Restrictions on Legal Assistance to Aliens, 51696-51704 [2013-20040]

Download as PDF 51696 Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules stakeholders additional time to assess the impacts of the proposal, review technical documents in the docket, and prepare comments. This document extends the comment period from September 9, 2013, to October 9, 2013. Comments, identified by docket identification (ID) number EPA–HQ– OPPT–2012–0018, must be received on or before October 9, 2013. DATES: Follow the detailed instructions as provided under ADDRESSES in the Federal Register document of June 10, 2013. ADDRESSES: For technical information contact: Cindy Wheeler, National Program Chemicals Division (7404T), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 566–0484; email address: wheeler.cindy@epa.gov. For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554– 1404; email address: TSCA-Hotline@ epa.gov. SUPPLEMENTARY INFORMATION: This document extends the public comment period established in the Federal Register of July 23, 2013 (78 FR 44089) (FRL–9394–1). EPA is hereby extending the comment period, which was set to end on September 9, 2013, to October 9, 2013. To submit comments, or access the docket, please follow the detailed instructions as provided under ADDRESSES in the June 10, 2013 (78 FR 34820) (FRL–9342–3), Federal Register document. If you have questions, consult the technical person listed under FOR FURTHER INFORMATION CONTACT. mstockstill on DSK4VPTVN1PROD with PROPOSALS Environmental protection, Formaldehyde, Reporting and recordkeeping requirements, Toxic substances, Wood. Dated: August 15, 2013. Louise P. Wise, Acting Assistant Administrator, Office of Chemical Safety and Pollution Prevention. [FR Doc. 2013–20414 Filed 8–20–13; 8:45 am] BILLING CODE 6560–50–P VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 40 CFR Part 770 [EPA–HQ–OPPT–2011–0380; FRL–9397–3] RIN 2070–AJ44 Formaldehyde; Third-Party Certification Framework for the Formaldehyde Standards for Composite Wood Products; Extension of Comment Period Environmental Protection Agency (EPA). ACTION: Proposed rule; extension of comment period. AGENCY: FOR FURTHER INFORMATION CONTACT: List of Subjects in 40 CFR Part 770 ENVIRONMENTAL PROTECTION AGENCY EPA issued a proposed rule in the Federal Register of June 10, 2013, concerning a third-party certification framework for the formaldehyde standards for composite wood products. After receiving requests for an extension, EPA extended the comment period from August 9, 2013, to August 26, 2013. EPA received additional comments and believes it is appropriate to further extend the comment period in order to give stakeholders additional time to assess the impacts of the proposal, review technical documents in the docket, and prepare comments. This document extends the comment period from August 26, 2013, to September 25, 2013. DATES: Comments, identified by docket identification (ID) number EPA–HQ– OPPT–2011–0380, must be received on or before September 25, 2013. ADDRESSES: Follow the detailed instructions as provided under ADDRESSES in the Federal Register document of June 10, 2013. FOR FURTHER INFORMATION CONTACT: For technical information contact: Erik Winchester, National Program Chemicals Division, Office of Pollution Prevention and Toxics (7404T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 564–6450; email address: winchester.erik@epa.gov. For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554– 1404; email address: TSCA-Hotline@ epa.gov. SUPPLEMENTARY INFORMATION: This document extends the public comment period established in the Federal Register of July 23, 2013 (78 FR 44090) (FRL–9393–9). EPA is hereby extending the comment period, which was set to end on August 26, 2013, to September 25, 2013. SUMMARY: PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 To submit comments, or access the docket, please follow the detailed instructions as provided under ADDRESSES in the June 10, 2013, Federal Register document (78 FR 34796) (FRL– 9342–4). If you have questions, consult the technical person listed under FOR FURTHER INFORMATION CONTACT. List of Subjects in 40 CFR Part 770 Environmental protection, Composite wood products, Formaldehyde, Reporting and recordkeeping, Thirdparty certification. Dated: August 15, 2013. Louise P. Wise, Acting Assistant Administrator, Office of Chemical Safety and Pollution Prevention. [FR Doc. 2013–20409 Filed 8–20–13; 8:45 am] BILLING CODE 6560–50–P LEGAL SERVICES CORPORATION 45 CFR Part 1626 Restrictions on Legal Assistance to Aliens Legal Services Corporation. Notice of proposed rulemaking with request for comments. AGENCY: ACTION: This proposed rule updates the Legal Services Corporation (LSC or Corporation) regulation on legal assistance to aliens. The revisions are intended to implement three statutory changes on aliens eligible for legal assistance from LSC grant recipients that have been enacted since the pertinent provisions of the existing regulation were last revised in 1997. Those three changes are described in more detail in the Supplementary Information section of this preamble. LSC seeks comments on the proposed changes to the rule. LSC also seeks comments on specific items that it has identified in this notice. DATES: Comments must be submitted by October 21, 2013. ADDRESSES: Written comments must be submitted to Mark Freedman, Senior Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007; (202) 337– 6519 (fax) or 1626rulemaking@lsc.gov. Electronic submissions are preferred via email with attachments in Acrobat PDF format. Written comments sent to any other address or received after the end of the comment period may not be considered by LSC. FOR FURTHER INFORMATION CONTACT: Mark Freedman, Senior Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., SUMMARY: E:\FR\FM\21AUP1.SGM 21AUP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules Washington, DC 20007, (202) 295–1623 (phone), (202) 337–6519 (fax), 1626rulemaking@lsc.gov. SUPPLEMENTARY INFORMATION: LSC’s current appropriations restrictions, including those governing the assistance that may be provided to aliens, were enacted in 1996 and have been reincorporated annually with amendments. Section 504(a)(11) of the FY 1996 LSC appropriation prohibits the Corporation from providing funds to any person or entity (recipient) that provides legal assistance to ineligible aliens, subject to statutory exceptions. Public Law 104–134, Title V, section 504(a)(11), 110 Stat. 1321, 1321–54 (1996). After the alienage restrictions were enacted in 1996, LSC adopted an interim rule to implement these statutory requirements. 61 FR 45750 (August 29, 1996). While this rule was pending for comment, Congress passed the Kennedy Amendment, which expanded eligibility for LSC recipients to use non-LSC funds to provide related assistance to aliens who have been battered or subjected to extreme cruelty in the United States by family members. Public Law 104–208, Div. A, Title V, section 502(a)(2)(C),110 Stat. 3009, 3009–60 (1996). The Kennedy Amendment was repeated in the FY 1998 modification of the LSC appropriation restrictions. Thereafter, LSC’s annual appropriations have incorporated the FY 1998 restrictions by reference. Public Law 105–119, Title V, section 502(a)(2)(C), 111 Stat. 2440, 2511 (1997) incorporated by Public Law 113–6, Div. B, Title IV, 127 Stat. 198, 268 (2013) (LSC FY 2013 appropriation). In 1997, LSC revised Part 1626 to implement the Kennedy Amendment. 62 FR 19409 (April 21, 1997), amended by 62 FR 45755 (August 29, 1997). The substantive provisions in Part 1626 have not been changed since 1997. In 2003, LSC added a list of documents establishing the eligibility of aliens for legal assistance from LSC grant recipients as an appendix to Part 1626. 68 FR 55540 (Sept. 26, 2003). The appendix has not been changed since 2003. This proposed rule makes three changes in Part 1626 to conform the regulation to statutory provisions. The first proposed change would update the definition of aliens eligible for legal assistance under anti-abuse statutes. In the existing regulation, this definition appears in 45 CFR 1626.4, which in turn implements section 502(a)(2)(C) of the FY 1997 LSC appropriation. Public Law 104–208, 110 Stat. 3009 as repeated in FY 1998 and incorporated by reference in LSC’s VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 annual appropriations thereafter. Public Law 113–6, 127 Stat. 198 (2013) incorporating by reference FY 1998 appropriations. Since the last revision of the regulation in 1997, section 502(a)(2)(C) has been amended by antiabuse statutes to expand the definition of eligible aliens. The anti-abuse statutes are the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA), and the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA). These statutes permit LSC recipients to provide assistance to aliens who are direct victims of abuse and to other covered aliens who are not direct victims, such as family members and persons who may assist in law enforcement efforts. VTVPA and TVPRA create trafficking exceptions to the alienage prohibitions. VAWA amends section 502. Because the amended text of section 502 is not codified, the pertinent portion is available at www.lsc.gov/ about/regulations-rules/openrulemaking to aid in understanding how the proposed rule implements that provision. The second proposed rule change would implement the FY 2008 LSC appropriation expansion of eligibility for legal assistance to include alien forestry workers admitted to the United States as temporary workers under the H–2B program of the Immigration and Nationality Act (INA). The third proposed rule change is technical. The statutory basis for an existing category of eligible aliens under the regulation, persons granted withholding of removal from the U.S., has been relocated to a new section of the INA. The proposed rule also updates the definition of ‘‘related legal services’’ that may be provided to aliens because of abuse and related crimes to conform with statutory authority and previous LSC interpretations. The existing regulation includes an appendix that lists examples of documents acceptable to establish the eligibility of aliens for legal assistance from LSC grant recipients. The proposed rule would modify the appendix in three respects. First, the Corporation proposes to move the list of example documents from an appendix to the alienage regulation to a program letter because updating the example documents as immigration forms change is a ministerial function that does not alter the substance of the regulation. Second, the list is updated to include documentation that would establish PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 51697 eligibility for the categories of eligible aliens added in the proposed rule. Third, the list has been updated to include new eligibility documents for aliens covered under the existing regulation. The most extensive revisions in the proposed rule are to section 1626.4 of the regulation, and update that provision to conform to the statutory changes in alien eligibility that result from the trafficking statutes and VAWA. The VTVPA and TVPRA require that LSC and Federal agencies ‘‘shall expand benefits and services to victims of severe forms of trafficking in persons in the United States, and aliens classified as a nonimmigrant under section 1101 (a)(15)(T)(ii) of title 8 [family members of trafficking victims], without regard to the immigration status of such victims. 22 U.S.C. 7105, codifying VTVPA, Public Law 106–386, sections 107(b) and (e), 114 Stat. 1464, 1475, and 1477 (2000), and TVPRA, Public Law 108– 193, section 4,117 Stat. 2875, 2877 (2003). In 2006, VAWA amended the LSC alienage eligibility provision in section 502(a)(2)(C) to expand the categories of aliens to whom recipients may provide related assistance by adding aliens who (1) are victims of sexual assault or trafficking in the United States or (2) qualify for ‘‘U’’ visas under section 101(a)(15)(U) of the INA. Public Law 105–119, Title V, section 502(a)(2)(C), amended by Public Law 109–162, section 104, 119 Stat. 2960, 2978 (2006). The U visa provision of the INA allows aliens to remain in the United States for a limited period who are victims of a variety of abuse crimes, who may assist in law enforcement related to such crimes, or who are family members of victims. 8 U.S.C. 1101(a)(15)(U). The VAWA amendments in 2006 incorporated the VTVPA and TVPRA provisions. The two major changes resulting from the VAWA amendment of the LSC appropriations were that (1) LSC recipients are permitted to provide assistance to previously ineligible aliens who are entitled to remain in the U.S. under the anti-abuse statutes and (2) recipients may use LSC funds to assist these aliens. LSC issued two program letters to provide guidance to recipients on implementing the VTVPA, TVPRA and VAWA eligibility changes. Program Letter 05–2 (October 6, 2005) (addressing VTVPA and TVPRA); Program Letter 06–2 (February 21, 2006) (addressing VAWA). However, the existing regulation has not been updated to include the extension of eligibility under the anti-abuse statutes. E:\FR\FM\21AUP1.SGM 21AUP1 51698 Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules In addition to the changes resulting from the anti-abuse statutes, the FY 2008 LSC appropriation amended section 504(a)(11) to extend eligibility for assistance from recipients to forestry workers admitted to the U.S. under the H–2B temporary worker provisions in section 101(a)(15)(H)(ii)(b) of the INA. Public Law 104–134, section 504(a)(11)(E), 110 Stat. at 1321–55, amended by Public Law 110–161, Div. B, Title V, section 540, 121 Stat. 1844, 1924 (2007). Section 1626.11 of the LSC alienage regulation establishes eligibility for H–2A agricultural temporary workers, but has not been amended to implement the statutory extension of eligibility to forestry workers. On April 14, 2013, the Operations and Regulations Committee (the Committee) of the LSC Board of Directors (the Board) recommended that the Board authorize rulemaking to conform Part 1626 to statutory authorizations. On April 16, 2013, the Board authorized the initiation of rulemaking. Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a proposed rule amending Part 1626 with an explanatory rulemaking options paper. On July 22, 2013, the Committee recommended that the Board approve the proposed rule for notice and comment rulemaking. On July 23, 2013, the Board approved the proposed rule for publication in the Federal Register for notice and comment. A section by section discussion of the proposed rule is provided below. Authority Citations to the VTVPA, TVPRA, VAWA, the FY 2006 Appropriations Act, and the FY 2008 Appropriations Act are added. mstockstill on DSK4VPTVN1PROD with PROPOSALS 1626.1 Purpose No revisions have been made to this section. 1626.2 Definitions Paragraphs (b) and (c) have been changed to add references to § 1626.4 to the definitions of ‘‘eligible alien’’ and ‘‘ineligible alien.’’ This revision, along with others discussed subsequently, reflects a change in how the two sections on alien eligibility, § 1626.4 and § 1626.5, are described in the proposed rule. In the existing regulation, aliens eligible under antiabuse statutes (§ 1626.4) are described as persons to whom alienage restrictions do not apply, and aliens eligible because of immigration status (§ 1626.5) are described as eligible aliens. In the proposed rule, both § 1626.4 and § 1626.5 are described as establishing VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 categories of aliens who are eligible for assistance. The Corporation believes that this adds clarity to the rule’s identification of aliens who may be assisted by recipients. Paragraph (d) has been revised to identify the Department of Homeland Security (DHS) as the governmental entity that makes status adjustment determinations in place of the Immigration and Naturalization Service. Paragraph (f) of the existing regulation, the definition of persons ‘‘battered or subjected to extreme cruelty’’, has been moved to § 1626.4(c)(1). Paragraph (g) of the existing regulation, the definition of ‘‘[l]egal assistance directly related to the prevention of, or obtaining relief from, the battery or cruelty’’ has been moved to § 1626.4(b) and renamed with substantive revisions that are explained in the discussion of that section. These moves are part of the proposed rule’s consolidation of all terms exclusive to eligibility under anti-abuse statutes to § 1626.4. Existing definitions that apply to § 1626.4 and new definitions added in the interim rule appear in that section as revised. A new paragraph (f) is added that defines the term ‘‘anti-abuse statutes,’’ which is used to collectively describe the statutes that expand eligibility. 