(2) Special Processing Actions Relating to NSC Adjudication. While a large percentage of applications will be able to be adjudicated at the Northern Service Center without referral to a local office for an interview, many others will require such referral and interview. The following types of cases must be referred to a local office for interview and adjudication:

• Any case where the adjudicator is not in possession of all A-files pertaining to the applicant.
• Any case where the evidence presented does not fully support the claimed eligibility or where there is any discrepancy between documentation provided and the information contained in the Service file or other government record pertaining to the applicant.
• Any case involving an inadmissible alien (other than those inadmissible under grounds which HRIFA specifically exempts).
• Any case involving a waiver of inadmissibility.
• Any case involving a medical condition which would result in a finding of inadmissibility.
• Any case where the evidence of presence in the U.S. on 12/31/95 is supported only by non-INS documentation.
• Any case in which there is any question as to the nationality of the applicant (e.g., where the applicant claims to have derived or acquired Haitian nationality, or where there is a question as to whether he or she may have lost such nationality).

• Any case in where there are doubts about the familial relationship between the principal applicant and one or more of the dependents.

In any case being referred, the service center adjudicator must provide in the file for the interviewing officer a memorandum or informal notes explaining the discrepancies noted or other reasons for conducting the interview.

If there are no issues to be resolved by interview, approve or deny the case on its merits, and follow NSC guidelines for quality assurance and supervisory review.

(3) Special Processing Actions Relating to Local Office Interview and Adjudication. In adjudicating an application for adjustment of status filed by an alien who requires a waiver of inadmissibility, remember that while HRIFA does not give the Service discretionary authority to deny the application for adjustment itself, the Service does retain its discretionary authority when adjudicating any application for a waiver of inadmissibility. If the alien is statutorily ineligible for adjustment of status without a waiver, and his or her application for a waiver is denied as a matter of discretion, the adjustment application must also be denied. During the course of the interview in a case involving such waiver, the adjudicator should elicit all information, both favorable and unfavorable, which has a bearing on the exercise of administrative discretion regarding the waiver.

If the applicant fails to appear for a required interview (and INS received no request for rescheduling), the application for adjustment of status must be denied for failure to prosecute.

If the case does not involve an application for a waiver, the scope of the interview should be limited just to the factors pertaining to eligibility for adjustment under HRIFA:

• Nationality;
• Admissibility
• If the alien is a principal applicant, proof of physical presence on 12/31/95 (including authenticity of documentation);
• If the alien is either a principal applicant or an unmarried son or daughter of a principal applicant, proof of continuity of physical presence (including authenticity of documentation);
• Proof of eligibility in one of the five qualifying classes
• Relationship of dependents

If office policy permits, field examiner procedures may be used when appropriate for determining veracity of claims and eligibility for benefits.

(4) Adjudicator’s Note. (A) Determining Case Status and Jurisdiction. Because aliens affected by Pub. L. 105-277 were in a variety of lawful and unlawful immigration statuses at the time of passage, you may encounter applications which fall within the jurisdiction of the Immigration Court or the Board of Immigration Appeals. Some applicants will not be in any sort of removal proceedings, others may be in proceedings, still others may have received a final order of removal which has not been executed. Before adjudication, determine the current status and jurisdiction. Jurisdiction rests with the Immigration Court (or BIA) in any case where an OSC or NTA has been served on the Court and no final order (or order administratively closing the case) has been issued, or if a motion to reopen filed on or before May 11, 1999, is pending with the Court or BIA. If a final order has been issued, the proceedings have been administratively closed, or if action on any pending motion to reopen or reconsider (filed prior to May 1 1, 1999) has been continued indefinitely with the consent of the Service, jurisdiction rests with INS. Furthermore, if any pending motion to reopen was filed was filed on or after May 11, 1999, jurisdiction also rests with INS, since the implementing regulations provide that the Immigration Court only regains jurisdiction for HRIFA adjustment purposes if a motion to reopen proceedings is filed prior to the publication date of the regulation. Transfer out any application where the jurisdiction does not lie with the Service and notify the applicant of the action. Some applicants may have an asylum application pending at an asylum office or have some other action pending before the Service. Once you determine the disposition of the HRIFA application, actions may be required to conclude other Service adjudicative procedures. In the event the HRIFA application is denied, follow-up action may be required to reinitiate other pending matters.

(B) Determining Eligibility: Nationality and Relationship. Every HRIFA applicant and dependent must be a national of Haiti. Dependents of other nationalities do not qualify. Ordinarily, nationality is established by a birth certificate. Other documentation, such as a passport, is secondary evidence and may be accepted if primary evidence is unavailable. Evidence of dependent relationships must be established by birth or marriage certificates, divorce or adoption decrees, etc.

