Federal Register: December 12, 2008 (Volume 73, Number 240)

DOCID: fr12de08-3 FR Doc E8-29277

DEPARTMENT OF HOMELAND SECURITY

Homeland Security Department

CFR Citation: 8 CFR Parts 103, 212, 214, 245 and 299

RIN ID: RIN 1615-AA60

CIS ID: [CIS No. 2134-01; DHS Docket No. USCIS-2006-0067]

NOTICE: RULES

DOCID: fr12de08-3

DOCUMENT ACTION: Interim final rule with request for comments.

SUBJECT CATEGORY:

Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status

DATES: Effective date: This interim rule is effective January 12, 2009.

Comment date: Written comments must be submitted on or before February 10, 2009 in order to be assured of consideration.

DOCUMENT SUMMARY:

The Department of Homeland Security is amending its regulations to permit aliens in lawful T or U nonimmigrant status to apply for adjustment of status to lawful permanent resident. T nonimmigrant status is available to aliens who are victims of a severe form of trafficking in persons and who are assisting law enforcement in the investigation or prosecution of the acts of trafficking. U nonimmigrant status is available to aliens who are victims of certain crimes and are being helpful to the investigation or prosecution of those crimes. This rule provides that family members of a principal T or U nonimmigrant granted or seeking adjustment of status may also apply for adjustment of status to lawful permanent resident. This rule also provides for adjustment of status or approval of an immigrant petition for certain family members of U applicants who were never admitted to the United States in U nonimmigrant status.

SUMMARY:

Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status,

SUPPLEMENTAL INFORMATION

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to U.S. Citizenship and Immigration Services in developing these procedures will refer to a specific portion of the rule, suggest changes to the regulation text, discuss the reason for the recommended change, and include data, information, or authority that support the recommended change.

Instructions: All submissions received should include the agency name and Docket No. USCIS20060067 for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including email addresses and any other personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529 during normal business hours by contacting the information contact listed above.

II. Background and Legislative Authority

This rule implements the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Public Law No. 106386, 114 Stat. 1464 (Oct. 28, 2000), as amended, to permit aliens in lawful T or U nonimmigrant status to apply for adjustment of status to lawful permanent resident.

Aliens who are victims of a severe form of trafficking in persons and who have complied with any reasonable requests for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking, or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime, may be admitted to the United States under a ``T'' nonimmigrant classification or ``T visa.'' See Immigration and Nationality Act of 1952, as amended (INA or Act), sections 101(a)(15)(T) and 214(o), 8 U.S.C. 1101(a)(15)(T) and 1184(o). The Department of Justice (DOJ), through the former Immigration and Naturalization Service (INS), published regulations implementing the ``T'' nonimmigrant provisions in 2002. 67 FR 4784 (Jan. 31, 2002). Those regulations became effective on March 4, 2002.

Aliens who are victims of specified criminal activity, including trafficking, who assist government officials in investigating or prosecuting those crimes may be admitted to the United States under a ``U'' nonimmigrant classification or ``U visa.'' See INA sections 101(a)(15)(U) and 214(p); 8 U.S.C. 1101(a)(15)(U) and 1184(p). DHS published regulations implementing the provisions creating the U nonimmigrant classification on September 17, 2007. 72 FR 53014. The ``U'' regulations became effective October 17, 2007.

This interim final rule implements the provisions of the Act permitting T and U nonimmigrant aliens to apply for an adjustment status to that of lawful permanent resident. See INA sections 245(l), (m); 8 U.S.C. 1255(l), (m). This rule implements the eligibility and application requirements for such aliens to seek adjustment of status to lawful permanent resident.
III. Aliens in T Nonimmigrant Status Seeking Adjustment of Status Under Section 245(l) of the Act
A. Eligibility Requirements for T Nonimmigrants Seeking Adjustment of Status

This rule promulgates a new 8 CFR 245.23 to list the eligibility requirements for adjustment of status for T1 nonimmigrants and their family members in lawful T2, T3, T4, and T5 status under section 245(l) of the Act, 8 U.S.C. 1255(l).

1. Admitted as a T Nonimmigrant

All applicants for adjustment of status under section 245(l) of the Act must have been lawfully admitted to the United States as a T nonimmigrant and must continue to hold such status at the time of application. New 8 CFR 245.23(a)(2); 245.23(b)(2).

2. Physical Presence for Requisite Period

T1 nonimmigrant applicants for adjustment of status under section 245(l) of the Act must have been physically present in the United States for either: (1) A continuous period of at least 3 years since the date of admission as a T1 nonimmigrant; or (2) a continuous period during the investigation or prosecution of the acts of trafficking, provided that the Attorney General has determined the investigation or prosecution is complete, whichever period is less. New 8 CFR 245.23(a)(3); see INA sec. 245(l)(1)(A); 8 U.S.C. 1255(l)(1)(A). With respect to the requisite continuous physical presence period, this rule provides that an applicant's date of admission as a T1 nonimmigrant is the date that the applicant was first admitted as a T1 nonimmigrant. New 8 CFR 245.23(a)(3). For example, if the applicant traveled outside the United States after being admitted as a T1 nonimmigrant and reentered using an advance parole document issued under 8 CFR 245.2(a)(4)(ii)(B), the date that the applicant was first admitted as a T1 nonimmigrant will be the date of admission used by USCIS for determining whether the applicant has satisfied the physical presence requirement, regardless of how the applicant's Form I94 ``Arrival Departure Record'' is annotated upon his or her reentry (e.g., as ``T nonimmigrant'' or ``parolee''). New 8 CFR 245.23(a)(3);

245.23(e)(2)(i).

However, this rule also provides that an applicant who travels outside of the United States for a single period in excess of 90 days or 180 days in the aggregate will not maintain the continuous physical presence required to establish eligibility for adjustment. New 8 CFR 245.23(a)(3); see INA sec. 245(l)(3), 8 U.S.C. 1255(l)(3). Unlike for U1 nonimmigrants, the Act does not permit T1 nonimmigrants to exceed the 90day or 180day limitation to assist in an investigation or prosecution or pursuant to an official certification justifying the excessive absence. Compare INA sec. 245(l)(3), 8 U.S.C. 1255(l)(3), with INA sec. 245(m)(2), 8 U.S.C. 1255(m)(2).

3. Admissible at Time of Adjustment

All applicants for adjustment of status under section 245(l) of the Act must be admissible to the United States under the Act, or otherwise have been granted a waiver by USCIS of any applicable ground of inadmissibility, at the time of
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examination for adjustment. New 8 CFR 245.23(a)(4), 245.23(b)(4), 245.23(c)(2) and (3); see INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2); INA sec. 212(a), 8 U.S.C. 1182(a) (listing grounds of inadmissibility and available waivers).

