(a) General. HRIFA, a limited provision which provides relief in the form of lawful permanent residence to certain Haitian nationals, was signed into law on October 21, 1998. Regulations governing the filing and adjudication of applications for HRIFA adjustment are contained in 8 CFR 245.'l 5, although the HRIFA statute is separate and apart from section 245 of the Act. The HRIFA program expires March 31, 2000 for principal applicants, and their applications must be properly filed at the Nebraska Service Center not later than that date. For qualifying dependent applicants, the application period for HRIFA adjustment remains open indefinitely.

(b) Receipting and Data Entry by Support Services Contractor Personnel. Unless in deportation, removal, or exclusion proceedings that have not been administratively closed with the consent of the Service (or where a motion to reopen or reconsider has not been continued indefinitely with the consent of the Service), the applicant must file Form 1-485 (revised 9/9/92) with the Nebraska Service Center, in accordance with the instructions contained on that form as modified by Form 1-485 Supplement C. (An alien who is in proceedings should file the application with the immigration judge having jurisdiction over his or her case.) A separate 1-485 application, including the fee specified in 8 CFR 103.7, is required for each applicant and dependent.

The support services contractor receiving the mail date stamps the application immediately upon receipt, assures the application has the correct fee and that it has been signed by the applicant. The contractor records the fee, endorses and forwards the check (or other payment vehicle) to the fee account, and places each new application in a bar-coded receipt file for delivery to the next stage of the process. Once this step has been completed, the application has been received by the Service and can no longer be rejected without going through the process of refunding the fee.

To the extent possible, the contractor should bundle applications submitted by family groups to facilitate later processing.

The contractor completes data entry into CLAIMS, scans the photograph and signature for later card production, preparation of Form 1-1 81, and for other CLAIMS notices and reports. The contractor sends out G-325A checks. The CLAIMS system \will automatically generate a notice to the applicant advising him or her of location of the ASC where he/she should report for fingerprinting, and when.

Finally, as part of the data entry process for HRIFA cases (and unlike the data entry process for most other applications), the contractor must enter the classification code under which the applicant is seeking adjustment of status. This additional requirement is the result of the statutory mandate contained in HRIFA that the Comptroller General of the United States (i.e., the GAO) report to Congress on a semi-annual basis regarding the number of HRIFA cases received and the number of HRIFA cases completed. The statute goes on to require that the report include a breakdown specifying the number of applicants by their basis of eligibility. In order for the GAO to meet this statutory mandate, the CLAIMS system must be able to generate accurate reports containing such specificity.

(c) Preliminary Screening by INS Support Personnel, (1) Processing Actions. Preliminary review of the application is performed by Service personnel after the initial receipting process is complete. The preliminary review ensures that all relevant questions on the form have been completed, that necessary supporting documents are attached, and that the case is ready for adjudication. If the application is lacking relevant answers or documents, these must be requested from the applicant through the 1-797 procedure once the application has been receipted. If such deficiencies can be identified prior to fee acceptance, a "rejection" notice may be used, rather than a request for additional information. The preliminary reviewer may annotate the application with information important to the adjudicator, taking care to always identify such notations as the work of the preliminary reviewer. Follow the steps listed below in items (A) through (O).

(A) Ensure *hat the application is being submitted under the provisions of HRIFA. Block "h" should be checked and endorsed "HRIFA - principal" or "HRIFA - dependent." An application from a "HRIFA principal" must be received to April 1, 2000. (Remember that there is no filing deadline for a HRIFA dependent.)

(B) Verify the applicant's nationality. Each HRIFA applicant, including any dependent applicant, must submit evidence of Haitian nationality. Ordinarily this will be in the form of a birth certificate; however, someone may submit other documentation, such as a baptismal certificate or a copy of his or her passport. It is also possible that an applicant who was not born in Haiti derived or acquired such nationality, and may submit evidence of such.

