§ 243.7 Special care and attention for aliens.

When a transportation line is responsible for the expenses of an alien's deportation, the alien shall be delivered to the master, commanding officer, or the officer in charge of the vessel or aircraft on which the alien will be deported, who shall be given Forms I-287, I-287A, and I-287B. The reverse of Form I-287A shall be signed by the officer of the vessel or aircraft to whom the alien has been delivered and immediately returned to the immigration officer effecting delivery. Form I-287B shall be retained by the receiving officer and subsequently filled out by the agents or persons therein designated and returned by mail to the district director named on the form. The transportation line shall at its own expense forward the alien from the foreign port of disembarkation to the final destination specified on Form I-287. The special care and attention shall be continued to such final destination, except when the foreign public officers decline to allow such attendant to proceed and themselves take charge of the alien, in which case this fact shall be recorded by the transportation line on the reVerse of Form I-287B. If the transporation line fails, refuses, or neglects to provide the necessary special care and attention or comply with the directions of Form I-287, the district director shall thereafter and without notice employ suitable persons, at the expense of the transportation line, and effect such deportation.

$243.8 Imposition of sanctions.

The provisions of section 243(g) of the Act have been applied to residents of the Union of Soviet Socialist Republics, Czechoslovakia, and Hungary; those provisions do not apply to an alien who is residing in Estonia, Latvia, or Lithuania who is not a national, citizen, or subject of the Union of Soviet Socialist Republics. The sanctions imposed on residents of the Union of Soviet Socialist Republics, Czechoslovakia, and Hungary pursuant to section 243(g) may be waived in an individual case for the beneficiary of a petition accorded a status under section 201(b) or section 203(a) of the

Act. The sanctions also may be waived upon an individual request by the Department of State in behalf of a visa applicant. Upon approval of a visa petition or upon an individual request by the Department of State in behalf of a visa applicant, the district director will determine whether sanctions shall be waived. However, the regional commissioner or the Deputy Commissioner may direct that any case or class of cases be referred to him for such determination. The consular officer shall be notified of any determination made with respect to the waiver of sanctions if a visa petition is approved. If the sanctions are not waived, the notice informing the petitioner that the petition has been approved shall also notify him that the sanctions imposed by section 243(g) of the Act have not been waived.

[31 FR 11744, Sept. 8, 1966, as amended at 32 FR 9632, July 4, 1967; 40 FR 30470, July 21, 1975]

PART 244-SUSPENSION OF DEPORTATION AND VOLUNTARY DEPARTURE

Sec.

244.1 Application.

244.2 Extension of time to depart.

§ 244.1 Application.

Pursuant to Part 242 of this chapter and section 244 of the Act an immigration judge may authorize the suspension of an alien's deportation; or, if the alien establishes that he/she is willing and has the immediate means with which to depart promptly from the United States, an immigration judge may authorize the alien to depart voluntarily from the United States in lieu of deportation within such time as may be specified by the immigration judge when first authorizing voluntary departure, and under such conditions as the district director shall direct. An application for suspension of deportation shall be made on Form I-256A.

(Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interpret or apply secs. 242, 244, 66 Stat. 208, 214; 8 U.S.C. 1252, 1254)

[46 FR 25598, May 8, 1981]

§ 244.2 Extension of time to depart.

Authority to extend the time within which to depart voluntarily specified initially by a special inquiry officer or the Board is within the sole jurisdiction of the district director. A request by an alien for an extension of time within which to depart voluntarily shall be filed with the district director having jurisdiction over the alien's place of residence. Written notice of the district director's decision shall be served upon the alien, and no appeal may be taken therefrom.

(Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interpret or apply secs. 242, 244, 66 Stat. 208, 214; 8 U.S.C. 1252, 1254)

[33 FR 2381, Jan. 31, 1968]

(a) General. An alien who entered the United States in transit without visa; or 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 who was not admitted or paroled following inspection by an immigration officer is not eligible for the benefits of section 245 of the Act. Any alien (other than an immediate relative as defined in section 201(b) of the Act) who continues in or accepts any unauthorized employment after January 1, 1977 and prior to filing an application for adjustment of status is not eligible for the benefits of section 245

of the Act. An alien who has been all cated an immigrant visa number an who entered the United States cond tionally pursuant to section 203(a)(' of the Act, is not eligible for the ben fits of section 245 of the Act unless h qualifies as an immediate relative pu suant to section 201(b) of the Act o the basis of a visa petition approved his behalf.

(b) Exchange aliens. Pursuant to se tion 212(e) of the Act, an alien wh has or has had the status of an e change alien or of a nonimmigra under section 101(a)(15)(J) of the A and who is subject to the foreign res dence requirement of section 212(e) the Act is not eligible for status as permanent resident under sectio 214(d) of the Act, section 245 of th Act, section 13 of the Act of Septen ber 11, 1957, or section 1 of the Act o November 2, 1966, unless he has com plied with the foreign residence re quirement of that section or has bee granted a waiver thereof.

