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 be disregarded. For the purpose of section 102 of the Act of October 28, 1977, the date of the alien's "arrival" in the United States shall be the date of initial parole subsequent to March 31, 1975, but prior to January 1, 1979 as an Indochinese refugee under section 212(d)(5) of the Immigration and Nationality Act.

(4) Decision. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. Except as otherwise provided in this subparagraph, no appeal shall lie from the denial of an application by the district director but such denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter, or under Part 236 if the alien is a parolee who meets the conditions specified in subparagraph (1) of this paragraph. An application for adjustment of status under section 245 of the Act as a preference or nonpreference alien shall not be approved until an immigrant visa number has been allocated by the Department of State. An appeal shall lie from the decision of the district director on an application for the benefits of section 101 or 104 of the Act of October 28, 1977; if the application is denied, the applicant shall be advised of his right to appeal in accordance with the provisions of Part 103 of this chapter. No fee shall be required for filing such appeal.

(b) Application by nonpreference alien seeking adjustment of status for purpose of engaging in gainful employment-(1) Alien whose occupation is included in Schedule A (20 CFR Part 656). An applicant for adjustment of status as a nonpreference alien under section 245 of the Act who is subject to the labor certification requirement of section 212(a)(14) of the Act must submit Statement of Qualifications of Alien form with his application, if he is qualified for and will be engaged in an occupation currently listed in Schedule A (20 CFR Part 656). The Statement of Qualifications of Alien form must be executed in accordance

with the instructions for completion of that form, and must be accompanied by the evidence of the applicant's qualifications specified in the instructions attached to the application for adjustment of status. The other documents specified in § 245.2(a) must also be submitted in support of the applica tion for adjustment of status. Determi nation concerning certification under section 212(a)(14) of the Act will be made in accordance with the pertinent provisions of § 204.2(e)(4) of this chap ter.

(2) Other nonpreference aliens who will engage in gainful employment. Ar applicant for adjustment of status as a nonpreference alien under section 24 of the Act, who is subject to the labor certification requirement of sectior 212(a)(14) of the Act and whose occu pation is not listed in Schedule A must submit the certification with his application. In such case the appli cant's employer or prospective employer makes the application for the certification to the local State Employment Service.

(c) Application under section 2 of the Act of November 2, 1966. An application by a native or citizen of Cuba or by his spouse or child residing in the United States with him, who was law-a fully admitted to the United States for permanent residence prior to November 2, 1966, and who desires such admission to be recorded as of an earlier date pursuant to section 2 of the Act of November 2, 1966, shall be made on Form I-485A. The application shall be accompanied by the Alien Registration Receipt Card, Form I-151 or I-551, issued to the applicant in connection with his lawful admission for permanent residence, and shall be submitted to the district director having jurisdiction over the applicant's place of residence in the United States. The decision on the application shall be made by the district director. No appeal shall lie from his decision. If the application is approved, the applicant will be furnished with a replacement of his Form I-151 or I-551 bearing the new date as of which the lawful admission for permanent residence has been recorded.

(d) Application under section 214(d). An application for permanent resident

status pursuant to section 214(d) of the Act shall be filed on Form I-485 with the district director having jurisdiction over the applicant's place of residence. A separate application shall be filed by each applicant. If the application is approved, the district director shall record the lawful admission of the applicant as of the date of approval. The fee previously paid for filing the application shall be considered payment of the required visa fees, as of the date of the approval of the application. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. No appeal shall lie from the denial of an application by the district director but such denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter.

(e) Application under section 103 of the Act of October 28, 1977. An application by a native or citizen of Vietnam, Laos, or Cambodia who was lawfully admitted to the United States for permanent residence under the provisions of the Immigration and Nationality Act subsequent to March 31, 1975 but prior to October 28, 1977, and who desires such admission to be recorded as of an earlier date pursuant to section 103 of the Act of October 28, 1977, shall be made on Form I-485C. The application shall be submitted to the district director having jurisdiction over the applicant's place of residence in the United States. The decision on the application shall be made by the district director. 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. No fee shall be required either for the filing of the application or for the filing of the appeal. If the application is approved, the applicant, upon surrender of his Form I-551, will be furnished with a replacement thereof bearing the new date as of which the lawful admission for permanent residence has been recorded.

