type of evidence needed
for adjudication; the source and availability of documentation (both
foreign and domestic); the effect of denial of an application or
petition on the applicant, petitioner and/or beneficiary (e.g., loss of
long-held priority dates, loss of valid status or interim benefits);
the delivery mechanisms to be used for an RFE or NOID; and other case-
specific factors. USCIS also proposes to remove most provisions that
require issuance of an RFE or NOID in order to allow USCIS greater
flexibility in deciding cases based on the information received,
including initial evidence and other relevant materials. Generally,
USCIS anticipates that the response times for most RFEs or NOIDs that
are set by USCIS under this proposed rule will not be less than 30
days. In addition, USCIS will issue RFEs or NOIDs as written notices,
clearly stating what evidence or information is required, to give the

[[Page 69551]]

applicant or petitioner adequate notice and sufficient information to
respond to any request.
The goal for redesigning the RFE and NOID issuance process is to
allow USCIS flexibility in determining whether to issue RFEs and NOIDs
and in setting RFE and NOID response periods, mainly through
implementing field guidance that will address specific circumstances
encountered by USCIS. Clearly approvable cases should be promptly
approved, without the need for an RFE. Clearly ineligible cases should
be denied without an RFE or NOID, even if required initial evidence has
not been submitted. USCIS also retains its discretion to issue an RFE,
NOID or deny a case when initial evidence is missing or there is
insufficient evidence to establish eligibility. The current rule at 8
CFR 103.2(b)(16)(i) requiring opportunity to rebut derogatory
information of which the applicant or petitioner is unaware will
remain.
USCIS welcomes comments on all aspects of this rule, and
specifically requests proposals on appropriate standards for RFE or
NOID issuance as well as for determining appropriate periods for RFE
and NOID responses. USCIS also welcomes suggestions on actual
timeframes that should be adopted based on either the application or
petition being filed or the documentary evidence generally required for
a particular benefit category. Based on the comments received and
USCIS' own experience in case adjudication, USCIS will develop
timeframes and standards for RFE and NOID issuance.

What Other Changes Does This Rule Propose To Make?

This rule clarifies 8 CFR 103.2(b)(5) to reflect that official
documents issued by the Department (or the former Immigration and
Naturalization Service) need not be submitted in the original unless
required by USCIS. Original documents submitted to USCIS (or the former
Immigration and Naturalization Service) will be returned upon request,
but USCIS is not precluded from making subsequent requests to reexamine
original documents.
This rule expands and restructures current 8 CFR 103.2(b)(8) to
reflect more accurately the process of responding to an RFE. This
change is intended to facilitate a respondent's ability to understand
and address a request for evidence.
This rule amends 8 CFR 103.2(b)(8) by removing the mandatory
requirement that USCIS issue an RFE for initial evidence. Instead,
USCIS, in its discretion, may deny a petition or application when
required initial evidence is missing. If an applicant or petitioner
fails to submit the required initial evidence, and USCIS decides to
deny the application or petition rather than issue an RFE, the
applicant or petitioner may file a motion to reopen, with fee, as
provided under 8 CFR 103.5 or file a new application or petition. The
applicant or petitioner may also file an appeal of the denial if other
regulatory or statutory authority exists for such appeal.
This rule also preserves USCIS' discretion to issue an RFE or NOID
if USCIS determines that the record raises questions of eligibility. If
USCIS issues an RFE or NOID for additional evidence and a response is
received, USCIS will adjudicate the application based on the required
initial evidence and the requested information submitted in response to
the RFE or NOID. If the applicant or petitioner does not respond to the
RFE or NOID, USCIS will treat the failure to respond as a statement by
the applicant or petitioner that he or she believes the record as it
stands establishes eligibility. Upon passing of the deadline for
submission of the requested evidence, USCIS will adjudicate the
application and/or petition based on the record then existing before
USCIS (e.g., the application or petition and the required initial
evidence).
Finally, this rule divides current 8 CFR 103.2(b)(17) into two
separate paragraphs for improved ease of use and to clarify which
official records will be accepted to establish lawful admission for
permanent residence.
In addition to the proposed changes regarding RFE requests, USCIS
is making numerous technical changes to 8 CFR 103.2 necessary to
reflect the recent organizational changes resulting from implementation
of the Homeland Security Act of 2002, Public Law 107-296.

