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

Sec.

245.1 Eligibility.

245.2 Application. 245.3

Adjustment of status under section 13 of the Act of September 11, 1957. 245.4 Documentary requirements. 245.5 Medical examination.

AUTHORITY: The provisions of this Part 245 issued under sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interpret or apply secs. 101, 204, 205, 212, 234, 242, 245, 247, 249, 66 Stat. 166, as amended, 179, 180, as amended, 182, as amended, 198, 208, as amended, 217, as amended, 218, 219, as amended; sec. 13, 71 Stat. 642; 8 U.S.C. 1101, 1154, 1155, 1182, 1224, 1252, 1255, 1255b, 1257, 1259.

An alien who on arrival in the United States was serving in any capacity on board a vessel or aircraft, or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon, or was not admitted or paroled following inspection by an immigration officer is not eligible for the benefits of section 245 of the Act. Pursuant to section 212(e) of the Act, an alien who has or has had the status of an exchange alien or of a nonimmigrant under section 101(a) (15) (J) of the Act is not eligible for the benefits of section 245 of the Act unless he has complied with the foreign-residence requirements of section 212(e) of the Act or has been granted a waiver thereof. An alien who has a nonimmigrant status under paragraph (15) (A), (15) (E), or (15) (G) of section 101 (a) of the Act, or has an occupational status which would, if he were seeking admission to the United States, entitle him to a nonimmigrant status under any of such paragraphs of section 101(a) of the Act is not eligible for the benefits of section 245 of the Act unless he first executes and submits with his application the written waiver required by section 247(b) of the Act and Part 247 of this chapter. A member of the immediate family of an alien having status under section 101(a) (15) (A) or (G) of the Act, and a spouse or child of an alien having status under section 101(a) (15) (E) of the Act may apply for adjustment of status only if such member, spouse, or child executes

the written waiver required by section 247(b) of the Act, irrespective of whether the principal alien also applies for adjustment and executes such waiver. A visa shall not be held to be available for an alien claiming a preference-quota status or a nonquota status under section 101 (a) (27) (A) or (F) unless a petition to accord such status has been approved in accordance with Part 204 of this chapter or 205 of this chapter. Except as provided in Part 249 of this chapter, an application under this part shall be the sole method of requesting the exercise of discretion under section 212 (f), (g), and (h) of the Act, as amended September 26, 1961, insofar as they relate to the excludability of an alien in the United States. When the applicant is chargeable to a quota, the current Department of State Visa Office Bulletin on Status of Quotas will be consulted to determine whether an immigrant visa is immediately available; an immigrant visa is considered available for accepting and processing the appliIcation if the applicant has a priority date on the quota waiting list which is not more than 90 days later than the date shown in that bulletin. The application shall not be approved until a quota immigrant visa number has been allocated by the Department of State. Information as to immediate availability of a quota immigrant visa may be obtained at the nearest Service office. [29 F.R. 14432, Oct. 21, 1964]

§ 245.2 Application.

An application by an alien after he has been served with an order to show cause or warrant of arrest shall be made and considered only in proceedings under Part 242 of this chapter. In any other case, an alien who believes that he meets the eligibility requirements of section 245 of the Act and § 245.1 shall apply on Form I-485 to the district director having jurisdiction over his place of residence. An application under this section shall be accompanied by a record of the applicant's birth, Form I-94, if one was issued to the applicant, his passport, and evidence such as an affidavit of support or a letter from an employer to establish that the applicant is not likely to become a public charge. The spouse of an alien beneficiary of a visa petition under section 204 of the Act shall submit, in addition to the foregoing,

a marriage certificate and proof of termination of prior marriages, if any, of each spouse; each child under 21 years of age of such a beneficiary shall submit the marriage certificate of his parents, together with proof of the termination of their prior marriages, if any, unless such documents have been submitted by one of his parents. The applicant shall be notified of the decision and if the application is denied of the reasons therefor. No appeal shall lie from the denial of an application by the district director but such denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter.

