[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2001 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

                    8

                         Revised as of January 1, 2001

Aliens and Nationality





          Containing a codification of documents of general 
          applicability and future effect
          As of January 1, 2001
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2001



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
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               Mail: Stop: SSOP, Washington, DC 20402-0001



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 8:
          Chapter I--Immigration and Naturalization Service, 
          Department of Justice                                      3
  Finding Aids:
      Table of CFR Titles and Chapters........................     767
      Alphabetical List of Agencies Appearing in the CFR......     785
      List of CFR Sections Affected...........................     795



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 8 CFR 1.1 refers to 
                       title 8, part 1, section 
                       1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2001), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
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Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 2001.



[[Page ix]]



                               THIS TITLE

    Title 8--Aliens and Nationality is composed of one volume. The 
contents of this volume represent all current regulations issued by the 
Immigration and Naturalization Service, Department of Justice, as of 
January 1, 2001.

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[[Page 1]]



                     TITLE 8--ALIENS AND NATIONALITY




  --------------------------------------------------------------------



  Note: Other regulations issued by the Department of Justice appear in 
title 4, chapter II, title 21, chapter II, and title 28, chapters I, III 
and V.
                                                                    Part

chapter i--Immigration and Naturalization Service, 
  Department of Justice.....................................           1

[[Page 3]]



CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE




  --------------------------------------------------------------------


  Cross Reference: For State Department regulations pertaining to visas 
and Nationality and Passports, see 22 CFR, chapter I, subchapters E and 
F.


  Note: This table shows sections of title 8 of the United States Code 
and corresponding sections of the Immigration and Nationality Act and of 
parts in subchapters A, B, and C of chapter I of title 8 of the Code of 
Federal Regulations. Those sections of title 8 of the United States Code 
bearing an asterisk do not have a corresponding part in chapter I of 
title 8 of the Code of Federal Regulations.

 
                                  Sections I. &                      Sections I. &                      Sections I. &                      Sections I. &
         Sections 8 USC           N. Act and 8     Sections 8 USC    N. Act and 8     Sections 8 USC    N. Act and 8     Sections 8 USC    N. Act and 8
                                       CFR                                CFR                                CFR                                CFR
 
1101*..........................  101             1254.............  244             1355*............  285             1438.............  327
1102*..........................  102             1255.............  245             1356*............  286             1439.............  328
1103*..........................  103             1256.............  246             1357.............  287             1440.............  329
1104*..........................  104             1257.............  247             1358*............  288             1441.............  330
1105*..........................  105             1258.............  248             1359.............  289             1442*............  331
1105a*.........................  106             1259.............  249             1360*............  290             1443.............  332
1151*..........................  201             1260.............  250             1361*............  291             1444.............  333
1152*..........................  202             1281.............  251             1362.............  292             1445.............  334
1153*..........................  203             1282.............  252             1401*............  301             1446.............  335
1154...........................  204             1283.............  253             1402*............  302             1447.............  336
1155...........................  205             1284*............  254             1403*............  303             1448.............  337
1156*..........................  206             1285*............  255             1404*............  304             1449.............  338
1181...........................  211             1286*............  256             1405*............  305             1450.............  339
1182...........................  212             1287*............  257             1406.............  306             1451.............  340
1183...........................  213             1301*............  261             1407*............  307             1452.............  341
1184...........................  214             1302*............  262             1408*............  308             1453.............  342
1185...........................  215             1303*............  263             1409*............  309             1454.............  343
1201...........................  221             1304.............  264             1421*............  310             1455.............  344
1202*..........................  222             1305.............  265             1422*............  311             1457*............  346
1203...........................  223             1306*............  266             1423.............  312             1458*............  347
1204*..........................  224             1321*............  271             1424*............  313             1459*............  348
1221...........................  231             1322*............  272             1425*............  314             1481.............  349
1222...........................  232             1323*............  273             1426*............  315             1482*............  350
1223...........................  233             1324.............  274             1427.............  316             1483*............  351
1224...........................  234             1325*............  275             1428*............  317             1484*............  352
1225...........................  235             1326*............  276             1429.............  318             1485*............  353
1226...........................  236             1327*............  277             1430.............  319             1486*............  354
1227...........................  237             1328*............  278             1431*............  320             1487*............  355
1228...........................  238             1329*............  279             1432*............  321             1488*............  356
1229...........................  239             1330.............  280             1433.............  322             1489*............  357
1230*..........................  240             1351*............  281             1434.............  323             1501*............  358
1251...........................  241             1352.............  282             1435.............  324             1502*............  359
1252...........................  242             1353*............  283             1436*............  325             1503*............  360
1253...........................  243             1354*............  284             1437.............  326
 


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                    SUBCHAPTER A--GENERAL PROVISIONS
Part                                                                Page
1               Definitions.................................           9
2               Authority of the Commissioner...............          10
3               Executive Office for Immigration Review.....          10

                  SUBCHAPTER B--IMMIGRATION REGULATIONS
100             Statement of organization...................          50
101             Presumption of lawful admission.............          68
103             Powers and duties of Service officers; 
                    availability of Service records.........          73
109             [Reserved]

204             Immigrant petitions.........................         110
205             Revocation of approval of petitions.........         173
207             Admission of refugees.......................         176
208             Procedures for asylum and withholding of 
                    removal.................................         179
209             Adjustment of status of refugees and aliens 
                    granted asylum..........................         215
210             Special agricultural workers................         217
211             Documentary requirements: Immigrants; 
                    waivers.................................         229
212             Documentary requirements: Nonimmigrants; 
                    waivers; admission of certain 
                    inadmissible aliens; parole.............         232
213             Admission of aliens on giving bond or cash 
                    deposit.................................         261
213a            Affidavits of support on behalf of 
                    immigrants..............................         261
214             Nonimmigrant classes........................         268
215             Controls of aliens departing from the United 
                    States..................................         396
216             Conditional basis of lawful permanent 
                    residence status........................         402
217             Visa waiver pilot program...................         411
221             Admission of visitors or students...........         413
223             Reentry permits, refugee travel documents, 
                    and advance parole documents............         414
231             Arrival-departure manifests and lists; 
                    supporting documents....................         416
232             Detention of aliens for physical and mental 
                    examination.............................         417
233             Contracts with transportation lines.........         419
234             Designation of ports of entry for aliens 
                    arriving by civil aircraft..............         420
235             Inspection of persons applying for admission         422
236             Apprehension and detention of inadmissible 
                    and deportable aliens; removal of aliens 
                    ordered removed.........................         439
237             [Reserved]

238             Expedited removal of aggravated felons......         449
239             Initiation of removal proceedings...........         452

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240             Proceedings to determine removability of 
                    aliens in the United States.............         453
241             Apprehension and detention of aliens ordered 
                    removed.................................         485
242-243         [Reserved]

244             Temporary protected status for nationals of 
                    designated states.......................         499
245             Adjustment of status to that of person 
                    admitted for permanent residence........         510
245a            Adjustment of status to that of persons 
                    admitted for lawful temporary or 
                    permanent resident status under section 
                    245A of the Immigration and Nationality 
                    Act.....................................         555
246             Rescission of adjustment of status..........         592
247             Adjustment of status of certain resident 
                    aliens..................................         593
248             Change of nonimmigrant classification.......         595
249             Creation of records of lawful admission for 
                    permanent residence.....................         598
250             Removal of aliens who have fallen into 
                    distress................................         599
251             Arrival manifests and lists: Supporting 
                    documents...............................         599
252             Landing of alien crewmen....................         602
253             Parole of alien crewmen.....................         606
258             Limitations on performance of longshore work 
                    by alien crewmen........................         608
264             Registration and fingerprinting of aliens in 
                    the United States.......................         611
265             Notices of address..........................         617
270             Penalties for document fraud................         617
271             Diligent and reasonable efforts to prevent 
                    the unauthorized entry of aliens by the 
                    owners of railroad lines, international 
                    bridges or toll roads...................         620
273             Carrier responsibilities at foreign ports of 
                    embarkation; reducing, refunding, or 
                    waiving fines under section 273 of the 
                    Act.....................................         620
274             Seizure and forfeiture of conveyances.......         622
274a            Control of employment of aliens.............         631
280             Imposition and collection of fines..........         652
286             Immigration user fee........................         658
287             Field officers; powers and duties...........         662
289             American Indians born in Canada.............         676
292             Representation and appearances..............         677
293             Deposit of and interest on cash received to 
                    secure immigration bonds................         685
299             Immigration forms...........................         686
                  SUBCHAPTER C--NATIONALITY REGULATIONS
301             Nationals and citizens of the United States 
                    at birth................................         695

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306             Special classes of persons who may be 
                    naturalized: Virgin Islanders...........         695
310             Naturalization authority....................         696
312             Educational requirements for naturalization.         698
313             Membership in the Communist Party or any 
                    other totalitarian organizations........         701
315             Persons ineligible to citizenship: Exemption 
                    from military service...................         703
316             General requirements for naturalization.....         705
318             Pending removal proceedings.................         714
319             Special classes of persons who may be 
                    naturalized: Spouses of United States 
                    citizens................................         714
322             Special classes of persons who may be 
                    naturalized: Children of citizen parent.         718
324             Special classes of persons who may be 
                    naturalized: Women who have lost United 
                    States citizenship by marriage and 
                    former citizens whose naturalization is 
                    authorized by private law...............         719
325             Nationals but not citizens of the United 
                    States; residence within outlying 
                    possessions.............................         721
327             Special classes of persons who may be 
                    naturalized: Persons who lost United 
                    States citizenship through service in 
                    armed forces of foreign country during 
                    World War II............................         721
328             Special classes of persons who may be 
                    naturalized: Persons with three years 
                    service in Armed Forces of the United 
                    States..................................         722
329             Special classes of persons who may be 
                    naturalized: Naturalization based upon 
                    active duty service in the United States 
                    Armed Forces during specified periods of 
                    hostilities.............................         723
330             Special classes of persons who may be 
                    naturalized: Seamen.....................         726
331             Alien enemies; naturalization under 
                    specified conditions and procedures.....         727
332             Naturalization administration...............         727
333             Photographs.................................         729
334             Application for naturalization..............         730
335             Examination on application for 
                    naturalization..........................         733
336             Hearings on denials of applications for 
                    naturalization..........................         739
337             Oath of allegiance..........................         741
338             Certificate of naturalization...............         745
339             Functions and duties of clerks of court 
                    regarding naturalization proceedings....         748
340             Revocation of naturalization................         749
341             Certificates of citizenship.................         752

[[Page 7]]

342             Administrative cancellation of certificates, 
                    documents, or records...................         754
343             Certificate of naturalization or 
                    repatriation; persons who resumed 
                    citizenship under section 323 of the 
                    Nationality Act of 1940, as amended, or 
                    section 4 of the Act of June 29, 1906...         756
343a            Naturalization and citizenship papers lost, 
                    mutilated, or destroyed; new certificate 
                    in changed name; certified copy of 
                    repatriation proceedings................         757
343b            Special certificate of naturalization for 
                    recognition by a foreign state..........         758
343c            Certifications from records.................         759
349             Loss of nationality.........................         759
392             Special classes of persons who may be 
                    naturalized: Persons who die while 
                    serving on active duty with the United 
                    States Armed Forces during certain 
                    periods of hostilities..................         760
499             Nationality forms...........................         762
507             Alien terrorist removal procedures..........         763

[[Page 9]]





                    SUBCHAPTER A--GENERAL PROVISIONS



PART 1--DEFINITIONS--Table of Contents




    Authority: 8 U.S.C. 1101; 8 CFR part 2.



Sec. 1.1  Definitions.

    As used in this chapter:
    (a) The terms defined in section 101 of the Immigration and 
Nationality Act (66 Stat. 163) shall have the meanings ascribed to them 
in that section and as supplemented, explained, and further defined in 
this chapter.
    (b) The term Act means the Immigration and Nationality Act, as 
amended.
    (c) The term Service means the Immigration and Naturalization 
Service.
    (d) The term Commissioner means the Commissioner of Immigration and 
Naturalization.
    (e) The term Board means the Board of Immigration Appeals.
    (f) The term attorney means any person who is a member in good 
standing of the bar of the highest court of any State, possession, 
territory, Commonwealth, or the District of Columbia, and is not under 
any order of any court suspending, enjoining, restraining, disbarring, 
or otherwise restricting him in the practice of law.
    (g) Unless the context otherwise requires, the term case means any 
proceeding arising under any immigration or naturalization law, 
Executive order, or Presidential proclamation, or preparation for or 
incident to such proceeding, including preliminary steps by any private 
person or corporation preliminary to the filing of the application or 
petition by which any proceeding under the jurisdiction of the Service 
or the Board is initiated.
    (h) The term day when computing the period of time for taking any 
action provided in this chapter including the taking of an appeal, shall 
include Saturdays, Sundays, and legal holidays, except that when the 
last day of the period so computed falls on a Saturday, Sunday or a 
legal holiday, the period shall run until the end of the next day which 
is not a Saturday, Sunday, nor a legal holiday.
    (i) The term practice means the act or acts of any person appearing 
in any case, either in person or through the preparation or filing of 
any brief or other document, paper, application, or petition on behalf 
of another person or client before or with the Service, or any officer 
of the Service, or the Board.
    (j) The term representative refers to a person who is entitled to 
represent others as provided in Secs. 292.1(a) (2), (3), (4), (5), (6), 
and 292.1(b) of this chapter.
    (k) The term preparation, constituting practice, means the study of 
the facts of a case and the applicable laws, coupled with the giving of 
advice and auxiliary activities, including the incidental preparation of 
papers, but does not include the lawful functions of a notary public or 
service consisting solely of assistance in the completion of blank 
spaces on printed Service forms by one whose remuneration, if any, is 
nominal and who does not hold himself out as qualified in legal matters 
or in immigration and naturalization procedure.
    (l) The term immigration judge means an attorney whom the Attorney 
General appoints as an administrative judge within the Executive Office 
for Immigration Review, qualified to conduct specified classes of 
proceedings, including a hearing under section 240 of the Act. An 
immigration judge shall be subject to such supervision and shall perform 
such duties as the Attorney General shall prescribe, but shall not be 
employed by the Immigration and Naturalization Service.
    (m) The term representation before the Board and the Service 
includes practice and preparation as defined in paragraphs (i) and (k) 
of this section.
    (n) The term Executive Office means Executive Office for Immigration 
Review.
    (o) The term director means either district director or regional 
service center director, unless otherwise specified.
    (p) The term lawfully admitted for permanent residence means the 
status of having been lawfully accorded the privilege of residing 
permanently in the United States as an immigrant in accordance with the 
immigration laws, such status not having changed. Such

[[Page 10]]

status terminates upon entry of a final administrative order of 
exclusion or deportation.
    (q) The term arriving alien means an applicant for admission coming 
or attempting to come into the United States at a port-of-entry, or an 
alien seeking transit through the United States at a port-of-entry, or 
an alien interdicted in international or United States waters and 
brought into the United States by any means, whether or not to a 
designated port-of-entry, and regardless of the means of transport. An 
arriving alien remains such even if paroled pursuant to section 
212(d)(5) of the Act, except that an alien who was paroled before April 
1, 1997, or an alien who was granted advance parole which the alien 
applied for and obtained in the United States prior to the alien's 
departure from and return to the United States, shall not be considered 
an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.
    (r) The term respondent means a person named in a Notice to Appear 
issued in accordance with section 239(a) of the Act, or in an Order to 
Show Cause issued in accordance with Sec. 242.1 of this chapter as it 
existed prior to April 1, 1997.
    (s) The term Service counsel means any immigration officer assigned 
to represent the Service in any proceeding before an immigration judge 
or the Board of Immigration Appeals.
    (t) The term aggravated felony means a crime (or a conspiracy or 
attempt to commit a crime) described in section 101(a)(43) of the Act. 
This definition is applicable to any proceeding, application, custody 
determination, or adjudication pending on or after September 30, 1996, 
but shall apply under section 276(b) of the Act only to violations of 
section 276(a) of the Act occurring on or after that date.

[23 FR 9115, Nov. 26, 1958, as amended at 30 FR 14772, Nov. 30, 1965; 34 
FR 12213, July 24, 1969; 38 FR 8590, Apr. 4, 1973; 40 FR 23271, May 29, 
1975; 48 FR 8039, Feb. 25, 1983, 52 FR 2936, Jan. 29, 1987; 53 FR 30016, 
Aug. 10, 1988; 61 FR 18904, Apr. 29, 1996; 62 FR 10330, Mar. 6, 1997; 63 
FR 19383, Apr. 20, 1998]



PART 2--AUTHORITY OF THE COMMISSIONER--Table of Contents




    Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; 8 U.S.C. 1103.



Sec. 2.1  Authority of the Commissioner.

    Without divesting the Attorney General of any of his powers, 
privileges, or duties under the immigration and naturalization laws, and 
except as to the Executive Office, the Board, the Office of the Chief 
Special Inquiry Officer, and Special Inquiry Officers, there is 
delegated to the Commissioner the authority of the Attorney General to 
direct the administration of the Service and to enforce the Act and all 
other laws relating to the immigration and naturalization of aliens. The 
Commissioner may issue regulations as deemed necessary or appropriate 
for the exercise of any authority delegated to him by the Attorney 
General, and may redelegate any such authority to any other officer or 
employee of the Service.

[48 FR 8039, Feb. 25, 1983]



PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents




Sec.
3.0  Executive Office for Immigration Review.

                 Subpart A--Board of Immigration Appeals

3.1  General authorities.
3.2  Reopening or reconsideration before the Board of Immigration 
          Appeals.
3.3  Notice of appeal.
3.4  Withdrawal of appeal.
3.5  Forwarding of record on appeal.
3.6  Stay of execution of decision.
3.7  Notice of certification.
3.8  Fees.

                      Subpart B--Immigration Court

3.9  Chief Immigration Judge.
3.10  Immigration Judges.
3.11  Administrative control Immigration Courts.

            Subpart C--Immigration Court--Rules of Procedure

3.12  Scope of rules.
3.13  Definitions.
3.14  Jurisdiction and commencement of proceedings

[[Page 11]]

3.15  Contents of the order to show cause and notice to appear and 
          notification of change of address.
3.16  Representation.
3.17  Appearances.
3.18  Scheduling of cases.
3.19  Custody/bond.
3.20  Change of venue.
3.21  Pre-hearing conferences and statement.
3.22  Interpreters.
3.23  Reopening or reconsideration before the Immigration Court.
3.24  Fees pertaining to matters within the jurisdiction of the 
          Immigration Judge.
3.25  Form of the proceeding.
3.26  In absentia hearings.
3.27  Public access to hearings.
3.28  Recording equipment.
3.29  Continuances.
3.30  Additional charges in deportation or removal hearings.
3.31  Filing documents and applications.
3.32  Service and size of documents.
3.33  Translation of documents.
3.34  Testimony.
3.35  Depositions and subpoenas.
3.36  Record of proceeding.
3.37  Decisions.
3.38  Appeals.
3.39  Finality of decision.
3.40  Local operating procedures.
3.41  Evidence of criminal conviction.
3.42  Review of credible fear determination.
3.43  Motion to reopen for suspension of deportation and cancellation of 
          removal pursuant to section 203(c) of the Nicaraguan 
          Adjustment and Central American Relief Act (NACARA).

Subpart D  [Reserved]

            Subpart E--List of Free Legal Services Providers

3.61  List.
3.62  Qualifications.
3.63  Applications.
3.64  Approval and denial of applications.
3.65  Removal of an organization or attorney from list.

Subpart F  [Reserved]

 Subpart G--Professional Conduct for Practitioners--Rules and Procedures

3.101  General provisions.
3.102  Grounds.
3.103  Immediate suspension and summary disciplinary proceedings; duty 
          of practitioner to notify EOIR of correction or discipline.
3.104  Filing of complaints; preliminary inquiries; resolutions; 
          referral of complaints.
3.105  Notice of Intent to Discipline.
3.106  Hearing and disposition.
3.107  Reinstatement after expulsion or suspension.
3.108  Confidentiality.
3.109  Discipline of government attorneys.

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 1324b, 
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 
CFR, 1949-1953 Comp., p. 1002.

    Editorial Note: Nomenclature changes to part 3 appear at 52 FR 2941, 
Jan. 29, 1987.



Sec. 3.0  Executive Office for Immigration Review.

    (a) Organization. The Executive Office for Immigration Review shall 
be headed by a Director who shall be assisted by a Deputy Director. The 
Director shall be responsible for the general supervision of the Board 
of Immigration Appeals and the Office of the Chief Immigration Judge in 
the execution of their duties in accordance with this part 3. The 
Director may redelegate the authority delegated to him by the Attorney 
General to the Deputy Director, the Chairman of the Board of Immigration 
Appeals, or the Chief Immigration Judge.
    (b) Citizenship Requirement for Employment. (1) An application to 
work at the Executive Office for Immigration Review (EOIR or Agency), 
either as an employee or as a volunteer, must include a signed 
affirmation from the applicant that he or she is a citizen of the United 
States of America. Upon the Agency's request, the applicant must 
document United States citizenship.
    (2) The Director of EOIR may, by explicit written determination and 
to the extent permitted by law, authorize the appointment of an alien to 
an Agency position when necessary to accomplish the work of EOIR.

[48 FR 8039, Feb. 25, 1983, as amended at 60 FR 29468, June 5, 1995; 63 
FR 51519, Sept. 28, 1998]



                 Subpart A--Board of Immigration Appeals



Sec. 3.1  General authorities.

    (a)(1) Organization. There shall be in the Department of Justice a 
Board of Immigration Appeals, subject to the general supervision of the 
Director, Executive Office for Immigration Review. The Board shall 
consist of a Chairman, two Vice Chairmen, and eighteen other

[[Page 12]]

members. The Board Members shall exercise their independent judgment and 
discretion in the cases coming before the Board. A vacancy, or the 
absence or unavailability of a Board Member, shall not impair the right 
of the remaining members to exercise all the powers of the Board. The 
Director may in his discretion designate Immigration Judges, retired 
Board Members, retired Immigration Judges, and Administrative Law Judges 
employed within EOIR to act as temporary, additional Board Members for 
terms not to exceed six months. The Chairman may divide the Board into 
three-member panels and designate a Presiding Member of each panel. The 
Chairman may from time to time make changes in the composition of such 
panels and of Presiding Members. Each panel shall be empowered to decide 
cases by majority vote. A majority of the number of Board Members 
authorized to constitute a panel shall constitute a quorum for such 
panel. Each three-member panel may exercise the appropriate authority of 
the Board as set out in part 3 that is necessary for the adjudication of 
cases before it. In the case of an unopposed motion or a motion to 
withdraw an appeal pending before the Board, a single Board Member may 
exercise the appropriate authority of the Board as set out in part 3 
that is necessary for the adjudication of such motions before it. In 
addition, a single Board Member may exercise such authority in disposing 
of the following matters: a Service motion to remand an appeal from the 
denial of a visa petition where the Regional Service Center Director 
requests that the matter be remanded to the Service for further 
consideration of the appellant's arguments or evidence raised on appeal; 
a case where remand is required because of a defective or missing 
transcript; and other procedural or ministerial issues as provided by 
the Chairman. A motion to reconsider or to reopen a decision that was 
rendered by a single Board Member may be adjudicated by that Board 
Member.
    (2) Chairman. The Chairman shall direct, supervise, and establish 
internal operating procedures and policies of the Board. He shall 
designate a member of the Board to act as Chairman in his absence or 
unavailability. The Chairman shall be assisted in the performance of his 
duties by two Vice Chairmen.
    (3) Board Members. Board Members shall perform the quasi-judicial 
function of adjudicating cases coming before the Board.
    (4) En banc process--(i) Full Board en banc. A majority of the 
permanent Board Members shall constitute a quorum of the Board for 
purposes of convening the full Board en banc. The Board may on its own 
motion, by a majority vote of the permanent Board Members, or by 
direction of the Chairman, consider any case as the full Board en banc, 
or reconsider as the full Board en banc any case that has been 
considered or decided by a three-member panel or by a limited en banc 
panel.
    (ii) Limited en banc panels. The Board may on its own motion, by a 
majority vote of the permanent Board Members, or by direction of the 
Chairman, assign a case or group of cases for consideration by a limited 
en banc panel, or assign a case that has been considered or decided by a 
three-member panel for reconsideration by a limited en banc panel. Each 
limited en banc panel shall consist of nine members. Each limited en 
banc panel shall contain the Chairman or one of the Vice Chairmen (as 
decided by the Chairman). If the Chairman and Vice Chairman are all 
disqualified in a particular case, then the most senior permanent Board 
Member who is not disqualified shall sit on the limited en banc panel as 
the Presiding Board Member. If the Chairman and Vice Chairman are all 
unavailable to hear a case that has been assigned to a limited en banc 
panel, but the Chairman is not disqualified, then the Chairman shall 
designate a Presiding Board Member to sit on the limited en banc panel. 
If the Chairman is unavailable and disqualified, then one of the Vice 
Chairmen, if unavailable and not disqualified, shall designate a 
presiding Board Member to sit on the limited en banc panel. Where a case 
that has been considered or decided by a three-member panel is assigned 
for review by a limited en banc panel, the en banc panel shall contain 
all available permanent Board Members who considered or decided that 
case as part of a three-

[[Page 13]]

member panel. The remaining members of each limited en banc panel will 
be randomly selected from among the permanent Board Members. The 
decision reached by a limited en banc panel shall be considered as the 
final decision of the Board in the case, unless the Chairman or a 
majority of the permanent Board Members vote to decide to assign the 
case to a full en banc panel for reconsideration in accordance with 
paragraph (a)(4)(i) of this section.
    (5) Precedents. By majority vote of the permanent Board Members, a 
decision of the Board, whether rendered by a three-member panel, a 
limited en banc panel, or by the entire Board sitting en banc, may be 
designated to serve as a Board precedent pursuant to paragraph (g) of 
this section.
    (6) Board staff. There shall also be attached to the Board such 
number of attorneys and other employees as the Deputy Attorney General, 
upon recommendation of the Director, shall from time to time direct.
    (7) Affirmance without opinion. (i) The Chairman may designate, from 
time-to-time, permanent Board Members who are authorized, acting alone, 
to affirm decisions of Immigration Judges and the Service without 
opinion. The Chairman may designate certain categories of cases as 
suitable for review pursuant to this paragraph.
    (ii) The single Board Member to whom a case is assigned may affirm 
the decision of the Service or the Immigration Judge, without opinion, 
if the Board Member determines that the result reached in the decision 
under review was correct; that any errors in the decision under review 
were harmless or nonmaterial; and that
    (A) The issue on appeal is squarely controlled by existing Board or 
federal court precedent and does not involve the application of 
precedent to a novel fact situation; or
    (B) The factual and legal questions raised on appeal are so 
insubstantial that three-Member review is not warranted.
    (iii) If the Board Member determines that the decision should be 
affirmed without opinion, the Board shall issue an order that reads as 
follows: ``The Board affirms, without opinion, the result of the 
decision below. The decision below is, therefore, the final agency 
determination. See 8 CFR 3.1(a)(7).'' An order affirming without 
opinion, issued under authority of this provision, shall not include 
further explanation or reasoning. Such an order approves the result 
reached in the decision below; it does not necessarily imply approval of 
all of the reasoning of that decision, but does signify the Board's 
conclusion that any errors in the decision of the Immigration Judge or 
the Service were harmless or nonmaterial.
    (iv) If the Board Member determines that the decision is not 
appropriate for affirmance without opinion, the case will be assigned to 
a three-Member panel for review and decision. The panel to which the 
case is assigned also has the authority to determine that a case should 
be affirmed without opinion.
    (b) Appellate jurisdiction. Appeals shall lie to the Board of 
Immigration Appeals from the following:
    (1) Decisions of Immigration Judges in exclusion cases, as provided 
in 8 CFR part 240, subpart D.
    (2) Decisions of Immigration Judges in deportation cases, as 
provided in 8 CFR part 240, subpart E, except that no appeal shall lie 
seeking review of a length of a period of voluntary departure granted by 
an Immigration Judge under section 244E of the Act as it existed prior 
to April 1, 1997.
    (3) Decisions of Immigration Judges in removal proceedings, as 
provided in 8 CFR part 240, except that no appeal shall lie seeking 
review of the length of a period of voluntary departure granted by an 
immigration judge under section 240B of the Act or part 240 of this 
chapter.
    (4) Decisions involving administrative fines and penalties, 
including mitigation thereof, as provided in part 280 of this chapter.
    (5) Decisions on petitions filed in accordance with section 204 of 
the act (except petitions to accord preference classifications under 
section 203(a)(3) or section 203(a)(6) of the act, or a petition on 
behalf of a child described in section 101(b)(1)(F) of the act), and 
decisions on requests for revalidation and decisions revoking the 
approval of such petitions, in accordance with section

