The INS has finally released the rule that will implement section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) which has amended some of the harsher provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). It allows nationals of certain Central American and former Soviet bloc countries to apply for relief under the law as it existed prior to the IIRAIRA. The principle areas addressed in the interim rule are jurisdiction over NACARA applications and the treatment of the extreme hardship requirement for relief.

This rule is an interim rule that will go into effect on June 21, 1999. It is based on comments received in response to the proposed rule issued on November 24, 1998. The INS will still accept comments on the rule until July 20, 1999. The Service decided to issue an interim rule because while there are still many issues on which it wants additional comments, there are many people dependent on the relief NACARA will provide who should not be made to wait any longer.

The interim rule does not make any change in the jurisdictional plan announced in the proposed rule. Thus, it is still shared between asylum officers and immigration courts. If the applicant for NACARA relief has an asylum claim pending with the INS, the asylum officer will also adjudicate the NACARA petition. Similarly, if the asylum claim is pending before an immigration court, the court will adjudicate the NACARA petition. A claim is considered pending until a final order is issued. There are two exceptions to this rule. The first is for applicants who registered for benefits under the American Baptist Churches v. Thornburgh settlement and whose cases before the immigration court were administratively closed or continued. These ABC class members are allowed to file NACARA applications with the INS. The second exception applies to qualified family members (children and spouses) of an individual with a NACARA application pending before the INS, or has already been granted NACARA relief. This scheme results in some people who are NACARA eligible but are not eligible to affirmatively apply for relief with the Service. They must wait until they are put into proceedings, then they can raise a claim for NACARA relief before the immigration court. Many commentators requested the INS develop a procedure for placing these people into proceedings, but the Service is waiting to see how large an impact adjudicating the already pending NACARA eligible cases has before deciding what to do about this.

The interim rule also sets forth requirements for initial substantive eligibility. NACARA requires that the applicant maintain continuous physical presence in the U.S. Brief, casual and innocent absences are allowed. In defining and applying these terms the INS decided to define brief as visits of no longer than 90 days, with all visits totaling less than 180 days. Absences of greater length are to be considered on a case by case basis. The applicant has the burden of proving that the visit was casual and innocent, regardless of the length of the visit.

One of the most important issues addressed by the interim rule is the issue of extreme hardship to the alien or a qualified relative who is a U.S. citizen or legal permanent resident. Many immigration advocates argued for a presumption of extreme hardship upon deportation for all potential NACARA beneficiaries. The INS declined to adopt such a presumption, but did adopt a rebuttable presumption of extreme hardship for ABC class members who are eligible for NARACA relief. This is an extremely important provision, and gives hope to the 240,000 ABC class members who have now been in the U.S. for over 10 years in many cases. Since the ABC settlement in 1990, they have legally been living and working in the U.S., during which time they have developed extensive ties to this country.