Restrictions on Legal Assistance to Aliens, 21861-21874 [2014-08833]

Download as PDF 21861 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations NEW YORK—PM2.5 [Annual NAAQS] Designation a Designated area Date 1 * * * * * New York-N. New Jersey-Long Island, NY-NJ-CT * Bronx County ................................................................................................................................................. Kings County ................................................................................................................................................. Nassau County .............................................................................................................................................. New York County ........................................................................................................................................... Orange County .............................................................................................................................................. Queens County .............................................................................................................................................. Richmond County .......................................................................................................................................... Rockland County ........................................................................................................................................... Suffolk County ............................................................................................................................................... Westchester County ...................................................................................................................................... * * a Includes Indian 1 This date is 90 * * * Type * 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 * Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. * Country located in each county or area, except as otherwise specified. days after January 5, 2005, unless otherwise noted. NEW YORK—PM2.5 [24-Hour NAAQS] Designation for the 1997 NAAQS a Designation for the 2006 NAAQS a Designated area Date 1 * * Date 2 * * * New York-N. New Jersey-Long Island, NY-NJ-CT Bronx County ......................................... Kings County .......................................... Nassau County ....................................... New York County ................................... Orange County ....................................... Queens County ...................................... Richmond County ................................... Rockland County .................................... Suffolk County ........................................ Westchester County ............................... * Type * ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment Unclassifiable/Attainment * * .............................. .............................. .............................. .............................. .............................. .............................. .............................. .............................. .............................. .............................. * * * 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 4/18/14 * Type Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. Attainment. * a Includes Indian 1 This date is 90 Country located in each county or area, except as otherwise specified. days after January 5, 2005, unless otherwise noted. 2 This date is 30 days after November 13, 2009, unless otherwise noted. * * * * * [FR Doc. 2014–08747 Filed 4–17–14; 8:45 am] BILLING CODE 6560–50–P LEGAL SERVICES CORPORATION pmangrum on DSK3VPTVN1PROD with RULES 45 CFR Part 1626 Restrictions on Legal Assistance to Aliens Legal Services Corporation ACTION: Final rule. AGENCY: This final rule updates the Legal Services Corporation (LSC or Corporation) regulation on legal assistance to aliens. The rule SUMMARY: VerDate Mar<15>2010 16:11 Apr 17, 2014 Jkt 232001 implements statutory changes regarding aliens eligible for legal assistance from LSC recipients that have been enacted since the pertinent provisions of the existing regulation were last revised in 1997. Additional information is located in the SUPPLEMENTARY INFORMATION section. This final rule is effective on May 19, 2014. DATES: FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, (202) 295–1563 (phone), (202) 337–6519 (fax), sdavis@lsc.gov. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 I. General Authorities, Impetus for Rulemaking, and Existing Rules LSC’s current appropriation 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 aliens other than those covered by statutory exceptions. Sec. 504(a)(11), Public Law 104–134, Title V, 110 Stat. 1321, 1321– 54. In subsequent years, Congress expanded eligibility to discrete E:\FR\FM\18APR1.SGM 18APR1 pmangrum on DSK3VPTVN1PROD with RULES 21862 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations categories of aliens. In 1997, Congress passed the Kennedy Amendment, which allowed LSC recipients to use non-LSC funds to provide related legal assistance to aliens who were battered or subjected to extreme cruelty in the United States by family members. Sec. 502(a)(2)(C), Public Law 104–208, Div. A, Title V, 110 Stat. 3009, 3009–60. Congress limited the type of assistance that recipients could provide to ‘‘legal assistance directly related to the prevention of, or obtaining relief from, the battery or cruelty described in’’ regulations issued pursuant to VAWA (hereinafter ‘‘related assistance’’). Sec. 502(b)(2), Public Law 104–208, Div. A, Title V, 110 Stat. 3009–60. Congress renewed the Kennedy Amendment in the FY 1998 reincorporation and modification of the LSC appropriation restrictions. Sec. 502(a)(2)(C), Public Law 105–119, Title V, 111 Stat. 2440, 2511. Thereafter, LSC’s annual appropriation has incorporated the FY 1998 restrictions by reference. See, e.g., Public Law 113–6, Div. B, Title IV, 127 Stat. 198, 268 (LSC FY 2013 appropriation). The next expansions of eligibility came through the passage of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA) and its progeny. Public Law 106–386, 114 Stat. 1464 (22 U.S.C. 7101 note). Through the TVPA, Congress directed the Board of Directors of LSC, along with Federal benefits granting agencies, to ‘‘expand benefits and services to victims of severe forms of trafficking in persons in the United States, without regard to the immigration status of such victims.’’ Sec. 107(b)(1)(B), Public Law 106–386, 114 Stat. 1475 (22 U.S.C. 7105(b)(1)(B)). Congress passed the Trafficking Victims Protection Reauthorization Act (TVPRA) in 2003, which made certain family members of victims of severe forms of trafficking (‘‘derivative T visa holders’’) eligible to receive legal services from LSC-funded recipients. Sec. 4(a)(2)(B)(i), Public Law 108–193, 117 Stat. 2875, 2877 (22 U.S.C. 7105(b)(1)(B)). In January of 2006, Congress passed the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005). VAWA 2005 further amended section 502(a)(2)(C) of the FY 1998 LSC appropriation 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 Immigration and Nationality Act (INA). Sec. 104, Public Law 109–162, 119 Stat. 2960, 2978. The U visa provision of the INA allows aliens who are victims of VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 one or more of the crimes listed therein and who may assist in law enforcement investigations or prosecutions related to such crimes, or who are family members of such victims, to remain in the United States for a limited period. 8 U.S.C. 1101(a)(15)(U). Additionally, VAWA 2005 removed the Kennedy Amendment’s restriction on the use of LSC funds to provide representation to aliens who are eligible for services under VAWA 2005. Sec. 104(a)(1)(A), Public Law 109–162, 119 Stat. 2979–80. The amended text of section 502 is not codified, but the pertinent portion is available at http://www.lsc.gov/about/ lsc-act-other-laws/violence-againstwomen-act-public-law-109-162-2006. The final expansion of eligibility occurred in 2007. The FY 2008 LSC appropriation amended section 504(a)(11) of the FY 1996 LSC appropriation to extend eligibility for assistance to forestry workers admitted to the United States under the H–2B temporary worker provision in section 101(a)(15)(H)(ii)(b) of the INA. Sec. 540, Public Law 110–161, Div. B, Title V, 121 Stat. 1844, 1924. LSC last revised part 1626 in 1997. After the alienage restrictions were enacted in 1996, LSC adopted an interim rule to implement the restrictions. 61 FR 45750, Aug. 29, 1996. While this rule was pending for comment, Congress passed the Kennedy Amendment. LSC subsequently revised part 1626 to implement the Kennedy Amendment. 62 FR 19409, Apr. 21, 1997, amended by 62 FR 45755, Aug. 29, 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. After 1997, LSC apprised recipients through program letters of certain statutory changes expanding alien eligibility for legal assistance provided by LSC-funded recipients. Program Letter 02–5 (May 15, 2002) (TVPA); Program Letter 05–2 (Oct. 6, 2005) (TVPRA; superseded Program Letter 02– 5); Program Letter 06–2 (Feb. 21, 2006) (VAWA 2005). The final rule will incorporate the policies set forth in Program Letters 05–2 and 06–2. Both letters will be superseded upon publication of the final rule and will be removed from the ‘‘Current Program Letters’’ page of LSC’s Web site. II. Procedural Background As a result of the numerous amendments to the alien eligibility provisions of the FY 1996 LSC appropriation, the Corporation PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 determined that rulemaking to update part 1626 was appropriate. 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. LSC published the notice of proposed rulemaking (the NPRM) in the Federal Register on August 21, 2013. 78 FR 51696, Aug. 21, 2013. The comment period remained open for sixty days and closed on October 21, 2013. On January 23, 2014, the Committee considered the draft final rule for publication. After hearing from staff and stakeholders about changes to § 1626.4(c) in the final rule and the possible consequences of those changes, the Committee voted to recommend delaying final consideration of the rule pending an opportunity for public comment on those changes. On January 25, 2014, the Board voted to proceed with a further notice of proposed rulemaking (FNPRM). LSC published the FNPRM in the Federal Register on February 5, 2014. 79 FR 6859, Feb. 5, 2014. The comment period closed on March 7, 2014. On April 7, 2014, the Committee considered the draft final rule and voted to recommend its publication to the Board. On April 8, 2014, the Board voted to adopt and publish the final rule. All of the comments and related memos submitted to the LSC Board regarding this rulemaking are available in the open rulemaking section of LSC’s Web site at http://www.lsc.gov/about/ regulations-rules/open-rulemaking. After the effective date of the rule, those materials will appear in the closed rulemaking section at http:// www.lsc.gov/about/regulations-rules/ closed-rulemaking. III. Discussion of Comments and Regulatory Provisions LSC received fifteen comments in response to the NPRM. Eight comments were submitted by LSC-funded recipients, four were submitted by nonLSC-funded non-profit organizations, E:\FR\FM\18APR1.SGM 18APR1 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations and three were submitted by individuals. All of the comments are posted on the rulemaking page of LSC’s Web site: www.lsc.gov/about/ regulations-rules. Most commenters supported the revisions to conform part 1626 to the statutes expanding eligibility for legal services to certain crime victims, victims of severe forms of trafficking, and H–2B forestry workers. LSC received the greatest number of comments in response to the three issues the Corporation specifically sought comment on: the distinction between the VAWA 2005 and TVPA definitions of ‘‘trafficking,’’ the geographic location of the predicate activity for eligibility, and the geographic location of the victim. Organizational Note In the final rule, definitions that the NPRM placed in § 1626.4(c) are being moved to § 1626.2. As a result, paragraphs (d) through (g) of § 1626.4 are being redesignated as paragraphs (c) through (f). In the following discussion of the comments and the changes to the proposed rule, the relabeled paragraphs will be referred to by the designation to be used in the final rule, except where the proposed rule is explicitly referenced. pmangrum on DSK3VPTVN1PROD with RULES Specific Areas in Which LSC Requested Comments 1. Whether the VAWA Term ‘‘trafficking’’ Differs From the TVPA/ 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 LSC received seven comments in response to this request. Of the seven, one observed a trend of linking the VAWA and INA definitions of trafficking to the TVPA term ‘‘severe forms of trafficking’’ and suggested that the term ‘‘severe forms of trafficking’’ should control all uses of the term ‘‘trafficking.’’ The other six commenters generally agreed that the VAWA 2005 term ‘‘trafficking’’ differs from the term ‘‘severe forms of trafficking’’ used in the TVPA and the INA. All six of those commenters believed that ‘‘trafficking’’ as used in VAWA 2005 is a broader term than the TVPA’s ‘‘severe forms of trafficking.’’ This belief applied to both the plain term ‘‘trafficking’’ in VAWA 2005 and the qualifying crime of trafficking for purposes of U visa eligibility under section 101(a)(15)(U) of the INA. One commenter noted that ‘‘the term ‘trafficking’ was included in the U visa provisions to cover forms of VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 human trafficking’’ in which persons were being trafficked, but would have difficulty meeting the ‘‘severe forms of trafficking’’ standard to obtain eligibility for benefits under the TVPA. By making trafficking a crime for which individuals could qualify for related legal assistance or a U visa, the commenter continued, Congress extended ‘‘protection and help [to] both the trafficking victims who could meet the severe forms test and those who could not.’’ Commenters differed, however, in how they believed LSC should account for the difference in definitions. Five commenters recommended that LSC adopt VAWA 2005’s broader term ‘‘trafficking’’ over the TVPA’s ‘‘severe forms of trafficking.’’ A sixth commenter asserted that in determining eligibility, ‘‘a LSC funded organization should be able to rely on the applicable state statute which would make the applicant eligible for a U visa or the federal statute which defines ‘severe form of trafficking,’ whichever is broader. Moreover, LSC funded organizations should be able to rely on any evidence that supports the applicable definition in a particular case.’’ In order to qualify for a U visa, an alien must be a victim of at least one of the types of criminal activity listed in section 101(a)(15)(U)(iii) of the INA. The listed crimes, which include ‘‘trafficking,’’ must ‘‘violate[] the laws of the United States or occur[] in the United States (including in Indian country and military installations) or the territories and possessions of the United States[.]’’ 8 U.S.C. 1101(a)(15)(U)(i)(IV). Neither the INA nor VAWA 2005 defines the term ‘‘trafficking.’’ The TVPA also fails to define ‘‘trafficking,’’ although it does define and use the terms ‘‘severe forms of trafficking in persons’’ and ‘‘sex trafficking.’’ 22 U.S.C. 7102. The TVPA defines ‘‘sex trafficking’’ as ‘‘the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.’’ 22 U.S.C. 7102(9). ‘‘Severe forms of trafficking in persons’’ means: (a) Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 22 U.S.C. 7102(8). The TVPA does not reference state, tribal, or territorial laws that criminalize trafficking. PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 21863 LSC agreed with the commenters that the VAWA term ‘‘trafficking,’’ incorporating as it does crimes that would constitute trafficking if they violated state or federal law, is broader than both ‘‘sex trafficking’’ and ‘‘severe forms of trafficking in persons’’ as defined in the TVPA. Indeed, ‘‘trafficking’’ as used in VAWA 2005 would include both sex trafficking and severe forms of trafficking in persons, as both are defined as crimes by a federal law, the TVPA. For purposes of eligibility for services under § 1626.4, LSC will retain the proposed definitions of ‘‘victim of trafficking’’ and ‘‘victim of severe forms of trafficking’’ with minor revisions to track the relevant statutes more closely. The reason for using these definitions is that victims of trafficking under VAWA 2005 and victims of severe forms of trafficking under the TVPA are eligible for differing types of legal assistance. Trafficking victims eligible under VAWA may receive only legal assistance related to battery, cruelty, sexual assault, or trafficking and other specified crimes, while victims of severe forms of trafficking under the TVPA may receive any legal assistance that is not otherwise restricted and is within the recipient’s priorities. It is therefore important to retain the distinction between the two in order to ensure that individuals receive the legal assistance that is appropriate for their basis of eligibility. LSC also sought comment on the types of evidence that recipients should rely on to distinguish between victims of trafficking under VAWA 2005 and victims of severe forms of trafficking under the TVPA. Only one commenter responded to this request, stating that the organization was unclear about what kind of information LSC sought. The commenter also stated that ‘‘recipients should be able to rely on the definition in the statute that is applicable to the crime involved and evidence that meets that definition.’’ In response to this comment, LSC will revise proposed § 1626.4(e), renumbered as § 1626.4(d) in the final rule, to separate the evidence that may be presented by individuals eligible for legal assistance under VAWA 2005 from forms of evidence that may be presented by victims of severe forms of trafficking under the TVPA. For individuals who claim eligibility based on being a victim of trafficking under VAWA 2005, § 1626.4(d)(2) will incorporate the list used in proposed § 1626.4(e). LSC notes that this list is nonexclusive, and that recipients may accept other types of credible evidence. Evidence may also include an application for a U visa or E:\FR\FM\18APR1.SGM 18APR1 21864 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES evidence that the individual was granted a U visa. Section 1626.4(d)(3) will set forth the types of evidence that are unique to victims of severe forms of trafficking. These forms of evidence include a certification letter issued by the U.S. Department of Health and Human Services (HHS) or, in the case of a minor victim of severe forms of trafficking, an interim or final eligibility letter issued by HHS. Recipients may also call the HHS trafficking verification line at (202) 401–5510 or (866) 401–5510 to confirm that HHS has issued an alien a certification letter. HHS is the only federal agency authorized to certify victims of severe forms of trafficking to receive public benefits or to issue eligibility letters to minors. It is important to note that minors do not need to have an eligibility letter to be eligible for services. Recipients only need to determine that a minor meets the definition of a victim of severe forms of trafficking in 22 U.S.C. 7105(b)(1)(C). 2. The Geographic Location in Which the Predicate Activity Takes Place LSC proposed to interpret the VAWA 2005 phrase ‘‘victim of trafficking in the United States’’ and the TVPA phrase ‘‘victim of severe forms of trafficking in the United States’’ to require that an alien be trafficked into or experience trafficking within the United States to be eligible for legal assistance from LSCfunded recipients. LSC believed that this interpretation was necessary because LSC read the qualifier ‘‘in the United States’’ to apply to the activity of trafficking, rather than to the victim of trafficking. With regard to the geographical restriction as it applied to trafficking under VAWA 2005, LSC received eight comments. One commenter simply stated that LSC’s interpretation was correct. Seven commenters disagreed with LSC’s proposed interpretation, arguing in all instances that ‘‘in the United States’’ modified ‘‘victim of trafficking’’ or ‘‘victim of severe forms of trafficking,’’ rather than just ‘‘trafficking.’’ Of the commenters who disagreed with LSC’s interpretation, four linked the VAWA 2005 language to the language in section 7105(b)(1)(B) of the TVPA authorizing LSC and federal benefits-granting agencies to expand benefits and services to ‘‘victims of severe forms of trafficking in the United States[.]’’ These commenters understood the phrase ‘‘in the United States’’ to ‘‘refer to the location of the victim, rather than the location of the abuse,’’ and relied on the heading of section 7105(b) of the TVPA, ‘‘Victims in the United States,’’ in support of their VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 reading. One commenter noted that trafficking is a qualifying crime for U visa eligibility, and that section 101(a)(15)(U) of the INA does not require that an alien have been a victim of one of the qualifying crimes within the United States to be eligible to receive a U visa. Two commenters noted that VAWA 2005 authorizes the use of LSC funds to provide legal assistance to both ‘‘victims of sexual assault or trafficking in the United States’’ and aliens who qualify for a U visa, which they asserted meant that even if LSC’s interpretation were correct, LSC-funded recipients could still provide assistance to aliens who were victims of sexual assault or trafficking outside the United States because both crimes are qualifying crimes under section 101(a)(15)(U)(iii) of the INA. The last commenter opposing LSC’s interpretation observed that the VAWA 2005 amendments to section 502 made that section ‘‘internally inconsistent.’’ The commenter remarked that VAWA 2005 created two categories of eligibility—one for victims of battery, extreme cruelty, sexual assault, or trafficking ‘‘in the United States,’’ and one for aliens qualified for U visa status, which specifically contemplates that qualifying crimes are those that ‘‘violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States[.]’’ 8 U.S.C. 1101(a)(15)(U)(i)(IV). Because trafficking is a qualifying crime for U visa eligibility, the commenter continued, VAWA 2005 appears to treat trafficking inconsistently. Finally, the commenter noted that by treating trafficking as requiring activity to occur in the United States, but not placing the same requirement on sexual assault and domestic violence, which are also qualifying crimes for U visa eligibility, the regulation is unnecessarily internally inconsistent. The same seven commenters likewise opposed LSC’s proposed interpretation of the TVPA term ‘‘victims of severe forms of trafficking in the United States.’’ Most of the commenters pointed to the plain language of the TVPA and the INA in support of their argument. First, they noted that the TVPA definition of ‘‘severe form of trafficking in persons’’ does not include a geographical limitation to trafficking activities that occur in the United States. Second, they assert that the title of section 107(b) of the TVPA, ‘‘Victims in the United States,’’ makes clear that it is the victims, rather than the activities, that must be in the United PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 States. 22 U.S.C. 7105(b). Finally, they relied on the INA criteria for T visa eligibility. In order to qualify for a T visa, an alien must be a victim of severe forms of trafficking in persons; must be willing to cooperate with law enforcement, unable to cooperate due to physical or psychological trauma, or be under the age of 18; and must be ‘‘physically present in the United States . . . on account of such trafficking, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking[.]’’ 8 U.S.C. 1101(a)(15)(T). LSC agreed that it would be inconsistent with the plain language of the INA, VAWA 2005, and the TVPA and its progeny to require that an alien have been trafficked into or within the United States to qualify for legal assistance from an LSC-funded recipient. For this reason, LSC revised the language in proposed § 1626.4(d)(1) to remove the requirement that an alien have been subjected to trafficking activity in the United States in order to be eligible to receive legal assistance from an LSC recipient. LSC also is making two technical amendments to proposed § 1626.4(d). The first renames proposed § 1626.4(d) ‘‘Relationship to the United States,’’ and § 1626.4(d)(1) ‘‘Relation of activity to the United States.’’ LSC is making these changes to reflect that although the criminal activity giving rise to eligibility under VAWA does not need to occur in the United States, the crime must have violated the laws of the United States. The second change is restating in § 1626.4(d)(1) the language from section 101(a)(15)(U)(i)(IV) of the INA that a listed crime must have violated the laws of the United States or occurred within the United States in order to be a qualifying crime for purposes of U visa eligibility. 3. Whether an Alien Must Be Physically Present in the United States To Receive Legal Assistance In the NPRM, LSC proposed that aliens eligible to receive legal assistance under one of the anti-abuse statutes would be eligible for such assistance regardless of whether they were present in the United States. LSC reasoned that the anti-abuse statutes, viewed collectively, did not require an alien to be present in the United States to be eligible to receive legal assistance. LSC received eight comments on this issue. Seven commenters agreed with LSC’s proposed position. One commenter opposed. E:\FR\FM\18APR1.SGM 18APR1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations The seven commenters responding in support of LSC’s position generally noted that the position was consistent with section 101(a)(15)(U) of the INA, which contemplates that an alien who qualifies for U visa relief may have been a victim of a qualifying crime that occurred outside the United States. One commenter pointed out that Congress amended VAWA to allow eligible victims to file petitions for relief from outside the United States. Another commenter remarked that victims of abuse may find themselves outside the United States for reasons related to the abuse if suffered here, and that the legal assistance provided by an LSC-funded recipient may be essential to ensuring that the victims are able to petition successfully for legal status. The commenter opposing LSC’s proposal first argued that LSC is improperly ‘‘tying the removal of geographical presence in with the new applicability of assistance to aliens receiving U visas.’’ The commenter believed that the ability of aliens who were victims of qualifying crimes that occurred outside the United States to apply for U visa relief from outside the United States ‘‘has no bearing on territorial requirements for individuals receiving assistance from the VAWA amendments.’’ Secondly, the commenter argued that allowing recipients to represent aliens not present in the United States would significantly increase the case work of LSC recipients and would likely lead to the expenditure of scarce resources in pursuit of frivolous petitions for immigration relief. None of the LSC recipients who commented on the NPRM indicated that they were unable to serve adequately aliens eligible under the anti-abuse statutes or were otherwise compromising their representation of other eligible clients. LSC continues to believe that the proposed language is consistent with Congressional intent in removing the requirement that an alien have been a victim of battery, extreme cruelty, or sexual abuse in the United States. As discussed in the preceding section, however, the VAWA 2005 amendment to section 502(a)(2)(C) of the FY 1998 LSC appropriation is internally inconsistent with respect to whether victims of trafficking must be in the United States in order to be eligible for benefits. This is because the U visa provision of the INA, which includes trafficking as a qualifying crime, contemplates that the trafficking may occur outside the United States, see 8 U.S.C. 1101(a)(15)(U)(i)(IV) (‘‘the criminal activity described in clause (iii) violated the laws of the United States or VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 occurred in the United States. . . .’’), while the amendment to section 502(a)(C) uses the phrase ‘‘victim of . . . trafficking in the United States.’’ Sec. 104(a), Public Law 109–162, 119 Stat. 2960, 2979. Because the modifier ‘‘in the United States’’ must be given some meaning, LSC interpreted the VAWA 2005 term ‘‘victim of . . . trafficking in the United States’’ to mean that an alien who is seeking legal assistance as a victim of trafficking under VAWA does not need to show that the trafficking activity occurred in the United States, but must be present in the United States to be eligible for assistance. This reading was consistent with the reading that LSC applied to the term ‘‘victim of severe forms of trafficking in the United States’’ in the TVPA. Section 101(a)(15)(T)(i)(II) of the INA, discussed above, requires a victim of severe forms of trafficking to be present in the United States on account of such trafficking in order to be eligible for a T visa. ‘‘On account of such trafficking’’ includes, but is not limited to, having been allowed entry to assist law enforcement in the investigation and prosecution of an act or perpetrator of trafficking. 8 U.S.C. 1101(a)(15)(T)(i)(II). LSC believes that this language also includes a victim of severe forms of trafficking abroad who flees into the United States to escape the trafficking. Under these circumstances, the victim is in the United States ‘‘on account of such trafficking,’’ and would be eligible for LSC-funded legal assistance. Based on the comments received and the subsequent review of the INA, LSC proposed to modify the language in proposed § 1626.4(d), renumbered as § 1626.4(c), to reflect the distinction between eligibility for victims of trafficking who qualify for a U visa and those who are eligible under VAWA or under the TVPA. LSC also proposed to add § 1626.4(c)(2), ‘‘Relationship of alien to the United States,’’ to describe the circumstances under which an alien must be present in the United States to be eligible for legal assistance under the anti-abuse statutes. Section 1626.4(c)(2)(i) stated that victims of battery, extreme cruelty, or sexual abuse, or who are qualified for a U visa, do not need to be present in the United States to receive legal assistance from LSC-funded recipients. Section 1626.4(c)(2)(ii) addressed victims of severe forms of trafficking, who must be present in the United States on account of such trafficking to be eligible for LSCfunded legal assistance. Finally, § 1626.4(c)(2)(iii) addressed victims of trafficking under VAWA, who only need PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 21865 to be present in the United States to be eligible for assistance. During the Committee meeting on January 23, 2014, stakeholders expressed concern regarding the modified language in § 1626.4(c)(2), specifically that the distinctions between victims of trafficking under VAWA, aliens qualified for a U visa on the basis of trafficking, and victims of severe forms of trafficking under the TVPA in the final rule could have unintended consequences. The Committee and the Board responded to this concern by authorizing the publication of an FNPRM seeking comments on the modified language in § 1626.4(c)(2). 79 FR 6859, Feb. 5, 2014. LSC sought comment on two discrete issues. The first question focused on LSC’s interpretation of the phrase ‘‘in the United States’’ as it applied to victims of trafficking under VAWA and victims of severe forms of trafficking under the TVPA. 79 FR at 6863. On the second issue, LSC asked whether the phrase ‘‘in the United States’’ in VAWA modified the crime of trafficking, all listed crimes preceding the phrase ‘‘in the United States,’’ or the term ‘‘victim.’’ Id. LSC received eleven comments in response to the FNPRM. Members of the public submitted six of the comments, national non-profit organizations submitted three comments, and legal services providers, LSC-funded and non-LSC-funded, submitted the other two comments. On the first question, commenters were divided about whether LSC’s interpretation of the phrase ‘‘victims of . . . trafficking in the United States’’ as requiring the victim to be in the United States at the time the victim sought assistance from an LSC recipient was correct. One commenter stated that the interpretation was correct as applied to victims of severe forms of trafficking under the TVPA. Another stated that LSC’s interpretation did not go far enough because it did not explicitly state that victims of severe forms of trafficking who were brought back to the United States to assist in the investigation or prosecution of their traffickers could qualify for LSC-funded legal assistance. Four commenters stated that the requirement that victims of severe forms of trafficking under the TVPA be in the United States ‘‘as a result of trafficking’’ was overly broad. Finally, four commenters advocated for reading the phrase ‘‘in the United States’’ to be satisfied by a nexus between either the victim or the crime and the United States. In other words, the four commenters advocated that LSC read ‘‘in the United States’’ to mean that victims of trafficking under VAWA or E:\FR\FM\18APR1.SGM 18APR1 pmangrum on DSK3VPTVN1PROD with RULES 21866 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations severe forms of trafficking under the TVPA would be eligible either if they were in the United States at the time they sought legal assistance or if they experienced trafficking in the United States. Commenters contended that such a broad reading of the phrase would accomplish the remedial purposes of the anti-abuse statutes. With respect to the second question, commenters again split on which term in VAWA the phrase ‘‘in the United States’’ modified. While all commenters agreed that the phrase modified only trafficking, rather than ‘‘sexual abuse or trafficking,’’ there was no unanimity on whether the phrase modified ‘‘victim of . . . trafficking,’’ ‘‘trafficking,’’ or either one. Again, the majority of comments advocated for reading ‘‘in the United States’’ to allow eligibility for services if either the activity of trafficking occurred in the United States or the victim of trafficking is in the United States at the time he or she seeks legal assistance from an LSC-funded recipient. LSC considered all comments received and reviewed the language proposed in the NPRM, the language proposed in the FNPRM, the TVPA, VAWA, and the relevant sections of the INA. After considering all of the above materials, LSC is retaining the language of § 1626.4(c) proposed in the FNPRM with modification. LSC continues to believe that the approach taken in the FNPRM is most consistent with the plain language of the TVPA, VAWA, and the INA. Section 107 of the TVPA is titled ‘‘Victims in the United States.’’ 22 U.S.C. 7105. Section 107(b)(1)(B) of the TVPA authorizes the secretaries of HHS, Labor, and other federal benefitsgranting agencies, as well as LSC, to expand benefits and services to ‘‘victims of severe forms of trafficking in persons in the United States’’ subject to subparagraph C. 22 U.S.C. 7105(b)(1)(B). The referenced subparagraph, section 107(b)(1)(C) defines the term ‘‘victim of a severe form of trafficking in persons’’ as used in section 107 more narrowly than the term is defined in the general definitions section of the TVPA. 22 U.S.C. 7105(b)(1)(C). In addition to being subjected to one of the crimes included within the general definition of ‘‘severe forms of trafficking in persons,’’ the section 107(b)(1)(C) definition requires that an individual be either under the age of 18 or the ‘‘subject of a certification under subparagraph (E).’’ 22 U.S.C. 7105(b)(1)(C). In order to receive a certification under subparagraph (E), a victim must have completed one of two immigration-related actions: the victim must have filed a bona fide application VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 for a T visa that has not been denied, or the victim must have been granted continued presence to assist with the prosecution of traffickers. 22 U.S.C. 7105(b)(1)(E)(i)(II). Significantly, an individual must be present in the United States to be eligible for a T visa or to be granted continued presence. Thus, the definition of ‘‘victim of a severe form of trafficking in persons’’ that explicitly applies to services funded by LSC contains a requirement that an adult victim have applied for or secured a type of immigration remedy for which presence in the United States is a necessary element. As a result, LSC believes that interpreting the phrase ‘‘in the United States’’ to mean that a victim of severe forms of trafficking under the TVPA must be present in the United States at the time the victim seeks legal assistance from an LSC recipient is most consistent with the definition. In the interest of uniformity and consistency across statutes, and in the absence of evidence that Congress intended otherwise, LSC also believes that it is appropriate to interpret ‘‘in the United States’’ the same way in VAWA. Therefore, LSC will retain the requirement that a victim of trafficking be present in the United States at the time the victim seeks assistance in order to be eligible for LSC-funded legal assistance. The presence requirement stated in § 1626.4(c)(2) does not apply to victims of trafficking located outside the United States who are seeking legal assistance as individuals qualified for a U visa. LSC is modifying and redesignating § 1626.4(c)(2)(iii) in response to the comments. Four commenters stated that because only section 101(a)(15)(T) of the INA, which governs eligibility for T visas, requires that the victim’s presence in the United States be on account of trafficking, applying the requirement to all victims of severe forms of trafficking is unnecessarily restrictive. The commenters pointed to the absence of a link between the trafficking activity and the victim’s presence in the continued presence regulation issued by the Departments of Justice and State. 28 CFR 1100.35. LSC concurs with the comments. Accordingly, LSC will remove § 1626.4(c)(2)(ii), redesignate proposed § 1626.4(c)(2)(iii) as § 1626.4(c)(2)(ii), and will add victims of severe forms of trafficking to redesignated § 1626.4(c)(2)(ii) as a group that must be present in the United States to be eligible to apply for LSCfunded legal assistance. During the Committee meeting on January 23, 2014, stakeholders also expressed a concern regarding the modified language in § 1626.4(c)(2) that PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 the explicit reference to a presence requirement for victims of trafficking and severe forms of trafficking could be interpreted as precluding recipients from continuing to provide legal assistance to client victims of trafficking in the event the client left the United States after the commencement of services. With respect to this concern, LSC wishes to make clear that § 1626.4(c) applies to the initial determination of an alien’s eligibility for legal assistance under the anti-abuse statutes. Once services have commenced, a client’s subsequent departure from the United States does not necessarily render the client ineligible to continue receiving services. Consistent with the Corporation’s longstanding policy, the specific circumstances presented by the client’s situation will determine whether representation may continue if the client is absent from the United States. LSC determined in Program Letter 2000–2 that temporary absence from the United States does not change eligibility for individuals covered by the § 1626.5 presence requirement. Similarly, LSC determined that the H–2A presence requirement does not require a client to continue to be in the United States beyond the H–2A employment in order to continue receiving legal assistance. See LSC Board of Directors Meeting, November 20, 1999, transcript at 49, http://go.usa.gov/B3D9 (implementing the recommendations of the Erlenborn Commission Report, http://go.usa.gov/ B3Tj). In response to the FNPRM, LSC received five comments in support of this position and no comments in opposition. General Comments Comments not directed at a specific question or section of the regulations are discussed below. LSC’s Objective Regarding Inclusion of Eligible Aliens LSC received comments during the public comment period and during the January 23, 2014 Committee meeting pertaining to the criteria that LSC established for determining the eligibility of victims of trafficking for legal assistance by LSC-funded entities and the inclusion or exclusion from eligibility of certain categories of aliens. LSC is addressing each of those comments in the discussion of the section giving rise to the comments. As an overall policy, LSC has drafted the regulation to give effect to Congress’s intent that certain categories of aliens should be eligible to receive legal services from LSC recipients. In some cases, such as for victims of qualifying E:\FR\FM\18APR1.SGM 18APR1 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES crimes under VAWA or H–2 visa holders, those services are limited to assistance related to the basis for eligibility. LSC’s policy is to permit LSC recipients to provide eligible aliens with legal services to pursue the substantive rights, such as immigration relief, that Congress has given them. Establishing Requirements for Recipient Compliance With VAWA 2005 One commenter expressed concern that the regulatory language used to expand eligibility to the categories of aliens covered by VAWA 2005 was too weak. The commenter stated that VAWA 2005 and its subsequent reauthorization acts generally contain provisions requiring the Department of Homeland Security (DHS) to issue regulations and entities receiving funding through VAWA 2005 to take certain actions within prescribed time limits after passage of the statute. The commenter recommended that LSC revise the final rule to require that recipients • Include in their next funding or renewal of funding applications copies of their written plans for implementing the changes called for in the final rule; • Identify and consult with domestic violence, sexual assault, and victim services programs working to serve immigrant crime victims in the recipient’s service area; and • Submit with each funding application a copy of the recipient’s plan for implementing § 1626.4, including a statement of the work the recipient has done to conduct outreach to, consult with, and collaborate with victim services providers with expertise providing assistance to underserved populations. VAWA 2005 amended section 502 of the FY 1996 LSC appropriation to authorize LSC recipients to provide legal assistance, using LSC funds or non-LSC funds, to alien victims of battery, extreme cruelty, sexual assault, or trafficking in the United States, and aliens qualified for a U visa. VAWA 2005 does not require LSC to undertake any actions to implement the expanded authority, nor does it require LSC funding recipients to provide legal assistance to the new categories of eligible aliens. Because VAWA 2005 places no obligations on either LSC or its recipients and contains no timeframes within which they must take action, LSC is not placing implementation requirements on its recipients. Publication of Interlineated Statute One commenter recommended that LSC publish an interlineated statute VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 21867 showing the changes to section 502 of the FY 1996 LSC appropriation made by VAWA 2005 and republish an updated version each time it is amended. LSC publishes interlineated versions of the relevant statutes on the LSC Web site (http://www.lsc.gov/about/lsc-act-otherlaws/lsc-appropriations-acts-committeereports) and updates the page as necessary to reflect changes to the statutes. LSC believes that its practice of posting the interlineated statutes on its Web site addresses the commenter’s recommendation and is sufficient to address changes to the laws affecting LSC and its recipients until the Corporation can undertake any necessary rulemaking. comment period was open for sixty days, and recipients were advised of the rulemaking via email the day the NPRM was published in the Federal Register. For the three specific questions on which LSC sought comment in the NPRM, commenters overwhelmingly reached the same conclusion. On the other issues for which comments were received, commenters generally made the same recommendation. None of the four commenters requesting an extension identified any specific issue they intended to address if given additional time to respond. For these reasons, LSC did not believe it was necessary to reopen the comment period for the August 21, 2013 NPRM. Correcting Incorrect References One commenter noted that the NPRM incorrectly referred to the ‘‘Customs and Immigration Service,’’ rather than the agency’s proper name, ‘‘Citizenship and Immigration Service.’’ The references have been corrected. Section-by-Section Discussion of Comments and the Final Rule Clarification That Individuals Should Receive the Highest Level of Services for Which They Are Eligible In response to the FNPRM, LSC received two comments recommending that LSC clarify that individuals who are eligible for services under more than one of the anti-abuse statutes be considered as eligible for the most expansive level of services. One of the commenters requested that LSC include a provision in the rule to this effect. LSC appreciates the recommendations; however, LSC is not making amendments to the text beyond technical corrections or revisions based on responses to the specific questions asked in the FNPRM. Additionally, the substance of the clarification that these comments requested is addressed through the existing text of proposed § 1626.4(g) regarding changes in an individual’s basis for eligibility. Extension of the Comment Period In response to the NPRM, four commenters recommended that LSC extend the comment period to allow other interested organizations the opportunity to comment. The commenters were three LSC-funded recipients and one national non-profit. Commenters stated that they had learned of the rulemaking shortly before the close of the comment period and that they believed the complex nature of the issues raised by the rulemaking required additional time to develop proper responses. LSC did not believe an extension of the comment period for the August 21, 2013 NPRM was warranted. The PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 1626.1 Purpose LSC made no changes to this section. 1626.2 Definitions 1. Comment: One commenter stated that the list of anti-abuse statutes in § 1626.2(f) was incomplete. The commenter recommended adding the battered spouse waiver in the INA, 8 U.S.C. 1186a(c)(4)(C), the 2013 VAWA reauthorization, and the 2005, 2008, and 2013 reauthorizations of the TVPA to the list. Response: As a matter of law, LSC does not have the authority to extend eligibility for legal assistance provided by LSC-funded recipients to aliens eligible for the battered spouse waiver under 8 U.S.C. 1186a(c)(4)(C). Of the statutes reauthorizing VAWA and the TVPA, only the 2005 VAWA reauthorization and the TVPRA of 2003 affected the eligibility of certain aliens to receive legal assistance from LSCfunded providers. LSC will revise the references to VAWA and the TVPA to indicate that LSC considers those statutes, as amended, as the anti-abuse statutes. 2. Comment: In response to the FNPRM, one commenter noted the use of the conjunction ‘‘and’’ to separate the terms ‘‘victim of sexual assault’’ and ‘‘victim of trafficking’’ within the definition of ‘‘victim of sexual assault or trafficking’’ in § 1626.2(k). The commenter voiced concern that the use of ‘‘and’’ made it appear that a victim must meet the terms of both provisions in order to qualify as a ‘‘victim of sexual assault or trafficking,’’ which would narrow the definition. Response: LSC did not intend to narrow the definition and will replace ‘‘and’’ in § 1626.2(k)(i) with ‘‘or.’’ LSC made several changes to § 1626.2. In the final rule, LSC is moving the E:\FR\FM\18APR1.SGM 18APR1 pmangrum on DSK3VPTVN1PROD with RULES 21868 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations definitions of ‘‘battered or extreme cruelty,’’ ‘‘victim of sexual assault or trafficking,’’ ‘‘victim of severe forms of trafficking,’’ and ‘‘qualifies for immigration relief’’ to § 1626.2 from proposed § 1626.4(c) to consolidate definitions in part 1626 for ease of reference. LSC believes that removing the definitions from the operational text of § 1626.4 will improve the readability and comprehensibility of the rule. With respect to the definition of ‘‘battered or extreme cruelty,’’ LSC will reinstate the definition used in existing § 1626.2(f) in the final rule. LSC determined that the cross-reference to agency regulations defining the term did not clarify or add anything to the existing definition and could result in confusion if agencies differed in their definitions of the term. The Corporation also will include a definition of the term ‘‘certification.’’ ‘‘Certification’’ is a term created by the TVPA and is defined at 22 U.S.C. 7105(b)(1)(E). Certification refers to the determination made by the Secretary of HHS that an individual was subjected to severe forms of trafficking, is willing to provide all reasonable assistance to law enforcement in the investigation or prosecution of a trafficker, and has either filed a bona fide application for a T visa that has not been rejected or has been granted continued presence to assist law enforcement by DHS. In the final rule, LSC is making a technical amendment to the definition of ‘‘victim of sexual assault.’’ In the NPRM, proposed § 1626.4(c)(2)(i) defined ‘‘a victim of sexual assault’’ as an individual ‘‘subjected to any conduct included in the definition of sexual assault or sexual abuse in VAWA, including but not limited to sexual abuse, aggravated sexual abuse, abusive sexual contact, or sexual abuse of a minor or ward[.]’’ However, the term ‘‘sexual abuse’’ is not defined in VAWA, and the VAWA definition of ‘‘sexual assault’’ does not track the examples provided in the proposed definition. To avoid confusion, LSC will revise the definition to remove the reference to a definition of ‘‘sexual abuse’’ in VAWA and adopt by incorporation the VAWA definition of ‘‘sexual assault.’’ Finally, LSC will alphabetize the definitions in § 1626.2 for ease of reference. 1626.3 Prohibition LSC received no comments on the proposed technical corrections to this section. VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 1626.4 Aliens Eligible for Assistance Under Anti-Abuse Laws As stated earlier in this preamble, LSC will delete proposed § 1626.4(c) and move the definitions contained therein to § 1626.2. Proposed paragraphs (d) through (g) will be redesignated as paragraphs (c) through (f) in the final rule. 1626.4(a)(2) Legal Assistance to Victims of Severe Forms of Trafficking and Certain Family Members Paragraph (a)(2) will incorporate the policies established in Program Letter 02–5 and Program Letter 05–2. Individuals eligible for legal assistance under the TVPA and the 2003 TVPRA include individuals applying for certification as victims of severe forms of trafficking and certain family members seeking immigration relief under section 101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii)). 1626.4(b)(2) Types of Cases Constituting ‘‘Related Legal Assistance’’ Comment: One commenter suggested that LSC include within ‘‘related legal assistance’’ assistance ensuring that clients are protected by the privacy and confidentiality provisions of VAWA 2005 and are able to access the protections and benefits of education laws, including access to post-secondary educational grants and loans. According to the commenter, ‘‘a significant component of effective representation of sexual assault victims and domestic violence victims in many cultural communities is ensuring privacy and confidentiality.’’ Additionally, ‘‘access to educational benefits and remedies under education laws to address the subsequent problems that stem from the abuse and accommodations sexual assault survivors may need in the educational context’’ is an integral part of helping immigrant victims of sexual assault to move on with their lives, to stay in school, and to settle successfully in the United States. By email dated November 25, 2013, LSC sought additional information from the commenter explaining the types of related legal assistance the commenter believed LSC recipients could provide in the context of VAWA confidentiality and privacy provisions. The commenter responded by email on December 13, 2013 with examples of assistance. The examples included ‘‘preventing discovery of shelter records or mental health records of a victim in a custody, protection order, or criminal court proceeding,’’ ‘‘assistance with change of identity for crime victims who are witnesses eligible to participate in PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 victim protection programs,’’ and keeping information about the victim’s immigration status and information contained in a victim’s application for immigration relief under VAWA, 8 U.S.C. 1101(a)(15)(T), or 8 U.S.C. 1101(a)(15)(U), out of a family court case. Response: LSC will retain the language in the proposed rule. LSC intended the examples of ‘‘related legal assistance,’’ including the list in the parenthetical, to be illustrative rather than exhaustive. LSC understands that there may be types of assistance, including assistance protecting confidentiality and privacy rights or ensuring access to education, which may constitute ‘‘related legal assistance.’’ The key factor for recipients to consider in determining whether a requested service is ‘‘related legal assistance’’ is the connection between the assistance and the purposes for which assistance can be given: escaping abuse, ameliorating the effects of the abuse, or preventing future abuse. To the extent that ensuring clients are protected by the privacy and confidentiality provisions of VAWA and the protections and benefits of education laws is necessary to help the clients escape, ameliorate the effects of, or prevent future abuse, legal assistance to secure those protections and benefits would constitute ‘‘related legal assistance.’’ 1626.4(c) Relationship to the United States As stated in the discussion of § 1626.2, LSC is deleting the definitions from this paragraph and moving the definitions to § 1626.2. Proposed paragraph (d) will be relocated to paragraph (c) in the final rule. LSC is making a technical change to paragraph (c). LSC is adding an introductory sentence to paragraph (c) stating that both paragraph (c)(1) and one subsection of paragraph (c)(2) must be met in order for an alien to be eligible for legal assistance under part 1626. 1626.4(d) Evidentiary Support Because LSC is deleting paragraph (c), this paragraph will be relocated to paragraph (d) in the final rule. 1. Comment: LSC received four comments regarding the types of evidence that recipients may consider in support of a showing that an alien is eligible for legal assistance under one of the anti-abuse statutes. All of the comments supported the use of the list of evidentiary types taken directly from VAWA. E:\FR\FM\18APR1.SGM 18APR1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations Response: LSC will retain the text of proposed § 1626.4(e) with respect to types of evidentiary support. 2. Comment: One commenter recommended that LSC revise proposed paragraphs (e) and (f) to ‘‘clearly state that where programs may represent individuals without regard to their citizenship or immigration status . . . programs are not required to inquire into the citizenship or immigration status of these clients.’’ Another commenter similarly suggested that LSC should include language in the final rule shifting the eligibility focus at intake from citizenship or eligible alien status to victimization. Response: LSC will retain the language of the proposed rule. VAWA 2005 authorizes, rather than requires, LSC funds to be used to represent victims of battery, extreme cruelty, sexual assault, and trafficking, or aliens who are qualified for a U visa. Recipients are responsible for setting their own priorities and may choose not to prioritize the types of assistance that are authorized under VAWA 2005. LSC believes that recipients should retain the discretion to conduct their intake processes in the ways that they determine are the most effective at identifying clients who are eligible for services and whose cases are within the recipients’ priority areas. LSC reminds recipients that Advisory Opinion AO–2009–1008 addressed the question whether recipients must determine the immigration status of aliens who qualify for assistance under one of the anti-abuse statutes. In that opinion, the Office of Legal Affairs stated that once a recipient determined that an individual has a legal need that would qualify for the exceptions of the anti-abuse statutes to the alienage requirement, the recipient does not need to inquire into the citizenship or immigration status of that individual. The final rule does not affect the validity of the conclusion stated in AO– 2009–1008. 3. Comment: Two commenters recommended revising the examples of changes in eligibility in proposed § 1626.4(e). One recommended including examples of when an alien’s eligibility for legal assistance may change from eligibility under an antiabuse statute to eligibility by reason of the alien’s immigration status and vice versa in the preamble to the final rule. The other recommended removing or revising the examples in § 1626.4. The commenter believed that the examples provided in proposed § 1626.4(e) were ‘‘problematic’’ because they suggested that an individual whose application for status was rejected would subsequently VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 be deemed ineligible to receive legal assistance under the anti-abuse statutes or they were too vague about which component of DHS made the determination of ineligibility and at which stage of review the determination of ineligibility was made. The commenter also opined that the requirement in the draft rule and in Program Letter 06–2 that recipients terminate representation of an individual once DHS issued a final denial of the individual’s petition for a U visa is without basis in law. The commenter reasoned that the VAWA 2005 amendment to section 502 of the FY 1996 LSC appropriation based eligibility for services on an individual’s ‘‘qualifying’’ for a U visa, which the commenter stated ‘‘arguably applies when there is a need for corrected documents or there is after-acquired evidence.’’ Response: LSC is removing the examples from the text of the regulation. However, LSC wishes to clarify two points in response to the comments. The existing regulation defines ‘‘rejected’’ as ‘‘an application that has been denied by DHS and is not subject to further administrative appeal.’’ In the example of the ‘‘final denial’’ of a petition for a U visa, LSC did not intend to create ambiguity and should have used the regulatory term ‘‘rejected.’’ With respect to subsequent eligibility, LSC did not intend the examples to suggest that an individual whose application for status was rejected because of insufficient or incomplete evidence would be ineligible for related legal assistance at a later date if the individual returned with additional evidence that he or she was a victim of battery or extreme cruelty, sexual assault, trafficking, or one of the qualifying crimes for a U visa. The example was intended only to explain how an individual’s eligibility for services may change when the application in connection with which the individual qualified for services is rejected. LSC is sensitive to the difficulties that alien victims of abuse may have in developing and documenting credible evidence of the abuse. For purposes of eligibility, however, LSC’s policy is that once the petition for a U visa upon which an individual was determined to be eligible for services has been rejected and no further avenues of appeal are available for that petition, the individual must be deemed not qualified for a U visa and the recipient must terminate representation consistent with applicable rules of professional responsibility unless there is another basis upon which the alien PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 21869 can be found eligible. The individual may be found eligible for services based on qualifying for a U visa at a later time if the individual can provide additional credible evidence supporting his or her claim for eligibility. LSC will remove the statement at the end of proposed § 1626.4(e) that recipient staff should review the evidence presented at intake to support an individual’s basis for eligibility under the anti-abuse statutes. Upon further consideration, LSC determined that this sentence was unduly prescriptive about how recipients assess eligibility and appeared to set up a different rule for reviewing eligibility under the anti-abuse statutes. Recipients should have mechanisms in place for evaluating a client’s continued eligibility for services, regardless of the basis for eligibility. 1626.4(e) Recordkeeping Because LSC is deleting paragraph (c), this paragraph will be relocated to paragraph (e) in the final rule. Comment: Two commenters opposed the requirement in proposed paragraphs (f)(1) and (f)(2) that if an alien provides a visa or visa application as evidence to support his eligibility for legal services under the anti-abuse statutes, the recipient must keep a copy of the document in its files. One commenter noted that the requirement was a change in LSC policy, which currently does not require applicants to keep copies of immigration documents to prove alien eligibility. The other commenter stated that such a requirement is contrary to ‘‘motivations and the direction of the evolution of federal VAWA confidentiality law.’’ The commenter described the confidentiality provisions of VAWA as protecting not only the information contained within a VAWA, T, or U visa application, but also as preventing a third party from obtaining information about the existence of such applications except in certain carefully circumscribed cases. Response: LSC agrees with these comments. In the final rule, LSC will replace proposed § 1626.4(f) with language substantially similar to existing § 1626.4(b): ‘‘Recipients are not required by § 1626.12 to maintain records regarding the immigration status of clients represented pursuant to this section.’’ The Corporation is including a sentence in the final rule stating that if an alien presents a recipient with an immigration document as evidence of eligibility under the anti-abuse statutes, the recipient shall document eligibility under the anti-abuse statutes by making a note in the client’s file stating that the recipient has seen the visa or the E:\FR\FM\18APR1.SGM 18APR1 21870 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations application for a visa that supports the applicant’s claim for eligibility and identifying the type of document, the applicant’s alien registration number (‘‘A number’’), the date of the document, and the date of the review. The note should be signed by the staff member who reviewed the document. LSC understands the confidentiality concerns that this approach may raise; however, recipients must be able to document the basis for an individual’s eligibility. In the event an alien presents an immigration document, LSC believes that documenting the basis for eligibility by recording the type of immigration document presented is reasonable and accommodates the commenters’ concern. pmangrum on DSK3VPTVN1PROD with RULES 1626.4(f) Changes in Basis for Eligibility Because LSC is deleting paragraph (c), this paragraph will be relocated to paragraph (f) in the final rule. No other changes will be made to this paragraph. 