(C) Examine Form 1-485 for completeness. Form G-325A, local police clearances, and ADIT-style photographs are required. However, if the applicant attempted to obtain local police clearances, but was unable to do so because of State or local policies, he/she may submit evidence of such in lieu of the local police clearances. The director of the NSC has the authority to waive the local police clearances requirement where the applicant is able to establish that he/she made a good faith effort to obtain them.

(D) Ensure that clearances have been initiated by contractor personnel.

(E) Check for a completed INS medical examination record, Form 1-693, endorsed by a Service-approved physician.

(F) Ensure that the applicant has submitted evidence regarding the physical presence requirements of HRIFA. A principal alien must submit evidence that he or she:

• was present in the U.S. on December 31,1995;and
• maintained continuing physical presence through the date the adjustment application is filed (not counting absences totaling 180 days or less): and that he or she falls within one of the five eligible classes, A separate statement is required explaining the duration and purpose of every absence since the last arrival on or before December 31, 1995.

(G) Evidence of presence in the U.S. on December 31, 1995 may consist of the following types of documentation:

• Copy of Form 1-94, issued upon arrival on or prior to 12/31/95;
• Copy of Form 1-122 issued on or prior to 12/31/95;
• Copy of Form 1-221 issued on or prior to 12/31/95;
• Evidence of an application for any other benefit under the INA: Copy of a filing receipt or other official correspondence establishing submission of any application by or on behalf of the applicant on or prior to 12/31/95, which establishes the applicant's presence in the U.S. on 12/31/95;

Other official evidence: Other documentation issued by, or filed with, a Federal, State, or local authority which shows that the applicant was present in the U.S. on 12/31/95. Such documents must bear the official seal of the issuing authority (if normally present), be dated at the time of issuance or filing, and be dated not later than 12/31/95. Included in this group are items such as: motor vehicle record; driver's license or ID card; public hospital record; public school record; and income tax records;

Certain school records: For persons applying as children as described in section 902(b)(1)(C) of HRIFA, records of the private or religious school which the applicant attended, provided that the private or religious school was registered, approved, or licensed by the appropriate State or local authorities, was accredited by the appropriate State or local accrediting body or private school association, or maintains enrollment records in accordance with State or local requirements or standards. If the adjudicating officer has doubts whether the private or religious school meets these standards, he or she should consult with the district's student school officer or Mr. Jack Kienk of the Office of Non-Public Education, U.S. Department of Education by telephone at 202-401-1365/0375 or by fax at 202-401-1368.

Note: Such evidence may relate to presence in the United States on a date prior to the "magic" date of December 31, 1995. Since people may not be able to document where they were on a particular date the regulations allow an applicant to submit evidence of presence in the United States on a date prior to December 31, 1995, so long as the adjudicating officer is satisfied that the alien did not leave the country between that prior date and December 31, 1995. The amount of material needed to satisfy the adjudicating officer will vary from case to case. In many, if not most, situations, the officer should be satisfied with the applicant's oral or written claim that he or she did not depart the United States between the two dates, especially if the gap between them is rather small. On the other hand, if there is some indication that the alien may have left the country, or if the gap between the dates is especially large, the officer can require additional evidence. In deciding whether to ask for additional evidence, the officer may be guided by logic and common sense, as much as by documentation.

(H) Requirements for submission of evidence of continuing physical presence are more flexible. These may consist of either governmental or non-governmental documentation, including lease agreements, copies of tax returns regular bills showing account activity and the applicant's mailing address, canceled checks or bank records, employment records, etc. While there is no specific requirement establishing a number of documents which must be submitted (i.e., it is not necessary to submit a utility bill for every month since entry), ideally, documents will not leave unaccounted periods of more than 90 days. Furthermore, once an applicant has established the existence of an ongoing family unit, documentation pertaining to one family member may also be used by other members of that family unit to establish continuity of presence. For example, a parent may use a grade school report card issued to his or her child. The credibility and volume of these documents will heavily influence the decision on whether or not an interview will be required. Affidavits executed after the fact attesting to the presence of an applicant are not acceptable. However, it may be necessary to use affidavits to clarify discrepancies such as employment under an assumed name, etc.