[[Page 14]]

205 of the act, as provided in parts 204 and 205, respectively, of this 
chapter.
    (6) Decisions on applications for the exercise of the discretionary 
authority contained in section 212(d)(3) of the act as provided in part 
212 of this chapter.
    (7) Determinations relating to bond, parole, or detention of an 
alien as provided in 8 CFR part 236, subpart A.
    (8) Decisions of Immigration Judges in rescission of adjustment of 
status cases, as provided in part 246 of this chapter.
    (9) Decisions of Immigration Judges in asylum proceedings pursuant 
to Sec. 208.2(b) of this chapter.
    (10) Decisions of Immigration Judges relating to Temporary Protected 
Status as provided in 8 CFR part 244.
    (11) Decisions on applications from organizations or attorneys 
requesting to be included on a list of free legal services providers and 
decisions on removals therefrom pursuant to Sec. 3.65.
    (12) Decisions of Immigration Judges on applications for adjustment 
of status referred on a Notice of Certification (Form I-290C) to the 
Immigration Court in accordance with Secs. 245.13(n)(2) and 245.15(n)(3) 
of this chapter or remanded to the Immigration Court in accordance with 
Secs. 245.13(d)(2) and 245.15(e)(2) of this chapter.
    (13) Decisions of adjudicating officials in practitioner 
disciplinary proceedings as provided in subpart G of this part.
    (c) Jurisdiction by certification. The Commissioner, or any other 
duly authorized officer of the Service, any Immigration Judge, or the 
Board may in any case arising under paragraph (b) of this section 
certify such case to the Board. The Board in its discretion may review 
any such case by certification without regard to the provisions of 
Sec. 3.7 if it determines that the parties have already been given a 
fair opportunity to make representations before the Board regarding the 
case, including the opportunity request oral argument and to submit a 
brief.
    (d) Powers of the Board--(1) Generally. Subject to any specific 
limitation prescribed by this chapter, in considering and determining 
cases before it as provided in this part the Board shall exercise such 
discretion and authority conferred upon the Attorney General by law as 
is appropriate and necessary for the disposition of the case.
    (2) Summary dismissal of appeals--(i) Standards. The Board may 
summarily dismiss any appeal or portion of any appeal in any case in 
which:
    (A) The party concerned fails to specify the reasons for the appeal 
on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document 
filed therewith;
    (B) The only reason for the appeal specified by the party concerned 
involves a finding of fact or a conclusion of law that was conceded by 
that party at a prior proceeding;
    (C) The appeal is from an order that granted the party concerned the 
relief that had been requested;
    (D) The party concerned indicates on Form EOIR-26 or Form EOIR-29 
that he or she will file a brief or statement in support of the appeal 
and, thereafter, does not file such brief or statement, or reasonably 
explain his or her failure to do so, within the time set for filing;
    (E) The appeal does not fall within the Board's jurisdiction, or 
lies with the Immigration Judge rather than the Board;
    (F) The appeal is untimely, or barred by an affirmative waiver of 
the right of appeal that is clear on the record; or
    (G) The appeal fails to meet essential statutory or regulatory 
requirements or is expressly excluded by statute or regulation.
    (ii) Action by the Board. The Chairman may provide for the exercise 
of the appropriate authority of the Board to dismiss an appeal pursuant 
to paragraph (d)(2) of this section by a three-Member panel, or by a 
single Board Member. The Chairman may determine who from among the Board 
Members is authorized to exercise the authority under this paragraph and 
the designation may be changed by the Chairman as he deems appropriate. 
Except as provided in this part for review by the Board en banc or by 
the Attorney General, or for consideration of motions to reconsider or 
reopen, an order dismissing any appeal pursuant to this paragraph (d)(2) 
shall constitute the final decision of the Board. If the single

[[Page 15]]

Board Member to whom the case is assigned determines that the case is 
not appropriate for summary dismissal, the case will be assigned for 
review and decision pursuant to paragraph (a) of this section.
    (iii) Disciplinary consequences. The filing by an attorney or 
representative accredited under Sec. 292.2(d) of this chapter of an 
appeal which is summarily dismissed under paragraph (d)(1-a)(i) of this 
section may constitute frivolous behavior under Sec. 292.3(a)(15) of 
this chapter. Summary dismissal of an appeal under paragraph (d)(1-a)(i) 
of this section does not limit the other grounds and procedures for 
disciplinary action against attorneys or representatives.
    (3) Rules of practice. The Board shall have authority, with the 
approval of the Director, EOIR, to prescribe rules governing proceedings 
before it. It shall also determine whether any organization and/or 
individual desiring to represent aliens in immigration proceedings meets 
the requirements as set forth in Sec. 292.2 of this chapter.
    (4) Rules of practices: Discipline of attorneys and representatives. 
The Board shall have authority, with the approval of the Director, EOIR, 
to prescribe rules governing proceedings before it. It shall also 
determine whether any organization desiring representation is of a kind 
described in Sec. 1.1(j) of this chapter, and shall regulate the conduct 
of attorneys, representatives of organizations, and others who appear in 
a representative capacity before the Board or the Service or any special 
Inquiry Officer.
    (e) Oral argument. When an appeal has been taken, request for oral 
argument if desired shall be included in the Notice of Appeal. Oral 
argument shall be heard at the discretion of the Board at such date and 
time as the Board shall fix. The Service may be represented before the 
Board by an officer of the Service designated by the Service.
    (f) Service of Board decisions. The decision of the Board shall be 
in writing and copies thereof shall be transmitted by the Board to the 
Service and a copy shall be served upon the alien or party affected as 
provided in part 292 of this chapter.
    (g) Decisions of the Board as precedents. Except as they may be 
modified or overruled by the Board or the Attorney General, decisions of 
the Board shall be binding on all officers and employees of the Service 
or Immigration Judges in the administration of the Act, and selected 
decisions designated by the Board shall serve as precedents in all 
proceedings involving the same issue or issues.
    (h) Referral of cases to the Attorney General. (1) The Board shall 
refer to the Attorney General for review of its decision all cases 
which:
    (i) The Attorney General directs the Board to refer to him.
    (ii) The Chairman or a majority of the Board believes should be 
referred to the Attorney General for review.
    (iii) The Commissioner requests be referred to the Attorney General 
for review.
    (2) In any case in which the Attorney General reviews the decision 
of the Board, the decision of the Attorney General shall be stated in 
writing and shall be transmitted to the Board for transmittal and 
service as provided in paragraph (f) of this section.

[23 FR 9117, Nov. 26, 1958]

    Editorial Notes: 1. For Federal Register citations affecting 
Sec. 3.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    2. At 65 FR 39526, June 27, 2000, Sec. 3.1(d)(1-a)(ii) was amended 
by revising the reference to ``Sec. 292.3(a)(15)'' to read 
``Sec. 3.102(j)'', effective July 27, 2000. However, Sec. 3.1(d)(1-
a)(ii) does not exist.



Sec. 3.2  Reopening or reconsideration before the Board of Immigration Appeals.

    (a) General. The Board may at any time reopen or reconsider on its 
own motion any case in which it has rendered a decision. A request to 
reopen or reconsider any case in which a decision has been made by the 
Board, which request is made by the Service, or by the party affected by 
the decision, must be in the form of a written motion to the Board. The 
decision to grant or deny a motion to reopen or reconsider is within the 
discretion of the Board, subject to the restrictions of this section. 
The Board has discretion to deny a motion

[[Page 16]]

to reopen even if the party moving has made out a prima facie case for 
relief.
    (b) Motion to reconsider. (1) A motion to reconsider shall state the 
reasons for the motion by specifying the errors of fact or law in the 
prior Board decision and shall be supported by pertinent authority. A 
motion to reconsider a decision rendered by an Immigration Judge or 
Service officer that is pending when an appeal is filed with the Board, 
or that is filed subsequent to the filing with the Board of an appeal 
from the decision sought to be reconsidered, may be deemed a motion to 
remand the decision for further proceedings before the Immigration Judge 
or the Service officer from whose decision the appeal was taken. Such 
motion may be consolidated with, and considered by the Board in 
connection with the appeal to the Board.
    (2) A motion to reconsider a decision must be filed with the Board 
within 30 days after the mailing of the Board decision or on or before 
July 31, 1996, whichever is later. A party may file only one motion to 
reconsider any given decision and may not seek reconsideration of a 
decision denying a previous motion to reconsider. In removal proceedings 
pursuant to section 240 of the Act, an alien may file only one motion to 
reconsider a decision that the alien is removable from the United 
States.
    (3) A motion to reconsider based solely on an argument that the case 
should not have been affirmed without opinion by a single Board Member, 
or by a three-Member panel, is barred.
    (c) Motion to reopen. (1) A motion to reopen proceedings shall state 
the new facts that will be proven at a hearing to be held if the motion 
is granted and shall be supported by affidavits or other evidentiary 
material. A motion to reopen proceedings for the purpose of submitting 
an application for relief must be accompanied by the appropriate 
application for relief and all supporting documentation. A motion to 
reopen proceedings shall not be granted unless it appears to the Board 
that evidence sought to be offered is material and was not available and 
could not have been discovered or presented at the former hearing; nor 
shall any motion to reopen for the purpose of affording the alien an 
opportunity to apply for any form of discretionary relief be granted if 
it appears that the alien's right to apply for such relief was fully 
explained to him or her and an opportunity to apply therefore was 
afforded at the former hearing, unless the relief is sought on the basis 
of circumstances that have arisen subsequent to the hearing. Subject to 
the other requirements and restrictions of this section, and 
notwithstanding the provisions in Sec. 1.1(p) of this chapter, a motion 
to reopen proceedings for consideration or further consideration of an 
application for relief under section 212(c) of the Act (8 U.S.C. 
1182(c)) may be granted if the alien demonstrates that he or she was 
statutorily eligible for such relief prior to the entry of the 
administratively final order of deportation.
    (2) Except as provided in paragraph (c)(3) of this section, a party 
may file only one motion to reopen deportation or exclusion proceedings 
(whether before the Board or the Immigration Judge) and that motion must 
be filed no later than 90 days after the date on which the final 
administrative decision was rendered in the proceeding sought to be 
reopened, or on or before September 30, 1996, whichever is later. Except 
as provided in paragraph (c)(3) of this section, an alien may file only 
one motion to reopen removal proceedings (whether before the Board or 
the Immigration Judge) and that motion must be filed no later than 90 
days after the date on which the final administrative decision was 
rendered in the proceeding sought to be reopened.
    (3) In removal proceedings pursuant to section 240 of the Act, the 
time limitation set forth in paragraph (c)(2) of this section shall not 
apply to a motion to reopen filed pursuant to the provisions of 
Sec. 3.23(b)(4)(ii). The time and numerical limitations set forth in 
paragraph (c)(2) of this section shall not apply to a motion to reopen 
proceedings:
    (i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii)(A)(1) 
or Sec. 3.23(b)(4)(iii)(A)(2);
    (ii) To apply or reapply for asylum or withholding of deportation 
based on changed circumstances arising in the

[[Page 17]]

country of nationality or in the country to which deportation has been 
ordered, if such evidence is material and was not available and could 
not have been discovered or presented at the previous hearing;
    (iii) Agreed upon by all parties and jointly filed. Notwithstanding 
such agreement, the parties may contest the issues in a reopened 
proceeding; or
    (iv) Filed by the Service in exclusion or deportation proceedings 
when the basis of the motion is fraud in the original proceeding or a 
crime that would support termination of asylum in accordance with 
Sec. 208.22(f) of this chapter.
    (4) A motion to reopen a decision rendered by an Immigration Judge 
or Service officer that is pending when an appeal is filed, or that is 
filed while an appeal is pending before the Board, may be deemed a 
motion to remand for further proceedings before the Immigration Judge or 
the Service officer from whose decision the appeal was taken. Such 
motion may be consolidated with, and considered by the Board in 
connection with, the appeal to the Board.
    (d) Departure, deportation, or removal. A motion to reopen or a 
motion to reconsider shall not be made by or on behalf of a person who 
is the subject of exclusion, deportation, or removal proceedings 
subsequent to his or her departure from the United States. Any departure 
from the United States, including the deportation or removal of a person 
who is the subject of exclusion, deportation, or removal proceedings, 
occurring after the filing of a motion to reopen or a motion to 
reconsider, shall constitute a withdrawal of such motion.
    (e) Judicial proceedings. Motions to reopen or reconsider shall 
state whether the validity of the exclusion, deportation, or removal 
order has been or is the subject of any judicial proceeding and, if so, 
the nature and date thereof, the court in which such proceeding took 
place or is pending, and its result or status. In any case in which an 
exclusion, deportation, or removal order is in effect, any motion to 
reopen or reconsider such order shall include a statement by or on 
behalf of the moving party declaring whether the subject of the order is 
also the subject of any pending criminal proceeding under the Act, and, 
if so, the current status of that proceeding. If a motion to reopen or 
reconsider seeks discretionary relief, the motion shall include a 
statement by or on behalf of the moving party declaring whether the 
alien for whose relief the motion is being filed is subject to any 
pending criminal prosecution and, if so, the nature and current status 
of that prosecution.
    (f) Stay of deportation. Except where a motion is filed pursuant to 
the provisions of Secs. 3.23(b)(4)(ii) and 3.23(b)(4)(iii)(A), the 
filing of a motion to reopen or a motion to reconsider shall not stay 
the execution of any decision made in the case. Execution of such 
decision shall proceed unless a stay of execution is specifically 
granted by the Board, the Immigration Judge, or an authorized officer of 
the Service.
    (g) Filing procedures--(1) English language, entry of appearance, 
and proof of service requirements. A motion and any submission made in 
conjunction with a motion must be in English or accompanied by a 
certified English translation. If the moving party, other than the 
Service, is represented, Form EOIR-27, Notice of Entry of Appearance as 
Attorney or Representative Before the Board, must be filed with the 
motion. In all cases, the motion shall include proof of service on the 
opposing party of the motion and all attachments. If the moving party is 
not the Service, service of the motion shall be made upon the Office of 
the District Counsel for the district in which the case was completed 
before the Immigration Judge.
    (2) Distribution of motion papers. (i) A motion to reopen or motion 
to reconsider a decision of the Board pertaining to proceedings before 
an Immigration Judge shall be filed directly with the Board. Such motion 
must be accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 3.8. The record of 
proceeding pertaining to such a motion shall be forwarded to the Board 
upon the request or order of the Board.
    (ii) A motion to reopen or a motion to reconsider a decision of the 
Board

[[Page 18]]

pertaining to a matter initially adjudicated by an officer of the 
Service shall be filed with the officer of the Service having 
administrative control over the record of proceeding.
    (iii) If the motion is made by the Service in proceedings in which 
the Service has administrative control over the record of proceedings, 
the record of proceedings in the case and the motion shall be filed 
directly with the Board. If such motion is filed directly with an office 
of the Service, the entire record of proceeding shall be forwarded to 
the Board by the Service officer promptly upon receipt of the briefs of 
the parties, or upon expiration of the time allowed for the submission 
of such briefs.
    (3) Briefs and response. The moving party may file a brief if it is 
included with the motion. If the motion is filed directly with the Board 
pursuant to paragraph (g)(2)(i) of this section, the opposing party 
shall have 13 days from the date of service of the motion to file a 
brief in opposition to the motion directly with the Board. If the motion 
is filed with an office of the Service pursuant to paragraph (g)(2)(ii) 
of this section, the opposing party shall have 13 days from the date of 
filing of the motion to file a brief in opposition to the motion 
directly with the office of the Service. In all cases, briefs and any 
other filings made in conjunction with a motion shall include proof of 
service on the opposing party. The Board, in its discretion, may extend 
the time within which such brief is to be submitted and may authorize 
the filing of a brief directly with the Board. A motion shall be deemed 
unopposed unless a timely response is made. The Board may, in its 
discretion, consider a brief filed out of time.
    (h) Oral argument. A request for oral argument, if desired, shall be 
incorporated in the motion to reopen or reconsider. The Board, in its 
discretion, may grant or deny requests for oral argument.
    (i) Ruling on motion. Rulings upon motions to reopen or motions to 
reconsider shall be by written order. If the order directs a reopening 
and further proceedings are necessary, the record shall be returned to 
the Immigration Court or the officer of the Service having 
administrative control over the place where the reopened proceedings are 
to be conducted. If the motion to reconsider is granted, the decision 
upon such reconsideration shall affirm, modify, or reverse the original 
decision made in the case.

[61 FR 18904, Apr. 29, 1996; 61 FR 32924, June 26, 1996, as amended at 
62 FR 10330, Mar. 6, 1997; 64 FR 56142, Oct. 18, 1999]



Sec. 3.3  Notice of appeal.

    (a) Filing--(1) Appeal from decision of an Immigration Judge. A 
party affected by a decision who is entitled under this chapter to 
appeal to the Board from a decision of an Immigration Judge shall be 
given notice of his or her right to appeal. An appeal from a decision of 
an Immigration Judge shall be taken by filing a Notice of Appeal to the 
Board of Immigration Appeals of Decision of Immigration Judge (Form 
EOIR-26) directly with the Board, within the time specified in the 
governing sections of this chapter. The appealing parties are only those 
parties who are covered by the decision of an Immigration Judge and who 
are specifically named on the Notice of Appeal. The appeal must be 
accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 3.8. If the respondent/
applicant is represented, a Notice of Entry of Appearance as Attorney or 
Representative Before the Board (Form EOIR-27) must be filed with the 
Notice of Appeal. The appeal must reflect proof of service of a copy of 
the appeal and all attachments on the opposing party. The appeal and all 
attachments must be in English or accompanied by a certified English 
translation. An appeal is not properly filed unless it is received at 
the Board, along with all required documents, fees or fee waiver 
requests, and proof of service, within the time specified in the 
governing sections of this chapter. A notice of appeal may not be filed 
by any party who has waived appeal pursuant to Sec. 3.39.
    (2) Appeal from decision of a Service officer. A party affected by a 
decision who is entitled under this chapter to appeal to the Board from 
a decision of a Service officer shall be given notice of his or her 
right to appeal. An appeal from a decision of a Service officer

[[Page 19]]

shall be taken by filing a Notice of Appeal to the Board of Immigration 
Appeals of Decision of District Director (Form EOIR-29) directly with 
the office of the Service having administrative control over the record 
of proceeding within the time specified in the governing sections of 
this chapter. The appeal must be accompanied by a check, money order, or 
fee waiver request in satisfaction of the fee requirements of Sec. 3.8 
and, if the appellant is represented, a Notice of Entry of Appearance as 
Attorney or Representative Before the Board (Form EOIR-27). The appeal 
and all attachments must be in English or accompanied by a certified 
English translation. An appeal is not properly filed until its receipt 
at the appropriate office of the Service, together with all required 
documents and fees, and the fee provisions of Sec. 3.8 are satisfied.
    (b) Statement of the basis of appeal. The party taking the appeal 
must identify the reasons for the appeal in the Notice of Appeal (Form 
EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to 
avoid summary dismissal pursuant to Sec. 3.1(d)(1-a)(i). The statement 
must specifically identify the findings of fact, the conclusions of law, 
or both, that are being challenged. If a question of law is presented, 
supporting authority must be cited. If the dispute is over the findings 
of fact, the specific facts contested must be identified. Where the 
appeal concerns discretionary relief, the appellant must state whether 
the alleged error relates to statutory grounds of eligibility or to the 
exercise of discretion and must identify the specific factual and legal 
finding or findings that are being challenged. The appellant must also 
indicate in the Notice of Appeal (Form EOIR-26 or Form EOIR-29) whether 
he or she desires oral argument before the Board and whether he or she 
will be filing a separate written brief or statement in support of the 
appeal.
    (c) Briefs--(1) Appeal from decision of an Immigration Judge. Briefs 
in support of or in opposition to an appeal from a decision of an 
Immigration Judge shall be filed directly with the Board. In those cases 
that are transcribed, the briefing schedule shall be set by the Board 
after the transcript is available. An appellant shall be provided 30 
days in which to file a brief, unless a shorter period is specified by 
the Board. The appellee shall have the same period of time in which to 
file a reply brief that was initially granted to the appellant to file 
his or her brief. The time to file a reply brief commences from the date 
upon which the appellant's brief was due, as originally set or extended 
by the Board. The Board, upon written motion, may extend the period for 
filing a brief or a reply brief for up to 90 days for good cause shown. 
In its discretion, the Board may consider a brief that has been filed 
out of time. All briefs, filings, and motions filed in conjunction with 
an appeal shall include proof of service on the opposing party.
    (2) Appeal from decision of a Service officer. Briefs in support of 
or in opposition to an appeal from a decision of a Service officer shall 
be filed directly with the office of the Service having administrative 
control over the file in accordance with a briefing schedule set by that 
office. The alien shall be provided 30 days in which to file a brief, 
unless a shorter period is specified by the Service officer from whose 
decision the appeal is taken. The Service shall have the same period of 
time in which to file a reply brief that was initially granted to the 
alien to file his or her brief. The time to file a reply brief commences 
from the date upon which the alien's brief was due, as originally set or 
extended. Upon written request of the alien, the Service officer from 
whose decision the appeal is taken or the Board may extend the period 
for filing a brief for good cause shown. The Board may authorize the 
filing of briefs directly with the Board. In its discretion, the Board 
may consider a brief that has been filed out of time. All briefs and 
other documents filed in conjunction with an appeal, unless filed by an 
alien directly with a Service office, shall include proof of service on 
the opposing party.
    (d) Effect of certification. The certification of a case, as 
provided in this part, shall not relieve the party affected from 
compliance with the provisions of this section in the event that he or 
she is entitled and desires to appeal from an initial decision, nor 
shall it serve to extend the time specified in

[[Page 20]]

the applicable parts of this chapter for the taking of an appeal.
    (e) Effect of departure from the United States. Departure from the 
United States of a person who is the subject of deportation proceedings, 
prior to the taking of an appeal from a decision in his or her case, 
shall constitute a waiver of his or her right to appeal.

[61 FR 18906, Apr. 29, 1996]



Sec. 3.4  Withdrawal of appeal.

    In any case in which an appeal has been taken, the party taking the 
appeal may file a written withdrawal thereof with the office at which 
the notice of appeal was filed. If the record in the case has not been 
forwarded to the Board on appeal in accordance with Sec. 3.5, the 
decision made in the case shall be final to the same extent as if no 
appeal had been taken. If the record has been forwarded on appeal, the 
withdrawal of the appeal shall be forwarded to the Board and, if no 
decision in the case has been made on the appeal, the record shall be 
returned and the initial decision shall be final to the same extent as 
if no appeal had been taken. If a decision on the appeal has been made 
by the Board in the case, further action shall be taken in accordance 
therewith. Departure from the United States of a person who is the 
subject of deportation proceedings subsequent to the taking of an 
appeal, but prior to a decision thereon, shall constitute a withdrawal 
of the appeal, and the initial decision in the case shall be final to 
the same extent as though no appeal had been taken. Departure from the 
United States of a person who is the subject of deportation or removal 
proceedings, except for arriving aliens as defined in Sec. 1.1(q) of 
this chapter, subsequent to the taking of an appeal, but prior to a 
decision thereon, shall constitute a withdrawal of the appeal, and the 
initial decision in the case shall be final to the same extent as though 
no appeal had been taken.

[61 FR 18907, Apr. 29, 1996, as amended at 62 FR 10331, Mar. 6, 1997]



Sec. 3.5  Forwarding of record on appeal.

    (a) Appeal from decision of an Immigration Judge. If an appeal is 
taken from a decision of an Immigration Judge, the record of proceeding 
shall be forwarded to the Board upon the request or the order of the 
Board.
    (b) Appeal from decision of a Service officer. If an appeal is taken 
from a decision of a Service officer, the record of proceeding shall be 
forwarded to the Board by the Service officer promptly upon receipt of 
the briefs of the parties, or upon expiration of the time allowed for 
the submission of such briefs. A Service officer need not forward such 
an appeal to the Board, but may reopen and reconsider any decision made 
by the officer if the new decision will grant the benefit that has been 
requested in the appeal. The new decision must be served on the 
appealing party within 45 days of receipt of any briefs or upon 
expiration of the time allowed for the submission of any briefs. If the 
new decision is not served within these time limits or the appealing 
party does not agree that the new decision disposes of the matter, the 
record of proceeding shall be immediately forwarded to the Board.

[61 FR 18907, Apr. 29, 1996]



Sec. 3.6  Stay of execution of decision.

    (a) Except as provided under Sec. 236.1 of this chapter, 
Sec. 3.19(i), and paragraph (b) of this section, the decision in any 
proceeding under this chapter from which an appeal to the Board may be 
taken shall not be executed during the time allowed for the filing of an 
appeal unless a waiver of the right to appeal is filed, nor shall such 
decision be executed while an appeal is pending or while a case is 
before the Board by way of certification.
    (b) The provisions of paragraph (a) of this section shall not apply 
to an order of an Immigration Judge under Sec. 3.23 or Sec. 242.22 of 
this chapter denying a motion to reopen or reconsider or to stay 
deportation, except where such order expressly grants a stay or where 
the motion was filed pursuant to the provisions of Sec. 3.23(b)(4)(iii). 
The Board may, in its discretion, stay deportation while an appeal is 
pending from any such order if no stay has been granted by the 
Immigration Judge or a Service officer.

[61 FR 18907, Apr. 29, 1996; 61 FR 21065, May 9, 1996, as amended at 63 
FR 27448, May 19, 1998]

[[Page 21]]



Sec. 3.7  Notice of certification.

    Whenever, in accordance with the provisions of Sec. 3.1(c), a case 
is certified to the Board, the alien or other party affected shall be 
given notice of certification. An Immigration Judge or Service officer 
may certify a case only after an initial decision has been made and 
before an appeal has been taken. If it is known at the time the initial 
decision is rendered that the case will be certified, the notice of 
certification shall be included in such decision and no further notice 
of certification shall be required. If it is not known until after the 
initial decision is rendered that the case will be certified, the office 
of the Service or the Immigration Court having administrative control 
over the record of proceeding shall cause a Notice of Certification to 
be served upon the parties. In either case, the notice shall inform the 
parties that the case is required to be certified to the Board and that 
they have the right to make representations before the Board, including 
the making of a request for oral argument and the submission of a brief. 
If either party desires to submit a brief, it shall be submitted to the 
office of the Service or the Immigration Court having administrative 
control over the record of proceeding for transmittal to the Board 
within the time prescribed in Sec. 3.3(c). The case shall be certified 
and forwarded to the Board by the office of the Service or Immigration 
Court having administrative jurisdiction over the case upon receipt of 
the brief, or upon the expiration of the time within which the brief may 
be submitted, or upon receipt of a written waiver of the right to submit 
a brief. The Board in its discretion may elect to accept for review or 
not accept for review any such certified case. If the Board declines to 
accept a certified case for review, the underlying decision shall become 
final on the date the Board declined to accept the case.

[61 FR 18907, Apr. 29, 1996]



Sec. 3.8  Fees.

    (a) Appeal from decision of an Immigration Judge or motion within 
the jurisdiction of the Board. Except as provided in paragraph (c) of 
this section or when filed by an officer of the Service, a Notice of 
Appeal to the Board of Immigration Appeals of Decision of Immigration 
Judge (Form EOIR-26) filed pursuant to Sec. 3.3(a), or a motion related 
to Immigration Judge proceedings that is within the jurisdiction of the 
Board and is filed directly with the Board pursuant to Sec. 3.2(g), 
shall be accompanied by the fee specified in applicable provisions of 
Sec. 103.7(b)(1) of this chapter. Fees shall be paid by check or money 
order payable to the ``United States Department of Justice.'' 
Remittances must be drawn on a bank or other institution located in the 
United States and be payable in United States currency. A remittance 
shall not satisfy the fee requirements of this section if the remittance 
is found uncollectible.
    (b) Appeal from decision of a Service officer or motion within the 
jurisdiction of the Board. Except as provided in paragraph (c) of this 
section, a Notice of Appeal to the Board of Immigration Appeals of 
Decision of District Director (Form EOIR-29), or a motion related to 
such a case filed under this part by any person other than an officer of 
the Service, filed directly with the Service shall be accompanied by the 
appropriate fee specified, and remitted in accordance with the 
provisions of Sec. 103.7 of this chapter.
    (c) Waiver of fees. The Board may, in its discretion, authorize the 
prosecution of any appeal or any motion over which the Board has 
jurisdiction without payment of the required fee. In any case in which 
an alien or other party affected is unable to pay the fee fixed for an 
appeal or motion, he or she shall file with the Notice of Appeal (Form 
EOIR-26 or Form EOIR-29) or motion, an Appeal Fee Waiver Request, (Form 
EOIR-26A). If the request does not establish the inability to pay the 
required fee, the appeal or motion will not be deemed properly filed.