1626.5 Aliens Eligible for Assistance Based on Immigration Status 1. Comment: LSC received four comments regarding proposed § 1626.5(e). The proposed change to this section updated the reference to withholding of removal under prior section 243(h) of the INA, 8 U.S.C. 1253(h), to section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), to reflect the transfer of the provision from one section of the INA to the other. The comments were substantially similar in their recommendation and rationale. The commenters recommended that persons granted withholding of deportation under prior section 243(h) of the INA should not be removed from the regulation because some persons are still subject to deportation proceedings or orders of deportation and cannot obtain withholding of removal under section 241(b)(3) of the INA. Response: LSC made this change to the rule to reflect an update to the INA. Further research showed that Congress intended individuals with orders of exclusion or deportation to be treated the same as individuals with orders of removal. In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress recharacterized the actions of deportation (expulsion from the United States) and exclusion (barring from entry into the United States) into a single action—removal. Sec. 304, Public Law 104–208, Div. C, Tit. III, 110 Stat. 3009–589 (8 U.S.C. 1229a) (establishing ‘‘removal proceedings’’ as the proceedings in which an immigration judge would decide the admissibility or deportability of an alien); see also 8 VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 U.S.C. 1229(e)(2) (defining ‘‘removable’’ to mean that an alien is either inadmissible under section 212 of the INA or deportable under section 237 of the INA); Sec. 308, Public Law 104–208, Div. C, Tit. III, 110 Stat. 3009–614– 3009–625 (amending various sections of the INA to change references to ‘‘deportation’’ or ‘‘exclusion’’ to ‘‘removal’’). Section 309(d)(2) of IIRIRA explicitly states that for carrying out the purposes of the INA, ‘‘any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.’’ Sec. 309(d)(2), Public Law 104–208, Div. C, Tit. III, 110 Stat. 3009–627 (8 U.S.C. 1101 note). LSC does not believe that, when Congress passed IIRIRA, it intended to bar individuals granted withholding of deportation under prior section 243(h) of the INA from continued eligibility for legal services from an LSC-funded recipient. Rather, the various provisions in IIRIRA consolidating ‘‘deportation’’ and ‘‘exclusion’’ under the umbrella of ‘‘removal,’’ combined with the deeming provision in section 309(d)(2), suggest that Congress intended the rights, remedies, and obligations attending deportation and exclusion to carry over to removal. Consequently, LSC is revising § 1626.5(e) to restore the references to individuals who received withholding of deportation under prior INA section 243(h). 2. Comment: The same four commenters recommended that LSC include in § 1626.5 ‘‘withholding of removal under the Convention Against Torture (CAT)’’ and ‘‘deferral of removal under CAT’’ as bases for eligibility. Their reasons for the recommendation were twofold. First, withholding and deferral of removal under the CAT are ‘‘extremely similar’’ to withholding of deportation or removal under prior section 243(h) or current section 241(b) of the INA, respectively, because each type of withholding is intended to prevent an individual from being involuntarily returned to a country where his or her life or freedom would be endangered. The second reason was a practical one: individuals may not have documentation specifying which type of withholding of removal they have received. The commenters stated that the United States Citizenship and Immigration Service uses the same code for all three types of withholding. Response: LSC is sensitive to the fact that individuals who have obtained withholding of removal under the CAT may need legal assistance in much the same way that individuals who have received withholding of deportation under prior section 243(h) of the INA or PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 withholding of removal under section 241(b) of the INA do. However, Congress has not authorized LSC to extend eligibility to individuals who have obtained withholding of removal under the CAT. Because LSC has neither the authority nor the discretion to extend eligibility for LSC-funded legal assistance to these individuals, LSC will retain the text from the proposed rule. LSC is making a technical amendment to § 1626.5(c). The first sentence of the section states that an alien who has been granted asylum by the Attorney General under Section 208 of the INA is eligible for assistance. LSC will insert the phrase ‘‘or the Secretary of DHS’’ to reflect the fact that Section 208 of the INA, 8 U.S.C. 1158, has been amended to give the Secretary of DHS the authority to grant asylum, in addition to the Attorney General. Sec. 101(a)(1), (2), Public Law 109–13; 119 Stat. 231, 302 (8 U.S.C. 1158). 1626.6 Verification of Citizenship LSC received no comments on the proposed changes to this section. 1626.7 Status Verification of Eligible Alien LSC received comments on the proposal to remove the appendix to part 1626 and publish the contents as a program letter or equivalent document, which will be discussed in the section on the appendix. LSC received no comments on the other proposed changes to this section. 1626.8 Emergencies LSC received no comments on the proposed changes to this section. 1626.9 Change in Circumstances LSC made no changes to this section. 1626.10 Special Eligibility Questions LSC made no changes to this section. 1626.11 H–2 Agricultural and Forestry Workers Comment: LSC received two comments in response to the proposed revisions to § 1626.11. LSC proposed to amend § 1626.11 to add H–2B forestry workers as a new category of aliens eligible for legal assistance from LSCfunded recipients, consistent with the FY 2008 LSC appropriation act’s amendment to section 504(a)(11)(E) of the FY 1996 LSC appropriation act. Both comments supported the amendment, stating that the ability to represent H– 2A agricultural and H–2B forestry workers enables recipients to engage more fully in investigating and enforcing labor laws, particularly wage and conditions laws. One commenter E:\FR\FM\18APR1.SGM 18APR1 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES recommended that Congress should act to expand eligibility for LSC-funded legal assistance to ‘‘all low-income workers, regardless of their immigration status.’’ Response: LSC appreciates the comments in support of the revisions to § 1626.11. LSC is making technical amendments to paragraphs (a) and (b) in the final rule. The original version of § 1626.11 stated that agricultural workers ‘‘admitted under the provisions of 8 U.S.C. 1101(a)(15)(h)(ii)’’ were eligible for legal assistance related to certain issues arising under the workers’ employment contracts. 53 FR 40194, 40196, Oct. 19, 1988 (NPRM); 54 FR 18109, 18112, Apr. 27, 1989 (final rule). This language omitted the full relevant text of the statute that made nonimmigrant workers ‘‘admitted to or permitted to remain in the United States under’’ 8 U.S.C. 1101(a)(15)(h)(ii)(A) eligible for legal services. Sec. 305, Public Law 99–603, 100 Stat. 3359, 3434. Congress used the same ‘‘admitted to, or permitted to remain in’’ language when it expanded eligibility to H–2B forestry workers. Sec. 540, Public Law 110–161, Div. B, Title V, 121 Stat. 1844, 1924. This same omission was made in the NPRM for this rule. 78 FR 51696, 51704, Aug. 21, 2013. The omission of this language was an oversight and LSC is amending paragraphs (a) and (b) to include it. Proposed Appendix to Part 1626— Examples of Documents and Other Information Establishing Alien Eligibility for Representation by LSC Programs 1. Comment: LSC received seven comments in response to the proposal to remove the appendix to part 1626 and instead publish the list of documents establishing alien eligibility as program letters or equivalent policy documents. Six commenters supported the proposal, and one commenter objected. The six commenters supporting the proposal agreed with LSC’s assessment that the frequently changing nature of immigration documents and forms requires a more flexible means of disseminating up-to-date information to LSC recipients than the rulemaking procedure allows. One of the comments in support, however, recommended that LSC publish the initial program letter for public comment and establish a comment and feedback procedure for issuance of subsequent program letters. The desire for notice and comment was reflected in the one comment opposing the proposal. The commenter opposing the removal of the appendix asserted that experienced immigration practitioners are often in the best VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 position to understand fully the types of documentation that can adequately demonstrate an eligible alien status. The commenter stated that because rulemaking is the only way to ensure an opportunity for public comment and obtaining public comment is consistent with LSC’s policy of engaging in open dialogue with its stakeholders, LSC should continue publishing the list of documentary evidence as the appendix to part 1626. 2. Comment: In response to the FNPRM, LSC received one comment asserting that the program letter constitutes guidelines or instructions that require notice and an opportunity for comment under section 1008(e) of the LSC Act, 42 U.S.C. 2996g(e). Response: LSC agreed that practitioner input is essential to ensuring that the list of documents and other evidence of alien eligibility is complete, accurate, and useful. LSC did not agree that the program letter constitutes guidance or instructions requiring notice and public comment. As stated in the preamble to the NPRM, LSC is publishing the initial program letter replacing the appendix to part 1626 under the LSC Rulemaking Protocol. The Rulemaking Protocol requires the Corporation to provide a comment period of at least thirty days for any regulatory changes that occur through notice and comment rulemaking. 67 FR 69762, 69764, Nov. 19, 2002. LSC does not intend removal of the list of documents from the regulation to limit the ability of recipients to provide input into future versions of the list. The program letter replacing the appendix to part 1626 was published for public comment on March 7, 2014. 79 FR 13017, Mar. 7, 2014. The comment period closed on April 7, 2014. 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 revises 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. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 21871 1626.8 Emergencies. 1626.9 Change in circumstances. 1626.10 Special eligibility questions. 1626.11 H–2 agricultural and forestry workers. 1626.12 Recipient policies, procedures, and recordkeeping. Authority: 42 U.S.C. 2996g(e). § 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. § 1626.2 Definitions. 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’’); 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; the Victims of Trafficking and Violence Protection Act of 2000, Public Law 106– 386, 114 Stat. 1464 (‘‘TVPA’’), as amended; and Section 101(a)(15)(T) of the Immigration and Nationality Act (‘‘INA’’), 8 U.S.C. 1101(a)(15)(T). Battered or subjected to extreme cruelty includes, but is 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. Certification means the certification prescribed in 22 U.S.C. 7105(b)(1)(E). Citizen means 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. E:\FR\FM\18APR1.SGM 18APR1 pmangrum on DSK3VPTVN1PROD with RULES 21872 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations Eligible alien means a person who is not a citizen but who meets the requirements of § 1626.4 or § 1626.5. Ineligible alien means a person who is not a citizen and who does not meet the requirements of § 1626.4 or § 1626.5. On behalf of an ineligible alien means 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. Qualifies for immigration relief under section 101(a)(15)(U) of the INA means: (1) A person who has been granted relief under that section; (2) A person who has applied for relief under that section and who the recipient determines has evidentiary support for such application; or (3) A person who has not filed for relief under that section, but who the recipient determines has evidentiary support for filing for such relief. (4) A person who qualifies for immigration relief under section 101(a)(15)(U) of the INA includes any person who may apply for primary U visa relief under subsection (i) of section 101(a)(15)(U) of the INA (8 U.S.C. 1101(a)(15)(U)(i)) 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)(ii)). 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. 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. Victim of severe forms of trafficking means any person described at 22 U.S.C. 7105(b)(1)(C). Victim of sexual assault or trafficking means: (1) A victim of sexual assault subjected to any conduct included in the definition of sexual assault in VAWA, 42 U.S.C. 13925(a)(29); or (2) A victim of trafficking subjected to any conduct included in the definition of ‘‘trafficking’’ under law, including, but not limited to, local, state, and federal law, and T visa holders regardless of certification from the U.S. Department of Health and Human Services (HHS). United States, for purposes of this part, has the same meaning given that term in section 101(a)(38) of the INA (8 U.S.C. 1101(a)(38)). § 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. VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 § 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 immigration 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)(i) A recipient may provide legal assistance, including but not limited to related legal assistance, to: (A) An alien who is a victim of severe forms of trafficking of persons in the United States; or (B) 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). (ii) For purposes of this part, aliens described in paragraphs (a)(2)(i)(A) and (a)(2)(i)(B) of this section include individuals seeking certification as victims of severe forms of trafficking and certain family members applying for immigration relief under section 101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii)). (b) (1) Related legal assistance means legal assistance directly related: (i) To the prevention of, or obtaining relief from, the battery, 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)); or (iii) To an application for relief: (A) Under section 101(a)(15)(U) of the INA (8 U.S.C. 1101(a)(15)(U)); or (B) Under section 101(a)(15)(T) of the 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 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 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) Relationship to the United States. An alien must satisfy both paragraph (c)(1) and either paragraph (c)(2)(i) or (ii) of this section to be eligible for legal assistance under this part. (1) Relation of activity to the United States. An alien is eligible under this section if the activity giving rise to eligibility violated a law of the United States, regardless of where the activity occurred, or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States. (2) Relationship of alien to the United States. (i) An alien defined in § 1626.2(b), (h), or (k)(1) need not be present in the United States to be eligible for assistance under this section. (ii) An alien defined in § 1626.2(j) or (k)(2) must be present in the United States to be eligible for assistance under this section. (d) Evidentiary support—(1) Intake and subsequent evaluation. A recipient may determine that an alien is qualified for assistance under 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. 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. (2) Documentary evidence. 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. (3) Victims of severe forms of trafficking. Victims of severe forms of trafficking may present any of the forms of evidence listed in paragraph (d)(2) of this section or any of the following: E:\FR\FM\18APR1.SGM 18APR1 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations (i) A certification letter issued by the Department of Health and Human Services (HHS). (ii) Verification that the alien has been certified by calling the HHS trafficking verification line, (202) 401–5510 or (866) 401–5510. (iii) An interim eligibility letter issued by HHS, if the alien was subjected to severe forms of trafficking while under the age of 18. (iv) An eligibility letter issued by HHS, if the alien was subjected to severe forms of trafficking while under the age of 18. (e) Recordkeeping. Recipients are not required by § 1626.12 to maintain records regarding the immigration status of clients represented pursuant to this section. If a recipient relies on an immigration document for the eligibility determination, the recipient shall document that the client presented an immigration document by making a note in the client’s file stating that a staff member has seen the document, the type of document, the client’s alien registration number (‘‘A number’’), the date of the document, and the date of the review, and containing the signature of the staff member that reviewed the document. (f) Changes in basis for eligibility. If, during the course of representing an alien eligible pursuant to § 1626.4(a)(1), a recipient determines that the alien is also eligible under § 1626.4(a)(2) or § 1626.5, the recipient should treat the alien as eligible under that section and may provide all the assistance available pursuant to that section. pmangrum on DSK3VPTVN1PROD with RULES § 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 101(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 or the VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 Secretary of DHS 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 deportation or exclusion under section 243(h) of the INA (8 U.S.C. 1253(h), as in effect on April 16, 1996) or 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; (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 DHS, 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 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 21873 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 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. § 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, 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. E:\FR\FM\18APR1.SGM 18APR1 21874 § 1626.9 Federal Register / Vol. 79, No. 75 / Friday, April 18, 2014 / Rules and Regulations 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. pmangrum on DSK3VPTVN1PROD with RULES § 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 101(a)(20) of the INA (8 U.S.C. 1101(a)(20)), 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. § 1626.11 workers. H–2 agricultural and forestry (a) Nonimmigrant agricultural workers admitted to, or permitted to VerDate Mar<15>2010 14:13 Apr 17, 2014 Jkt 232001 remain in, the United States under the provisions of section 101(a)(15)(h)(ii)(a) of the INA (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 to, or permitted to remain in, the United States under the provisions of section 101(a)(15)(h)(ii)(b) of the INA (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: April 14, 2014. Stefanie K. Davis, Assistant General Counsel. pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2013–2014 season. Inadvertently, we made two technical errors in our regulatory text for Arapaho National Wildlife Refuge in Colorado. This action makes the necessary corrections to the regulations for that refuge. DATES: This correction is effective April 18, 2014. FOR FURTHER INFORMATION CONTACT: Brian Salem, (703) 358–2397. SUPPLEMENTARY INFORMATION: In a final rule that published March 17, 2014 (79 FR 14809), we amended the refugespecific regulations for certain refuges that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2013– 2014 season. The Arapaho National Wildlife Refuge (NWR) in Colorado is one of the refuges for which we published amended regulations. In the final rule, we inadvertently required that hunters may only use shotguns as the legal method of take for migratory game birds and upland game on Arapaho NWR. This requirement is inconsistent with Colorado State regulations, which allow take by both shotgun and falconry. Therefore, we are correcting the regulations for Arapaho NWR to provide that take of migratory game birds and upland game must comply with State regulations. List of Subjects in 50 CFR Part 32 Fishing, Hunting, Reporting and recordkeeping requirements, Wildlife, Wildlife refuges. DEPARTMENT OF THE INTERIOR Regulation Promulgation For the reasons set forth in the preamble, we amend title 50, chapter I, subchapter C of the Code of Federal Regulations as follows: Fish and Wildlife Service PART 32—[AMENDED] [FR Doc. 2014–08833 Filed 4–17–14; 8:45 am] BILLING CODE 7050–01–P 1. The authority citation for part 32 continues to read as follows: ■ 50 CFR Part 32 [Docket No. FWS–HQ–NWRS–2013–0074; FXRS12650900000–134–FF09R20000] RIN 1018–AZ87 Fish and Wildlife Service, Interior. ACTION: Correcting amendments. AGENCY: We, the U.S. Fish and Wildlife Service, published a final rule in the Federal Register on March 17, 2014, to amend the refuge-specific regulations for certain refuges that SUMMARY: Frm 00030 Fmt 4700 2. Amend § 32.25 by revising paragraphs A.6 and B.4 under Arapaho National Wildlife Refuge to read as follows: ■ 2013–2014 Refuge-Specific Hunting and Sport Fishing Regulations; Correction PO 00000 Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd–668ee, and 715i. Sfmt 4700 § 32.25 * * Colorado. * * * Arapaho National Wildlife Refuge A. * * * 6. Method of take for migratory game birds must comply with State regulations. * * * * * E:\FR\FM\18APR1.SGM 18APR1