Are Fee Waivers Available if a Petitioner or Applicant Is Required To
File a New Application or Petition or, if Eligible, a Motion To Reopen?

Fee waiver requests may be granted when it has been established
that the individual is unable to pay the required filing fees,
including filing fees for motions to reopen. See 8 CFR 103.7(c). To
apply for a fee waiver, an individual must comply with the provisions
of 8 CFR 103.7(c). The individual may submit an affidavit, or unsworn
declaration made pursuant to 28 U.S.C. 1746, that is signed, dated, and
certified under penalty of perjury, and which states the reasons why
the individual is unable to pay the filing fee. USCIS will take note of
any evidence or documentation that is submitted in support of the
individual's claim that he or she is unable to pay the filing fee. For
more detailed information on the fee waiver request process please
visit the USCIS Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.uscis.gov.


Regulatory Flexibility Act

DHS has reviewed this rule in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, DHS certifies
that this rule will not have a significant economic impact on a
substantial number of small entities. Although some petitions may be
submitted by small entities, namely U.S. employers seeking nonimmigrant
or immigrant labor, this rule is intended to be more flexible in
setting time limits for RFEs or NOIDs, thereby reducing the timeframe
for adjudicating these petitions without imposing costs. USCIS
recognizes that this change may have a small impact on small business
practices or productivity due to the change in timeframes for responses
to RFEs or NOIDS. However, USCIS believes these changes ultimately will
benefit affected small businesses, namely because the reduction in
adjudication timeframes will allow U.S. employers to receive the
benefit sought at an earlier date (i.e., the ability to hire temporary
or permanent foreign employees). USCIS intends to set response times
for RFEs or NOIDs generally at not less than 30 days. USCIS welcomes
suggestions on actual timeframes that should be adopted based on either
the application or petition being filed or the documentary evidence
generally required for a particular benefit category. Based on the
comments received and USCIS' own experience in case adjudication, USCIS
will develop timeframes and standards for RFE and NOID issuance.

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 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 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an

[[Page 69552]]

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
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 Homeland Security 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.
The Department has assessed both the costs and the benefits
associated with this proposed rule. There are no identifiable
alternatives associated with RFE or NOID issuance. In addition, there
are minimal costs to the Department associated with instructing
adjudicators about the options for dealing with inadequate information.
There are benefits to both USCIS and the public. USCIS will reduce the
number of RFEs and NOIDs and the cycle time for responses to such
notices, potentially reducing the pending backlog of cases. The public
will receive fewer and more specific RFE or NOID notices and benefit
from faster approval of applications and petitions. USCIS welcomes
comments specifically on the impact on U.S. employers who file
employment-related applications or petitions and on any potential costs
that may be associated with implementation of this rule.

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, DHS has determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

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

Paperwork Reduction Act

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 or recordkeeping
requirements inherent in a rule. This rule does not impose any new
reporting or recordkeeping requirements under the Paperwork Reduction
Act.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.

8 CFR Part 204

Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.

8 CFR Part 214

Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements.

8 CFR Part 245

Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.

8 CFR Part 245a

Aliens, Immigration, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

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

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166;
8 CFR part 2.

2. Section 103.2 is amended by:
a. Revising the term ``INS office or Service Center'' to read
``USCIS office'' in paragraph (a)(6);
b. Revising the term ``Service Center'' to read ``service center''
wherever that term appears in the last sentence of paragraph (a)(7)(i);
c. Revising paragraph (b)(1);
d. Revising paragraph (b)(4);
e. Revising paragraph (b)(5);
f. Revising paragraph (b)(8);
g. Revising paragraph (b)(11);
h. Removing the term ``initial'' in paragraph (b)(12), first
sentence of text;
i. Revising paragraph (b)(13);
j. Revising term ``regional commissioner'' to read ``USCIS Director
or his or her designee'' in paragraph (b)(16)(iii);
k. Revising the term ``regional commissioner'' to read ``USCIS
Director or his or her designee'' in the second sentence, and the term
``regional commissioner's'' to read ``USCIS Director's or his or her
designee's'' in the third sentence in paragraph (b)(16)(iv);
l. Revising paragraph (b)(17); and by
m. Removing and reserving paragraphs (c) and (d); The revisions
read as follows:


Sec. 103.2 Applications, petitions, and other documents.