(C) Determining Eligibility: Classification as a Principal Applicant under HRIFA. In order to be granted adjustment of status under HRIFA, the alien applying as a principal applicant must establish that he or she falls within one of the categories described in section 902(b)(1) of HRIFA:

• For those adjustment applicants who claim to have applied for asylum before either the Service or EOIR prior to December 31, 1995, the INS or EOIR records are definitive. Because locating the INS or EOIR record may, in some cases, prove difficult, it is important that the applicant provide whatever information or document he or she can (such as a copy of the Form 1-589 previously filed), especially in cases where the alien may have used a slightly different name.
• Likewise, for those adjustment applicants who claim to have been paroled into the United States prior to December 31, 1995, the Service record contained in the alien's file or in NIIS is definitive. As with cases based on asylum applications filed before December 31, 1995, any person claiming to have been paroled prior to December 31, 1995, should submit whatever documentation he or she has to that effect (such as a copy of the Form 1-94) to assist the Service in locating the proper record. It is important to remember the distinction between being paroled into the United States under section 212(d)(5) of the Act, and being released from custody on a conditional parole under section 236(a)(2)(B) of the Act. As used in HRIFA section 902(b))(1)(B), the term "parole" refers only to those aliens were paroled under section 212(d)(5).
• For applicants seeking classification under one of the three categories for children, Service and EOIR records are unlikely to be definitive. In some cases, the Service record may show that the child was paroled into the United States as an unaccompanied minor and placed into appropriate foster care. In other cases, there may be no Service record of the child at all, let alone any record of his or her arrival as an unaccompanied minor or his or her being orphaned or abandoned. With regard to children, the statute does not require any prior interaction between the child and the Service. If the alien who is otherwise eligible under HRIFA can prove that he or she arrived in the United States (regardless of whether he or she was admitted, paroled, or entered without inspection) prior to December 31, 1995, that he or she was a child at the time of arrival and on December 31, 1995, and that he or she falls within one of the three subcategories for children set forth in section 902(b)(1)(C)(i) through (iii) of HRIFA, he or she may be granted adjustment. As in all such immigration proceedings, the burden of proof is on the applicant, but such burden can be met through the submission of satisfactory records from the appropriate Federal, State, or local court or child welfare agency. The records must have been created at the time the alleged event occurred and must be from a court or agency having jurisdiction over such matters where and when the alleged event occurred. With regard to orphaned and abandoned children, remember that the event must have occurred while the applicant was still a child (i.e., under 21 years of age and unmarried). Also remember that in the case of an abandoned child, the abandonment must have occurred prior to April 1, 1998, and that the child must have remained abandoned thereafter. However, an otherwise-eligible applicant could have either attained the age of 21 or married on or after January 1, 1996, or the date of orphanage or abandonment, whichever comes latest, and still quality for adjustment as a child under HRIFA.

(D) Determining Eligibility: Entry and Continuous Physical Presence. Each HRIFA principal alien must demonstrate presence in the United States on December 31, 1995, continuing until the date on which adjustment of status is approved. Each unmarried son or daughter HRIFA applicant must demonstrate presence in the United States commencing not later than December 31, 1995, and continuing until the date on which adjustment of status is approved. Absences, with or without prior Service approval, totaling 180 days or less have no effect on eligibility. Furthermore, under certain circumstances, time outside the United States may be tolled and not count toward the 180-day maximum Accordingly, the implementing regulations provide that:

• Travel pursuant to an advance parole authorization granted by the Service, regardless of whether such travel exceeds 1 80 days, has no effect on eligibility.
• For an applicant who after December 31, 1998, departed from the United States without an advance parole, time spent outside the United States counts toward the 180-day cumulative time period.
• For an applicant who departed the United States between October 21, 1998, and December 31, 1998, time spent outside the United States on or after October 22. 1998, and prior to July 12,1999, does not count toward the 1 80-day cumulative time period. This provision was included in the regulations in order to allow otherwise-eligible individuals who were required to depart prior to the date of the field guidance an advance parole an opportunity to seek parole authorization from the Director of the NSC.
• Time spent outside the United States after the alien has submitted a request for parole into the United States for the purpose of filing an adjustment application under HRIFA and before the alien is actually paroled for such purpose, does not count toward the 180 day cumulative total.

