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  • News: Final Rule on Legal Services Corporation Regulation on Legal Assistance to Aliens

    [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
    
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    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
    
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    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
    
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    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
    
    
    
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