(c) Officials and treaty aliens. 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 which an occupational status 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, section 13 of the Act of September 11, 1957, section 1 of the Act of November 2, 1966, or section 101 or 104 of the Act of October 28, 1977, 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.

(d) Immediate relatives under section 201(b) and preference aliens

under section 203(a)(1) through 203(a)(6). Any alien applicant who claims immediate relative status under section 201(b) or preference status under sections 203(a)(1) through 203(a)(6) of the Act is not eligible for the benefits of section 245 of the Act unless he/she is the beneficiary of a valid unexpired visa petition filed in accordance with Part 204 of this chapter and approved to accord him/her such status.

(e) Nonpreference aliens. An applicant who is a nonpreference alien seeking adjustment of status for the purpose of engaging in gainful employment in the United States, and who is not exempted under § 212.8(b) of this chapter from the labor certification

requirement of section 212a (a)(14) of the Act, is ineligible for the benefits of section 245 of the Act unless an individual labor certification is issued by the Secretary of Labor or his designated representative, unless the applicant establishes that he is within Schedule A (20 CFR Part 656).

or

(f) Concurrent applications to overcome exclusionary grounds. Except as provided in Parts 235 and 249 of this chapter, an application under this part shall be the sole method of requesting the exercise of discretion under sections 212 (g), (h), and (i) of the Act, insofar as they relate to the excludability of an alien in the United States. An applicant for adjustment under this part may also apply for the benefits of section 212(c) of the Act, for permission to reapply after deportation or removal and for the benefits of section 212(a)(28)(1)(ii) of the Act. No fee shall be required for the filing of an application to overcome exclusionary grounds of the Act filed concurrently with an application for adjustment of status filed pursuant to the provisions of the Act of October 28, 1977, and of

this part.

(g) Availability of immigrant visas under section 245 and priority dates—. (1) Availability of immigrant visas under section 245. An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him at the time the application is filed. If the applicant is a preference or nonpreference

alien, the current Department of State Visa Office Bulletin on Availability of Immigrant Visa Numbers will be conIsulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 if the preference or nonpreference category applicant has a priority date on the waiting list which is no later than the date shown in the Bulletin or the Bulletin shows that numbers for visa applicants in his category are current. Information as to the immediate availability of an immigrant visa may be obtained at any Service office.

(2) Priority dates. The priority date of an applicant who is seeking the allotment of an immigrant visa number under one of the first six preference classes specified in section 203(a) of the Act by virtue of a valid visa petition approved in his behalf shall be fixed by the date on which such approved petition was filed. The priority date of an applicant who is seeking the allotment of a nonpreference immigrant visa number shall be fixed by the following factors, whichever is the earliest: (i) The priority date accorded the applicant by the consular officer as a nonpreference immigrant; (ii) the date on which Form I-485 is filed if the applicant establishes that he is qualified for and will be engaged in an occupation currently listed in Schedule A (20 CFR Part 656), or that the provisions of section 212(a)(14) of the Act do not apply to him; or (iii) the date on which an approved valid third or sixth preference visa petition in his behalf was filed; or (iv) the date an application for certification based on a job offer was accepted for processing by any office within the employment service system of the Department of Labor, provided the certification applied for was issued. A nonpreference priority date, once established, is retained by the alien even though at the time a visa number becomes available and he is allotted a nonpreference visa number he meets the provisions of section 212(a)(14) of the Act by some means other than that by which he originally established entitlement to the nonpreference priority date.

(h) Indochinese refugee. An alien who ordered, assisted, or otherwise participated in the persecution of any person because of race, religion, or political opinion is not eligible for the benefits under any provisions of the Act of October 28, 1977. An alien is not eligible for the benefits of any provisions of the Act of October 28, 1977, unless he has been physically present in the United States for at least one year subsequent to March 31, 1975 and prior to the date of filing the application for adjustment of status. An alien is not eligible for the benefits of section 101 or 103 of the Act of October 28, 1977, unless he is a native or citizen of Vietnam, Laos, or Cambodia who was paroled into the United States as a refugee from those countries under section 212(d)(5) of the Immigration and Nationality Act subsequent to March 31, 1975, but prior to January 1, 1979: or who was inspected and admitted or paroled into the United States on or before March 31, 1975, and was physically present in the United States on March 31, 1975.

(Title I of Pub. L. 95-145 enacted Oct. 28, 1977 (91 Stat. 1223), sec. 103 of the Immigration and Nationality Act (8 U.S.C. 1103). Interpret or apply secs. 101, 212, 242 and 245 (8 U.S.C. 1101, 1182, 1252 and 1255))

[30 FR 14778, Nov. 30, 1965, as amended at 31 FR 535; Jan. 15, 1966; 31 FR 2373, Feb. 4, 1966; 31 FR 15235, Dec. 6, 1966; 32 FR 9632, July 4, 1967; 35 FR 5960, Apr. 10, 1970; 41 FR 55850, Dec. 29, 1976; 43 FR 18644, May 2, 1978; 45 FR 37396, June 2, 1980; 45 FR 69429, Oct. 21, 1980; 46 FR 25598, May 8, 1981]

§ 245.2 Application.

