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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 FR 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the respondent and other witnesses, to present and receive evidence, to determine whether adjustment of status shall be rescinded, to make decisions appropriate thereon, including an order, and to take any other action consistent with applicable provisions of law and regulations as may be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.
§ 246.5 Hearing.
(a) Trial attorney. The Government 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 crossexamine 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 alespleged 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 FR 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, unless jurisdiction in the case is vested in the Board under Part 3 of this chapter. A motion to reopen will not be granted by a special inquiry officer unless he is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing.
247.13 Disposition of Form I-508. 247.14
Surrender of documents.
AUTHORITY: Secs. 101, 103, 247, 66 Stat. 166, 173, 218; 8 U.S.C. 1101, 1103, 1257.
SOURCE: 22 FR 9801, Dec. 6, 1957, unless otherwise noted.
§ 247.1 Scope of part.
The provisions of this part apply to an alien who is lawfully admitted for permanent residence and has an occupational status which, if he were seeking admission to the United States, would entitle him to a nonimmigrant status under paragraph (15)(A) or (15)(G) of section 101(a) of the Act, and to his immediate family; also, an alien who was lawfully admitted for permanent residence and has an occupational status which, if he were seeking admission to the United States, would entitle him to a nonimmigrant status under paragraph (15)(E) of section 101(a) of the Act, and to his spouse and children.
§ 247.11 Notice.
If it appears to a district director that an alien residing in his district, who was lawfully admitted for permanent residence, has an occupational status described in section 247 of the Act, he shall cause a notice on Form I509 to be served on such alien by personal service informing him that it is proposed to adjust his status, unless the alien requests that he be permitted to retain his status as a resident alien and executes and files with such district director a Form I-508 (Waiver of Rights, Privileges, Exemptions and Immunities) and, if a French national receiving salary from the French Republic, Form I-508F (election as to tax exemption under the Convention between the United States and the French Republic), within 10 days after service of the notice, or the alien, within such 10-day period, files with the district director a written answer under oath setting forth reasons why his status should not be adjusted. The notice shall also advise the person that he may, within such period and upon his request have an opportunity to appear in person, in support or in lieu of his written answer, before an immigration officer designated for
that purpose. The person shall further be advised that he may have the assistance of counsel without expense to the Government of the United States in the preparation of his answer or in connection with such personal appearance, and may examine the evidence upon which it is proposed to base such adjustment.
[22 FR 9801, Dec. 6, 1957, as amended at 37 FR 11471, June 8, 1972]
§ 247.12 Disposition of case.
(a) Allegations admitted or answer filed. If the waiver Form I-508 and, if applicable, Form I-508F is not filed by the alien within the time prescribed, and the answer admits the allegations in the notice, or no answer is filed, the district director shall place a notation on the notice describing the alien's adjusted nonimmigrant status and shall cause a set of Forms I-94 to be prepared evidencing the nonimmigrant classification to which the alien has been adjusted and no appeal shall lie from such decision. Form I-94A shall be delivered to the alien and shall constitute notice to him of such adjustment. The alien's nonimmigrant status shall be for such time, under such conditions, and subject to such regulations as are applicable to the particular nonimmigrant status granted and shall be subject to such other terms and conditions, including the exaction of bond as the district director may deem appropriate.
(b) Answer filed; personal appearance. Upon receipt of an answer asserting a defense to the allegations made in the notice without requesting a personal appearance, or if a personal appearance is requested or directed, the case shall be assigned to an immigration officer. Pertinent evidence, including testimony of witnesses, shall be incorporated in the record. The immigration officer shall prepare report summarizing the evidence and containing his findings and recommendation. The record, including the report and recommendation of the immigration officer, shall be forwarded to the district director who caused the notice to be served. The district director shall note on the report of the immigration officer whether he approves or disapproves the recommendation of
the immigration officer. If the decision of the district director is that the matter be terminated, the alien shall be informed of such decision. If the decision of the district director is that the status of the alien should be adjusted to that of a nonimmigrant, his decision shall provide that unless the alien, within 10 days of receipt of notification of such decision, requests permission to retain his status as an immigrant and files with the district director Form I-508 and, if applicable, Form I-508F, the alien's immigrant status be adjusted to that of a nonimmigrant. The alien shall be informed of such decision and of the reasons therefor, and of his right to appeal in accordance with the provisions of Part 103 of this chapter. If the alien does not request that he be permitted to retain status and file the Form I-508 and, if applicable, Form I-508F within the period provided therefor, the district director, without further notice to the alien, shall cause a set of Forms I-94 to be prepared evidencing the nonimmigrant classification to which the alien has been adjusted. Form I94A shall be delivered to the alien. The alien's nonimmigrant status shall be for such time, under such conditions, and subject to such regulations as are applicable to the particular nonimmigrant status created and shall be subject to such other terms and conditions, including the exaction of bond, as the district director may deem appropriate.
[22 FR 9801, Dec. 6, 1957, as amended at 23 FR 9124, Nov. 26, 1958; 35 FR 13829, Sept. 1, 1970]
§ 247.13 Disposition of Form I-508.
If Form I-508 is executed and filed, the duplicate copy thereof (noted to show the election made on Form I508F, if applicable) shall be filed in the office of the Assistant Commissioner, Administrative Division, and may be made available for inspection by any interested officer or agency of the United States.
