[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]


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LEGAL SERVICES CORPORATION

45 CFR Part 1626


Restrictions on Legal Assistance to Aliens

AGENCY: Legal Services Corporation

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION:

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

LSC's current appropriation restrictions, including those governing
the assistance that may be provided to aliens, were enacted in 1996 and
have been reincorporated annually with amendments. Section 504(a)(11)
of the FY 1996 LSC appropriation prohibits the Corporation from
providing funds to any person or entity (recipient) that provides legal
assistance to aliens other than those covered by statutory exceptions.
Sec. 504(a)(11), Public Law 104-134, Title V, 110 Stat. 1321, 1321-54.
In subsequent years, Congress expanded eligibility to discrete

[[Page 21862]]

categories of aliens. In 1997, Congress passed the Kennedy Amendment,
which allowed LSC recipients to use non-LSC funds to provide related
legal assistance to aliens who were battered or subjected to extreme
cruelty in the United States by family members. Sec. 502(a)(2)(C),
Public Law 104-208, Div. A, Title V, 110 Stat. 3009, 3009-60. Congress
limited the type of assistance that recipients could provide to ``legal
assistance directly related to the prevention of, or obtaining relief
from, the battery or cruelty described in'' regulations issued pursuant
to VAWA (hereinafter ``related assistance''). Sec. 502(b)(2), Public
Law 104-208, Div. A, Title V, 110 Stat. 3009-60. Congress renewed the
Kennedy Amendment in the FY 1998 reincorporation and modification of
the LSC appropriation restrictions. Sec. 502(a)(2)(C), Public Law 105-
119, Title V, 111 Stat. 2440, 2511. Thereafter, LSC's annual
appropriation has incorporated the FY 1998 restrictions by reference.
See, e.g., Public Law 113-6, Div. B, Title IV, 127 Stat. 198, 268 (LSC
FY 2013 appropriation).
The next expansions of eligibility came through the passage of the
Victims of Trafficking and Violence Protection Act of 2000 (TVPA) and
its progeny. Public Law 106-386, 114 Stat. 1464 (22 U.S.C. 7101 note).
Through the TVPA, Congress directed the Board of Directors of LSC,
along with Federal benefits granting agencies, to ``expand benefits and
services to victims of severe forms of trafficking in persons in the
United States, without regard to the immigration status of such
victims.'' Sec. 107(b)(1)(B), Public Law 106-386, 114 Stat. 1475 (22
U.S.C. 7105(b)(1)(B)). Congress passed the Trafficking Victims
Protection Reauthorization Act (TVPRA) in 2003, which made certain
family members of victims of severe forms of trafficking (``derivative
T visa holders'') eligible to receive legal services from LSC-funded
recipients. Sec. 4(a)(2)(B)(i), Public Law 108-193, 117 Stat. 2875,
2877 (22 U.S.C. 7105(b)(1)(B)).
In January of 2006, Congress passed the Violence Against Women and
Department of Justice Reauthorization Act of 2005 (VAWA 2005). VAWA
2005 further amended section 502(a)(2)(C) of the FY 1998 LSC
appropriation to expand the categories of aliens to whom recipients may
provide related assistance by adding aliens who (1) are victims of
sexual assault or trafficking in the United States; or (2) qualify for
U visas under section 101(a)(15)(U) of the Immigration and Nationality
Act (INA). Sec. 104, Public Law 109-162, 119 Stat. 2960, 2978. The U
visa provision of the INA allows aliens who are victims of one or more
of the crimes listed therein and who may assist in law enforcement
investigations or prosecutions related to such crimes, or who are
family members of such victims, to remain in the United States for a
limited period. 8 U.S.C. 1101(a)(15)(U). Additionally, VAWA 2005
removed the Kennedy Amendment's restriction on the use of LSC funds to
provide representation to aliens who are eligible for services under
VAWA 2005. Sec. 104(a)(1)(A), Public Law 109-162, 119 Stat. 2979-80.
The amended text of section 502 is not codified, but the pertinent
portion is available at http://www.lsc.gov/about/lsc-act-other-laws/violence-against-women-act-public-law-109-162-2006.
The final expansion of eligibility occurred in 2007. The FY 2008
LSC appropriation amended section 504(a)(11) of the FY 1996 LSC
appropriation to extend eligibility for assistance to forestry workers
admitted to the United States under the H-2B temporary worker provision
in section 101(a)(15)(H)(ii)(b) of the INA. Sec. 540, Public Law 110-
161, Div. B, Title V, 121 Stat. 1844, 1924.
LSC last revised part 1626 in 1997. After the alienage restrictions
were enacted in 1996, LSC adopted an interim rule to implement the
restrictions. 61 FR 45750, Aug. 29, 1996. While this rule was pending
for comment, Congress passed the Kennedy Amendment. LSC subsequently
revised part 1626 to implement the Kennedy Amendment. 62 FR 19409, Apr.
21, 1997, amended by 62 FR 45755, Aug. 29, 1997. In 2003, LSC added a
list of documents establishing the eligibility of aliens for legal
assistance from LSC grant recipients as an appendix to part 1626. 68 FR
55540, Sept. 26, 2003. The appendix has not been changed since 2003.
After 1997, LSC apprised recipients through program letters of
certain statutory changes expanding alien eligibility for legal
assistance provided by LSC-funded recipients. Program Letter 02-5 (May
15, 2002) (TVPA); Program Letter 05-2 (Oct. 6, 2005) (TVPRA; superseded
Program Letter 02-5); Program Letter 06-2 (Feb. 21, 2006) (VAWA 2005).
The final rule will incorporate the policies set forth in Program
Letters 05-2 and 06-2. Both letters will be superseded upon publication
of the final rule and will be removed from the ``Current Program
Letters'' page of LSC's Web site.