1626.3 Prohibition Technical revisions have been made to this section. 1626.4 Aliens Eligible for Assistance Under Anti-Abuse Laws This section is substantially rewritten to incorporate alien eligibility expansion under the VTVPA, TPVRA, VAWA, and resulting amendments to the LSC restrictions. The title of this section and of § 1626.5 have been revised to clearly state that these two sections of Part 1626 establish the two major categories of eligible aliens who are excepted from the restrictions on assistance: (1) aliens who are eligible for assistance under anti-abuse laws (covered in § 1626.4) and (2) aliens eligible for assistance based on immigration status (covered in § 1626.5). Paragraph (a) of this provision has been rewritten to incorporate into the regulation (1) the current language of section 502(a)(2)(C) of the appropriations restrictions, which contains the VAWA amendment expanding alien eligibility, and (2) the language of 22 U.S.C. 7105(b)(1)(B) implementing VTVPA and TPVRA. The introductory clause before paragraph (a)(1) tracks that of § 1626.5. As is the case with the new titles, this is intended PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 to clearly reflect that the two sections establish two distinct categories of aliens who are eligible for assistance. Paragraph (a) allows recipients to assist aliens eligible under the antiabuse statutes with any funds, including LSC funds, as permitted by those statutes. This replaces the superseded funding limitation in the existing § 1626.4, which requires that recipients use non-LSC funds to assist clients eligible under this provision. Paragraph (a)(1) in the proposed rule adopts language identifying eligible aliens from the VAWA amendment to section 502(a)(2)(C) of the appropriations restrictions. Persons ‘‘battered and subject to extreme cruelty’’ are eligible under the existing Part 1626 language, which adopts the definition of that term from immigration regulations implementing the 1994 VAWA. See 8 CFR 204.2(c)(1)(vi); 8 CFR 216.5(e); 8 CFR 1216.5(c)(3)(i). The proposed rule implements two changes from the VAWA amendment. First, the proposed rule eliminates the existing, but superseded, regulatory requirement that the battering or cruelty take place in the United States, a territorial restriction which has been eliminated by the VAWA amendment. Second, the proposed amendment implements statutory language eliminating the existing superseded regulatory requirement that persons be battered or subjected to extreme cruelty by a family or a household member. The proposed changes in paragraph (a)(1) also implement the VAWA amendment by adding two new groups of eligible aliens: (1) victims of sexual assault or trafficking in the United States and (2) persons qualified for ‘‘U visa’’ relief under section 101(a)(15)(U) of the INA. The existing limitation that only ‘‘related legal assistance’’ can be provided is retained in the VAWA amendment and the regulation. Paragraph (a)(2) adds language implementing 22 U.S.C. 7105 (codifying provisions of the VTVPA and TVPRA), which requires that LSC expand all services to ‘‘victims of severe forms of trafficking in the United States’’ as well as to some relatives of such victims. Unlike the VAWA provision, the VTVPA and TVPRA do not limit recipients to providing ‘‘related legal assistance.’’ Paragraph (b) is a relocated and provides a revised definition of ‘‘related legal assistance’’ that may be provided to VAWA-eligible aliens under section 502(b)(2) of the FY 1998 LSC appropriation, as amended. The VAWA amendment limits assistance to aliens to ‘‘related legal assistance.’’ The definition of such assistance is relocated E:\FR\FM\21AUP1.SGM 21AUP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules from the general definitions in § 1626.2, into § 1624.4 establishing eligibility for aliens under the anti-abuse statutes because the definition applies only to VAWA-eligible aliens covered by § 1626.4. The substance of the definition of related legal assistance is changed to use the same term for assistance, ‘‘related legal assistance,’’ as used in the VAWA amendment to the LSC appropriations. Paragraphs (1), (2), and (3) of the definition link the assistance to the three categories of aliens eligible under the anti-abuse laws, including the categories added by VAWA and included in the proposed rule. The closing paragraph of the definition of ‘‘related legal assistance,’’ following the three paragraphs, adopts LSC’s prior interpretation of permissible legal assistance for persons eligible under anti-abuse laws. The definition of ‘‘related legal assistance’’ in the proposed rule conforms to the interpretation of that term in the February 21, 2006 LSC Program Letter 06–2 providing guidance of the VAWA amendments. That program letter referenced LSC’s interpretation on the existing Part 1626 regulation. 62 FR 45757 (preamble to final rule) (Aug. 29, 1997). In that interpretation, LSC concluded that related legal assistance for abused aliens could include representation on matters such as domestic and poverty law, employment, housing, and benefits, so long as such matters would assist in preventing, protecting from, or ameliorating abuse. Id. This same protection is necessary to fully protect persons in the added groups of aliens eligible for assistance, and accordingly the language added to the definition from prior LSC interpretations provides direction to recipients and other interested parties on the scope of assistance that is permissible. Paragraph (c) adds definitions for the four groups of aliens eligible for assistance under the anti-abuse statutes. Paragraph (c)(1), the definition of persons ‘‘battered or subjected to extreme cruelty,’’ is part of the existing regulation and is relocated from the definitions in § 1626.2 to § 1626.4 on eligibility under the anti-abuse laws. The first sentence of paragraph (c) defines ‘‘battered or subjected to extreme cruelty’’ by cross-reference to that term as defined in DHS regulations. This will allow the definition to remain accurate if the DHS regulations change. The examples of prohibited abusive behavior that follow the cross-reference are taken directly from the language of existing DHS regulations. See 45 CFR 204.2(c)(1)(vi); 8 CFR 216.5(e); 8 CFR VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 1216.5(e)(3)(i). This language is the definition of ‘‘battered or subjected to extreme cruelty’’ in the existing regulation. Paragraph (c)(2), the definition of ‘‘sexual assault or trafficking,’’ derives from VAWA and the INA ‘‘U visa’’ provision and incorporates by cross-reference the definitions in those statutes. Paragraph (c)(3) incorporates the definition of the term ‘‘severe forms of trafficking’’ from the INA ‘‘T visa’’ provision, VTVPA and TVPRA. This language differs from the VAWA term ‘‘trafficking’’ in that it adds the words ‘‘severe forms.’’ LSC specifically seeks comment on whether the VAWA term ‘‘trafficking’’ differs from the VTVPA/TVPRA/INA term ‘‘severe forms of trafficking,’’ and, if so, how the terms are different and what evidence LSC recipients should rely on in distinguishing between these two terms for prohibited trafficking. Paragraph (c)(4) identifies persons ‘‘qualified for relief’’ under the U visa statute, section 101(a)(15)(U) of the INA. This includes persons who have been granted U visas, listed in paragraph (c)(3)(A). Because the term ‘‘qualified for relief’’ is not limited to persons who have been granted relief, the U visa paragraph also establishes eligibility for applicants for U visa relief and for persons who have not applied but who a recipient concludes are entitled to U visa relief. These latter two groups are included to permit recipients to represent aliens who have either applied for U visa relief or would, in the recipient’s determination, qualify for U visas but have not applied. The eligibility provisions for U visa qualified aliens who have not been granted U visa relief require that there be evidentiary support for a recipient’s determination of U visa qualification and eligibility. This standard is adopted from Rule 11 of the Federal Rules of Civil Procedure and is used to require recipients to have a factual basis for eligibility determinations. The last sentence of paragraph (c)(4) addresses the two categories of U visa relief, referred to in immigration forms as ‘‘primary U visa status’’ and ‘‘derivative U visa’’ status. Primary U visas are those sought by persons who are victims of abuse or who can assist with investigation or enforcement of such crimes, while derivative visas are those sought for family members of persons seeking primary U visas. Derivative U visa applicants are qualified for relief based on the eligibility of their family members applying for primary U visa status. The PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 51699 clarification in the proposed rule confirms that all U visa seekers are eligible for assistance without exclusion of applicants seeking derivative U visa status. The Corporation determined that this clarification would be useful to incorporate the analysis and conclusions of a recent Advisory Opinion from the LSC Office of Legal Affairs on U visa eligibility. See LSC Advisory Opinion AO–2013–003 (June 13, 2013). Paragraph (d) of the proposed rule addresses two issues regarding geographic location. As described below, LSC specifically requests comments on these issues. Generally, the 504(a)(11) provision regarding eligible aliens requires presence in the United States, a requirement set forth in § 1626.5. The anti-abuse laws enacted by Congress subsequent to the FY 1996 restrictions do not contain the same broad presence requirement. The first geographic location issue is the geographic location of the criminal activity that gives rise to the eligibility of the alien, addressed in paragraph (d)(1). The prohibitions of VAWA and the trafficking acts are not limited to activity within the United States. Similarly, the VAWA definition of ‘‘battered and extreme cruelty’’ was amended to eliminate the requirement that such conduct take place in the United States. The U visa provision in the INA requires that the criminal activity have ‘‘violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories or possessions of the United States.’’ 8 U.S.C. 1101 (a)(15)(U)(i)(IV)(emphasis added). The DHS United States Custom and Immigration Service (USCIS) has interpreted this ‘‘as requiring that the predicate activity violate the laws of the United States regardless of whether it occurred in the United States.’’ 72 FR 53030 (September 17, 2007)(emphasis added). The USCIS regulation makes clear that criminal activity violative of U.S. law sufficient for U visa eligibility need not take place in the United States. Similarly, because the geographic location restriction in the definition of ‘‘battered and subjected to extreme cruelty’’ has been eliminated, such conduct need not take place in the United States. The trafficking act definition does not state that trafficking activity must take place in the United States, though it refers to victims in the United States. 22 U.S.C. 7102(9); 7105(b). Similarly, the ‘‘T visa’’ provision of the INA requires that a person be physically present in the United States to obtain relief, but does E:\FR\FM\21AUP1.SGM 21AUP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 51700 Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules not require that the trafficking take place in the United States. 8 U.S.C. 1101(a)(15)(T). Moreover, the list of crimes for which a U visa may be granted includes trafficking. 8 U.S.C. 1101(a)(15)(U)(iii). However, the VAWA amendment to section 502 of the appropriations legislation states that ‘‘a victim of sexual assault or trafficking in the United States’’ is eligible for assistance. Public Law 109–162, section 104, 119 Stat. at 2979 (emphasis added). This is narrower than the other, related definitions of trafficking, which do not require that trafficking occur in the U.S. Similarly, the VTVPA and TVPRA refer to ‘‘severe forms of sexual trafficking in the United States.’’ 22 U.S.C. 7105(b)(1)(B). It is LSC’s conclusion that the narrower VAWA, VTVPA, and TVPRA language controls on this issue and that trafficking and severe forms of trafficking must have occurred in the United States. In sum, it is LSC’s view that the predicate activity for eligibility under the anti-abuse statutes need not take place in the United States so long as the activity violates a law of the United States, with the exception of trafficking and severe forms of trafficking, which must occur in the United States as described above. LSC specifically requests comment on this issue regarding where the predicate activity takes place. The second geographic location issue is whether an alien must be physically present in the United States to be eligible, addressed in paragraph (d)(2). The U visa statutory provision does not impose a physical presence requirement. The USCIS interpretation states that its regulation ‘‘does not require petitioners to file for relief within the U.S. The statute does not require petitioners to be physically present to qualify for U visa status.’’ 72 FR 53021 (September 17, 2007). VAWA does not address whether aliens must be physically present in the U.S. The trafficking acts themselves do not impose such a requirement, although they do reference victims in the United States and eligibility for services when victims are in the United States. 22 U.S.C. 7105(b). However, the T visa provision of the INA, which establishes visa eligibility for victims of trafficking, requires that victims be present in the United States. 8 U.S.C. 1101(a)(15)(T). The VAWA amendment to the appropriations legislation refers to eligibility for ‘‘victims of sexual assault or trafficking in the United States.’’ Public Law 109–162, section 104, 119 Stat. at 2979 (amending section VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 502(a)(2)(C)). Complicating this further, trafficking and VAWA violations are among the crimes that establish U visa eligibility, so a victim of trafficking who is not in the United States can obtain a U visa but not a T visa. 8 U.S.C. 1101(a)(15(U). Reviewing these statutes collectively, it is the view of LSC that aliens should be eligible for assistance under the antiabuse statutes regardless of whether they are present in the United States. Most significantly, this interpretation of the statutes comports with the USCIS interpretation of the U visa statute, under which victims of trafficking and VAWA violations may seek relief. Victims of sexual assault and trafficking are qualified for U visa relief and need not be physically present in the United States for such relief. LSC specifically requests comment on this issue regarding presence in the United States. Paragraph (e) of the proposed rule, ‘‘evidentiary support’’, establishes an evidentiary standard for determining eligibility for assistance under the antiabuse statutes. The standard is adopted from Rule 11 of the Federal Rules of Civil Procedure, and permits a recipient to determine an alien is eligible if there is evidentiary support that the alien falls within any of the eligibility categories or if there is likely to be evidentiary support after reasonable opportunity for further investigation. The list of examples of evidence that would meet the standard is taken from VAWA, which allows consideration of ‘‘any credible evidence’’ of abuse. This standard is established in section 204(a)(1)(J) of the INA (8 U.S.C. 1154(a)(1)(J)), and has been adopted by DHS. 8 CFR 204.2(c)(1)(vi). Paragraph (e) of the proposed rule identifies the examples of credible evidence listed in VAWA and the DHS regulation. In applying the evidentiary standard, LSC considered that recipients will be making eligibility determinations on whether aliens qualify for recipient assistance on pending and contested claims rather than making final decisions on the merits of the claims of aliens for relief. For that reason, LSC chose an evidentiary standard that was appropriate for assessing the validity of filing and proceeding with claims. The evidentiary support standard in the proposed rule addresses the issues that recipients will confront in assessing eligibility in several ways. First, the rule adopts a standard based on Rule 11 of the Federal Rules of Civil Procedure for filing and continuing with claims. Second, the standard permits recipients to make a judgment that an PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 alien who may not possess evidence at intake will be able to do so after further investigation. Third, the rule allows eligibility based on statements taken from an alien, which may in some cases be the only evidence available during intake. Fourth, the rule accounts for the reality that the facts underlying eligibility assessments in abuse cases will often be fluid by calling for recipient staff to continue to assess eligibility beyond the intake process and to reverse eligibility determinations when appropriate. Fifth, the rule does not permit a recipient to delay in making eligibility determinations in order to provide assistance to an ineligible alien. Paragraph (f) of the proposed rule is a revision of paragraph (d) of the existing regulation, which states that recipients are not required to maintain records regarding the immigration status of clients represented under § 1626.4(a). The reason for this waiver of immigration status recordkeeping for clients eligible under § 1626.4 is that, under the existing regulation, clients are eligible under § 1626.4 because they are victims of abuse and not because of their immigration status. For clients who are eligible because they are battered, subjected to extreme cruelty, victims of sexual abuse, or victims of trafficking or severe forms of trafficking, but who have not been granted visa, eligibility is based on abuse and not on immigration status. Paragraph (f)(2) of the proposed rule requires that evidence of the abuse must be maintained for such clients but does not require evidence of immigration status. When such clients have filed applications for U visas or T visas copies of those applications must be retained. However, the eligibility of certain of the aliens eligible under the proposed rule does rest in part on immigration status. Specifically, the eligibility of aliens who have been granted U visas or T visas is based on their immigration status in the visa process. Accordingly, paragraph (f)(1) in the proposed rule requires that recipients maintain verification of U visa or T visa status for clients whose eligibility is based on their receiving such visas. Paragraph (g) is a new provision that addresses aliens who qualify under both § 1626.4 and § 1626.5. Because recipients are limited to providing ‘‘related legal assistance’’ under § 1626.4 but may provide the full range of permissible assistance without this restriction under § 1626.5, the paragraph instructs recipients to treat ‘‘dual eligible’’ aliens as eligible under § 1626.5. E:\FR\FM\21AUP1.SGM 21AUP1 Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules 1626.5 Aliens Eligible for Assistance Based on Immigration Status This section is substantively unchanged. As explained in the immediately preceding discussion, the titles for proposed § 1626.4 and § 1626.5, have been changed to describe more precisely the exceptions to the prohibition of assistance to aliens established in those sections. The proposed rule includes a change in § 1626.5(e), which concerns persons granted withholding of deportation. Section 1626.5 of the regulation allows recipients to provide assistance to several categories of aliens who have been granted immigration status and are lawfully present or admitted to the United States. One category eligible under this section is ‘‘alien[s] who [are] lawfully present in the United States as a result of the Attorney General’s withholding of deportation pursuant to section 243(h) of the INA (8 U.S.C. 1253(h)).’’ 45 CFR 1626.5(e). The withholding provision has been relocated to another section of the INA, and is now codified at 8 U.S.C. 1231(b)(3). The relocated withholding provision prohibits the removal of an alien to a country if the life or freedom of the alien would be threatened in the country of removal. Section 1626.5(e) in the proposed regulation is amended to correctly identify the citation to the statutory basis for withholding relief, and to reflect that the relocated provisions refers to withholding of ‘‘removal’’ and not to withholding of ‘‘deportation.’’ 1626.6 Verification of Citizenship No substantive revisions have been made to this section. The proposed rule amends the section to reference internet, email, or other non-telephone communications. mstockstill on DSK4VPTVN1PROD with PROPOSALS 1626.7 Verification of Eligible Alien Status This section is revised to reflect that the list of eligibility documents presently published as an appendix to § 1626 will be subsequently published and revised in LSC program letters, or equivalent documents. The revision made to § 1626.6 on non-in-person communications also appears in this section. 1626.8 Emergencies Section 1626.4 has been added to the list of provisions for which emergency service can be provided prior to compliance with eligibility provisions. 1626.9 Change in Circumstance No revisions have been made to this section. VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 1626.10 Special Eligibility Questions No revisions have been made to this section. 1626.11 H–2 Forestry and Agricultural Workers This section establishes eligibility for assistance to certain workers admitted to the U.S. under temporary workers provisions in section 101(a)(15)(H)(ii) of the INA. Workers with immigration status under this section of the INA are often referred to as ‘‘H–2A’’ or ‘‘H–2B’’ visa holders, depending on the subsection of the H–2 provision they are admitted under. The title of this section has been changed to add a reference to forestry workers, because statutory changes implemented in this section of the proposed rule add forestry workers authorized to be in the United States pursuant to the H–2B provision of the INA. The changes in paragraph (a) of this section conform the regulation’s language on eligibility of agricultural workers to the statutory authority establishing this eligibility. The statutory authority establishing eligibility for agricultural workers, section 504(a)(11)(E) of the FY 1996 LSC appropriations legislation, permits recipients to provide assistance to ‘‘an alien to whom section 305 of the Immigration Reform Act of 1986 [‘‘IRCA’’] (8 U.S.C. 1101 note) applies.’’ Public Law 104–134, section 504(a)(11)(E), 110 Stat. at 1321–55, amended by Public Law 110–161, section 540, 121 Stat. at 1924. Section 305 of IRCA in turn establishes eligibility for ‘‘non-immigrant worker[s] admitted or permitted to remain in the United States under section 101(a)(15)(H)(ii)(a) of the Immigration and Naturalization Act .’’ 8 U.S.C. 1101, note. The existing § 1626.11 language refers generally to ‘‘agricultural H–2 workers’’ and eligibility ‘‘under the provisions of 8 U.S.C. 1101(a)(15)(H)(ii).’’ This general reference to H–2 could be confused as a broader authorization than that actually created by the statute, which establishes eligibility specifically for H– 2A agricultural workers. The revised rule clarifies this by citing section H–2A rather than H–2. The added paragraph (b) implements the FY 2008 amendment to section 504(a)(11)(E) of the FY 1996 LSC appropriations legislation, which extended eligibility for assistance from recipients to H–2B visa forestry workers. Public Law 104–134, section 504(a)(11)(E), 110 Stat. at 1321–55, amended by Public Law 110–161, section 540, 121 Stat. at 1924. The PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 51701 existing § 1626.11 provision on H–2 visa eligibility does not include forestry workers. Paragraph (b) of the proposed rule also establishes that the existing limitations on assistance for H–2A agricultural workers apply as well to H– 2B forestry workers. This conforms to the FY 2008 LSC appropriation, which limits the assistance for H–2B eligible forestry workers to that described in section 305 of IRCA. Id. Section 305 limits assistance to ‘‘matters relating to wages, housing, transportation and other employment rights’’ that arise under a temporary worker’s specific H– 2A contract. 8 U.S.C. 1101, note. The limitations, codified in the existing regulation at paragraph (b), appear without substantive revision in paragraph (c) of the proposed rule. 1626.12 Recipient Policies, Procedures and Recordkeeping No revisions have been made to this section. Appendix to Part 1626—Examples of Documents and Other Information Establishing Alien Eligibility for Representation by LSC Programs The list of eligibility documents presently included in the regulation as an appendix to Part 1626 was last updated in 2003, and, like the regulation, it requires updates. Revisions to the list do not entail policy decisions, as they are limited to administrative updates to the list of examples of documents or information which satisfy eligibility. In view of the frequency with which immigration forms change, subjecting updates of the list to the process of repeated Board approval and the LSC rulemaking protocol would be unduly complicated. For that reason, the Corporation proposes that the information currently contained in the appendix be reclassified as a program letter posted on the LSC Web site, and emailed to grant recipients. The initial revision of the appendix and reclassification as a program letter is a change in the regulation and is therefore being done pursuant to the LSC rulemaking protocol, which requires Board review and approval prior to publication for notice and comment. Legal Services Corporation Rulemaking Protocol, 67 FR 69762 (November 19, 2002). Subsequent revision of the program letter would allow for, but would not require, Board consideration and approval and thereafter notice and comment. E:\FR\FM\21AUP1.SGM 21AUP1 51702 Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules List of Subjects in 45 CFR Part 1626 Aliens, Grant programs—law, Legal services, Migrant labor, Reporting and recordkeeping requirements. For the reasons discussed in the preamble, the Legal Services Corporation proposes to revise 45 CFR part 1626 to read as follows: PART 1626—RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS Sec. 1626.1 Purpose. 1626.2 Definitions. 1626.3 Prohibition. 1626.4 Aliens eligible for assistance under anti-abuse laws. 1626.5 Aliens eligible for assistance based on immigration status. 1626.6 Verification of citizenship. 1626.7 Verification of eligible alien status. 1626.8 Emergencies. 1626.9 Change in circumstances. 1626.10 Special eligibility questions. 1626.11 H–2 forestry and agricultural workers. 1626.12 Recipient policies, procedures and recordkeeping. Authority: Pub. L. 104–208, 110 Stat. 1321; Pub. L. 104–134, 110 Stat. 3009; Pub. L. 105– 119, 111 Stat. 2440; Pub. L. 106–386, 114 Stat. 1464; Pub. L. 108–193, 117 Stat. 2875; Pub. L. 109–162, 119 Stat. 2960; Pub. L. 110– 161, 121 Stat. 1844. § 1626.1 Purpose. This part is designed to ensure that recipients provide legal assistance only to citizens of the United States and eligible aliens. It is also designed to assist recipients in determining the eligibility and immigration status of persons who seek legal assistance. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 1626.2 Definitions. (a) Citizen includes a person described or defined as a citizen or national of the United States in 8 U.S.C. 1101(a)(22) and Title III of the Immigration and Nationality Act (INA), Chapter 1 (8 U.S.C. 1401 et seq.) (citizens by birth) and Chapter 2 (8 U.S.C. 1421 et seq.) (citizens by naturalization) or antecedent citizen statutes. (b) Eligible alien means a person who is not a citizen but who meets the requirements of § 1626.4 or § 1626.5. (c) Ineligible alien means a person who is not a citizen and who does not meet the requirements of § 1626.4 or § 1626.5. (d) Rejected refers to an application for adjustment of status that has been denied by the Department of Homeland Security (DHS) and is not subject to further administrative appeal. (e) To provide legal assistance on behalf of an ineligible alien is to render legal assistance to an eligible client that VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 benefits an ineligible alien and does not affect a specific legal right or interest of the eligible client. (f) Anti-abuse statutes means the Violence Against Women Act of 1994, Public Law 103–322, 108 Stat. 1941, as amended, and the Violence Against Women and Department of Justice Reauthorization Act of 2005, Public Law 109–162, 119 Stat. 2960 (collectively referred to as ‘‘VAWA’’); the Victims of Trafficking and Violence Protection Act of 2000, Public Law 106–386, 114 Stat. 1464 (‘‘VTVPA’’); the Trafficking Victims Protection Reauthorization Act of 2003, Public Law 108–193, 117 Stat. 2875 (‘‘TVPRA’’); Section 101(a)(15)(T) of the Immigration and Naturalization Act (‘‘INA’’), 8 U.S.C. 1101(a)(15)(T); Section 101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U); and the incorporation of these statutory provisions in section 502(a)(2)(C) of LSC’s FY 1998 appropriation, Public Law 105–119, Title V, 111 Stat. 2440, 2510 as incorporated by reference thereafter. E.g., Public Law 113–6, 127 Stat. 198, 267 (2013) (LSC’s FY 2013 appropriation). (g) United States, for purposes of this part, has the same meaning given that term in 8 U.S.C. 1101(a)(38) of the INA. § 1626.3 Prohibition. Recipients may not provide legal assistance for or on behalf of an ineligible alien. For purposes of this part, legal assistance does not include normal intake and referral services. § 1626.4 Aliens eligible for assistance under anti-abuse laws. (a) Subject to all other eligibility requirements and restrictions of the LSC Act and regulations and other applicable law: (1) A recipient may provide related legal assistance to an alien who is within one of the following categories: (i) An alien who has been battered or subjected to extreme cruelty, or is a victim of sexual assault or trafficking in the United States, or qualifies for relief under section 101(a)(15)(U) of the INA (8 U.S.C. 1101(a)(15)(U)); or (ii) An alien whose child, without the active participation of the alien, has been battered or subjected to extreme cruelty, or has been a victim of sexual assault or trafficking in the United States, or qualifies for immigration relief under section 101(a)(15)(U) of the INA (8 U.S.C. 1101(a)(15)(U)). (2) A recipient may provide legal assistance, including but not limited to related leal assistance, to: (i) an alien who is a victim of ‘‘severe forms of trafficking’’ of persons in the United States, or PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 (ii) an alien classified as a nonimmigrant under section 101 (a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii) regarding others related to the victim). (b) (1) Related legal assistance