(I) Along with the physical presence requirements above, a principal applicant must submit evidence to show that he or she fails within one of the five eligible classes below:

• Haitians who filed for asylum before December 31, 1995;
• Haitians who were paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest;
• Haitian children who arrived in the U.S. without parents and have remained without parents in the U.S. since arrival;
• Haitian children who became orphaned subsequent to arrival in the U.S.; and
• Haitian children who were abandoned by their parents or guardians prior to April 1, 1998, and have remained abandoned since. For the last three of these classes, the applicant must have been a child at the time of arrival in the U.S. and on December 31, 1995, but not necessarily at the time of his or her adjustment of status. In other words, someone who turned 21 and/or married on or after January 1, 1996, could still adjust status under the provisions of HRIFA as a child. Furthermore, any otherwise-eligible Haitian dependents acquired through a marriage occurring on or after January 1, 1996, could apply for adjustment under the provisions of HRIFA section 902(d) relating to dependents.

(J) It an applicant is unable to produce a service-issued document, but claims that such a document exists, Service records must be checked to verify the claim. If the claim is verified, attach a printout or other evidence from the Service record. If the claim cannot be verified, annotate the application: "Unable to verify through INS records", adding your initials and the date,

(K) If the applicant states he or she is inadmissible to the United States, check to see that he or she filed a waiver application, the fee was paid, and that the application was properly completed. Applicants who are inadmissible (except under è è 212(a)(4), (5), (6)(A), (7)(A) and (9)(B), which are inapplicable) may concurrently submit an application for any waiver for which they claim eligibility.

(L) Check for evidence of eligibility as a dependent, if the alien is applying as such:

• Evidence of Haitian nationality;
• Evidence of relationship. A HRIFA dependent must submit evidence of the existence if the claimed relationship at the time of the principal beneficiary's adjustment of status, and that such relationship continued to exist at least through the time that the dependent is granted adjustment. Such evidence is the same as would be required for an 1-1 30 petition (i.e., marriage certificate and evidence of termination of any prior marriages for a spouse, birth certificate for a child, etc);
• Evidence of presence, if applying as an unmarried son or daughter. The unmarried son or daughter of a HRIFA applicant must show evidence of continuous physical presence in the U.S. since December 31, 1995, as well as information regarding subsequent absences. A dependent son or daughter must also submit a statement regarding any and all absences since December 31, 1995, and provide evidence to document his or her continuous presence. For documentary requirements for proving continuity of presence, refer to the discussion pertaining to principal applicants above.

Note: A spouse or child must be physically present in the U.S. in order to apply, but need not have been present on December 31, 1995, or during any particular period since that date, and need not submit a statement regarding subsequent absences or continuing presence.

(M) Check for a Form 1-94, either original or a copy, which must be submitted if the applicant claims a lawful entry. However, the lack of such entry (or of the Form 1-94, if the alien claims it was lost) does not affect the alien's eligibility for adjustment under HRIFA.

(N) Check to see that the alien has attached a statement regarding his or absences from the United States since December 31, 1995. This statement is in addition to the required evidence of continuity of presence discussed above

(O) Determine if a there are one or more existing "A" files relating to the applicant. Files must immediately be requested. If no file exists, one must be created. Create a temporary file if an existing "A" file is located in another Service office. It is critical that any and all existing files be identified and obtained prior to adjudication. Review supporting documents closely to determine existing file number(s).

Note: A certain number of A files were created in Port-au-Prince prior to the closure of the INS office in 1994 and subsequently routed thru El Paso to Headquarters, Office of International Affairs, although CIS lists them as being located in Mexico City. If you are requesting a file on a Haitian national and CIS indicates the file is in Mexico City, contact Mr. Gil Jacobs of the Office of International Affairs.