[35 FR 13829, Sept. 1, 1970]
§ 247.14 Surrender of documents.
An alien whose status as a permanent resident has been adjusted to
that of a nonimmigrant in accordance with section 247 of the Act and this part, shall, upon demand, promptly surrender to the district director having administrative jurisdiction over the office in which the action under this part was taken any documents (such as Form I-151 or any other form of alien-registration receipt card, immigrant identification card, resident alien's border-crossing identification card (Form I-187), certificate of registry, or certificate of lawful entry) in his possession evidencing his former permanent resident status.
PART 248-CHANGE OF NONIMMIGRANT CLASSIFICATION
248.2 Ineligible classes.
248.4 Change of nonimmigrant classification to that under section 101(a)(15)(H) or 101(a)(15)(L) of the Immigration and Nationality Act.
AUTHORITY: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interpret or apply secs. 101, 247, 248, 66 Stat. 167, as amended, 218, as amended; 8 U.S.C. 1101, 1257, 1258.
SOURCE: 36 FR 9001, May 18, 1971, unless otherwise noted.
§ 248.1 Eligibility.
(a) General. Except for those classes enumerated in § 248.2, any alien lawfully admitted to the United States as a nonimmigrant, including an alien who acquired such status pursuant to section 247 of the Act, who is continuing to maintain his nonimmigrant status, may apply to have his nonimmigrant classification changed to any nonimmigrant classification other than that of a fiancee or fiance under section 101(a)(15)(K) of the Act.
(b) Maintenance of status. In determining whether an applicant has continued to maintain his nonimmigrant status, the district director shall consider whether the alien has remained in the United States for a longer period than that authorized by the Service, and shall consider any conduct by the applicant relating to his maintenance of the status from which the applicant is seeking a change. An applicant may not be considered as
having maintained his nonimmigrant status within the meaning of this section if he failed to submit his application for change of nonimmigrant classification before his authorized temporary stay in the United States had expired, unless the district director in his discretion is satisfied that the failure to file a timely application was excusable, that the alien has not otherwise violated his nonimmigrant status and is a bona fide nonimmigrant, and the alien is not the subject of deportation proceedings under Part 242 of this chapter. A nonimmigrant applying for a change to classification as a student under section 101(a)(15)(F) of the Act shall not be considered ineligible for such change solely because he may have started attendance at school before his application was submitted. An alien shall be considered prima facie ineligible for change of nonimmigration classification as one who is no longer maintaining his nonimmigrant status, upon the introduction in Congress of a private bill seeking to confer upon him the status of a lawful permanent resident of the United States.
§ 248.2 Ineligible classes.
An alien admitted in immediate and continuous transit through the United States without a visa pursuant to section 238(d) of the Act, or an alien classified as a nonimmigrant under section 101(a)(15)(D) or (K) of the Act is not eligible for any change of nonimmigrant classification under section 248 of the Act. An alien classified as a nonimmigrant under section 101(a)(15)(C) of the Act is not eligible for any change of nonimmigrant classification other than a change to classification under section 101(a)(15)(A) or (G) of the Act. An alien classified as a nonimmigrant under section 101(a)(15)(J) of the Act is not eligible for any change of nonimmigrant classification other than a change to classification under section 101(a) (15)(A) or (G) of the Act, or, if he is not subject to the foreign residence requirement of section 212(e) of the Act or has been granted a waiver thereof, a change to classification under section 101(a)(15)(H) or (L) of the Act, if otherwise qualified. [36 FR 9001, May 18, 1971, as amended at 36 FR 23619, Dec. 11, 1971]
§ 248.3 Application.
(a) General. Application for change of nonimmigrant classification shall be made on Form I-506. The application shall be accompanied by documentary evidence establishing that the applicant is eligible for the change of classification being requested and shall be filed with the district director having jurisdiction over the applicant's place of temporary sojourn in the United States.
(b) Application and fee not required. When an alien whose status has been changed to a classification under section 101(a)(15)(A) or (G) of the Act has in the United States an "immediate family" member as defined in 22 CFR 41.1, the status of the "immediate family” member may be changed to the classification of the principal alien without an application or fee. When an alien whose status has been changed to a classification under section 101(a)(15)(E), (F), (H), (I), (J), or (L) of the Act has a nonimmigrant spouse or nonimmigrant child in the United States, the status of the spouse or child may be changed to the appropriate nonimmigrant classification without an application or fee. Neither an application nor fee is required of an alien who seeks reclassification from that of a visitor for pleasure under section 101(a)(15)(B) of the Act to that of a visitor for business under the same section; from classification as a student under section 101(a)(15)(F)(i) of the Act to classification as an accompanying spouse or minor child under section 101(a)(15)(F)(ii) of the Act or vice versa; from any classification within section 101(a)(15)(H) of the Act to any other classification within section 101(a)(15)(H) provided requisite Form I-129B visa petition has been filed and approved; from classification as a participant under section 101(a)(15)(J) of the Act to classification as an accompanying spouse or minor child under that section, or vice versa; or from classification as an intracompany transferee under section 101(a)(15)(L) of the Act to classification as an accompanying spouse or minor child under that section, or vice versa. No fee shall be required in connection with any request for change to classification under section