(n) Action of immigration judge upon referral of decision by a Notice of Certification (Form I-290C)— (1) General. Upon the referral by a Notice of Certification (Form I-290C) of a decision to deny the application, in accordance with paragraph (m)(3) of this section, and under the authority contained in §3.10 of this chapter, the immigration judge shall conduct a hearing to determine whether the alien is eligible for adjustment of status under section 202 of Public Law 105-100. Such hearing shall be conducted under the same rules of procedure as proceedings conducted under part 240 of this chapter, except the scope of review shall be limited to a determination on the alien's eligibility for adjustment of status under section 202 of Public Law 105-100. During such proceedings all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, removability, and eligibility for any form of relief other than adjustment of status under section 202 of Public Law 105-100. Should the alien fail to appear for such hearing, the immigration judge shall deny the application for adjustment under section 202 of Public Law 105-100.

(2) Appeal of immigration judge decision. Once the immigration judge issues his or her decision on the application, either the alien or the Service may appeal the decision to the Board. Such appeal must be filed pursuant to the requirements for appeals to the Board from an immigration judge decision set forth in §§ 3.3 and 3.8 of this chapter.

(3) Rescission of the decision of an immigration judge. The decision of an immigration judge under paragraph (n)(1) of this section denying an application for adjustment under section 202 of Public Law 105-100 for failure to appear may be rescinded only:

(i) Upon a motion to reopen filed within 180 days after the date of the deInial if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act; or

(ii) Upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice of the hearing in person (or, if personal service was not practicable, through serv

ice by mail to the alien or to the alien's counsel of record, if any) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

(0) Transition period provisions for tolling the physical presence in the United States provision for certain individuals— (1) Departure without advance authorization for parole. In the case of an otherwise eligible applicant who departed the United States on or before December 31, 1997, the physical presence in the United States provision of section 202(b)(1) of Pub. L. 105-100 is tolled as of November 19, 1997, and until July 20, 1998.

(2) Departure with advance authorization for parole. In the case of an alien who departed the United States after having been issued an Authorization for parole of an Alien into the United States (Form I-512), and who returns to the United States in accordance with the conditions of that document, the physical presence in the United States requirement of section 202(b)(1) of Pub. L. 105-100 is tolled while the alien is outside the United States pursuant to the issuance of the Form I-512.

(3) Request for parole authorization from outside the United States. In the case of an alien who is outside the United States and submits an application for parole authorization in accordance with paragraph (k)(2) of this section, and such application for parole authorization is granted by the Service, the physical presence in the United States provisions of section 202(b)(1) of Pub. L. 105-100 is tilled from the date the application is received at the Texas Service Center until the alien is paroled into the United States pursuant to the issuance of the Form I-512. (Approved by the Office of Management and Budget under Control Number 1115-0221.) [63 FR 27829, May 21, 1998]

$245.14 Adjustment of status of certain health care workers.

An alien applying for adjustment of status to perform labor in a health care occupation as described in 8 CFR 212.15(c) must present evidence at the time he or she applies for adjustment of status, and, if applicable, at the time of the interview on the application.

that he or she has a valid certificate issued by the Commission on Graduates of Foreign Nursing Schools or the National Board of Certification in Occupational Therapy.

[63 FR 55012, Oct. 14, 1998]

$245.15 Adjustment of status of certain Haitian nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).

(a) Definitions. As used in this section, the terms:

Abandoned and abandonment mean that prior to a child's 21st birthday both parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer these rights to any specific person(s).

Guardian means a person lawfully invested (by order of a competent Federal, State, or local authority) with the power, and charged with the duty, of taking care of, including managing the property, rights, and affairs of, a child.

Orphan and orphaned refer to the involuntary detachment or severance of a child from his or her parents prior to the child's 21st birthday due to any of the following:

(1) The death of both parents;

(2) The death of one parent and the irrevocable and written release of all parental rights by the sole surviving parent based upon the inability of that parent to provide proper care for the child;

(3) The desertion by both parents, as that phrase is defined in §204.3(b) of this chapter, or by the sole or surviving parent;

(4) The disappearance of both parents, as that phrase is defined in § 204.3(b) of this chapter, or of the sole or surviving parent;

(5) The loss from both parents, as that phrase is defined in §204.3(b) of this chapter, or from the sole or surviving parent; or

(6) The separation from both parents, as that phrase is defined in § 204.3(b) of this chapter, or from the sole or surviving parent.

Parent, father, or mother means a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in para

graphs (A) through (E) of section 101(b)(1) of the Act.

(b) Applicability of provisions of section 902 of HRIFA in general. Section 902 of Division A of Pub. L. 105-277, the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA), provides special rules for adjustment of status for certain nationals of Haiti, if they meet the other requirements of HRIFA.

(1) Principal applicants. Section 902(b)(1) of HRIFA defines five categories of principal applicants who may apply for adjustment of status, if the alien was physically present in the United States on December 31, 1995:

(i) An alien who filed for asylum before December 31, 1995;

(ii) An alien who was paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest; or

(iii) An alien who at the time of arrival in the United States and on December 31, 1995, was unmarried and under 21 years of age and who:

(A) Arrived in the United States without parents in the United States and has remained without parents in the United States since his or her arrival;

(B) Became orphaned subsequent to arrival in the United States; or

(C) Was abandoned by parents or guardians prior to April 1, 1998, and has remained abandoned since such abandonment.