* * * * *
(b) * * * (1) Demonstrating eligibility at time of filing. An
applicant or petitioner must establish that he or she is eligible for
the requested benefit at the time of filing the application or
petition. All required application or petition forms must be properly
completed and filed with any initial evidence required by applicable
regulations and/or the form's instructions. Failure to submit with the
petition or application all of the initial evidence that is required by
the applicable regulations or form instructions may result in denial of
the petition or application without further notice to the petitioner or
applicant. Any evidence submitted in connection with the application or
petition is incorporated into and considered part of the relating
application or petition.
* * * * *
(4) Submitting copies of documents. Application and petition forms,
and documents issued to support an application or petition, such as
labor certifications, Form IAP-66, medical examinations, affidavits,
formal consultations, letters of current employment and other
statements, must be submitted in the original unless previously filed
with USCIS. Official documents issued by the Department need not be
submitted in the original unless required by USCIS. Unless otherwise
required by the applicable regulation or form's instructions, a legible
photocopy of any other supporting document may be submitted.
(5) Request for an original document. USCIS may, at any time,
request submission of an original document for review. The request will
state a deadline for submission of the original document. Failure to
submit the requested original by the deadline may result in denial or
revocation of the underlying application or benefit. An original
document submitted in response to such a request, when no longer
required by USCIS, will be returned to the petitioner or

[[Page 69553]]

applicant upon completion of the adjudication.
* * * * *
(8) Request for evidence. (i) Evidence of eligibility or
ineligibility. If the preponderance of the evidence submitted with the
application or petition establishes eligibility, USCIS will approve the
application or petition, except that in any case in which the
applicable statute or regulation makes the approval of a petition or
application a matter entrusted to USCIS discretion, USCIS will approve
the petition or application only if the preponderance of the evidence
of record establishes not only that the petitioner or applicant is
eligible for the benefit sought but also that the petitioner or
applicant warrants a favorable exercise of discretion. If there is
evidence in the record that establishes ineligibility, the application
or petition will be denied on that basis.
(ii) Action on insufficient initial evidence. If the evidence
submitted does not fully establish eligibility, USCIS may, according to
the agency's implementing guidance: Deny the application or petition
for lack of initial evidence or for ineligibility; request more
information or evidence from the applicant or petitioner within a
specified period of time as determined by USCIS; or notify the
applicant or petitioner of its intent to deny the application or
petition and of the basis for the proposed denial and require a
response within a specified period of time as determined by USCIS. If
USCIS issues a RFE or NOID, the RFE or NOID will be in writing and
specify the type of evidence required or the bases for denial to give
the applicant or petitioner adequate notice and sufficient information
to respond to such notice. The time allowed for response to a request
for evidence or notice of intent to deny generally will not be less
than thirty (30) days.
* * * * *
(11) Responding to a request for evidence or notice of intent to
deny. If USCIS issues a request for evidence or a notice of intent to
deny, the applicant or petitioner may respond at any time prior to the
deadline set by USCIS. An applicant or petitioner may also withdraw the
application or petition at any time during the period provided for
response. All requested materials should be submitted together at one
time, along with the original USCIS request for evidence or notice of
intent to deny. Submission of only some of the requested evidence will
be considered a request for a decision on the record. After the
deadline for response, or after USCIS' receipt of a response, the
application or petition will be adjudicated based on the record then
existing (e.g. the application or petition, required initial evidence
and any relevant information submitted in response to the request for
evidence or notice of intent to deny).
* * * * *
(13) Effect of failure to respond to a request for evidence or a
notice of intent to deny or to appear for interview or fingerprinting.
(i) Failure to submit evidence or respond to a notice of intent to
deny. If any requested evidence or a response to a notice of intent to
deny is not submitted by the required date, the failure to submit such
evidence or response shall be treated as a request for a decision based
on the record then existing (e.g. the application or petition and
required initial evidence) and the application or petition shall be
adjudicated accordingly.
(ii) Failure to appear for fingerprinting or interview. Except as
provided in 8 CFR 335.6, if an individual requested to appear for
fingerprinting or for an interview does not appear and USCIS has not
received either a request for rescheduling by the date of the
fingerprinting appointment or interview, or a withdrawal of the
application or petition, the application or petition shall be
considered abandoned and denied accordingly.
* * * * *
(17) Verifying claimed citizenship or permanent resident status.
(i) Department records. The status of an applicant or petitioner who
claims that he or she is a permanent resident of the United States or
was formerly a permanent resident of the United States will be verified
from official Department records. These records include alien and other
files, arrival manifests, arrival records, Department index cards,
Immigrant Identification Cards, Certificates of Registry, Declarations
of Intention issued after July 1, 1929, Permanent Resident Cards (Form
I-551), Alien Registration Receipt Cards (Form I-151), other
registration receipt forms (Form AR-3, AR-3a, and AR-103, provided that
such forms were issued or endorsed to show admission for permanent
residence), passports, and reentry permits. An official record of a
Department index card must bear a designated immigrant visa symbol and
must have been prepared by an authorized official of the Department in
the course of processing immigrant admissions or adjustments to
permanent resident status. Other cards, certificates, declarations,
permits, and passports must have been issued or endorsed to show
admission for permanent residence. Except as otherwise provided in 8
CFR part 101, and in the absence of countervailing evidence, such
official records will be regarded as establishing lawful admission for
permanent residence.
(ii) Assisting self-petitioners who are spousal abuse victims. If a
self-petitioner filing a petition under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is
unable to present primary or secondary evidence of the abuser's status,
USCIS will attempt to verify electronically the abuser's citizenship or
immigration status from information contained in the Department's
automated or computerized records. Other Department records may also be
reviewed at the discretion of the adjudicating officer. If USCIS is
unable to identify a record as relating to the abuser, or the record
does not establish the abuser's immigration or citizenship status, the
self-petition will be adjudicated based on the information submitted by
the self-petitioner.
* * * * *


