established in paragraph (a) of this section.

inadmissibility

(c) Applicability of grounds contained in section 212(a). An applicant for the benefits of the adjustment of status provisions of section 202 of Pub. L. 105-100 need not establish admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Act in order to be able to adjust his or her status to that of permanent resident. An applicant under section 202 of Pub. L. 105-100 may also apply for one or more of the immigrant waivers of inadmissibility under section 212 of the Act, if applicable, in accordance with § 212.7 of this chapter.

(d) Aliens in exclusion, deportation, or removal proceedings, and aliens subject to a final order of exclusion, deportation, or removal (1) Proceedings pending before an Immigration Court. Except as provided in paragraph (d)(3) of this section, while an alien is in exclusion, deportation, or removal proceedings pending before an immigration judge, or has a pending motion to reopen or motion to reconsider filed with an immigration judge on or before May 21, 1998, sole jurisdiction over an application for adjustment of status under section 202 of Public Law 105-100 shall lie with the immigration judge. If an alien who has a pending motion to reopen or motion to reconsider filed with an immigration judge on or before May 21, 1998 files an application for adjustment of status under section 202 of Pub. L. 105-100, the immigration judge shall reopen the alien's proceedings for consideration of the adjustment application, unless the alien is clearly ineligible for adjustment of status under section 202 of Pub. L. 105–100. All applications for adjustment of status under section 202 of Pub. L. 105-100 filed with an Immigration Court shall be subject to the requirements of §§ 3.11 and 3.31 of this chapter.

(2) Proceedings pending before the Board of Immigration Appeals. Except as provided in paragraph (d)(3) of this section, in the case of an alien who either has a pending appeal with the Board or has a pending motion to reopen or motion to reconsider filed with the Board on or before May 21, 1998, the Board shall remand, or reopen and remand, the proceedings to the Immigration

Court for the sole purpose of adjudicating an application for adjustment of status under section 202 of Pub. L. 105100, unless the alien is clearly ineligible for adjustment of status under section 202 of Pub. L. 105-100. If the immigration judge denies, or the alien fails to file, the application for adjustment of status under section 202 of Pub. L. 105-100, the immigration judge shall certify the decision to the Board for consideration in conjunction with the applicant's previously pending appeal or motion.

(3) Administrative closure of pending exclusion, deportation, or removal proceedings. (i) In the case of an alien who is in exclusion, deportation, or removal proceedings, or has a pending motion to reopen or a motion to reconsider such proceedings filed on or before May 21, 1998, and who appears to be eligible to file an application for adjustment of status under section 202 of Pub. L. 105100, the Immigration Court having jurisdiction over such proceedings or motion, or if the matter is before the Board on appeal or by motion, the Board, shall, upon request of the alien and with the concurrence of the Service, administratively close the proceedings, or continue indefinitely the motion, to allow the alien to file such application with the Service as prescribed in paragraph (g) of this section.

(ii) In any case not administratively closed in accordance with paragraph (d)(3)(i) of this section, the immigration judge having jurisdiction over the exclusion, deportation, or removal proceedings shall have jurisdiction to accept and adjudicate any application for adjustment of status under section 202 of Pub. L. 105-100 during the course of such proceedings.

(4) Aliens with final orders of exclusion, deportation, or removal. An alien who is subject to a final order of exclusion, deportation, or removal, and who has not been denied adjustment of status under section 202 of Public Law 105-100 by the immigration judge or the Board of Immigration Appeals, may apply to the Service for adjustment of status under section 202 of Pub. L. 105–100.

(5) Stay of final order of exclusion, deportation, or removal-(i) With the Service. The filing of an application for adjustment under section 202 of Public

Law 105-100 with the Service shall not stay the execution of such final order unless the applicant has filed, and the Service has approved an Application for Stay of Removal (Form I-246) in accordance with section 241(c)(2) of the Act and §241.6 of this chapter.

(ii) With EOIR. When the Service refers a decision to an immigration judge on a Notice of Certification (Form I290C) in accordance with paragraph (m)(3) of this section, the referral shall not stay the execution of the final order. Execution of such final order shall proceed unless a stay of execution is specifically granted by the immigration judge, the Board, or an authorized Service officer.