[61 FR 18907, Apr. 29, 1996]



                      Subpart B--Immigration Court

    Source: 62 FR 10331, Mar. 6, 1997, unless otherwise noted.

[[Page 22]]



Sec. 3.9  Chief Immigration Judge.

    The Chief Immigration Judge shall be responsible for the general 
supervision, direction, and scheduling of the Immigration Judges in the 
conduct of the various programs assigned to them. The Chief Immigration 
Judge shall be assisted by Deputy Chief Immigration Judges and Assistant 
Chief Immigration Judges in the performance of his or her duties. These 
shall include, but are not limited to:
    (a) Establishment of operational policies; and
    (b) Evaluation of the performance of Immigration Courts, making 
appropriate reports and inspections, and taking corrective action where 
indicated.



Sec. 3.10  Immigration Judges.

    Immigration Judges, as defined in 8 CFR part 1, shall exercise the 
powers and duties in this chapter regarding the conduct of exclusion, 
deportation, removal, and asylum proceedings and such other proceedings 
which the Attorney General may assign them to conduct.



Sec. 3.11  Administrative control Immigration Courts.

    An administrative control Immigration Court is one that creates and 
maintains Records of Proceedings for Immigration Courts within an 
assigned geographical area. All documents and correspondence pertaining 
to a Record of Proceeding shall be filed with the Immigration Court 
having administrative control over that Record of Proceeding and shall 
not be filed with any other Immigration Court. A list of the 
administrative control Immigration Courts with their assigned 
geographical areas will be made available to the public at any 
Immigration Court.



            Subpart C--Immigration Court--Rules of Procedure



Sec. 3.12  Scope of rules.

    These rules are promulgated to assist in the expeditious, fair, and 
proper resolution of matters coming before Immigration Judges. Except 
where specifically stated, the rules in this subpart apply to matters 
before Immigration Judges, including, but not limited to, deportation, 
exclusion, removal, bond, rescission, departure control, asylum 
proceedings, and disciplinary proceedings under this part 3. The sole 
procedures for review of credible fear determinations by Immigration 
Judges are provided for in Sec. 3.42.

[57 FR 11571, Apr. 6, 1992, as amended at 62 FR 10331, Mar. 6, 1997; 65 
FR 39526, June 27, 2000]



Sec. 3.13  Definitions.

    As used in this subpart:
    Administrative control means custodial responsibility for the Record 
of Proceeding as specified in Sec. 3.11.
    Charging document means the written instrument which initiates a 
proceeding before an Immigration Judge. For proceedings initiated prior 
to April 1, 1997, these documents include an Order to Show Cause, a 
Notice to Applicant for Admission Detained for Hearing before 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien. For proceedings initiated after April 1, 1997, these 
documents include a Notice to Appear, a Notice of Referral to 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien.
    Filing means the actual receipt of a document by the appropriate 
Immigration Court.
    Service means physically presenting or mailing a document to the 
appropriate party or parties; except that an Order to Show Cause or 
Notice of Deportation Hearing shall be served in person to the alien, or 
by certified mail to the alien or the alien's attorney and a Notice to 
Appear or Notice of Removal Hearing shall be served to the alien in 
person, or if personal service is not practicable, shall be served by 
regular mail to the alien or the alien's attorney of record.

[62 FR 10332, Mar. 6, 1997]



Sec. 3.14  Jurisdiction and commencement of proceedings.

    (a) Jurisdiction vests, and proceedings before an Immigration Judge 
commence, when a charging document is filed with the Immigration Court 
by the Service. The charging document

[[Page 23]]

must include a certificate showing service on the opposing party 
pursuant to Sec. 3.32 which indicates the Immigration Court in which the 
charging document is filed. However, no charging document is required to 
be filed with the Immigration Court to commence bond proceedings 
pursuant to Secs. 3.19, 236.1(d) and 240.2(b) of this chapter.
    (b) When an Immigration Judge has jurisdiction over an underlying 
proceeding, sole jurisdiction over applications for asylum shall lie 
with the Immigration Judge.
    (c) Immigration Judges have jurisdiction to administer the oath of 
allegiance in administrative naturalization ceremonies conducted by the 
Service in accordance with Sec. 337.2(b) of this chapter.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997]



Sec. 3.15  Contents of the order to show cause and notice to appear and notification of change of address.

    (a) In the Order to Show Cause, the Service shall provide the 
following administrative information to the Executive Office for 
Immigration Review. Omission of any of these items shall not provide the 
alien with any substantive or procedural rights:
    (1) The alien's names and any known aliases;
    (2) The alien's address;
    (3) The alien's registration number, with any lead alien 
registration number with which the alien is associated;
    (4) The alien's alleged nationality and citizenship;
    (5) The language that the alien understands;
    (b) The Order to Show Cause and Notice to Appear must also include 
the following information:
    (1) The nature of the proceedings against the alien;
    (2) The legal authority under which the proceedings are conducted;
    (3) The acts or conduct alleged to be in violation of law;
    (4) The charges against the alien and the statutory provisions 
alleged to have been violated;
    (5) Notice that the alien may be represented, at no cost to the 
government, by counsel or other representative authorized to appear 
pursuant to 8 CFR 292.1;
    (6) The address of the Immigration Court where the Service will file 
the Order to Show Cause and Notice to Appear; and
    (7) A statement that the alien must advise the Immigration Court 
having administrative control over the Record of Proceeding of his or 
her current address and telephone number and a statement that failure to 
provide such information may result in an in absentia hearing in 
accordance with Sec. 3.26.
    (c) Contents of the Notice to Appear for removal proceedings. In the 
Notice to Appear for removal proceedings, the Service shall provide the 
following administrative information to the Immigration Court. Failure 
to provide any of these items shall not be construed as affording the 
alien any substantive or procedural rights.
    (1) The alien's names and any known aliases;
    (2) The alien's address;
    (3) The alien's registration number, with any lead alien 
registration number with which the alien is associated;
    (4) The alien's alleged nationality and citizenship; and
    (5) The language that the alien understands.
    (d) Address and telephone number. (1) If the alien's address is not 
provided on the Order to Show Cause or Notice to Appear, or if the 
address on the Order to Show Cause or Notice to Appear is incorrect, the 
alien must provide to the Immigration Court where the charging document 
has been filed, within five days of service of that document, a written 
notice of an address and telephone number at which the alien can be 
contacted. The alien may satisfy this requirement by completing and 
filing Form EOIR-33.
    (2) Within five days of any change of address, the alien must 
provide written notice of the change of address on Form EOIR-33 to the 
Immigration Court where the charging document has been filed, or if 
venue has been changed, to the Immigration Court to which venue has been 
changed.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997]

[[Page 24]]



Sec. 3.16  Representation.

    (a) The government may be represented in proceedings before an 
Immigration Judge.
    (b) The alien may be represented in proceedings before an 
Immigration Judge by an attorney or other representative of his or her 
choice in accordance with 8 CFR part 292, at no expense to the 
government.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 62 FR 10332, Mar. 6, 1997]



Sec. 3.17  Appearances.

    (a) In any proceeding before an Immigration Judge in which the alien 
is represented, the attorney or representative shall file a Notice of 
Appearance on Form EOIR-28 with the Immigration Court and shall serve a 
copy of the Notice of Appearance on the Service as required by 8 CFR 
3.32(a). Such Notice of Appearance must be filed and served even if a 
separate Notice of Appearance(s) has previously been filed with the 
Service for appearance(s) before the Service.
    (b) Withdrawal or substitution of an attorney or representative may 
be permitted by an Immigration Judge during proceedings only upon oral 
or written motion submitted without fee.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997]



Sec. 3.18  Scheduling of cases.

    (a) The Immigration Court shall be responsible for scheduling cases 
and providing notice to the government and the alien of the time, place, 
and date of hearings.
    (b) In removal proceedings pursuant to section 240 of the Act, the 
Service shall provide in the Notice to Appear, the time, place and date 
of the initial removal hearing, where practicable. If that information 
is not contained in the Notice to Appear, the Immigration Court shall be 
responsible for scheduling the initial removal hearing and providing 
notice to the government and the alien of the time, place, and date of 
hearing. In the case of any change or postponement in the time and place 
of such proceeding, the Immigration Court shall provide written notice 
to the alien specifying the new time and place of the proceeding and the 
consequences under section 240(b)(5) of the Act of failing, except under 
exceptional circumstances as defined in section 240(e)(1) of the Act, to 
attend such proceeding. No such notice shall be required for an alien 
not in detention if the alien has failed to provide the address required 
in section 239(a)(1)(F) of the Act.

[62 FR 10332, Mar. 6, 1997]



Sec. 3.19  Custody/bond.

    (a) Custody and bond determinations made by the service pursuant to 
8 CFR part 236 may be reviewed by an Immigration Judge pursuant to 8 CFR 
part 236.
    (b) Application for an initial bond redetermination by a respondent, 
or his or her attorney or representative, may be made orally, in 
writing, or, at the discretion of the Immigration Judge, by telephone.
    (c) Applications for the exercise of authority to review bond 
determinations shall be made to one of the following offices, in the 
designated order:
    (1) If the respondent is detained, to the Immigration Court having 
jurisdiction over the place of detention;
    (2) To the Immigration Court having administrative control over the 
case; or
    (3) To the Office of the Chief Immigration Judge for designation of 
an appropriate Immigration Court.
    (d) Consideration by the Immigration Judge of an application or 
request of a respondent regarding custody or bond under this section 
shall be separate and apart from, and shall form no part of, any 
deportation or removal hearing or proceeding. The determination of the 
Immigration Judge as to custody status or bond may be based upon any 
information that is available to the Immigration Judge or that is 
presented to him or her by the alien or the Service.
    (e) After an initial bond redetermination, a request for a 
subsequent bond redetermination shall be made in writing and shall be 
considered only upon a showing that the alien's circumstances have 
changed materially since the prior bond redetermination.

[[Page 25]]

    (f) The determination of an Immigration Judge with respect to 
custody status or bond redetermination shall be entered on the 
appropriate form at the time such decision is made and the parties shall 
be informed orally or in writing of the reasons for the decision. An 
appeal from the determination by an Immigration Judge may be taken to 
the Board of Immigration Appeals pursuant to Sec. 3.38.
    (g) While any proceeding is pending before the Executive Office for 
Immigration Review, the Service shall immediately advise the Immigration 
Court having administrative control over the Record of Proceeding of a 
change in the respondent/applicant's custody location or of release from 
Service custody, or subsequent taking into Service custody, of a 
respondent/applicant. This notification shall be in writing and shall 
state the effective date of the change in custody location or status, 
and the respondent/applicant's current fixed street address, including 
zip code.
    (h)(1)(i) While the Transition Period Custody Rules (TPCR) set forth 
in section 303(b)(3) of Div. C of Pub. L. 104-208 remain in effect, an 
immigration judge may not redetermine conditions of custody imposed by 
the Service with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including persons 
paroled after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens subject to section 303(b)(3)(A) of Pub. L. 104-208 who 
are not ``lawfully admitted'' (as defined in Sec. 236.1(c)(2) of this 
chapter); or
    (E) Aliens designated in Sec. 236.1(c) of this chapter as ineligible 
to be considered for release.
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 235 or 236 of this chapter. In addition, 
with respect to paragraphs (h)(1)(i)(C), (D), and (E) of this section, 
nothing in this paragraph shall be construed as prohibiting an alien 
from seeking a determination by an immigration judge that the alien is 
not properly included within any of those paragraphs.
    (2)(i) Upon expiration of the Transition Period Custody Rules set 
forth in section 303(b)(3) of Div. C. of Pub. L. 104-208, an immigration 
judge may not redetermine conditions of custody imposed by the Service 
with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including aliens paroled 
after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens in removal proceedings subject to section 236(c)(1) of 
the Act (as in effect after expiration of the Transition Period Custody 
Rules); and
    (E) Aliens in deportation proceedings subject to section 242(a)(2) 
of the Act (as in effect prior to April 1, 1997, and as amended by 
section 440(c) of Pub. L. 104-132).
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 235 or 236 of this chapter. In addition, 
with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, 
nothing in this paragraph shall be construed as prohibiting an alien 
from seeking a determination by an immigration judge that the alien is 
not properly included within any of those paragraphs.
    (3) Except as otherwise provided in paragraph (h)(1) of this 
section, an alien subject to section 303(b)(3)(A) of Div. C of Pub. L. 
104-208 may apply to the Immigration Court, in a manner consistent with 
paragraphs (c)(1) through (c)(3) of this section, for a redetermination 
of custody conditions set by the Service. Such an alien must first 
demonstrate, by clear and convincing evidence, that release would not 
pose a danger to other persons or to property. If an alien meets this 
burden, the alien must further demonstrate, by clear and convincing 
evidence, that the alien is likely to appear for any scheduled 
proceeding or interview.
    (4) Unremovable aliens. A determination of a district director (or 
other official designated by the Commissioner)

[[Page 26]]

regarding the exercise of authority under section 303(b)(3)(B)(ii) of 
Div. C. of Pub. L. 104-208 (concerning release of aliens who cannot be 
removed because the designated country of removal will not accept their 
return) is final, and shall not be subject to redetermination by an 
immigration judge.
    (i) Stay of custody order pending Service appeal--(1) General 
emergency stay authority. The Board of Immigration Appeals (Board) has 
the authority to stay the order of an immigration judge redetermining 
the conditions of custody of an alien when the Service appeals the 
custody decision. The Service is entitled to seek an emergency stay for 
the Board in connection with such an appeal at any time.
    (2) Automatic stay in certain cases. If an alien is subject to 
section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and 
as amended by section 440(c) of Pub. L. 104-132), section 303(b)(3)(A) 
of Div. C of Pub. L. 104-208, or section 236(c)(1) of the Act (as 
designated on April 1, 1997), and the district director has denied the 
alien's request for release or has set a bond of $10,000 or more, any 
order of the immigration judge authorizing release (on bond or 
otherwise) shall be stayed upon the Service's filing of a Notice of 
Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the 
Immigration Court on the day the order is issued, and shall remain in 
abeyance pending decision of the appeal by the Board of Immigration 
Appeals. The stay shall lapse upon failure of the Service to file a 
timely notice of appeal in accordance with Sec. 3.38.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997; 63 FR 27448, May 19, 1998]



Sec. 3.20  Change of venue.

    (a) Venue shall lie at the Immigration Court where jurisdiction 
vests pursuant to Sec. 3.14.
    (b) The Immigration Judge, for good cause, may change venue only 
upon motion by one of the parties, after the charging document has been 
filed with the Immigration Court. The Immigration Judge may grant a 
change of venue only after the other party has been given notice and an 
opportunity to respond to the motion to change venue.
    (c) No change of venue shall be granted without identification of a 
fixed street address, including city, state and ZIP code, where the 
respondent/applicant may be reached for further hearing notification.

[57 FR 11572, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997]



Sec. 3.21  Pre-hearing conferences and statement.

    (a) Pre-hearing conferences may be scheduled at the discretion of 
the Immigration Judge. The conference may be held to narrow issues, to 
obtain stipulations between the parties, to exchange information 
voluntarily, and otherwise to simplify and organize the proceeding.
    (b) The Immigration Judge may order any party to file a pre-hearing 
statement of position that may include, but is not limited to: A 
statement of facts to which both parties have stipulated, together with 
a statement that the parties have communicated in good faith to 
stipulate to the fullest extent possible; a list of proposed witnesses 
and what they will establish; a list of exhibits, copies of exhibits to 
be introduced, and a statement of the reason for their introduction; the 
estimated time required to present the case; and, a statement of 
unresolved issues involved in the proceedings.
    (c) If submission of a pre-hearing statement is ordered under 
paragraph (b) of this section, an Immigration Judge also may require 
both parties, in writing prior to the hearing, to make any evidentiary 
objections regarding matters contained in the pre-hearing statement. If 
objections in writing are required but not received by the date for 
receipt set by the Immigration Judge, admission of all evidence 
described in the pre-hearing statement shall be deemed unopposed.

[57 FR 11572, Apr. 6, 1992]

[[Page 27]]



Sec. 3.22  Interpreters.

    Any person acting as an interpreter in a hearing shall swear or 
affirm to interpret and translate accurately, unless the interpreter is 
an employee of the United States Government, in which event no such oath 
or affirmation shall be required.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 3.23  Reopening or reconsideration before the Immigration Court.

    (a) Pre-decision motions. Unless otherwise permitted by the 
Immigration Judge, motions submitted prior to the final order of an 
Immigration Judge shall be in writing and shall state, with 
particularity the grounds therefore, the relief sought, and the 
jurisdiction. The Immigration Judge may set and extend time limits for 
the making of motions and replies thereto. A motion shall be deemed 
unopposed unless timely response is made.
    (b) Before the Immigration Court--(1) In general. An Immigration 
Judge may upon his or her own motion at any time, or upon motion of the 
Service or the alien, reopen or reconsider any case in which he or she 
has made a decision, unless jurisdiction is vested with the Board of 
Immigration Appeals. Subject to the exceptions in this paragraph and 
paragraph (b)(4), a party may file only one motion to reconsider and one 
motion to reopen proceedings. A motion to reconsider must be filed 
within 30 days of the date of entry of a final administrative order of 
removal, deportation, or exclusion, or on or before July 31, 1996, 
whichever is later. A motion to reopen must be filed within 90 days of 
the date of entry of a final administrative order of removal, 
deportation, or exclusion, or on or before September 30, 1996, whichever 
is later. A motion to reopen or to reconsider shall not be made by or on 
behalf of a person who is the subject of removal, deportation, or 
exclusion proceedings subsequent to his or her departure from the United 
States. Any departure from the United States, including the deportation 
or removal of a person who is the subject of exclusion, deportation, or 
removal proceedings, occurring after the filing of a motion to reopen or 
a motion to reconsider shall constitute a withdrawal of such motion. The 
time and numerical limitations set forth in this paragraph do not apply 
to motions by the Service in removal proceedings pursuant to section 240 
of the Act. Nor shall such limitations apply to motions by the Service 
in exclusion or deportation proceedings, when the basis of the motion is 
fraud in the original proceeding or a crime that would support 
termination of asylum in accordance with Sec. 208.22(e) of this chapter.
    (i) Form and contents of the motion. The motion shall be in writing 
and signed by the affected party or the attorney or representative of 
record, if any. The motion and any submission made in conjunction with 
it must be in English or accompanied by a certified English translation. 
Motions to reopen or reconsider shall state whether the validity of the 
exclusion, deportation, or removal order has been or is the subject of 
any judicial proceeding and, if so, the nature and date thereof, the 
court in which such proceeding took place or is pending, and its result 
or status. In any case in which an exclusion, deportation, or removal 
order is in effect, any motion to reopen or reconsider such order shall 
include a statement by or on behalf of the moving party declaring 
whether the subject of the order is also the subject of any pending 
criminal proceeding under the Act, and, if so, the current status of 
that proceeding.
    (ii) Filing. Motions to reopen or reconsider a decision of an 
Immigration Judge must be filed with the Immigration Court having 
administrative control over the Record of Proceeding. A motion to reopen 
or a motion to reconsider shall include a certificate showing service on 
the opposing party of the motion and all attachments. If the moving 
party is not the Service, service of the motion shall be made upon the 
Office of the District Counsel for the district in which the case was 
completed. If the moving party, other than the Service, is represented, 
a Form EOIR-28, Notice of Appearance as Attorney or Representative 
Before an Immigration Judge must be filed with the motion. The motion 
must be filed in duplicate with the Immigration Court, accompanied by a 
fee receipt.

[[Page 28]]

    (iii) Assignment to an Immigration Judge. If the Immigration Judge 
is unavailable or unable to adjudicate the motion to reopen or 
reconsider, the Chief Immigration Judge or his or her delegate shall 
reassign such motion to another Immigration Judge.
    (iv) Replies to motions; decision. The Immigration Judge may set and 
extend time limits for replies to motions to reopen or reconsider. A 
motion shall be deemed unopposed unless timely response is made. The 
decision to grant or deny a motion to reopen or a motion to reconsider 
is within the discretion of the Immigration Judge.
    (v) Stays. Except in cases involving in absentia orders, the filing 
of a motion to reopen or a motion to reconsider shall not stay the 
execution of any decision made in the case. Execution of such decision 
shall proceed unless a stay of execution is specifically granted by the 
Immigration Judge, the Board, or an authorized officer of the Service.
    (2) Motion to reconsider. A motion to reconsider shall state the 
reasons for the motion by specifying the errors of fact or law in the 
Immigration Judge's prior decision and shall be supported by pertinent 
authority. Such motion may not seek reconsideration of a decision 
denying previous motion to reconsider.
    (3) Motion to reopen. A motion to reopen proceedings shall state the 
new facts that will be proven at a hearing to be held if the motion is 
granted and shall be supported by affidavits and other evidentiary 
material. Any motion to reopen for the purpose of acting on an 
application for relief must be accompanied by the appropriate 
application for relief and all supporting documents. A motion to reopen 
will not be granted unless the Immigration Judge is satisfied that 
evidence sought to be offered is material and was not available and 
could not have been discovered or presented at the former hearing. A 
motion to reopen for the purpose of providing the alien an opportunity 
to apply for any form of discretionary relief will not be granted if it 
appears that the alien's right to apply for such relief was fully 
explained to him or her by the Immigration Judge and an opportunity to 
apply therefore was afforded at the hearing, unless the relief is sought 
on the basis of circumstances that have arisen subsequent to the 
hearing. Pursuant to section 240A(d)(1) of the Act, a motion to reopen 
proceedings for consideration or further consideration of an application 
for relief under section 240A(a) (cancellation of removal for certain 
permanent residents) or 240A(b) (cancellation of removal and adjustment 
of status for certain nonpermanent residents) may be granted only if the 
alien demonstrates that he or she was statutorily eligible for such 
relief prior to the service of a notice to appear, or prior to the 
commission of an offense referred to in section 212(a)(2) of the Act 
that renders the alien inadmissible or removable under sections 
237(a)(2) of the Act or (a)(4), whichever is earliest. The Immigration 
Judge has discretion to deny a motion to reopen even if the moving party 
has established a prima facie case for relief.
    (4) Exceptions to filing deadlines--(i) Asylum and withholding of 
removal. The time and numerical limitations set forth in paragraph 
(b)(1) of this section shall not apply if the basis of the motion is to 
apply for asylum under section 208 of the Act or withholding of removal 
under section 241(b)(3) of the Act or withholding of removal under the 
Convention Against Torture, and is based on changed country conditions 
arising in the country of nationality or the country to which removal 
has been ordered, if such evidence is material and was not available and 
could not have been discovered or presented at the previous proceeding. 
The filing of a motion to reopen under this section shall not 
automatically stay the removal of the alien. However, the alien may 
request a stay and, if granted by the Immigration Judge, the alien shall 
not be removed pending disposition of the motion by the Immigration 
Judge. If the original asylum application was denied based upon a 
finding that it was frivolous, then the alien is ineligible to file 
either a motion to reopen or reconsider, or for a stay of removal.
    (ii) Order entered in absentia or removal proceedings. An order of 
removal entered in absentia or in removal proceedings pursuant to 
section 240(b)(5) of the Act may be rescinded only upon a

[[Page 29]]

motion to reopen filed within 180 days after the date of the order of 
removal, if the alien demonstrates that the failure to appear was 
because of exceptional circumstances as defined in section 240(e)(1) of 
the Act. An order entered in absentia pursuant to section 240(b)(5) may 
be rescinded upon a motion to reopen filed at any time if the alien 
demonstrates that he or she did not receive notice in accordance with 
sections 239(a)(1) or (2) of the Act, or the alien demonstrates that he 
or she was in Federal or state custody and the failure to appear was 
through no fault of the alien. However, in accordance with section 
240(b)(5)(B) of the Act, no written notice of a change in time or place 
of proceeding shall be required if the alien has failed to provide the 
address required under section 239(a)(1)(F) of the Act. The filing of a 
motion under this paragraph shall stay the removal of the alien pending 
disposition of the motion by the Immigration Judge. An alien may file 
only one motion pursuant to this paragraph.
    (iii) Order entered in absentia in deportation or exclusion 
proceedings. (A) An order entered in absentia in deportation proceedings 
may be rescinded only upon a motion to reopen filed:
    (1) Within 180 days after the date of the order of deportation if 
the alien demonstrates that the failure to appear was because of 
exceptional circumstances beyond the control of the alien (e.g., serious 
illness of the alien or serious illness or death of an immediate 
relative of the alien, but not including less compelling circumstances); 
or
    (2) At any time if the alien demonstrates that he or she did not 
receive notice or if the alien demonstrates that he or she was in 
federal or state custody and the failure to appear was through no fault 
of the alien.
    (B) A motion to reopen exclusion hearings on the basis that the 
Immigration Judge improperly entered an order of exclusion in absentia 
must be supported by evidence that the alien had reasonable cause for 
his failure to appear.
    (C) The filing of a motion to reopen under paragraph (b)(4)(iii)(A) 
of this section shall stay the deportation of the alien pending decision 
on the motion and the adjudication of any properly filed administrative 
appeal.
    (D) The time and numerical limitations set forth in paragraph (b)(1) 
of this section shall not apply to a motion to reopen filed pursuant to 
the provisions of paragraph (b)(4)(iii)(A) of this section.
    (iv) Jointly filed motions. The time and numerical limitations set 
forth in paragraph (b)(1) of this section shall not apply to a motion to 
reopen agreed upon by all parties and jointly filed.

[52 FR 2936, Jan. 29, 1987, as amended at 55 FR 30680, July 27, 1990. 
Redesignated at 57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, 
June 30, 1995; 61 FR 18908, Apr. 29, 1996; 61 FR 19976, May 3, 1996; 61 
FR 21228, May 9, 1996; 62 FR 10332, Mar. 6, 1997; 62 FR 15362, Apr. 1, 
1997; 62 FR 17048, Apr. 9, 1997; 64 FR 8487, Feb. 19, 1999]



Sec. 3.24  Fees pertaining to matters within the jurisdiction of the Immigration Judge.

    Unless waived by the Immigration Judge, any fee pertaining to a 
matter within the jurisdiction of the Immigration Judge shall be 
remitted in accordance with the provisions of Sec. 103.7 of this 
chapter. Any such fee may be waived by the Immigration Judge upon a 
showing that the respondent/applicant is incapable of paying the fees 
because of indigency. A properly executed affidavit or unsworn 
declaration made pursuant to 28 U.S.C. 1746 by the respondent/applicant 
must accompany the request for waiver of fees and shall substantiate the 
indigency of the respondent/application.

[61 FR 18908, Apr. 29, 1996]



Sec. 3.25  Form of the proceeding.

    (a) Waiver of presence of the parties. The Immigration Judge may, 
for good cause, and consistent with section 240(b) of the Act, waive the 
presence of the alien at a hearing when the alien is represented or when 
the alien is a minor child at least one of whose parents or whose legal 
guardian is present. When it is impracticable by reason of an alien's 
mental incompetency for the alien to be present, the presence of the 
alien may be waived provided that the alien is represented at the 
hearing by an attorney or legal representative, a near relative, legal 
guardian, or friend.

[[Page 30]]

    (b) Stipulated request for order; waiver of hearing. An Immigration 
Judge may enter an order of deportation, exclusion or removal stipulated 
to by the alien (or the alien's representative) and the Service. The 
Immigration Judge may enter such an order without a hearing and in the 
absence of the parties based on a review of the charging document, the 
written stipulation, and supporting documents, if any. If the alien is 
unrepresented, the Immigration Judge must determine that the alien's 
waiver is voluntary, knowing, and intelligent. The stipulated request 
and required waivers shall be signed on behalf of the government and by 
the alien and his or her attorney or representative, if any. The 
attorney or representative shall file a Notice of Appearance in 
accordance with Sec. 3.16(b). A stipulated order shall constitute a 
conclusive determination of the alien's deportability or removability 
from the United States. The stipulation shall include:
    (1) An admission that all factual allegations contained in the 
charging document are true and correct as written;
    (2) A concession of deportability or inadmissibility as charged;
    (3) A statement that the alien makes no application for relief under 
the Act;
    (4) A designation of a country for deportation or removal under 
section 241(b)(2)(A)(i) of the Act;
    (5) A concession to the introduction of the written stipulation of 
the alien as an exhibit to the Record of Proceeding;
    (6) A statement that the alien understands the consequences of the 
stipulated request and that the alien enters the request voluntarily, 
knowingly, and intelligently;
    (7) A statement that the alien will accept a written order for his 
or her deportation, exclusion or removal as a final disposition of the 
proceedings; and
    (8) A waiver of appeal of the written order of deportation or 
removal.
    (c) Telephonic or video hearings. An Immigration Judge may conduct 
hearings through video conference to the same extent as he or she may 
conduct hearings in person. An Immigration Judge may also conduct a 
hearing through a telephone conference, but an evidentiary hearing on 
the merits may only be conducted through a telephone conference with the 
consent of the alien involved after the alien has been advised of the 
right to proceed in person or, where available, through a video 
conference, except that credible fear determinations may be reviewed by 
the Immigration Judge through a telephone conference without the consent 
of the alien.