means legal assistance directly related (i) To the prevention of, or obtaining relief from, battery or cruelty, sexual assault or trafficking; (ii) To the prevention of, or obtaining relief from, crimes listed in section 101(a)(15)(U)(iii) of the INA (8 U.S.C. 1101(a)(15)(U)(iii)); (iii) To an application for relief: (A) Under Section 101(a)(15)(U) of INA (8 U.S.C. 1101(a)(15)(U)); or (B) Under section 101(a)(15)(T) of INA (8 U.S.C. 1101(a)(15)(T)). (2) Such assistance includes representation in matters that will assist a person eligible for assistance under this part to escape from the abusive situation, ameliorate the current effects of the abuse, or protect against future abuse, so long as the recipient can show the necessary connection of the representation to the abuse. Such representation may include immigration law matters, and domestic or poverty law matters (such as obtaining civil protective orders, divorce, paternity, child custody, child and spousal support, housing, public benefits, employment, abuse and neglect, juvenile proceedings and contempt actions). (c) Definitions of Categories of Eligible Aliens Under Anti-Abuse Statutes. (1) A person battered or subjected to extreme cruelty includes any person who has been battered or subjected to extreme cruelty as that term is defined in regulations interpreting VAWA. Examples of battering or extreme cruelty include, but are not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution may be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. (2) A victim of sexual assault or trafficking includes: (i) A victim of sexual assault subjected to any conduct included in the definition of sexual assault or sexual abuse in VAWA, including but not limited to sexual abuse, aggravated E:\FR\FM\21AUP1.SGM 21AUP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules sexual abuse, abusive sexual contact, or sexual abuse of a minor or ward; and (ii) A victim of trafficking subjected to any conduct included in the definition of ‘‘trafficking’’ under law, including, but not limited to VAWA and the INA. (3) A victim of severe forms of trafficking includes any person subjected to such abuse under the VTVPA or TVPRA as codified at 22 U.S.C. 7105. (4) A person who qualifies for immigration relief under section 101(a)(15)(U) of the INA includes: (i) A person who has been granted relief under that section; (ii) A person who has applied for relief under that section and who the recipient determines has evidentiary support for such application; or (iii) A person who has not filed for relief under that section, but who the recipient determines has evidentiary support for filing for such relief. A person who ‘‘qualifies for immigration relief’’ includes any person who may apply for primary U visa relief under subsection (i) of section 101(a)(15)(U) of the INA or for derivative U visa relief for family members under subsection (ii) of section 101(a)(15)(U) of the INA (8 U.S.C. 1101(a)(15)(U)). Recipients may provide assistance for any person who qualifies for derivative U visa relief regardless of whether such a person has been subjected to abuse. (d) Geographic location. (1) Location of activity giving rise to eligibility. Except for aliens eligible because they are victims of trafficking or severe forms of trafficking, an alien is eligible under this section if the activity giving rise to eligibility violated a law of the United States, regardless of whether that conduct took place in the United States or a United States territory. Victims of trafficking must be subjected to illegal trafficking in the United States to be eligible for assistance. (2) Location of alien. An alien need not be present in the United States or a United States territory to be eligible for assistance under this section. (e) Evidentiary support. A recipient may determine that an alien is qualified for assistance under paragraphs (a) and (c) of this section if there is evidentiary support that the alien falls into any of the eligibility categories or if the recipient determines there will likely be evidentiary support after a reasonable opportunity for further investigation. Evidentiary support may include, but is not limited to, affidavits or unsworn written statements made by the alien; written summaries of statements or interviews of the alien taken by others, including the recipient; reports and VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 affidavits from police, judges, and other court officials, medical personnel, school officials, clergy, social workers, other social service agency personnel; orders of protection or other legal evidence of steps taken to end abuse; evidence that a person sought safe haven in a shelter or similar refuge; photographs; documents or other evidence of a series of acts that establish a pattern of qualifying abuse. If the recipient determines that an alien is eligible because there will likely be evidentiary support, the recipient must obtain evidence of support as soon as possible and may not delay in order to provide continued assistance. Section 1626.9 applies for situations in which a previously eligible alien is determined to be ineligible, for example, if an alien’s application for U visa relief is denied or if there is an official DHS determination that an alien whose eligibility is based on trafficking was not a victim of trafficking. Because the facts determinative of alien eligibility based on anti-abuse statutes may develop or change, eligibility determinations made by intake personnel should be reviewed by other recipient staff members involved in the representation of an alien. (f) Recordkeeping. (1) For a client whose eligibility is based on a grant of relief under section 101(a)(15)(U) of the INA or section 101(a)(15)(T) of the INA, or any other grant of immigration status, recipients must maintain a copy of the visa or other official record of such relief from immigration authorities; (2) For a client whose eligibility is based on other evidentiary support as described in paragraph (e) of this section, recipients are required to maintain originals or copies of such evidence. When such a client has filed an application for relief under section 101(a)(15)(U) of the INA or section 101(15)(T) of the INA, recipients must maintain a copy of the application for such relief filed with immigration authorities as well as copies of other evidentiary support. (g) Changes in basis for eligibility. If, during the course of representing an alien eligible pursuant to § 1626.4, a recipient determines that the alien is also eligible under § 1626.5, the recipient should treat the alien as eligible under § 1626.5 and may provide all the assistance available pursuant to that section. § 1626.5 Aliens eligible for assistance based on immigration status. Subject to all other eligibility requirements and restrictions of the LSC Act and regulations and other applicable law, a recipient may provide PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 51703 legal assistance to an alien who is present in the United States and who is within one of the following categories: (a) An alien lawfully admitted for permanent residence as an immigrant as defined by section 1101(a)(20) of the INA (8 U.S.C. 1101(a)(20)); (b) An alien who is either married to a United States citizen or is a parent or an unmarried child under the age of 21 of such a citizen and who has filed an application for adjustment of status to permanent resident under the INA, and such application has not been rejected; (c) An alien who is lawfully present in the United States pursuant to an admission under section 207 of the INA (8 U.S.C. 1157) (relating to refugee admissions) or who has been granted asylum by the Attorney General under section 208 of the INA (8 U.S.C. 1158). (d) An alien who is lawfully present in the United States as a result of being granted conditional entry pursuant to section 203(a)(7) of the INA (8 U.S.C. 1153(a)(7), as in effect on March 31, 1980) before April 1, 1980, because of persecution or fear of persecution on account of race, religion, or political opinion or because of being uprooted by catastrophic natural calamity; (e) An alien who is lawfully present in the United States as a result of the Attorney General’s withholding of removal pursuant to section 241(b)(3) of the INA (8 U.S.C. 1231(b)(3); or (f) An alien who meets the requirements of § 1626.10 or § 1626.11. § 1626.6 Verification of citizenship. (a) A recipient shall require all applicants for legal assistance who claim to be citizens to attest in writing in a standard form provided by the Corporation that they are citizens, unless the only service provided for a citizen is brief advice and consultation by telephone, or by other non-in-person means, which does not include continuous representation. (b) When a recipient has reason to doubt that an applicant is a citizen, the recipient shall require verification of citizenship. A recipient shall not consider factors such as a person’s accent, limited English-speaking ability, appearance, race, or national origin as a reason to doubt that the person is a citizen. (1) If verification is required, a recipient may accept originals, certified copies, or photocopies that appear to be complete, correct, and authentic of any of the following documents as evidence of citizenship: (i) United States passport; (ii) Birth certificate; (iii) Naturalization certificate; E:\FR\FM\21AUP1.SGM 21AUP1 51704 Federal Register / Vol. 78, No. 162 / Wednesday, August 21, 2013 / Proposed Rules (iv) United States Citizenship Identification Card (INS Form 1–197 or I–197); or (v) Baptismal certificate showing place of birth within the United States and date of baptism within two months after birth. (2) A recipient may also accept any other authoritative document, such as a document issued by INS, by a court, or by another governmental agency, that provides evidence of citizenship. (3) If a person is unable to produce any of the above documents, the person may submit a notarized statement signed by a third party, who shall not be an employee of the recipient and who can produce proof of that party’s own United States citizenship, that the person seeking legal assistance is a United States citizen. § 1626.7 status. Verification of eligible alien (a) An alien seeking representation shall submit appropriate documents to verify eligibility, unless the only service provided for an eligible alien is brief advice and consultation by telephone, or by other non-in-person means, which does not include continuous representation of a client. (1) As proof of eligibility, a recipient may accept originals, certified copies, or photocopies that appear to be complete, correct, and authentic, of any documents establishing eligibility. LSC will publish a list of examples of such documents from time to time, in the form of a program letter or equivalent. (2) A recipient may also accept any other authoritative document issued by the DHS, by a court, or by another governmental agency, that provides evidence of alien status. (b) A recipient shall upon request furnish each person seeking legal assistance with a current list of documents establishing eligibility under this part as is published by LSC. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 1626.8 Emergencies. In an emergency, legal services may be provided prior to compliance with § 1626.4, § 1626.6 and § 1626.7 if: (a) An applicant cannot feasibly come to the recipient’s office or otherwise transmit written documentation to the recipient before commencement of the representation required by the emergency, and the applicant provides oral information to establish eligibility which the recipient records, and the applicant submits the necessary documentation as soon as possible; or (b) An applicant is able to come to the recipient’s office but cannot produce the required documentation before commencement of the representation, VerDate Mar<15>2010 16:09 Aug 20, 2013 Jkt 229001 and the applicant signs a statement of eligibility and submits the necessary documentation as soon as possible; and (c) The recipient informs clients accepted under paragraph (a) or (b) of this section that only limited emergency legal assistance may be provided without satisfactory documentation and that, if the client fails to produce timely and satisfactory written documentation, the recipient will be required to discontinue representation consistent with the recipient’s professional responsibilities. § 1626.9 Change in circumstances. If, to the knowledge of the recipient, a client who was an eligible alien becomes ineligible through a change in circumstances, continued representation is prohibited by this part and a recipient must discontinue representation consistent with applicable rules of professional responsibility. § 1626.10 Special eligibility questions. (a) (1) This part is not applicable to recipients providing services in the Commonwealth of the Northern Mariana Islands, the Republic of Palau, the Federated States of Micronesia, or the Republic of the Marshall Islands. (2) All citizens of the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands residing in the United States are eligible to receive legal assistance provided that they are otherwise eligible under the Act. (b) All Canadian-born American Indians at least 50% Indian by blood are eligible to receive legal assistance provided they are otherwise eligible under the Act. (c) Members of the Texas Band of Kickapoo are eligible to receive legal assistance provided they are otherwise eligible under the Act. (d) An alien who qualified as a special agricultural worker and whose status is adjusted to that of temporary resident alien under the provisions of the Immigration Reform and Control Act (‘‘IRCA’’) is considered a permanent resident alien for all purposes except immigration under the provisions of section 302 of 100 Stat. 3422, 8 U.S.C. 1160(g). Since the status of these aliens is that of permanent resident alien under section 1101(a)(20) of Title 8, these workers may be provided legal assistance. These workers are ineligible for legal assistance in order to obtain the adjustment of status of temporary resident under IRCA, but are eligible for legal assistance after the application for adjustment of status to that of temporary resident has been filed, and the application has not been rejected. PO 00000 Frm 00028 Fmt 4702 Sfmt 9990 (e) A recipient may provide legal assistance to indigent foreign nationals who seek assistance pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the Federal implementing statute, the International Child Abduction Remedies Act, 42 U.S.C. 11607(b), provided that they are otherwise financially eligible. § 1626.11 workers. H–2 agricultural and forestry (a) Nonimmigrant agricultural workers admitted under the provisions of 8 U.S.C. 1101(a)(15)(h)(ii)(a), commonly called H–2A agricultural workers, may be provided legal assistance regarding the matters specified in paragraph (c) of this section; (b) Nonimmigrant forestry workers admitted under the provisions of 8 U.S.C. 1101(a)(15)(h)(ii)(b), commonly called H–2B forestry workers, may be provided legal assistance regarding the matters specified in paragraph (c) of this section. (c) The following matters which arise under the provisions of the worker’s specific employment contract may be the subject of legal assistance by an LSC-funded program: (1) Wages; (2) Housing; (3) Transportation; and (4) Other employment rights as provided in the worker’s specific contract under which the nonimmigrant worker was admitted. § 1626.12 Recipient policies, procedures and recordkeeping. Each recipient shall adopt written policies and procedures to guide its staff in complying with this part and shall maintain records sufficient to document the recipient’s compliance with this part. Dated: August 13, 2013. Atitaya C. Rok, Staff Attorney. [FR Doc. 2013–20040 Filed 8–20–13; 8:45 am] BILLING CODE 7050–01–P E:\FR\FM\21AUP1.SGM 21AUP1