II. Procedural Background

As a result of the numerous amendments to the alien eligibility
provisions of the FY 1996 LSC appropriation, the Corporation determined
that rulemaking to update part 1626 was appropriate. On April 14, 2013,
the Operations and Regulations Committee (the Committee) of the LSC
Board of Directors (the Board) recommended that the Board authorize
rulemaking to conform part 1626 to statutory authorizations. On April
16, 2013, the Board authorized the initiation of rulemaking.
Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a
proposed rule amending part 1626 with an explanatory rulemaking options
paper. On July 22, 2013, the Committee recommended that the Board
approve the proposed rule for notice and comment rulemaking. On July
23, 2013, the Board approved the proposed rule for publication in the
Federal Register for notice and comment. LSC published the notice of
proposed rulemaking (the NPRM) in the Federal Register on August 21,
2013. 78 FR 51696, Aug. 21, 2013. The comment period remained open for
sixty days and closed on October 21, 2013.
On January 23, 2014, the Committee considered the draft final rule
for publication. After hearing from staff and stakeholders about
changes to Sec. 1626.4(c) in the final rule and the possible
consequences of those changes, the Committee voted to recommend
delaying final consideration of the rule pending an opportunity for
public comment on those changes. On January 25, 2014, the Board voted
to proceed with a further notice of proposed rulemaking (FNPRM). LSC
published the FNPRM in the Federal Register on February 5, 2014. 79 FR
6859, Feb. 5, 2014. The comment period closed on March 7, 2014.
On April 7, 2014, the Committee considered the draft final rule and
voted to recommend its publication to the Board. On April 8, 2014, the
Board voted to adopt and publish the final rule.
All of the comments and related memos submitted to the LSC Board
regarding this rulemaking are available in the open rulemaking section
of LSC's Web site at http://www.lsc.gov/about/regulations-rules/open-rulemaking. After the effective date of the rule, those materials will
appear in the closed rulemaking section at http://www.lsc.gov/about/regulations-rules/closed-rulemaking.

III. Discussion of Comments and Regulatory Provisions

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

[[Page 21863]]

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

Organizational Note

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

Specific Areas in Which LSC Requested Comments

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

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

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

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

[[Page 21864]]

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

[[Page 21865]]

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

[[Page 21866]]

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

General Comments

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

[[Page 21867]]

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

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

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

[[Page 21868]]

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

[[Page 21869]]

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

[[Page 21870]]

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

[[Page 21871]]

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

List of Subjects in 45 CFR Part 1626

Aliens, Grant programs-law, Legal services, Migrant labor,
Reporting and recordkeeping requirements.