Sec. 103.2 [Amended]

3. Section 103.2 is further amended by:
a. Revising the terms ``the Service'' or ``Service'' to read
``USCIS'' wherever those terms appear in the following paragraphs:

--Paragraph (a)(7)(i) first sentence and first time it appears in the
last sentence;
--Paragraph (b)(2)(ii) in the last sentence;
--Paragraph (b)(2)(iii);
--Paragraph (b)(3);
--Paragraph (b)(6);
--Paragraph (b)(7);
--Paragraph (b)(9) introductory text;
--Paragraph (b)(10);
--Paragraph (e)(1);
--Paragraph (e)(2);
--Paragraph (e)(3) introductory text;
--Paragraph (e)(3)(iii);
--Paragraph (e)(4)(i);
--Paragraph (e)(4)(iii) introductory text;
--Paragraph (e)(4)(iii)(C);
--Paragraph (e)(4)(iv) second sentence;
--Paragraph (f)(1) in the third sentence;
--Paragraph (f)(1), the first time the term appears in the fourth
sentence;
--Paragraph (f)(2), the first time the term appears in the first
sentence;
--Paragraph (f)(3), the first and last time the term appears in the
last sentence;
--Paragraph (f)(4), the first time the term appears in the first
sentence;
--Paragraph (f)(4), the first time the term appears in the second
sentence; and
--Paragraph (f)(4), in the third sentence.

b. Revising the term ``Service's'' to read ``USCIS''' in the
following paragraphs:


[[Page 69554]]


--Paragraph (b)(15);
--Paragraph (e)(3)(iii); and
--Paragraph (e)(4)(iii)(C).
* * * * *

PART 204--IMMIGRANT PETITIONS

4. The authority citation for part 204 continues to read as
follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255, 1641; 8 CFR part 2.