[62 FR 10334, Mar. 6, 1997]



Sec. 3.26  In absentia hearings.

    (a) In any exclusion proceeding before an Immigration Judge in which 
the applicant fails to appear, the Immigration Judge shall conduct an in 
absentia hearing if the Immigration Judge is satisfied that notice of 
the time and place of the proceeding was provided to the applicant on 
the record at a prior hearing or by written notice to the applicant or 
to the applicant's counsel of record on the charging document or at the 
most recent address in the Record of Proceeding.
    (b) In any deportation proceeding before an Immigration Judge in 
which the respondent fails to appear, the Immigration Judge shall order 
the respondent deported in absentia if: (1) The Service establishes by 
clear, unequivocal and convincing evidence that the respondent is 
deportable; and (2) the Immigration Judge is satisfied that written 
notice of the time and place of the proceedings and written notice of 
the consequences of failure to appear, as set forth in section 242B(c) 
of the Act (8 U.S.C. 1252b(c)), were provided to the respondent in 
person or were provided to the respondent or the respondent's counsel of 
record, if any, by certified mail.
    (c) In any removal proceeding before an Immigration Judge in which 
the alien fails to appear, the Immigration Judge shall order the alien 
removed in absentia if:
    (1) The Service establishes by clear, unequivocal, and convincing 
evidence that the alien is removable; and
    (2) The Service establishes by clear, unequivocal, and convincing 
evidence that written notice of the time and place of proceedings and 
written notice of the consequences of failure to appear

[[Page 31]]

were provided to the alien or the alien's counsel of record.
    (d) Written notice to the alien shall be considered sufficient for 
purposes of this section if it was provided at the most recent address 
provided by the alien. If the respondent fails to provide his or her 
address as required under Sec. 3.15(d), no written notice shall be 
required for an Immigration Judge to proceed with an in absentia 
hearing. This paragraph shall not apply in the event that the 
Immigration Judge waives the appearance of an alien under Sec. 3.25.

[59 FR 1899, Jan. 13, 1994, as amended at 62 FR 10334, Mar. 6, 1997; 62 
FR 15362, Apr. 1, 1997]



Sec. 3.27  Public access to hearings.

    All hearings, other than exclusion hearings, shall be open to the 
public except that:
    (a) Depending upon physical facilities, the Immigration Judge may 
place reasonable limitations upon the number in attendance at any one 
time with priority being given to the press over the general public;
    (b) For the purpose of protecting witnesses, parties, or the public 
interest, the Immigration Judge may limit attendance or hold a closed 
hearing.
    (c) In any proceeding before an Immigration Judge concerning an 
abused alien spouse, the hearing and the Record of Proceeding shall be 
closed to the public unless the abused spouse agrees that the hearing 
and the Record of Proceeding shall be open to the public. In any 
proceeding before an Immigration Judge concerning an abused alien child, 
the hearing and the Record of Proceeding shall be closed to the public.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 
11572, Apr. 6, 1992; 62 FR 10334, Mar. 6, 1997]



Sec. 3.28  Recording equipment.

    The only recording equipment permitted in the proceeding will be the 
equipment used by the Immigration Judge to create the official record. 
No other photographic, video, electronic, or similar recording device 
will be permitted to record any part of the proceeding.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 3.29  Continuances.

    The Immigration Judge may grant a motion for continuance for good 
cause shown.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 3.30  Additional charges in deportation or removal hearings.

    At any time during deportation or removal proceedings, additional or 
substituted charges of deportability and/or factual allegations may be 
lodged by the Service in writing. The alien shall be served with a copy 
of these additional charges and/or allegations and the Immigration Judge 
shall read them to the alien. The Immigration Judge shall advise the 
alien, if he or she is not represented by counsel, that the alien may be 
so represented. The alien may be given a reasonable continuance to 
respond to the additional factual allegations and charges. Thereafter, 
the provision of Sec. 240.10(b) of this chapter relating to pleading 
shall apply to the additional factual allegations and charges.

[62 FR 10335, Mar. 6, 1997]



Sec. 3.31  Filing documents and applications.

    (a) All documents and applications that are to be considered in a 
proceeding before an Immigration Judge must be filed with the 
Immigration Court having administrative control over the Record of 
Proceeding.
    (b) Except as provided in 8 CFR 240.11(f), all documents or 
applications requiring the payment of a fee must be accompanied by a fee 
receipt from the Service or by an application for a waiver of fees 
pursuant to 8 CFR 3.24. Except as provided in Sec. 3.8(a) and (c), any 
fee relating to Immigration Judge proceedings shall be paid to, and 
accepted by, any Service office authorized to accept fees for other 
purposes pursuant to Sec. 103.7(a) of this chapter.
    (c) The Immigration Judge may set and extend time limits for the 
filing of applications and related documents

[[Page 32]]

and responses thereto, if any. If an application or document is not 
filed within the time set by the Immigration Judge, the opportunity to 
file that application or document shall be deemed waived.

[57 FR 11572, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 61 
FR 18908, Apr. 29, 1996; 61 FR 19976, May 3, 1996; 61 FR 21228, May 9, 
1996; 61 FR 46374, Sept. 3, 1996; 62 FR 45149, Aug. 26, 1997]



Sec. 3.32  Service and size of documents.

    (a) Except in in absentia hearings, a copy of all documents 
(including proposed exhibits or applications) filed with or presented to 
the Immigration Judge shall be simultaneously served by the presenting 
party on the opposing party or parties. Such service shall be in person 
or by first class mail to the most recent address contained in the 
Record of Proceeding. A certification showing service on the opposing 
party or parties on a date certain shall accompany any filing with the 
Immigration Judge unless service is made on the record during the 
hearing. Any documents or applications not containing such certification 
will not be considered by the Immigration Judge unless service is made 
on the record during a hearing.
    (b) Unless otherwise permitted by the Immigration Judge, all written 
material presented to Immigration Judges including offers of evidence, 
correspondence, briefs, memoranda, or other documents must be submitted 
on 8\1/2\'  x  11' size paper. The Immigration Judge may require that 
exhibits and other written material presented be indexed, paginated, and 
that a table of contents be provided.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 
11572, Apr. 6, 1992]



Sec. 3.33  Translation of documents.

    Any foreign language document offered by a party in a proceeding 
shall be accompanied by an English language translation and a 
certification signed by the translator that must be printed legibly or 
typed. Such certification must include a statement that the translator 
is competent to translate the document, and that the translation is true 
and accurate to the best of the translator's abilities.

[59 FR 1900, Jan. 13, 1994]



Sec. 3.34  Testimony.

    Testimony of witnesses appearing at the hearing shall be under oath 
or affirmation.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 3.35  Depositions and subpoenas.

    (a) Depositions. If an Immigration Judge is satisfied that a witness 
is not reasonably available at the place of hearing and that said 
witness' testimony or other evidence is essential, the Immigration Judge 
may order the taking of deposition either at his or her own instance or 
upon application of a party. Such order shall designate the official by 
whom the deposition shall be taken, may prescribe and limit the content, 
scope, or manner of taking the deposition, and may direct the production 
of documentary evidence.
    (b) Subpoenas issued subsequent to commencement of proceedings--(1) 
General. In any proceeding before an Immigration Judge, other than under 
8 CFR part 335, the Immigration Judge shall have exclusive jurisdiction 
to issue subpoenas requiring the attendance of witnesses or for the 
production of books, papers and other documentary evidence, or both. An 
Immigration Judge may issue a subpoena upon his or her own volition or 
upon application of the Service or the alien.
    (2) Application for subpoena. A party applying for a subpoena shall 
be required, as a condition precedent to its issuance, to state in 
writing or at the proceeding, what he or she expects to prove by such 
witnesses or documentary evidence, and to show affirmatively that he or 
she has made diligent effort, without success, to produce the same.
    (3) Issuance of subpoena. Upon being satisfied that a witness will 
not appear and testify or produce documentary evidence and that the 
witness' evidence is essential, the Immigration Judge shall issue a 
subpoena. The subpoena shall state the title of the proceeding and shall 
command the person to whom

[[Page 33]]

it is directed to attend and to give testimony at a time and place 
specified. The subpoena may also command the person to whom it is 
directed to produce the books, papers, or documents specified in the 
subpoena.
    (4) Appearance of witness. If the witness is at a distance of more 
than 100 miles from the place of the proceeding, the subpoena shall 
provide for the witness' appearance at the Immigration Court nearest to 
the witness to respond to oral or written interrogatories, unless there 
is no objection by any party to the witness' appearance at the 
proceeding.
    (5) Service. A subpoena issued under this section may be served by 
any person over 18 years of age not a party to the case.
    (6) Invoking aid of court. If a witness neglects or refuses to 
appear and testify as directed by the subpoena served upon him or her in 
accordance with the provisions of this section, the Immigration Judge 
issuing the subpoena shall request the United States Attorney for the 
district in which the subpoena was issued to report such neglect or 
refusal to the United States District Court and to request such court to 
issue an order requiring the witness to appear and testify and to 
produce the books, papers or documents designated in the subpoena.

[62 FR 10335, Mar. 6, 1997]



Sec. 3.36  Record of proceeding.

    The Immigration Court shall create and control the Record of 
Proceeding.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 60 FR 34089, June 30, 1995]



Sec. 3.37  Decisions.

    (a) A decision of the Immigration Judge may be rendered orally or in 
writing. If the decision is oral, it shall be stated by the Immigration 
Judge in the presence of the parties and a memorandum summarizing the 
oral decision shall be served on the parties. If the decision is in 
writing, it shall be served on the parties by first class mail to the 
most recent address contained in the Record of Proceeding or by personal 
service.
    (b) A written copy of the decision will not be sent to an alien who 
has failed to provide a written record of an address.

[57 FR 11573, Apr. 6, 1992, as amended at 59 FR 1900, Jan. 13, 1994]



Sec. 3.38  Appeals.

    (a) Decisions of Immigration Judges may be appealed to the Board of 
Immigration Appeals as authorized by 8 CFR 3.1(b).
    (b) The Notice of Appeal to the Board of Immigration Appeals of 
Decision of Immigration Judge (Form EOIR-26) shall be filed directly 
with the Board of Immigration Appeals within 30 calendar days after the 
stating of an Immigration Judge's oral decision or the mailing of an 
Immigration Judge's written decision. If the final date for filing falls 
on a Saturday, Sunday, or legal holiday, this appeal time shall be 
extended to the next business day. A Notice of Appeal (Form EOIR-26) may 
not be filed by any party who has waived appeal.
    (c) The date of filing of the Notice of Appeal (Form EOIR-26) shall 
be the date the Notice is received by the Board.
    (d) A Notice of Appeal (Form EOIR-26) must be accompanied by the 
appropriate fee or by an Appeal Fee Waiver Request (Form EOIR-26A). If 
the fee is not paid or the Appeal Fee Waiver Request (Form EOIR-26A) is 
not filed within the specified time period indicated in paragraph(b) of 
this section, the appeal will not be deemed properly filed and the 
decision of the Immigration Judge shall be final to the same extent as 
though no appeal had been taken.
    (e) Within five working days of any change of address, an alien must 
provide written notice of the change of address on Form EOIR-33 to the 
Board. Where a party is represented, the representative should also 
provide to the Board written notice of any change in the 
representative's business mailing address.
    (f) Briefs may be filed by both parties pursuant to 8 CFR 3.3(c).
    (g) In any proceeding before the Board wherein the respondent/
applicant is represented, the attorney or

[[Page 34]]

representative shall file a notice of appearance on the appropriate 
form. Withdrawal or substitution of an attorney or representative may be 
permitted by the Board during proceedings only upon written motion 
submitted without fee.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 60 FR 34089, June 30, 1995; 61 FR 18908, Apr. 29, 1996]



Sec. 3.39  Finality of decision.

    Except when certified to the Board, the decision of the Immigration 
Judge becomes final upon waiver of appeal or upon expiration of the time 
to appeal if no appeal is taken whichever occurs first.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 
11573, Apr. 6, 1992]



Sec. 3.40  Local operating procedures.

    An Immigration Court having administrative control over Records of 
Proceedings may establish local operating procedures, provided that:
    (a) Such operating procedure(s) shall not be inconsistent with any 
provision of this chapter;
    (b) A majority of the judges of the local Immigration Court shall 
concur in writing therein; and
    (c) The Chief Immigration Judge has approved the proposed operating 
procedure(s) in writing.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 60 FR 34090, June 30, 1995]



Sec. 3.41  Evidence of criminal conviction.

    In any proceeding before an Immigration Judge,
    (a) Any of the following documents or records shall be admissible as 
evidence in proving a criminal conviction:
    (1) A record of judgment and conviction;
    (2) A record of plea, verdict and sentence;
    (3) A docket entry from court records that indicates the existence 
of a conviction;
    (4) Minutes of a court proceeding or a transcript of a hearing that 
indicates the existence of a conviction;
    (5) An abstract of a record of conviction prepared by the court in 
which the conviction was entered, or by a state official associated with 
the state's repository of criminal justice records, that indicates the 
following: The charge or section of law violated, the disposition of the 
case, the existence and date of conviction, and the sentence;
    (6) Any document or record prepared by, or under the direction of, 
the court in which the conviction was entered that indicates the 
existence of a conviction.
    (b) Any document or record of the types specified in paragraph (a) 
of this section may be submitted if it complies with the requirement of 
Sec. 287.6(a) of this chapter, or a copy of any such document or record 
may be submitted if it is attested in writing by an immigration officer 
to be a true and correct copy of the original.
    (c) Any record of conviction or abstract that has been submitted by 
electronic means to the Service from a state or court shall be 
admissible as evidence to prove a criminal conviction if it:
    (1) Is certified by a state official associated with the state's 
repository of criminal justice records as an official record from its 
repository or by a court official from the court in which conviction was 
entered as an official record from its repository. Such certification 
may be by means of a computer-generated signature and statement of 
authenticity; and,
    (2) Is certified in writing by a Service official as having been 
received electronically from the state's record repository or the 
court's record repository.
    (d) Any other evidence that reasonably indicates the existence of a 
criminal conviction may be admissible as evidence thereof.

[58 FR 38953, July 21, 1993]



Sec. 3.42  Review of credible fear determination.

    (a) Referral. Jurisdiction for an Immigration Judge to review an 
adverse credible fear finding by an asylum officer pursuant to section 
235(b)(1)(B) of the Act shall commence with the filing by the Service of 
Form I-863, Notice of Referral to Immigration Judge. The Service shall 
also file with the notice of referral a copy of the written record

[[Page 35]]

of determination as defined in section 235(b)(1)(B)(iii)(II) of the Act, 
including a copy of the alien's written request for review, if any.
    (b) Record of proceeding. The Immigration Court shall create a 
Record of Proceeding for a review of an adverse credible fear 
determination. This record shall not be merged with any later proceeding 
pursuant to section 240 of the Act involving the same alien.
    (c) Procedures and evidence. The Immigration Judge may receive into 
evidence any oral or written statement which is material and relevant to 
any issue in the review. The testimony of the alien shall be under oath 
or affirmation administered by the Immigration Judge. If an interpreter 
is necessary, one will be provided by the Immigration Court. The 
Immigration Judge shall determine whether the review shall be in person, 
or through telephonic or video connection (where available). The alien 
may consult with a person or persons of the alien's choosing prior to 
the review.
    (d) Standard of review. The immigration judge shall make a de novo 
determination as to whether there is a significant possibility, taking 
into account the credibility of the statements made by the alien in 
support of the alien's claim and such other facts as are known to the 
immigration judge, that the alien could establish eligibility for asylum 
under section 208 of the Act or withholding under section 241(b)(3) of 
the Act or withholding under the Convention Against Torture.
    (e) Timing. The Immigration Judge shall conclude the review to the 
maximum extent practicable within 24 hours, but in no case later than 7 
days after the date the supervisory asylum officer has approved the 
asylum officer's negative credible fear determination issued on Form I-
869, Record of Negative Credible Fear Finding and Request for Review.
    (f) Decision. If an immigration judge determines that an alien has a 
credible fear of persecution or torture, the immigration judge shall 
vacate the order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
Act. Subsequent to the order being vacated, the Service shall issue and 
file Form I-862, Notice to Appear, with the Immigration Court to 
commence removal proceedings. The alien shall have the opportunity to 
apply for asylum and withholding of removal in the course of removal 
proceedings pursuant to section 240 of the Act. If an immigration judge 
determines that an alien does not have a credible fear of persecution or 
torture, the immigration judge shall affirm the asylum officer's 
determination and remand the case to the Service for execution of the 
removal order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
Act. No appeal shall lie from a review of an adverse credible fear 
determination made by an immigration judge.
    (g) Custody. An Immigration Judge shall have no authority to review 
an alien's custody status in the course of a review of an adverse 
credible fear determination made by the Service.

[62 FR 10335, Mar. 6, 1997, as amended at 64 FR 8487, Feb. 19, 1999]



Sec. 3.43  Motion to reopen for suspension of deportation and cancellation of removal pursuant to section 203(c) of the Nicaraguan Adjustment and Central 
          American Relief Act (NACARA).

    (a) Standard for adjudication. Except as provided in this section, a 
motion to reopen proceedings under section 309(g) of IIRIRA, as amended 
by section 203(c) of NACARA, will be adjudicated under applicable 
statutes and regulations governing motions to reopen.
    (b) Aliens eligible to reopen proceedings under section 203 of 
NACARA. A motion to reopen proceedings to apply for suspension of 
deportation or cancellation of removal under the special rules of 
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, must 
establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to section 244(a) of the INA (as in effect prior to April 1, 1997) or 
the special rule for cancellation of removal pursuant to section 309(f) 
of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible:
    (i) For suspension of deportation by operation of section 309(c)(5) 
of IIRIRA (as in effect prior to November 19, 1997); or

[[Page 36]]

    (ii) For cancellation of removal pursuant to section 240A of the 
INA, but for operation of section 309(f) of IIRIRA, as amended by 
section 203(b) of NACARA;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the following six classes:
    (i) A national of El Salvador who:
    (A) First entered the United States on or before September 19, 1990;
    (B) Registered for benefits pursuant to the settlement agreement in 
American Baptist Churches, et al. v. Thornburgh, 760 F.Supp. 796 (N.D. 
Cal. 1991) (ABC) on or before October 31, 1991, or applied for Temporary 
Protected Status (TPS) on or before October 31, 1991; and
    (C) Was not apprehended after December 19, 1990, at time of entry; 
or
    (ii) A national of Guatemala who:
    (A) First entered the United States on or before October 1, 1990;
    (B) Registered for ABC benefits on or before December 31, 1991; and
    (C) Was not apprehended after December 19, 1990, at time of entry; 
or
    (iii) A national of Guatemala or El Salvador who applied for asylum 
with INS on or before April 1, 1990; or
    (iv) An alien who:
    (A) Entered the United States on or before December 31, 1990;
    (B) Applied for asylum on or before December 31, 1991; and
    (C) At the time of filing such application for asylum was a national 
of the Soviet Union, Russia, any republic of the former Soviet Union, 
Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, 
Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former 
Yugoslavia; or
    (v) The spouse or child of a person who is described in paragraphs 
(b)(4)(i) through (b)(4)(iv) of this section and such person is prima 
facie eligible for and has applied for suspension of deportation or 
special rule cancellation of removal under section 203 of NACARA.
    (vi) An unmarried son or daughter of a person who is described in 
paragraph (b)(4)(i) through (b)(4)(iv) of this section and such person 
is prima facie eligible for and has applied for suspension of 
deportation or special rule cancellation of removal under section 203 of 
NACARA. If the son or daughter is 21 years of or older, the son or 
daughter must have entered the United States on or before October 1, 
1990.
    (c) Motion to reopen under section 203 of NACARA. (1) An alien 
filing a motion to reopen proceedings pursuant to section 309(g) of 
IIRIRA, as amended by section 203(c) of NACARA, may initially file a 
motion to reopen without an application for suspension of deportation or 
cancellation of removal and supporting documents, but the motion must be 
filed no later than September 11, 1998. The alien must allege in such 
motion to reopen that the alien:
    (i) Is prima facie eligible for suspension of deportation pursuant 
to section 244(a) of the INA (as in effect prior to April 1, 1997) or 
the special rule for cancellation of removal pursuant to section 309(g) 
of IIRIRA, as amended by section 203(b) of NACARA;
    (ii) Was or would be ineligible:
    (A) For suspension of deportation by operation of section 309(c)(5) 
of IIRIRA (as in effect prior to November 19, 1997); or
    (B) For cancellation of removal pursuant to section 240A of the INA, 
but for operation of section 309(f) of IIRIRA, as amended by section 
203(b) of NACARA;
    (iii) Has not been convicted at any time of an aggravated felony; 
and
    (iv) Falls within one of the six classes described in paragraph 
(b)(4) of this section.
    (2) A motion to reopen filed pursuant to paragraph (c)(1) shall be 
considered complete at the time of submission of an application for 
suspension of deportation or special rule cancellation of removal and 
accompanying documents. Such application must be submitted no later than 
150 days after the effective date of the rule implementing section 203 
of NACARA. Aliens described in paragraph (b)(4)(v) or (b)(4)(vi) of this 
section must include, as part of their submission, proof that their 
parent or spouse is prima facie eligible and has applied for relief 
under section 203 of NACARA.
    (3) The Service shall have 45 days from the date the alien serves 
the Immigration Court with either the EOIR Form 40 or the Form I-881 
application for suspension of deportation or special

[[Page 37]]

rule cancellation of removal to respond to that completed motion. If the 
alien fails to submit the required application within 150 days after the 
effective date of the rule implementing section 203 of NACARA, the 
motion will be denied as abandoned.
    (d) Fee for motion to reopen waived. No filing fee is required for a 
motion to reopen to apply for suspension of deportation or cancellation 
of removal under the special rules of section 309(g) of IIRIRA, as 
amended by section 203(c) of NACARA.
    (e) Jurisdiction over motions to reopen under section 203 of NACARA 
and remand of appeals. (1) Notwithstanding any other provisions, any 
motion to reopen filed pursuant to the special rules of section 309(g) 
of IIRIRA, as amended by section 203(c) of NACARA, shall be filed with 
the Immigration Court, even if the Board of Immigration Appeals issued 
an order in the case. The Immigration Court that last had jurisdiction 
over the proceedings will adjudicate a motion to reopen filed pursuant 
to the special rules of section 309(g) of IIRIRA, as amended by section 
203(c) of NACARA.
    (2) The Board will remand to the Immigration Court any presently 
pending appeal in which the alien appears eligible to apply for 
suspension of deportation or cancellation of removal under the special 
rules of section 309(g) of IIRIRA, as amended by section 203 of NACARA, 
and appears prima facie eligible for that relief. The alien will then 
have the opportunity to apply for suspension or cancellation under the 
special rules of NACARA before the Immigration Court.

[63 FR 31894, June 11, 1998; 63 FR 35117, June 29, 1998, as amended at 
64 FR 13666, Mar. 22, 1999]

Subpart D  [Reserved]



            Subpart E--List of Free Legal Services Providers

    Source: 62 FR 9073, Feb. 28, 1997, unless otherwise noted.



Sec. 3.61  List.

    (a) The Chief Immigration Judge shall maintain a current list of 
organizations and attorneys qualified under this subpart which provide 
free legal services. This list, which shall be updated not less than 
quarterly, shall be provided to aliens in immigration proceedings. The 
Chief Immigration Judge may designate an employee or employees to carry 
out his or her responsibilities under this subpart. Organizations and 
attorneys may be included on the list of free legal services providers 
if they qualify under one of the following categories:
    (1) Organizations recognized under Sec. 292.2 of this chapter that 
meet the qualifications set forth in Sec. 3.62(a) and whose 
representatives, if any, are authorized to practice before the Board and 
Immigration Courts;
    (2) Organizations not recognized under Sec. 292.2 of this chapter 
that meet the qualifications set forth in Sec. 3.62(b);
    (3) Bar associations that meet the qualifications set forth in 
Sec. 3.62(c); and
    (4) Attorneys, as defined in Sec. 1.1(f) of this chapter, who meet 
the qualifications set forth in Sec. 3.62(d).
    (b) The listing of an organization qualified under this subpart is 
not equivalent to recognition under Sec. 292.2 of this chapter.



Sec. 3.62  Qualifications.

    (a) Organizations recognized under Sec. 292.2. An organization that 
is recognized under Sec. 292.2 of this chapter that seeks to have its 
name appear on the list of free legal services providers maintained by 
the Chief Immigration Judge must have on its staff:
    (1) An attorney, as defined in Sec. 1.1(f) of this chapter; or
    (2) At least one accredited representative, as defined in 
Sec. 292.1(a)(4) of this chapter, who is authorized to practice before 
the Board and Immigration Courts.
    (b) Organizations not recognized under Sec. 292.2. An organization 
that is not recognized under Sec. 292.2 of this chapter that seeks to 
have its name appear on the list of free legal services providers 
maintained by the Chief Immigration Judge must declare that:
    (1) It is established in the United States;
    (2) It provides free legal services to indigent aliens; and

[[Page 38]]

    (3) It has on its staff, or retains at no expense to the alien, an 
attorney, as defined in Sec. 1.1(f) of this chapter, who is available to 
render such free legal services by representation in immigration 
proceedings.
    (c) Bar associations. A bar association that provides a referral 
service of attorneys who render pro bono assistance to aliens in 
immigration proceedings may apply to have its name appear on the list of 
free legal services providers maintained by the Chief Immigration Judge. 
Any other organization that provides such a referral service may also 
apply to have its name appear on the list of free legal services 
providers, and may, in the sole discretion of the Chief Immigration 
Judge, be included on the list.
    (d) Attorneys. An attorney, as defined in Sec. 1.1(f) of this 
chapter, who seeks to have his or her name appear on the list of free 
legal services providers maintained by the Chief Immigration Judge must 
declare in his or her application that he or she provides free legal 
services to indigent aliens and that he or she is willing to represent 
indigent aliens in immigration proceedings pro bono. An attorney under 
this section may not receive any direct or indirect remuneration from 
indigent aliens for representation in immigration proceedings, although 
the attorney may be regularly compensated by the firm or organization 
with which he or she is associated.



Sec. 3.63  Applications.

    (a) Generally. In order to qualify to appear on the list of free 
legal services providers maintained by the Chief Immigration Judge under 
this subpart, an organization or attorney must file an application 
requesting to be placed on the list. This application must be filed with 
the Office of the Chief Immigration Judge, along with proof of service 
on the Court Administrator of the Immigration Court having jurisdiction 
over each locality where the organization or attorney provides free 
legal services. Each submission must be identified by the notation 
``Application for Free Legal Services Providers List'' on the envelope, 
and must also indicate if the organization or attorney is willing to 
represent indigent aliens in asylum proceedings.
    (b) Organizations recognized under Sec. 292.2. An organization that 
is recognized under Sec. 292.2 of this chapter must submit a declaration 
signed by an authorized officer of the organization which states that 
the organization complies with all of the qualifications set forth in 
Sec. 3.62(a).
    (c) Organizations not recognized under Sec. 292.2. An organization 
that is not recognized under Sec. 292.2 of this chapter must submit a 
declaration signed by an authorized officer of the organization which 
states that the organization complies with all of the qualifications set 
forth in Sec. 3.62(b).
    (d) Attorneys. An attorney must:
    (1) Submit a declaration that states that:
    (i) He or she provides free legal services to indigent aliens;
    (ii) He or she is willing to represent indigent aliens in 
immigration proceedings pro bono; and
    (iii) He or she is not under any order of any court suspending, 
enjoining, restraining, disbarring, or otherwise restricting him or her 
in the practice of law; and
    (2) Include the attorney's bar number, if any, from each bar of the 
highest court of the state, possession, territory, or commonwealth in 
which he or she is admitted to practice law.
    (e) Changes in addresses or status. Organizations and attorneys 
referred to in this subpart are under a continuing obligation to notify 
the Chief Immigration Judge, in writing, within ten business days, of 
any change of address, telephone number, or qualifying or professional 
status. Failure to notify the Chief Immigration Judge of any such change 
may result in the name of the organization or attorney being removed 
from the list.