For the reasons discussed in the preamble, the Legal Services
Corporation revises 45 CFR part 1626 to read as follows:

PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS

Sec.
1626.1 Purpose.
1626.2 Definitions.
1626.3 Prohibition.
1626.4 Aliens eligible for assistance under anti-abuse laws.
1626.5 Aliens eligible for assistance based on immigration status.
1626.6 Verification of citizenship.
1626.7 Verification of eligible alien status.
1626.8 Emergencies.
1626.9 Change in circumstances.
1626.10 Special eligibility questions.
1626.11 H-2 agricultural and forestry workers.
1626.12 Recipient policies, procedures, and recordkeeping.

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


Sec. 1626.1 Purpose.

This part is designed to ensure that recipients provide legal
assistance only to citizens of the United States and eligible aliens.
It is also designed to assist recipients in determining the eligibility
and immigration status of persons who seek legal assistance.


Sec. 1626.2 Definitions.

Anti-abuse statutes means the Violence Against Women Act of 1994,
Public Law 103-322, 108 Stat. 1941, as amended, and the Violence
Against Women and Department of Justice Reauthorization Act of 2005,
Public Law 109-162, 119 Stat. 2960 (collectively referred to as
``VAWA''); Section 101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U);
and the incorporation of these statutory provisions in section
502(a)(2)(C) of LSC's FY 1998 appropriation, Public Law 105-119, Title
V, 111 Stat. 2440, 2510 as incorporated by reference thereafter; the
Victims of Trafficking and Violence Protection Act of 2000, Public Law
106-386, 114 Stat. 1464 (``TVPA''), as amended; and Section
101(a)(15)(T) of the Immigration and Nationality Act (``INA''), 8
U.S.C. 1101(a)(15)(T).
Battered or subjected to extreme cruelty includes, but is not
limited to, being the victim of any act or threatened act of violence,
including any forceful detention, which results or threatens to result
in physical or mental injury. Psychological or sexual abuse or
exploitation, including rape, molestation, incest (if the victim is a
minor), or forced prostitution may be considered acts of violence.
Other abusive actions may also be acts of violence under certain
circumstances, including acts that, in and of themselves, may not
initially appear violent but that are a part of an overall pattern of
violence.
Certification means the certification prescribed in 22 U.S.C.
7105(b)(1)(E).
Citizen means a person described or defined as a citizen or
national of the United States in 8 U.S.C. 1101(a)(22) and Title III of
the Immigration and Nationality Act (INA), Chapter 1 (8 U.S.C. 1401 et
seq.) (citizens by birth) and Chapter 2 (8 U.S.C. 1421 et seq.)
(citizens by naturalization) or antecedent citizen statutes.

[[Page 21872]]

Eligible alien means a person who is not a citizen but who meets
the requirements of Sec. 1626.4 or Sec. 1626.5.
Ineligible alien means a person who is not a citizen and who does
not meet the requirements of Sec. 1626.4 or Sec. 1626.5.
On behalf of an ineligible alien means to render legal assistance
to an eligible client that benefits an ineligible alien and does not
affect a specific legal right or interest of the eligible client.
Qualifies for immigration relief under section 101(a)(15)(U) of the
INA means:
(1) A person who has been granted relief under that section;
(2) A person who has applied for relief under that section and who
the recipient determines has evidentiary support for such application;
or
(3) A person who has not filed for relief under that section, but
who the recipient determines has evidentiary support for filing for
such relief.
(4) A person who qualifies for immigration relief under section
101(a)(15)(U) of the INA includes any person who may apply for primary
U visa relief under subsection (i) of section 101(a)(15)(U) of the INA
(8 U.S.C. 1101(a)(15)(U)(i)) or for derivative U visa relief for family
members under subsection (ii) of section 101(a)(15)(U) of the INA (8
U.S.C. 1101(a)(15)(U)(ii)). Recipients may provide assistance for any
person who qualifies for derivative U visa relief regardless of whether
such a person has been subjected to abuse.
Rejected refers to an application for adjustment of status that has
been denied by the Department of Homeland Security (DHS) and is not
subject to further administrative appeal.
Victim of severe forms of trafficking means any person described at
22 U.S.C. 7105(b)(1)(C).
Victim of sexual assault or trafficking means:
(1) A victim of sexual assault subjected to any conduct included in
the definition of sexual assault in VAWA, 42 U.S.C. 13925(a)(29); or
(2) A victim of trafficking subjected to any conduct included in
the definition of ``trafficking'' under law, including, but not limited
to, local, state, and federal law, and T visa holders regardless of
certification from the U.S. Department of Health and Human Services
(HHS).
United States, for purposes of this part, has the same meaning
given that term in section 101(a)(38) of the INA (8 U.S.C.
1101(a)(38)).