(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 15235, Dec. 6, 1966; 33 FR 17136, Nov. 19, 1968; 35 FR 5960, Apr. 10, 1970; 36 FR 18784, Sept. 22, 1971; 36 FR 23619, Dec. 11, 1971; 38 FR 11340, May 7, 1973; 38 FR 33062, Nov. 30, 1973; 41 FR 55850, Dec. 12, 1976; 43 FR 18644, May 2, 1978; 45 FR 32657, May 19, 1980]

§ 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 FR 14779, Nov. 30, 1965, as amended at 31 FR 6196, Apr. 22, 1966; 32 FR 9632, July 4, 1967]

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

(a) Adjustment of status of aliens within the proviso to section 203(a)(7)

of the Act. The proviso to section 203(a)(7) of the Act was repealed by the Refugee Act of 1980, effective April 1, 1980. Adjustment thereunder is therefore no longer possible. However, any properly filed adjustment application under that proviso pending on March 31, 1980, may be adjudicated as an application under section 209(b) of the Act and Part 209 of this chapter, and may be approved if it satisfies all of the conditions of that section and part. For this purpose, the applicant found to be a refugee within the meaning of section 101(a)(42)(A) of the Act (or the spouse or child of such refugee), who had not earlier been granted asylum, may be deemed to have been granted asylum as of the date the adjustment application was filed.

(b) Adjustment of status of aliens under section 209(b) of the Act. For the regulation affecting adjustment of aliens under this section of the Act, see Part 209 of the chapter.

(Secs. 103, 209, 245; Stat. 105; 8 U.S.C. 1103, 1159, 1255)

[45 FR 37396, June 2, 1980]

§ 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 FR 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 selected civil surgeon, whose report setting forth the findings of the mental and physical condition of the applicant shall be incorporated into the record. Medical examination of an applicant for adjustment of status under the provisions of the Act of October 28, 1977, who was paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act, and who was medically examined when processed for parole by a Service officer in the United States or abroad, shall not be required unless medical grounds for exclusion existed when the applicant was processed for parole or such grounds presently appear to

exist. Any applicant certified und paragraphs (1), (2), (3), (4), or (5) section 212(a) of the Act may appe to a Board of Medical Officers of th U.S. Public Health Service as provid in section 234 of the Act and Part 2 of this chapter.

(Title I of Pub. L. 95-145 enacted Oct. 2 1977 (91 Stat. 1223), sec. 103 of the Imm gration and Nationality Act (8 U.S.C. 110 Interpret or apply secs. 101, 212, 242 and 2 (8 U.S.C. 1101, 1182, 1252 and 1255)) [38 FR 33062, Nov. 30, 1973, as amended 43 FR 18645, May 2, 1978]

§ 245.7 Interview.

Each applicant for adjustment status under this part shall be inte viewed by an immigration officer. T interview may be waived in the case a child under the age of 14, or whe the applicant is clearly ineligib under section 245(c) of the Act § 245.1.

(Pub. L. 94-571 enacted October 20, 197 (90 Stat. 2703) and sec. 103 of the Immigra tion and Nationality Act (8 U.S.C. 1103). In terpret or apply secs. 101, 201, 202, 203, 204 205, 211, 212, and 245. (8 U.S.C. 1101, 1151 1152, 1153, 1154, 1155, 1181, 1182, and 1255) [41 FR 55851, Dec. 23, 1976]

ment 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 of 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 FR 6737, June 29, 1963, as amended at 37 FR 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 re

scind 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 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.

§ 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 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.

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 proIvide that the matter be referred 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.

to

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 jurisIdiction 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.