Restrictions on Legal Assistance to Aliens, 51696-51704 [2013-20040]
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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.
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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
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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:
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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:
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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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.
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§ 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
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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
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(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
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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
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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;
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(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.
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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
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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.
-----------------------------------------------------------------------
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