4. Good Moral Character

T1 nonimmigrant applicants for adjustment of status under section 245(l) of the Act must establish that they have been persons of good moral character since first being lawfully admitted as a T1 nonimmigrant and until USCIS completes the adjudication of their applications for adjustment of status. New 8 CFR 245.23(a)(5); see INA sec. 245(l)(1)(B), 8 U.S.C. 1255(l)(1)(B). However, section 101(f) of the Act, 8 U.S.C. 1101(f), precludes establishment of good moral character if, ``during the period for which good moral character is required to be established,'' an applicant falls into certain enumerated categories. The list of enumerated categories, however, is not exclusive. Section 101(f) of the Act also provides that persons who do not fall within any of the enumerated categories may also be found to lack good moral character.

Section 101(f)(3) of the Act specifically bars aliens who have engaged in prostitution or commercialized vice (described in section 212(a)(2)(D) of the Act, 8 U.S.C. 1182(a)(2)(D)), from establishing good moral character ``during the period for which good moral character is required to be established.'' Id. The period for which good moral character must be established under section 212(a)(2)(D) of the Act is 10 years from the date of application, but the period for which good moral character must be established under section 245(l) of the Act is a continuous period of at least 3 years since the date of admission or during the period of investigation or prosecution of the acts of trafficking, whichever period of time is less. The interplay of these provisions creates ambiguity and requires interpretation. After considering the necessary interplay between section 101(f)(3) of the Act, the 10year temporal scope of section 212(a)(2)(D) of the Act, and the more limited period during which good moral character must be shown for purposes of adjustment of status under section 245(l) of the Act, USCIS believes, based on the purpose and history of the statute, that the more limited period is applicable. For example, if an applicant engaged in prostitution or commercialized vice after he or she was first lawfully admitted as a T1 nonimmigrant, USCIS will consider the applicant to be statutorily precluded under section 101(f)(3) of the Act from establishing that he or she is a person of good moral character. If, on the other hand, the applicant engaged in prostitution or commercialized vice before he or she was first lawfully admitted as a T1 nonimmigrant (which in many cases will be related to the trafficking of that individual), USCIS will not consider the applicant to be statutorily precluded under section 101(f)(3) of the Act from establishing that he or she is a person of good moral character because the applicant's activities did not occur during the period for which good moral character is required to be established for purposes of section 245(l) of the Act. This interpretation is consistent with the primary goal of the statute, which is to provide humanitarian assistance to victims who are assisting law enforcement in the investigation or prosecution of their traffickers. In construing the interplay between the relevant statutory provisions, the proper course is to adopt that sense of words which best harmonizes with the context, and then promotes in the fullest manner the policy and objects of Congress. United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396 (1868); see generally 2A C. Sands, Sutherland on Statutory Construction sec. 46.05 (rev. 7th ed. 2008). For example, in cases in which an applicant was forced into sexual slavery or prostitution prior to being granted T1 nonimmigrant status, it would be contrary to the purpose of the statute to prevent the applicant from showing good moral character for purposes of adjusting status to lawful permanent resident because he or she had engaged in prostitution within 10 years of the date of the application for adjustment of status, but before he or she was granted T1 nonimmigrant status.

An applicant who is under 14 years of age is generally presumed to be a person of good moral character and is not required to submit evidence of good moral character. However, if there is reason to believe that an applicant who is under 14 years of age may lack good moral character, USCIS may require evidence of good moral character. New 8 CFR 245.23(g)(4).

5. Assistance in the Investigation or Prosecution

T1 nonimmigrant applicants for adjustment of status under section 245(l) of the Act must establish either (i) that during the requisite period of continuous physical presence they have complied with any reasonable request for assistance in an ongoing Federal, State, or local investigation or prosecution of the acts of trafficking, as defined in 8 CFR 214.11(a), by submitting a document issued by the Attorney General or his designee certifying that he or she has complied with any reasonable requests for assistance (new 8 CFR 245.23(d), 245.23(f)(1)), or (ii) that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States (new 8 CFR 245.23(d), 245.23(f)(2)).\1\ See INA sec. 245(l)(1)(C), 8 U.S.C. 1255(l)(1)(C).
\1\ Section 245(l)(1)(C)(i) of the Act requires the Attorney General to determine whether T1 nonimmigrant applicants have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking. This rule does not address the Attorney General's authority to adjust status under section 245(l)(1)(C)(i) of the Act.

Although the T nonimmigrant provisions at section 101(a)(15)(T) of the Act, 8 U.S.C. 1101(a)(15)(T), exempt children under the age of 18 from the requirement to comply with reasonable requests for assistance, no similar agerelated exemption is included in the adjustment provisions contained in section 245(l) of the Act, 8 U.S.C. 1255(l). Accordingly, this rule provides that to establish eligibility for adjustment of status, T1 principal applicants under the age of 18 must either show that they have, since being lawfully admitted as a T nonimmigrant, complied with any reasonable request for assistance in the investigation or prosecution of the acts of trafficking, or meet the alternative ``extreme hardship'' requirement of section 245(l)(1)(C)(ii) of the Act. New 8 CFR 245.23(a)(6)(ii). When evaluating the reasonableness of a request for assistance made to a minor since admission as a T nonimmigrant, USCIS will consider the previous application of the exemption at section
101(a)(15)(T)(i)(III)(bb) of the Act.

6. Extreme Hardship Involving Unusual and Severe Harm

As noted above, section 245(l)(1)(C) of the Act, 8 U.S.C. 1255(l)(1)(C), permits T1 applicants for adjustment of status the alternative of establishing they would suffer extreme hardship involving unusual and severe harm upon removal, in lieu of establishing assistance in the investigation or prosecution. This rule utilizes existing extreme hardship standards set forth at 8 CFR 214.11(i), which were established in the January 31, 2002, interim T nonimmigrant status rule. New 8 CFR 245.23(a)(6)(ii), 245.23(f)(2). These standards provide that extreme hardship involving unusual and severe harm may not be based upon current or future economic detriment, or the lack of or disruption to social or economic
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opportunities. Both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons may be considered. Factors such as serious physical or mental illness of the applicant that necessitates medical or psychological attention not reasonably available in the foreign country, the nature and extent of the physical and psychological consequences of severe forms of trafficking in persons, and the likelihood that the trafficker or another acting on behalf of the trafficker in the foreign country would severely harm the applicant may be relevant to such a determination.
B. Application Procedures for T Nonimmigrants Seeking Adjustment of Status

This rule clarifies that the generally applicable adjustment of status provisions in 8 CFR 245.1 and 245.2 do not apply to applications for adjustment of status under the new 8 CFR 245.23. The adjustment provisions contained in section 245(l) of the Act, 8 U.S.C. 1255(l), are standalone provisions and not simply a variation on the general adjustment rules contained in section 245(a) of the Act, 8 U.S.C. 1255(a). New 8 CFR 245.23(k).