Sec. 1626.3 Prohibition.

Recipients may not provide legal assistance for or on behalf of an
ineligible alien. For purposes of this part, legal assistance does not
include normal intake and referral services.


Sec. 1626.4 Aliens eligible for assistance under anti-abuse laws.

(a) Subject to all other eligibility requirements and restrictions
of the LSC Act and regulations and other applicable law:
(1) A recipient may provide related legal assistance to an alien
who is within one of the following categories:
(i) An alien who has been battered or subjected to extreme cruelty,
or is a victim of sexual assault or trafficking in the United States,
or qualifies for immigration relief under section 101(a)(15)(U) of the
INA (8 U.S.C. 1101(a)(15)(U)); or
(ii) An alien whose child, without the active participation of the
alien, has been battered or subjected to extreme cruelty, or has been a
victim of sexual assault or trafficking in the United States, or
qualifies for immigration relief under section 101(a)(15)(U) of the INA
(8 U.S.C. 1101(a)(15)(U)).
(2)(i) A recipient may provide legal assistance, including but not
limited to related legal assistance, to:
(A) An alien who is a victim of severe forms of trafficking of
persons in the United States; or
(B) An alien classified as a non-immigrant under section
101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii), regarding
others related to the victim).
(ii) For purposes of this part, aliens described in paragraphs
(a)(2)(i)(A) and (a)(2)(i)(B) of this section include individuals
seeking certification as victims of severe forms of trafficking and
certain family members applying for immigration relief under section
101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii)).
(b) (1) Related legal assistance means legal assistance directly
related:
(i) To the prevention of, or obtaining relief from, the battery,
cruelty, sexual assault, or trafficking;
(ii) To the prevention of, or obtaining relief from, crimes listed
in section 101(a)(15)(U)(iii) of the INA (8 U.S.C.
1101(a)(15)(U)(iii)); or
(iii) To an application for relief:
(A) Under section 101(a)(15)(U) of the INA (8 U.S.C.
1101(a)(15)(U)); or
(B) Under section 101(a)(15)(T) of the INA (8 U.S.C.
1101(a)(15)(T)).
(2) Such assistance includes representation in matters that will
assist a person eligible for assistance under this part to escape from
the abusive situation, ameliorate the current effects of the abuse, or
protect against future abuse, so long as the recipient can show the
necessary connection of the representation to the abuse. Such
representation may include immigration law matters and domestic or
poverty law matters (such as obtaining civil protective orders,
divorce, paternity, child custody, child and spousal support, housing,
public benefits, employment, abuse and neglect, juvenile proceedings
and contempt actions).
(c) Relationship to the United States. An alien must satisfy both
paragraph (c)(1) and either paragraph (c)(2)(i) or (ii) of this section
to be eligible for legal assistance under this part.
(1) Relation of activity to the United States. An alien is eligible
under this section if the activity giving rise to eligibility violated
a law of the United States, regardless of where the activity occurred,
or occurred in the United States (including in Indian country and
military installations) or the territories and possessions of the
United States.
(2) Relationship of alien to the United States. (i) An alien
defined in Sec. 1626.2(b), (h), or (k)(1) need not be present in the
United States to be eligible for assistance under this section.
(ii) An alien defined in Sec. 1626.2(j) or (k)(2) must be present
in the United States to be eligible for assistance under this section.
(d) Evidentiary support--(1) Intake and subsequent evaluation. A
recipient may determine that an alien is qualified for assistance under
this section if there is evidentiary support that the alien falls into
any of the eligibility categories or if the recipient determines there
will likely be evidentiary support after a reasonable opportunity for
further investigation. If the recipient determines that an alien is
eligible because there will likely be evidentiary support, the
recipient must obtain evidence of support as soon as possible and may
not delay in order to provide continued assistance.
(2) Documentary evidence. Evidentiary support may include, but is
not limited to, affidavits or unsworn written statements made by the
alien; written summaries of statements or interviews of the alien taken
by others, including the recipient; reports and affidavits from police,
judges, and other court officials, medical personnel, school officials,
clergy, social workers, other social service agency personnel; orders
of protection or other legal evidence of steps taken to end abuse;
evidence that a person sought safe haven in a shelter or similar
refuge; photographs; documents; or other evidence of a series of acts
that establish a pattern of qualifying abuse.
(3) Victims of severe forms of trafficking. Victims of severe forms
of trafficking may present any of the forms of evidence listed in
paragraph (d)(2) of this section or any of the following:

[[Page 21873]]

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


Sec. 1626.5 Aliens eligible for assistance based on immigration
status.

