45 C.F.R. PART 1626—RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS
Title 45 - Public Welfare
Authority: Pub. L. 104–208, 110 Stat. 1321; Pub. L. 104–134, 110 Stat. 3009.
Source: 62 FR 19414, Apr. 21, 1997, unless otherwise noted.
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. (a) Citizen includes persons described or defined as citizens or nationals of the United States in 8 U.S.C. 1101(a)(22) and Title III of the Immigration and Nationality Act (INA), Chapter 1 (8 U.S.C. 1401 et seq.) (citizens by birth) and Chapter 2 (8 U.S.C. 1421 et seq.) (citizens by naturalization) or antecedent citizen statutes. (b) Eligible alien means a person who is not a citizen but who meets the requirements of §1626.5. (c) Ineligible alien means a person who is not a citizen and who does not meet the requirements of §1626.5. (d) Rejected refers to an application for adjustment of status that has been denied by the Immigration and Naturalization Service (INS) and is not subject to further administrative appeal. (e) To provide legal assistance on behalf of an ineligible alien is to render legal assistance to an eligible client which benefits an ineligible alien and does not affect a specific legal right or interest of the eligible client. (f) 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 shall 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. (g) Legal assistance directly related to the prevention of, or obtaining relief from, the battery or cruelty means any legal assistance that will assist victims of abuse in their escape from the abusive situation, ameliorate the current effects of the abuse, or protect against future abuse. (h) United States, for purposes of this part, has the same meaning given that term in 8 U.S.C. 1101(a)(38) of the INA. [62 FR 19414, Apr. 21, 1997, as amended at 62 FR 45757, Aug. 29, 1997] Except as provided in §1626.4, 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. (a) Except for §1626.12, the requirements of this part do not apply to the use of non-LSC funds by a recipient to provide legal assistance to an alien: (1) Who has been battered or subjected to extreme cruelty in the United States by a spouse or a parent, or by a member of the spouse's or parent's family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty; or (2) Whose child has been battered or subjected to extreme cruelty in the United States by a spouse or parent of the alien (without the active participation of the alien in the battery or extreme cruelty), or by a member of the spouse's or parent's family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, and the alien did not actively participate in such battery or cruelty; provided that the legal assistance is directly related to the prevention of, or obtaining relief from, the battery or cruelty. (b) Recipients are not required by §1626.12 to maintain records regarding the immigration status of clients represented pursuant to paragraph (a) of this section. Subject to all other eligibility requirements and restrictions of the LSC Act and regulations and other applicable law, a recipient may provide legal assistance to an alien who is present in the United States and who is within one of the following categories: (a) An alien lawfully admitted for permanent residence as an immigrant as defined by section 1101(a)(20) of the INA (8 U.S.C. 1101(a)(20)); (b) An alien who is either married to a United States citizen or is a parent or an unmarried child under the age of 21 of such a citizen and who has filed an application for adjustment of status to permanent resident under the INA, and such application has not been rejected; (c) An alien who is lawfully present in the United States pursuant to an admission under section 207 of the INA (8 U.S.C. 1157) (relating to refugee admissions) or who has been granted asylum by the Attorney General under section 208 of the INA (8 U.S.C. 1158). (d) An alien who is lawfully present in the United States as a result of being granted conditional entry pursuant to section 203(a)(7) of the INA (8 U.S.C. 1153(a)(7), as in effect on March 31, 1980) before April 1, 1980, because of persecution or fear of persecution on account of race, religion, or political opinion or because of being uprooted by catastrophic natural calamity; (e) An alien who is lawfully present in the United States as a result of the Attorney General's withholding of deportation pursuant to section 243(h) of the INA (8 U.S.C. 1253(h)); or (f) An alien who meets the requirements of §1626.10 or 1626.11. (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 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 INS, by a court or by another governmental agency, that provides evidence of citizenship. (3) If a person is unable to produce any of the above documents, the person may submit a notarized statement signed by a third party, who shall not be an employee of the recipient and who can produce proof of that party's own United States citizenship, that the person seeking legal assistance is a United States citizen. (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 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 of the documents found in the appendix to this part. (2) A recipient may also accept any other authoritative document issued by the INS, 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 list of the documents in the appendix to this part. In an emergency, legal services may be provided prior to compliance with §§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. 