Sec. 3.64  Approval and denial of applications.

    The Court Administrator of the Immigration Court having jurisdiction 
over each locality where an organization or attorney provides free legal 
services shall forward a recommendation for approval or denial of each 
application submitted by the organization or attorney, and the reasons

[[Page 39]]

therefor, to the Chief Immigration Judge. The Chief Immigration Judge 
shall have the authority to approve or deny an application submitted by 
an organization or an attorney pursuant to Sec. 3.63. If an application 
is denied, the organization or attorney shall be notified of the 
decision in writing, at the organization's or attorney's last known 
address, and shall be given a written explanation of the grounds for 
such denial. A denial must be based on the failure of the organization 
or attorney to meet the qualifications and/or to comply with the 
procedures set forth in this subpart. The organization or attorney shall 
be advised of its, his or her right to appeal this decision to the Board 
of Immigration Appeals in accordance with Sec. 3.1(b) and 
Sec. 103.3(a)(1)(ii) of this chapter.



Sec. 3.65  Removal of an organization or attorney from list.

    (a) Involuntary removal. If the Chief Immigration Judge believes 
that an organization or attorney included on the list of free legal 
services providers no longer meets the qualifications set forth in this 
subpart, he or she shall promptly notify the organization or attorney in 
writing, at the organization's or attorney's last known address, of his 
or her intention to remove the name of the organization or attorney from 
the list. The organization or attorney may submit an answer within 30 
days from the date the notice is served. The organization or attorney 
must establish by clear, unequivocal, and convincing evidence that the 
organization's or attorney's name should not be removed from the list. 
If, after consideration of any answer submitted by the organization or 
attorney, the Chief Immigration Judge determines that the organization 
or attorney no longer meets the qualifications set forth in this 
subpart, the Chief Immigration Judge shall promptly remove the name of 
the organization or attorney from the list of free legal service 
providers, the removal of which will be reflected in the next quarterly 
update, and shall notify the organization or attorney of such removal in 
writing, at the organization's or attorney's last known address. 
Organizations and attorneys shall be advised of their right to appeal 
this decision to the Board of Immigration Appeals in accordance with 
Sec. 3.1(b) and Sec. 103.3(a)(1)(ii) of this chapter.
    (b) Voluntary removal. Any organization or attorney qualified under 
this subpart may, at any time, submit a written request to have its, his 
or her name removed from the list of free legal service providers. Such 
a request shall be honored, and the name of the organization or attorney 
shall promptly be removed from the list, the removal of which will be 
reflected in the next quarterly update.

 Subpart F [Reserved]



 Subpart G--Professional Conduct for Practitioners--Rules and Procedures

    Source: 65 FR 39526, June 27, 2000, unless otherwise noted.



Sec. 3.101  General provisions.

    (a) Authority to sanction. An adjudicating official or the Board of 
Immigration Appeals (the Board) may impose disciplinary sanctions 
against any practitioner if it finds it to be in the public interest to 
do so. It will be in the public interest to impose disciplinary 
sanctions against a practitioner who is authorized to practice before 
the Board and the Immigration Courts when such person has engaged in 
criminal, unethical, or unprofessional conduct, or in frivolous 
behavior, as set forth in Sec. 3.102. In accordance with the 
disciplinary proceedings set forth in this subpart and outlined below, 
an adjudicating official or the Board may impose any of the following 
disciplinary sanctions:
    (1) Expulsion, which is permanent, from practice before the Board 
and the Immigration Courts or the Immigration and Naturalization Service 
(the Service), or before all three authorities;
    (2) Suspension, including immediate suspension, from practice before 
the Board and the Immigration Courts or the Service, or before all three 
authorities;
    (3) Public or private censure; or

[[Page 40]]

    (4) Such other disciplinary sanctions as the adjudicating official 
or the Board deems appropriate.
    (b) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
Sec. 1.1(f) of this chapter who does not represent the federal 
government, or any representative as defined in Sec. 1.1(j) of this 
chapter. Attorneys employed by the Department of Justice shall be 
subject to discipline pursuant to Sec. 3.109. Nothing in this regulation 
shall be construed as authorizing persons who do not meet the definition 
of practitioner to represent individuals before the Board and the 
Immigration Courts or the Service.



Sec. 3.102  Grounds.

    It is deemed to be in the public interest for an adjudicating 
official or the Board to impose disciplinary sanctions against any 
practitioner who falls within one or more of the categories enumerated 
in this section, but these categories do not constitute the exclusive 
grounds for which disciplinary sanctions may be imposed in the public 
interest. Nothing in this regulation should be read to denigrate the 
practitioner's duty to represent zealously his or her client within the 
bounds of the law. A practitioner who falls within one of the following 
categories shall be subject to disciplinary sanctions in the public 
interest if he or she:
    (a) Charges or receives, either directly or indirectly:
    (1) In the case of an attorney, any fee or compensation for specific 
services rendered for any person that shall be deemed to be grossly 
excessive. The factors to be considered in determining whether a fee or 
compensation is grossly excessive include the following: The time and 
labor required, the novelty and difficulty of the questions involved, 
and the skill requisite to perform the legal service properly; the 
likelihood, if apparent to the client, that the acceptance of the 
particular employment will preclude other employment by the attorney; 
the fee customarily charged in the locality for similar legal services; 
the amount involved and the results obtained; the time limitations 
imposed by the client or by the circumstances; the nature and length of 
the professional relationship with the client; and the experience, 
reputation, and ability of the attorney or attorneys performing the 
services,
    (2) In the case of an accredited representative as defined in 
Sec. 292.1(a)(4) of this chapter, any fee or compensation for specific 
services rendered for any person, except that an accredited 
representative may be regularly compensated by the organization of which 
he or she is an accredited representative, or
    (3) In the case of a law student or law graduate as defined in 
Sec. 292.1(a)(2) of this chapter, any fee or compensation for specific 
services rendered for any person, except that a law student or law 
graduate may be regularly compensated by the organization or firm with 
which he or she is associated as long as he or she is appearing without 
direct or indirect remuneration from the client he or she represents;
    (b) Bribes, attempts to bribe, coerces, or attempts to coerce, by 
any means whatsoever, any person (including a party to a case or an 
officer or employee of the Department of Justice) to commit any act or 
to refrain from performing any act in connection with any case;
    (c) Knowingly or with reckless disregard makes a false statement of 
material fact or law, or willfully misleads, misinforms, threatens, or 
deceives any person (including a party to a case or an officer or 
employee of the Department of Justice), concerning any material and 
relevant matter relating to a case, including knowingly or with reckless 
disregard offering false evidence. If a practitioner has offered 
material evidence and comes to know of its falsity, the practitioner 
shall take appropriate remedial measures;
    (d) Solicits professional employment, through in-person or live 
telephone contact or through the use of runners, from a prospective 
client with whom the practitioner has no family or prior professional 
relationship, when a significant motive for the practitioner's doing so 
is the practitioner's pecuniary gain. If the practitioner has no family 
or prior professional relationship with the prospective client known to 
be in need of legal services in a particular

[[Page 41]]

matter, the practitioner must include the words ``Advertising Material'' 
on the outside of the envelope of any written communication and at the 
beginning and ending of any recorded communication. Such advertising 
material or similar solicitation documents may not be distributed by any 
person in or around the premises of any building in which an Immigration 
Court is located;
    (e) Is subject to a final order of disbarment or suspension, or has 
resigned with an admission of misconduct.
    (1) In the jurisdiction of any state, possession, territory, 
commonwealth, or the District of Columbia, or in any Federal court in 
which the practitioner is admitted to practice, or
    (2) Before any executive department, board, commission, or other 
governmental unit;
    (f) Knowingly or with reckless disregard makes a false or misleading 
communication about his or her qualifications or services. A 
communication is false or misleading if it:
    (1) Contains a material misrepresentation of fact or law, or omits a 
fact necessary to make the statement considered as a whole not 
materially misleading, or,
    (2) Contains an assertion about the practitioner or his or her 
qualifications or services that cannot be substantiated. A practitioner 
shall not state or imply that he or she has been recognized or certified 
as a specialist in immigration and/or nationality law unless such 
certification is granted by the appropriate state regulatory authority 
or by an organization that has been approved by the appropriate state 
regulatory authority to grant such certification;
    (g) Engages in contumelious or otherwise obnoxious conduct, with 
regard to a case in which he or she acts in a representative capacity, 
which would constitute contempt of court in a judicial proceeding;
    (h) Has been found guilty of, or pleaded guilty or nolo contendere 
to, a serious crime, in any court of the United States, or of any state, 
possession, territory, commonwealth, or the District of Columbia. A 
serious crime includes any felony and also includes any lesser crime, a 
necessary element of which, as determined by the statutory or common law 
definition of such crime in the jurisdiction where the judgment was 
entered, involves interference with the administration of justice, false 
swearing, misrepresentation, fraud, willful failure to file income tax 
returns, deceit, dishonesty, bribery, extortion, misappropriation, 
theft, or an attempt, or a conspiracy or solicitation of another, to 
commit a serious crime. A plea or verdict of guilty or a conviction 
after a plea of nolo contendere is deemed to be a conviction within the 
meaning of this section;
    (i) Knowingly or with reckless disregard falsely certifies a copy of 
a document as being a true and complete copy of an original;
    (j) Engages in frivolous behavior in a proceeding before an 
Immigration Court, the Board, or any other administrative appellate body 
under title II of the Immigration and Nationality Act, provided:
    (1) A practitioner engages in frivolous behavior when he or she 
knows or reasonably should have known that his or her actions lack an 
arguable basis in law or in fact, or are taken for an improper purpose, 
such as to harass or to cause unnecessary delay. Actions that, if taken 
improperly, may be subject to disciplinary sanctions include, but are 
not limited to, the making of an argument on any factual or legal 
question, the submission of an application for discretionary relief, the 
filing of a motion, or the filing of an appeal. The signature of a 
practitioner on any filing, application, motion, appeal, brief, or other 
document constitutes certification by the signer that the signer has 
read the filing, application, motion, appeal, brief, or other document 
and that, to the best of the signer's knowledge, information, and 
belief, formed after inquiry reasonable under the circumstances, the 
document is well-grounded in fact and is warranted by existing law or by 
a good faith argument for the extension, modification, or reversal of 
existing law or the establishment of new law, and is not interposed for 
any improper purpose.
    (2) The imposition of disciplinary sanctions for frivolous behavior 
under

[[Page 42]]

this section in no way limits the authority of the Board to dismiss an 
appeal summarily pursuant to Sec. 3.1(d)(1-a);
    (k) Engages in conduct that constitutes ineffective assistance of 
counsel, as previously determined in a finding by the Board or an 
Immigration Judge in an immigration proceeding, and a disciplinary 
complaint is filed within one year of the finding;
    (l) Repeatedly fails to appear for scheduled hearings in a timely 
manner without good cause; or
    (m) Assists any person, other than a practitioner as defined in 
Sec. 3.101(b), in the performance of activity that constitutes the 
unauthorized practice of law.



Sec. 3.103  Immediate suspension and summary disciplinary proceedings; duty of practitioner to notify EOIR of conviction or discipline.

    (a) Immediate suspension--(1) Petition. The Office of the General 
Counsel of EOIR shall file a petition with the Board to suspend 
immediately from practice before the Board and the Immigration Courts 
any practitioner who has been found guilty of, or pleaded guilty or nolo 
contendere to, a serious crime, as defined in Sec. 3.102(h), or any 
practitioner who has been disbarred or suspended on an interim or final 
basis by, or has resigned with an admission of misconduct from, the 
highest court of any state, possession, territory, commonwealth, or the 
District of Columbia, or any Federal court. A copy of the petition shall 
be forwarded to the Office of the General Counsel of the Service, which 
may submit a written request to the Board that entry of any order 
immediately suspending a practitioner before the Board or the 
Immigration Courts also apply to the practitioner's authority to 
practice before the Service. Proof of service on the practitioner of the 
Service's request to broaden the scope of any immediate suspension must 
be filed with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the Office of the General Counsel of EOIR, 
together with a certified copy of a court record finding that a 
practitioner has been so found guilty of a serious crime, or has been so 
disciplined or has so resigned, the Board shall forthwith enter an order 
immediately suspending the practitioner from practice before the Board, 
the Immigration Courts, and/or the Service, notwithstanding the pendency 
of an appeal, if any, of the underlying conviction or discipline, 
pending final disposition of a summary disciplinary proceeding as 
provided in paragraph (b) of this section. Such immediate suspension 
will continue until imposition of a final administrative decision. Upon 
good cause shown, the Board may set aside such order of immediate 
suspension when it appears in the interest of justice to do so. If a 
final administrative decision includes the imposition of a period of 
suspension, time spent by the practitioner under immediate suspension 
pursuant to this paragraph may be credited toward the period of 
suspension imposed under the final administrative decision.
    (b) Summary disciplinary proceedings. The Office of the General 
Counsel of EOIR shall promptly initiate summary disciplinary proceedings 
against any practitioner described in paragraph (a) of this section. 
Summary proceedings shall be initiated by the issuance of a Notice of 
Intent to Discipline, accompanied by a certified copy of the order, 
judgment, and/or record evidencing the underlying criminal conviction, 
discipline, or resignation. Summary proceedings shall be conducted in 
accordance with the provisions set forth in Secs. 3.105 and 3.106. Any 
such summary proceeding shall not be concluded until all direct appeals 
from an underlying criminal conviction shall have been completed.
    (1) In matters concerning criminal convictions, a certified copy of 
the court record, docket entry, or plea shall be conclusive evidence of 
the commission of the crime in any summary disciplinary proceeding based 
thereon.
    (2) In the case of a summary proceeding based upon a final order of 
disbarment or suspension, or a resignation with an admission of 
misconduct, (i.e., reciprocal discipline), a certified

[[Page 43]]

copy of a judgment or order of discipline shall establish a rebuttable 
presumption of the professional misconduct. Disciplinary sanctions shall 
follow in such a proceeding unless the attorney can rebut the 
presumption by demonstrating by clear, unequivocal, and convincing 
evidence that:
    (i) The underlying disciplinary proceeding was so lacking in notice 
or opportunity to be heard as to constitute a deprivation of due 
process;
    (ii) There was such an infirmity of proof establishing the 
attorney's professional misconduct as to give rise to the clear 
conviction that the adjudicating official could not, consistent with his 
or her duty, accept as final the conclusion on that subject; or
    (iii) The imposition of discipline by the adjudicating official 
would result in grave injustice.
    (c) Duty of practitioner to notify EOIR of conviction or discipline. 
Any practitioner who has been found guilty of, or pleaded guilty or nolo 
contendere to, a serious crime, as defined in Sec. 3.102(h), or who has 
been disbarred or suspended by, or who has resigned with an admission of 
misconduct from, the highest court of any state, possession, territory, 
commonwealth, or the District of Columbia, or by any Federal court, must 
notify the Office of the General Counsel of EOIR of any such conviction 
or disciplinary action within 30 days of the issuance of the initial 
order, even if an appeal of the conviction or discipline is pending. 
Failure to do so may result in immediate suspension as set forth in 
paragraph (a) of this section and other final discipline. This duty to 
notify applies only to convictions for serious crimes and to orders 
imposing discipline for professional misconduct entered on or after 
August 28, 2000.



Sec. 3.104  Filing of complaints; preliminary inquiries; resolutions; referral of complaints.

    (a) Filing of complaints--(1) Practitioners authorized to practice 
before the Board and the Immigration Courts. Complaints of criminal, 
unethical, or unprofessional conduct, or of frivolous behavior by a 
practitioner who is authorized to practice before the Board and the 
Immigration Courts, shall be filed with the Office of the General 
Counsel of EOIR. Disciplinary complaints must be submitted in writing 
and must state in detail the information that supports the basis for the 
complaint, including, but not limited to, the names and addresses of the 
complainant and the practitioner, the date(s) of the conduct or 
behavior, the nature of the conduct or behavior, the individuals 
involved, the harm or damages sustained by the complainant, and any 
other relevant information. Any individual may file a complaint with the 
Office of the General Counsel of EOIR using the Form EOIR-44. The Office 
of the General Counsel of EOIR shall notify the Office of the General 
Counsel of the Service of any disciplinary complaint that pertains, in 
whole or in part, to a matter involving the Service.
    (2) Practitioners authorized to practice before the Service. 
Complaints of criminal, unethical, or unprofessional conduct, or of 
frivolous behavior by a practitioner who is authorized to practice 
before the Service, shall be filed with the Office of the General 
Counsel of the Service pursuant to the procedures set forth in 
Sec. 292.3(d) of this chapter.
    (b) Preliminary inquiry. Upon receipt of a disciplinary complaint or 
on its own initiative, the Office of the General Counsel of EOIR will 
initiate a preliminary inquiry. If a complaint is filed by a client or 
former client, the complainant thereby waives the attorney-client 
privilege and any other applicable privilege, to the extent necessary to 
conduct a preliminary inquiry and any subsequent proceedings based 
thereon. If the Office of the General Counsel of EOIR determines that a 
complaint is without merit, no further action will be taken. The Office 
of the General Counsel of EOIR may, in its discretion, close a 
preliminary inquiry if the complainant fails to comply with reasonable 
requests for assistance, information, or documentation. The complainant 
and the practitioner shall be notified of any such determination in 
writing.
    (c) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The Office of the General Counsel of EOIR, in its 
discretion, may issue warning letters and admonitions, and may enter 
into agreements in lieu of

[[Page 44]]

discipline, prior to the issuance of a Notice of Intent to Discipline.
    (d) Referral of complaints of criminal conduct. If the Office of the 
General Counsel of EOIR receives credible information or allegations 
that a practitioner has engaged in criminal conduct, the Office of the 
General Counsel of EOIR shall refer the matter to the Inspector General 
and, if appropriate, to the Federal Bureau of Investigation. In such 
cases, in making the decision to pursue disciplinary sanctions, the 
Office of the General Counsel of EOIR shall coordinate in advance with 
the appropriate investigative and prosecutorial authorities within the 
Department to ensure that neither the disciplinary process nor criminal 
prosecutions are jeopardized.



Sec. 3.105  Notice of Intent to Discipline.

    (a) Issuance of Notice to practitioner. If, upon completion of the 
preliminary inquiry, the Office of the General Counsel of EOIR 
determines that sufficient prima facie evidence exists to warrant 
charging a practitioner with professional misconduct as set forth in 
Sec. 3.102, it will issue a Notice of Intent to Discipline to the 
practitioner named in the complaint. This notice will be served upon the 
practitioner by personal service as defined in Sec. 103.5a of this 
chapter. Such notice shall contain a statement of the charge(s), a copy 
of the preliminary inquiry report, the proposed disciplinary sanctions 
to be imposed, the procedure for filing an answer or requesting a 
hearing, and the mailing address and telephone number of the Board.
    (b) Copy of Notice to the Service; reciprocity of disciplinary 
sanctions. A copy of the Notice of Intent to Discipline shall be 
forwarded to the Office of the General Counsel of the Service. The 
Office of the General Counsel of the Service may submit a written 
request to the Board or the adjudicating official requesting that any 
discipline imposed upon a practitioner which restricts his or her 
authority to practice before the Board or the Immigration Courts also 
apply to the practitioner's authority to practice before the Service. 
Proof of service on the practitioner of any request to broaden the scope 
of the proposed discipline must be filed with the adjudicating official.
    (c) Answer--(1) Filing. The practitioner shall file a written answer 
to the Notice of Intent to Discipline with the Board within 30 days of 
the date of service of the Notice of Intent to Discipline unless, on 
motion to the Board, an extension of time to answer is granted for good 
cause. A motion for an extension of time to answer must be received by 
the Board no later than three (3) working days before the time to answer 
has expired. A copy of the answer and any such motion shall be served by 
the practitioner on the Office of the General Counsel of EOIR (or the 
Office of the General Counsel of the Service with respect to a Notice of 
Intent to Discipline issued by the Service).
    (2) Contents. The answer shall contain a statement of facts which 
constitute the grounds of defense and shall specifically admit or deny 
each allegation set forth in the Notice of Intent to Discipline. Every 
allegation in the Notice of Intent to Discipline which is not denied in 
the answer shall be deemed to be admitted and may be considered as 
proved, and no further evidence in respect of such allegation need be 
adduced. The practitioner may also state affirmatively special matters 
of defense and may submit supporting documents, including affidavits or 
statements, along with the answer.
    (3) Request for hearing. The practitioner shall also state in the 
answer whether he or she requests a hearing on the matter. If no such 
request is made, the opportunity for a hearing will be deemed waived.
    (d) Failure to file an answer. (1) Failure to file an answer within 
the time period prescribed in the Notice of Intent to Discipline, except 
where the time to answer is extended by the Board, shall constitute an 
admission of the allegations in the Notice of Intent to Discipline and 
no further evidence with respect to such allegations need be adduced.
    (2) Upon such a default by the practitioner, the Office of the 
General Counsel shall submit to the Board proof of personal service of 
the Notice of Intent to Discipline. The practitioner shall be precluded 
thereafter from requesting a

[[Page 45]]

hearing on the matter. The Board shall issue a final order adopting the 
recommended disciplinary sanctions in the Notice of Intent to Discipline 
unless to do so would foster a tendency toward inconsistent dispositions 
for comparable conduct, or would otherwise be unwarranted or not in the 
interest of justice. Any final order imposing discipline shall not 
become effective sooner than 15 days from the date of the order to 
provide the practitioner opportunity to comply with the terms of such 
order, including, but not limited to, withdrawing from pending 
immigration matters and notifying immigration clients of the imposition 
of any sanction. A practitioner may file a motion to set aside a final 
order of discipline issued pursuant to this paragraph, with service of 
such motion on the Office of the General Counsel of EOIR, provided:
    (i) Such a motion is filed within 15 days of the date of service of 
the final order; and
    (ii) His or her failure to file an answer was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but not including less 
compelling circumstances) beyond the control of the practitioner.



Sec. 3.106  Hearing and disposition.

    (a) Hearing--(1) Procedure. (i) The Chief Immigration Judge shall, 
upon the filing of an answer, appoint an Immigration Judge as an 
adjudicating official. At the request of the Chief Immigration Judge or 
in the interest of efficiency, the Director of EOIR may appoint an 
Administrative Law Judge as an adjudicating official. An Immigration 
Judge or Administrative Law Judge shall not serve as the adjudicating 
official in any case in which he or she is also the complainant. An 
Immigration Judge shall not serve as the adjudicating official in any 
case involving a practitioner who regularly appears before him or her.
    (ii) Upon the practitioner's request for a hearing, the adjudicating 
official shall designate the time and place of the hearing with due 
regard to the location of the practitioner's practice or residence, the 
convenience of witnesses, and any other relevant factors. Such notice 
shall be served upon the practitioner by personal service as defined in 
Sec. 103.5a of this chapter. The practitioner shall be afforded adequate 
time to prepare his or her case in advance of the hearing. Pre-hearing 
conferences may be scheduled at the discretion of the adjudicating 
official in order to narrow issues, to obtain stipulations between the 
parties, to exchange information voluntarily, and otherwise to simplify 
and organize the proceeding. Settlement agreements reached after the 
issuance of a Notice of Intent to Discipline are subject to final 
approval by the adjudicating official or if the practitioner has not 
filed an answer, subject to final approval by the Board.
    (iii) The practitioner may be represented at the hearing by counsel 
at no expense to the government. Counsel for the practitioner shall file 
a Notice of Entry of Appearance on Form EOIR-28 in accordance with the 
procedures set forth in this Part 3. At the hearing, the practitioner 
shall have a reasonable opportunity to examine and object to evidence 
presented by the government, to present evidence on his or her own 
behalf, and to cross-examine witnesses presented by the government.
    (iv) In rendering a decision, the adjudicating official shall 
consider the following: the complaint, the preliminary inquiry report, 
the Notice of Intent to Discipline, the answer and any supporting 
documents, and any other evidence presented at the hearing (or, if the 
practitioner files an answer but does not request a hearing, any 
pleading, brief, or other materials submitted by counsel for the 
government). Counsel for the government shall bear the burden of proving 
the grounds for disciplinary sanctions enumerated in the Notice of 
Intent to Discipline by clear, unequivocal, and convincing evidence.
    (v) The record of the hearing, regardless of whether the hearing is 
held before an Immigration Judge or an Administrative Law Judge, shall 
conform to the requirements of 8 CFR part 3, subpart C and 8 CFR 240.9. 
Disciplinary hearings shall be conducted in the same manner as 
Immigration Court proceedings as is appropriate, and shall be open to 
the public, except that:

[[Page 46]]

    (A) Depending upon physical facilities, the adjudicating official 
may place reasonable limitations upon the number of individuals in 
attendance at any one time, with priority being given to the press over 
the general public, and
    (B) For the purposes of protecting witnesses, parties, or the public 
interest, the adjudicating official may limit attendance or hold a 
closed hearing.
    (2) Failure to appear at the hearing. If the practitioner fails to 
appear at the hearing, the adjudicating official shall then proceed and 
decide the case in the absence of the practitioner, in accordance with 
paragraph (b) of this section, based upon the available record, 
including any additional evidence or arguments presented by EOIR or the 
Service at the hearing. In such a proceeding, the Office of the General 
Counsel of EOIR or the Office of the General Counsel of the Service 
shall submit to the adjudicating official proof of personal service of 
the Notice of Intent to Discipline as well as the Notice of the Hearing. 
The practitioner shall be precluded thereafter from participating 
further in the proceedings. Any final order imposing discipline entered 
in absentia shall be a final order, but shall not become effective 
sooner than 15 days from the date of the order to provide the 
practitioner opportunity to comply with the terms of such order, 
including, but not limited to, withdrawing from pending immigration 
matters and notifying immigration clients of the imposition of any 
sanction. A final order of discipline issued pursuant to this paragraph 
shall not be subject to further review, except that the practitioner may 
file a motion to set aside the order, with service of such motion on the 
Office of the General Counsel of EOIR (or the Office of the General 
Counsel of the Service), provided:
    (i) Such a motion is filed within 15 days of the date of issuance of 
the final order; and
    (ii) His or her failure to appear at the hearing was due to 
exceptional circumstances (such as serious illness of the practitioner 
or death of an immediate relative of the practitioner, but not including 
less compelling circumstances) beyond the control of the practitioner.
    (b) Decision. The adjudicating official shall consider the entire 
record, including any testimony and evidence presented at the hearing, 
and, as soon as practicable after the hearing, render a decision. If the 
adjudicating official finds that one or more of the grounds for 
disciplinary sanctions enumerated in the Notice of Intent to Discipline 
have been established by clear, unequivocal, and convincing evidence, he 
or she shall rule that the disciplinary sanctions set forth in the 
Notice of Intent to Discipline be adopted, modified, or otherwise 
amended. If the adjudicating official determines that the practitioner 
should be suspended, the time period for such suspension shall be 
specified. Any grounds for disciplinary sanctions enumerated in the 
Notice of Intent to Discipline that have not been established by clear, 
unequivocal, and convincing evidence shall be dismissed. Except as 
provided in paragraph (a)(2) of this section, the adjudicating 
official's decision becomes final only upon waiver of appeal or 
expiration of the time for appeal to the Board, whichever comes first, 
nor does it take effect during the pendency of an appeal to the Board as 
provided in Sec. 3.6.
    (c) Appeal. Upon the issuance of a decision by the adjudicating 
official, either party or both parties may appeal to the Board to 
conduct a de novo review of the record. Parties must comply with all 
pertinent provisions for appeals to the Board, including provisions 
relating to forms and fees, as set forth in this Part 3, and must use 
the Form EOIR-45. The decision of the Board is a final administrative 
order as provided in Sec. 3.1(d)(2), and shall be served upon the 
practitioner by personal service as defined in Sec. 103.5a of this 
chapter. Any final order imposing discipline shall not become effective 
sooner than 15 days from the date of the order to provide the 
practitioner opportunity to comply with the terms of such order, 
including, but not limited to, withdrawing from any pending immigration 
matters and notifying immigration clients of the imposition of any 
sanction. A copy of the final administrative order of the Board shall

[[Page 47]]

be served upon the Office of the General Counsel of EOIR and the Office 
of the General Counsel of the Service. If disciplinary sanctions are 
imposed against a practitioner (other than a private censure), the Board 
may require that notice of such sanctions be posted at the Board, the 
Immigration Courts, or the Service for the period of time during which 
the sanctions are in effect, or for any other period of time as 
determined by the Board.
    (d) Referral. In addition to, or in lieu of, initiating disciplinary 
proceedings against a practitioner, the Office of the General Counsel of 
EOIR may notify any appropriate Federal and/or state disciplinary or 
regulatory authority of any complaint filed against a practitioner. Any 
final administrative decision imposing sanctions against a practitioner 
(other than a private censure) shall be reported to any such 
disciplinary or regulatory authority in every jurisdiction where the 
disciplined practitioner is admitted or otherwise authorized to 
practice. In addition, the Office of the General Counsel of EOIR shall 
transmit notice of all public discipline imposed under this rule to the 
National Lawyer Regulatory Data Bank maintained by the American Bar 
Association.



