INS Final Rule on Permanent Residence for Soviet Scientists
[Rules and Regulations]
[Page 6707-6708]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 204
[INS No. 1602-92]
Classification of Certain Scientists of the Commonwealth of Independent States of the Former Soviet Union and the Baltic States as Employment-Based Immigrants
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule adopts, without change, an interim rule published in the Federal Register by the Immigration and Naturalization Service (``the Service'') on October 19, 1995, that allows certain scientists and engineers from the former Soviet Union to apply for permanent residence under the Soviet Scientist Act of 1992. This is necessary to clearly identify those scientists who qualify for permanent resident status under the Soviet Scientists Immigration Act of 1992.
EFFECTIVE DATE: February 13, 1997.
FOR FURTHER INFORMATION CONTACT: Michael W. Straus, Adjudications Officer, Immigration and Naturalization Service, Room 3214, 425 I Street NW., Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
The Soviet Scientists Immigration Act of 1992 (SSIA), Public Law 102-509, dated October 24, 1992, provides that up to 750 immigrant visas may be allotted under section 203(b)(2)(A) of the Immigration and Nationality Act (Act) to eligible scientists of the independent states of the former Soviet Union and the Baltic states, by virtue of their expertise in nuclear, chemical, biological, or other high- technology fields or their current work on nuclear, chemical, biological, or other high-technology defense projects. The provisions of the SSIA terminated on October 24, 1996.
On October 19, 1995, at 60 FR 54027-30, the Service published an interim rule with request for comments in the Federal Register. The October 19, 1995, interim rule revised a previous interim rule published on May 27, 1993, at 58 FR 30699-701, on the ground that revisions in the previous interim rule were necessary to improve the visa petition process, and responded to written comments submitted in response to the May 27, 1993, interim rule. Interested persons were invited to submit written comments on or before December 18, 1995 to the October 19, 1995, interim rule. The Service received one comment.
Comments
The following discussion summarizes the issues which have been raised relating to the interim rule and provides the Service's position on the issues.
Termination
The interim rule provides that the Service must approve an SSIA petition on or before October 24, 1996, or when the Service has approved a total of 750 petitions on behalf of eligible scientists, whichever date is earlier. See 8 CFR 204.10(a). The commenter contended that the Service's requirement that a visa petition filed under the SSIA be approved on or before October 24, 1996, would result in inequities due to the difference in processing times among the service centers. The SSIA, however, states that the Attorney General's authority to designate a class of eligible scientists from the former Soviet Union for purposes of section 203(b)(2)(A) of the Act terminates 4 years after the enactment date of the SSIA. The Service, therefore, has no authority to approve an SSIA petition after October 24, 1996.
Jurisdiction
The 1995 interim rule states that SSIA applicants must file the petition at a service center. The commenter objected, arguing that such a procedure could delay the petitioner's ability to obtain employment authorization and adjustment of status. The commenter suggested that, after a combined filing of an I-40 petition (for SSIA classification) and an I-485 application for adjustment of status at a local office, the I-140 petition could be forwarded to a service center for adjudication. The commenter contended that this would allow SSIA applicants to apply immediately for employment authorization and, thus, attract more qualified scientists from the former Soviet Union.
As noted in the interim rule, the Service has determined that centralizing the adjudication of SSIA petitions at service centers would enhance coordination with other government agencies in adjudicating these petitions. In addition, centralized adjudication makes sense in light of the expertise developed by the service centers in adjudicating these types of petitions. The Service believes that the SSIA has already created a sufficiently powerful inducement for qualified scientists to immigrate to the United States by waiving the job offer, labor certification, and minimum eligibility requirements under section 203(b)(2) of the Act. The fact that, under the interim rule, SSIA applicants who are present in the United States must have an approved SSIA petition before becoming eligible to apply for adjustment of status, and thus, for employment authorization under 8 CFR 274.a.12(c)(9), has little, if any, impact on the basic attractiveness of the SSIA to qualified scientists. Moreover, the provision requiring adjudication of SSIA petitions at service centers would have no effect on SSIA petitioners who are not present in the United States. Accordingly, no change will be made in the final rule.