1. Filing the Application To Request Adjustment of Status

This rule requires that each applicant for adjustment of status under section 245(l) of the Act, 8 U.S.C. 1255(l), submit a complete application to USCIS: Form I485, Application to Register Permanent Residence or Adjust Status, filed in accordance with the form instructions; applicable fees or application for a fee waiver; and any additional evidence to fully support the application. New 8 CFR 245.23(a)(1), 245.23(b)(3), 245.23(e). Derivative T nonimmigrants may not submit an application for adjustment of status before the principal T1 alien files an application for adjustment of status. New 8 CFR 245.23(b)(1).

2. Timely Filing

Aliens who properly apply for adjustment of status in accordance with 8 CFR 245.23 shall remain eligible for adjustment of status. New 8 CFR 214.11(p)(2). T nonimmigrants who fail to apply for adjustment of status during the prescribed period will lose T nonimmigrant status at the end of the 4year period unless that status is extended beyond 4 years because a Federal, State, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking certifies that the presence of the alien in the United States is necessary to assist in the investigation or prosecution of such activity. New 8 CFR 214.11(p)(1); see INA sec. 214(o)(7)(B), 8 U.S.C. 1184(o)(7)(B).

In 2006, Congress altered several key aspects of the T nonimmigrant provisions and the related adjustment of status requirements, necessitating changes to 8 CFR 214.11(p). Congress extended the duration of status for a T nonimmigrant from 3 to 4 years and made T nonimmigrant status renewable beyond the 4year maximum duration based on a certification of law enforcement necessity. Public Law No. 109 162, sec. 821(a), 119 Stat. 2960 (Jan. 5, 2006) (amending INA sec. 214(o)(7), 8 U.S.C. 1184(o)(7)). Without such renewal, however, the statute is clear that T nonimmigrant status may not extend beyond 4 years even if the individual has properly applied for adjustment of status.

This rule provides a transition rule for those T nonimmigrants who accrued 4 years in status prior to promulgation of this rule. Section 214(o)(7) of the Act, 8 U.S.C. 1184(o)(7), prescribes a maximum duration in T nonimmigrant status of 4 years, unless the T nonimmigrant receives a law enforcement certification stating that the T nonimmigrant's presence is necessary to assist in the investigation or prosecution. Therefore, T nonimmigrants who already accrued 4 years in status might not continue to hold such status at the time of application for adjustment of status and would otherwise be ineligible for adjustment of status. USCIS is therefore creating a transition rule to allow these aliens, if otherwise eligible, to adjust status if they file a complete application within 90 days of promulgation of this rule. New 8 CFR 245.23(a)(2)(ii).

Congress also allowed certain applicants to apply for adjustment of status before having accrued 3 years of continuous physical presence in valid T nonimmigrant status. Public Law No. 109162, sec. 803(a)(1)(B) (amending INA sec. 245(l)(1)(A), 8 U.S.C. 1255(l)(1)(A)). This rule revises 8 CFR 214.11(p)(2) to implement the statutory changes.

Applicants for adjustment of status under section 245(l) of the Act may submit an application for employment authorization (Form I765, Application for Employment Authorization, in accordance with the form instructions) on the basis of 8 CFR 274a.12(c)(9).

3. Initial Evidence

All applicants for adjustment of status under section 245(l) of the Act must submit all required ``initial evidence'' or supporting documentation with the Form I485. 8 CFR 103.2(b)(1). Otherwise, USCIS will deem the application to be incomplete. If all required initial evidence is not submitted with the application or the evidence does not demonstrate statutory eligibility, USCIS may deny the application for lack of initial evidence, for ineligibility, or for both reasons. In the alternative, USCIS may request that the missing initial evidence be submitted within a specified period of time. 8 CFR 103.2(b)(8). a. Evidence That Applicant Was Admitted in T Nonimmigrant Status

All applicants must submit a copy of the Form I797, Notice of Action, granting T nonimmigrant status, with the attached Form I94 Arrival/Departure Record, or a copy of the applicant's passport with a T nonimmigrant visa along with a copy of the Form I94 Arrival/ Departure Record evidencing that the principal alien was admitted into the United States in T nonimmigrant status. New 8 CFR 245.23(e)(2)(i). b. Evidence of Continuous Physical Presence

T1 nonimmigrant applicants may present as evidence of continuity of physical presence in the United States one or more documents issued by any governmental or nongovernmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature, seal, or other authenticating instrument of the authorized representative of the issuing authority if the document would normally contain such indicia. New 8 CFR 245.23(e)(2)(i). An applicant may use college transcripts or employment records, including certification of the filing of Federal or state income tax returns, to show that an applicant attended school or worked in the United States throughout the requisite continuous physical presence period. The applicant may also present documents showing installment periods, such as a series of monthly rent receipts or utility bills that cover the same period, to establish continuous physical presence during that period. See generally 8 CFR 245.22.

An applicant need not submit documentation to show presence on every single day of the requisite continuous physical presence period, but there should be no significant chronological gaps in documentation. Any absence from the United States, even for one day, is significant for purposes of eligibility because of the
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aggregate 180day restriction on absences from the United States.

Furthermore, if an applicant is aware of documents already contained in his or her DHS file that establish physical presence, he or she may merely list those documents, giving the type and date of the document. Examples of such documents include a written copy of a sworn statement given to a DHS officer, a document from the law enforcement agency attesting to the fact that the T1 nonimmigrant status holder has continued to comply with requests for assistance, the transcript of a formal hearing, or a Record of Deportable/Inadmissible Alien, Form I 213.

To facilitate USCIS' evaluation of an applicant's physical presence in the United States, this rule provides that an applicant must submit a copy of his or her passport (or equivalent travel document) and documentation regarding any departure from the United States and re entry, including the dates of departure; time, manner, and place of return. New 8 CFR 245.23(e)(2)(i).