(P) If the application is to be adjudicated by an NSC adjudicator, place the case on hold pending the results of the records checks and fingerprint clearance. Once the checks have been completed, remove the hold and route the file to the adjudicator.

(Q) If the application is being routed to a local office for interview and adjudication:

• At NSC, update CLAIMS and transfer the file to the appropriate local office. CLAIMS will generate a notice to the applicant advising him/her that the application has been transferred and update CIS.
• At the local office, shelve the file by receipt date until the records check and fingerprint clearances are complete. At that point, schedule the case for the next available interview time and re-shelve the case according to the interview date. (However, see the discussion below regarding employment authorization.)

(2) Screening Notes. (A) Examining Documentation Establishing Physical Presence in the U.S. and Continuous Physical Presence. Each of the forms of documentation of presence in the U.S. on or before December 31, 1995, listed above must establish that the relating event or action occurred on or prior to December 31, 1995, not simply claim that the alien was present prior to that date. For example, if presence is documented by the filing of an asylum application, the application itself must have been submitted on or before December 31, 1995. A mere statement in a later application claiming entry prior to that date is insufficient. If Social Security earnings statements are used, those must reflect earnings beginning on or before December 31, 1995. Secondary evidence such as affidavits should normally not be submitted or accepted unless such claims can be verified in Service records. Where the documentation cannot be verified by Service records or differs from information contained in Service records, the file should be so  noted. Evidence of entry on or before December 31, 1995 which is not verifiable from Service records shall be regarded as fraud-prone. All such cases (including all cases supported by Social Security records and all cases supported by documents issued by other (non-INS) Federal, State or local agencies) must be referred for a personal interview.

Documentation of continuous physical presence may be considered less restrictively. In general, reliable, government-issued documents which strongly support a claim of continuous physical presence for the required period should be accepted without official verification. Other, less reliable documents, such as documents supported by affidavits purporting to explain a falsely assumed identity, should be routinely or at least randomly verified and the case referred for interview. Where the file or other information casts doubt on the continuing physical presence since entry, this should be so noted and the case referred for a personal interview.

(B) Secondary Evidence. Other than as discussed in paragraph (A), an alien may submit secondary evidence in support of the application, if the alien establishes that the primary evidence is unavailable. For example, a baptismal record may be submitted for a birth certificate which cannot be obtained due to destruction of the records by fire or warfare.

(C) Dependents. It is important to note that the statute provides for two distinct classes of dependents:

• Spouses and children under age 21, and
• Unmarried sons and daughters who are 21 years of age or older.

All dependents must be Haitian nationals. All dependents must provide evidence of the claimed relationship, in the same manner required for a visa petition or any other adjustment. The spouse or child (under 21) of a HRIFA principal is not required to have been present on or since December 31, 1995, but must demonstrate that the qualifying relationship existed when the principal's application was approved, and continues to exist through the time the dependent's application is approved. The unmarried son or daughter (21 and older) must demonstrate physical presence since December 31, 1995, but not necessarily on that date. Claims of dependent eligibility are more likely to be supported by documents issued by authorities other than INS. If a principal applicant's supporting documents are supported by Service records, but the dependents are supported by other sources, the adjudicating officer need not refer the case for interview, but may do so if there is any suspicion regarding the documentation submitted. For example, if a dependent claims to have been present in the United States at a time when the principal's previous asylum application shows that dependent was still residing in Haiti, the file should be so noted and the case referred for an interview at a local INS office. An application by a dependent may be filed concurrently with or subsequent to the principal applicant's but may not be approved until the principal applicant is granted permanent residence.

(D) Inadmissibility. Several grounds of inadmissibility are inapplicable to HRIFA cases, others may be waived. Those which are statutorily inapplicable include:

• 212(a)(5) - labor certification and qualifications for certain immigrants:
• 212(a) (4) - public charge;
• 212(a)(6)(A) - unlawful entry; 212(a)(7)(A) - immigrant visa: and
• 212(a)(9)(B) - 180/365 day unlawful presence.