(6) Effect on applications for adjustment under other provisions of the law. Nothing in this section shall be deemed to allow any alien who is in either exclusion proceedings that commenced prior to April 1, 1997, or removal proceedings as an inadmissible arriving alien that commenced on or after April 1, 1997, and who has not been paroled into the United States, to apply for adjustment of status under any provision of law other than section 202 of Pub. L. 105100.

(e) Application and supporting documents. Each applicant for adjustment of status must file an Application to Register Permanent Residence or Adjust Status (Form I-485). An applicant should complete Part 2 of Form I-485 by checking box "h-other" and writing "NACARA-Principal"

or

"NACARA-Dependent" next to that block. Each application must be accompanied by:

(1) The fee prescribed in § 103.7(b)(1) of this chapter;

(2) Evidence of commencement of physical presence in the United States not later than December 1, 1997. Such evidence may consist of either:

(i) Documentation evidencing one or more of the activities specified in section 202(b)(2)(A) of Pub. L. 105-100, or

(ii) Other documentation issued by a Federal, State, or local authority provided such other documentation bears the seal of such authority, was dated at the time of issuance, and bears a date of issuance not later than December 1, 1995. Examples of such other docu

mentation include, but are not limited

to:

(A) A State driver's license;

(B) A State identification card issued in lieu of a driver's license to a nondriver;

(C) A county or municipal hospital record;

(D) A public college or public school transcript; and

(E) Income tax records;

(3) Evidence of continuity of physical presence in the United States issued by any governmental or non-governmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature of the authorized representative of the issuing authority. There should be no chronological gaps in such documentation exceeding 90 days in length, excluding periods when the applicant states that he or she was not physically present in the United States. Such documentation need not bear the seal of the issuing authority and may include, but is not limited to:

(i) School records;
(ii) Rental receipts;

(iii) Utility bill receipts;

(iv) Any other dated receipts;

(v) Personal checks written by the applicant bearing a dated bank cancellation stamp;

(vi) Employment records, including pay checks;

(vii) Credit card statements showing the dates of purchase, payment, or other transaction; and

(viii) For applicants who have had ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records;

(4) A copy of the applicant's birth certificate;

(5) A complete Biographic Information Sheet (Form G-325A), if the applicant is between 14 and 79 years of age;

(6) A report of medical examination, as specified in § 245.5 of this chapter;

(7) Two photographs, as described in the instructions to Form I-485;

(8) If the applicant is 14 years of age or older, a police clearance from each

municipality where the alien has resided for six months or longer since arriving in the United States;

(9) If the applicant is applying as the spouse of another Pub. L. 105-100 beneficiary, a copy of their certificate of marriage and copies of documents showing the legal termination of all other marriages by the applicant or the other beneficiary;

(10) If the applicant is applying as the child, unmarried son, or unmarried daughter of another (principal) beneficiary under section 202 of Pub. L. 105100 who is not the applicant's biological mother, copies of evidence (such as the applicant's parent's marriage certificate and documents showing the legal termination of all other marriages, an adoption decree, or other relevant evidence) to demonstrate the relationship between the applicant and the other beneficiary;

(11) A copy of the Arrival-Departure Record (Form-I-94) issued at the time of the applicant's arrival in the United States, if the alien was inspected and admitted or paroled; and

(12) If the applicant has departed from and returned to the Untied States since December 1, 1995, an attachment on a plain piece of paper showing:

(i) The date of the applicant's last arrival in the United States before or on December 1, 1995;

(ii) The date of each departure (if any) from the United States since that arrival;

(iii) The reason for each departure; and

(iv) The date, manner, and place of each return to the United States.

(f) Secondary evidence. If the primary evidence required in paragraph (e)(4), (e)(9) or (e)(10 of this section is unavailable, church or school records, or other secondary evidence pertinent to the facts in issue, may be submitted. If such documents are unavailable, affidavits may be submitted. The applicant may submit as many types of secondary evidence as necessary to establish the birth, marriage, or other event. Documentary evidence establishing that primary evidence is unavailable must accompany secondary evidence of birth or marriage in the home country. In adjudicating the application for adjustment of status

under section 202 of Public Law 105-100, the Service or immigration judge shall determine the weight to be given such secondary evidence. Secondary evidence may not be submitted in lieu of the documentation specified in paragraphs (e)(2) and (e)(3) of this section. However, subject to verification by the Service, if the documentation specified in paragraphs (e)(2) and (e)(3) is already contained in the Service's file relating to the applicant, the applicant may submit an affidavit to that effect in lieu of the actual documentation.