Physical presence for HRIFA purposes may be established in any of several specific ways identified in paragraph (c)(1). HRIFA applicants must produce documentation which is verifiable, through Service records, the records of other government agencies including public schools, or (if the applicant is applying as a child) the records of a private or religious school he or she attended. Affidavits and other secondary evidence may be accepted in unusual circumstances, if primary evidence is unavailable, @l if such secondary evidence documents one or more of the specific actions enumerated in paragraph (c)(1) and which is conclusively verified by Service records. For example, an affidavit may be accepted which attests to the fact that an applicant was previously granted an INS employment authorization provided that Service records corroborate the issuance of that document. Documentation of continuous presence may be accepted from a wider range of sources than documentation of physical presence on 12/31/95. An interview is required in any case involving an applicant who has no prior Service record.

If file review indicates possible unexplained absence from the U.S. (e.g., a subsequent apprehension along the border, an application which was formally abandoned or other similar situation) the case should be referred to the appropriate local office for questioning and resolution.

Note: Departure from the United States after the filing of the application for adjustment constitutes an abandonment of the application for adjustment of status, unless the applicant applied for an advance parole prior to his or her departure, and the Service granted such advance parole request. Furthermore, the time spent outside the United States during an unauthorized absence counts toward the 1 80 day maximum allowed under the statute; this is likely to be significant if the alien either returns to the United States and files a new application for adjustment or files an 1-1 31 seeking parole into the U.S. for the purpose of filing a new 1-485. Note: Departure from the United States after the filing of the application for adjustment constitutes an abandonment of the application for adjustment of status, unless the applicant applied for an advance parole prior to his or her departure, and the Service granted such advance parole request. Furthermore, the time spent outside the United States during an unauthorized absence counts toward the 1 80 day maximum allowed under the statute; this is likely to be significant if the alien either returns to the United States and files a new application for adjustment or files an 1-1 31 seeking parole into the U.S. for the purpose of filing a new 1-485.

(E) Determining Eligibility: Inadmissibility. The grounds of inadmissibility specified in the screening notes (paragraph (2)(D), above) are inapplicable. Other grounds may be waived, on a case-by-case basis. provided eligibility exists Pursuant to other provisions of the Act. Waiver applications, with fee, may be filed and processed concurrently with a HRIFA adjustment application, All waiver cases must be referred for a personal interview to the local office having jurisdiction over the applicant's residence.

(F) Dependent Eligibility . No dependent's application for adjustment may be approved until the adjustment application of the principal applicant has been approved. Dependents already present in the United States should be encouraged to submit their applications simultaneously with the principal applicant.

Note: If the dependent relationship is created after the principal's status is adjusted (e.g., through a marriage, birth or adoption which occurred subsequent to the adjustment), HRIFA dependent status is not permitted. In such situations the principal would be required to submit an 1-130 petition for his or her dependent, if the dependent is not able to qualify as a principal HRIFA applicant in his or her own right. Also note that unlike HRIFA principals, HRIFA dependents do not have a filing deadline. Note: If the dependent relationship is created after the principal's status is adjusted (e.g., through a marriage, birth or adoption which occurred subsequent to the adjustment), HRIFA dependent status is not permitted. In such situations the principal would be required to submit an 1-130 petition for his or her dependent, if the dependent is not able to qualify as a principal HRIFA applicant in his or her own right. Also note that unlike HRIFA principals, HRIFA dependents do not have a filing deadline.

(e) Case Closing Actions. (1) Approval. Endorse the approval block on the 1-485. If the case is being approved at the local office following an interview, endorse the "applicant interviewed" block on the application. Sign Form 1-1 81 and endorse it with the correct adjustment code, office information and date of action, Because of the extensive Congressional reporting requirements contained in the HRIFA statute, if was necessary for the Service to create a multiplicity of class codes in order to be able to capture the requisite information. It is extremely important that class of admission codes be applied properly and in accordance with this table:

Note: In some cases, the applicant may have applied under one category, but the adjudicating officer may find that he or she is more appropriately classified under another. In such cases, the adjudicating officer should approve the application under the more appropriate classification. For example, a child who was paroled into the United States, may have applied for adjustment of status claiming to be an orphan (classification HD-6), but be unable to provide evidence of the death of his or her parents. If the Service records clearly show that the parole took place before December 31, 1995, and the alien is otherwise eligible for adjustment under HRIFA, approve the application under classification HB-6. Furthermore, in some cases, the code that the adjudicating officer determines is appropriate will differ from the one that was indicated at the time of initial data entry by the employee of the contractor. It is the responsibility of the adjudicating officer to ensure that the correct code is assigned at the time of case approval. Note: In some cases, the applicant may have applied under one category, but the adjudicating officer may find that he or she is more appropriately classified under another. In such cases, the adjudicating officer should approve the application under the more appropriate classification. For example, a child who was paroled into the United States, may have applied for adjustment of status claiming to be an orphan (classification HD-6), but be unable to provide evidence of the death of his or her parents. If the Service records clearly show that the parole took place before December 31, 1995, and the alien is otherwise eligible for adjustment under HRIFA, approve the application under classification HB-6. Furthermore, in some cases, the code that the adjudicating officer determines is appropriate will differ from the one that was indicated at the time of initial data entry by the employee of the contractor. It is the responsibility of the adjudicating officer to ensure that the correct code is assigned at the time of case approval.

(A) Upon approval at the NSC:

• Update CLAIMS, thereby ordering the approval notices and production of the alien registration card (Form 1-551), and entering new data into the Central Index System;
• If the file contains an unadjudicated asylum application, offer the alien the opportunity to withdraw that application by sending him or her a letter of withdrawal which can be signed and brought to the local office when he or she appears for ADIT processing (the local office person handling the I-551 processing should place the resulting withdrawal letter in the file and notify the appropriate asylum office so that the RAPS record may be updated); and
• If there is no other Service action pending, route the file to the file room for storage. If other Service action is pending, ensure that appropriate steps are taken.

(B) Upon approval at a local office:

• Advise the applicant of the decision (in person if the application is approved during the interview, by mail if it is approved afterwards);
• Process the applicant for an I-551;
• Endorse the passport with the "Processed for 1-551 stamp" or issue a temporary 1-551;
• If the file contains an unadjudicated asylum application, offer the alien the opportunity to withdraw that application. Place the resulting withdrawal letter in the file and notify the appropriate asylum office so that the RAPS record may be updated; and
• If there is no other Service action pending (such as an application or petition to be adjudicated, Deportation Docket Control to be cleared, or NAILS lookout to be updated), route the file to the NSC for CIS and CLAIMS updates and 1-551 production. If such other Service action is required, ensure that such action is taken and then route the file to the NSC.

(2) Denial. If a HRIFA adjustment application is denied, prepare a denial notice setting forth the specific basis for the adverse action. The denial notice may be served by personal service in accordance with 8 CFR 103.5a(a)(2). As with section 245 adjustment cases, HRIFA decisions are not appealable. The Immigration Court has jurisdiction to reconsider HRIFA eligibility during the course of a removal hearing. If the alien is:

• Already subject to a final order of removal, certify the case for review by the immigration judge, as described in paragraph (4), below.
• Not already in removal proceedings, but the application is denied and the alien is not maintaining status, institute removal proceedings.
• In removal proceedings which were administratively closed, or if a motion to reopen or reconsider was continued indefinitely with the Service's consent, notify district counsel so that the removal proceedings may be recalendared or action on the motion may be reinstated.

(3) Supervisory Review. HRIFA decisions are subject to the same review and quality assurance procedures as other adjustment of status cases. Follow local procedures for such review.

(4) Appeals and Certifications. If a HRIFA adjustment cases is filed with, and denied by, the Service after the alien has been ordered removed by an immigration judge in proceedings in Immigration Court, certify the adverse decision for review to the Immigration Court which ordered the removal, in accordance with 8 CFR 245.15(r)(3). It is not necessary to certify denied cases where the alien has not been ordered removed, since the immigration judge has authority to reconsider HRIFA eligibility, along with other forms of relief, during the course of the removal proceedings. In the unlikely event that a HRIFA application is denied and the alien is maintaining valid non-immigrant status, certify the decision to the Administrative Appeals Office in accordance with 8 CFR 103.4(a)(4).

(5) Feedback to NSC. For any applications adjudicated at the local office, and especially those which are denied, the adjudicator should review the case to determine whether there is any information which should be relayed to the NSC to assist that office in determining which cases should be interviewed. Such information should be directed to "NSC HRIFA 1-485 POC" as a memo attached to the file or by cc: Mail.

(f) Ancillary Applications. (1) Waivers. Various immigrant waivers are available to HRIFA applicants on a case-by-case basis. Waivers may be filed concurrently with the application for adjustment or may be filed later, if an inadmissibility ground is identified subsequent to initial filing. Adjudication of a waiver should be completed in the local office, at the time of interview.