Sec. 3.107  Reinstatement after expulsion or suspension.

    (a) Expiration of suspension. Upon notice to the Board, a 
practitioner who has been suspended will be reinstated to practice 
before the Board and the Immigration Courts or the Service, or before 
all three authorities, once the period of suspension has expired, 
provided that he or she meets the definition of attorney or 
representative as set forth in Sec. 1.1(f) and (j), respectively, of 
this chapter. If a practitioner cannot meet the definition of attorney 
or representative, the Board shall decline to reinstate the 
practitioner.
    (b) Petition for reinstatement. A practitioner who has been expelled 
or who has been suspended for one year or more may file a petition for 
reinstatement directly with the Board after one-half of the suspension 
period has expired or one year has passed, whichever is greater, 
provided that he or she meets the definition of attorney or 
representative as set forth in Sec. 1.1(f) and (j), respectively, of 
this chapter. A copy of such petition shall be served on the Office of 
the General Counsel of EOIR. In matters in which the practitioner was 
ordered expelled or suspended from practice before the Service, a copy 
of such petition shall be served on the Office of the General Counsel of 
the Service.
    (1) The practitioner shall have the burden of demonstrating by 
clear, unequivocal, and convincing evidence that he or she possesses the 
moral and professional qualifications required to appear before the 
Board and the Immigration Courts or the Service, or before all three 
authorities, and that his or her reinstatement will not be detrimental 
to the administration of justice. The Office of the General Counsel of 
EOIR, and in matters in which the practitioner was ordered expelled or 
suspended from practice before the Service, the Office of the General 
Counsel of the Service, may reply within 30 days of service of the 
petition in the form of a written response to the Board, which may 
include documentation of any complaints filed against the expelled or 
suspended practitioner subsequent to his or her expulsion or suspension.
    (2) If a practitioner cannot meet the definition of attorney or 
representative as set forth in Sec. 1.1(f) and (j), respectively, of 
this chapter, the Board shall deny the petition for reinstatement 
without further consideration. If the petition for reinstatement is 
found to be otherwise inappropriate or unwarranted, the petition shall 
be denied. Any subsequent petitions for reinstatement may not be filed 
before the end of one year from the date of the Board's previous denial 
of reinstatement. If the petition for reinstatement is determined to be 
timely, the practitioner meets the definition of attorney or 
representative, and the petitioner has otherwise set forth by the 
requisite standard of proof that he or she possesses the qualifications 
set forth herein, and that reinstatement will not be detrimental to the 
administration of justice, the Board shall grant the petition and 
reinstate the practitioner. The Board, in its discretion, may hold a

[[Page 48]]

hearing to determine if the practitioner meets all of the requirements 
for reinstatement.



Sec. 3.108  Confidentiality.

    (a) Complaints and preliminary inquiries. Except as otherwise 
provided by law or regulation, information concerning complaints or 
preliminary inquiries is confidential. A practitioner whose conduct is 
the subject of a complaint or preliminary inquiry, however, may waive 
confidentiality, except that the Office of the General Counsel of EOIR 
may decline to permit a waiver of confidentiality if it is determined 
that an ongoing preliminary inquiry may be substantially prejudiced by 
public disclosure before the filing of a Notice of Intent to Discipline.
    (1) Disclosure of information for the purpose of protecting the 
public. The Office of the General Counsel of EOIR may disclose 
information concerning a complaint or preliminary inquiry for the 
protection of the public when the necessity for disclosing information 
outweighs the necessity for preserving confidentiality in circumstances 
including, but not limited to, the following:
    (i) A practitioner has caused, or is likely to cause, harm to 
client(s), the public, or the administration of justice, such that the 
public or specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the Office of the General Counsel of EOIR may define the 
scope of information disseminated and may limit the disclosure of 
information to specified individuals or entities;
    (ii) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (iii) A practitioner is under investigation by a disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such authorities;
    (iv) A practitioner is the subject of multiple disciplinary 
complaints and the Office of the General Counsel of EOIR has determined 
not to pursue all of the complaints. The Office of the General Counsel 
of EOIR may inform complainants whose allegations have not been pursued 
of the status of any other preliminary inquiries or the manner in which 
any other complaint(s) against the practitioner have been resolved.
    (2) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The Office of the General Counsel of EOIR, in the 
exercise of discretion, may disclose documents and information 
concerning complaints and preliminary inquiries to the following 
individuals or entities:
    (i) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (ii) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (iii) To agencies and other jurisdictions responsible for 
disciplinary or regulatory investigations and proceedings;
    (iv) To the complainant or a lawful designee;
    (v) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.
    (b) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline, will remain confidential. However, such 
resolutions may become part of the public record if the practitioner 
becomes subject to a subsequent Notice of Intent to Discipline.
    (c) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence of a 
prior record of discipline in any subsequent disciplinary proceeding. 
Settlement agreements reached after the issuance of a Notice of Intent 
to Discipline may be disclosed to the public upon final approval by the 
adjudicating official or the Board. Disciplinary hearings are open to 
the public, except as noted in Sec. 3.106(a)(1)(v).

[[Page 49]]



Sec. 3.109  Discipline of government attorneys.

    Complaints regarding the conduct or behavior of Department 
attorneys, Immigration Judges, or Board Members shall be directed to the 
Office of Professional Responsibility, United States Department of 
Justice. If disciplinary action is warranted, it shall be administered 
pursuant to the Department's attorney discipline procedures.

[[Page 50]]





                  SUBCHAPTER B--IMMIGRATION REGULATIONS



PART 100--STATEMENT OF ORGANIZATION--Table of Contents




Sec.
100.1  Introduction.
100.2  Organization and functions.
100.3  Places where, and methods whereby, information may be secured or 
          submittals or requests made.
100.4  Field Offices.
100.5  Regulations.
100.6  Rule making.
100.7  OMB control numbers assigned to information collections.

    Authority: 8 U.S.C. 1103; 8 CFR part 2.

    Source: 32 FR 9616, July 4, 1967, unless otherwise noted.



Sec. 100.1  Introduction.

    The following sections describe the organization of the Immigration 
and Naturalization Service, including statements of delegations of final 
authority, indicate the established places at which, and methods 
whereby, the public may secure information, direct attention to the 
regulations relating to the general course and method by which its 
functions are channeled and determined, and to display OMB control 
numbers assigned to the information collection requirements of the 
Service. Part 103 of this chapter sets forth the procedures governing 
the availability of Service opinions, orders, and records.

[48 FR 37201, Aug. 17, 1983]



Sec. 100.2  Organization and functions.

    (a) Office of the Commissioner. The Attorney General has delegated 
to the Commissioner, the principal officer of the Immigration and 
Naturalization Service, authority to administer and enforce the 
Immigration and Nationality Act and all other laws relating to 
immigration, naturalization, and nationality as prescribed and limited 
by 28 CFR 0.105.
    (1) Office of the General Counsel. Headed by the General Counsel, 
the office provides legal advice to the Commissioner, the Deputy 
Commissioner, and staff; prepares legislative reports; assists in 
litigation; prepares briefs and other legal memoranda when necessary; 
directs the activities of the regional counsel; oversees the 
professional activities of all Service attorneys assigned to field 
offices; and, makes recommendations on all personnel matters involving 
Service attorneys.
    (2) Office of Congressional Relations. Headed by the Director of 
Congressional Relations, the office is responsible for establishing and 
maintaining effective liaison with the Congress, Department of Justice, 
and other agencies on such matters as bills, mark-ups, hearings, and 
Congressional inquiries.
    (3) Office of Public Affairs. Headed by the Director of Public 
Affairs, the office is responsible for establishing and maintaining 
public affairs policy, serving as liaison with various constituent 
communities (intergovernmental, public, news organization, etc.) to 
communicate Service initiatives, such as naturalization and employer 
education, and producing public information products.
    (4) Office of Internal Audit. Headed by the Director of Internal 
Audit, the office promotes economy, efficiency, and effectiveness within 
the Service by managing the Service's systems for resolving alleged 
mismanagement and misconduct by Service employees; reviewing and 
evaluating the efficiency and effectiveness of Service operations and 
programs; collecting and analyzing data to identify patterns of 
deficiencies or other weaknesses warranting investigative or audit 
follow-up; making recommendations on disciplinary policies and 
procedures of the Service; overseeing Service systems to eliminate 
fraud, waste, and abuse in the workplace; and acting as the Service's 
liaison with outside audit/inspection agencies. These duties are 
executed in coordination with other components of the Service and other 
Department of Justice components.
    (b) Office of the Deputy Commissioner. Headed by the Deputy 
Commissioner, the office is authorized to exercise all

[[Page 51]]

power and authority of the Commissioner unless any such power or 
authority is required by law to be exercised by the Commissioner 
personally. The Deputy Commissioner advises and assists the Commissioner 
in formulating and implementing Service policies and programs, and 
provides supervision and direction to all organizational units of the 
Service. The Deputy Commissioner also performs such other duties as may 
be assigned from time-to-time by the Commissioner. In addition, the 
Deputy Commissioner supervises the four Executive Associate 
Commissioners for Programs, Field Operations, Policy and Planning, and 
Management.
    (c) Office of the Executive Associate Commissioner for Programs--(1) 
General. (i) Headed by the Executive Associate Commissioner for 
Programs, the office is responsible for policy development and review as 
well as integration of the Service's enforcement and examinations 
programs. This office has primary responsibility for the planning, 
oversight, and advancement of programs engaged in interpretation of the 
immigration and nationality laws and the development of regulations to 
assist in activities, including:
    (A) The granting of benefits and privileges to those qualified to 
receive them;
    (B) Withholding of benefits from those ineligible;
    (C) Control of the borders and prevention of illegal entry into the 
United States;
    (D) Detection, apprehension, detention, and removal of illegal 
aliens; and
    (E) Enforcement of employer sanctions and other provisions of 
immigration-related law.
    (ii) In addition to overseeing enforcement and examination policy 
matters, the Office of Programs is also responsible for immigration 
records. The Executive Associate Commissioner for Programs promulgates 
policy, provides direction and supervises the activities of the Offices 
of Enforcement and Examinations.
    (2) Office of Enforcement. Headed by the Associate Commissioner for 
Enforcement, the office is responsible for the planning, oversight, and 
advancement of enforcement programs engaged in interpretation of the 
immigration and nationality laws, and the development of Service 
policies to assist enforcement activities. The Associate Commissioner 
for Enforcement directly supervises the Headquarters:
    (i) Border Patrol Division;
    (ii) Investigations Division;
    (iii) Detention and Deportation Division;
    (iv) Intelligence Division; and
    (v) Asset Forfeiture Office.
    (3) Office of Examinations. Headed by the Associate Commissioner for 
Examinations, the office is responsible for the planning, oversight, and 
advancement of examinations programs engaged in interpretation of the 
immigration and nationality laws, and the development of Service 
policies to assist examinations activities. The Office of Examinations 
is also responsible for all district and service center records and all 
records operations, except records policy. The Associate Commissioner 
for Examinations directly supervises the Headquarters:
    (i) Adjudications and Nationality Division;
    (ii) Inspections Division;
    (iii) Service Center Operations Division;
    (iv) Records Division; and
    (v) Administrative Appeals Office.
    (d) Office of the Executive Associate Commissioner for Field 
Operations--(1) General. (i) Headed by the Executive Associate 
Commissioner for Field Operations, the office is responsible for 
implementing policies related to the Service's field operations. This 
office has primary responsibility for oversight and coordination of all 
field operations relating to the administration of immigration law, 
including:
    (A) The granting of benefits and privileges to those qualified to 
receive them;
    (B) Withholding of benefits from those ineligible;
    (C) Control of the borders and prevention of illegal entry into the 
United States;
    (D) Detection, apprehension, detention, and removal of illegal 
aliens;
    (E) Enforcement of employer sanctions and other provisions of 
immigration-related law; and

[[Page 52]]

    (F) Refugee processing, adjudication of relative applications/
petitions filed by citizens and legal permanent residents, and overseas 
deterrence of alien smuggling and fraud activities.
    (ii) The Executive Associate Commissioner for Field Operations 
provides direction to, and supervision of, the three Regional Directors 
(Eastern, Central, and Western), and the Director, International 
Affairs.
    (2) Offices of the Regional Directors. (i) General. Headed by 
regional directors, these offices are responsible for directing all 
aspects of the Service's field operations within their assigned 
geographic areas of activity. The regional directors provide general 
guidance and supervision to:
    (A) Service districts within their regions; and
    (B) Border Patrol sectors within their regions.
    (ii) Service districts. Headed by district directors, who may be 
assisted by deputy district directors, these offices are responsible for 
the administration and enforcement of the Act and all other laws 
relating to immigration and naturalization within their assigned 
geographic areas of activity, unless any such power and authority is 
either required to be exercised by higher authority or has been 
exclusively delegated to another immigration official or class of 
immigration officer. District directors are subject to the general 
supervision and direction of their respective regional director, except 
that district directors outside of the United States are subject to the 
general supervision and direction of the Director for International 
Affairs.
    (iii) Border Patrol Sectors. Headed by chief patrol agents who may 
be assisted by deputy chief patrol agents, these offices are responsible 
for the enforcement of the Act and all other laws relating to 
immigration and naturalization within their assigned geographic areas of 
activity, unless any such power and authority is required to be 
exercised by higher authority or has been exclusively delegated to 
another immigration official or class of immigration officer. Chief 
patrol agents are subject to the general supervision and direction of 
their respective regional director.
    (3) Office of International Affairs. Headed by a Director of 
International Affairs, the office is responsible for ensuring that the 
foreign affairs mission of the Service reflects a full partnership 
between the Service, the Executive Branch agencies, and the Congress, 
the administration of U.S. immigration law on foreign soil, and the U.S. 
domestic asylum program. The Director for International Affairs provides 
general guidance and supervision to:
    (i) Foreign districts;
    (ii) Asylum Division; and
    (iii) Refugee and Parole Division.
    (e) Office of the Executive Associate Commissioner for Policy and 
Planning. Headed by the Executive Associate Commissioner for Policy and 
Planning, the office is responsible for directing and coordinating 
Servicewide policy and planning activities, and conducting analysis of 
these as well as other issues which cross program lines or have national 
implications.
    (f) Office of the Executive Associate Commissioner for Management--
(1) General. Headed by the Executive Associate Commissioner for 
Management, the office is responsible for planning, developing, 
directing, coordinating, and reporting on Service management programs 
and activities. The Executive Associate Commissioner for Management 
promulgates Servicewide administrative policies and coordinates all 
financial, human resource, administrative, and information resources 
management functions. The Executive Associate Commissioner for 
Management provides direction to, and supervision of, the:
    (i) Office of Security;
    (ii) Office of Equal Employment Opportunity;
    (iii) Office of Human Resources and Administration;
    (iv) Office of Finance;
    (v) Office of Information Resources Management;
    (vi) Office of Files and Forms Management; and
    (vii) Administrative Centers.
    (2) Office of Security. Headed by the Director of Security, the 
office is responsible for all security programs of the Service, 
including those related to personnel, physical, information and 
documents, automated data processing,

[[Page 53]]

telecommunications, and emergency preparedness planning.
    (3) Office of Equal Employment Opportunity. Headed by the Director 
of Equal Employment Opportunity, the office is responsible for 
developing, planning, directing, managing, and coordinating equal 
employment opportunity programs and evaluating programs relating to the 
civil rights of all employees and applicants to ensure compliance with 
the law. This office also coordinates the affirmative employment and 
discrimination complaints programs of the Service and those of the 
Department of Justice as they apply to the Service.
    (4) Office of Human Resources and Administration. Headed by the 
Associate Commissioner for Human Resources and Administration, the 
office is responsible for planning, developing, directing, managing, and 
coordinating the personnel, career development, contracting, facilities, 
and administrative support programs of the Service. The Associate 
Commissioner for Human Resources and Administration directly supervises 
the:
    (i) Human Resources and Development Division; and
    (ii) Administration Division.
    (5) Office of Finance. Headed by the Associate Commissioner for 
Finance, the office is responsible for planning, developing, directing, 
managing, coordinating, and reporting on, the budget, accounting, and 
resource management programs of the Service. The Associate Commissioner 
for Finance directly supervises the:
    (i) Budget Division; and
    (ii) Financial Management Division.
    (6) Office of Information Resources Management. Headed by the 
Associate Commissioner for Information Resources Management, the office 
is responsible for planning, developing, directing, managing, 
coordinating, and reporting on Service information management programs 
and activities including automated data processing, telecommunications, 
and radio communications. The Associate Commissioner for Information 
Resources Management directly supervises the:
    (i) Data Systems Division; and
    (ii) Systems Integration Division.
    (7) Office of Files and Forms Management. Headed by the Director of 
Files and Forms Management, the office is responsible for the 
administration of records policy, and correspondence files. The Director 
of Files and Forms Management directly supervises the:
    (i) National Records Center;
    (ii) National Forms Center;
    (iii) Systematic Alien Verification Entitlement (SAVE) Program; and
    (iv) Centralized Freedom of Information Act and Privacy Act (FOIA/
PA) program.
    (8) Office of the Administrative Center. Headed by directors, these 
offices are responsible for administrative servicing, monitoring, and 
liaison functions within their respective geographic boundaries. The 
directors direct and supervise regional staff who administer human 
resources, administrative, information systems, security, and financial 
functions.

[59 FR 60068, Nov. 22, 1994]



Sec. 100.3  Places where, and methods whereby, information may be secured or submittals or requests made.

    Any person desiring information relative to a matter handled by the 
Immigration and Naturalization Service, or any person desiring to make a 
submittal or request in connection with such a matter should communicate 
either orally or in writing with a district headquarters office or 
suboffice of the Service. If the office receiving the communication does 
not have jurisdiction to handle the matter, the communication, if 
written, will be forwarded to the proper office of the Service or, if 
oral, the person will be advised how to proceed. When the submittal or 
request consists of a formal application for one of the documents, 
privileges, or other benefits provided for in the laws administered by 
the Service or the regulations implementing those laws, the instructions 
on the form as to preparation and place of submission should be 
followed. In such cases, the provisions of this chapter dealing with the 
particular type of application may be consulted for regulatory 
provisions.

[[Page 54]]



Sec. 100.4  Field Offices.

    The territory within which officials of the Immigration and 
Naturalization Service are located is divided into regions, districts, 
suboffices, and border patrol sectors as follows:
    (a) Regional Offices. The Eastern Regional Office, located in 
Burlington, Vermont, has jurisdiction over districts 2, 3, 4, 5, 6, 7, 
8, 21, 22, 24, 25, 26, 27, and 28; border patrol sectors 1, 2, 3, 4, 5, 
20, and 21. The Central Regional Office, located in Dallas, Texas, has 
jurisdiction over districts 9, 10, 11, 14, 15, 19, 20, 29, 30, 38, and 
40; border patrol sectors 6, 7, 15, 16, 17, 18, and 19. The Western 
Regional Office, located in Laguna Niguel, California, has jurisdiction 
over districts 12, 13, 16, 17, 18, 31, 32, and 39; and border patrol 
sectors 8, 9, 10, 11, 12, 13, and 14.
    (b) District Offices. The following districts, which are designated 
by numbers, have fixed headquarters and are divided as follows:
    (1) [Reserved]
    (2) Boston, Massachusetts. The district office in Boston, 
Massachusetts, has jurisdiction over the States of Connecticut, New 
Hampshire (except the Port-of-Entry at Pittsburg, New Hampshire), 
Massachusetts, and Rhode Island.
    (3) New York City, New York. The district office in New York City, 
New York, has jurisdiction over the following counties in the State of 
New York; Bronx, Dutchess, Kings, Nassau, New York, Orange, Putnam, 
Queens, Richmond, Rockland, Suffolk, Sullivan, Ulster, and Westchester; 
also, over the United States immigration office located in Hamilton, 
Bermuda.
    (4) Philadelphia, Pennsylvania. The district office in Philadelphia, 
Pennsylvania, has jurisdiction over the States of Pennsylvania, 
Delaware, and West Virginia.
    (5) Baltimore, Maryland. The district office in Baltimore, Maryland, 
has jurisdiction over the State of Maryland, except Andrews Air Force 
Base Port-of-Entry.
    (6) Miami, Florida. The district office in Miami, Florida, has 
jurisdiction over the State of Florida, and the United States 
immigration offices located in Freeport and Nassau, Bahamas.
    (7) Buffalo, New York. The district office in Buffalo, New York, has 
jurisdiction over the State of New York except the part within the 
jurisdiction of District No. 3; also, over the United States immigration 
office at Toronto, Ontario, Canada; and the office located at Montreal, 
Quebec, Canada.
    (8) Detroit, Michigan. The district office in Detroit, Michigan, has 
jurisdiction over the State of Michigan.
    (9) Chicago, Illinois. The district office in Chicago, Illinois, has 
jurisdiction over the States of Illinois, Indiana, and Wisconsin.
    (10) St. Paul, Minnesota. The district office located in 
Bloomington, Minnesota, has jurisdiction over the States of Minnesota, 
North Dakota, and South Dakota; also, over the United States immigration 
office in the Province of Manitoba, Canada.
    (11) Kansas City, Missouri. The district office in Kansas City, 
Missouri, has jurisdiction over the States of Kansas and Missouri.
    (12) Seattle, Washington. The district office in Seattle, 
Washington, has jurisdiction over the State of Washington and over the 
following counties in the State of Idaho: Benewah, Bonner, Boundary, 
Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce, and Shoshone; 
also, over the United States immigration offices located in the Province 
of British Columbia, Canada.
    (13) San Francisco, California. The district office in San 
Francisco, California, has jurisdiction over the following counties in 
the State of California: Alameda, Alpine, Amador, Butte, Calaveras, 
Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt, 
Inyo, Kern, Kings, Lake, Lassen, Madera, Marin, Mariposa, Mendocino, 
Merced, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, 
San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa 
Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, 
Tehama, Trinity, Tulare, Tuolumne, Yolo, and Yuba.
    (14) San Antonio, Texas. The district office in San Antonio, Texas, 
has jurisdiction over the following counties in the State of Texas: 
Aransas, Atascosa, Bandera, Bastrop, Bee, Bell, Bexar, Blanco, Brazos, 
Brown, Burleson,

[[Page 55]]

Burnet, Caldwell, Calhoun, Coke, Coleman, Comal, Concho, Coryell, 
Crockett, De Witt, Dimmitt, Duval, Edwards, Falls, Fayette, Frio, 
Gillespie, Glasscock, Goliad, Gonzales, Guadalupe, Hays, Irion, Jackson, 
Jim Hogg, Jim Wells, Karnes, Kendall, Kerr, Kimble, Kinney, Lampasas, La 
Salle, Lavaca, Lee, Live Oak, Llano, McCulloch, McLennan, McMullen, 
Mason, Maverick, Medina, Menard, Milam, Mills, Nueces, Reagan, Real, 
Refugio, Robertson, Runnels, San Patricio, San Saba, Schleicher, 
Sterling, Sutton, Tom Green, Travis, Uvalde, Val Verde, Victoria, Webb, 
Williamson, Wilson, Zapata, Zavala.
    (15) El Paso, Texas. The district office in El Paso, Texas, has 
jurisdiction over the State of New Mexico, and the following counties in 
Texas: Brewster, Crane, Culberson, Ector, El Paso, Hudspeth, Jeff Davis, 
Loving, Midland, Pecos, Presidio, Reeves, Terrell, Upton, Ward, and 
Winkler.
    (16) Los Angeles, California. The district office in Los Angeles, 
California, has jurisdiction over the following counties in the State of 
California: Los Angeles, Orange, Riverside, San Bernardino, San Luis 
Obispo, Santa Barbara, and Ventura.
    (17) Honolulu, Hawaii. The district office in Honolulu, Hawaii, has 
jurisdiction over the State of Hawaii, the Territory of Guam, and the 
Commonwealth of the Northern Mariana Islands.
    (18) Phoenix, Arizona. The district office in Phoenix, Arizona, has 
jurisdiction over the States of Arizona and Nevada.
    (19) Denver, Colorado. The district office in Denver, Colorado, has 
jurisdiction over the States of Colorado, Utah, and Wyoming.
    (20) Dallas, Texas. The district office in Dallas, Texas, has 
jurisdiction over the State of Oklahoma, and the following counties in 
the State of Texas: Anderson, Andrews, Archer, Armstrong, Bailey, 
Baylor, Borden, Bosque, Bowie, Briscoe, Callahan, Camp, Carson, Cass, 
Castro, Cherokee, Childress, Clay, Cochran, Collingsworth, Comanche, 
Cooke, Cottle, Crosby, Dallam, Dallas, Dawson, Deaf Smith, Delta, 
Denton, Dickens, Donley, Eastland, Ellis, Erath, Fannin, Fisher, Floyd, 
Foard, Franklin, Freestone, Gaines, Garza, Gray, Grayson, Gregg, Hale, 
Hall, Hamilton, Hansford, Hardeman, Harison, Hartley, Haskett, Hemphill, 
Henderson, Hill, Hockley, Hood, Hopkins, Houston, Howard, Hunt, 
Hutchinson, Jack, Johnson, Jones, Kaufman, Kent, King, Knox, Lamar, 
Lamb, Leon, Limestone, Lipscomb, Lubbock, Lynn, Marion, Martin, 
Mitchell, Montague, Moore, Morris, Motley, Navarro, Nolan, Ochiltree, 
Oldham, Palo Pinto, Panola, Parker, Parmer, Potter, Rains, Ranall, Red 
River, Roberts, Rockwall, Rusk, Scurry, Shackelford, Sherman, Smith, 
Somervell, Stephens, Stonewall, Swisher, Tarrant, Taylor, Terry, 
Throckmorton, Titus, Upshur, Van Zandt, Wheeler, Wichita, Willbarger, 
Wise, Wood, Yoakum, and Young.
    (21) Newark, New Jersey. The district office in Newark, New Jersey, 
has jurisdiction over the State of New Jersey.
    (22) Portland, Maine. The district office in Portland, Maine, has 
jurisdiction over the States of Maine, Vermont, and the Port-of-Entry at 
Pittsburg, New Hampshire.
    (23) [Reserved]
    (24) Cleveland, Ohio. The district office in Cleveland, Ohio, has 
jurisdiction over the State of Ohio.
    (25) Washington, DC. The district office located in Arlington, 
Virginia, has jurisdiction over the District of Columbia, the State of 
Virginia, and the Port-of-Entry at Andrews Air Force Base, Maryland.
    (26) Atlanta, Georgia. The district office of Atlanta, Georgia, has 
jurisdiction over the States of Georgia, North Carolina, South Carolina, 
and Alabama.
    (27) San Juan, Puerto Rico. The district office in San Juan, Puerto 
Rico, has jurisdiction over the Commonwealth of Puerto Rico, and the 
Virgin Islands of the United States and Great Britain.
    (28) New Orleans, Louisiana. The district office in New Orleans, 
Louisiana, has jurisdiction over the States of Louisiana, Arkansas, 
Mississippi, Tennessee, and Kentucky.
    (29) Omaha, Nebraska. The district office in Omaha, Nebraska, has 
jurisdiction over the States of Iowa and Nebraska.