Agencies

[Federal Register Volume 79, Number 75 (Friday, April 18, 2014)]
[Rules and Regulations]
[Pages 21861-21874]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08833]


=======================================================================
-----------------------------------------------------------------------

LEGAL SERVICES CORPORATION

45 CFR Part 1626


Restrictions on Legal Assistance to Aliens

AGENCY: Legal Services Corporation

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule updates the Legal Services Corporation (LSC or 
Corporation) regulation on legal assistance to aliens. The rule 
implements statutory changes regarding aliens eligible for legal 
assistance from LSC recipients that have been enacted since the 
pertinent provisions of the existing regulation were last revised in 
1997. Additional information is located in the SUPPLEMENTARY 
INFORMATION section.

DATES: This final rule is effective on May 19, 2014.

FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General 
Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 
20007, (202) 295-1563 (phone), (202) 337-6519 (fax), sdavis@lsc.gov.

SUPPLEMENTARY INFORMATION: 

I. General Authorities, Impetus for Rulemaking, and Existing Rules

    LSC's current appropriation 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 aliens other than those covered by statutory exceptions. 
Sec. 504(a)(11), Public Law 104-134, Title V, 110 Stat. 1321, 1321-54.
    In subsequent years, Congress expanded eligibility to discrete

[[Page 21862]]

categories of aliens. In 1997, Congress passed the Kennedy Amendment, 
which allowed LSC recipients to use non-LSC funds to provide related 
legal assistance to aliens who were battered or subjected to extreme 
cruelty in the United States by family members. Sec. 502(a)(2)(C), 
Public Law 104-208, Div. A, Title V, 110 Stat. 3009, 3009-60. Congress 
limited the type of assistance that recipients could provide to ``legal 
assistance directly related to the prevention of, or obtaining relief 
from, the battery or cruelty described in'' regulations issued pursuant 
to VAWA (hereinafter ``related assistance''). Sec. 502(b)(2), Public 
Law 104-208, Div. A, Title V, 110 Stat. 3009-60. Congress renewed the 
Kennedy Amendment in the FY 1998 reincorporation and modification of 
the LSC appropriation restrictions. Sec. 502(a)(2)(C), Public Law 105-
119, Title V, 111 Stat. 2440, 2511. Thereafter, LSC's annual 
appropriation has incorporated the FY 1998 restrictions by reference. 
See, e.g., Public Law 113-6, Div. B, Title IV, 127 Stat. 198, 268 (LSC 
FY 2013 appropriation).
    The next expansions of eligibility came through the passage of the 
Victims of Trafficking and Violence Protection Act of 2000 (TVPA) and 
its progeny. Public Law 106-386, 114 Stat. 1464 (22 U.S.C. 7101 note). 
Through the TVPA, Congress directed the Board of Directors of LSC, 
along with Federal benefits granting agencies, to ``expand benefits and 
services to victims of severe forms of trafficking in persons in the 
United States, without regard to the immigration status of such 
victims.'' Sec. 107(b)(1)(B), Public Law 106-386, 114 Stat. 1475 (22 
U.S.C. 7105(b)(1)(B)). Congress passed the Trafficking Victims 
Protection Reauthorization Act (TVPRA) in 2003, which made certain 
family members of victims of severe forms of trafficking (``derivative 
T visa holders'') eligible to receive legal services from LSC-funded 
recipients. Sec. 4(a)(2)(B)(i), Public Law 108-193, 117 Stat. 2875, 
2877 (22 U.S.C. 7105(b)(1)(B)).
    In January of 2006, Congress passed the Violence Against Women and 
Department of Justice Reauthorization Act of 2005 (VAWA 2005). VAWA 
2005 further amended section 502(a)(2)(C) of the FY 1998 LSC 
appropriation 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 Immigration and Nationality 
Act (INA). Sec. 104, Public Law 109-162, 119 Stat. 2960, 2978. The U 
visa provision of the INA allows aliens who are victims of one or more 
of the crimes listed therein and who may assist in law enforcement 
investigations or prosecutions related to such crimes, or who are 
family members of such victims, to remain in the United States for a 
limited period. 8 U.S.C. 1101(a)(15)(U). Additionally, VAWA 2005 
removed the Kennedy Amendment's restriction on the use of LSC funds to 
provide representation to aliens who are eligible for services under 
VAWA 2005. Sec. 104(a)(1)(A), Public Law 109-162, 119 Stat. 2979-80. 
The amended text of section 502 is not codified, but the pertinent 
portion is available at http://www.lsc.gov/about/lsc-act-other-laws/violence-against-women-act-public-law-109-162-2006.
    The final expansion of eligibility occurred in 2007. The FY 2008 
LSC appropriation amended section 504(a)(11) of the FY 1996 LSC 
appropriation to extend eligibility for assistance to forestry workers 
admitted to the United States under the H-2B temporary worker provision 
in section 101(a)(15)(H)(ii)(b) of the INA. Sec. 540, Public Law 110-
161, Div. B, Title V, 121 Stat. 1844, 1924.
    LSC last revised part 1626 in 1997. After the alienage restrictions 
were enacted in 1996, LSC adopted an interim rule to implement the 
restrictions. 61 FR 45750, Aug. 29, 1996. While this rule was pending 
for comment, Congress passed the Kennedy Amendment. LSC subsequently 
revised part 1626 to implement the Kennedy Amendment. 62 FR 19409, Apr. 
21, 1997, amended by 62 FR 45755, Aug. 29, 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.
    After 1997, LSC apprised recipients through program letters of 
certain statutory changes expanding alien eligibility for legal 
assistance provided by LSC-funded recipients. Program Letter 02-5 (May 
15, 2002) (TVPA); Program Letter 05-2 (Oct. 6, 2005) (TVPRA; superseded 
Program Letter 02-5); Program Letter 06-2 (Feb. 21, 2006) (VAWA 2005). 
The final rule will incorporate the policies set forth in Program 
Letters 05-2 and 06-2. Both letters will be superseded upon publication 
of the final rule and will be removed from the ``Current Program 
Letters'' page of LSC's Web site.

II. Procedural Background

    As a result of the numerous amendments to the alien eligibility 
provisions of the FY 1996 LSC appropriation, the Corporation determined 
that rulemaking to update part 1626 was appropriate. 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. LSC published the notice of 
proposed rulemaking (the NPRM) in the Federal Register on August 21, 
2013. 78 FR 51696, Aug. 21, 2013. The comment period remained open for 
sixty days and closed on October 21, 2013.
    On January 23, 2014, the Committee considered the draft final rule 
for publication. After hearing from staff and stakeholders about 
changes to Sec.  1626.4(c) in the final rule and the possible 
consequences of those changes, the Committee voted to recommend 
delaying final consideration of the rule pending an opportunity for 
public comment on those changes. On January 25, 2014, the Board voted 
to proceed with a further notice of proposed rulemaking (FNPRM). LSC 
published the FNPRM in the Federal Register on February 5, 2014. 79 FR 
6859, Feb. 5, 2014. The comment period closed on March 7, 2014.
    On April 7, 2014, the Committee considered the draft final rule and 
voted to recommend its publication to the Board. On April 8, 2014, the 
Board voted to adopt and publish the final rule.
    All of the comments and related memos submitted to the LSC Board 
regarding this rulemaking are available in the open rulemaking section 
of LSC's Web site at http://www.lsc.gov/about/regulations-rules/open-rulemaking. After the effective date of the rule, those materials will 
appear in the closed rulemaking section at http://www.lsc.gov/about/regulations-rules/closed-rulemaking.

III. Discussion of Comments and Regulatory Provisions

    LSC received fifteen comments in response to the NPRM. Eight 
comments were submitted by LSC-funded recipients, four were submitted 
by non-LSC-funded non-profit organizations,

[[Page 21863]]

and three were submitted by individuals. All of the comments are posted 
on the rulemaking page of LSC's Web site: www.lsc.gov/about/regulations-rules. Most commenters supported the revisions to conform 
part 1626 to the statutes expanding eligibility for legal services to 
certain crime victims, victims of severe forms of trafficking, and H-2B 
forestry workers. LSC received the greatest number of comments in 
response to the three issues the Corporation specifically sought 
comment on: the distinction between the VAWA 2005 and TVPA definitions 
of ``trafficking,'' the geographic location of the predicate activity 
for eligibility, and the geographic location of the victim.

Organizational Note

    In the final rule, definitions that the NPRM placed in Sec.  
1626.4(c) are being moved to Sec.  1626.2. As a result, paragraphs (d) 
through (g) of Sec.  1626.4 are being redesignated as paragraphs (c) 
through (f). In the following discussion of the comments and the 
changes to the proposed rule, the relabeled paragraphs will be referred 
to by the designation to be used in the final rule, except where the 
proposed rule is explicitly referenced.

Specific Areas in Which LSC Requested Comments

1. Whether the VAWA Term ``trafficking'' Differs From the TVPA/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
    LSC received seven comments in response to this request. Of the 
seven, one observed a trend of linking the VAWA and INA definitions of 
trafficking to the TVPA term ``severe forms of trafficking'' and 
suggested that the term ``severe forms of trafficking'' should control 
all uses of the term ``trafficking.'' The other six commenters 
generally agreed that the VAWA 2005 term ``trafficking'' differs from 
the term ``severe forms of trafficking'' used in the TVPA and the INA. 
All six of those commenters believed that ``trafficking'' as used in 
VAWA 2005 is a broader term than the TVPA's ``severe forms of 
trafficking.'' This belief applied to both the plain term 
``trafficking'' in VAWA 2005 and the qualifying crime of trafficking 
for purposes of U visa eligibility under section 101(a)(15)(U) of the 
INA. One commenter noted that ``the term `trafficking' was included in 
the U visa provisions to cover forms of human trafficking'' in which 
persons were being trafficked, but would have difficulty meeting the 
``severe forms of trafficking'' standard to obtain eligibility for 
benefits under the TVPA. By making trafficking a crime for which 
individuals could qualify for related legal assistance or a U visa, the 
commenter continued, Congress extended ``protection and help [to] both 
the trafficking victims who could meet the severe forms test and those 
who could not.''
    Commenters differed, however, in how they believed LSC should 
account for the difference in definitions. Five commenters recommended 
that LSC adopt VAWA 2005's broader term ``trafficking'' over the TVPA's 
``severe forms of trafficking.'' A sixth commenter asserted that in 
determining eligibility, ``a LSC funded organization should be able to 
rely on the applicable state statute which would make the applicant 
eligible for a U visa or the federal statute which defines `severe form 
of trafficking,' whichever is broader. Moreover, LSC funded 
organizations should be able to rely on any evidence that supports the 
applicable definition in a particular case.''
    In order to qualify for a U visa, an alien must be a victim of at 
least one of the types of criminal activity listed in section 
101(a)(15)(U)(iii) of the INA. The listed crimes, which include 
``trafficking,'' must ``violate[] the laws of the United States or 
occur[] in the United States (including in Indian country and military 
installations) or the territories and possessions of the United 
States[.]'' 8 U.S.C. 1101(a)(15)(U)(i)(IV). Neither the INA nor VAWA 
2005 defines the term ``trafficking.''
    The TVPA also fails to define ``trafficking,'' although it does 
define and use the terms ``severe forms of trafficking in persons'' and 
``sex trafficking.'' 22 U.S.C. 7102. The TVPA defines ``sex 
trafficking'' as ``the recruitment, harboring, transportation, 
provision, or obtaining of a person for the purpose of a commercial sex 
act.'' 22 U.S.C. 7102(9). ``Severe forms of trafficking in persons'' 
means:

    (a) Sex trafficking in which a commercial sex act is induced by 
force, fraud, or coercion, or in which the person induced to perform 
such act has not attained 18 years of age; or
    (b) the recruitment, harboring, transportation, provision, or 
obtaining of a person for labor or services, through the use of 
force, fraud, or coercion for the purpose of subjection to 
involuntary servitude, peonage, debt bondage, or slavery.

22 U.S.C. 7102(8). The TVPA does not reference state, tribal, or 
territorial laws that criminalize trafficking.

    LSC agreed with the commenters that the VAWA term ``trafficking,'' 
incorporating as it does crimes that would constitute trafficking if 
they violated state or federal law, is broader than both ``sex 
trafficking'' and ``severe forms of trafficking in persons'' as defined 
in the TVPA. Indeed, ``trafficking'' as used in VAWA 2005 would include 
both sex trafficking and severe forms of trafficking in persons, as 
both are defined as crimes by a federal law, the TVPA. For purposes of 
eligibility for services under Sec.  1626.4, LSC will retain the 
proposed definitions of ``victim of trafficking'' and ``victim of 
severe forms of trafficking'' with minor revisions to track the 
relevant statutes more closely. The reason for using these definitions 
is that victims of trafficking under VAWA 2005 and victims of severe 
forms of trafficking under the TVPA are eligible for differing types of 
legal assistance. Trafficking victims eligible under VAWA may receive 
only legal assistance related to battery, cruelty, sexual assault, or 
trafficking and other specified crimes, while victims of severe forms 
of trafficking under the TVPA may receive any legal assistance that is 
not otherwise restricted and is within the recipient's priorities. It 
is therefore important to retain the distinction between the two in 
order to ensure that individuals receive the legal assistance that is 
appropriate for their basis of eligibility.
    LSC also sought comment on the types of evidence that recipients 
should rely on to distinguish between victims of trafficking under VAWA 
2005 and victims of severe forms of trafficking under the TVPA. Only 
one commenter responded to this request, stating that the organization 
was unclear about what kind of information LSC sought. The commenter 
also stated that ``recipients should be able to rely on the definition 
in the statute that is applicable to the crime involved and evidence 
that meets that definition.'' In response to this comment, LSC will 
revise proposed Sec.  1626.4(e), renumbered as Sec.  1626.4(d) in the 
final rule, to separate the evidence that may be presented by 
individuals eligible for legal assistance under VAWA 2005 from forms of 
evidence that may be presented by victims of severe forms of 
trafficking under the TVPA. For individuals who claim eligibility based 
on being a victim of trafficking under VAWA 2005, Sec.  1626.4(d)(2) 
will incorporate the list used in proposed Sec.  1626.4(e). LSC notes 
that this list is nonexclusive, and that recipients may accept other 
types of credible evidence. Evidence may also include an application 
for a U visa or

[[Page 21864]]