A signed statement from the T1 applicant attesting to continuous physical presence alone will not be sufficient to establish this eligibility requirement. New 8 CFR 245.23(e)(2)(i). If documentation to establish continuous physical presence is not available, the applicant must explain why in an affidavit and provide additional affidavits from others with firsthand knowledge who can attest to the applicant's continuous physical presence by specific facts. Id.

This rule further provides that applicants seeking to meet the alternative continuous physical presence requirement at section 245(l)(1)(A) of the Act (less than 3 years of continuous physical presence while in T1 nonimmigrant status if the investigation or prosecution is complete) must submit a document signed by the Attorney General, or his designee, as an attachment to the Form I485, Supplement E, stating that the investigation or prosecution is complete. New 8 CFR 245.23(e)(2)(i)(B).

c. Evidence of Admissibility

Applicants who are inadmissible by reason of a ground not waived in connection with the prior application for T nonimmigrant status must file an application for a waiver of inadmissibility under section 245(l)(2) of the Act (Form I601, Application for Waiver of Grounds of Excludability) with the application to adjust status. New 8 CFR 212.18(a). A separate fee for Form I601 or a fee waiver request must be remitted with the form. This rule clarifies that Form I601 is used for this purpose and that a fee is charged for waiver of any ground of inadmissibility. 8 CFR 103.7(b)(1).

Applicants who are inadmissible on security related grounds (INA sec. 212(a)(3), 8 U.S.C. 1182(a)(3)), as international child abductors (INA sec. 212(a)(10)(C), 8 U.S.C. 1182(a)(10)(C)), or as former citizens who renounced citizenship to avoid taxation (INA sec. 212(a)(10)(E), 8 U.S.C. 1182(a)(10)(E)), are not eligible for waivers of inadmissibility under section 245(l)(2) of the Act. New 8 CFR 245.23(c)(1); see INA sec. 245(l)(2)(B), 8 U.S.C. 1255(l)(2)(B).

USCIS may waive the healthrelated (INA sec. 212(a)(1), 8 U.S.C. 1182(a)(1)) and public charge (INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4)) grounds of inadmissibility if USCIS determines that a waiver is in the national interest as a matter of discretion. See INA sec. 245(l)(2)(A). USCIS understands the waiver of the public charge ground in light of two other provisions of law, Pub. L. 106386, sections 107(b)(1)(A) and (E), 114 Stat. 1464 (Oct. 28, 2000), which provide that victims of a severe form of trafficking in persons who are over 18 years of age may be certified by the Secretary of Health and Human Services (HHS) to receive certain benefits and services ``to the same extent as an alien who is admitted to the United States as a refugee.'' Victims of a severe form of trafficking in persons who are under 18 are also eligible for services, including cash assistance, to the same extent as refugees, but they do not need to be certified by HHS. Refugees are provided with special humanitarian benefits because of their vulnerable circumstances, and are exempt from virtually every aspect of the public charge determination. Congress has recognized that victims of a severe form of trafficking in persons are in much the same position as refugees, and therefore provided specific authority for DHS to exempt them from the public charge ground of inadmissibility when applying for T nonimmigrant status. See INA sec. 212(d)(13)(A); 8 U.S.C. 1182(d)(13)(A). However, this statutory exemption does not apply to adjustment of status. Consequently, at that stage, applicants must either demonstrate that they are not likely to become public charges under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), or must apply for a waiver of that ground of inadmissibility under section 245(l)(2)(A) of the Act, 8 U.S.C. 1255(l)(2)(A). In evaluating waiver requests, if an applicant is receiving or has received public benefits as a trafficking victim, USCIS will not consider that fact as conclusive evidence of the likelihood the applicant will become a public charge.

USCIS also may waive any other ground of inadmissibility, but only if USCIS determines that a waiver is in the national interest and that the activities rendering the applicant inadmissible were caused by or were incident to the principal alien's trafficking victimization. See INA sec. 245(l)(2)(B). Applicants seeking such a waiver must establish that the activities rendering the applicants inadmissible were caused by or incident to their trafficking victimization, that it is in the national interest to waive the ground(s) of inadmissibility, and that the waiver is warranted as a matter of discretion. New 8 CFR 212.18(b)(3).

Under section 212(a)(9)(B)(iii) of the Act, 8 U.S.C. 1182(a)(9), applicants may be exempted from the unlawful presence ground of inadmissibility if they can establish that their victimization was ``at least one central reason'' for their unlawful presence in the United States. See INA sec. 212(a)(9)(B)(iii)(V), 8 U.S.C.
1182(a)(9)(B)(iii)(V). This rule clarifies that to be a ``central reason,'' the victimization need not be the sole reason for the unlawful presence, but the nexus between the victimization and the unlawful presence must be more than tangential, incidental, or superficial. New 8 CFR 245.23(c)(3); cf. Matter of JBN & SM, 24 I&N 208, 214 (BIA 2007) (interpreting the ``one central reason'' standard in the asylum context). An applicant requesting only an exemption from section 212(a)(9)(B)(B)(iii)(V) of the Act need not file a Form I601. New 8 CFR 245.23(c)(3). The applicant, however, must submit with his or her Form I485 evidence sufficient to demonstrate that the victimization suffered was a central reason for the unlawful presence in the United States. Id.

As discussed below, applicants whose adjustment of status applications are denied, including the denial of a request for exemption from the application of section 212(a)(9)(B) of the Act, and the denial of an application for a waiver of inadmissibility (Form I 601) may appeal to the USCIS Administrative Appeals Office (AAO). New 8 CFR 245.23(i).

This rule also clarifies that USCIS may revoke its approval of a waiver of inadmissibility. New 8 CFR 212.18(d); see also 8 CFR 103.5. d. Evidence of Good Moral Character

Initial evidence of a T1 nonimmigrant applicant's good moral character is the applicant's affidavit attesting to his or her good moral
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character, accompanied by a local police clearance or a stateissued criminal background check from each locality or state in the United States in which the applicant has resided for six or more months during the requisite period in T1 nonimmigrant status. New 8 CFR 245.23(g). If police clearances, criminal background checks, or similar reports are not available for some or all locations, the applicant may include an explanation and submit other evidence with his or her affidavit. Id.