[29 F.R. 11494, Aug. 11, 1964]

§ 245.3

Adjustment of status under section 13 of the Act of September 11, 1957.

An application for the benefits of section 13 of the Act of September 11, 1957, shall be filed on Form I-485 with the district director having jurisdiction over the applicant's place of residence. The benefits of section 13 of the Act of September 11, 1957, shall be accorded only to an alien who was admitted to the United States under the provisions of either section 101(a) (15) (A) (i) or (ii) or 101(a) (15) (G) (i) or (ii) of the Act and who performed diplomatic or semi

diplomatic duties. Aliens whose duties were of a custodial, clerical, or manual nature are not eligible. The applicant shall be notified of the decision and if the application is denied of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103 of this chapter.

[29 F.R. 11494, Aug. 11, 1964]

§ 245.4 Documentary requirements.

The provisions of Part 211 of this chapter relating to the documentary requirements for immigrants shall not apply to an applicant under this part. [26 F.R. 12114, Dec. 19, 1961] § 245.5

Medical examination.

Upon acceptance of an application, the applicant shall be required to submit to an examination by a medical officer of the United States Public Health Service, whose report setting forth the findings of the mental and physical condition of the applicant shall be incorporated into the record. Any applicant certified under paragraph (1), (2), (3), (4), or (5) of section 212(a) of the Act may appeal to a Board of medical officers of the United States Public Health Service as provided in section 234 of the Act and Part 235 of this chapter.

[26 F.R. 12114, Dec. 19, 1961]

33-570 O-65-6

If it appears to a district director that a person residing in his district was not in fact eligible for the adjustment of status made in his case, a proceeding shall be commenced by the service upon such person of a notice of intention to rescind which shall inform him of the allegations upon which it is intended to rescind the adjustment of his status. In such a proceeding the person shall be known as the respondent. The notice shall also inform the respondent that he may submit, within thirty days from the date of service of the notice, an answer in writing under oath setting forth reasons why such rescission shall not be made, and that he may, within such period, request a hearing before a special inquiry officer in support of, or in lieu of his written answer. The respondent shall further be informed that he may have the assistance of or be represented by counsel or representative of his choice qualified under Part 292 of this chapter, without expense to the Government, in the preparation of his answer or in connection with his hearing, and that he may present such evidence in his behalf as may be relevant to the rescission. [28 F.R. 6737, June 29, 1963]

§ 246.2 Allegations admitted; no answer filed; no hearing requested.

If the answer admits all the allegations in the notice, or if no answer is

filed within the thirty-day period, or if no hearing is requested within such period, and the status of that of a permanent resident was acquired through suspension of deportation under section 19(c) of the Immigration Act of February 5, 1917, or under section 244 of the Immigration and Nationality Act, the district director shall forward the respondent's file containing a copy of the notice and the answer, if any, to the regional commissioner for further action in accordance with section 246 of the Immigration and Nationality Act. If the answer admits the allegations in the notice, or if no answer is filed within the thirty-day period, or if no hearing is requested within such period, and the status of that of a permanent resident was acquired through adjustment of status under section 245 or 249 of the Immigration and Nationality Act, the district director shall rescind the adjustment of status previously granted, and no appeal shall lie from his decision.

§ 246.3 Allegations contested or denied; hearing requested.

If, within the prescribed time following service of the notice pursuant to § 246.1, the respondent has filed an answer which contests or denies any allegation in the notice, or a hearing is requested, a hearing pursuant to § 246.5 shall be conducted by a special inquiry officer and the procedures specified in §§ 242.10, 242.11, 242.12, 242.13, 242.14(c), (d), and (e), and 242.15 of this chapter shall apply.

[29 F.R. 13243, Sept. 24, 1964]

§ 246.4 Special inquiry officer's authority; withdrawal and substitution.