Agencies

[Federal Register Volume 78, Number 162 (Wednesday, August 21, 2013)]
[Proposed Rules]
[Pages 51696-51704]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20040]


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LEGAL SERVICES CORPORATION

45 CFR Part 1626


Restrictions on Legal Assistance to Aliens

AGENCY: Legal Services Corporation.

ACTION: Notice of proposed rulemaking with request for comments.

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SUMMARY: This proposed rule updates the Legal Services Corporation (LSC 
or Corporation) regulation on legal assistance to aliens. The revisions 
are intended to implement three statutory changes on aliens eligible 
for legal assistance from LSC grant recipients that have been enacted 
since the pertinent provisions of the existing regulation were last 
revised in 1997. Those three changes are described in more detail in 
the Supplementary Information section of this preamble.
    LSC seeks comments on the proposed changes to the rule. LSC also 
seeks comments on specific items that it has identified in this notice.

DATES: Comments must be submitted by October 21, 2013.

ADDRESSES: Written comments must be submitted to Mark Freedman, Senior 
Assistant General Counsel, Legal Services Corporation, 3333 K Street 
NW., Washington, DC 20007; (202) 337-6519 (fax) or 
1626rulemaking@lsc.gov. Electronic submissions are preferred via email 
with attachments in Acrobat PDF format. Written comments sent to any 
other address or received after the end of the comment period may not 
be considered by LSC.

FOR FURTHER INFORMATION CONTACT: Mark Freedman, Senior Assistant 
General Counsel, Legal Services Corporation, 3333 K Street NW.,

[[Page 51697]]

Washington, DC 20007, (202) 295-1623 (phone), (202) 337-6519 (fax), 
1626rulemaking@lsc.gov.

SUPPLEMENTARY INFORMATION: LSC's current appropriations restrictions, 
including those governing the assistance that may be provided to 
aliens, were enacted in 1996 and have been reincorporated annually with 
amendments. Section 504(a)(11) of the FY 1996 LSC appropriation 
prohibits the Corporation from providing funds to any person or entity 
(recipient) that provides legal assistance to ineligible aliens, 
subject to statutory exceptions. Public Law 104-134, Title V, section 
504(a)(11), 110 Stat. 1321, 1321-54 (1996).
    After the alienage restrictions were enacted in 1996, LSC adopted 
an interim rule to implement these statutory requirements. 61 FR 45750 
(August 29, 1996). While this rule was pending for comment, Congress 
passed the Kennedy Amendment, which expanded eligibility for LSC 
recipients to use non-LSC funds to provide related assistance to aliens 
who have been battered or subjected to extreme cruelty in the United 
States by family members. Public Law 104-208, Div. A, Title V, section 
502(a)(2)(C),110 Stat. 3009, 3009-60 (1996). The Kennedy Amendment was 
repeated in the FY 1998 modification of the LSC appropriation 
restrictions. Thereafter, LSC's annual appropriations have incorporated 
the FY 1998 restrictions by reference. Public Law 105-119, Title V, 
section 502(a)(2)(C), 111 Stat. 2440, 2511 (1997) incorporated by 
Public Law 113-6, Div. B, Title IV, 127 Stat. 198, 268 (2013) (LSC FY 
2013 appropriation).
    In 1997, LSC revised Part 1626 to implement the Kennedy Amendment. 
62 FR 19409 (April 21, 1997), amended by 62 FR 45755 (August 29, 1997). 
The substantive provisions in Part 1626 have not been changed since 
1997. In 2003, LSC added a list of documents establishing the 
eligibility of aliens for legal assistance from LSC grant recipients as 
an appendix to Part 1626. 68 FR 55540 (Sept. 26, 2003). The appendix 
has not been changed since 2003. This proposed rule makes three changes 
in Part 1626 to conform the regulation to statutory provisions.
    The first proposed change would update the definition of aliens 
eligible for legal assistance under anti-abuse statutes. In the 
existing regulation, this definition appears in 45 CFR 1626.4, which in 
turn implements section 502(a)(2)(C) of the FY 1997 LSC appropriation. 
Public Law 104-208, 110 Stat. 3009 as repeated in FY 1998 and 
incorporated by reference in LSC's annual appropriations thereafter. 
Public Law 113-6, 127 Stat. 198 (2013) incorporating by reference FY 
1998 appropriations. Since the last revision of the regulation in 1997, 
section 502(a)(2)(C) has been amended by anti-abuse statutes to expand 
the definition of eligible aliens. The anti-abuse statutes are the 
Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), the 
Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA), and 
the Violence Against Women and Department of Justice Reauthorization 
Act of 2005 (VAWA). These statutes permit LSC recipients to provide 
assistance to aliens who are direct victims of abuse and to other 
covered aliens who are not direct victims, such as family members and 
persons who may assist in law enforcement efforts. VTVPA and TVPRA 
create trafficking exceptions to the alienage prohibitions. VAWA amends 
section 502.
    Because the amended text of section 502 is not codified, the 
pertinent portion is available at www.lsc.gov/about/regulations-rules/open-rulemaking to aid in understanding how the proposed rule 
implements that provision.
    The second proposed rule change would implement the FY 2008 LSC 
appropriation expansion of eligibility for legal assistance to include 
alien forestry workers admitted to the United States as temporary 
workers under the H-2B program of the Immigration and Nationality Act 
(INA).
    The third proposed rule change is technical. The statutory basis 
for an existing category of eligible aliens under the regulation, 
persons granted withholding of removal from the U.S., has been 
relocated to a new section of the INA.
    The proposed rule also updates the definition of ``related legal 
services'' that may be provided to aliens because of abuse and related 
crimes to conform with statutory authority and previous LSC 
interpretations.
    The existing regulation includes an appendix that lists examples of 
documents acceptable to establish the eligibility of aliens for legal 
assistance from LSC grant recipients. The proposed rule would modify 
the appendix in three respects. First, the Corporation proposes to move 
the list of example documents from an appendix to the alienage 
regulation to a program letter because updating the example documents 
as immigration forms change is a ministerial function that does not 
alter the substance of the regulation. Second, the list is updated to 
include documentation that would establish eligibility for the 
categories of eligible aliens added in the proposed rule. Third, the 
list has been updated to include new eligibility documents for aliens 
covered under the existing regulation.
    The most extensive revisions in the proposed rule are to section 
1626.4 of the regulation, and update that provision to conform to the 
statutory changes in alien eligibility that result from the trafficking 
statutes and VAWA.
    The VTVPA and TVPRA require that LSC and Federal agencies ``shall 
expand benefits and services to victims of severe forms of trafficking 
in persons in the United States, and aliens classified as a 
nonimmigrant under section 1101 (a)(15)(T)(ii) of title 8 [family 
members of trafficking victims], without regard to the immigration 
status of such victims. 22 U.S.C. 7105, codifying VTVPA, Public Law 
106-386, sections 107(b) and (e), 114 Stat. 1464, 1475, and 1477 
(2000), and TVPRA, Public Law 108-193, section 4,117 Stat. 2875, 2877 
(2003). In 2006, VAWA amended the LSC alienage eligibility provision in 
section 502(a)(2)(C) to expand the categories of aliens to whom 
recipients may provide related assistance by adding aliens who (1) are 
victims of sexual assault or trafficking in the United States or (2) 
qualify for ``U'' visas under section 101(a)(15)(U) of the INA. Public 
Law 105-119, Title V, section 502(a)(2)(C), amended by Public Law 109-
162, section 104, 119 Stat. 2960, 2978 (2006). The U visa provision of 
the INA allows aliens to remain in the United States for a limited 
period who are victims of a variety of abuse crimes, who may assist in 
law enforcement related to such crimes, or who are family members of 
victims. 8 U.S.C. 1101(a)(15)(U). The VAWA amendments in 2006 
incorporated the VTVPA and TVPRA provisions.
    The two major changes resulting from the VAWA amendment of the LSC 
appropriations were that (1) LSC recipients are permitted to provide 
assistance to previously ineligible aliens who are entitled to remain 
in the U.S. under the anti-abuse statutes and (2) recipients may use 
LSC funds to assist these aliens.
    LSC issued two program letters to provide guidance to recipients on 
implementing the VTVPA, TVPRA and VAWA eligibility changes. Program 
Letter 05-2 (October 6, 2005) (addressing VTVPA and TVPRA); Program 
Letter 06-2 (February 21, 2006) (addressing VAWA). However, the 
existing regulation has not been updated to include the extension of 
eligibility under the anti-abuse statutes.

[[Page 51698]]

    In addition to the changes resulting from the anti-abuse statutes, 
the FY 2008 LSC appropriation amended section 504(a)(11) to extend 
eligibility for assistance from recipients to forestry workers admitted 
to the U.S. under the H-2B temporary worker provisions in section 
101(a)(15)(H)(ii)(b) of the INA. Public Law 104-134, section 
504(a)(11)(E), 110 Stat. at 1321-55, amended by Public Law 110-161, 
Div. B, Title V, section 540, 121 Stat. 1844, 1924 (2007). Section 
1626.11 of the LSC alienage regulation establishes eligibility for H-2A 
agricultural temporary workers, but has not been amended to implement 
the statutory extension of eligibility to forestry workers.
    On April 14, 2013, the Operations and Regulations Committee (the 
Committee) of the LSC Board of Directors (the Board) recommended that 
the Board authorize rulemaking to conform Part 1626 to statutory 
authorizations. On April 16, 2013, the Board authorized the initiation 
of rulemaking.
    Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a 
proposed rule amending Part 1626 with an explanatory rulemaking options 
paper. On July 22, 2013, the Committee recommended that the Board 
approve the proposed rule for notice and comment rulemaking. On July 
23, 2013, the Board approved the proposed rule for publication in the 
Federal Register for notice and comment. A section by section 
discussion of the proposed rule is provided below.

Authority

    Citations to the VTVPA, TVPRA, VAWA, the FY 2006 Appropriations 
Act, and the FY 2008 Appropriations Act are added.

1626.1 Purpose

    No revisions have been made to this section.

1626.2 Definitions

    Paragraphs (b) and (c) have been changed to add references to Sec.  
1626.4 to the definitions of ``eligible alien'' and ``ineligible 
alien.'' This revision, along with others discussed subsequently, 
reflects a change in how the two sections on alien eligibility, Sec.  
1626.4 and Sec.  1626.5, are described in the proposed rule. In the 
existing regulation, aliens eligible under anti-abuse statutes (Sec.  
1626.4) are described as persons to whom alienage restrictions do not 
apply, and aliens eligible because of immigration status (Sec.  1626.5) 
are described as eligible aliens. In the proposed rule, both Sec.  
1626.4 and Sec.  1626.5 are described as establishing categories of 
aliens who are eligible for assistance. The Corporation believes that 
this adds clarity to the rule's identification of aliens who may be 
assisted by recipients.
    Paragraph (d) has been revised to identify the Department of 
Homeland Security (DHS) as the governmental entity that makes status 
adjustment determinations in place of the Immigration and 
Naturalization Service.
    Paragraph (f) of the existing regulation, the definition of persons 
``battered or subjected to extreme cruelty'', has been moved to Sec.  
1626.4(c)(1). Paragraph (g) of the existing regulation, the definition 
of ``[l]egal assistance directly related to the prevention of, or 
obtaining relief from, the battery or cruelty'' has been moved to Sec.  
1626.4(b) and renamed with substantive revisions that are explained in 
the discussion of that section.
    These moves are part of the proposed rule's consolidation of all 
terms exclusive to eligibility under anti-abuse statutes to Sec.  
1626.4. Existing definitions that apply to Sec.  1626.4 and new 
definitions added in the interim rule appear in that section as 
revised. A new paragraph (f) is added that defines the term ``anti-
abuse statutes,'' which is used to collectively describe the statutes 
that expand eligibility.

1626.3 Prohibition

    Technical revisions have been made to this section.