[[Page 56]]

    (30) Helena, Montana. The district office in Helena, Montana, has 
jurisdiction over the State of Montana and over the following counties 
in the State of Idaho: Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, 
Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Custer, 
Elmore, Franklin, Fremont, Gem, Gooding, Jefferson, Jerome, Lemhi, 
Lincoln, Madison, Minidoka, Oneida, Owyhee, Payette, Power, Teton, Twin 
Falls, Valley, and Washington; also, over the United States immigration 
offices located in Calgary and Edmonton, Alberta, Canada.
    (31) Portland, Oregon. The district office in Portland, Oregon, has 
jurisdiction over the State of Oregon.
    (32) Anchorage, Alaska. The district office in Anchorage, Alaska, 
has jurisdiction over the State of Alaska.
    (33) Bangkok, Thailand. The district office in Bangkok has 
jurisdiction over Hong Kong, B.C.C. and adjacent islands, Taiwan, the 
Philippines, Australia, New Zealand; all the continental Asia lying to 
the east of the western border of Afghanistan and eastern borders of 
Pakistan and India; Japan, Korea, Okinawa, and all other countries in 
the Pacific area.
    (34) [Reserved]
    (35) Mexico City, Mexico. The district office in Mexico City has 
jurisdiction over Mexico, Central America, South America, Caribbean 
Islands, and Santo Domingo, Dominican Republic, except for those 
specifically delegated to the districts of Miami, Florida, and San Juan, 
Puerto Rico.
    (36) [Reserved]
    (37) Rome, Italy. The district office in Rome, Italy, has 
jurisdiction over Europe; Africa; the countries of Asia lying to the 
west and north of the western and northern borders, respectively, of 
Afghanistan, People's Republic of China, and Mongolian People's 
Republic; plus the countries of India and Pakistan.
    (38) Houston, Texas. The district office in Houston, Texas, has 
jurisdiction over the following counties in the State of Texas: 
Angelina, Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, 
Grimes, Hardin, Harris, Jasper, Jefferson, Liberty, Madison, Matagorda, 
Montgomery, Nacogdoches, Newton, Orange, Polk, Sabine, San Augustine, 
San Jacinto, Shelby, Trinity, Tyler, Walker, Waller, Washington, and 
Wharton.
    (39) San Diego, California. The district office in San Diego, 
California, has jurisdiction over the following counties in the State of 
California: Imperial and San Diego.
    (40) Harlingen, Texas. The district office in Harlingen, Texas, has 
jurisdiction over the following counties in the State of Texas: Brooks, 
Cameron, Hidalgo, Kenedy, Kleberg, Starr, and Willacy.
    (c) Suboffices. The following offices, in addition to the facilities 
maintained at Class A Ports-of-Entry listed in paragraph (c)(2) of this 
section, indicated by asterisk, are designated as suboffices:
    (1) Interior locations.

Agana, Guam
Albany, NY
Albuquerque, NM
Charlotte, NC
Charlotte Amalie, St. Thomas, VI
Cincinnati, OH
Fresno, CA
Hartford, CT
Indianapolis, IN
Jacksonville, FL
Las Vegas, NV
Louisville, KY
Memphis, TN
Milwaukee, WI
Norfolk, VA
Oklahoma City, OK
Orlando, FL
Pittsburgh, PA
Providence, RI
Reno, NV
Sacramento, CA
Salt Lake City, UT
San Jose, CA
Spokane, WA
St. Albans, VT
St. Louis, MO
Tampa, FL
Tucson, AZ


    (2) Ports-of-Entry for aliens arriving by vessel or by land 
transportation. Subject to the limitations prescribed in this paragraph, 
the following places are hereby designated as Ports-of-Entry for aliens 
arriving by any means of travel other than aircraft. The designation of 
such a Port-of-Entry may be withdrawn whenever, in the judgment of the 
Commissioner, such action is warranted. The ports are listed according

[[Page 57]]

to location by districts and are designated either Class A, B, or C. 
Class A means that the port is a designated Port-of-Entry for all 
aliens. Class B means that the port is a designated Port-of-Entry for 
aliens who at the time of applying for admission are lawfully in 
possession of valid Permanent Resident Cards or valid non-resident 
aliens' border-crossing identification cards or are admissible without 
documents under the documentary waivers contained in part 212 of this 
chapter. Class C means that the port is a designated Port-of-Entry only 
for aliens who are arriving in the United States as crewmen as that term 
is defined in section 101(a)(10) of the Act with respect to vessels.

                       District No. 1--[Reserved]

                  District No. 2--Boston, Massachusetts

                                 Class A

Boston, MA (the port of Boston includes, among others, the port 
facilities at Beverly, Braintree, Chelsea, Everett, Hingham, Lynn, 
Manchester, Marblehead, Milton, Quincy, Revere, Salem, Saugus, and 
Weymouth, MA)
Gloucester, MA
Hartford, CT (the port at Hartford includes, among others, the port 
facilities at Bridgeport, Groton, New Haven, and New London, CT)
Providence, RI (the port of Providence includes, among others, the port 
facilities at Davisville, Melville, Newport, Portsmouth, Quonset Point, 
Saunderstown, Tiverton, and Warwick, RI; and at Fall River, New Bedford, 
and Somerset, MA)

                                 Class C

Newburyport, MA
Plymouth, MA
Portsmouth, NH
Provincetown, MA
Sandwich, MA
Woods Hole, MA

                   District No. 3--New York, New York

                                 Class A

New York, NY (the port of New York includes, among others, the port 
facilities at Bronx, Brooklyn, Buchanan, Manhattan, Montauk, Northport, 
Port Jefferson, Queens, Riverhead, Poughkeepsie, the Stapleton 
Anchorage-Staten Island, Staten Island, Stoney Point, and Yonkers, NY, 
as well as the East Side Passenger Terminal in Manhattan)

               District No. 4--Philadelphia, Pennsylvania

                                 Class A

Erie Seaport, PA
Philadelphia, PA (the port of Philadelphia includes, among others, the 
port facilities at Delaware City, Lewes, New Castle, and Wilmington, DE; 
and at Chester, Essington, Fort Mifflin, Marcus Hook, and Morrisville, 
PA)
Pittsburgh, PA

                   District No. 5--Baltimore, Maryland

                                 Class A

Baltimore, MD
Patuxent River, MD

                                 Class C

Piney Point, MD
Salisbury, MD

                     District No. 6--Miami, Florida

                                 Class A

Boca Grande, FL
Fernandina, FL
Fort Lauderdale/Port Everglades, FL, Seaport
Fort Pierce, FL
*Jacksonville, FL
Key West, FL
Miami Marine Unit, FL
Panama City, FL
Pensacola, FL
Port Canaveral, FL
St. Augustine, FL
St. Petersburg, FL
*Tampa, FL (includes Fort Myers)
West Palm Beach, FL

                                 Class C

Manatee, FL
Port Dania, FL
Port St. Joe, FL

                    District No. 7--Buffalo, New York

                                 Class A

Albany, NY
Alexandria Bay, NY
Buffalo, NY
Cape Vincent, NY
Champlain, NY
Chateaugay, NY
Ft. Covington, NY
Massena, NY
Mooers, NY
Niagara Falls, NY (the port of Niagara Falls includes, among others, the 
port facilities at Lewiston Bridge, Rainbow Bridge, and Whirlpool 
Bridge, NY)

[[Page 58]]

Ogdensburg, NY
Peace Bridge, NY
Rochester, NY
Rouses Point, NY
Thousand Islands Bridge, NY
Trout River, NY

                                 Class B

Cannons Corner, NY
Churubusco, NY
Jamison's Line, NY

                                 Class C

Oswego, NY

                    District No. 8--Detroit, Michigan

                                 Class A

Algonac, MI
Detroit, MI, Detroit and Canada Tunnel
Detroit, MI, Detroit International Bridge (Ambassador Bridge)
Grosse Isle, MI
Isle Royale, MI
Marine City, MI
Port Huron, MI
Sault Ste. Marie, MI

                                 Class B

Alpena, MI
Detour, MI
Grand Rapids, MI
Mackinac Island, MI
Rogers City, MI

                                 Class C

Alpena, MI
Baraga, MI
Bay City, MI
Cheboygan, MI
Detour, MI
Escanaba, MI
Grand Haven, MI
Holland, MI
Houghton, MI
Ludington, MI
Mackinac Island, MI
Manistee, MI
Marquette, MI
Menominee, MI
Monroe, MI
Munising, MI
Muskegon, MI
Pontiac, MI
Port Dolomite, MI
Port Inland, MI
Rogers City (Calcite), MI
Saginaw, MI
South Haven, MI

                    District No. 9--Chicago, Illinois

                                 Class A

Algoma, WI
Bayfield, WI
Chicago, IL
Green Bay, WI
*Milwaukee, WI

                                 Class C

Ashland, WI
East Chicago, IL
Gary, IN
Kenosha, WI
Manitowoc, WI
Marinette, WI
Michigan City, IN
Racine, WI
Sheboygan, WI
Sturgeon Bay, WI

                  District No. 10--St. Paul, Minnesota

                                 Class A

Ambrose, ND
Antler, ND
Baudette, MN
Carbury, ND
Duluth, MN (the port of Duluth includes, among others, the port 
facilities at Superior, WI)
Dunseith, ND
Ely, MN
Fortuna, ND
Grand Portage, MN
Hannah, ND
Hansboro, ND
International Falls, MN
Lancaster, MN
Maida, ND
Neche, ND
Noonan, ND
Northgate, ND
Noyes, MN
Pembina, ND
Pine Creek, MN
Portal, ND
Ranier, MN
Roseau, MN
Sarles, ND
Sherwood, ND
St. John, ND
Walhalla, ND
Warroad, MN
Westhope, ND

                                 Class B

Crane Lake, MN
Oak Island, MN

                                 Class C

Grand Marais, MN
Silver Bay, MN
Taconite Harbor, MN
Two Harbors, MN

                 District No. 11--Kansas City, Missouri

                                 Class A

Kansas City, MO

[[Page 59]]

                                 Class B

Wichita, KS

                  District No. 12--Seattle, Washington

                                 Class A

Aberdeen, WA (the port of Aberdeen includes, among others, the port 
facilities at Raymond and South Bend, WA)
Anacortes, WA
Bellingham, WA
Blaine-Pacific Highway, WA
Blaine-Peach Arch, WA
Boundary, WA
Colville, WA
Danville, WA
Eastport, ID
Ferry, WA
Friday Harbor, WA (the port of Friday Harbor includes, among others, the 
port facilities at Roche Harbor, WA)
Frontier, WA
Kalama, WA
Laurier, WA
Longview, WA
Lynden, WA
Metaline Falls, WA
Neah Bay, WA
Olympia, WA
Oroville, WA
Point Roberts, WA
Port Angeles, WA
Port Townsend, WA
Porthill, WA
Seattle, WA (the port of Seattle includes, among others, the port 
facilities at Bangor, Blake Island, Bremerton, Eagle Harbor, Edmonds, 
Everett, Holmes Harbor, Houghton, Kennydale, Keyport, Kingston, 
Manchester, Mukilteo, Orchard Point, Point Wells, Port Gamble, Port 
Ludlow, Port Orchard, Poulsbo, Shuffleton, and Winslow, WA)
Sumas, WA
Tacoma, WA (the port of Tacoma includes, among others, the port 
facilities at Dupont, WA)
Vancouver, WA
Yakima, WA

                                 Class B

Nighthawk, WA

               District No. 13--San Francisco, California

                                 Class A

San Francisco, CA (the port of San Francisco includes, among others, the 
port facilities at Antioch, Benicia, Martinez, Oakland, Pittsburgh, Port 
Chicago Concord Naval Weapon Station, Redwood City, Richmond, 
Sacramento, San Pablo Bay, and Stockton, CA)

                                 Class C

Eureka, CA

                   District No. 14--San Antonio, Texas

                                 Class A

Amistad Dam, TX
Corpus Christi, TX (the port of Corpus Christi includes, among others, 
the port facilities at Harbor Island, Ingeleside, and Port Lavaca-Point 
Comfort, TX)
Del Rio, TX
Laredo, TX (the port of Laredo includes, among others, the port 
facilities at Colombia Bridge, Convent Bridge, and Lincoln-Juarez 
Bridge, TX)
Maverick, TX

                     District No. 15--El Paso, Texas

                                 Class A

Columbus, NM
El Paso, TX (the port of El Paso includes, among others, the port 
facilities at Bridge of the Americas, Paso Del Norte Bridge, and Ysleta 
Bridge, TX)
Fabens, TX
Fort Hancock, TX
Presidio, TX
Santa Teresa, NM

                District No. 16--Los Angeles, California

                                 Class A

Los Angeles, CA (the port of Los Angeles includes, among others, the 
port facilities at Long Beach, Ontario, Port Hueneme, San Pedro, and 
Ventura, CA)
San Luis Obispo, CA (the port of San Luis Obispo includes, among others, 
the port facilities at Avila, Estero Bay, El Capitan, Elwood, Gaviota, 
Morro Bay, and Santa Barbara, CA)

                    District No. 17--Honolulu, Hawaii

                                 Class A

*Agana, Guam, M.I. (including the port facilities at Apra Harbor, Guam)
Honolulu, HI, Seaport (including all port facilities on the Island of 
Oahu)

                                 Class C

Hilo, HI
Kahului, HI, Kahului Harbor
Nawiliwilli, HI, Nawiliwilli Harbor
Port Allen, HI, Port Allen Harbor

                    District No. 18--Phoenix, Arizona

                                 Class A

Douglas, AZ
Lukeville, AZ
Mariposa, AZ
Morley Gate, AZ
Naco, AZ
Nogales, AZ
Sasabe, AZ
San Luis, AZ

[[Page 60]]

                    District No. 19--Denver, Colorado

                                 Class A

Denver, CO
Grand Junction, CO
Pueblo, CO
Salt Lake City, UT

                       District No. 20--[Reserved]

                   District No. 21--Newark, New Jersey

                                 Class A

Camden, NJ (the port of Camden includes, among others, the port 
facilities at Artificial Island, Billingsport, Burlington, Cape May, 
Deepwater Point, Fisher's Point, Gibbstown, Gloucester City, Paulsboro, 
Salem, and Trenton, NJ)
Newark, NJ (the port of Newark includes, among others, the port 
facilities at Bayonne, Carteret, Edgewater, Elizabeth, Jersey City, 
Leonardo, Linden, Perth Amboy, Port Newark, and Sewaren, NJ)

                    District No. 22--Portland, Maine

                                 Class A

Alburg, VT
Alburg Springs, VT
Bangor, ME (the port of Bangor includes, among others, the port 
facilities at Bar Harbor, Belfast, Brewer, Bucksport Harbor, Prospect 
Harbor, Sandypoint, Seal Harbor, Searsport, and South West Harbor, ME)
Beebe Plain, VT
Beecher Falls, VT
Bridgewater, ME
Calais, ME (includes Ferry Point and Milltown Bridges)
Canaan, VT
Coburn Gore, ME
Derby Line, VT
Eastport, ME
East Richford, VT
Fort Fairfield, ME
Fort Kent, ME
Hamlin, ME
Highgate Springs, VT
Houlton, ME
Jackman, ME
Limestone, ME
Lubec, ME
Madawaska, ME
Morses Line, VT
North Troy, VT
Norton, VT
Pittsburgh, NH
Portland, ME
Richford, VT (includes the Pinnacle Port-of-Entry)
* St. Albans, VT
Van Buren, ME
Vanceboro, ME
West Berkshire, VT

                                 Class B

Daaquam, ME
Easton, ME
Eastcourt, ME
Forest City, ME
Monticello, ME
Orient, ME
Robinston, ME
St. Aurelie, ME
St. Pamphile, ME

                                 Class C

Bath, ME
Boothbay Harbor, ME
Kittery, ME
Rockland, ME
Wiscasset, ME

                       District No. 23--[Reserved]

                    District No. 24--Cleveland, Ohio

                                 Class A

Cincinnati, OH
Cleveland, OH
Columbus, OH
Put-In-Bay, OH
Sandusky, OH
Toledo, OH

                                 Class C

Ashtabula, OH
Conneaut, OH
Fairport, OH
Huron, OH
Lorain, OH
Marblehead, OH

                     District No. 25--Washington, DC

                                 Class A

Hopewell, VA
* Norfolk, VA--(the port of Norfolk includes, among others, the port 
facilities at Fort Monroe and Newport News, VA)
Richmond, VA
Washington, DC (includes the port facilities at Alexandria, VA)
Yorktown, VA

                    District No. 26--Atlanta, Georgia

                                 Class A

Charleston, SC (the port of Charleston includes, among others, the port 
facilities at Georgetown and Port Royal, SC)
Mobile, AL
Savannah, GA (the port of Savannah includes, among others, the port 
facilities at Brunswick and St. Mary's Seaport, GA)
Wilmington, NC (the port of Wilmington includes the port facilities at 
Morehead City, NC)

[[Page 61]]

                 District No. 27--San Juan, Puerto Rico

                                 Class A

Aguadilla, PR
* Charlotte Amalie, St. Thomas, VI
Christiansted, St. Croix, VI
Cruz Bay, St. John, VI
Ensenada, PR
Federiksted, St. Croix, VI
Fajardo, PR
Humacao, PR
Jobos, PR
Mayaguez, PR
Ponce, PR
Red Hook, St. Thomas, VI

                                 Class B

Coral Bay, St. John, VI

                 District No. 28--New Orleans, Louisiana

                                 Class A

Baton Rouge, LA
Gulfport, MS
Lake Charles, LA
Memphis, TN
Nashville, TN
New Orleans, LA (the port of New Orleans includes, among others, the 
port facilities at Avondale, Bell Chasse, Braithwaite, Burnside, 
Chalmette, Destrahan, Geismar, Gramercy, Gretna, Harvey, Marrero, Norco, 
Port Sulphur, St. Rose, and Westwego, LA)

                                 Class C

Morgan City, LA
Pascagoula, MS

                    District No. 29--Omaha, Nebraska

                                 Class A

Omaha, NE
Des Moines, IA

                    District No. 30--Helena, Montana

                                 Class A

Chief Mountain, MT (May-October)
Del Bonita, MT
Morgan, MT
Opheim, MT
Peigan, MT
Raymond, MT
Roosville, MT
Scobey, MT
Sweetgrass, MT
Turner, MT
Whitetail, MT
Wildhorse, MT
Willow Creek, MT

                                 Class B

Goat Haunt, MT
Trail Creek, MT
Whitlash, MT

                    District No. 31--Portland, Oregon

                                 Class A

Astoria, OR (the port of Astoria includes, among others, the port 
facilities at Bradwood, Pacific City, Taft, Tilliamook, (including Bay 
City and Garibaldi), Warrenton, Wauna, and Westport, OR)
Coos Bay, OR (the port of Coos Bay includes, among others, the port 
facilities at Bandon, Brookings, Depoe Bay, Florence, Frankfort, Gold 
Beach, Newport (including Toledo), Port Orford, Reedsport, Waldport, and 
Yachats, OR)
Portland, OR (the port of Portland includes, among others, the port 
facilities at Beaver, Columbia City, Prescott, Rainier, and St. Helens, 
OR)

                   District No. 32--Anchorage, Alaska

                                 Class A

Alcan, AK
Anchorage, AK (the port of Anchorage includes, among others (for out of 
port inspections only), Afognak, Barrow, Cold Bay, Cordova, Homer, 
Kodiak, Kotzebue, Nikiski, Seward, Valdez, and Yakutat, AK)
Dalton's Cache, AK
Dutch Harbor, AK
Fairbanks, AK
Gambell, AK
Juneau, AK
Ketchikan, AK
Nome, AK
Poker Creek, AK
Skagway, AK

                                 Class B

Eagle, AK
Hyder, AK

                                 Class C

Valdez, AK

                     District No. 38--Houston, Texas

                                 Class A

Galveston, TX (the port of Galveston includes, among others, the port 
facilities at Freeport, Port Bolivar, and Texas City, TX)
Houston, TX (the port of Houston includes, among others, the port 
facilities at Baytown, TX)
Port Arthur, TX (the port of Port Arthur includes, among others, the 
port facilities at Beaumont, Orange, and Sabine, TX)

                 District No. 39--San Diego, California

                                 Class A

Andrade, CA
Calexico, CA
Otay Mesa, CA
San Ysidro, CA

[[Page 62]]

Tecate, CA

                    District No. 40--Harlingen, Texas

                                 Class A

Brownsville, TX (the port of Brownsville includes, among others, the 
port facilities at Brownsville Seaport, Port Isabel, Padre Island and 
Harlingen, TX, Ship Channel)
Brownsville, TX, Gateway Bridge and Brownsville/Matamoros Bridge
Falcon Heights, TX
Hidalgo, TX
Los Ebanos, TX
Los Indios, TX
Pharr, TX
Progreso, TX
Rio Grande City, TX
Roma, TX


    (3) Ports-of-Entry for aliens arriving by aircraft. In addition to 
the following international airports which are hereby designated as 
Ports-of-Entry for aliens arriving by aircraft, other places where 
permission for certain aircraft to land officially has been given and 
places where emergency or forced landings are made under part 239 of 
this chapter shall be regarded as designated for the entry of aliens 
arriving by such aircraft:

                       District No. 1  [Reserved]

                  District No. 2--Boston, Massachusetts

Boston, MA, Logan International Airport
Manchester, NH, Grenier Airport
Portsmouth, NH, Pease Air Force Base
Warwick, RI, T. F. Greene Airport
Windsor Locks, CT, Bradley International Airport

                 District No. 3--New York City, New York

Newburgh, NY, Stewart International Airport
Queens, NY, LaGuardia Airport
Westchester, NY, Westchester County Airport

               District No. 4--Philadelphia, Pennsylvania

Charlestown, WV, Kanahwa Airport
Dover, DE, Dover Air Force Base
Erie, PA, Erie International Airport (USCS)
Harrisburg, PA, Harrisburg International Airport
Philadelphia, PA, Philadelphia International Airport
Pittsburgh, PA, Pittsburgh International Airport

                   District No. 5--Baltimore, Maryland

Baltimore, MD, Baltimore-Washington International Airport

                     District No. 6--Miami, Florida

Daytona, FL, Daytona International Airport, FL
Fort Lauderdale, FL, Executive Airport
Fort Lauderdale, FL, Fort Lauderdale-Hollywood Airport
Fort Myers, FL, Southwest Regional International Airport
Freeport, Bahamas, Freeport International Airport
Jacksonville, FL, Jacksonville International Airport
Key West, FL, Key West International Airport
Melbourne, FL, Melbourne International Airport
Miami, FL, Chalks Flying Service Seaplane Base
Miami, FL, Miami International Airport
Nassau, Bahamas, Nassau International Airport
Orlando, FL, Orlando International Airport
Palm Beach, FL, Palm Beach International Airport
Paradise Island, Bahamas, Paradise Island Airport
Sanford, FL, Sanford International Airport
Sarasota, FL, Sarasota Airport
St. Petersburg, FL, St. Petersburg/Clearwater International Airport
Tampa, FL, Tampa International Airport

                    District No. 7--Buffalo, New York

Albany, NY, Albany County Airport
Buffalo, NY, Buffalo Airport
Massena, NY, Massena Airport
Niagara Falls, NY, Niagara Falls International Airport
Ogdensburg, NY, Ogdensburg Municipal Airport
Rochester, NY, Rochester Airport
Syracuse, NY, Hancock International Airport
Watertown, NY, Watertown Municipal Airport

                    District No. 8--Detroit, Michigan

Battle Creek, MI, Battle Creek Airport
Chippewa, MI, Chippewa County International Airport
Detroit, MI, Detroit City Airport
Detroit, MI, Detroit Metropolitan Wayne County Airport
Port Huron, MI, St. Clair County International Airport
Sault Ste. Marie, MI, Sault Ste. Marie Airport

                    District No. 9--Chicago, Illinois

Chicago, IL, Chicago Midway Airport
Chicago, IL, Chicago O'Hare International Airport

[[Page 63]]

Indianapolis, IN, Indianapolis International Airport
Mitchell, WI, Mitchell International Airport

                  District No. 10--St. Paul, Minnesota

Baudette, MN, Baudette International Airport
Duluth, MN, Duluth International Airport
Duluth, MN, Sky Harbor Airport
Grand Forks, ND, Grand Forks International Airport
International Falls, MN, Falls International Airport
Minneapolis/St. Paul, MN, Minneapolis/St. Paul International Airport
Minot, ND, Minot International Airport
Pembina, ND, Port Pembina Airport
Portal, ND, Portal Airport
Ranier, MN, International Seaplane Base
Warroad, MN, Warroad International Airport
Williston, ND, Sioulin Field (Municipal)

                 District No. 11--Kansas City, Missouri

Kansas City, MO, Kansas City International Airport
Springfield, MO, Springfield Regional Airport
St. Louis, MO, St. Louis Lambert International Airport
St. Louis, MO, Spirit of St. Louis Airport

                  District No. 12--Seattle, Washington

Bellingham, WA, Bellingham Airport
Friday Harbor, WA, Friday Harbor
McChord, WA, McChord Air Force Base
Oroville, WA, Dorothy Scott Municipal Airport
Oroville, WA, Dorothy Scott Seaplane Base
Point Roberts, WA, Point Roberts Airport
Port Townsend, WA, Jefferson County International Airport
SEA-TAC, WA, SEA-TAC International Airport
Seattle, WA, Boeing Municipal Air Field
Seattle, WA, Lake Union
Spokane, WA, Felts Field
Spokane, WA, Spokane International Airport

               District No. 13--San Francisco, California

Alameda, CA, Alemeda Naval Air Station
Oakland, CA, Oakland International Airport
Sacramento, CA, Beale Air Force Base
San Francisco, CA, San Francisco International Airport
San Jose, CA, San Jose International Airport
Travis, CA, Travis Air Force Base

                   District No. 14--San Antonio, Texas

Austin, TX, Austin International Airport
Corpus Christi, TX, Corpus Christi Airport
Del Rio, TX, Del Rio International Airport
Laredo, TX, Laredo International Airport
Maverick, TX, Maverick County Airport
San Antonio, TX, San Antonio International Airport

                     District No. 15--El Paso, Texas

Albuquerque, NM, Albuquerque International Airport
El Paso, TX, International Airport
Presidio, TX, Presidio Airport
Santa Teresa, NM, Santa Teresa Airport

                District No. 16--Los Angeles, California

Los Angeles, CA, Los Angeles International Airport
Ontario, CA, Ontario International Airport

                    District No. 17--Honolulu, Hawaii

Agana, Guam, Guam International Airport Terminal
Honolulu, HI, Honolulu International Airport
Honolulu, HI, Hickam Air Force Base

                    District No. 18--Phoenix, Arizona

Douglas, AZ, Bisbee-Douglas Airport
Las Vegas, NV, McCarren International Airport
Nogales, AZ, Nogales International Airport
Phoenix, AZ, Phoenix Sky Harbor International Airport
Reno, NV, Reno Carron International Airport
Tucson, AZ, Tucson International Airport
Yuma, AZ, Yuma International Airport

                    District No. 19--Denver, Colorado

Colorado Springs, CO, Colorado Springs Airport
Denver, CO, Denver International Airport
Salt Lake City, UT, Salt Lake City Airport

                     District No. 20--Dallas, Texas

Dallas, TX, Dallas-Fort Worth International Airport
Oklahoma City, OK, Oklahoma City Airport (includes Altus and Tinker 
AFBs)

                   District No. 21--Newark, New Jersey

Atlantic City, NJ, Atlantic City International Airport
Lakehurst, NJ, Lakehurst Naval Air Station
Morristown, NJ, Morristown Airport
Newark, NJ, Newark International Airport
Newark, NJ, Signature Airport
Teterboro, NJ, Teterboro Airport
Wrightstown, NJ, McGuire Air Force Base

                    District No. 22--Portland, Maine

Bangor, ME, Bangor International Airport
Burlington, VT, Burlington International Airport
Caribou, ME, Caribou Municipal Airport
Highgate Springs, VT, Franklin County Regional Airport
Newport, VT, Newport State Airport

[[Page 64]]

                       District No. 23--[Reserved]

                    District No. 24--Cleveland, Ohio

Akron, OH, Municipal Airport
Cincinnati, OH, Cincinnati International Airport
Cleveland, OH, Cleveland Hopkins Airport
Columbus, OH, Port Columbus International Airport
Sandusky, OH, Griffing/Sandusky Airport

                    District No. 25--Washington, D.C.

