Code of Federal Regulations: Containing a Codification of Documents of ...

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 personal 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 recission.

[28 F.R. 6737, June 29, 1963, as amended at 37 F.R. 11471, June 8, 1972]

§ 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.

in proceedings under Part 242 of this chapter.

[30 F.R. 14778, Nov. 30, 1965, as amended at 31 F.R. 15235, Dec. 6, 1966; 33 F.R. 17136, Nov. 19, 1968; 34 F.R. 14761, Sept. 25, 1969; 35 F.R. 5960, Apr. 10, 1970; 36 F.R. 5836, Mar. 30, 1971; 36 F.R. 7415, Apr. 20, 1971; 36 F.R. 14630, Aug. 7, 1971; 36 F.R. 18784, Sept. 22, 1971; 36 F.R. 23619, Dec. 11 1971]

§ 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 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 who performed diplomatic or semidiplomatic duties and to members of his immediate family. Aliens whose duties were of a custodial, clerical, or manual nature, and members of their immediate families, are not eligible. In view of the annual limitation of 50 on the number of aliens whose status may be adjusted under section 13 of the Act of September 11, 1957, an alien who is prima facie eligible for adjustment of status to that of a lawful permanent resident under another provision of law shall be advised to apply for adjustment pursuant to such other provision of law. An applicant for the benefits of section 13 of the Act of September 11, 1957 shall not be subject to the labor certification requirement of section 212(a) (14) of the Act. 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. [30 F.R. 14779, Nov. 30, 1965, as amended at 31 F.R. 6196, April 22, 1966; 32 F.R. 9632, July 4, 1967]

§ 245.4 Adjustment of status of aliens within the proviso to section 203 (a) (7) of the Act.

The provisions of section 245 of the Act or section 1 of the Act of November 2, 1966, and of this part, shall govern the adjustment of status provided for in the proviso to section 203 (a) (7) of the Act. An applicant for adjustment of status under section 245 of the Act who claims he is entitled to a preference status pur

suant to section 203 (a) (7) of the Act shall execute and attach to his application for adjustment a Form I-590A, Application for Classification as a Refugee under the proviso to section 203 (a) (7), Immigration and Nationality Act. The determination as to whether an alien is entitled to the claimed preference status shall be made by the district director; no appeal shall lie from his determination.

[34 F.R. 19799, Dec. 18, 1969, as amended at 36 F.R. 23866, Dec. 16, 1971]

§ 245.5

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. [30 F.R. 14779, Nov. 30, 1965] § 245.6 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, or by a designated civil surgeon, 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 U.S. Public Health Service as provided in section 234 of the Act and Part 235 of this chapter.

[30 F.R. 14779, Nov. 30, 1965, as amended at 36 F.R. 7415, Apr. 20, 1971]

[28 F.R. 6737, June 29, 1963, as amended at 37 F.R. 11471, June 8, 1972]

§ 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

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

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.

ceeding 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, 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. § 246.9 Surrender of Form I-151.

A respondent whose status as a permanent resident has been rescinded in accordance with section 246 of the Immigration and Nationality 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, the Form I-151 issued to him at the time of the grant of permanent resident status.

247.13 247.14

Disposition of Form I-508.

Surrender of documents. AUTHORITY: The provisions of this Part 247 issued under secs. 101, 103, 247, 66 Stat. 166, 173, 218; 8 U.S.C. 1101, 1103, 1257.

SOURCE: The provisions of this Part 247 appear at 22 F.R. 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 I-509 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 F.R. 9801, Dec. 6, 1957, as amended at 37 F.R. 11471, June 8, 1972]

§ 247.12 Disposition of case.

(a) Allegations admitted or no 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 are 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 a 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

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