(2) Dependents. Section 902(d) of HRIFA provides for certain Haitian nationals to apply for adjustment of status as the spouse, child, or unmarried son or daughter of a principal HRIFA beneficiary, even if the individual would not otherwise be eligible for adjustment under section 902. The eligibility requirements for dependents are described further in paragraph (d) of this section.

(c) Eligibility of principal HRIFA applicants. A Haitian national who is described in paragraph (b)(1) of this section is eligible to apply for adjustment of status under the provisions of section 902 of HRIFA if the alien meets the following requirements:

(1) Physical presence. The alien is physically present in the United States at the time the application is filed;

(2) Proper application. The alien properly files an application for adjustment of status in accordance with this section, including the evidence described in paragraphs (h), (i), (j) and (k) of this section;

(3) Admissibility. The alien is not inadmissible to the United States for permanent residence under any provisions of section 212(a) of the Act, except as provided in paragraph (e) of this section; and

(4) Continuous physical presence. The alien has been physically present in the United States for a continuous period beginning on December 31, 1995, and ending on the date the application for adjustment is granted, except for the following periods of time:

(i) Any period or periods of absence from the United States not exceeding 180 days in the aggregate; and

(ii) Any periods of absence for which the applicant received an Advance Authorization for Parole (Form I-512) prior to his or her departure from the United States, provided the applicant returned to the United States in accordance with the conditions of such Advance Authorization for Parole.

(iii) Any periods of absence from the United States occurring after October 21, 1998, and before July 12, 1999, provided the applicant departed the United States prior to December 31, 1998.

(d) Eligibility of dependents of a principal HRIFA beneficiary. A Haitian national who is the spouse, child, or unmarried son or daughter of a principal beneficiary eligible for adjustment of status under the provisions of HRIFA is eligible to apply for benefits as a dependent, if the dependent alien meets the following requirements:

(1) Physical presence. The alien is physically present in the United States at the time the application is filed;

(2) Proper application. The alien properly files an application for adjustment of status as a dependent in accordance with this section, including the evidence described in paragraphs (h) and (1) of this section;

(3) Admissibility. The alien is not inadmissible to the United States for per

manent residence under any provisions of section 212(a) of the Act, except as provided in paragraph (e) of this section;

(4) Existence of relationship at time of adjustment. The alien's qualifying relationship to the principal beneficiary existed at the time the principal beneficiary was granted adjustment of status and continues to exist at the time the dependent alien is granted adjustment of status; and

(5) Continuous physical presence. If the alien is applying as the unmarried son or unmarried daughter of a principal HRIFA beneficiary, he or she must have been physically present in the United States for a continuous period beginning not later than December 31, 1995, and ending on the date the application for adjustment is granted, as provided in paragraphs (c)(4) and (j) of this section.

(e) Applicability of grounds of inadmissibility contained in section 212(a)—(1) Certain grounds of inadmissibility inapplicable to HRIFA applicants. Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of section 212(a) of the Act are inapplicable to HRIFA principal applicants and their dependents. Accordingly, an applicant for adjustment of status under section 902 of HRIFA need not establish admissibility under those provisions in order to be able to adjust his or her status to that of permanent resident.

(2) Availability of individual waivers. If a HRIFA applicant is inadmissible under any of the other provisions of section 212(a) of the Act for which an immigrant waiver is available, the applicant may apply for one or more of the immigrant waivers of inadmissibility under section 212 of the Act, in accordance with §212.7 of this chapter.

(f) Time for filing of applications—(1) Applications for HRIFA benefits by a principal HRIFA applicant. The application period begins on June 11, 1999. To benefit from the provisions of section 902 of HRIFA, an alien who is applying for adjustment as a principal applicant must properly file an application for adjustment of status before April 1, 2000.

(2) Applications by dependent aliens. The spouse, minor child, or unmarried

son or daughter of an alien who is eligible for adjustment of status as a principal beneficiary under HRIFA may file an application for adjustment of status under this section concurrently with or subsequent to the filing of the application of the principal HRIFA beneficiary. An application filed by a dependent may not be approved prior to approval of the principal's application.

(g) Jurisdiction for filing of applications (1) Filing of applications with the Service. The Service has jurisdiction over all applications for the benefits of section 902 of HRIFA as a principal applicant or as a dependent under this section, except for applications filed by aliens who are in pending immigration proceedings as provided in paragraph (g)(2) of this section. All applications filed with the Service for the benefits of section 902 of HRIFA must be submitted by mail to: USINS Nebraska Service Center, PO Box 87245, Lincoln, NE 68501-7245. After proper filing of the application, the Service will instruct the applicant to appear for fingerprinting as prescribed in § 103.2(e) of this chapter. The Director of the Nebraska Service Center shall have jurisdiction over all applications filed with the Service for adjustment of status under section 902 of HRIFA, unless the Director refers the applicant for a personal interview at a local Service office as provided in paragraph (o)(1) of this section.