(2) Advance Parole: Alien Present in U.S. at Time of Request. The Nebraska Service Center Director is delegated authority to authorize advance parole of aliens whose properly filed applications for adjustment under HRIFA are pending at the Nebraska Service Center, except those cases in which a final order has been issued. In any case where the alien is determined to be in removal proceedings, do not adjudicate the parole request, transfer the HRIFA application to the appropriate Immigration Court and the parole request to the local office. If the alien is not in proceedings, adjudicate the parole request, granting parole for the amount of time required for any legitimate business or personal reason. If the alien is the subject of a final order, the local office should contact the Assistant Commissioner for International Affairs in Headquarters regarding any parole request.

(3) Parole Authorization: Alien Outside the U.S. at Time of Request. Parole authorization requests for the purpose of filing an application by aliens eligible for HRIFA adjustment may be filed by prospective applicants who are not physically present in the United States, provided they are otherwise qualified for HRIFA adjustment as a principal applicant. If otherwise eligible, principal aliens who have not been outside of the U.S. for more than 180 days in the aggregate after December 31, 1995 (not counting any time which may be tolled as discussed above), may submit an application for parole authorization together with a photocopy of a fully documented

HRIFA adjustment application (except for the tee, fingerprints, medical examination and police clearances) to the Nebraska Service Center. A HRIFA dependent not physically present in the United States may not be granted parole authorization unless he or she otherwise meets all HRIFA requirements and the application for the principal applicant has been approved.

A parole authorization issued in such circumstances must be noted: "You must properly file an application for adjustment of status within 60 days of your parole into the United States, or March 31, 2000, if you are filing as a principal applicant, whichever comes first. Failure to do so may result in termination of parole and institution of removal proceedings."

If the 1-131 is approved, the 1-512 should be prepared by NSC and delivered to the alien through the American Embassy or American Consulate having jurisdiction over the alien's location, using normal procedures for transmission of documents to consular posts (e.g., DHL or similar courier service). Include a copy of the alien's application for parole (including the supporting documents) and an explanation that the parole authorization has been issued pursuant to 8 CFR 245.15(t)(2), and request that the consular personnel verify the alien's identity and review the case for possible fraud before issuing the document. In setting the expiration date for the 1-512, the NSC should allow a reasonable amount of time for (a) the 1-512 to reach the consulate, (b) the consulate to call in and interview the alien, and (c) the alien to make arrangements to travel to the United States. The 1-512 should authorize a single-entry parole,

Note: In order to be adjudicated by the Director of the NSC pursuant to 8 CFR 245.15(t)(2), requests for advance parole must be filed and approved by March 31, 2000. This applies to all HRIFA applicants and potential applicants who are outside the United States. Note: In order to be adjudicated by the Director of the NSC pursuant to 8 CFR 245.15(t)(2), requests for advance parole must be filed and approved by March 31, 2000. This applies to all HRIFA applicants and potential applicants who are outside the United States.

(4) Employment authorization. A HRIFA applicant may request an EAD concurrently with, or subsequent to. the filing of his or her HRIFA application. For principal applicants, if the adjustment application is supported by an INS-issued or INS-received document to establish presence in the United States on December 31, 1995, the EAD should be issued by the NSC as soon as the preliminary screener determines such (unless the applicant is clearly ineligible for adjustment under HRIFA, in which case the application should be routed for an expeditious denial). For dependent applicants, employment authorization may be issued as soon as the principal applicant case is so documented, provided the dependent applicant has submitted satisfactory evidence of the relationship. However, if the principal's application is supported by evidence of physical presence on December 31, 1995, consisting of non-INS documentation, such immediate action should not be taken on either the principal or dependent's EAD request. However, because the statute requires that an EAD application must be approved if a HRIFA adjustment application has been pending for 180 days or longer, the office having jurisdiction over the case at that point must ensure that an EAD is issued by the 180th day.

Previously authorized employment by a HRIFA applicant based on some other employment eligibility (e.g., employment authorization issued as the result of a pending asylum application or the Deferred Enforced Departure (DED) program for Haitians initiated December 23, 1997) does not terminate because of the filing of a HRIFA adjustment application.

If the 1-765 and 1-485 are not filed concurrently, the Service is not bound by the statutory requirement that an EAD be issued if the application is pending for 1 80 days. In that case, the Service would have to adjudicate the 1-765 within 90 days of its filing, or with 180 days of the filing of the 1-485, whichever comes later.

Note: EADs which were issued pursuant to the DED program were automatically extended until December 22, 1999, even though the program itself was not extended. Note: EADs which were issued pursuant to the DED program were automatically extended until December 22, 1999, even though the program itself was not extended.