The INS has announced a proposed final rule establishing procedures for Haitians adjusting status to legal permanent resident under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA). The rule will become effective on June 11, 1999, and will be open for public comments until July 12, 1999.

Section 902 of HRIFA provides that the Attorney General shall adjust status of certain Haitian nationals to that of lawful permanent resident. To qualify for adjustment under § 902, the applicant must be a Haitian national present in the U.S. on December 31, 1995, have been continuously physically present in the U.S. since that time, not be subject to certain grounds of inadmissibility under § 212(a) of the INA, file an application to adjust status by April 1, 2000, and fall within one of five classes of persons defined in HRIFA. These classes are: Haitian nationals who applied for asylum before December 31, 1995; Haitian nationals who were paroled into the U.S. before December 31, 1995 on the grounds of credible fear of persecution; Haitian children who arrived without parents and have remained without parents; Haitian children who were orphaned after arrival; and Haitian children who were abandoned after arrival.

The benefits of adjusting status under HRIFA are numerous. First, the applicant may have entered illegally. Second, the applicant may have worked without authorization, and may have overstayed an authorized visa. Third, applicants are not subject to the visa preference system, exempting them from the worldwide quotas. Fourth, certain grounds for inadmissibility do not apply, such as becoming a public charge, illegally entering, or violating certain documentary requirements. Fifth, HRIFA applicants who were paroled into the U.S. and are now in exclusion or removal proceedings are not barred from applying for adjustment of status.

One of the most difficult barriers to proving eligibility to relief will be showing the applicant was in the U.S. on December 31, 1995. If the applicant was admitted through legal channels, the INS documentation will provide a rebuttable presumption that the applicant was present.

Application procedures for HRIFA relief will depend on the position of the applicant. Applicants who have a case pending before the Immigration Court will have their application heard by that court. Applicants with an appeal pending before the Board of Immigration Appeals will have their case remanded to the Immigration Court for an adjudication of the HRIFA petition. Applicants with a case pending before either a court or the Board may apply for relief with the INS if they receive administrative closure of their case. Administrative closure requires the consent of the Service. Applicants who are under a final order of exclusion, deportation, or removal are to file their applications with the INS, unless the applicant has a pending motion to reopen before the Board or a court, in which case the application will be heard by one of those bodies.

Employment authorization is to be granted if the HRIFA applicant independently qualifies. Otherwise, employment authorization is to be granted only when the HRIFA application has been pending for 180 days.