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Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations
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1117. The NPRM did not present a novel concept with which commenters would have been entirely unfamiliar. In the last three years, the Department has published a notice in the Federal Register announcing pilot programs for electronic filing, 83 FR 29575; begun more than 40 pilot programs at immigration court locations across the country; and developed a robust website and portal, including technical support contacts, infographics, video tutorials, and user manuals. See generally EOIR, EOIR Courts & Appeals System ECASOnline Filing, available at https www.justice.gov/eoir/ECAS last updated July 11, 2021. For these reasons, the Department finds it unnecessary to extend the comment period beyond the 30 days provided.
Moreover, the Department does not believe that the COVID19 pandemic, the holiday season, or EOIRs other proposed rulemakings should have precluded the use of a 30-day comment period. Regarding the COVID19
pandemic, proposed rulemakings allow for electronic comment submissions, and employers around the country have adopted telework flexibilities to the greatest extent possible, which reduces potential hardships from the COVID19
pandemic. In addition, holidays within a comment period are unavoidable throughout much of the year, and commenters are expected to plan accordingly. Lastly, this rule is unrelated to any other proposed rules that EOIR issued during the same time period, and the Department does not believe that unrelated NPRMs provide cause for extending comment periods.
III. Final Rule After reviewing public comments on the NPRM, the Department now adopts the NPRM as written with the following changes: 1 Removing the regulatory requirement that supervising attorneys or accredited representatives be physically present in the same location as the law students or law graduates they supervise for purposes of representation before EOIR, and instead leaving the determination regarding the parties manner of appearance to the adjudicators discretion; 2 correcting a scriveners error regarding the supervisor requirements for law graduates; 3 allowing filers to include proof of fee payment with DHS when DHS has not provided a fee receipt within the filing deadline set by the immigration judge; 4 including language requiring sealed medical records to be filed in paper and not electronically; 5 broadening immigration judge discretion to accept paper filings from parties otherwise
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required to file electronically under this rule; 6 modifying the process for fee waiver denials at the BIA; 7 extending the minimum notice requirement for planned outages from three to five days;
8 removing duplicative examples of improper filings; 9 clarifying to whom the filing requirements apply; 10
clarifying the registration procedures for permissive electronic filers; and 11
making additional minor technical amendments to update outdated references.
First, the final rule modifies 8 CFR
1292.1a2iv so that supervising attorneys or accredited representatives are not required by regulation to be physically present in the same location as the law students or law graduates they supervise for purposes of representation before the immigration court or the BIA, and instead leaves the determination regarding the parties manner of appearance e.g., video teleconference; in-person subject to the adjudicators discretion. This clarification enhances flexibility for supervising attorneys or accredited representatives of law students or law graduates while maintaining the requirement that the supervising attorney or accredited representative be able to participate fully and be prepared to proceed with the case, including inperson appearance when required. See 8
CFR 1003.10b.
Second, the final rule amends 8 CFR
1292.1a2iii to correct a scriveners error that excluded the requirement that law graduates appear under the supervision of an EOIR-registered licensed attorney or accredited representative. While the Department included this requirement in the NPRM
at 8 CFR 1292.1a2ii as applied to law students appearing before EOIR, and indicated its clear intent that law students and law graduates be subject to the same supervision requirements through the paragraph regarding filings by law students and law graduates, it inadvertently excluded the supervisors registration requirement in the paragraph regarding law graduates.
Because the supervisors of both law students and law graduates must be able to proceed with the case at all times, 8
CFR 1292.1a2iv, it is logical that the supervisors in both circumstances must be EOIR-registered. Indeed, the Department indicated its intent in the NPRM that law graduates supervisors be registered in the same manner as law students supervisors. See 85 FR at 78243 Further, this rulemaking proposes that law graduates, currently required to have supervision under the regulations, 8 CFR 1292.1a2iii, would also need to file through an
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attorney or accredited representative registered with EOIR.
Third, the final rule modifies 8 CFR
1001.1dd2, 1003.23b1ii, 1003.31g, and 1103.7a3 to allow filers to submit proof of fee payment made to DHS in the event that filers are not provided a fee receipt within the applicable filing deadline set by the immigration judge. This change will provide flexibility when filers cannot meet EOIR filing deadlines through no fault of their own. However, the rule makes clear that the filer must still submit the actual fee receipt within a later deadline set by the immigration judge or, if no deadline is set, within 45
days of the submission of the underlying filing.
Fourth, the final rule modifies 8 CFR
1003.2g7, 1003.3g4, and 1003.31e to add an additional requirement that sealed medical records must be filed in paper and not electronically. Most commonly, respondents are required to submit a sealed Form I693 when applying for adjustment of status. See 8 CFR 1245.5;
U.S. Citizenship and Immigration Services, Form I693Instructions for Report of Medical Examination and Vaccination Record, available at https
www.uscis.gov/sites/default/files/
document/forms/i-693instr.pdf explaining that the completed form will be returned if not sealed when submitted. Since documents in sealed envelopes cannot be electronically transmitted, respondents in these cases must submit the sealed Form I693
medical report in paper to ensure the integrity of the record, which the immigration judge will open and scan into the electronic record of proceeding.
This modification will provide clarification to ensure that the confidentiality of these medical records is maintained and that the medical records are not erroneously opened by the parties and filed electronically.
Fifth, the final rule modifies 8 CFR
1003.31b to broaden the ability of immigration judges to accept paper filings in all cases. The NPRM provided the BIA full discretion to accept paper filings as necessary but limited immigration judges to situations involving 1 rebuttal or impeachment;
2 good cause shown, provided that the filing is otherwise admissible and the immigration judge finds that any applicable filing deadline should be excused; or 3 when the opposing party does not object to the paper filing. By updating this language in the final rule, the Department recognizes that providing immigration judges with maximum discretion to accept paper filings will help provide the necessary
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