Waivers of other applicable grounds may be available on a case-by-case basis as otherwise provided in the INA and 8 CFR 212. If, upon review, it appears the applicant may be inadmissible, the file should be so noted to alert the adjudicator of the possibility.

(d) Adjudication. (1) General Processing Actions. The following actions are required during the adjudicative process:

(A) Verify that the application was timely filed, if from a principal applicant,.

(B) Review any existing file. This action is mandatory, but may be waived if the electronic record supports the alien's claimed status and the file cannot be retrieved within 90 days. An interview is required when a file cannot be located, even if the electronic record supports the alien's claim. Review the file to determine if there is evidence of the required physical presence. The file may also contain evidence, such as an advance parole document, that the alien has been outside the United States for more than 180 days, or it may contain evidence of inadmissibility on other grounds. One of the more critical items of information which must be obtained from the file is whether the alien is in exclusion, deportation or removal proceedings, since this relates directly to the issue of whether INS or EOIR has jurisdiction.

(C) Determine jurisdiction. In the event an adjustment applicant is in exclusion, deportation or removal proceedings that have not been administratively closed, refer the case to the appropriate Immigration Court. EOIR has authority to grant adjustment of status under HRIFA in any case where the alien is in proceedings. The Service has jurisdiction for HRIFA adjustment over (1) aliens who have not been placed in proceedings and (2) aliens under final orders of exclusion, deportation, or removal who had not filed a motion to reopen with EOIR before the date on which the HRIFA regulations were published (05-11-99). The Service also has jurisdiction over any cases involving aliens whose proceedings have been administratively closed, or in whose case a motion to reopen or reconsider has been continued indefinitely with the consent of the Service.

(D) Carefully review supporting documents and statements made on the application for completeness and for any indication the applicant does not meet the requirements of HRIFA regarding physical presence, nationality and admissibility. Any discrepancy between the applicant's statements and the evidence contained in the file may be resolved during the personal interview at a local office. Remember that (with regard to principal applicants) there are two aspects to the physical presence requirement. The first aspect deals with the physical presence on December 31, 1998, which can only be established through one of the specified forms of documentation listed above in paragraph (c)(1). The other aspect has to do with the continuity of physical presence, which can be established through a wider range of supporting documentation. If there is any doubt about either aspect, such doubt must be resolved during the personal interview. Remember also that in cases where the commencement of presence is supported only by evidence which cannot be verified through the INS file (such as a Social Security or other non-INS document), an interview is mandatory.

(E) Ensure that background checks have been completed, if the applicant is 14 years of age or older. If there is a positive response to any background check which indicates possible inadmissibility, refer the case for an interview at the local office. Review local police clearances to ensure the requisite clearance has been submitted for each jurisdiction in the U.S. where the alien has resided for at least six months. In some cases, the alien may have attempted to obtain the required local police clearances, but was unable to do so due to local or State policies prohibiting the issuance of such clearances. If the alien submits proof or both his or her attempt to obtain such clearances and of the local or State prohibitions, the Director of the Nebraska Service Center may waive the requirement that local police clearances be submitted.

(F) Ensure fingerprint checks have been properly completed. If the applicant fails to comply with the Service's instructions for obtaining fingerprints, the application for adjustment of status must be denied for failure to prosecute.

(G) Review Form 1-693 medical examination. The examination form must be signed by a designated physician. If there is any medical condition which would result in a finding of inadmissibility, determine if a waiver is available.

(H) Determine if there is any regulatory or statutory bar which prohibits favorable consideration of the application or if a waiver is required. It is important to note that HRIFA adjustment cases are not subject to the limitations and requirements of  245 of the Immigration and Nationality Act, such as the bars to adjustment of status for illegal entry or unlawful employment.

(I) Check for A or G status. Although unlikely, if a HRIFA applicant indicates he or she previously or currently held A or G non-immigrant status, Form 1-566 is required. If the State Department's response to the 1-566 indicates that the applicant has diplomatic immunity, Form 1-508 will also be required