Subject to all other eligibility requirements and restrictions of
the LSC Act and regulations and other applicable law, a recipient may
provide legal assistance to an alien who is present in the United
States and who is within one of the following categories:
(a) An alien lawfully admitted for permanent residence as an
immigrant as defined by section 101(a)(20) of the INA (8 U.S.C.
1101(a)(20));
(b) An alien who is either married to a United States citizen or is
a parent or an unmarried child under the age of 21 of such a citizen
and who has filed an application for adjustment of status to permanent
resident under the INA, and such application has not been rejected;
(c) An alien who is lawfully present in the United States pursuant
to an admission under section 207 of the INA (8 U.S.C. 1157) (relating
to refugee admissions) or who has been granted asylum by the Attorney
General or the Secretary of DHS under section 208 of the INA (8 U.S.C.
1158);
(d) An alien who is lawfully present in the United States as a
result of being granted conditional entry pursuant to section 203(a)(7)
of the INA (8 U.S.C. 1153(a)(7), as in effect on March 31, 1980) before
April 1, 1980, because of persecution or fear of persecution on account
of race, religion, or political opinion or because of being uprooted by
catastrophic natural calamity;
(e) An alien who is lawfully present in the United States as a
result of the Attorney General's withholding of deportation or
exclusion under section 243(h) of the INA (8 U.S.C. 1253(h), as in
effect on April 16, 1996) or withholding of removal pursuant to section
241(b)(3) of the INA (8 U.S.C. 1231(b)(3)); or
(f) An alien who meets the requirements of Sec. 1626.10 or Sec.
1626.11.


Sec. 1626.6 Verification of citizenship.

(a) A recipient shall require all applicants for legal assistance
who claim to be citizens to attest in writing in a standard form
provided by the Corporation that they are citizens, unless the only
service provided for a citizen is brief advice and consultation by
telephone, or by other non-in-person means, which does not include
continuous representation.
(b) When a recipient has reason to doubt that an applicant is a
citizen, the recipient shall require verification of citizenship. A
recipient shall not consider factors such as a person's accent, limited
English-speaking ability, appearance, race, or national origin as a
reason to doubt that the person is a citizen.
(1) If verification is required, a recipient may accept originals,
certified copies, or photocopies that appear to be complete, correct,
and authentic of any of the following documents as evidence of
citizenship:
(i) United States passport;
(ii) Birth certificate;
(iii) Naturalization certificate;
(iv) United States Citizenship Identification Card (INS Form 1-197
or I-197); or
(v) Baptismal certificate showing place of birth within the United
States and date of baptism within two months after birth.
(2) A recipient may also accept any other authoritative document,
such as a document issued by DHS, by a court, or by another
governmental agency, that provides evidence of citizenship.
(3) If a person is unable to produce any of the above documents,
the person may submit a notarized statement signed by a third party,
who shall not be an employee of the recipient and who can produce proof
of that party's own United States citizenship, that the person seeking
legal assistance is a United States citizen.


Sec. 1626.7 Verification of eligible alien status.

(a) An alien seeking representation shall submit appropriate
documents to verify eligibility, unless the only service provided for
an eligible alien is brief advice and consultation by telephone, or by
other non-in-person means, which does not include continuous
representation of a client.
(1) As proof of eligibility, a recipient may accept originals,
certified copies, or photocopies that appear to be complete, correct,
and authentic, of any documents establishing eligibility. LSC will
publish a list of examples of such documents from time to time in the
form of a program letter or equivalent.
(2) A recipient may also accept any other authoritative document
issued by DHS, by a court, or by another governmental agency, that
provides evidence of alien status.
(b) A recipient shall upon request furnish each person seeking
legal assistance with a current list of documents establishing
eligibility under this part as is published by LSC.