1626.4 Aliens Eligible for Assistance Under Anti-Abuse Laws

    This section is substantially rewritten to incorporate alien 
eligibility expansion under the VTVPA, TPVRA, VAWA, and resulting 
amendments to the LSC restrictions. The title of this section and of 
Sec.  1626.5 have been revised to clearly state that these two sections 
of Part 1626 establish the two major categories of eligible aliens who 
are excepted from the restrictions on assistance: (1) aliens who are 
eligible for assistance under anti-abuse laws (covered in Sec.  1626.4) 
and (2) aliens eligible for assistance based on immigration status 
(covered in Sec.  1626.5).
    Paragraph (a) of this provision has been rewritten to incorporate 
into the regulation (1) the current language of section 502(a)(2)(C) of 
the appropriations restrictions, which contains the VAWA amendment 
expanding alien eligibility, and (2) the language of 22 U.S.C. 
7105(b)(1)(B) implementing VTVPA and TPVRA. The introductory clause 
before paragraph (a)(1) tracks that of Sec.  1626.5. As is the case 
with the new titles, this is intended to clearly reflect that the two 
sections establish two distinct categories of aliens who are eligible 
for assistance.
    Paragraph (a) allows recipients to assist aliens eligible under the 
anti-abuse statutes with any funds, including LSC funds, as permitted 
by those statutes. This replaces the superseded funding limitation in 
the existing Sec.  1626.4, which requires that recipients use non-LSC 
funds to assist clients eligible under this provision.
    Paragraph (a)(1) in the proposed rule adopts language identifying 
eligible aliens from the VAWA amendment to section 502(a)(2)(C) of the 
appropriations restrictions. Persons ``battered and subject to extreme 
cruelty'' are eligible under the existing Part 1626 language, which 
adopts the definition of that term from immigration regulations 
implementing the 1994 VAWA. See 8 CFR 204.2(c)(1)(vi); 8 CFR 216.5(e); 
8 CFR 1216.5(c)(3)(i). The proposed rule implements two changes from 
the VAWA amendment. First, the proposed rule eliminates the existing, 
but superseded, regulatory requirement that the battering or cruelty 
take place in the United States, a territorial restriction which has 
been eliminated by the VAWA amendment. Second, the proposed amendment 
implements statutory language eliminating the existing superseded 
regulatory requirement that persons be battered or subjected to extreme 
cruelty by a family or a household member.
    The proposed changes in paragraph (a)(1) also implement the VAWA 
amendment by adding two new groups of eligible aliens: (1) victims of 
sexual assault or trafficking in the United States and (2) persons 
qualified for ``U visa'' relief under section 101(a)(15)(U) of the INA. 
The existing limitation that only ``related legal assistance'' can be 
provided is retained in the VAWA amendment and the regulation.
    Paragraph (a)(2) adds language implementing 22 U.S.C. 7105 
(codifying provisions of the VTVPA and TVPRA), which requires that LSC 
expand all services to ``victims of severe forms of trafficking in the 
United States'' as well as to some relatives of such victims. Unlike 
the VAWA provision, the VTVPA and TVPRA do not limit recipients to 
providing ``related legal assistance.''
    Paragraph (b) is a relocated and provides a revised definition of 
``related legal assistance'' that may be provided to VAWA-eligible 
aliens under section 502(b)(2) of the FY 1998 LSC appropriation, as 
amended. The VAWA amendment limits assistance to aliens to ``related 
legal assistance.'' The definition of such assistance is relocated

[[Page 51699]]

from the general definitions in Sec.  1626.2, into Sec.  1624.4 
establishing eligibility for aliens under the anti-abuse statutes 
because the definition applies only to VAWA-eligible aliens covered by 
Sec.  1626.4.
    The substance of the definition of related legal assistance is 
changed to use the same term for assistance, ``related legal 
assistance,'' as used in the VAWA amendment to the LSC appropriations. 
Paragraphs (1), (2), and (3) of the definition link the assistance to 
the three categories of aliens eligible under the anti-abuse laws, 
including the categories added by VAWA and included in the proposed 
rule.
    The closing paragraph of the definition of ``related legal 
assistance,'' following the three paragraphs, adopts LSC's prior 
interpretation of permissible legal assistance for persons eligible 
under anti-abuse laws. The definition of ``related legal assistance'' 
in the proposed rule conforms to the interpretation of that term in the 
February 21, 2006 LSC Program Letter 06-2 providing guidance of the 
VAWA amendments. That program letter referenced LSC's interpretation on 
the existing Part 1626 regulation. 62 FR 45757 (preamble to final rule) 
(Aug. 29, 1997). In that interpretation, LSC concluded that related 
legal assistance for abused aliens could include representation on 
matters such as domestic and poverty law, employment, housing, and 
benefits, so long as such matters would assist in preventing, 
protecting from, or ameliorating abuse. Id. This same protection is 
necessary to fully protect persons in the added groups of aliens 
eligible for assistance, and accordingly the language added to the 
definition from prior LSC interpretations provides direction to 
recipients and other interested parties on the scope of assistance that 
is permissible.
    Paragraph (c) adds definitions for the four groups of aliens 
eligible for assistance under the anti-abuse statutes. Paragraph 
(c)(1), the definition of persons ``battered or subjected to extreme 
cruelty,'' is part of the existing regulation and is relocated from the 
definitions in Sec.  1626.2 to Sec.  1626.4 on eligibility under the 
anti-abuse laws. The first sentence of paragraph (c) defines ``battered 
or subjected to extreme cruelty'' by cross-reference to that term as 
defined in DHS regulations. This will allow the definition to remain 
accurate if the DHS regulations change. The examples of prohibited 
abusive behavior that follow the cross-reference are taken directly 
from the language of existing DHS regulations. See 45 CFR 
204.2(c)(1)(vi); 8 CFR 216.5(e); 8 CFR 1216.5(e)(3)(i). This language 
is the definition of ``battered or subjected to extreme cruelty'' in 
the existing regulation. Paragraph (c)(2), the definition of ``sexual 
assault or trafficking,'' derives from VAWA and the INA ``U visa'' 
provision and incorporates by cross-reference the definitions in those 
statutes.
    Paragraph (c)(3) incorporates the definition of the term ``severe 
forms of trafficking'' from the INA ``T visa'' provision, VTVPA and 
TVPRA. This language differs from the VAWA term ``trafficking'' in that 
it adds the words ``severe forms.''

LSC specifically seeks comment on whether the VAWA term ``trafficking'' 
differs from the VTVPA/TVPRA/INA term ``severe forms of trafficking,'' 
and, if so, how the terms are different and what evidence LSC 
recipients should rely on in distinguishing between these two terms for 
prohibited trafficking.

    Paragraph (c)(4) identifies persons ``qualified for relief'' under 
the U visa statute, section 101(a)(15)(U) of the INA. This includes 
persons who have been granted U visas, listed in paragraph (c)(3)(A). 
Because the term ``qualified for relief'' is not limited to persons who 
have been granted relief, the U visa paragraph also establishes 
eligibility for applicants for U visa relief and for persons who have 
not applied but who a recipient concludes are entitled to U visa 
relief. These latter two groups are included to permit recipients to 
represent aliens who have either applied for U visa relief or would, in 
the recipient's determination, qualify for U visas but have not 
applied.
    The eligibility provisions for U visa qualified aliens who have not 
been granted U visa relief require that there be evidentiary support 
for a recipient's determination of U visa qualification and 
eligibility. This standard is adopted from Rule 11 of the Federal Rules 
of Civil Procedure and is used to require recipients to have a factual 
basis for eligibility determinations.
    The last sentence of paragraph (c)(4) addresses the two categories 
of U visa relief, referred to in immigration forms as ``primary U visa 
status'' and ``derivative U visa'' status. Primary U visas are those 
sought by persons who are victims of abuse or who can assist with 
investigation or enforcement of such crimes, while derivative visas are 
those sought for family members of persons seeking primary U visas.
    Derivative U visa applicants are qualified for relief based on the 
eligibility of their family members applying for primary U visa status. 
The clarification in the proposed rule confirms that all U visa seekers 
are eligible for assistance without exclusion of applicants seeking 
derivative U visa status. The Corporation determined that this 
clarification would be useful to incorporate the analysis and 
conclusions of a recent Advisory Opinion from the LSC Office of Legal 
Affairs on U visa eligibility. See LSC Advisory Opinion AO-2013-003 
(June 13, 2013).
    Paragraph (d) of the proposed rule addresses two issues regarding 
geographic location. As described below, LSC specifically requests 
comments on these issues. Generally, the 504(a)(11) provision regarding 
eligible aliens requires presence in the United States, a requirement 
set forth in Sec.  1626.5. The anti-abuse laws enacted by Congress 
subsequent to the FY 1996 restrictions do not contain the same broad 
presence requirement.
    The first geographic location issue is the geographic location of 
the criminal activity that gives rise to the eligibility of the alien, 
addressed in paragraph (d)(1). The prohibitions of VAWA and the 
trafficking acts are not limited to activity within the United States.
    Similarly, the VAWA definition of ``battered and extreme cruelty'' 
was amended to eliminate the requirement that such conduct take place 
in the United States. The U visa provision in the INA requires that the 
criminal activity have ``violated the laws of the United States or 
occurred in the United States (including in Indian country and military 
installations) or the territories or possessions of the United 
States.'' 8 U.S.C. 1101 (a)(15)(U)(i)(IV)(emphasis added). The DHS 
United States Custom and Immigration Service (USCIS) has interpreted 
this ``as requiring that the predicate activity violate the laws of the 
United States regardless of whether it occurred in the United States.'' 
72 FR 53030 (September 17, 2007)(emphasis added).
    The USCIS regulation makes clear that criminal activity violative 
of U.S. law sufficient for U visa eligibility need not take place in 
the United States. Similarly, because the geographic location 
restriction in the definition of ``battered and subjected to extreme 
cruelty'' has been eliminated, such conduct need not take place in the 
United States. The trafficking act definition does not state that 
trafficking activity must take place in the United States, though it 
refers to victims in the United States. 22 U.S.C. 7102(9); 7105(b). 
Similarly, the ``T visa'' provision of the INA requires that a person 
be physically present in the United States to obtain relief, but does

[[Page 51700]]

not require that the trafficking take place in the United States. 8 
U.S.C. 1101(a)(15)(T). Moreover, the list of crimes for which a U visa 
may be granted includes trafficking. 8 U.S.C. 1101(a)(15)(U)(iii).
    However, the VAWA amendment to section 502 of the appropriations 
legislation states that ``a victim of sexual assault or trafficking in 
the United States'' is eligible for assistance. Public Law 109-162, 
section 104, 119 Stat. at 2979 (emphasis added). This is narrower than 
the other, related definitions of trafficking, which do not require 
that trafficking occur in the U.S. Similarly, the VTVPA and TVPRA refer 
to ``severe forms of sexual trafficking in the United States.'' 22 
U.S.C. 7105(b)(1)(B). It is LSC's conclusion that the narrower VAWA, 
VTVPA, and TVPRA language controls on this issue and that trafficking 
and severe forms of trafficking must have occurred in the United 
States.
    In sum, it is LSC's view that the predicate activity for 
eligibility under the anti-abuse statutes need not take place in the 
United States so long as the activity violates a law of the United 
States, with the exception of trafficking and severe forms of 
trafficking, which must occur in the United States as described above.

LSC specifically requests comment on this issue regarding where the 
predicate activity takes place.

    The second geographic location issue is whether an alien must be 
physically present in the United States to be eligible, addressed in 
paragraph (d)(2). The U visa statutory provision does not impose a 
physical presence requirement. The USCIS interpretation states that its 
regulation ``does not require petitioners to file for relief within the 
U.S. The statute does not require petitioners to be physically present 
to qualify for U visa status.'' 72 FR 53021 (September 17, 2007).
    VAWA does not address whether aliens must be physically present in 
the U.S. The trafficking acts themselves do not impose such a 
requirement, although they do reference victims in the United States 
and eligibility for services when victims are in the United States. 22 
U.S.C. 7105(b). However, the T visa provision of the INA, which 
establishes visa eligibility for victims of trafficking, requires that 
victims be present in the United States. 8 U.S.C. 1101(a)(15)(T). The 
VAWA amendment to the appropriations legislation refers to eligibility 
for ``victims of sexual assault or trafficking in the United States.'' 
Public Law 109-162, section 104, 119 Stat. at 2979 (amending section 
502(a)(2)(C)). Complicating this further, trafficking and VAWA 
violations are among the crimes that establish U visa eligibility, so a 
victim of trafficking who is not in the United States can obtain a U 
visa but not a T visa. 8 U.S.C. 1101(a)(15(U).
    Reviewing these statutes collectively, it is the view of LSC that 
aliens should be eligible for assistance under the anti-abuse statutes 
regardless of whether they are present in the United States. Most 
significantly, this interpretation of the statutes comports with the 
USCIS interpretation of the U visa statute, under which victims of 
trafficking and VAWA violations may seek relief. Victims of sexual 
assault and trafficking are qualified for U visa relief and need not be 
physically present in the United States for such relief.

LSC specifically requests comment on this issue regarding presence in 
the United States.

    Paragraph (e) of the proposed rule, ``evidentiary support'', 
establishes an evidentiary standard for determining eligibility for 
assistance under the anti-abuse statutes. The standard is adopted from 
Rule 11 of the Federal Rules of Civil Procedure, and permits a 
recipient to determine an alien is eligible if there is evidentiary 
support that the alien falls within any of the eligibility categories 
or if there is likely to be evidentiary support after reasonable 
opportunity for further investigation. The list of examples of evidence 
that would meet the standard is taken from VAWA, which allows 
consideration of ``any credible evidence'' of abuse. This standard is 
established in section 204(a)(1)(J) of the INA (8 U.S.C. 
1154(a)(1)(J)), and has been adopted by DHS. 8 CFR 204.2(c)(1)(vi). 
Paragraph (e) of the proposed rule identifies the examples of credible 
evidence listed in VAWA and the DHS regulation.
    In applying the evidentiary standard, LSC considered that 
recipients will be making eligibility determinations on whether aliens 
qualify for recipient assistance on pending and contested claims rather 
than making final decisions on the merits of the claims of aliens for 
relief. For that reason, LSC chose an evidentiary standard that was 
appropriate for assessing the validity of filing and proceeding with 
claims. The evidentiary support standard in the proposed rule addresses 
the issues that recipients will confront in assessing eligibility in 
several ways.
    First, the rule adopts a standard based on Rule 11 of the Federal 
Rules of Civil Procedure for filing and continuing with claims. Second, 
the standard permits recipients to make a judgment that an alien who 
may not possess evidence at intake will be able to do so after further 
investigation. Third, the rule allows eligibility based on statements 
taken from an alien, which may in some cases be the only evidence 
available during intake. Fourth, the rule accounts for the reality that 
the facts underlying eligibility assessments in abuse cases will often 
be fluid by calling for recipient staff to continue to assess 
eligibility beyond the intake process and to reverse eligibility 
determinations when appropriate. Fifth, the rule does not permit a 
recipient to delay in making eligibility determinations in order to 
provide assistance to an ineligible alien.
    Paragraph (f) of the proposed rule is a revision of paragraph (d) 
of the existing regulation, which states that recipients are not 
required to maintain records regarding the immigration status of 
clients represented under Sec.  1626.4(a). The reason for this waiver 
of immigration status recordkeeping for clients eligible under Sec.  
1626.4 is that, under the existing regulation, clients are eligible 
under Sec.  1626.4 because they are victims of abuse and not because of 
their immigration status.
    For clients who are eligible because they are battered, subjected 
to extreme cruelty, victims of sexual abuse, or victims of trafficking 
or severe forms of trafficking, but who have not been granted visa, 
eligibility is based on abuse and not on immigration status. Paragraph 
(f)(2) of the proposed rule requires that evidence of the abuse must be 
maintained for such clients but does not require evidence of 
immigration status. When such clients have filed applications for U 
visas or T visas copies of those applications must be retained.
    However, the eligibility of certain of the aliens eligible under 
the proposed rule does rest in part on immigration status. 
Specifically, the eligibility of aliens who have been granted U visas 
or T visas is based on their immigration status in the visa process. 
Accordingly, paragraph (f)(1) in the proposed rule requires that 
recipients maintain verification of U visa or T visa status for clients 
whose eligibility is based on their receiving such visas.
    Paragraph (g) is a new provision that addresses aliens who qualify 
under both Sec.  1626.4 and Sec.  1626.5. Because recipients are 
limited to providing ``related legal assistance'' under Sec.  1626.4 
but may provide the full range of permissible assistance without this 
restriction under Sec.  1626.5, the paragraph instructs recipients to 
treat ``dual eligible'' aliens as eligible under Sec.  1626.5.