evidence that the individual was granted a U visa.
    Section 1626.4(d)(3) will set forth the types of evidence that are 
unique to victims of severe forms of trafficking. These forms of 
evidence include a certification letter issued by the U.S. Department 
of Health and Human Services (HHS) or, in the case of a minor victim of 
severe forms of trafficking, an interim or final eligibility letter 
issued by HHS. Recipients may also call the HHS trafficking 
verification line at (202) 401-5510 or (866) 401-5510 to confirm that 
HHS has issued an alien a certification letter. HHS is the only federal 
agency authorized to certify victims of severe forms of trafficking to 
receive public benefits or to issue eligibility letters to minors. It 
is important to note that minors do not need to have an eligibility 
letter to be eligible for services. Recipients only need to determine 
that a minor meets the definition of a victim of severe forms of 
trafficking in 22 U.S.C. 7105(b)(1)(C).
2. The Geographic Location in Which the Predicate Activity Takes Place
    LSC proposed to interpret the VAWA 2005 phrase ``victim of 
trafficking in the United States'' and the TVPA phrase ``victim of 
severe forms of trafficking in the United States'' to require that an 
alien be trafficked into or experience trafficking within the United 
States to be eligible for legal assistance from LSC-funded recipients. 
LSC believed that this interpretation was necessary because LSC read 
the qualifier ``in the United States'' to apply to the activity of 
trafficking, rather than to the victim of trafficking.
    With regard to the geographical restriction as it applied to 
trafficking under VAWA 2005, LSC received eight comments. One commenter 
simply stated that LSC's interpretation was correct. Seven commenters 
disagreed with LSC's proposed interpretation, arguing in all instances 
that ``in the United States'' modified ``victim of trafficking'' or 
``victim of severe forms of trafficking,'' rather than just 
``trafficking.'' Of the commenters who disagreed with LSC's 
interpretation, four linked the VAWA 2005 language to the language in 
section 7105(b)(1)(B) of the TVPA authorizing LSC and federal benefits-
granting agencies to expand benefits and services to ``victims of 
severe forms of trafficking in the United States[.]'' These commenters 
understood the phrase ``in the United States'' to ``refer to the 
location of the victim, rather than the location of the abuse,'' and 
relied on the heading of section 7105(b) of the TVPA, ``Victims in the 
United States,'' in support of their reading. One commenter noted that 
trafficking is a qualifying crime for U visa eligibility, and that 
section 101(a)(15)(U) of the INA does not require that an alien have 
been a victim of one of the qualifying crimes within the United States 
to be eligible to receive a U visa. Two commenters noted that VAWA 2005 
authorizes the use of LSC funds to provide legal assistance to both 
``victims of sexual assault or trafficking in the United States'' and 
aliens who qualify for a U visa, which they asserted meant that even if 
LSC's interpretation were correct, LSC-funded recipients could still 
provide assistance to aliens who were victims of sexual assault or 
trafficking outside the United States because both crimes are 
qualifying crimes under section 101(a)(15)(U)(iii) of the INA. The last 
commenter opposing LSC's interpretation observed that the VAWA 2005 
amendments to section 502 made that section ``internally 
inconsistent.'' The commenter remarked that VAWA 2005 created two 
categories of eligibility--one for victims of battery, extreme cruelty, 
sexual assault, or trafficking ``in the United States,'' and one for 
aliens qualified for U visa status, which specifically contemplates 
that qualifying crimes are those that ``violated the laws of the United 
States or occurred in the United States (including in Indian country 
and military installations) or the territories and possessions of the 
United States[.]'' 8 U.S.C. 1101(a)(15)(U)(i)(IV). Because trafficking 
is a qualifying crime for U visa eligibility, the commenter continued, 
VAWA 2005 appears to treat trafficking inconsistently. Finally, the 
commenter noted that by treating trafficking as requiring activity to 
occur in the United States, but not placing the same requirement on 
sexual assault and domestic violence, which are also qualifying crimes 
for U visa eligibility, the regulation is unnecessarily internally 
inconsistent.
    The same seven commenters likewise opposed LSC's proposed 
interpretation of the TVPA term ``victims of severe forms of 
trafficking in the United States.'' Most of the commenters pointed to 
the plain language of the TVPA and the INA in support of their 
argument. First, they noted that the TVPA definition of ``severe form 
of trafficking in persons'' does not include a geographical limitation 
to trafficking activities that occur in the United States. Second, they 
assert that the title of section 107(b) of the TVPA, ``Victims in the 
United States,'' makes clear that it is the victims, rather than the 
activities, that must be in the United States. 22 U.S.C. 7105(b). 
Finally, they relied on the INA criteria for T visa eligibility. In 
order to qualify for a T visa, an alien must be a victim of severe 
forms of trafficking in persons; must be willing to cooperate with law 
enforcement, unable to cooperate due to physical or psychological 
trauma, or be under the age of 18; and must be ``physically present in 
the United States . . . on account of such trafficking, including 
physical presence on account of the alien having been allowed entry 
into the United States for participation in investigative or judicial 
processes associated with an act or a perpetrator of trafficking[.]'' 8 
U.S.C. 1101(a)(15)(T).
    LSC agreed that it would be inconsistent with the plain language of 
the INA, VAWA 2005, and the TVPA and its progeny to require that an 
alien have been trafficked into or within the United States to qualify 
for legal assistance from an LSC-funded recipient. For this reason, LSC 
revised the language in proposed Sec.  1626.4(d)(1) to remove the 
requirement that an alien have been subjected to trafficking activity 
in the United States in order to be eligible to receive legal 
assistance from an LSC recipient.
    LSC also is making two technical amendments to proposed Sec.  
1626.4(d). The first renames proposed Sec.  1626.4(d) ``Relationship to 
the United States,'' and Sec.  1626.4(d)(1) ``Relation of activity to 
the United States.'' LSC is making these changes to reflect that 
although the criminal activity giving rise to eligibility under VAWA 
does not need to occur in the United States, the crime must have 
violated the laws of the United States. The second change is restating 
in Sec.  1626.4(d)(1) the language from section 101(a)(15)(U)(i)(IV) of 
the INA that a listed crime must have violated the laws of the United 
States or occurred within the United States in order to be a qualifying 
crime for purposes of U visa eligibility.
3. Whether an Alien Must Be Physically Present in the United States To 
Receive Legal Assistance
    In the NPRM, LSC proposed that aliens eligible to receive legal 
assistance under one of the anti-abuse statutes would be eligible for 
such assistance regardless of whether they were present in the United 
States. LSC reasoned that the anti-abuse statutes, viewed collectively, 
did not require an alien to be present in the United States to be 
eligible to receive legal assistance. LSC received eight comments on 
this issue. Seven commenters agreed with LSC's proposed position. One 
commenter opposed.

[[Page 21865]]

    The seven commenters responding in support of LSC's position 
generally noted that the position was consistent with section 
101(a)(15)(U) of the INA, which contemplates that an alien who 
qualifies for U visa relief may have been a victim of a qualifying 
crime that occurred outside the United States. One commenter pointed 
out that Congress amended VAWA to allow eligible victims to file 
petitions for relief from outside the United States. Another commenter 
remarked that victims of abuse may find themselves outside the United 
States for reasons related to the abuse if suffered here, and that the 
legal assistance provided by an LSC-funded recipient may be essential 
to ensuring that the victims are able to petition successfully for 
legal status.
    The commenter opposing LSC's proposal first argued that LSC is 
improperly ``tying the removal of geographical presence in with the new 
applicability of assistance to aliens receiving U visas.'' The 
commenter believed that the ability of aliens who were victims of 
qualifying crimes that occurred outside the United States to apply for 
U visa relief from outside the United States ``has no bearing on 
territorial requirements for individuals receiving assistance from the 
VAWA amendments.'' Secondly, the commenter argued that allowing 
recipients to represent aliens not present in the United States would 
significantly increase the case work of LSC recipients and would likely 
lead to the expenditure of scarce resources in pursuit of frivolous 
petitions for immigration relief. None of the LSC recipients who 
commented on the NPRM indicated that they were unable to serve 
adequately aliens eligible under the anti-abuse statutes or were 
otherwise compromising their representation of other eligible clients.
    LSC continues to believe that the proposed language is consistent 
with Congressional intent in removing the requirement that an alien 
have been a victim of battery, extreme cruelty, or sexual abuse in the 
United States. As discussed in the preceding section, however, the VAWA 
2005 amendment to section 502(a)(2)(C) of the FY 1998 LSC appropriation 
is internally inconsistent with respect to whether victims of 
trafficking must be in the United States in order to be eligible for 
benefits. This is because the U visa provision of the INA, which 
includes trafficking as a qualifying crime, contemplates that the 
trafficking may occur outside the United States, see 8 U.S.C. 
1101(a)(15)(U)(i)(IV) (``the criminal activity described in clause 
(iii) violated the laws of the United States or occurred in the United 
States. . . .''), while the amendment to section 502(a)(C) uses the 
phrase ``victim of . . . trafficking in the United States.'' Sec. 
104(a), Public Law 109-162, 119 Stat. 2960, 2979.
    Because the modifier ``in the United States'' must be given some 
meaning, LSC interpreted the VAWA 2005 term ``victim of . . . 
trafficking in the United States'' to mean that an alien who is seeking 
legal assistance as a victim of trafficking under VAWA does not need to 
show that the trafficking activity occurred in the United States, but 
must be present in the United States to be eligible for assistance. 
This reading was consistent with the reading that LSC applied to the 
term ``victim of severe forms of trafficking in the United States'' in 
the TVPA.
    Section 101(a)(15)(T)(i)(II) of the INA, discussed above, requires 
a victim of severe forms of trafficking to be present in the United 
States on account of such trafficking in order to be eligible for a T 
visa. ``On account of such trafficking'' includes, but is not limited 
to, having been allowed entry to assist law enforcement in the 
investigation and prosecution of an act or perpetrator of trafficking. 
8 U.S.C. 1101(a)(15)(T)(i)(II). LSC believes that this language also 
includes a victim of severe forms of trafficking abroad who flees into 
the United States to escape the trafficking. Under these circumstances, 
the victim is in the United States ``on account of such trafficking,'' 
and would be eligible for LSC-funded legal assistance.
    Based on the comments received and the subsequent review of the 
INA, LSC proposed to modify the language in proposed Sec.  1626.4(d), 
renumbered as Sec.  1626.4(c), to reflect the distinction between 
eligibility for victims of trafficking who qualify for a U visa and 
those who are eligible under VAWA or under the TVPA. LSC also proposed 
to add Sec.  1626.4(c)(2), ``Relationship of alien to the United 
States,'' to describe the circumstances under which an alien must be 
present in the United States to be eligible for legal assistance under 
the anti-abuse statutes. Section 1626.4(c)(2)(i) stated that victims of 
battery, extreme cruelty, or sexual abuse, or who are qualified for a U 
visa, do not need to be present in the United States to receive legal 
assistance from LSC-funded recipients. Section 1626.4(c)(2)(ii) 
addressed victims of severe forms of trafficking, who must be present 
in the United States on account of such trafficking to be eligible for 
LSC-funded legal assistance. Finally, Sec.  1626.4(c)(2)(iii) addressed 
victims of trafficking under VAWA, who only need to be present in the 
United States to be eligible for assistance.
    During the Committee meeting on January 23, 2014, stakeholders 
expressed concern regarding the modified language in Sec.  
1626.4(c)(2), specifically that the distinctions between victims of 
trafficking under VAWA, aliens qualified for a U visa on the basis of 
trafficking, and victims of severe forms of trafficking under the TVPA 
in the final rule could have unintended consequences.
    The Committee and the Board responded to this concern by 
authorizing the publication of an FNPRM seeking comments on the 
modified language in Sec.  1626.4(c)(2). 79 FR 6859, Feb. 5, 2014. LSC 
sought comment on two discrete issues. The first question focused on 
LSC's interpretation of the phrase ``in the United States'' as it 
applied to victims of trafficking under VAWA and victims of severe 
forms of trafficking under the TVPA. 79 FR at 6863. On the second 
issue, LSC asked whether the phrase ``in the United States'' in VAWA 
modified the crime of trafficking, all listed crimes preceding the 
phrase ``in the United States,'' or the term ``victim.'' Id. LSC 
received eleven comments in response to the FNPRM. Members of the 
public submitted six of the comments, national non-profit organizations 
submitted three comments, and legal services providers, LSC-funded and 
non-LSC-funded, submitted the other two comments.
    On the first question, commenters were divided about whether LSC's 
interpretation of the phrase ``victims of . . . trafficking in the 
United States'' as requiring the victim to be in the United States at 
the time the victim sought assistance from an LSC recipient was 
correct. One commenter stated that the interpretation was correct as 
applied to victims of severe forms of trafficking under the TVPA. 
Another stated that LSC's interpretation did not go far enough because 
it did not explicitly state that victims of severe forms of trafficking 
who were brought back to the United States to assist in the 
investigation or prosecution of their traffickers could qualify for 
LSC-funded legal assistance. Four commenters stated that the 
requirement that victims of severe forms of trafficking under the TVPA 
be in the United States ``as a result of trafficking'' was overly 
broad. Finally, four commenters advocated for reading the phrase ``in 
the United States'' to be satisfied by a nexus between either the 
victim or the crime and the United States. In other words, the four 
commenters advocated that LSC read ``in the United States'' to mean 
that victims of trafficking under VAWA or

[[Page 21866]]

severe forms of trafficking under the TVPA would be eligible either if 
they were in the United States at the time they sought legal assistance 
or if they experienced trafficking in the United States. Commenters 
contended that such a broad reading of the phrase would accomplish the 
remedial purposes of the anti-abuse statutes.
    With respect to the second question, commenters again split on 
which term in VAWA the phrase ``in the United States'' modified. While 
all commenters agreed that the phrase modified only trafficking, rather 
than ``sexual abuse or trafficking,'' there was no unanimity on whether 
the phrase modified ``victim of . . . trafficking,'' ``trafficking,'' 
or either one. Again, the majority of comments advocated for reading 
``in the United States'' to allow eligibility for services if either 
the activity of trafficking occurred in the United States or the victim 
of trafficking is in the United States at the time he or she seeks 
legal assistance from an LSC-funded recipient.
    LSC considered all comments received and reviewed the language 
proposed in the NPRM, the language proposed in the FNPRM, the TVPA, 
VAWA, and the relevant sections of the INA. After considering all of 
the above materials, LSC is retaining the language of Sec.  1626.4(c) 
proposed in the FNPRM with modification. LSC continues to believe that 
the approach taken in the FNPRM is most consistent with the plain 
language of the TVPA, VAWA, and the INA.
    Section 107 of the TVPA is titled ``Victims in the United States.'' 
22 U.S.C. 7105. Section 107(b)(1)(B) of the TVPA authorizes the 
secretaries of HHS, Labor, and other federal benefits-granting 
agencies, as well as LSC, to expand benefits and services to ``victims 
of severe forms of trafficking in persons in the United States'' 
subject to subparagraph C. 22 U.S.C. 7105(b)(1)(B). The referenced 
subparagraph, section 107(b)(1)(C) defines the term ``victim of a 
severe form of trafficking in persons'' as used in section 107 more 
narrowly than the term is defined in the general definitions section of 
the TVPA. 22 U.S.C. 7105(b)(1)(C). In addition to being subjected to 
one of the crimes included within the general definition of ``severe 
forms of trafficking in persons,'' the section 107(b)(1)(C) definition 
requires that an individual be either under the age of 18 or the 
``subject of a certification under subparagraph (E).'' 22 U.S.C. 
7105(b)(1)(C). In order to receive a certification under subparagraph 
(E), a victim must have completed one of two immigration-related 
actions: the victim must have filed a bona fide application for a T 
visa that has not been denied, or the victim must have been granted 
continued presence to assist with the prosecution of traffickers. 22 
U.S.C. 7105(b)(1)(E)(i)(II). Significantly, an individual must be 
present in the United States to be eligible for a T visa or to be 
granted continued presence.
    Thus, the definition of ``victim of a severe form of trafficking in 
persons'' that explicitly applies to services funded by LSC contains a 
requirement that an adult victim have applied for or secured a type of 
immigration remedy for which presence in the United States is a 
necessary element. As a result, LSC believes that interpreting the 
phrase ``in the United States'' to mean that a victim of severe forms 
of trafficking under the TVPA must be present in the United States at 
the time the victim seeks legal assistance from an LSC recipient is 
most consistent with the definition. In the interest of uniformity and 
consistency across statutes, and in the absence of evidence that 
Congress intended otherwise, LSC also believes that it is appropriate 
to interpret ``in the United States'' the same way in VAWA. Therefore, 
LSC will retain the requirement that a victim of trafficking be present 
in the United States at the time the victim seeks assistance in order 
to be eligible for LSC-funded legal assistance. The presence 
requirement stated in Sec.  1626.4(c)(2) does not apply to victims of 
trafficking located outside the United States who are seeking legal 
assistance as individuals qualified for a U visa.
    LSC is modifying and redesignating Sec.  1626.4(c)(2)(iii) in 
response to the comments. Four commenters stated that because only 
section 101(a)(15)(T) of the INA, which governs eligibility for T 
visas, requires that the victim's presence in the United States be on 
account of trafficking, applying the requirement to all victims of 
severe forms of trafficking is unnecessarily restrictive. The 
commenters pointed to the absence of a link between the trafficking 
activity and the victim's presence in the continued presence regulation 
issued by the Departments of Justice and State. 28 CFR 1100.35. LSC 
concurs with the comments. Accordingly, LSC will remove Sec.  
1626.4(c)(2)(ii), redesignate proposed Sec.  1626.4(c)(2)(iii) as Sec.  
1626.4(c)(2)(ii), and will add victims of severe forms of trafficking 
to redesignated Sec.  1626.4(c)(2)(ii) as a group that must be present 
in the United States to be eligible to apply for LSC-funded legal 
assistance.
    During the Committee meeting on January 23, 2014, stakeholders also 
expressed a concern regarding the modified language in Sec.  
1626.4(c)(2) that the explicit reference to a presence requirement for 
victims of trafficking and severe forms of trafficking could be 
interpreted as precluding recipients from continuing to provide legal 
assistance to client victims of trafficking in the event the client 
left the United States after the commencement of services. With respect 
to this concern, LSC wishes to make clear that Sec.  1626.4(c) applies 
to the initial determination of an alien's eligibility for legal 
assistance under the anti-abuse statutes. Once services have commenced, 
a client's subsequent departure from the United States does not 
necessarily render the client ineligible to continue receiving 
services. Consistent with the Corporation's longstanding policy, the 
specific circumstances presented by the client's situation will 
determine whether representation may continue if the client is absent 
from the United States. LSC determined in Program Letter 2000-2 that 
temporary absence from the United States does not change eligibility 
for individuals covered by the Sec.  1626.5 presence requirement. 
Similarly, LSC determined that the H-2A presence requirement does not 
require a client to continue to be in the United States beyond the H-2A 
employment in order to continue receiving legal assistance. See LSC 
Board of Directors Meeting, November 20, 1999, transcript at 49, http://go.usa.gov/B3D9 (implementing the recommendations of the Erlenborn 
Commission Report, http://go.usa.gov/B3Tj). In response to the FNPRM, 
LSC received five comments in support of this position and no comments 
in opposition.