A T1 nonimmigrant applicant who is under 14 years of age is generally presumed to be a person of good moral character and is not required to submit evidence of good moral character. However, if USCIS has reason to believe that an applicant who is under 14 years of age may lack good moral character, USCIS may require evidence of good moral character. Id.
e. Evidence of Assistance in the Investigation or Prosecution

To meet the ``assistance'' requirement, T1 applicants must submit a document signed by the Attorney General or his designee certifying that he or she has complied with any reasonable requests for assistance. New 8 CFR 245.23(d), 245(f)(1).
f. Evidence of Extreme Hardship Involving Unusual and Severe Harm

In lieu of showing continued compliance with requests for assistance, T1 applicants may establish that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States. Such hardship determinations will be evaluated on a caseby case basis, in accordance with the factors described in 8 CFR 214.11(i). No particular piece of evidence will guarantee a finding that extreme hardship involving unusual and severe harm would result if the applicant is removed from the United States. To minimize the burden of submitting voluminous documentary evidence and to streamline the adjudication of the adjustment application, this rule provides that where the basis for the hardship claim represents a continuation of the hardship claimed in the previously approved application for T nonimmigrant status, the applicant need not redocument the entire hardship claim, but instead may submit evidence demonstrating that the previouslyestablished hardship is ongoing. New 8 CFR 245.23(f)(2). However, in reaching its decision regarding hardship under this section, USCIS is not bound by its previous hardship determination made under 8 CFR 214.11(i). Id.

4. Additional Requirements for Derivative Family Members

Derivative family members may apply for adjustment of status under section 245(l)(1) provided the T1 principal applicant meets the eligibility requirements for adjustment of status and the T1 principal applicant's adjustment application has been approved, is currently pending, or is concurrently filed. New 8 CFR 245.23(b).

As with T1 principal applicants, to be eligible for adjustment of status under section 245(l) of the Act, derivative family members must be admissible to the United States under the Act, or otherwise have been granted a waiver by USCIS of any applicable ground of inadmissibility, at the time of examination for adjustment. New 8 CFR 245.23(a)(4), 245.23(b)(4), 245.23(c)(2) and (3); see INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2); INA sec. 212(a), 8 U.S.C. 1182(a). Section 245(l)(2)(B) of the Act also permits USCIS to waive any ground of inadmissibility that may be applicable to a derivative family member, except for the grounds related to national security, international child abduction, and former citizens who renounced citizenship to avoid taxation. Such a waiver may be granted if USCIS determines that it is in the national interest to do so and that the activities rendering the derivative family member inadmissible were caused by or were incident to the T1 principal alien's victimization. See INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2). A waiver application for a derivative family member will be adjudicated in accordance with new 8 CFR 212.18.

5. Evidence Relating to Discretion

Consistent with all of the other adjustment of status provisions, section 245(l) of the Act makes adjustment of status to that of a lawful permanent resident a discretionary benefit. To enable USCIS to determine whether to exercise discretion favorably, this rule provides that all T adjustment applicants have the burden of showing that discretion should be exercised in their favor. New 8 CFR 245.23(e)(3). Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion. However, where adverse factors are present, the applicant will need to offset these factors by showing sufficient mitigating equities. This rule permits applicants to submit information regarding any mitigating factors they wish to be considered. Id. Depending on the nature of an applicant's adverse factors, the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's adverse factors, such a showing might still be insufficient. Id. See Matter of Jean, 23 I&N Dec. 373, 383384 (A.G. 2002), aff'd Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006). See also Pinentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991 (9th Cir. 2007). For example, only the most compelling positive factors would justify a favorable exercise of discretion in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug related crimes, or where there are security or terrorismrelated concerns. Id.

6. Application and Biometric Services Fees

The fee for filing an Application to Register Permanent Residence or Adjust Status (Form I485) is listed at 8 CFR 103.7(b). USCIS recognizes that some applicants for adjustment of status under section 245(l) of the Act may be unable to pay the full application fee. Applicants who are able to show that they are financially unable to pay the application fee may submit an application for a fee waiver as outlined in 8 CFR 103.7(c). This rule also permits a fee waiver for the Form I601 fee. The decision whether to grant a fee waiver lies within the sole discretion of USCIS. Further guidance on fee waivers can be found on the USCIS Web site currently at http://www.uscis.gov/ feewaiver.

In addition to the filing fee for the Form I485 and Form I601, if applicable, applicants will have to submit the established fee for biometric services, or fee waiver request, for each person ages 14 through 79 inclusive with each application. This fee can also be found at 8 CFR 103.7(b).
C. Traveling While Application for Adjustment of Status Is Pending

T nonimmigrants applying for adjustment of status, and who are not in removal, exclusion, or deportation proceedings, must follow the generally applicable rule that an applicant with a pending adjustment of status application must obtain advance parole from USCIS. New 8 CFR 245.23(j); 8 CFR 245.2(a)(4)(ii)(B). Advance parole can be requested by completing and filing Form I131, Application for Travel Document, in accordance with the instructions on the form, or any other appropriate form, before departing
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the United States. Id. If an applicant fails to acquire advance parole prior to departure, USCIS will deem the application for adjustment of status abandoned as of the moment of departure from the United States. If the adjustment of status application of such an individual is subsequently denied, he or she will be treated as an applicant for admission subject to sections 212 and 235 of the Act. Id. If a T nonimmigrant applying for adjustment of status is in removal, exclusion, or deportation proceedings, USCIS will deem the application for adjustment of status abandoned as of the moment of the applicant's departure from the United States if the applicant failed to acquire advance parole prior to departure. New 8 CFR 245.23(i); 8 CFR 245.2(a)(4)(ii)(A).
D. Decisions on Applications Under Section 245(l) of the Act 1. Annual Limitation on the Number of Adjustments of T1 Nonimmigrants

USCIS may adjust the status of no more than 5,000 T1 principal aliens in a given fiscal year. See INA sec. 245(l)(4)(A), 8 U.S.C. 1255(l)(4)(A). This numerical limitation does not apply to spouses, children, parents, and unmarried siblings in T2, T3, T4, and T5 status who seek adjustment of status as derivatives. See INA sec. 245(l)(4)(B), 8 U.S.C. 1255(l)(4)(B).

USCIS will adjudicate applications in the order in which they are received. Once the numerical limit has been reached in a particular fiscal year, all pending and subsequently received applications will continue to be reviewed in the normal process to determine eligibility. However, USCIS will not approve adjustment of status prior to the beginning of the next fiscal year and not until a number under the cap becomes available. New 8 CFR 245.23(l)(2). USCIS will place eligible applicants who are not granted adjustment of status due solely to the numerical limit on a waiting list and notify the applicants of that placement. Id. Applicants on the waiting list will be given priority in the following fiscal year based on the date the application was properly filed. Id.