[[Page 51701]]

1626.5 Aliens Eligible for Assistance Based on Immigration Status

    This section is substantively unchanged. As explained in the 
immediately preceding discussion, the titles for proposed Sec.  1626.4 
and Sec.  1626.5, have been changed to describe more precisely the 
exceptions to the prohibition of assistance to aliens established in 
those sections.
    The proposed rule includes a change in Sec.  1626.5(e), which 
concerns persons granted withholding of deportation. Section 1626.5 of 
the regulation allows recipients to provide assistance to several 
categories of aliens who have been granted immigration status and are 
lawfully present or admitted to the United States. One category 
eligible under this section is ``alien[s] who [are] lawfully present in 
the United States as a result of the Attorney General's withholding of 
deportation pursuant to section 243(h) of the INA (8 U.S.C. 1253(h)).'' 
45 CFR 1626.5(e).
    The withholding provision has been relocated to another section of 
the INA, and is now codified at 8 U.S.C. 1231(b)(3). The relocated 
withholding provision prohibits the removal of an alien to a country if 
the life or freedom of the alien would be threatened in the country of 
removal. Section 1626.5(e) in the proposed regulation is amended to 
correctly identify the citation to the statutory basis for withholding 
relief, and to reflect that the relocated provisions refers to 
withholding of ``removal'' and not to withholding of ``deportation.''

1626.6 Verification of Citizenship

    No substantive revisions have been made to this section. The 
proposed rule amends the section to reference internet, email, or other 
non-telephone communications.

1626.7 Verification of Eligible Alien Status

    This section is revised to reflect that the list of eligibility 
documents presently published as an appendix to Sec.  1626 will be 
subsequently published and revised in LSC program letters, or 
equivalent documents. The revision made to Sec.  1626.6 on non-in-
person communications also appears in this section.

1626.8 Emergencies

    Section 1626.4 has been added to the list of provisions for which 
emergency service can be provided prior to compliance with eligibility 
provisions.

1626.9 Change in Circumstance

    No revisions have been made to this section.

1626.10 Special Eligibility Questions

    No revisions have been made to this section.

1626.11 H-2 Forestry and Agricultural Workers

    This section establishes eligibility for assistance to certain 
workers admitted to the U.S. under temporary workers provisions in 
section 101(a)(15)(H)(ii) of the INA. Workers with immigration status 
under this section of the INA are often referred to as ``H-2A'' or ``H-
2B'' visa holders, depending on the subsection of the H-2 provision 
they are admitted under.
    The title of this section has been changed to add a reference to 
forestry workers, because statutory changes implemented in this section 
of the proposed rule add forestry workers authorized to be in the 
United States pursuant to the H-2B provision of the INA. The changes in 
paragraph (a) of this section conform the regulation's language on 
eligibility of agricultural workers to the statutory authority 
establishing this eligibility. The statutory authority establishing 
eligibility for agricultural workers, section 504(a)(11)(E) of the FY 
1996 LSC appropriations legislation, permits recipients to provide 
assistance to ``an alien to whom section 305 of the Immigration Reform 
Act of 1986 [``IRCA''] (8 U.S.C. 1101 note) applies.'' Public Law 104-
134, section 504(a)(11)(E), 110 Stat. at 1321-55, amended by Public Law 
110-161, section 540, 121 Stat. at 1924. Section 305 of IRCA in turn 
establishes eligibility for ``non-immigrant worker[s] admitted or 
permitted to remain in the United States under section 
101(a)(15)(H)(ii)(a) of the Immigration and Naturalization Act .'' 8 
U.S.C. 1101, note. The existing Sec.  1626.11 language refers generally 
to ``agricultural H-2 workers'' and eligibility ``under the provisions 
of 8 U.S.C. 1101(a)(15)(H)(ii).'' This general reference to H-2 could 
be confused as a broader authorization than that actually created by 
the statute, which establishes eligibility specifically for H-2A 
agricultural workers. The revised rule clarifies this by citing section 
H-2A rather than H-2.
    The added paragraph (b) implements the FY 2008 amendment to section 
504(a)(11)(E) of the FY 1996 LSC appropriations legislation, which 
extended eligibility for assistance from recipients to H-2B visa 
forestry workers. Public Law 104-134, section 504(a)(11)(E), 110 Stat. 
at 1321-55, amended by Public Law 110-161, section 540, 121 Stat. at 
1924. The existing Sec.  1626.11 provision on H-2 visa eligibility does 
not include forestry workers.
    Paragraph (b) of the proposed rule also establishes that the 
existing limitations on assistance for H-2A agricultural workers apply 
as well to H-2B forestry workers. This conforms to the FY 2008 LSC 
appropriation, which limits the assistance for H-2B eligible forestry 
workers to that described in section 305 of IRCA. Id. Section 305 
limits assistance to ``matters relating to wages, housing, 
transportation and other employment rights'' that arise under a 
temporary worker's specific H-2A contract. 8 U.S.C. 1101, note. The 
limitations, codified in the existing regulation at paragraph (b), 
appear without substantive revision in paragraph (c) of the proposed 
rule.

1626.12 Recipient Policies, Procedures and Recordkeeping

    No revisions have been made to this section.

Appendix to Part 1626--Examples of Documents and Other Information 
Establishing Alien Eligibility for Representation by LSC Programs

    The list of eligibility documents presently included in the 
regulation as an appendix to Part 1626 was last updated in 2003, and, 
like the regulation, it requires updates. Revisions to the list do not 
entail policy decisions, as they are limited to administrative updates 
to the list of examples of documents or information which satisfy 
eligibility. In view of the frequency with which immigration forms 
change, subjecting updates of the list to the process of repeated Board 
approval and the LSC rulemaking protocol would be unduly complicated. 
For that reason, the Corporation proposes that the information 
currently contained in the appendix be reclassified as a program letter 
posted on the LSC Web site, and emailed to grant recipients.
    The initial revision of the appendix and reclassification as a 
program letter is a change in the regulation and is therefore being 
done pursuant to the LSC rulemaking protocol, which requires Board 
review and approval prior to publication for notice and comment. Legal 
Services Corporation Rulemaking Protocol, 67 FR 69762 (November 19, 
2002). Subsequent revision of the program letter would allow for, but 
would not require, Board consideration and approval and thereafter 
notice and comment.

[[Page 51702]]

List of Subjects in 45 CFR Part 1626

    Aliens, Grant programs--law, Legal services, Migrant labor, 
Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Legal Services 
Corporation proposes to revise 45 CFR part 1626 to read as follows:

PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS

Sec.
1626.1 Purpose.
1626.2 Definitions.
1626.3 Prohibition.
1626.4 Aliens eligible for assistance under anti-abuse laws.
1626.5 Aliens eligible for assistance based on immigration status.
1626.6 Verification of citizenship.
1626.7 Verification of eligible alien status.
1626.8 Emergencies.
1626.9 Change in circumstances.
1626.10 Special eligibility questions.
1626.11 H-2 forestry and agricultural workers.
1626.12 Recipient policies, procedures and recordkeeping.

    Authority: Pub. L. 104-208, 110 Stat. 1321; Pub. L. 104-134, 110 
Stat. 3009; Pub. L. 105-119, 111 Stat. 2440; Pub. L. 106-386, 114 
Stat. 1464; Pub. L. 108-193, 117 Stat. 2875; Pub. L. 109-162, 119 
Stat. 2960; Pub. L. 110-161, 121 Stat. 1844.


Sec.  1626.1  Purpose.

    This part is designed to ensure that recipients provide legal 
assistance only to citizens of the United States and eligible aliens. 
It is also designed to assist recipients in determining the eligibility 
and immigration status of persons who seek legal assistance.


Sec.  1626.2  Definitions.

    (a) Citizen includes a person described or defined as a citizen or 
national of the United States in 8 U.S.C. 1101(a)(22) and Title III of 
the Immigration and Nationality Act (INA), Chapter 1 (8 U.S.C. 1401 et 
seq.) (citizens by birth) and Chapter 2 (8 U.S.C. 1421 et seq.) 
(citizens by naturalization) or antecedent citizen statutes.
    (b) Eligible alien means a person who is not a citizen but who 
meets the requirements of Sec.  1626.4 or Sec.  1626.5.
    (c) Ineligible alien means a person who is not a citizen and who 
does not meet the requirements of Sec.  1626.4 or Sec.  1626.5.
    (d) Rejected refers to an application for adjustment of status that 
has been denied by the Department of Homeland Security (DHS) and is not 
subject to further administrative appeal.
    (e) To provide legal assistance on behalf of an ineligible alien is 
to render legal assistance to an eligible client that benefits an 
ineligible alien and does not affect a specific legal right or interest 
of the eligible client.
    (f) Anti-abuse statutes means the Violence Against Women Act of 
1994, Public Law 103-322, 108 Stat. 1941, as amended, and the Violence 
Against Women and Department of Justice Reauthorization Act of 2005, 
Public Law 109-162, 119 Stat. 2960 (collectively referred to as 
``VAWA''); the Victims of Trafficking and Violence Protection Act of 
2000, Public Law 106-386, 114 Stat. 1464 (``VTVPA''); the Trafficking 
Victims Protection Reauthorization Act of 2003, Public Law 108-193, 117 
Stat. 2875 (``TVPRA''); Section 101(a)(15)(T) of the Immigration and 
Naturalization Act (``INA''), 8 U.S.C. 1101(a)(15)(T); Section 
101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U); and the 
incorporation of these statutory provisions in section 502(a)(2)(C) of 
LSC's FY 1998 appropriation, Public Law 105-119, Title V, 111 Stat. 
2440, 2510 as incorporated by reference thereafter. E.g., Public Law 
113-6, 127 Stat. 198, 267 (2013) (LSC's FY 2013 appropriation).
    (g) United States, for purposes of this part, has the same meaning 
given that term in 8 U.S.C. 1101(a)(38) of the INA.


Sec.  1626.3  Prohibition.

    Recipients may not provide legal assistance for or on behalf of an 
ineligible alien. For purposes of this part, legal assistance does not 
include normal intake and referral services.


Sec.  1626.4  Aliens eligible for assistance under anti-abuse laws.