(g) Filing. The application period begins on June 22, 1998. To benefit from the provisions of section 202 of Public Law 105-100, an alien must properly file an application for adjustment of status before April 1, 2000. Except as provided in paragraph (d) of this section, all applications for the benefits of section 202 of Pub. L. 105–100 must be submitted by mail to: USINS Texas Service Center, P.O. Box 851804, Mesquite, TX 751851804. After proper filing of the application, the Service will notify the applicant to appear for fingerprinting as prescribed in § 103.2(e) of this chapter.

(h) Jurisdiction. Except as provide din paragraphs (d) and (i) of this section, the director of the Texas Service Center shall have jurisdiction over all applications for adjustment of status under section 202 of Public Law 105–100. (i) Interview. (1) Except as provided in paragraphs (d), (i)(2), and (i)(3) of this section, all applicants for adjustment of status under section 202 of Pub. L. 105-100 must be personally interviewed by an immigration officer at a local office of the Service. In any case in which the director of the Texas Service Center determines that an interview of the applicant is necessary, that director shall forward the case to the appropriate local Service office for interview and adjudication.

(2) In the case of an applicant who has submitted evidence of commencement of physical presence in the United States consisting of one or more of the documents specified in section 202(b)(2)(A)(i) through (v) or section 202(b)(2)(A)(vii) of Pub. L. 105-100 and upon examination of the application, including all other evidence submitted in support of the application, all relevant Service records and all

$245.13

other relevant law enforcement indices, if the director of the Texas Service Center determines that the alien is clearly eligible for adjustment of status under Pub. L. 105-100 and that an interview of the applicant is not necessary, the director may approve the application.

(3) Upon examination of the application, all supporting documentation, all relevant Service records, and all other relevant law enforcement indices, if the director of the Texas Service Center determines that the alien is clearly ineligible for adjustment of status under Pub. L. 105-100 and that an interview of the applicant is not necessary, the director may deny the application.

(j) Authorization to be employed in the United States while the application is pending―(1) Application. An applicant for adjustment of status under section 202 of Pub. L. 105-100 who wishes to obtain initial or continued employment authorization during the pendency of the adjustment application must file an Application for Employment authorization (Form I-765), with fee as set forth in §103.7(b)(1) of this chapter. The applicant may either submit Form I-765 concurrently with Form I-485 or wait for at least 90 days after submission of Form I-485.

(2) Adjudication and issuance. In general, employment authorization may not be issued to an applicant for adjustment of status under section 202 of Pub. L. 105-100 until the adjustment application has been pending for 180 days. However, if Service records contain one or more of the documents specified in section 202(b)(2)(A)(i) through (v) and (vii) of Pub. L. 105-100, evidence of the applicant's Nicaraguan or Cuban nationality, and no indication that the applicant is clearly ineligible for adjustment of status under section 202 of Pub. L. 105-100, the application for employment authorization may be approved, and the resulting document issued immediately upon verification that the Service record contains such information. If the Service fails to adjudicate the application for employment authorization upon expiration of the 180-day waiting period or within 90 days of the filing of application for em

8 CFR Ch. I (1-1-00 Editio

for interim employment authorizati in accordance with §274a.13(d) of th chapter. Nothing in this section sha preclude an applicant for adjustment status under Pub. L. 105-100 from beir granted an initial employment autho ization or an extension of employmer authorization under any other prov sion of law or regulation for which th alien may be eligible.

(k) Parole authorization for purposes travel-(1) Travel from and return to th United States while the application fo adjustment of status is pending. If an a plicant for benefits under section 202 Pub. L. 105-100 desires to travel out side, and return to, the United State while the application for adjustment c status is pending, he or she must file request for advance parole authoriza tion on an Application for Travel Docu ment (Form I-131), with fee as set forth in § 103.7(b)(1) of this chapter and in ac cordance with the instructions on th form. If the alien is either in deporta tion or removal proceedings, or subjec to a final order of deportation or re moval, the Form I-131 must be sub Imitted to the Assistant Commissione for International Affairs; otherwise the Form I-131 must be submitted to the director of the Texas Service Center who shall have jurisdiction over such applications. If any applicant departs the United States without first obtaining an advance parole, his or her appli cation for adjustment of status under section 202 of Pub. L. 105-100 is deemed to be abandoned as of the moment of his or her departure.