2. Decisions on Applications

USCIS will notify an applicant in writing of its decision on the adjustment of status and any applicable waiver application. New 8 CFR 245.23(h). If the application is approved, USCIS will issue a notice of approval, instructing the applicant to go to a local USCIS office or an Application Support Center to complete Form I89, which collects the necessary information to produce the Form I551 (Alien Registration Receipt Card or ``green card''). The notice of approval will also inform the applicant how to obtain temporary evidence of lawful permanent resident status. Upon approval of an application for adjustment of status, USCIS will record the alien's admission as a lawful permanent resident as of the date of such approval. See INA sec. 245(l)(5), 8 U.S.C. 1255(l)(5).

If the application for adjustment of status is denied, the applicant will be notified in writing of the reasons for the denial and of the right to appeal the decision to the USCIS Administrative Appeals Office. New 8 CFR 245.23(i). Because derivative family members' applications are dependent upon approval of the principal applicant's adjustment application, this rule also provides that denial of the T1 principal applicant's application will result in the automatic denial of a derivative family member's application. Id.
IV. Aliens in U Nonimmigrant Status Adjusting Status Under Section 245(m) of the Act
A. Eligibility Requirements for U Nonimmigrants Seeking Adjustment of Status

This rule promulgates new 8 CFR 245.24 to list the eligibility requirements for adjustment of status for U1 nonimmigrants and their family members in lawful U2, U3, U4, and U5 nonimmigrant status under section 245(m) of the Act, 8 U.S.C. 1255(m).

1. Admitted as a U Nonimmigrant

All applicants for adjustment of status under section 245(m) of the Act must have been lawfully admitted to the United States in U nonimmigrant status and must continue to hold such status at the time of the application. New 8 CFR 245.24(b)(2).

This rule provides a transition rule for those aliens who accrued 4 years or more in U interim relief status prior to promulgation of this rule. Section 214(p)(6) of the Act, 8 U.S.C. 1184(p)(6), prescribes a maximum duration in U nonimmigrant status of 4 years, unless the U nonimmigrant receives a law enforcement certification stating that the U nonimmigrant's presence is necessary to assist in the investigation or prosecution. Title 8 CFR 214.14(c)(6) provides that aliens with U interim relief status whose Form I918, Petition for U Nonimmigrant Status, is approved will be accorded U nonimmigrant status as of the date that a request for U interim relief was initially approved. Therefore, aliens who already accrued 4 years in U interim relief status might not continue to hold such status at the time of application for adjustment of status and would otherwise be ineligible for adjustment of status. USCIS is therefore creating a transition rule to allow these aliens, if otherwise eligible, to apply to adjust status within 120 days of approval of the Form I918. New 8 CFR
245.24(b)(2)(ii). Recipients of U interim relief may apply for adjustment of status after 4 years in U interim relief status if they have previously filed a complete Form I918. Id. If the Form I918 is subsequently approved, USCIS will then adjudicate the pending adjustment application. USCIS believes that this transition rule will allow applicants to remain eligible to adjust status and will not penalize those applicants with more than 4 years in U interim relief status.

2. Physical Presence for Requisite Period

All applicants for adjustment of status under section 245(m) of the Act must have maintained continuous physical presence in the United States for at least 3 years since the date of admission as a U nonimmigrant. New 8 CFR 245.24(b)(3); see INA sec. 245(m)(1)(A), 8 U.S.C. 1255(m)(1)(A). Applicants who have departed from the United States for any period in excess of 90 days or for any periods exceeding 180 days in the aggregate shall not be considered to have maintained continuous physical presence. New 8 CFR 245.24(a)(1); see INA sec. 245(m)(2), 8 U.S.C. 1255(m)(2). An absence for any period in excess of 90 days or for any periods exceeding 180 days is permissible only if the excessive absence is necessary to assist in the investigation or prosecution of persons in connection with the qualifying criminal activity or if an official involved in the investigation or prosecution certifies that the absence is otherwise justified. Id. Absences for less than 90 days at one time or 180 days in the aggregate will not be deducted from the requisite continuous physical presence period required to establish eligibility for adjustment of status and will not be deemed an interruption of the period. Id.
3. Unreasonable Refusal To Assist in the Investigation or Prosecution

Section 245(m)(1) of the Act, 8 U.S.C. 1255(m)(1), prohibits USCIS from adjusting the status of an otherwise eligible U nonimmigrant if the Attorney General determines, based on affirmative evidence, that the U nonimmigrant unreasonably refused to provide assistance to a Federal, State, or local criminal investigation or prosecution. USCIS interprets this
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statutory provision as imposing an ongoing requirement for U1 nonimmigrants not to refuse unreasonably to provide assistance in an investigation or prosecution. For a derivative family member of a U1 nonimmigrant (a U2, U3, U4, or U5 nonimmigrant) who was not required to provide such assistance as a prerequisite for obtaining U nonimmigrant status, USCIS interprets this provision to mean that if the derivative U2, U3, U4, or U5 nonimmigrant possessed information about the qualifying criminal activity on which the U1 nonimmigrant petition was based and was asked to assist in the investigation or prosecution, the derivative U nonimmigrant has a responsibility not to unreasonably refuse to provide that assistance.

Thus, this rule defines ``refusal to provide assistance in a criminal investigation or prosecution'' as the refusal by the alien to provide assistance to an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the alien was granted U nonimmigrant status. New 8 CFR 245.24(a)(5).

The rule provides that the determination of whether an alien's refusal to provide assistance was unreasonable will be based on all available affirmative evidence and take into account the totality of the circumstances and such factors as general law enforcement, prosecutorial, and judicial practices; the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant. New 8 CFR 245.24(a)(5).

In order to facilitate implementation of this statutory requirement, the rule provides that applicants must submit evidence that demonstrates whether or not they received requests for assistance from an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the applicants were granted U nonimmigrant status and the applicants' response to such requests. New 8 CFR 245.24(d)(8); 245.24(e). The applicant is not required to establish the reasonableness of any refusals to comply with such requests for assistance, as it is a matter for the Attorney General to determine whether any refusal was unreasonable. However, it is appropriate and consistent with the statutory scheme to require the applicants to describe any requests they received for law enforcement assistance, to identify the persons or agencies who made the requests, and to state how they responded to such requests. As a general matter, the alien is in a proper position to identify such basic facts relating to whether any such requests for assistance were made to the alien and how the alien responded to the requests. This information is necessary for the Attorney General to be able to evaluate whether an alien's refusal to provide assistance was unreasonable under the circumstances. Given the range of qualifying offenses for the U visa, USCIS anticipates that the substantial majority of such crimes will be the subject of state or local criminal investigations and prosecutions, rather than cases arising under federal criminal laws, and, in addition, that many of the investigations and prosecutions may already have been closed (perhaps for several years) by the time the alien is applying for adjustment of status, given the requirement that the alien must be in U nonimmigrant status for 3 years before applying for adjustment.