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. (a) 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. (b) All Canadian-born American Indians at least 50% Indian by blood are eligible to receive legal assistance provided they are otherwise eligible under the Act. (c) Members of the Texas Band of Kickapoo are eligible to receive legal assistance provided they are otherwise eligible under the Act. (d) An alien who qualified as a special agricultural worker and whose status is adjusted to that of temporary resident alien under the provisions of the Immigration Reform and Control Act (“IRCA”) is considered a permanent resident alien for all purposes except immigration under the provisions of section 302 of 100 Stat. 3422, 8 U.S.C. 1160(g). Since the status of these aliens is that of permanent resident alien under section 1101(a)(20) of Title 8, these workers may be provided legal assistance. These workers are ineligible for legal assistance in order to obtain the adjustment of status of temporary resident under IRCA, but are eligible for legal assistance after the application for adjustment of status to that of temporary resident has been filed, and the application has not been rejected. (e) A recipient may provide legal assistance to indigent foreign nationals who seek assistance pursuant to the Hague Convention on the Civil Aspects of International Child abduction and the Federal implementing statute, the International Child Abduction Remedies Act, 42 U.S.C. 11607(b), provided that they are otherwise financially eligible. [62 FR 19414, Apr. 21, 1997; 62 FR 22895, Apr. 28, 1997] (a) Nonimmigrant agricultural workers admitted under the provisions of 8 U.S.C. 1101(a)(15)(h)(ii), commonly called H–2 workers, may be provided legal assistance regarding the matters specified in paragraph (b) of this section. (b) 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. 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. [62 FR 19414, Apr. 21, 1997; 62 FR 22895, Apr. 28, 1997] [68 FR 55540, Sept. 26, 2003]
Title 45: Public Welfare
PART 1626—RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS
Section Contents
§ 1626.1 Purpose.
§ 1626.2 Definitions.
§ 1626.3 Prohibition.
§ 1626.4 Applicability.
§ 1626.5 Alien status and eligibility.
§ 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 workers.
§ 1626.12 Recipient policies, procedures and recordkeeping.
Appendix to Part 1626—Alien Eligibility for Representation by LSC Programs
§ 1626.1 Purpose.
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§ 1626.2 Definitions.
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§ 1626.3 Prohibition.
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§ 1626.4 Applicability.
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§ 1626.5 Alien status and eligibility.
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§ 1626.6 Verification of citizenship.
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§ 1626.7 Verification of eligible alien status.
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§ 1626.8 Emergencies.
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§ 1626.9 Change in circumstances.
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§ 1626.10 Special eligibility questions.
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§ 1626.11 H–2 agricultural workers.
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§ 1626.12 Recipient policies, procedures and recordkeeping.
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Appendix to Part 1626—Alien Eligibility for Representation by LSC Programs
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Alien Eligibility for Representation by LSC Programs---------------------------------------------------------------------------------------------------------------- LSC regs; 45 CFR Examples of acceptable Alien category Immigration Act (INA) § 1626 documents----------------------------------------------------------------------------------------------------------------LAWFUL PERMANENT RESIDENT.......... INA § 101(a)(20); § 1626.5(a)...... I-551 or I-151 8 USC § or I-181 (Memorandum of 1101(a)(20). Creation of Record of Lawful Permanent Residence), with approval stamp; or passport bearing immigrant visa or stamp indicating admission for lawful permanent residence; or order granting registry, suspension of deportation, cancellation of removal, or adjustment of status from the INS, an immigration judge, the BIA, or a federal court; or I-327 Reentry Permit; or I-94 with stamp indicating admission for lawful permanent residence; or any verification from INS or other authoritative document.ALIEN WHO IS _married to U.S. INA §§ 208, § 1626.5(b)...... Proof of relationship to citizen, or. 210, 244 (replaced by U.S. citizen* and proof of_parent of U.S. citizen, or_....... INA § 240A(b) filing:**unmarried child under 21 of U.S. for aliens in I-485 (application for citizen. proceedings initiated adjustment of status basedand................................ on or after 4/1/97), on family-based visa,_has filed an application for 245, 245A, 249; 8 USC registry, or various adjustment of status to permanent §§ 1158, special adjustment laws) residency. 1160, 1254 (replaced or I-256A or EOIR-40 by 1229b(b) for (application for aliens in proceedings suspension of deportation) initiated on or after or EOIR-42 (application for 4/1/97), 1255, 1255a, cancellation of removal) 1259. or I-817 (application for Family Unity) or I-881 (application for NACARA suspension or special rule cancellation and adjustment) or OF-230 (application at consulate for visa) or I-129F (Petition for Alien Fiancé(e) (for spouses and children of USCs applying for K- status) or I-130 (family-based immigrant visa petition) or I-360 (self-petition for widow(er) or abused spouse or child) or I-539 indicating application for V status or I-589 (application for asylum) or I-698 (application to adjust from temporary to permanent residence) or I-730 (refugee/asylee relative petition) or any verification from INS or other authoritative document. *Proof of relationship may include: copy of marriage certificate accompanied by proof of spouse's U.S. citizenship; copy of birth certificate, religious archival document such as baptismal certificate, adoption decree or other documents demonstrating parentage of a U.S. citizen; copy of birth certificate, baptismal certificate, adoption decree, or other documents demonstrating alien is a child under age 21, accompanied by proof parent is a U.S. citizen; or in lieu of the above, a copy of INS Form I-130 (visa petition) or I-360 (self-petition) containing information demonstrating alien is related to such a U.S. citizen, accompanied by proof of filing. **Proof of filing may include a fee receipt or cancelled check showing that the application was filed with the INS or the immigration court; a filing stamp showing that the application was filed; or a copy of the application accompanied by a declaration or attestation signed by the immigrant, or the immigrant's attorney or legal representative for the application, that such form was filed. Proof of filing is also established by: a letter or Form I-797 from INS or the immigration court acknowledging receipt of or approval of one of the above-listed forms; or Form I-94 (arrival/ departure record) or I-512 (advance parole) indicating entry to pursue an above-listed application; or I-688B or I-766 (employment authorization document) coded 8 CFR § 274a. 12(c)(9) (applicant for adjustment), (c)(10) (applicant for suspension or cancellation, (c)(16) (applicant for registry), (c)(21) (S-visa principal or dependent), (c)(20) or (22) (legalization applicant), (c)(24) (LIFE Act legalization applicant), (a)(9) (K- status), (a)(13)(Family Unity), (a)(14) (LIFE Act Family Unity), (a)(15) (V- status), (a)(16) or (c)(25) (T-status) or (c)(8) (asylum applicant).REFUGEE............................ INA § 207, 8 USC § 1626.5(c)...... I-94 or passport stamped § 1157. ``refugee'' or ``§ 207'' or I-688B or I-766 coded 8 CFR § 274a.12(a)(3)(refugee) or § 274a. 12(a)(4)(paroled as refugee) or I-571 refugee travel document or any verification from INS or other authoritative document.ASYLEE............................. INA § 208, 8 USC § 1626.5(c)...... I-94 or passport stamped § 1158. ``asylee'' or ``§ 208'' or an order granting asylum from INS, immigrantion judge, BIA, or federal court or I-571 refugee travel document or I-688B coded 8 CFR § 274a. 12(a)(5)(asylee) or any verification from INS or other authoritative document.GRANTED WITHHOLDING OR DEFERRAL OF INA § 241(b)(3) § 1626.5(e)...... I-94 stamped ``§ DEPORTATION OR REMOVAL. or former INA § 243(h)'' or ``241(b)(3)'' 243(h), 8 USC § or an order granting 1251(b)(3) or former withholding or deferral of 8 USC § 1253(H). deportation or removal from INS, immigration judge, BIA, or federal court Also acceptable I-688B coded 8 CFR § 274a.12(a)(10)(granted withholding of deportation or removal) or any verification from INS or other authoritative document.CONDITIONAL ENTRANT................ INA § 203(a)(7), § 1626.5(d)...... I-94 or passport stamped 8 USC § ``conditional entrant'' 1153(a)(7). or any verification from INS or other authoritative document.H-2A AGRICULTURAL WORKER........... INA § 101 § 1626,11........ I-94 or passport stamped (a)(15)(H)(ii); 8 USC ``H-2'' § 1101 or any verification from (a)(15)(ii). INS or other authoritative document.SPECIAL AGRICULTURAL WORKER INA § 210 8 USC § 1626.10(d)..... I-688, 688A, 688B, or 766 TEMPORARY RESIDENT. § 1160. indicating issuance under § 210 (or under 8 CFR § 274a. 12(a)(2), with other evidence indicating eligibility under INA § 210) or any verification from INS or other authoritative document.----------------------------------------------------------------------------------------------------------------