General Comments

    Comments not directed at a specific question or section of the 
regulations are discussed below.
LSC's Objective Regarding Inclusion of Eligible Aliens
    LSC received comments during the public comment period and during 
the January 23, 2014 Committee meeting pertaining to the criteria that 
LSC established for determining the eligibility of victims of 
trafficking for legal assistance by LSC-funded entities and the 
inclusion or exclusion from eligibility of certain categories of 
aliens. LSC is addressing each of those comments in the discussion of 
the section giving rise to the comments. As an overall policy, LSC has 
drafted the regulation to give effect to Congress's intent that certain 
categories of aliens should be eligible to receive legal services from 
LSC recipients. In some cases, such as for victims of qualifying

[[Page 21867]]

crimes under VAWA or H-2 visa holders, those services are limited to 
assistance related to the basis for eligibility. LSC's policy is to 
permit LSC recipients to provide eligible aliens with legal services to 
pursue the substantive rights, such as immigration relief, that 
Congress has given them.
Establishing Requirements for Recipient Compliance With VAWA 2005
    One commenter expressed concern that the regulatory language used 
to expand eligibility to the categories of aliens covered by VAWA 2005 
was too weak. The commenter stated that VAWA 2005 and its subsequent 
reauthorization acts generally contain provisions requiring the 
Department of Homeland Security (DHS) to issue regulations and entities 
receiving funding through VAWA 2005 to take certain actions within 
prescribed time limits after passage of the statute. The commenter 
recommended that LSC revise the final rule to require that recipients
     Include in their next funding or renewal of funding 
applications copies of their written plans for implementing the changes 
called for in the final rule;
     Identify and consult with domestic violence, sexual 
assault, and victim services programs working to serve immigrant crime 
victims in the recipient's service area; and
     Submit with each funding application a copy of the 
recipient's plan for implementing Sec.  1626.4, including a statement 
of the work the recipient has done to conduct outreach to, consult 
with, and collaborate with victim services providers with expertise 
providing assistance to underserved populations.
    VAWA 2005 amended section 502 of the FY 1996 LSC appropriation to 
authorize LSC recipients to provide legal assistance, using LSC funds 
or non-LSC funds, to alien victims of battery, extreme cruelty, sexual 
assault, or trafficking in the United States, and aliens qualified for 
a U visa. VAWA 2005 does not require LSC to undertake any actions to 
implement the expanded authority, nor does it require LSC funding 
recipients to provide legal assistance to the new categories of 
eligible aliens. Because VAWA 2005 places no obligations on either LSC 
or its recipients and contains no timeframes within which they must 
take action, LSC is not placing implementation requirements on its 
recipients.
Publication of Interlineated Statute
    One commenter recommended that LSC publish an interlineated statute 
showing the changes to section 502 of the FY 1996 LSC appropriation 
made by VAWA 2005 and republish an updated version each time it is 
amended. LSC publishes interlineated versions of the relevant statutes 
on the LSC Web site (http://www.lsc.gov/about/lsc-act-other-laws/lsc-appropriations-acts-committee-reports) and updates the page as 
necessary to reflect changes to the statutes. LSC believes that its 
practice of posting the interlineated statutes on its Web site 
addresses the commenter's recommendation and is sufficient to address 
changes to the laws affecting LSC and its recipients until the 
Corporation can undertake any necessary rulemaking.
Correcting Incorrect References
    One commenter noted that the NPRM incorrectly referred to the 
``Customs and Immigration Service,'' rather than the agency's proper 
name, ``Citizenship and Immigration Service.'' The references have been 
corrected.
Clarification That Individuals Should Receive the Highest Level of 
Services for Which They Are Eligible
    In response to the FNPRM, LSC received two comments recommending 
that LSC clarify that individuals who are eligible for services under 
more than one of the anti-abuse statutes be considered as eligible for 
the most expansive level of services. One of the commenters requested 
that LSC include a provision in the rule to this effect. LSC 
appreciates the recommendations; however, LSC is not making amendments 
to the text beyond technical corrections or revisions based on 
responses to the specific questions asked in the FNPRM. Additionally, 
the substance of the clarification that these comments requested is 
addressed through the existing text of proposed Sec.  1626.4(g) 
regarding changes in an individual's basis for eligibility.
Extension of the Comment Period
    In response to the NPRM, four commenters recommended that LSC 
extend the comment period to allow other interested organizations the 
opportunity to comment. The commenters were three LSC-funded recipients 
and one national non-profit. Commenters stated that they had learned of 
the rulemaking shortly before the close of the comment period and that 
they believed the complex nature of the issues raised by the rulemaking 
required additional time to develop proper responses.
    LSC did not believe an extension of the comment period for the 
August 21, 2013 NPRM was warranted. The comment period was open for 
sixty days, and recipients were advised of the rulemaking via email the 
day the NPRM was published in the Federal Register. For the three 
specific questions on which LSC sought comment in the NPRM, commenters 
overwhelmingly reached the same conclusion. On the other issues for 
which comments were received, commenters generally made the same 
recommendation. None of the four commenters requesting an extension 
identified any specific issue they intended to address if given 
additional time to respond. For these reasons, LSC did not believe it 
was necessary to reopen the comment period for the August 21, 2013 
NPRM.

Section-by-Section Discussion of Comments and the Final Rule

1626.1 Purpose
    LSC made no changes to this section.
1626.2 Definitions
    1. Comment: One commenter stated that the list of anti-abuse 
statutes in Sec.  1626.2(f) was incomplete. The commenter recommended 
adding the battered spouse waiver in the INA, 8 U.S.C. 1186a(c)(4)(C), 
the 2013 VAWA reauthorization, and the 2005, 2008, and 2013 
reauthorizations of the TVPA to the list.
    Response: As a matter of law, LSC does not have the authority to 
extend eligibility for legal assistance provided by LSC-funded 
recipients to aliens eligible for the battered spouse waiver under 8 
U.S.C. 1186a(c)(4)(C). Of the statutes reauthorizing VAWA and the TVPA, 
only the 2005 VAWA reauthorization and the TVPRA of 2003 affected the 
eligibility of certain aliens to receive legal assistance from LSC-
funded providers. LSC will revise the references to VAWA and the TVPA 
to indicate that LSC considers those statutes, as amended, as the anti-
abuse statutes.
    2. Comment: In response to the FNPRM, one commenter noted the use 
of the conjunction ``and'' to separate the terms ``victim of sexual 
assault'' and ``victim of trafficking'' within the definition of 
``victim of sexual assault or trafficking'' in Sec.  1626.2(k). The 
commenter voiced concern that the use of ``and'' made it appear that a 
victim must meet the terms of both provisions in order to qualify as a 
``victim of sexual assault or trafficking,'' which would narrow the 
definition.
    Response: LSC did not intend to narrow the definition and will 
replace ``and'' in Sec.  1626.2(k)(i) with ``or.''
    LSC made several changes to Sec.  1626.2. In the final rule, LSC is 
moving the

[[Page 21868]]

definitions of ``battered or extreme cruelty,'' ``victim of sexual 
assault or trafficking,'' ``victim of severe forms of trafficking,'' 
and ``qualifies for immigration relief'' to Sec.  1626.2 from proposed 
Sec.  1626.4(c) to consolidate definitions in part 1626 for ease of 
reference. LSC believes that removing the definitions from the 
operational text of Sec.  1626.4 will improve the readability and 
comprehensibility of the rule.
    With respect to the definition of ``battered or extreme cruelty,'' 
LSC will reinstate the definition used in existing Sec.  1626.2(f) in 
the final rule. LSC determined that the cross-reference to agency 
regulations defining the term did not clarify or add anything to the 
existing definition and could result in confusion if agencies differed 
in their definitions of the term.
    The Corporation also will include a definition of the term 
``certification.'' ``Certification'' is a term created by the TVPA and 
is defined at 22 U.S.C. 7105(b)(1)(E). Certification refers to the 
determination made by the Secretary of HHS that an individual was 
subjected to severe forms of trafficking, is willing to provide all 
reasonable assistance to law enforcement in the investigation or 
prosecution of a trafficker, and has either filed a bona fide 
application for a T visa that has not been rejected or has been granted 
continued presence to assist law enforcement by DHS.
    In the final rule, LSC is making a technical amendment to the 
definition of ``victim of sexual assault.'' In the NPRM, proposed Sec.  
1626.4(c)(2)(i) defined ``a victim of sexual assault'' as an individual 
``subjected to any conduct included in the definition of sexual assault 
or sexual abuse in VAWA, including but not limited to sexual abuse, 
aggravated sexual abuse, abusive sexual contact, or sexual abuse of a 
minor or ward[.]'' However, the term ``sexual abuse'' is not defined in 
VAWA, and the VAWA definition of ``sexual assault'' does not track the 
examples provided in the proposed definition. To avoid confusion, LSC 
will revise the definition to remove the reference to a definition of 
``sexual abuse'' in VAWA and adopt by incorporation the VAWA definition 
of ``sexual assault.''
    Finally, LSC will alphabetize the definitions in Sec.  1626.2 for 
ease of reference.
1626.3 Prohibition
    LSC received no comments on the proposed technical corrections to 
this section.
1626.4 Aliens Eligible for Assistance Under Anti-Abuse Laws
    As stated earlier in this preamble, LSC will delete proposed Sec.  
1626.4(c) and move the definitions contained therein to Sec.  1626.2. 
Proposed paragraphs (d) through (g) will be redesignated as paragraphs 
(c) through (f) in the final rule.
1626.4(a)(2) Legal Assistance to Victims of Severe Forms of Trafficking 
and Certain Family Members
    Paragraph (a)(2) will incorporate the policies established in 
Program Letter 02-5 and Program Letter 05-2. Individuals eligible for 
legal assistance under the TVPA and the 2003 TVPRA include individuals 
applying for certification as victims of severe forms of trafficking 
and certain family members seeking immigration relief under section 
101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii)).
1626.4(b)(2) Types of Cases Constituting ``Related Legal Assistance''
    Comment: One commenter suggested that LSC include within ``related 
legal assistance'' assistance ensuring that clients are protected by 
the privacy and confidentiality provisions of VAWA 2005 and are able to 
access the protections and benefits of education laws, including access 
to post-secondary educational grants and loans. According to the 
commenter, ``a significant component of effective representation of 
sexual assault victims and domestic violence victims in many cultural 
communities is ensuring privacy and confidentiality.'' Additionally, 
``access to educational benefits and remedies under education laws to 
address the subsequent problems that stem from the abuse and 
accommodations sexual assault survivors may need in the educational 
context'' is an integral part of helping immigrant victims of sexual 
assault to move on with their lives, to stay in school, and to settle 
successfully in the United States.
    By email dated November 25, 2013, LSC sought additional information 
from the commenter explaining the types of related legal assistance the 
commenter believed LSC recipients could provide in the context of VAWA 
confidentiality and privacy provisions. The commenter responded by 
email on December 13, 2013 with examples of assistance. The examples 
included ``preventing discovery of shelter records or mental health 
records of a victim in a custody, protection order, or criminal court 
proceeding,'' ``assistance with change of identity for crime victims 
who are witnesses eligible to participate in victim protection 
programs,'' and keeping information about the victim's immigration 
status and information contained in a victim's application for 
immigration relief under VAWA, 8 U.S.C. 1101(a)(15)(T), or 8 U.S.C. 
1101(a)(15)(U), out of a family court case.
    Response: LSC will retain the language in the proposed rule. LSC 
intended the examples of ``related legal assistance,'' including the 
list in the parenthetical, to be illustrative rather than exhaustive. 
LSC understands that there may be types of assistance, including 
assistance protecting confidentiality and privacy rights or ensuring 
access to education, which may constitute ``related legal assistance.'' 
The key factor for recipients to consider in determining whether a 
requested service is ``related legal assistance'' is the connection 
between the assistance and the purposes for which assistance can be 
given: escaping abuse, ameliorating the effects of the abuse, or 
preventing future abuse. To the extent that ensuring clients are 
protected by the privacy and confidentiality provisions of VAWA and the 
protections and benefits of education laws is necessary to help the 
clients escape, ameliorate the effects of, or prevent future abuse, 
legal assistance to secure those protections and benefits would 
constitute ``related legal assistance.''
1626.4(c) Relationship to the United States
    As stated in the discussion of Sec.  1626.2, LSC is deleting the 
definitions from this paragraph and moving the definitions to Sec.  
1626.2. Proposed paragraph (d) will be relocated to paragraph (c) in 
the final rule.
    LSC is making a technical change to paragraph (c). LSC is adding an 
introductory sentence to paragraph (c) stating that both paragraph 
(c)(1) and one subsection of paragraph (c)(2) must be met in order for 
an alien to be eligible for legal assistance under part 1626.
1626.4(d) Evidentiary Support
    Because LSC is deleting paragraph (c), this paragraph will be 
relocated to paragraph (d) in the final rule.
    1. Comment: LSC received four comments regarding the types of 
evidence that recipients may consider in support of a showing that an 
alien is eligible for legal assistance under one of the anti-abuse 
statutes. All of the comments supported the use of the list of 
evidentiary types taken directly from VAWA.

[[Page 21869]]

    Response: LSC will retain the text of proposed Sec.  1626.4(e) with 
respect to types of evidentiary support.
    2. Comment: One commenter recommended that LSC revise proposed 
paragraphs (e) and (f) to ``clearly state that where programs may 
represent individuals without regard to their citizenship or 
immigration status . . . programs are not required to inquire into the 
citizenship or immigration status of these clients.'' Another commenter 
similarly suggested that LSC should include language in the final rule 
shifting the eligibility focus at intake from citizenship or eligible 
alien status to victimization.
    Response: LSC will retain the language of the proposed rule. VAWA 
2005 authorizes, rather than requires, LSC funds to be used to 
represent victims of battery, extreme cruelty, sexual assault, and 
trafficking, or aliens who are qualified for a U visa. Recipients are 
responsible for setting their own priorities and may choose not to 
prioritize the types of assistance that are authorized under VAWA 2005. 
LSC believes that recipients should retain the discretion to conduct 
their intake processes in the ways that they determine are the most 
effective at identifying clients who are eligible for services and 
whose cases are within the recipients' priority areas.
    LSC reminds recipients that Advisory Opinion AO-2009-1008 addressed 
the question whether recipients must determine the immigration status 
of aliens who qualify for assistance under one of the anti-abuse 
statutes. In that opinion, the Office of Legal Affairs stated that once 
a recipient determined that an individual has a legal need that would 
qualify for the exceptions of the anti-abuse statutes to the alienage 
requirement, the recipient does not need to inquire into the 
citizenship or immigration status of that individual. The final rule 
does not affect the validity of the conclusion stated in AO-2009-1008.
    3. Comment: Two commenters recommended revising the examples of 
changes in eligibility in proposed Sec.  1626.4(e). One recommended 
including examples of when an alien's eligibility for legal assistance 
may change from eligibility under an anti-abuse statute to eligibility 
by reason of the alien's immigration status and vice versa in the 
preamble to the final rule. The other recommended removing or revising 
the examples in Sec.  1626.4. The commenter believed that the examples 
provided in proposed Sec.  1626.4(e) were ``problematic'' because they 
suggested that an individual whose application for status was rejected 
would subsequently be deemed ineligible to receive legal assistance 
under the anti-abuse statutes or they were too vague about which 
component of DHS made the determination of ineligibility and at which 
stage of review the determination of ineligibility was made. The 
commenter also opined that the requirement in the draft rule and in 
Program Letter 06-2 that recipients terminate representation of an 
individual once DHS issued a final denial of the individual's petition 
for a U visa is without basis in law. The commenter reasoned that the 
VAWA 2005 amendment to section 502 of the FY 1996 LSC appropriation 
based eligibility for services on an individual's ``qualifying'' for a 
U visa, which the commenter stated ``arguably applies when there is a 
need for corrected documents or there is after-acquired evidence.''
    Response: LSC is removing the examples from the text of the 
regulation. However, LSC wishes to clarify two points in response to 
the comments. The existing regulation defines ``rejected'' as ``an 
application that has been denied by DHS and is not subject to further 
administrative appeal.'' In the example of the ``final denial'' of a 
petition for a U visa, LSC did not intend to create ambiguity and 
should have used the regulatory term ``rejected.''
    With respect to subsequent eligibility, LSC did not intend the 
examples to suggest that an individual whose application for status was 
rejected because of insufficient or incomplete evidence would be 
ineligible for related legal assistance at a later date if the 
individual returned with additional evidence that he or she was a 
victim of battery or extreme cruelty, sexual assault, trafficking, or 
one of the qualifying crimes for a U visa. The example was intended 
only to explain how an individual's eligibility for services may change 
when the application in connection with which the individual qualified 
for services is rejected.
    LSC is sensitive to the difficulties that alien victims of abuse 
may have in developing and documenting credible evidence of the abuse. 
For purposes of eligibility, however, LSC's policy is that once the 
petition for a U visa upon which an individual was determined to be 
eligible for services has been rejected and no further avenues of 
appeal are available for that petition, the individual must be deemed 
not qualified for a U visa and the recipient must terminate 
representation consistent with applicable rules of professional 
responsibility unless there is another basis upon which the alien can 
be found eligible. The individual may be found eligible for services 
based on qualifying for a U visa at a later time if the individual can 
provide additional credible evidence supporting his or her claim for 
eligibility.
    LSC will remove the statement at the end of proposed Sec.  
1626.4(e) that recipient staff should review the evidence presented at 
intake to support an individual's basis for eligibility under the anti-
abuse statutes. Upon further consideration, LSC determined that this 
sentence was unduly prescriptive about how recipients assess 
eligibility and appeared to set up a different rule for reviewing 
eligibility under the anti-abuse statutes. Recipients should have 
mechanisms in place for evaluating a client's continued eligibility for 
services, regardless of the basis for eligibility.
1626.4(e) Recordkeeping
    Because LSC is deleting paragraph (c), this paragraph will be 
relocated to paragraph (e) in the final rule.
    Comment: Two commenters opposed the requirement in proposed 
paragraphs (f)(1) and (f)(2) that if an alien provides a visa or visa 
application as evidence to support his eligibility for legal services 
under the anti-abuse statutes, the recipient must keep a copy of the 
document in its files. One commenter noted that the requirement was a 
change in LSC policy, which currently does not require applicants to 
keep copies of immigration documents to prove alien eligibility. The 
other commenter stated that such a requirement is contrary to 
``motivations and the direction of the evolution of federal VAWA 
confidentiality law.'' The commenter described the confidentiality 
provisions of VAWA as protecting not only the information contained 
within a VAWA, T, or U visa application, but also as preventing a third 
party from obtaining information about the existence of such 
applications except in certain carefully circumscribed cases.
    Response: LSC agrees with these comments. In the final rule, LSC 
will replace proposed Sec.  1626.4(f) with language substantially 
similar to existing Sec.  1626.4(b): ``Recipients are not required by 
Sec.  1626.12 to maintain records regarding the immigration status of 
clients represented pursuant to this section.'' The Corporation is 
including a sentence in the final rule stating that if an alien 
presents a recipient with an immigration document as evidence of 
eligibility under the anti-abuse statutes, the recipient shall document 
eligibility under the anti-abuse statutes by making a note in the 
client's file stating that the recipient has seen the visa or the