In order to facilitate the adjudication of U adjustment applications, this rule provides an option for applicants to obtain a document signed by an official or law enforcement agency that had responsibility for persons in connection with the investigation or prosecution of the qualifying criminal activity. New 8 CFR 245.24(e)(1). The document should affirm that the applicant complied with (or did not refuse to comply with) reasonable requests for assistance in the investigation or prosecution during the requisite period. Id. Applicants, if they so choose, may satisfy this evidentiary requirement by submitting a newly executed Form I918, Supplement B, ``U Nonimmigrant Status Certification.'' New 8 CFR 245.24(e)(2). If the alien does choose to submit such a document in support of his or her application, USCIS (with the agreement of DOJ) has concluded that there would be no need to refer the application to DOJ absent extraordinary circumstances. This option will thus simplify the evidence aliens are expected to submit in support of their adjustment applications and will avoid delays in the adjudicatory process attributable to the requirement to refer U adjustment applications to DOJ.

USCIS is aware that, in some cases, it may be difficult, if not impossible, for an applicant to obtain such a document. Therefore, if an applicant does not submit such a document, the applicant may submit an affidavit describing the applicant's efforts, if any, to obtain a newly executed Form I918, Supplement B, or other evidence describing whether or not the alien received any request to provide assistance in a criminal investigation or prosecution and the alien's response to any such request. New 8 CFR 245.24(e)(2). The applicant should include a description of all instances of which the applicant is aware in which the applicant was requested to provide assistance in the criminal investigation or prosecution of persons in connection with the qualifying criminal activity after the applicant was granted U nonimmigrant status and how the alien responded to such requests. Id. Applicants should also include, when possible, identifying information about the law enforcement personnel involved in the case and any information of which the applicant is aware about the status of the criminal investigation or prosecution, including any charges filed and the outcome of any criminal proceedings, or whether the investigation or prosecution was dropped and the reasons. Id. Depending on the circumstances, evidence might include such documentation as court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials. If applicable, an applicant also may choose to provide a more detailed description of situations where the applicant declined to comply with requests for assistance because the applicant believed that the failure to comply with such requests for assistance was reasonable under the circumstances. Id.

The instructions to the Form I918, Supplement B, U Nonimmigrant Status Certification, require that officials who sign a Supplement B in support of an alien's application for U nonimmigrant status have an obligation to notify USCIS if the alien has refused to assist in the investigation or prosecution of persons in connection with the qualifying criminal activity. At any time, USCIS or DOJ may at its discretion contact the agency that certified the Form I918, Supplement B, or any other law enforcement authority, for information concerning an applicant's continuing assistance in an investigation or prosecution. New 8 CFR 245.24(e)(3).

Additionally, in accordance with procedures determined by DOJ and DHS, USCIS will refer certain applications for adjustment of status, [[Page 75548]]
including any affirmative evidence of applicants' refusal to provide assistance in a criminal investigation or prosecution, to DOJ for a determination of whether the applicant has unreasonably refused to comply with a request for assistance in an investigation or prosecution. New 8 CFR 245.24(e)(4). USCIS anticipates referring an application to DOJ only if a certifying official or agency has provided evidence that the alien has refused to provide such assistance, or if there is other affirmative evidence in the record suggesting that the applicant may have unreasonably refused to provide assistance to the investigation or prosecution of persons in connection with the qualifying criminal activity. In these instances, USCIS will request that DOJ determine, based on all available affirmative evidence, whether the applicant has unreasonably refused to comply with a request for assistance. DOJ will have 90 days to provide a written determination to USCIS, or where appropriate, request an extension of time to provide such a determination. Id. After such time, USCIS may adjudicate the application whether or not DOJ has provided a response. Id.
B. Application Procedures for U Nonimmigrants Seeking Adjustment of Status

This rule clarifies that the generally applicable adjustment of status provisions in 8 CFR 245.1 and 8 CFR 245.2 do not apply to applications for adjustment of status under the new 8 CFR 245.24. The adjustment provisions contained in section 245(m) of the Act, 8 U.S.C. 1255(m), are standalone provisions and not simply a variation of the general adjustment rules contained in section 245(a) of the Act, 8 U.S.C. 1255(a). New 8 CFR 245.24(l).

This rule also provides that USCIS will maintain sole jurisdiction over the adjudication of applications to adjust status under section 245(m) of the Act because the statutory language vests this authority in the Secretary of Homeland Security. New 8 CFR 245.24(f).

This rule designates Form I485, Application to Register Permanent Residence or Adjust Status, as the form that a U nonimmigrant status holder must use to request adjustment of status. New 8 CFR 245.24(d). The instructions to Form I485 specify where applicants must file their application packages.

The rule requires applicants to follow the instructions on the form for proper completion and to include the proper fees or a fee waiver request. New 8 CFR 245.24(d). The rule also instructs applicants to submit supporting evidence to establish continuous physical presence, as well as any information the applicant would like USCIS to consider when determining whether adjustment of status is warranted as a matter of discretion on humanitarian grounds or to ensure family unity, or is otherwise in the public interest. Id.
1. Evidence That Applicant Was Admitted in U Nonimmigrant Status

All applicants must submit a copy of the Form I797, Notice of Action, granting U nonimmigrant status, with the attached Form I94 Arrival/Departure Record, or a copy of the applicant's passport with a U nonimmigrant visa along with a copy of the Form I94 Arrival/ Departure Record evidencing the applicant's admission into the United States in U nonimmigrant status. New 8 CFR 245.24(d).
2. Evidence Relating to Requests for Assistance in an Investigation or Prosecution

An application for adjustment of status under section 245(m) of the Act, 8 U.S.C. 1255(m), may not be approved where the Attorney General or his designee determines based on affirmative evidence that the applicant unreasonably refused to provide assistance to an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the applicant was granted U nonimmigrant status. New 8 CFR 245.24(d)(8); 245.24(e).

As discussed above, an applicant can facilitate the adjudication of the adjustment application by obtaining a document signed by an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity, affirming that the applicant complied with (or did not unreasonably refuse to comply with) requests for assistance in the investigation or prosecution during the requisite period. New 8 CFR 245.24(e)(1). Applicants may satisfy this option by submitting a newly executed Form I918, Supplement B, ``U Nonimmigrant Status Certification.'' Id.

