#2925: Final HRIFA Regulations (fwd)

[Robert Corbett <bcorbett@netcom.com>]

From: Merrill Smith <advocacy@bellatlantic.net>

Final INS regulations implementing the Haitian Refugee Immigration
Fairness Act of 1998 were approved last week and are likely to be
published in the Federal Register by Thursday or Friday. (The website is
www.nara.gov/fedreg but you can also check www.ins.usdoj.gov for
updates.)

In a nutshell: no substantive changes in fee requirements (though some
procedural changes); the "90 day guideline" is dropped (but it is not
clear what substantive difference this will make); requirements for
children without parents, orphans and abandoned children have been
relaxed, significantly in some cases; there are minor improvements in
HIV and fraud waiver adjudications, and police clearance  and
nationality documentary requirements; there are IMPORTANT new filing
options as the deadline approaches.

Highlights:

- applicants may submit, as a minimum for getting in under the deadline,
a completed Form I-485 and the fee or a fee waiver request by March 31.
Beginning March 27, local INS district offices and sub-offices will be
receiving, date-stamping and forwarding on to Nebraska these
applications. Provisions will be made for receiving them up until
midnight March 31.

NOTE: Some, but not all, of the further documentary requirements have
been dropped or relaxed. But, if you do not submit everything remaining
that is required, your application may be timely but you will likely
receive a Request For Evidence fairly promptly requiring you to submit
the remainder within 88 days. If you do not comply, your application may
be deemed to have been abandoned. If your fee waiver request is denied,
you will have 30 days from the denial to come up with the fee.

Aside from this, there are neither family caps nor reductions in the
fees required.

- the "90 day guideline" for documentation establishing continuity of
physical presence has been dropped but it is not clear what difference
this will make as to whether applications can be granted at the Service
Center without a further interview. Service Center adjudication
guidelines still seek paper trails without gaps greater than 90 days and
the regs do not appear to change this, although they perhaps could be
changed by new instructions.

- a copy of a letter requesting Haitian birth records and evidence of
other efforts to obtain such documentation will allow secondary evidence
of nationality to be considered at the interview or before the IJ, if
the documents were not obtainable in time. (Secondary evidence includes
baptismal or other religious records, passports, INS records,
statements, etc.)

- local police clearance requirement is waived for localities (e.g.,
NYC) known not to provide them;

- determination of whether a child was without parents in the United
States will now focus on the existence, or non-existence, of a
parent/child relationship and not whether the parent was ever in the
United States. (I.e., "child without parents in the United States," has
been modified with commas to read "child, without parents, in the United
States.")

- "Orphan" has been broadened to include persons who have one parent
lost or presumed by the Haitian government to be dead and the other
parent is unable to provide proper care and provides written release to
the child for immigration to the U.S. Orphans now also include people
whose parents died after they turned 21 (as long as the applicant was
under 21 at December 31, 1995).

- Abandoned children need not have been officially declared so as long
as they show that they meet the requirements of the State law for such a
declaration.

- the statutory requirements for fraud and HIV waivers are untouched
but, going to the discretionary aspects of such waivers, adjudicators
are to take into account conditions in Haiti at the time of departure
(re fraud) and whether the applicant was paroled to receive medical
treatment for HIV/AIDS (re HIV). (Does this overcome the ‘back door,'
i.e., no-cost-to-the-government, public charge provision? Good question!
I'd certainly argue that it does.)

- The Nebraska Service Center's authority to issue advance parole for
HRIFA dependents will be extended beyond March 31 by Federal Register
notice.
-- 
Merrill Smith
Haiti Advocacy, Inc.
1309 Independence Avenue SE
Washington DC 20003-2302
(202) 544-9084
(202) 547-2952 fax
http://members.bellatlantic.net/~advocacy