In any proceeding conducted under this part, the special inquiry officer shall have authority to interrogate, examine, and cross-examine the respondent and other witnesses, to present and receive evidence, to determine whether adjustment of status shall be rescinded, to make decisions thereon, including an appropriate order, and to take any other action consistent with applicable provisions of law and regulations as may be appropriate to the disposition of the case. Nothing contained in this part shall be construed to diminish the authority conferred on special inquiry officers by the Act. The special inquiry officer assigned to conduct a hearing shall, at any

time, withdraw if he deems himself disqualified. If a hearing has begun but no evidence has been adduced other than the notice and answer, if any, pursuant to §§ 246.1 and 246.2, or if a special inquiry officer becomes unavailable to complete his duties within a reasonable time, or if at any time the respondent consents to a substitution, another special inquiry officer may be assigned to complete the case. The new special inquiry officer shall familiarize himself with the record in the case and shall state for the record that he has done so.

The Government

(a) Trial attorney. shall be represented at the hearing by a trial attorney who shall have authority to present evidence, and to interrogate, examine, and cross-examine the respondent and other witnesses. The trial attorney is authorized to appeal from a decision of the special inquiry officer pursuant to § 246.7 and to move for reopening or reconsideration pursuant to § 246.8.

(b) Opening. The special inquiry officer shall advise the respondent of the nature of the proceeding and the legal authority under which it is conducted; advise the respondent of his right to representation, at no expense to the Government, by counsel of his own choice qualified under Part 292 of this chapter, and require him to state then and there whether he desires representation; advise the respondent that he will have a reasonable opportunity to examine and object to the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; place the respondent under oath; read the allegations in the notice to the respondent and explain them in nontechnical language, and enter the notice and respondent's answer, if any, as exhibits in the record.

(c) Pleading by respondent. The special inquiry officer shall require the respondent to state for the record whether he admits or denies the allegations contained in the notice, or any of them, and whether he concedes that his adjustment of status should be rescinded. If the respondent admits all of the allegations and concedes that the adjustment of status in his case should be rescinded under the allegations set forth in the notice, and the special inquiry

officer is satisfied that no issues of law or fact remain, he may determine that rescission as alleged has been established by the respondent's admissions. The allegations contained in the notice shall be taken as admitted when the respondent, without reasonable cause, fails or refuses to attend or remain in attendance at the hearing.

§ 246.6 Decision and order.

The decision of the special inquiry officer may be oral or written. Except when a determination of rescission is based on the respondent's admissions pursuant to § 246.5 (c), the decision shall include a discussion of the evidence and findings as to rescission. The formal enumeration of findings is not required. The order shall direct either that the proceeding be terminated or that the adjustment of status be rescinded. If status was adjusted through suspension of deportation, the rescission order shall further provide that the matter be referred to Congress pursuant to section 246 of the Immigration and Nationality Act. Service of the decision and finality of the order of the special inquiry officer shall be in accordance with, and as stated in, §§ 242.19 (a) and (b) and 242.20 of this chapter.

§ 246.7 Appeals.

Pursuant to Part 3 of this chapter, an appeal shall lie from a decision of a special inquiry officer under this part to the Board of Immigration Appeals. An appeal shall be taken within 10 days after the mailing of a written decision or the stating of an oral decision. The reasons for the appeal shall be stated briefly in the Notice of Appeal, Form I-290A; failure to do so may constitute a ground for dismissal of the appeal by the Board. When service of the decision is made by mail, as authorized by this section, 3 days shall be added to the period prescribed for the taking of an appeal. [29 F.R. 7236, June 3, 1964] § 246.8

Reopening or reconsideration. Except as otherwise provided in this section, a motion to reopen or reconsider shall be subject to the requirements of § 103.5 of this chapter. The special inquiry officer may upon his own motion, or upon motion of the trial attorney or the respondent, reopen or reconsider any case in which he has made a decision,