However, if an applicant does not submit such a document, the applicant may submit an affidavit describing the applicant's efforts, if any, to obtain a newly executed Form I918, Supplement B, or other evidence describing whether the alien received any request to provide assistance in a criminal investigation or prosecution and the alien's response to any such request. New 8 CFR 245.24(e)(2).

3. Evidence of Continuous Physical Presence

All applicants must submit evidence, including an affidavit, attesting that they have accrued 3 years of continuous physical presence in the United States since admission in U nonimmigrant status. New 8 CFR 245.24(d)(9). Such evidence may include one or more documents issued by any governmental or nongovernmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature, seal, or other authenticating instrument of the authorized representative of the issuing authority if the document would normally contain such indicia. An applicant also may submit college transcripts or employment records, including certification of the filing of Federal or state income tax returns, to show that he or she attended school or worked in the United States throughout the entire 3year U nonimmigrant status period. The applicant also may submit documents showing installment payments, such as a series of monthly rent receipts or utility bills that cover the same 3year period, to establish continuous physical presence. See generally 8 CFR 245.22.

An applicant need not submit documentation to show presence on every single day of the 3year U nonimmigrant status period, but there should be no significant chronological gaps in documentation. Any absence from the United States, even for one day, is significant for purposes of eligibility because of the aggregate 180day restriction on absences from the United States.

If the applicant is aware of documents already contained in his or her DHS file that establish physical presence, he or she need only list those documents, giving the type and date of the document. Examples of such documents might include a written copy of a sworn statement given to a DHS officer, a document from a law enforcement agency attesting to the fact that the U nonimmigrant has continued to comply with requests for assistance, the transcript of a formal hearing, or a Record of Deportable/Inadmissible Alien, Form I213.

To facilitate USCIS' evaluation of physical presence in the United States, applicants must submit documentation regarding any departure and reentry, including a copy of their passport (or equivalent travel document) with dates of departure and corresponding time, manner, and place of return. New 8 CFR
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245.24(d)(5) and (6). Applicants who were absent from the United States for any period in excess of 90 days or for any periods in the aggregate of 180 days or more must submit a statement from the investigating or prosecuting agency certifying that the absences were necessary to assist in the investigation or prosecution, or were otherwise justified. Id. The omission of such certification will result in denial of the application.

A signed statement from the applicant attesting to continuous physical presence alone will not be sufficient to establish this eligibility requirement. Id. If documentation to establish continuous physical presence is not available, the applicant must explain why in an affidavit and provide additional affidavits from other individuals with firsthand knowledge who can attest to the applicant's continuous physical presence by specific facts. Id.

4. Evidence Relating to Admissibility and Discretion

The only ground of inadmissibility applicable to U nonimmigrants applying for adjustment of status under section 245(m) of the Act is section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E), which relates to participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing. This ground of inadmissibility is not waivable for purposes of adjustment of status of U
nonimmigrants. See INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). Otherwise, U adjustment applicants are not required to establish that they are admissible on any of the grounds set forth in section 212(a) of the Act.

Nevertheless, as with all of the other adjustment of status provisions, section 245(m) of the Act makes adjustment of status under that section a discretionary benefit. To enable USCIS to determine whether to exercise discretion favorably, applicants have the burden of showing that discretion should be exercised in their favor. New 8 CFR 245.24(d)(11). Although U adjustment applicants are not required to establish that they are admissible, USCIS may take into account all adverse factors, including acts that would otherwise render the applicant inadmissible, in making its discretionary decision on the application. Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion. However, where adverse factors are present, it will be necessary for the applicant to offset these factors by showing sufficient mitigating factors. This rule permits applicants to submit information regarding any mitigating factors they would like USCIS to consider when determining whether a favorable exercise of discretion is appropriate. Id. Depending on the nature of an applicant's adverse factors, the applicant may be required to demonstrate clearly that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's adverse factors, such a showing might still be insufficient. Id. See Matter of Jean, 23 I&N Dec. 373, 383384 (A.G. 2002), aff'd Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006). See also Pinentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991 (9th Cir. 2007). For example, only the most compelling positive factors would justify a favorable exercise of discretion in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drugrelated crimes, or where there are security or terrorismrelated concerns. 8 CFR 245.24(d)(11).
C. Decisions on Adjustment of Status Applications From U Nonimmigrants

USCIS will give written notice of its decision on the adjustment of status application to the applicant. New 8 CFR 245.24(f). If the application is approved, USCIS will issue a notice of approval instructing the applicant to go to a local USCIS office or Application Support Center to complete Form I89, which collects the necessary information to produce the Form I551 (Alien Registration Receipt Card or ``green card''). The notice of approval will also inform the applicant how to obtain temporary evidence of lawful permanent resident status. Upon approval of an application for adjustment of status, USCIS will record the alien's admission as a lawful permanent resident as of the date of such approval. New 8 CFR 245.24(f)(1); see INA sec. 245(m)(4), 8 U.S.C. 1255(m)(4).

If the application for adjustment of status is denied, the applicant will be notified in writing of the reasons for the denial and of the opportunity to appeal the decision to the Administrative Appeals Office (AAO). New 8 CFR 245.24(f)(2). Because section 245(m) of the Act gives the Secretary of Homeland Security exclusive authority over applications for adjustment of status of U nonimmigrants, such applications may not be renewed or otherwise filed before an immigration judge in removal proceedings. New 8 CFR 245.24(k). The Attorney General will publish companion rules amending 8 CFR parts 1240 and 1245.
D. Qualifying Family Members Who Have Never Held U Nonimmigrant Status

Section 245(m) of the Act, 8 U.S.C. 1255(m), allows two categories of qualifying family members of principal U1 nonimmigrants to apply for adjustment of status or an immigrant visa: (1) Family members in lawful U2, U3, U4, or U5 nonimmigrant status; and (2) certain qualifying family members who have never held U nonimmigrant status. Because the procedures for family members in lawful U status are the same as those for principal applicants and have already been discussed above, this section will only discuss those qualified family members who have never held U nonimmigrant status.

1. Eligibility Requirements

After granting adjustment of status to a U1 principal applicant, USCIS may grant lawful permanent resident status to certain spouses, children, and parents based upon their relationship to the principal applicant. See I

FOR FURTHER INFORMATION CONTACT

Laura Dawkins, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Second Floor, Washington, DC 20529, telephone (202) 2728350.