Sec. 204.1 [Amended]

5. Section 204.1 is amended by removing paragraph (h).


Sec. 204.2 [Amended]

6. Section 204.2 is amended by:
a. Removing paragraph (c)(3)(ii) and by redesignating (c)(3)(iii)
as (c)(3)(ii);
b. Removing paragraph (e)(3)(ii) and by redesignating (e)(3)(iii)
as (e)(3)(ii).

PART 214--NONIMMIGRANT CLASSES

7. The authority citation for part 214 continues to read as
follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to Executive Order 13323, published January 2, 2004), 1186a, 1187,
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 643, Pub. L.
104-208; 110 Stat. 3009-708; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901, note, and 1931, note, respectively.


Sec. 214.2 [Amended]

8. Section 214.2 is amended by:
a. Removing paragraph (h)(10)(ii) and by redesignating (h)(10)(iii)
as (h)(10)(ii);
b. Removing paragraph (k)(10)(iii);
c. Removing paragraph (l)(8)(i) and by redesignating (l)(8)(ii) and
(l)(8)(iii) as (l)(8)(i) and (l)(8)(ii) respectively;
d. Revising paragraph (o)(7); and by
e. Revising paragraph (p)(9).
The revisions read as follows:


Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.

* * * * *
(o) * * *
(7) The petitioner shall be notified of the decision, the reasons
for the denial, and the right to appeal the denial under 8 CFR part
103.
* * * * *
(p) * * *
(9) The petitioner shall be notified of the decision, the reasons
for the denial, and the right to appeal the denial under 8 CFR part
103. There is no appeal from a decision to deny an extension of stay to
the alien or a change of nonimmigrant status.
* * * * *
8. Section 214.11 is amended by revising paragraph (k)(2) to read
as follows:


Sec. 214.11 Alien victims of severe forms of trafficking in persons.

* * * * *
(k) * * *
(2) Determination by USCIS. An application for T-1 status under
this section will not be treated as a bona fide application until USCIS
has provided the notice described in paragraph (k)(3) of this section.
In the event that an application is incomplete or if the application is
complete but does not present sufficient evidence to establish prima
facie eligibility for each required element of T nonimmigrant status,
USCIS will follow the procedures provided in 8 CFR 103.2(b)(8) for
requesting additional evidence, issuing a notice of intent to deny, or
adjudicating the case on the merits.
9. Section 214.15 is amended by revising the second sentence of
paragraph (d) to read as follows:


Sec. 214.15 Certain spouses and children of lawful permanent
residents.

* * * * *
(d) The definition of ``pending''. * * * In addition, the petition
must have been properly filed according to 8 CFR 103.2(a), and if,
subsequent to filing, USCIS returns the petition to the applicant for
any reason or makes a request for evidence or issues a notice of intent
to deny under 8 CFR 103.2(b)(8), the petitioner must comply with the
request within the time period set by USCIS. * * *
* * * * *

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

10. 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.


Sec. 245.18 [Amended]

11. Section 245.18 is amended by removing and reserving paragraph
(i).

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF
THE IMMIGRATION AND NATIONALITY ACT

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

Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.

13. Section 245a.20 is amended by revising paragraph (a)(2) to read
as follows:


Sec. 245a.20 Decisions, appeals, motions, and certifications.

(a) * * *
(2) Denials. The alien shall be notified in writing of the decision
of denial and of the reason(s) therefor. An applicant affected under
this part by an adverse decision is entitled to file an appeal on Form
I-290B, Notice of Appeal to the Administrative Appeals Office (AAO),
with required fee specified in 8 CFR 103.7(b)(1). Renewal of employment
authorization issued pursuant to Sec. 245a.13 will be granted until a
final decision has been rendered on appeal or until the end of the
appeal period if no appeal is filed. After exhaustion of an appeal, an
alien who believes that the grounds for denial have been overcome may
submit another application with fee, provided that the application is
submitted on or before June 4, 2003.
* * * * *


Sec. 245a.33 [Amended]

14. Section 245a.33 is amended by removing the second sentence of
paragraph (b).

Dated: November 18, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-26371 Filed 11-29-04; 8:45 am]


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