Sec. 1626.8 Emergencies.

In an emergency, legal services may be provided prior to compliance
with Sec. Sec. 1626.4, 1626.6, and 1626.7 if:
(a) An applicant cannot feasibly come to the recipient's office or
otherwise transmit written documentation to the recipient before
commencement of the representation required by the emergency, and the
applicant provides oral information to establish eligibility which the
recipient records, and the applicant submits the necessary
documentation as soon as possible; or
(b) An applicant is able to come to the recipient's office but
cannot produce the required documentation before commencement of the
representation, and the applicant signs a statement of eligibility and
submits the necessary documentation as soon as possible; and
(c) The recipient informs clients accepted under paragraph (a) or
(b) of this section that only limited emergency legal assistance may be
provided without satisfactory documentation and that, if the client
fails to produce timely and satisfactory written documentation, the
recipient will be required to discontinue representation consistent
with the recipient's professional responsibilities.

[[Page 21874]]

Sec. 1626.9 Change in circumstances.

If, to the knowledge of the recipient, a client who was an eligible
alien becomes ineligible through a change in circumstances, continued
representation is prohibited by this part and a recipient must
discontinue representation consistent with applicable rules of
professional responsibility.


Sec. 1626.10 Special eligibility questions.

(a)(1) This part is not applicable to recipients providing services
in the Commonwealth of the Northern Mariana Islands, the Republic of
Palau, the Federated States of Micronesia, or the Republic of the
Marshall Islands.
(2) All citizens of the Republic of Palau, the Federated States of
Micronesia, and the Republic of the Marshall Islands residing in the
United States are eligible to receive legal assistance provided that
they are otherwise eligible under the Act.
(b) All Canadian-born American Indians at least 50% Indian by blood
are eligible to receive legal assistance provided they are otherwise
eligible under the Act.
(c) Members of the Texas Band of Kickapoo are eligible to receive
legal assistance provided they are otherwise eligible under the Act.
(d) An alien who qualified as a special agricultural worker and
whose status is adjusted to that of temporary resident alien under the
provisions of the Immigration Reform and Control Act (``IRCA'') is
considered a permanent resident alien for all purposes except
immigration under the provisions of section 302 of 100 Stat. 3422, 8
U.S.C. 1160(g). Since the status of these aliens is that of permanent
resident alien under section 101(a)(20) of the INA (8 U.S.C.
1101(a)(20)), these workers may be provided legal assistance. These
workers are ineligible for legal assistance in order to obtain the
adjustment of status of temporary resident under IRCA, but are eligible
for legal assistance after the application for adjustment of status to
that of temporary resident has been filed, and the application has not
been rejected.
(e) A recipient may provide legal assistance to indigent foreign
nationals who seek assistance pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction and the Federal
implementing statute, the International Child Abduction Remedies Act,
42 U.S.C. 11607(b), provided that they are otherwise financially
eligible.


Sec. 1626.11 H-2 agricultural and forestry workers.

(a) Nonimmigrant agricultural workers admitted to, or permitted to
remain in, the United States under the provisions of section
101(a)(15)(h)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(h)(ii)(a)),
commonly called H-2A agricultural workers, may be provided legal
assistance regarding the matters specified in paragraph (c) of this
section.
(b) Nonimmigrant forestry workers admitted to, or permitted to
remain in, the United States under the provisions of section
101(a)(15)(h)(ii)(b) of the INA (8 U.S.C. 1101(a)(15)(h)(ii)(b)),
commonly called H-2B forestry workers, may be provided legal assistance
regarding the matters specified in paragraph (c) of this section.
(c) The following matters which arise under the provisions of the
worker's specific employment contract may be the subject of legal
assistance by an LSC-funded program:
(1) Wages;
(2) Housing;
(3) Transportation; and
(4) Other employment rights as provided in the worker's specific
contract under which the nonimmigrant worker was admitted.


Sec. 1626.12 Recipient policies, procedures, and recordkeeping.

Each recipient shall adopt written policies and procedures to guide
its staff in complying with this part and shall maintain records
sufficient to document the recipient's compliance with this part.

Dated: April 14, 2014.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2014-08833 Filed 4-17-14; 8:45 am]
BILLING CODE 7050-01-P