Definition of Eligible Scientist
The interim rule amended the definition of eligible scientists and engineers to include those scientists or engineers who have expertise in a high technology field which is clearly applicable to the design, development, and production of ballistic missiles, nuclear, biological, chemical, or other high-technology weapons of mass destruction. See 8 CFR 204.10(d). The previous rule defined eligible scientist or engineers as those who have expertise in nuclear, chemical, biological, or other high technology fields. The commenter argued that the
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insertion of the term ``weapons of mass destruction'' in place of the term ``defense projects'' used in the statute limits the SSIA applicant's work experience to a specific type of weaponry not enumerated in the statute and is, therefore, ultra vires. The commenter further contended that the statute states that either expertise or experience with military-related projects in the former Soviet Union qualify a scientist or engineer for SSIA benefits.
Section 2(3)(B) of the SSIA, in part, defines eligible scientists as scientists or engineers who have expertise in nuclear, chemical, biological, or other high technology fields or who are working on nuclear, chemical, biological, or other high-technology defense projects, or are working on nuclear, chemical, biological, or other high-technology defense projects, as defined by the Attorney General. In the interim rule, the Service, employing the Attorney General's express authority to define eligible scientists, modified the definition to reflect that the expertise need not be related to a specific defense project if the expertise was in a field which could be applied to the development of weapons of mass destruction. As discussed in the preamble to the interim rule, this modification was necessary to clarify Congress' intent to include in the SSIA those scientists who ``have specialized in weapons of mass destruction.'' See 60 FR 54028, citing 138 Cong. Rec. S1249 (daily ed. Feb. 6, 1992). Accordingly, the Service will not change the definition of eligible scientists.
The commenter also criticized the Service from requiring any letters from United States Government agencies be from the head of the agency or a duly appointed designee. See 8 CFR 204.10(e)(2)(ii). The commenter argued that this provision narrows the pool of experts available to an applicant and makes it more difficult to obtain a letter from a Government agency. As noted in the interim rule, this provision was necessary to enhance the reliability of endorsements issued by Government agencies. See 60 FR 54029. This provision, however, still allows SSIA petitioners, as an alternative to obtaining a letter from a U.S. Government agency, to submit two letters from nationally or internationally recognized experts to satisfy this evidentiary requirement.
The interim rule requires a SSIA petitioner to submit corroborative evidence of claimed expertise including the official labor book, any significant awards or publications and other comparable evidence or an explanation of why such evidence cannot be obtained. See 8 CFR 204.10(e)(2)(iii). The commenter contended that the requirement that the petitioner submit proof of any significant awards or publications is superfluous, since the petitioner must submit his or her official labor book or Trudavaya Knizhka, which records most such awards. The purpose of this regulatory provision is merely to make it clear that, if an applicant has awards noted in his or her official labor book and wishes to have the Service consider such awards as evidence of the alien's qualifications, the applicant should provide separate proof of receipt of such an award unless it is unavailable. Accordingly, no changes have been made in response to this comment.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Commissioner of the Immigration and Naturalization Service certifies that this rule will not, if promulgated, have a significant adverse economic impact on a substantial number of small entities. This rule merely adopts interim regulations concerning the immigration of up to 750 scientists from the former Soviet Union as final. It will not significantly change the number of persons who immigrate to the United States. Any impact on small business entities will be, at most, indirect and attenuated.
Executive Order 12866
This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined in section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Executive Order 12612
This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Accordingly, the interim rule amending 8 CFR part 204, which was published in the Federal Register at 60 FR 54027- 54030 on October 19, 1995, is adopted as a final rule without change.
Dated: February 4, 1997.Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-3589 Filed 2-12-97; 8:45 am]
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