[[Page 21870]]

application for a visa that supports the applicant's claim for 
eligibility and identifying the type of document, the applicant's alien 
registration number (``A number''), the date of the document, and the 
date of the review. The note should be signed by the staff member who 
reviewed the document. LSC understands the confidentiality concerns 
that this approach may raise; however, recipients must be able to 
document the basis for an individual's eligibility. In the event an 
alien presents an immigration document, LSC believes that documenting 
the basis for eligibility by recording the type of immigration document 
presented is reasonable and accommodates the commenters' concern.
1626.4(f) Changes in Basis for Eligibility
    Because LSC is deleting paragraph (c), this paragraph will be 
relocated to paragraph (f) in the final rule. No other changes will be 
made to this paragraph.
1626.5 Aliens Eligible for Assistance Based on Immigration Status
    1. Comment: LSC received four comments regarding proposed Sec.  
1626.5(e). The proposed change to this section updated the reference to 
withholding of removal under prior section 243(h) of the INA, 8 U.S.C. 
1253(h), to section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), to 
reflect the transfer of the provision from one section of the INA to 
the other. The comments were substantially similar in their 
recommendation and rationale. The commenters recommended that persons 
granted withholding of deportation under prior section 243(h) of the 
INA should not be removed from the regulation because some persons are 
still subject to deportation proceedings or orders of deportation and 
cannot obtain withholding of removal under section 241(b)(3) of the 
INA.
    Response: LSC made this change to the rule to reflect an update to 
the INA. Further research showed that Congress intended individuals 
with orders of exclusion or deportation to be treated the same as 
individuals with orders of removal. In the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 (IIRIRA), Congress 
recharacterized the actions of deportation (expulsion from the United 
States) and exclusion (barring from entry into the United States) into 
a single action--removal. Sec. 304, Public Law 104-208, Div. C, Tit. 
III, 110 Stat. 3009-589 (8 U.S.C. 1229a) (establishing ``removal 
proceedings'' as the proceedings in which an immigration judge would 
decide the admissibility or deportability of an alien); see also 8 
U.S.C. 1229(e)(2) (defining ``removable'' to mean that an alien is 
either inadmissible under section 212 of the INA or deportable under 
section 237 of the INA); Sec. 308, Public Law 104-208, Div. C, Tit. 
III, 110 Stat. 3009-614-3009-625 (amending various sections of the INA 
to change references to ``deportation'' or ``exclusion'' to 
``removal''). Section 309(d)(2) of IIRIRA explicitly states that for 
carrying out the purposes of the INA, ``any reference in law to an 
order of removal shall be deemed to include a reference to an order of 
exclusion and deportation or an order of deportation.'' Sec. 309(d)(2), 
Public Law 104-208, Div. C, Tit. III, 110 Stat. 3009-627 (8 U.S.C. 1101 
note).
    LSC does not believe that, when Congress passed IIRIRA, it intended 
to bar individuals granted withholding of deportation under prior 
section 243(h) of the INA from continued eligibility for legal services 
from an LSC-funded recipient. Rather, the various provisions in IIRIRA 
consolidating ``deportation'' and ``exclusion'' under the umbrella of 
``removal,'' combined with the deeming provision in section 309(d)(2), 
suggest that Congress intended the rights, remedies, and obligations 
attending deportation and exclusion to carry over to removal. 
Consequently, LSC is revising Sec.  1626.5(e) to restore the references 
to individuals who received withholding of deportation under prior INA 
section 243(h).
    2. Comment: The same four commenters recommended that LSC include 
in Sec.  1626.5 ``withholding of removal under the Convention Against 
Torture (CAT)'' and ``deferral of removal under CAT'' as bases for 
eligibility. Their reasons for the recommendation were twofold. First, 
withholding and deferral of removal under the CAT are ``extremely 
similar'' to withholding of deportation or removal under prior section 
243(h) or current section 241(b) of the INA, respectively, because each 
type of withholding is intended to prevent an individual from being 
involuntarily returned to a country where his or her life or freedom 
would be endangered. The second reason was a practical one: individuals 
may not have documentation specifying which type of withholding of 
removal they have received. The commenters stated that the United 
States Citizenship and Immigration Service uses the same code for all 
three types of withholding.
    Response: LSC is sensitive to the fact that individuals who have 
obtained withholding of removal under the CAT may need legal assistance 
in much the same way that individuals who have received withholding of 
deportation under prior section 243(h) of the INA or withholding of 
removal under section 241(b) of the INA do. However, Congress has not 
authorized LSC to extend eligibility to individuals who have obtained 
withholding of removal under the CAT. Because LSC has neither the 
authority nor the discretion to extend eligibility for LSC-funded legal 
assistance to these individuals, LSC will retain the text from the 
proposed rule.
    LSC is making a technical amendment to Sec.  1626.5(c). The first 
sentence of the section states that an alien who has been granted 
asylum by the Attorney General under Section 208 of the INA is eligible 
for assistance. LSC will insert the phrase ``or the Secretary of DHS'' 
to reflect the fact that Section 208 of the INA, 8 U.S.C. 1158, has 
been amended to give the Secretary of DHS the authority to grant 
asylum, in addition to the Attorney General. Sec. 101(a)(1), (2), 
Public Law 109-13; 119 Stat. 231, 302 (8 U.S.C. 1158).
1626.6 Verification of Citizenship
    LSC received no comments on the proposed changes to this section.
1626.7 Verification of Eligible Alien Status
    LSC received comments on the proposal to remove the appendix to 
part 1626 and publish the contents as a program letter or equivalent 
document, which will be discussed in the section on the appendix. LSC 
received no comments on the other proposed changes to this section.
1626.8 Emergencies
    LSC received no comments on the proposed changes to this section.
1626.9 Change in Circumstances
    LSC made no changes to this section.
1626.10 Special Eligibility Questions
    LSC made no changes to this section.
1626.11 H-2 Agricultural and Forestry Workers
    Comment: LSC received two comments in response to the proposed 
revisions to Sec.  1626.11. LSC proposed to amend Sec.  1626.11 to add 
H-2B forestry workers as a new category of aliens eligible for legal 
assistance from LSC-funded recipients, consistent with the FY 2008 LSC 
appropriation act's amendment to section 504(a)(11)(E) of the FY 1996 
LSC appropriation act. Both comments supported the amendment, stating 
that the ability to represent H-2A agricultural and H-2B forestry 
workers enables recipients to engage more fully in investigating and 
enforcing labor laws, particularly wage and conditions laws. One 
commenter

[[Page 21871]]

recommended that Congress should act to expand eligibility for LSC-
funded legal assistance to ``all low-income workers, regardless of 
their immigration status.''
    Response: LSC appreciates the comments in support of the revisions 
to Sec.  1626.11. LSC is making technical amendments to paragraphs (a) 
and (b) in the final rule. The original version of Sec.  1626.11 stated 
that agricultural workers ``admitted under the provisions of 8 U.S.C. 
1101(a)(15)(h)(ii)'' were eligible for legal assistance related to 
certain issues arising under the workers' employment contracts. 53 FR 
40194, 40196, Oct. 19, 1988 (NPRM); 54 FR 18109, 18112, Apr. 27, 1989 
(final rule). This language omitted the full relevant text of the 
statute that made nonimmigrant workers ``admitted to or permitted to 
remain in the United States under'' 8 U.S.C. 1101(a)(15)(h)(ii)(A) 
eligible for legal services. Sec. 305, Public Law 99-603, 100 Stat. 
3359, 3434. Congress used the same ``admitted to, or permitted to 
remain in'' language when it expanded eligibility to H-2B forestry 
workers. Sec. 540, Public Law 110-161, Div. B, Title V, 121 Stat. 1844, 
1924. This same omission was made in the NPRM for this rule. 78 FR 
51696, 51704, Aug. 21, 2013. The omission of this language was an 
oversight and LSC is amending paragraphs (a) and (b) to include it.
Proposed Appendix to Part 1626--Examples of Documents and Other 
Information Establishing Alien Eligibility for Representation by LSC 
Programs
    1. Comment: LSC received seven comments in response to the proposal 
to remove the appendix to part 1626 and instead publish the list of 
documents establishing alien eligibility as program letters or 
equivalent policy documents. Six commenters supported the proposal, and 
one commenter objected. The six commenters supporting the proposal 
agreed with LSC's assessment that the frequently changing nature of 
immigration documents and forms requires a more flexible means of 
disseminating up-to-date information to LSC recipients than the 
rulemaking procedure allows. One of the comments in support, however, 
recommended that LSC publish the initial program letter for public 
comment and establish a comment and feedback procedure for issuance of 
subsequent program letters.
    The desire for notice and comment was reflected in the one comment 
opposing the proposal. The commenter opposing the removal of the 
appendix asserted that experienced immigration practitioners are often 
in the best position to understand fully the types of documentation 
that can adequately demonstrate an eligible alien status. The commenter 
stated that because rulemaking is the only way to ensure an opportunity 
for public comment and obtaining public comment is consistent with 
LSC's policy of engaging in open dialogue with its stakeholders, LSC 
should continue publishing the list of documentary evidence as the 
appendix to part 1626.
    2. Comment: In response to the FNPRM, LSC received one comment 
asserting that the program letter constitutes guidelines or 
instructions that require notice and an opportunity for comment under 
section 1008(e) of the LSC Act, 42 U.S.C. 2996g(e).
    Response: LSC agreed that practitioner input is essential to 
ensuring that the list of documents and other evidence of alien 
eligibility is complete, accurate, and useful. LSC did not agree that 
the program letter constitutes guidance or instructions requiring 
notice and public comment. As stated in the preamble to the NPRM, LSC 
is publishing the initial program letter replacing the appendix to part 
1626 under the LSC Rulemaking Protocol. The Rulemaking Protocol 
requires the Corporation to provide a comment period of at least thirty 
days for any regulatory changes that occur through notice and comment 
rulemaking. 67 FR 69762, 69764, Nov. 19, 2002. LSC does not intend 
removal of the list of documents from the regulation to limit the 
ability of recipients to provide input into future versions of the 
list.
    The program letter replacing the appendix to part 1626 was 
published for public comment on March 7, 2014. 79 FR 13017, Mar. 7, 
2014. The comment period closed on April 7, 2014.

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 revises 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 agricultural and forestry workers.
1626.12 Recipient policies, procedures, and recordkeeping.

    Authority:  42 U.S.C. 2996g(e).


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.

    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''); 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; the 
Victims of Trafficking and Violence Protection Act of 2000, Public Law 
106-386, 114 Stat. 1464 (``TVPA''), as amended; and Section 
101(a)(15)(T) of the Immigration and Nationality Act (``INA''), 8 
U.S.C. 1101(a)(15)(T).
    Battered or subjected to extreme cruelty includes, but is 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.
    Certification means the certification prescribed in 22 U.S.C. 
7105(b)(1)(E).
    Citizen means 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.

[[Page 21872]]

    Eligible alien means a person who is not a citizen but who meets 
the requirements of Sec.  1626.4 or Sec.  1626.5.
    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.
    On behalf of an ineligible alien means 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.
    Qualifies for immigration relief under section 101(a)(15)(U) of the 
INA means:
    (1) A person who has been granted relief under that section;
    (2) A person who has applied for relief under that section and who 
the recipient determines has evidentiary support for such application; 
or
    (3) A person who has not filed for relief under that section, but 
who the recipient determines has evidentiary support for filing for 
such relief.
    (4) A person who qualifies for immigration relief under section 
101(a)(15)(U) of the INA includes any person who may apply for primary 
U visa relief under subsection (i) of section 101(a)(15)(U) of the INA 
(8 U.S.C. 1101(a)(15)(U)(i)) 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)(ii)). 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.
    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.
    Victim of severe forms of trafficking means any person described at 
22 U.S.C. 7105(b)(1)(C).
    Victim of sexual assault or trafficking means:
    (1) A victim of sexual assault subjected to any conduct included in 
the definition of sexual assault in VAWA, 42 U.S.C. 13925(a)(29); or
    (2) A victim of trafficking subjected to any conduct included in 
the definition of ``trafficking'' under law, including, but not limited 
to, local, state, and federal law, and T visa holders regardless of 
certification from the U.S. Department of Health and Human Services 
(HHS).
    United States, for purposes of this part, has the same meaning 
given that term in section 101(a)(38) of the INA (8 U.S.C. 
1101(a)(38)).


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 immigration 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)(i) A recipient may provide legal assistance, including but not 
limited to related legal assistance, to:
    (A) An alien who is a victim of severe forms of trafficking of 
persons in the United States; or
    (B) 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).
    (ii) For purposes of this part, aliens described in paragraphs 
(a)(2)(i)(A) and (a)(2)(i)(B) of this section include individuals 
seeking certification as victims of severe forms of trafficking and 
certain family members applying for immigration relief under section 
101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii)).
    (b) (1) Related legal assistance means legal assistance directly 
related:
    (i) To the prevention of, or obtaining relief from, the battery, 
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)); or
    (iii) To an application for relief:
    (A) Under section 101(a)(15)(U) of the INA (8 U.S.C. 
1101(a)(15)(U)); or
    (B) Under section 101(a)(15)(T) of the 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) Relationship to the United States. An alien must satisfy both 
paragraph (c)(1) and either paragraph (c)(2)(i) or (ii) of this section 
to be eligible for legal assistance under this part.
    (1) Relation of activity to the United States. An alien is eligible 
under this section if the activity giving rise to eligibility violated 
a law of the United States, regardless of where the activity occurred, 
or occurred in the United States (including in Indian country and 
military installations) or the territories and possessions of the 
United States.
    (2) Relationship of alien to the United States. (i) An alien 
defined in Sec.  1626.2(b), (h), or (k)(1) need not be present in the 
United States to be eligible for assistance under this section.
    (ii) An alien defined in Sec.  1626.2(j) or (k)(2) must be present 
in the United States to be eligible for assistance under this section.
    (d) Evidentiary support--(1) Intake and subsequent evaluation. A 
recipient may determine that an alien is qualified for assistance under 
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. 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.
    (2) Documentary evidence. 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.
    (3) Victims of severe forms of trafficking. Victims of severe forms 
of trafficking may present any of the forms of evidence listed in 
paragraph (d)(2) of this section or any of the following:

[[Page 21873]]

    (i) A certification letter issued by the Department of Health and 
Human Services (HHS).
    (ii) Verification that the alien has been certified by calling the 
HHS trafficking verification line, (202) 401-5510 or (866) 401-5510.
    (iii) An interim eligibility letter issued by HHS, if the alien was 
subjected to severe forms of trafficking while under the age of 18.
    (iv) An eligibility letter issued by HHS, if the alien was 
subjected to severe forms of trafficking while under the age of 18.
    (e) Recordkeeping. Recipients are not required by Sec.  1626.12 to 
maintain records regarding the immigration status of clients 
represented pursuant to this section. If a recipient relies on an 
immigration document for the eligibility determination, the recipient 
shall document that the client presented an immigration document by 
making a note in the client's file stating that a staff member has seen 
the document, the type of document, the client's alien registration 
number (``A number''), the date of the document, and the date of the 
review, and containing the signature of the staff member that reviewed 
the document.
    (f) Changes in basis for eligibility. If, during the course of 
representing an alien eligible pursuant to Sec.  1626.4(a)(1), a 
recipient determines that the alien is also eligible under Sec.  
1626.4(a)(2) or Sec.  1626.5, the recipient should treat the alien as 
eligible under that section 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 101(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 or the Secretary of DHS 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 deportation or 
exclusion under section 243(h) of the INA (8 U.S.C. 1253(h), as in 
effect on April 16, 1996) or 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;
    (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 DHS, 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 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. Sec.  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, 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.

[[Page 21874]]

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 101(a)(20) of the INA (8 U.S.C. 
1101(a)(20)), 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 to, or permitted to 
remain in, the United States under the provisions of section 
101(a)(15)(h)(ii)(a) of the INA (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 to, or permitted to 
remain in, the United States under the provisions of section 
101(a)(15)(h)(ii)(b) of the INA (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: April 14, 2014.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2014-08833 Filed 4-17-14; 8:45 am]
BILLING CODE 7050-01-P