(2) Parole authorization for the purpose of filing an application for adjustment of status under section 202 of Pub. L. 105– 100. An otherwise eligible applicant who is outside the United States and wishes to come to the United States in order to apply for benefits under section 202 of Pub. L. 105-100 may request parole authorization for such purpose by filing an Application for Travel Document (Form I-131) with the Texas Service Center, at P.O. Box 851804, Mesquite, TX 75185-1804. Such application must be supported by a photocopy of the Form I-485 that the alien will file

include photocopies of all the supporting documentation listed in paragraph (e) of this section, except the filing fee, the medical report, the fingerprint card, and the local police clearances. If the director of the Texas Service Center is satisfied that the alien will be eligible for adjustment of status once the alien has been paroled into the United States and files the application, he or she may issue an Authorization for Parole of an Alien into the United States (Form I-512) to allow the alien to travel to, and be paroled into, the United States for a period of 60 days. The applicant shall have 60 days from the date of parole to file the application for adjustment of status. If the alien files the application for adjustment of status within that 60-day period, the Service may re-parole the alien for such time as is necessary for adjudication of the application. Failure to file such application for adjustment of status within 60 days shall result in the alien being returned to the custody of the Service and being examined as an arriving alien applying for admission. Such examination will be conducted in accordance with the provisions of section 235(b)(1) of the Act if the alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act, or section 240 of the Act if the alien is inadmissible under any other grounds.

(3) Effect of departure on an outstanding warrant of exclusion, deportation, or removal. If an alien who is the subject of an outstanding final order of exclusion, deportation, or removal departs from the United States, with or without an advance parole authorization, such final order shall be executed by the alien's departure. The execution of such final order shall not preclude the applicant from filing an Application for Permission to Reapply for Admission Into the United States After Deportation or Removal (Form I-212) in accordance with §212.2 of this chapter.

(1) Approval. If the director approves the application for adjustment of status under the provisions of section 202 of Pub. L. 105-100, the director shall record the alien's lawful admission for permanent resident as of the date of such approval and notify the applicant accordingly. If the alien had previously

been issued a final order of exclusion, deportation, or removal, such order shall be deemed canceled as of the date of the director's approval of the application for adjustment of status. If the alien had been in exclusion, deportation, or removal proceedings that were administratively closed, such proceedings shall be deemed terminated as of the date of approval of the application for adjustment of status by the director. If an immigration judge grants or if the Board, upon appeal, grants an application for adjustment under the provisions of section 202 of Pub. L. 105100, the alien's lawful admission for permanent residence shall be as of the date of such grant.

(m) Denial and review of decision. If the director denies the application for adjustment of status under the provisions of section 202 of Pub. L. 105-100, the director shall notify the applicant of the decision. The director shall also:

(1) In the case of an alien who is not maintaining valid nonimmigrant status and who had not previously been placed in exclusion, deportation, or removal proceedings, initiate removal proceedings in accordance with §239.1 of this chapter during which the alien may renew his or her application for adjustment of status under section 202 of Pub. L. 105-100; or

(2) In the case of an alien whose previously initiated exclusion, deportation, or removal proceeding had been administratively closed or continued indefinitely under paragraph (d)(3) of this section, advise the Immigration Court that had administratively closed the proceeding, or the Board, as appropriate, of the denial of the application. The Immigration Court or the Board will then recalendar or reinstate the prior exclusion, deportation, or removal proceeding, during which proceeding the alien may renew his or her application for adjustment under section 202 of Pub. L. 105-100; or

(3) In the case of an alien who is the subject of an outstanding final order of exclusion, deportation, or removal, refer the decision to deny the application by filing a Notice of Certification (Form I-290C) with the Immigration Court that issued the final order for consideration in accordance with paragraph (n) of this section.