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(2) Filing of applications by aliens in pending exclusion, deportation, or moval proceedings. An alien who is in exclusion, deportation, or removal proceedings pending before the Immigration Court or the Board, or who has a pending motion to reopen or motion to reconsider filed with the Immigration Court or the Board on or before May 12, 1999, must apply for HRIFA benefits to the Immigration Court or the Board, as provided in paragraph (p)(1) of this section, rather than to the Service. However, an alien whose proceeding has been administratively closed (see paragraph (p)(4) of this section) may only apply for HRIFA benefits with the Service as provided in paragraph (g)(1) of this section.

(3) Filing of applications with the Service by aliens who are subject to a final order of exclusion, deportation, or re

moval. 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 902 of HRIFA by the Immigration Court or the Board, may only apply for HRIFA benefits with the Service as provided in paragraph (g)(1) of this section. This includes applications for HRIFA benefits filed by aliens who have filed a motion to reopen or motion to reconsider a final order after May 12, 1999.

(i) Stay of final order of exclusion, deportation, or removal. The filing of an application for adjustment under section 902 of HRIFA with the Service shall not stay the execution of such final order unless the applicant has requested and been granted a stay in connection with the HRIFA application. An alien who has filed a HRIFA application with the Service may file an Application for Stay of Removal (Form I246) in accordance with section 241(c)(2) of the Act and § 241.6 of this chapter.

(ii) Grant of stay. Absent evidence of the applicant's statutory ineligibility for adjustment of status under section 902 of HRIFA or significant negative discretionary factors, a Form I-246 filed by a bona fide applicant for adjustment under section 902 of HRIFA shall be approved and the removal of the applicant shall be stayed until such time as the Service has adjudicated the application for adjustment in accordance with this section.

(h) 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 "HRIFA-Principal" or "HRIFADependent" next to that block. Each application must be accompanied by:

(1) Application fee. The fee for Form I485 prescribed in §103.7(b)(1) of this chapter;

(2) Fingerprinting fee. If the applicant is 14 years of age or older, the fee for fingerprinting prescribed in §103.7(b)(1) of this chapter;

(3) Identifying information. (i) A copy of the applicant's birth certificate or other record of birth as provided in paragraph (m) of this section;

(ii) A completed Biographic Information Sheet (Form G-325A), if the applicant is between 14 and 79 years of age; (iii) A report of medical examination, as specified in §245.5 of this chapter; and

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

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

(5) Police clearances. If the applicant is 14 years of age or older, a police clearance from each municipality where the alien has resided for 6 months or longer since arriving in the United States. If there are multiple local law enforcement agencies (e.g., city police and county sheriff) with jurisdiction over the alien's residence, the applicant may obtain a clearance from either agency. If the applicant resides or resided in a State where the State police maintain a compilation of all local arrests and convictions, a statewide clearance is sufficient. If the applicant presents a letter from the local police agencies involved, or other evidence, to the effect that the applicant attempted to obtain such clearance but was unable to do so because of local or State policy, the director or immigration judge having jurisdiction over the application may waive the local police clearance;

(6) Proof of Haitian nationality. If the applicant acquired Haitian nationality other than through birth in Haiti, a copy of the certificate of naturalization or certificate of citizenship issued by the Haitian government; and

(7) Additional supporting evidence. Additional supporting evidence pertaining to the applicant as provided in paragraphs (i) through (1) of this section.

(i) Evidence of presence in the United States on December 31, 1995. An alien seeking HRIFA benefits as a principal applicant must provide with the application evidence establishing the alien's presence in the United States on December 31, 1995. Such evidence may consist of one of the following kinds of documentation:

(1) Form I-94. A photocopy of the Form I-94, Arrival-Departure Record,

issued upon the alien's arrival in the United States;

(2) Form I-122. A photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by the Service on or prior to December 31, 1995, placing the applicant in exclusion proceedings under section 236 of such Act (as in effect prior to April 1, 1997);

(3) Form I-221. A photocopy of the Form I-221, Order to Show Cause, issued by the Service on or prior to December 31, 1995, placing the applicant in deportation proceedings under section 242 or 242A of such Act (as in effect prior to April 1, 1997);

(4) Other Service document. A photocopy of any application or petition for a benefit under the Immigration and Nationality Act filed by or on behalf of the applicant on or prior to December 31, 1995, which establishes his or her presence in the United States, or a fee receipt issue by the Service for such application or petition;

(5) Other government documentation. Other documentation issued by a Federal, State, or local authority provided such other documentation bears the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), was dated at the time of issuance, and bears a date of issuance not later than December 31, 1995. For this purpose, the term Federal, State, or local authority includes any governmental, educational, or administrative function operated by Federal, State, county, or municipal officials. Examples of such other documentation include, but are not limited to:

(i) A State driver's license;

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

(iii) A county or municipal hospital record;

(iv) A public college or public school transcript;

(v) Income tax records;

(vi) A copy of a petition on behalf of the applicant which was submitted to the Service on or before December 31, 1995, and which lists the applicant as being physically present in the United States;