    (a) Subject to all other eligibility requirements and restrictions 
of the LSC Act and regulations and other applicable law:
    (1) A recipient may provide related legal assistance to an alien 
who is within one of the following categories:
    (i) An alien who has been battered or subjected to extreme cruelty, 
or is a victim of sexual assault or trafficking in the United States, 
or qualifies for relief under section 101(a)(15)(U) of the INA (8 
U.S.C. 1101(a)(15)(U)); or
    (ii) An alien whose child, without the active participation of the 
alien, has been battered or subjected to extreme cruelty, or has been a 
victim of sexual assault or trafficking in the United States, or 
qualifies for immigration relief under section 101(a)(15)(U) of the INA 
(8 U.S.C. 1101(a)(15)(U)).
    (2) A recipient may provide legal assistance, including but not 
limited to related leal assistance, to:
    (i) an alien who is a victim of ``severe forms of trafficking'' of 
persons in the United States, or
    (ii) an alien classified as a non-immigrant under section 101 
(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii) regarding others 
related to the victim).
    (b) (1) Related legal assistance means legal assistance directly 
related
    (i) To the prevention of, or obtaining relief from, battery or 
cruelty, sexual assault or trafficking;
    (ii) To the prevention of, or obtaining relief from, crimes listed 
in section 101(a)(15)(U)(iii) of the INA (8 U.S.C. 
1101(a)(15)(U)(iii));
    (iii) To an application for relief:
    (A) Under Section 101(a)(15)(U) of INA (8 U.S.C. 1101(a)(15)(U)); 
or
    (B) Under section 101(a)(15)(T) of INA (8 U.S.C. 1101(a)(15)(T)).
    (2) Such assistance includes representation in matters that will 
assist a person eligible for assistance under this part to escape from 
the abusive situation, ameliorate the current effects of the abuse, or 
protect against future abuse, so long as the recipient can show the 
necessary connection of the representation to the abuse. Such 
representation may include immigration law matters, and domestic or 
poverty law matters (such as obtaining civil protective orders, 
divorce, paternity, child custody, child and spousal support, housing, 
public benefits, employment, abuse and neglect, juvenile proceedings 
and contempt actions).
    (c) Definitions of Categories of Eligible Aliens Under Anti-Abuse 
Statutes. (1) A person battered or subjected to extreme cruelty 
includes any person who has been battered or subjected to extreme 
cruelty as that term is defined in regulations interpreting VAWA. 
Examples of battering or extreme cruelty include, but are not limited 
to, being the victim of any act or threatened act of violence, 
including any forceful detention, which results or threatens to result 
in physical or mental injury. Psychological or sexual abuse or 
exploitation, including rape, molestation, incest (if the victim is a 
minor), or forced prostitution may be considered acts of violence. 
Other abusive actions may also be acts of violence under certain 
circumstances, including acts that, in and of themselves, may not 
initially appear violent but that are a part of an overall pattern of 
violence.
    (2) A victim of sexual assault or trafficking includes:
    (i) A victim of sexual assault subjected to any conduct included in 
the definition of sexual assault or sexual abuse in VAWA, including but 
not limited to sexual abuse, aggravated

[[Page 51703]]

sexual abuse, abusive sexual contact, or sexual abuse of a minor or 
ward; and
    (ii) A victim of trafficking subjected to any conduct included in 
the definition of ``trafficking'' under law, including, but not limited 
to VAWA and the INA.
    (3) A victim of severe forms of trafficking includes any person 
subjected to such abuse under the VTVPA or TVPRA as codified at 22 
U.S.C. 7105.
    (4) A person who qualifies for immigration relief under section 
101(a)(15)(U) of the INA includes:
    (i) A person who has been granted relief under that section;
    (ii) A person who has applied for relief under that section and who 
the recipient determines has evidentiary support for such application; 
or
    (iii) A person who has not filed for relief under that section, but 
who the recipient determines has evidentiary support for filing for 
such relief.
    A person who ``qualifies for immigration relief'' includes any 
person who may apply for primary U visa relief under subsection (i) of 
section 101(a)(15)(U) of the INA or for derivative U visa relief for 
family members under subsection (ii) of section 101(a)(15)(U) of the 
INA (8 U.S.C. 1101(a)(15)(U)). Recipients may provide assistance for 
any person who qualifies for derivative U visa relief regardless of 
whether such a person has been subjected to abuse.
    (d) Geographic location. (1) Location of activity giving rise to 
eligibility. Except for aliens eligible because they are victims of 
trafficking or severe forms of trafficking, an alien is eligible under 
this section if the activity giving rise to eligibility violated a law 
of the United States, regardless of whether that conduct took place in 
the United States or a United States territory. Victims of trafficking 
must be subjected to illegal trafficking in the United States to be 
eligible for assistance.
    (2) Location of alien. An alien need not be present in the United 
States or a United States territory to be eligible for assistance under 
this section.
    (e) Evidentiary support. A recipient may determine that an alien is 
qualified for assistance under paragraphs (a) and (c) of this section 
if there is evidentiary support that the alien falls into any of the 
eligibility categories or if the recipient determines there will likely 
be evidentiary support after a reasonable opportunity for further 
investigation. Evidentiary support may include, but is not limited to, 
affidavits or unsworn written statements made by the alien; written 
summaries of statements or interviews of the alien taken by others, 
including the recipient; reports and affidavits from police, judges, 
and other court officials, medical personnel, school officials, clergy, 
social workers, other social service agency personnel; orders of 
protection or other legal evidence of steps taken to end abuse; 
evidence that a person sought safe haven in a shelter or similar 
refuge; photographs; documents or other evidence of a series of acts 
that establish a pattern of qualifying abuse. If the recipient 
determines that an alien is eligible because there will likely be 
evidentiary support, the recipient must obtain evidence of support as 
soon as possible and may not delay in order to provide continued 
assistance. Section 1626.9 applies for situations in which a previously 
eligible alien is determined to be ineligible, for example, if an 
alien's application for U visa relief is denied or if there is an 
official DHS determination that an alien whose eligibility is based on 
trafficking was not a victim of trafficking. Because the facts 
determinative of alien eligibility based on anti-abuse statutes may 
develop or change, eligibility determinations made by intake personnel 
should be reviewed by other recipient staff members involved in the 
representation of an alien.
    (f) Recordkeeping. (1) For a client whose eligibility is based on a 
grant of relief under section 101(a)(15)(U) of the INA or section 
101(a)(15)(T) of the INA, or any other grant of immigration status, 
recipients must maintain a copy of the visa or other official record of 
such relief from immigration authorities;
    (2) For a client whose eligibility is based on other evidentiary 
support as described in paragraph (e) of this section, recipients are 
required to maintain originals or copies of such evidence. When such a 
client has filed an application for relief under section 101(a)(15)(U) 
of the INA or section 101(15)(T) of the INA, recipients must maintain a 
copy of the application for such relief filed with immigration 
authorities as well as copies of other evidentiary support.
    (g) Changes in basis for eligibility. If, during the course of 
representing an alien eligible pursuant to Sec.  1626.4, a recipient 
determines that the alien is also eligible under Sec.  1626.5, the 
recipient should treat the alien as eligible under Sec.  1626.5 and may 
provide all the assistance available pursuant to that section.


Sec.  1626.5  Aliens eligible for assistance based on immigration 
status.

    Subject to all other eligibility requirements and restrictions of 
the LSC Act and regulations and other applicable law, a recipient may 
provide legal assistance to an alien who is present in the United 
States and who is within one of the following categories:
    (a) An alien lawfully admitted for permanent residence as an 
immigrant as defined by section 1101(a)(20) of the INA (8 U.S.C. 
1101(a)(20));
    (b) An alien who is either married to a United States citizen or is 
a parent or an unmarried child under the age of 21 of such a citizen 
and who has filed an application for adjustment of status to permanent 
resident under the INA, and such application has not been rejected;
    (c) An alien who is lawfully present in the United States pursuant 
to an admission under section 207 of the INA (8 U.S.C. 1157) (relating 
to refugee admissions) or who has been granted asylum by the Attorney 
General under section 208 of the INA (8 U.S.C. 1158).
    (d) An alien who is lawfully present in the United States as a 
result of being granted conditional entry pursuant to section 203(a)(7) 
of the INA (8 U.S.C. 1153(a)(7), as in effect on March 31, 1980) before 
April 1, 1980, because of persecution or fear of persecution on account 
of race, religion, or political opinion or because of being uprooted by 
catastrophic natural calamity;
    (e) An alien who is lawfully present in the United States as a 
result of the Attorney General's withholding of removal pursuant to 
section 241(b)(3) of the INA (8 U.S.C. 1231(b)(3); or
    (f) An alien who meets the requirements of Sec.  1626.10 or Sec.  
1626.11.


Sec.  1626.6  Verification of citizenship.

    (a) A recipient shall require all applicants for legal assistance 
who claim to be citizens to attest in writing in a standard form 
provided by the Corporation that they are citizens, unless the only 
service provided for a citizen is brief advice and consultation by 
telephone, or by other non-in-person means, which does not include 
continuous representation.
    (b) When a recipient has reason to doubt that an applicant is a 
citizen, the recipient shall require verification of citizenship. A 
recipient shall not consider factors such as a person's accent, limited 
English-speaking ability, appearance, race, or national origin as a 
reason to doubt that the person is a citizen.
    (1) If verification is required, a recipient may accept originals, 
certified copies, or photocopies that appear to be complete, correct, 
and authentic of any of the following documents as evidence of 
citizenship:
    (i) United States passport;
    (ii) Birth certificate;
    (iii) Naturalization certificate;

[[Page 51704]]

    (iv) United States Citizenship Identification Card (INS Form 1-197 
or I-197); or
    (v) Baptismal certificate showing place of birth within the United 
States and date of baptism within two months after birth.
    (2) A recipient may also accept any other authoritative document, 
such as a document issued by INS, by a court, or by another 
governmental agency, that provides evidence of citizenship.
    (3) If a person is unable to produce any of the above documents, 
the person may submit a notarized statement signed by a third party, 
who shall not be an employee of the recipient and who can produce proof 
of that party's own United States citizenship, that the person seeking 
legal assistance is a United States citizen.


Sec.  1626.7  Verification of eligible alien status.

    (a) An alien seeking representation shall submit appropriate 
documents to verify eligibility, unless the only service provided for 
an eligible alien is brief advice and consultation by telephone, or by 
other non-in-person means, which does not include continuous 
representation of a client.
    (1) As proof of eligibility, a recipient may accept originals, 
certified copies, or photocopies that appear to be complete, correct, 
and authentic, of any documents establishing eligibility. LSC will 
publish a list of examples of such documents from time to time, in the 
form of a program letter or equivalent.
    (2) A recipient may also accept any other authoritative document 
issued by the DHS, by a court, or by another governmental agency, that 
provides evidence of alien status.
    (b) A recipient shall upon request furnish each person seeking 
legal assistance with a current list of documents establishing 
eligibility under this part as is published by LSC.


Sec.  1626.8  Emergencies.

    In an emergency, legal services may be provided prior to compliance 
with Sec.  1626.4, Sec.  1626.6 and Sec.  1626.7 if:
    (a) An applicant cannot feasibly come to the recipient's office or 
otherwise transmit written documentation to the recipient before 
commencement of the representation required by the emergency, and the 
applicant provides oral information to establish eligibility which the 
recipient records, and the applicant submits the necessary 
documentation as soon as possible; or
    (b) An applicant is able to come to the recipient's office but 
cannot produce the required documentation before commencement of the 
representation, and the applicant signs a statement of eligibility and 
submits the necessary documentation as soon as possible; and
    (c) The recipient informs clients accepted under paragraph (a) or 
(b) of this section that only limited emergency legal assistance may be 
provided without satisfactory documentation and that, if the client 
fails to produce timely and satisfactory written documentation, the 
recipient will be required to discontinue representation consistent 
with the recipient's professional responsibilities.


Sec.  1626.9  Change in circumstances.

    If, to the knowledge of the recipient, a client who was an eligible 
alien becomes ineligible through a change in circumstances, continued 
representation is prohibited by this part and a recipient must 
discontinue representation consistent with applicable rules of 
professional responsibility.


Sec.  1626.10  Special eligibility questions.

    (a) (1) This part is not applicable to recipients providing 
services in the Commonwealth of the Northern Mariana Islands, the 
Republic of Palau, the Federated States of Micronesia, or the Republic 
of the Marshall Islands.
    (2) All citizens of the Republic of Palau, the Federated States of 
Micronesia, and the Republic of the Marshall Islands residing in the 
United States are eligible to receive legal assistance provided that 
they are otherwise eligible under the Act.
    (b) All Canadian-born American Indians at least 50% Indian by blood 
are eligible to receive legal assistance provided they are otherwise 
eligible under the Act.
    (c) Members of the Texas Band of Kickapoo are eligible to receive 
legal assistance provided they are otherwise eligible under the Act.
    (d) An alien who qualified as a special agricultural worker and 
whose status is adjusted to that of temporary resident alien under the 
provisions of the Immigration Reform and Control Act (``IRCA'') is 
considered a permanent resident alien for all purposes except 
immigration under the provisions of section 302 of 100 Stat. 3422, 8 
U.S.C. 1160(g). Since the status of these aliens is that of permanent 
resident alien under section 1101(a)(20) of Title 8, these workers may 
be provided legal assistance. These workers are ineligible for legal 
assistance in order to obtain the adjustment of status of temporary 
resident under IRCA, but are eligible for legal assistance after the 
application for adjustment of status to that of temporary resident has 
been filed, and the application has not been rejected.
    (e) A recipient may provide legal assistance to indigent foreign 
nationals who seek assistance pursuant to the Hague Convention on the 
Civil Aspects of International Child Abduction and the Federal 
implementing statute, the International Child Abduction Remedies Act, 
42 U.S.C. 11607(b), provided that they are otherwise financially 
eligible.


Sec.  1626.11  H-2 agricultural and forestry workers.

    (a) Nonimmigrant agricultural workers admitted under the provisions 
of 8 U.S.C. 1101(a)(15)(h)(ii)(a), commonly called H-2A agricultural 
workers, may be provided legal assistance regarding the matters 
specified in paragraph (c) of this section;
    (b) Nonimmigrant forestry workers admitted under the provisions of 
8 U.S.C. 1101(a)(15)(h)(ii)(b), commonly called H-2B forestry workers, 
may be provided legal assistance regarding the matters specified in 
paragraph (c) of this section.
    (c) The following matters which arise under the provisions of the 
worker's specific employment contract may be the subject of legal 
assistance by an LSC-funded program:
    (1) Wages;
    (2) Housing;
    (3) Transportation; and
    (4) Other employment rights as provided in the worker's specific 
contract under which the nonimmigrant worker was admitted.


Sec.  1626.12  Recipient policies, procedures and recordkeeping.

    Each recipient shall adopt written policies and procedures to guide 
its staff in complying with this part and shall maintain records 
sufficient to document the recipient's compliance with this part.

    Dated: August 13, 2013.
Atitaya C. Rok,
Staff Attorney.
[FR Doc. 2013-20040 Filed 8-20-13; 8:45 am]
BILLING CODE 7050-01-P