Proposed Address Notification Regulation
Posted Aug 09, 2002

On July 26, 2002 INS published a proposed regulation to include a notice on many INS forms. The notice will alert applicants of the requirement to provide current address or any change of address information to the INS within ten days of a change. The notice will state that INS will use the most recent address for all purposes, including service of a Notice to Appear (NTA) in the event of removal proceedings. Furthermore, it will warn the applicant that if s/he has changed addresses without notifying INS, s/he will still be responsible for all communications sent to the last address provided. Every applicant would be required to acknowledge that s/he received this information.

Consequences of Failing to Notify INS on Address Changes

The new language on the forms will satisfy certain requirements in the law for advance notice to foreign nationals of the address notification requirements and of the consequences of failure to comply. These consequences include entry of an in absentia removal order against the individual if s/he fails to appear for a removal hearing. In absentia removal orders are entered without the foreign national's presence in court. It is extremely difficult to reopen such a case in order to contest the removal order. The regulations are extremely strict, generally requiring the person to prove extraordinary circumstances, such as severe illness, as a reason for not attending the hearing. It is often quite difficult to meet the requirements. Thus the individual is not able to have his or her "day in court" to argue the case. One other allowable "excuse" for failing to appear is failure to receive notification of the hearing.

Notice Based on BIA Case Called "Matter of G-Y-R"

The July 26, 2002 proposed rule is designed to address the Board of Immigration Appeals' (BIA) decision in a 2001 case known as Matter of G-Y-R. In that case, INS attempted to serve an NTA by ordinary mail, as is allowed. INS sent the NTA to the last known address, which had not been updated for five years. The NTA was returned by the Post Office as undeliverable. Thus the INS knew that the foreign national did not receive the NTA. The NTA does already contain advisements regarding the requirements to update addresses. The BIA determined that the in absentia removal order entered against the individual when he did not appear in court was not valid, unless the person could have been found to have received the Notice and read the address warnings. Under the proposed regulation, persons would be able to receive these warnings earlier, rather than first being advised of the address notification requirement when the NTA is issued.

Notification Will Require Signature

According to the proposed regulation, INS intends to implement the rule by amending each form "as soon as practicable." The rule includes a list of forms affected. Once the forms are amended, applicants will be required to use the new versions. Once the forms are changed, the notification and acknowledgements will be part of the form. The form will not be accepted for filing unless the notification and acknowledgment is signed.

INS indicates that this rule will help to ensure that persons who apply for immigration benefits can be contacted with respect to requests for additional information and/or interviews on the applications. An applicant who does not respond to a request of this nature will be deemed to have abandoned the application.

Forms with Benefits will be Changed

Since the regulation only applies to applicants for benefits, the listed forms do not include forms that are filed by employer or family petitioners, such as the commonly used I-130 (Petition for Alien Relative), I-140 (Immigrant Petition for Alien Worker), and I-129 (Petition for Nonimmigrant Worker). Thus, it seems that the problem the regulation attempts to address will not be solved for nonimmigrant employment-based categories or beneficiaries of the I-130 and I-140, until they file the Form I-485 (Application to Register Permanent Residence or Adjust Status), which is included on the list.

The proposed regulation allows a one-month period for submission of comments.

Send in the Address Changes Within Ten Days

Since September 11, 2001, we have continually advised MurthyBulletin and MurthyDotCom readers of the need to provide updated addresses to the INS within ten days of moving. We again remind our readers of this requirement and urge them to comply by submitting Form AR-11 by certified mail, return receipt requested, or some other method that provides proof of delivery. If they have applications pending, they must also comply with the preferred method of address notification used by the particular Service Center or local office.