(a) General-(1) Jurisdiction. An alien who believes he meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966, or section 101 or 104 of the Act of October 28, 1977, and § 245.1 of this chapter shall apply to the district director having jurisdiction over his place of residence. After an alien has been served with an order to show cause or warrant of arrest, his application for adjustment of status under section 245 of the Act or section 1 of the Act of November 2, 1966 or section 101 or 104 of the Act of October 28, 1977, shall be made and considered only in proceedings under Part

242 of this chapter. An adjustment application by an alien paroled under section 212(d)(5) of the Act, which has been denied by the district director, may be renewed in exclusion proceedings under section 236 of the Act only under the following two conditions: First, the denied application must have been properly filed subsequent to the applicant's earlier inspection and admission to the United States; second, the applicant's later absence from and return to the United States must have been under the terms of an advance parole authorization on Form I-512 granted to permit the applicant's c absence and return to pursue the previously filed adjustment application.

en

(2) Filing application. Before an ap- th plication for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available only upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If a visa petition is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing only if approval of the petition when reached for adjudication would make a visa immediately available at the time of filing of the adjustment application. If such petition is subsequently approved, the date of filing the adjustment application shall be deemed the date on which the accompanying petition was filed. If the applicant is claiming that the provisions of section 212(a)(14) of the Act do not apply to him because he is within the exemption described in § 212.8(b)(4) of this chapter, the application shall not be considered properly filed unless it is accompanied by Form I-526. An application for adjustment of status under section 245 of the Act as a nonpreference alien shall not be considered properly filed unless the applicant establishes that he is entitled to a priority date for allotment of a nonpreference visa number in accordance with § 245.1(g)(2) and that a visa is immediately available within the contemplation of § 245.1(g)(1). A nonpreference alien for whom a visa is not immediately available may not file

३

an application for adjustment of status, but may seek to establish a nonpreference priority date through an application for an immigrant visa at a United States consular office. The application under section 245 of the Act shall be made on Form I-485, while the application under section 1 of the Act of November 2, 1966, shall be made on Form I-485A, and the application under section 101 or 104 of the Act of October 28, 1977, shall be made on Form I-485C. A separate application shall be filed by each applicant. Each application shall be accompanied by executed Form G-325A, if the applicant has reached his 14th birthday, which shall be considered as part of the application. An application under this part shall be accompanied by the documents specified in the instructions which are attached to the application. No fee shall be required for filing an application for the benefits of the Act of November 2, 1966 or the Act of October 28, 1977. An application for adjustment of status under section 101 or 104 of the Act of October 28, 1977, shall not be considered properly filed for acceptance and processing unless filed on or before October 28, 1983. An alien is ineligible for the benefits of the Act of October 28, 1977, unless he has been physically present in the United States for at

least two years. An applicant is considered to have been physically present in the United States for at least two years within the meaning of the Act of October 28, 1977, only if he has been actually physically present in the United States for a period or periods in the aggregate of at least two years subsequent to March 31, 1975 and prior to the date of filing the application. An application for adjustment of status under the Act of October 28, 1977, by the spouse or child of a native or citizen of Vietnam, Laos or Cambodia shall not be processed under the provisions of section 104 of that Act unless the applicant is ineligible for adjustment under the provisions of section 101 of that Act. For the purpose of section 104 of the Act of October 28, 1977, a spouse or child, regardless of nationality, of a native or citizen of Vietnam, Laos or Cambodia shall, upon approval of an application

for adjustment of status, be accorded permanent residence as of the date accorded the alien through whom such spouse or child derives eligibility under section 104 or the date of such spouse or child's arrival in the United States, whichever is later.

(3) Departure. The departure from the United States of an applicant for permanent resident status under section 245 of the Act or this part who is under deportation proceedings shall be deemed an abandonment of his application constituting grounds for termination thereof if the deportation proceeding is terminated by reason of the departure. The departure of an applicant who is not under deportation proceedings shall be deemed an abandonment of his application constituting grounds for termination thereof unless he had previously been granted permission by the Service for such absence and he was thereafter inspected upon his return, or it is determined by the officer having jurisdiction over his application that his departure was unintended or innocent and casual, that his absence was brief, and that he was inspected upon his return. If the determination reached is favorable to the applicant, the application shall be adjudicated without regard to the departure and absence. In determining the date of "last arrival" within the meaning of section 1 of the Act of November 2, 1966, in the case of an applicant who was inspected and admitted or paroled into the United States subsequent to January 1, 1959, and who subsequently departed temporarily with no intention of abandoning his residence in the United States and was readmitted or paroled into the United States upon his return, the date of the applicant's arrival after such temporary absence or absences shall not be included. In determining the date of the alien's "arrival" in the United States within the meaning of section 102 of the Act of October 28, 1977, in the case of an applicant who was physically present in the United States on March 31, 1975 or who was paroled into the United States subsequent to March 31, 1975, but prior to January 1, 1979, and who subsequently departed temporarily with no intention of abandoning his residence in the

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