Camp Springs, MD, Andrews Air Force Base
Chantilly, VA, Washington Dulles International Airport
Winchester, VA, Winchester Airport

                    District No. 26--Atlanta, Georgia

Atlanta, GA, Atlanta Hartsfield International Airport
Charleston, SC, Charleston International Airport
Charleston, SC, Charleston Air Force Base
Charlotte, NC, Charlotte International Airport
Raleigh, NC, Raleigh-Durham International Airport
Savannah, GA, Savannah International Airport

                 District No. 27--San Juan, Puerto Rico

San Juan, PR, San Juan International Airport

                 District No. 28--New Orleans, Louisiana

Louisville, KY, Louisville International Airport
New Orleans, LA, New Orleans International Airport
Memphis, TN, Memphis International Airport
Nashville, TN, Nashville International Airport

                    District No. 29--Omaha, Nebraska

Des Moines, IA, Des Moines International Airport
Omaha, NE, Eppley International Airport
Omaha, NE, Offutt Air Force Base

                    District No. 30--Helena, Montana

Billings, MT, Billings Airport
Boise, ID, Boise Airport
Cut Bank, MT, Cut Bank Airport
Glasgow, MT, Glasgow International Airport
Great Falls, MT, Great Falls International Airport
Havre, MT, Havre-Hill County Airport
Helena, MT, Helena Airport
Kalispel, MT, Kalispel Airport
Missoula, MT, Missoula Airport

                    District No. 31--Portland, Oregon

Medford, OR, Jackson County Airport
Portland, OR, Portland International Airport

                   District No. 32--Anchorage, Alaska

Anchorage, AK, Anchorage International Airport
Juneau, AK, Juneau Airport (Seaplane Base Only)
Juneau, AK, Juneau Municipal Airport
Ketchikan, AK, Ketchikan Airport
Wrangell, AK, Wrangell Seaplane Base

                     District No. 38--Houston, Texas

Galveston, TX, Galveston Airport
Houston, TX, Ellington Field
Houston, TX, Hobby Airport
Houston, TX, Houston Intercontinental Airport

                 District No. 39--San Diego, California

Calexico, CA, Calexico International Airport
San Diego, CA, San Diego International Airport
San Diego, CA, San Diego Municipal Airport (Lindbergh Field)

                    District No. 40--Harlingen, Texas

Brownsville, TX, Brownsville/South Padre Island International Airport
Harlingen, TX, Valley International Airport
McAllen, TX, McAllen Miller International Airport

    (4) Immigration offices in foreign countries:

Athens, Greece
Bangkok, Thailand
Calgary, Alberta, Canada
Ciudad Juarez, Mexico
Dublin, Ireland
Edmonton, Alberta, Canada
Frankfurt, Germany
Freeport, Bahamas
Hamilton, Bermuda
Havana, Cuba
Hong Kong, B.C.C.
Karachi, Pakistan
London, United Kingdom
Manila, Philippines
Mexico City, Mexico
Monterrey, Mexico
Montreal, Quebec, Canada
Moscow, Russia
Nairobi, Kenya
Nassau, Bahamas
New Delhi, India
Oranjestad, Aruba
Ottawa, Ontario, Canada
Rome, Italy
Santo Domingo, Dominican Republic
Seoul, Korea
Shannon, Ireland
Singapore, Republic of Singapore
Tegucigalpa, Honduras
Tijuana, Mexico

[[Page 65]]

Toronto, Ontario, Canada
Vancouver, British Columbia, Canada
Victoria, British Columbia, Canada
Vienna, Austria
Winnipeg, Manitoba, Canada


    (d) Border patrol sectors. Border Patrol Sector Headquarters and 
Stations are situated at the following locations:

                      Sector No. 1--Houlton, Maine

Calais, ME
Fort Fairfield, ME
Houlton, ME
Jackman, ME
Rangeley, ME
Van Buren, ME

                     Sector No. 2--Swanton, Vermont

Beecher Falls, VT
Burke, NY
Champlain, NY
Massena, NY
Newport, VT
Ogdensburg, NY
Richford, VT
Swanton, VT

                    Sector No. 3--Ramey, Puerto Rico

Ramey, Puerto Rico

                     Sector No. 4--Buffalo, New York

Buffalo, NY
Fulton, NY
Niagara Falls, NY
Watertown, NY

                     Sector No. 5--Detroit, Michigan

Detroit, MI
Grand Rapids, MI
Port Huron, MI
Sault Ste. Marie, MI
Trenton, MI

                 Sector No. 6--Grand Forks, North Dakota

Bottineau, ND
Duluth, MN
Grand Forks, ND
Grand Marais, MN
International Falls, MN
Pembina, ND
Portal, ND
Warroad, MN

                      Sector No. 7--Havre, Montana

Billings, MT
Havre, MT
Malta, MT
Plentywood, MT
Scobey, MT
Shelby, MT
St. Mary, MT
Sweetgrass, MT
Twin Falls, ID

                    Sector No. 8--Spokane, Washington

Bonners Ferry, ID
Colville, WA
Eureka, MT
Oroville, WA
Pasco, WA
Spokane, WA
Wenatchee, WA
Whitefish, MT

                    Sector No. 9--Blaine, Washington

Bellingham, WA
Blaine, WA
Lynden, WA
Port Angeles, WA
Roseburg, OR

                  Sector No. 10--Livermore, California

Bakersfield, CA
Fresno, CA
Livermore, CA
Oxnard, CA
Sacramento, CA
Salinas, CA
San Luis Obispo, CA
Stockton, CA

                  Sector No. 11--San Diego, California

Brown Field, CA
Campo, CA (Boulevard, CA)
Chula Vista, CA
El Cajon, CA (San Marcos and Julian, CA)
Imperial Beach, CA
San Clemente, CA
Temecula, CA

                  Sector No. 12--El Centro, California

Calexico, CA
El Centro, CA
Indio, CA
Riverside, CA

                      Sector No. 13--Yuma, Arizona

Blythe, CA
Boulder City, NV
Wellton, AZ
Yuma, AZ

                     Sector No. 14--Tucson, Arizona

Ajo, AZ
Casa Grande, AZ
Douglas, AZ
Naco, AZ
Nogales, AZ
Phoenix, AZ
Sonita, AZ
Tucson, AZ
Willcox, AZ

                      Sector No. 15--El Paso, Texas

Alamogordo, NM
Albuquerque, NM
Carlsbad, NM
Deming, NM
El Paso, TX

[[Page 66]]

Fabens, TX
Fort Hancock, TX
Las Cruces, NM,
Lordsburg, NM
Truth or Consequences, NM
Ysleta, TX

                       Sector No. 16--Marfa, Texas

Alpine, TX
Amarillo, TX
Fort Stockton, TX
Lubbock, TX
Marfa, TX
Midland, TX
Pecos, TX
Presidio, TX
Sanderson, TX
Sierra Blanca, TX
Van Horn, TX

                      Sector No. 17--Del Rio, Texas

Abilene, TX
Brackettville, TX
Carrizo Springs, TX
Comstock, TX
Del Rio, TX
Eagle Pass, TX
Llano, TX
Rocksprings, TX
San Angelo, TX
Uvalde, TX

                      Sector No. 18--Laredo, Texas

Cotulla, TX
Dallas, TX
Freer, TX
Hebbronville, TX
Laredo North, TX
Laredo South, TX
San Antonio, TX
Zapata, TX

                      Sector No. 19--McAllen, Texas

Brownsville, TX
Corpus Christi, TX
Falfurrias, TX
Harlingen, TX
Kingsville, TX
McAllen, TX
Mercedes, TX
Port Isabel, TX
Rio Grande City, TX

                  Sector No. 20--New Orleans, Louisiana

Baton Rouge, LA
Gulfport, MS
Lake Charles, LA
Little Rock, AR
Miami, OK
Mobile, AL
New Orleans, LA

                      Sector No. 21--Miami, Florida

Jacksonville, FL
Orlando, FL
Pembroke Pines, FL
Tampa, FL
West Palm Beach, FL


    (e) Service centers. Service centers are situated at the following 
locations:

Texas Service Center, Dallas, Texas
Nebraska Service Center, Lincoln, Nebraska
California Service Center, Laguna Niguel, California
Vermont Service Center, St. Albans, Vermont


    (f) Asylum offices--(1) Newark, New Jersey. The Asylum Office in 
Lyndhurst has jurisdiction over the State of New York within the 
boroughs of Manhattan and the Bronx in the City of New York; the Albany 
Suboffice; jurisdiction of the Buffalo District Office; the State of 
Pennsylvania, excluding the jurisdiction of the Pittsburgh Suboffice; 
and the States of Connecticut, Delaware, Maine, Massachusetts, New 
Hampshire, New Jersey, Rhode Island, and Vermont.
    (2) New York City, New York. The Asylum Office in New York has 
jurisdiction over the State of New York excluding the jurisdiction of 
the Albany Suboffice, the Buffalo District Office and the boroughs of 
Manhattan and the Bronx.
    (3) Arlington, Virginia. The Asylum Office in Arlington has 
jurisdiction over the District of Columbia, the western portion of the 
State of Pennsylvania currently within the jurisdiction of the 
Pittsburgh Suboffice, and the States of Maryland, Virginia, West 
Virginia, North Carolina, Georgia, Alabama, and South Carolina.
    (4) Miami, Florida. The Asylum Office in Miami has jurisdiction over 
the State of Florida, the Commonwealth of Puerto Rico, and the United 
States Virgin Islands.
    (5) Houston, Texas. The Asylum Office in Houston has jurisdiction 
over the States of Louisiana, Arkansas, Mississippi, Tennessee, Texas, 
Oklahoma, New Mexico, Colorado, Utah, and Wyoming.
    (6) Chicago, Illinois. The Asylum Office in Chicago has jurisdiction 
over the States of Illinois, Indiana, Michigan, Wisconsin, Minnesota, 
North Dakota, South Dakota, Kansas, Missouri, Ohio, Iowa, Nebraska, 
Montana, Idaho, and Kentucky.

[[Page 67]]

    (7) Los Angeles, California. The Asylum Office in Los Angeles has 
jurisdiction over the States of Arizona, the southern portion of 
California as listed in Sec. 100.4(b)(16) and Sec. 100.4(b)(39), Hawaii, 
the southern portion of Nevada currently within the jurisdiction of the 
Las Vegas Suboffice, and the Territory of Guam.
    (8) San Francisco, California. The Asylum Office in San Francisco 
has jurisdiction over the northern part of California as listed in 
Sec. 100.4(b)(13), the portion of Nevada currently under the 
jurisdiction of the Reno Suboffice, and the States of Alaska, Oregon, 
and Washington.

[60 FR 57166, Nov. 14, 1995, as amended at 61 FR 25778, May 23, 1996; 63 
FR 70315, Dec. 21, 1998; 65 FR 39072, June 23, 2000]



Sec. 100.5  Regulations.

    The regulations of the Immigration and Naturalization Service, 
published as chapter I of title 8 of the Code of Federal Regulations, 
contain information which under the provisions of section 552 of title 5 
of the United States Code, is required to be published and is subdivided 
into subchapter A (General Provisions, parts 1 through 3, inclusive), 
subchapter B (Immigration Regulations, parts 100 through 299, 
inclusive), and subchapter C (Nationality Regulations, parts 306 through 
499, inclusive). Any person desiring information with respect to a 
particular procedure (other than rule making) under the Immigration and 
Nationality Act should examine the part or section in chapter I of title 
8 of the Code of Federal Regulations dealing with such procedures as 
well as the section of the Act implemented by such part or section.



Sec. 100.6  Rule making.

    Section 103(a) of the Immigration and Nationality Act requires the 
Attorney General to establish such regulations as he deems necessary for 
carrying out his authority under the provisions of that Act. The 
Attorney General has delegated certain rule making authority to the 
Commissioner of Immigration and Naturalization. The provisions of the 
Federal Register Act (49 Stat. 500; 44 U.S.C. 301-314), as amended, and 
of the regulations thereunder (1 CFR--Administrative Committee of the 
Federal Register) as well as the provisions of section 553 of title 5 of 
the United States Code governing the issuance of regulations are 
observed.



Sec. 100.7  OMB control numbers assigned to information collections.

    This section collects and displays the control numbers assigned to 
information collection requirements of the Immigration and 
Naturalization Service by the Office of Management and Budget (OMB) 
pursuant to the Paperwork Reduction Act of 1980, Public Law 96-511. The 
Service intends that this section comply with the requirements of 
section 3507(f) of the Paperwork Reduction Act, which requires that 
agencies display a current control number assigned by the Director of 
the Office of Management and Budget for each agency information 
collection requirement.

------------------------------------------------------------------------
                                                             Current OMB
    8 CFR part or section where identified and described     control No.
------------------------------------------------------------------------
103.2(b)(1)................................................    1115-0062
103.6......................................................    1115-0085
103.6(c)...................................................    1115-0046
103.10(a)(2)...............................................    1115-0087
103.10(f)..................................................    1115-0088
204.1(a)...................................................    1115-0054
204.1(b)...................................................    1115-0049
204.1(c)...................................................    1115-0061
Part 207...................................................    1115-0057
207.2......................................................    1115-0066
207.2(d)...................................................    1115-0056
207.3(b)...................................................    1115-0098
Part 208...................................................    1115-0086
211.1(b)(3)................................................    1115-0042
211.2......................................................    1115-0042
212.1(f)...................................................    1115-0042
212.2......................................................    1115-0106
212.3......................................................    1115-0032
212.4(b)...................................................    1115-0028
212.4(g)...................................................    1115-0040
212.6......................................................    1115-0019
212.6......................................................    1115-0047
212.7......................................................    1115-0048
212.7(c)...................................................    1115-0059
212.8(b)...................................................    1115-0081
214.1......................................................    1115-0051
214.1(c)...................................................    1115-0093
214.2(e)...................................................    1115-0023
214.2(f)...................................................    1115-0060
214.2(f)...................................................    1115-0051
214.2(g)...................................................    1115-0090
214.2(h)...................................................    1115-0038
214.2(k)...................................................    1115-0071
214.2(l)...................................................    1115-0038
214.2(m)...................................................    1115-0060
214.2(m)...................................................    1115-0051
214.3......................................................    1115-0070
214.3(g)...................................................    1115-0051
Part 223...................................................    1115-0005
Part 223a..................................................    1115-0084
223.1......................................................    1115-0037
Part 231...................................................    1115-0083

[[Page 68]]

 
Part 231...................................................    1115-0078
Part 231...................................................    1115-0108
Part 232...................................................    1115-0036
Part 233...................................................    1115-0036
234.2(c)...................................................    1115-0048
Part 235...................................................    1115-0077
235.1(e)...................................................    1115-0065
243.4......................................................    1115-0055
243.7......................................................    1115-0043
Part 244...................................................    1115-0025
Part 245...................................................    1115-0053
Part 245...................................................    1115-0066
245.2......................................................    1115-0089
245.2(a)(2)................................................    1115-0067
247.11.....................................................    1115-0037
247.12.....................................................    1115-0037
247.13.....................................................    1115-0037
248.3......................................................    1115-0032
248.3(b)...................................................    1115-0038
248.4......................................................    1115-0038
Part 249...................................................    1115-0053
Part 249...................................................    1115-0066
Part 250...................................................    1115-0020
Part 251...................................................    1115-0083
Part 251...................................................    1115-0040
Part 252...................................................    1115-0040
252.1(f)...................................................    1115-0073
253.1......................................................    1115-0029
264.1......................................................    1115-0004
264.1(c)...................................................    1115-0079
264.1(f)...................................................    1115-0002
265.1......................................................    1115-0003
292.2......................................................    1115-0026
316a.21....................................................    1115-0014
319.11.....................................................    1115-0009
Part 322...................................................    1115-0010
324.11.....................................................    1115-0009
327.1......................................................    1115-0009
Part 328...................................................    1115-0009
328.3......................................................    1115-0022
Part 329...................................................    1115-0009
329.2......................................................    1115-0022
Part 330...................................................    1115-0009
Part 330...................................................    1115-0031
Part 334a..................................................    1115-0008
334.11.....................................................    1115-0009
334.17.....................................................    1115-0035
335.11.....................................................    1115-0009
336.16a....................................................    1115-0076
336.16a....................................................    1115-0052
338.16.....................................................    1115-0030
Part 341...................................................    1115-0018
341.1(b)...................................................    1115-0009
343a.1.....................................................    1115-0015
343b.......................................................    1115-0016
------------------------------------------------------------------------


[48 FR 37201, Aug. 17, 1983]



PART 101--PRESUMPTION OF LAWFUL ADMISSION--Table of Contents




Sec.
101.1  Presumption of lawful admission.
101.2  Presumption of lawful admission; entry under erroneous name or 
          other errors.
101.3  Creation of record of lawful permanent resident status for person 
          born under diplomatic status in the United States.
101.4  Registration procedure.
101.5  Special immigrant status for certain G-4 nonimmigrants.

    Authority: 8 U.S.C. 1103, 8 CFR part 2.



Sec. 101.1  Presumption of lawful admission.

    A member of the following classes shall be presumed to have been 
lawfully admitted for permanent residence even though a record of his 
admission cannot be found, except as otherwise provided in this section, 
unless he abandoned his lawful permanent resident status or subsequently 
lost that status by operation of law:
    (a) Prior to June 30, 1906. An alien who establishes that he entered 
the United States prior to June 30, 1906.
    (b) United States land borders. An alien who establishes that, while 
a citizen of Canada or Newfoundland, he entered the United States across 
the Canadian border prior to October 1, 1906; an alien who establishes 
that while a citizen of Mexico he entered the United States across the 
Mexican border prior to July 1, 1908; an alien who establishes that, 
while a citizen of Mexico, he entered the United States at the port of 
Presidio, Texas, prior to October 21, 1918, and an alien for whom a 
record of his actual admission to the United States does not exist but 
who establishes that he gained admission to the United States prior to 
July 1, 1924, pursuant to preexamination at a United States immigration 
station in Canada and that a record of such preexamination exists.
    (c) Virgin Islands. An alien who establishes that he entered the 
Virgin Islands of the United States prior to July 1, 1938, even though a 
record of his admission prior to that date exists as a non-immigrant 
under the Immigration Act of 1924.
    (d) Asiatic barred zone. An alien who establishes that he is of a 
race indigenous to, and a native of a country within, the Asiatic zone 
defined in section 3 of the Act of February 5, 1917, as amended, that he 
was a member of a class of aliens exempted from exclusion by the 
provisions of that section, and that he entered the United States prior 
to July 1, 1924, provided that a record of his admission exists.
    (e) Chinese and Japanese aliens--(1) Prior to July 1, 1924. A 
Chinese alien for

[[Page 69]]

whom there exists a record of his admission to the United States prior 
to July 1, 1924, under the laws and regulations formerly applicable to 
Chinese and who establishes that at the time of his admission he was a 
merchant, teacher, or student, and his son or daughter under 21 or wife 
accompanying or following to join him; a traveler for curiosity or 
pleasure and his accompanying son or daughter under 21 or accompanying 
wife; a wife of a United States citizen; a returning laborer; and a 
person erroneously admitted as a United States citizen under section 
1993 of the Revised Statutes of the United States, as amended, his 
father not having resided in the United States prior to his birth.
    (2) On or after July 1, 1924. A Chinese alien for whom there exists 
a record of his admission to the United States as a member of one of the 
following classes; an alien who establishes that he was readmitted 
between July 1, 1924, and December 16, 1943, inclusive, as a returning 
Chinese laborer who acquired lawful permanent residence prior to July 1, 
1924; a person erroneously admitted between July 1, 1924, and June 6, 
1927, inclusive, as a United States citizen under section 1993 of the 
Revised Statutes of the United States, as amended, his father not having 
resided in the United States prior to his birth; an alien admitted at 
any time after June 30, 1924, under section 4 (b) or (d) of the 
Immigration Act of 1924; an alien wife of a United States citizen 
admitted between June 13, 1930, and December 16, 1943, inclusive, under 
section 4(a) of the Immigration Act of 1924; an alien admitted on or 
after December 17, 1943, under section 4(f) of the Immigration Act of 
1924; an alien admitted on or after December 17, 1943, under section 
317(c) of the Nationality Act of 1940, as amended; an alien admitted on 
or after December 17, 1943, as a preference or nonpreference quota 
immigrant pursuant to section 2 of that act; and a Chinese or Japanese 
alien admitted to the United States between July 1, 1924, and December 
23, 1952, both dates inclusive, as the wife or minor son or daughter of 
a treaty merchant admitted before July 1, 1924, if the husband-father 
was lawfully admitted to the United States as a treaty merchant before 
July 1, 1924, or, while maintaining another status under which he was 
admitted before that date, and his status changed to that of a treaty 
merchant or treaty trader after that date, and was maintaining the 
changed status at the time his wife or minor son or daughter entered the 
United States.
    (f) Citizens of the Philippine Islands--(1) Entry prior to May 1, 
1934. An alien who establishes that he entered the United States prior 
to May 1, 1934, and that he was on the date of his entry a citizen of 
the Philippine Islands, provided that for the purpose of petitioning for 
naturalization he shall not be regarded as having been lawfully admitted 
for permanent residence unless he was a citizen of the Commonwealth of 
the Philippines on July 2, 1946.
    (2) Entry between May 1, 1934, and July 3, 1946. An alien who 
establishes that he entered Hawaii between May 1, 1934, and July 3, 
1946, inclusive, under the provisions of the last sentence of section 
8(a)(1) of the Act of March 24, 1934, as amended, that he was a citizen 
of the Philippine Islands when he entered, and that a record of such 
entry exists.
    (g) Temporarily admitted aliens. The following aliens who when 
admitted expressed an intention to remain in the United States 
temporarily or to pass in transit through the United States, for whom 
records of admission exist, but who remained in the United States: An 
alien admitted prior to June 3, 1921, except if admitted temporarily 
under the 9th proviso to section 3 of the Immigration Act of 1917, or as 
an accredited official of a foreign government, his suite, family, or 
guest, or as a seaman in pursuit of his calling; an alien admitted under 
the Act of May 19, 1921, as amended, who was admissible for permanent 
residence under that Act notwithstanding the quota limitation's thereof 
and his accompanying wife or unmarried son or daughter under 21 who was 
admissible for permanent residence under that Act notwithstanding the 
quota limitations thereof; and an alien admitted under the Act of May 
19, 1921, as amended, who was charged under that Act to the proper quota 
at the time of his admission or subsequently and who remained so 
charged.
    (h) Citizens of the Trust Territory of the Pacific Islands who 
entered Guam prior to

[[Page 70]]

December 24, 1952. An alien who establishes that while a citizen of the 
Trust Territory of the Pacific Islands he entered Guam prior to December 
24, 1952, by records, such as Service records subsequent to June 15, 
1952, records of the Guamanian Immigration Service, records of the Navy 
or Air Force, or records of contractors of those agencies, and was 
residing in Guam on December 24, 1952.
    (i) Aliens admitted to Guam. An alien who establishes that he was 
admitted to Guam prior to December 24, 1952, by records such as Service 
records subsequent to June 15, 1952, records of the Guamanian 
Immigration Service, records of the Navy or Air Force, or records of 
contractors of those agencies; that he was not excludable under the Act 
of February 5, 1917, as amended; and that he continued to reside in Guam 
until December 24, 1952, and thereafter was not admitted or readmitted 
into Guam as a nonimmigrant, provided that the provisions of this 
paragraph shall not apply to an alien who was exempted from the contract 
laborer provisions of section 3 of the Immigration Act of February 5, 
1917, as amended, through the exercise, expressly or impliedly, of the 
4th or 9th provisos to section 3 of that act.
    (j) Erroneous admission as United States citizens or as children of 
citizens. (1)(i) An alien for whom there exists a record of admission 
prior to September 11, 1957, as a United States citizen who establishes 
that at the time of such admission he was the child of a United States 
citizen parent; he was erroneously issued a United States passport or 
included in the United States passport of his citizen parent 
accompanying him or to whom he was destined; no fraud or 
misrepresentation was practiced by him in the issuance of the passport 
or in gaining admission; he was otherwise admissible at the time of 
entry except for failure to meet visa or passport requirements; and he 
has maintained a residence in the United States since the date of 
admission, or (ii) an alien who meets all of the foregoing requirements 
except that if he were, in fact, a citizen of the United States a 
passport would not have been required, or it had been individually 
waived, and was erroneously admitted as a United States citizen by a 
Service officer. For the purposes of all of the foregoing, the terms 
child and parent shall be defined as in section 101(b) of the 
Immigration and Nationality Act, as amended.
    (2) An alien admitted to the United States before July 1, 1948, in 
possession of a section 4(a) 1924 Act nonquota immigration visa issued 
in accordance with State Department regulations, including a child of a 
United States citizen after he reached the age of 21, in the absence of 
fraud or misrepresentation; a member of a naturalized person's family 
who was admitted to the United States as a United States citizen or as a 
section 4(a) 1924 Act nonquota immigrant on the basis of that 
naturalization, unless he knowingly participated in the unlawful 
naturalization of the parent or spouse rendered void by cancellation, or 
knew at any time prior to his admission to the United States of the 
cancellation; and a member of a naturalized person's family who knew at 
any time prior to his admission to the United States of the cancellation 
of the naturalization of his parent or spouse but was admitted to the 
United States as a United States citizen pursuant to a State Department 
or Service determination based upon a then prevailing administrative 
view, provided the State Department or Service knew of the cancellation.

[23 FR 9119, Nov. 26, 1958, as amended at 24 FR 2583, Apr. 3, 1959; 24 
FR 6476, Aug. 12, 1959; 25 FR 581, Jan. 23, 1960; 31 FR 535, Jan. 15, 
1966]



Sec. 101.2  Presumption of lawful admission; entry under erroneous name or other errors.

    An alien who entered the United States as either an immigrant or 
nonimmigrant under any of the following circumstances shall be regarded 
as having been lawfully admitted in such status, except as otherwise 
provided in this part: An alien otherwise admissible whose entry was 
made and recorded under other than his full true and correct name or 
whose entry record contains errors in recording sex, names of relatives, 
or names of foreign places of birth or residence, provided

[[Page 71]]

that he establishes by clear, unequivocal, and convincing evidence that 
the record of the claimed admission relates to him, and, if entry 
occurred on or after May 22, 1918, if under other than his full, true 
and correct name that he also establishes that the name was not adopted 
for the purpose of concealing his identity when obtaining a passport or 
visa, or for the purpose of using the passport or visa of another person 
or otherwise evading any provision of the immigration laws, and that the 
name used at the time of entry was one by which he had been known for a 
sufficient length of time prior to making application for a passport or 
visa to have permitted the issuing authority or authorities to have made 
any necessary investigation concerning him or that his true identity was 
known to such officials.

[32 FR 9622, July 4, 1967]



Sec. 101.3  Creation of record of lawful permanent resident status for person born under diplomatic status in the United States.

    (a) Person born to foreign diplomat. (1) Status of person. A person 
born in the United States to a foreign diplomatic officer accredited to 
the United States, as a matter of international law, is not subject to 
the jurisdiction of the United States. That person is not a United 
States citizen under the Fourteenth Amendment to the Constitution. Such 
a person may be considered a lawful permanent resident at birth.
    (2) Definition of foreign diplomatic officer. Foreign diplomatic 
officer means a person listed in the State Department Diplomatic List, 
also known as the Blue List. It includes ambassadors, ministers, charges 
d'affaires, counselors, secretaries and attaches of embassies and 
legations as well as members of the Delegation of the Commission of the 
European Communities. The term also includes individuals with comparable 
diplomatic status and immunities who are accredited to the United 
Nations or to the Organization of American States, and other individuals 
who are also accorded comparable diplomatic status.
    (b) Child born subject to the jurisdiction of the United States. A 
child born in the United States is born subject to the jurisdiction of 
the United States and is a United States citizen if the parent is not a 
``foreign diplomatic officer'' as defined in paragraph (a)(2) of this 
section. This includes, for example, a child born in the United States 
to one of the following foreign government officials or employees:
    (1) Employees of foreign diplomatic missions whose names appear in 
the State Department list entitled ``Employees of Diplomatic Missions 
Not Printed in the Diplomatic List,'' also known as the White List; 
employees of foreign diplomatic missions accredited to the United 
Nations or the Organization of American States; or foreign diplomats 
accredited to other foreign states. The majority of these individuals 
enjoy certain diplomatic immunities, but they are not ``foreign 
diplomatic officers'' as defined in paragraph (a)(2) of this section. 
The immunities, if any, of their family members are derived from the 
status of the employees or diplomats.
    (2) Foreign government employees with limited or no diplomatic 
immunity such as consular officials named on the State Department list 
entitled ``Foreign Consular Officers in the United States'' and their 
staffs.
    (c) Voluntary registration as lawful permanent resident of person 
born to foreign diplomat. Since a person born in the United States to a 
foreign diplomatic officer is not subject to the jurisdiction of the 
United States, his/her registration as a lawful permanent resident of 
the United States is voluntary. The provisions of section 262 of the Act 
do not apply to such a person unless and until that person ceases to 
have the rights, privileges, exemptions, or immunities which may be 
claimed by a foreign diplomatic officer.
    (d) Retention of lawful permanent residence. To be eligible for 
lawful permanent resident status under paragraph (a) of this section, an 
alien must establish that he/she has not abandoned his/her residence in 
the United States. One of the tests for retention of lawful permanent 
resident status is continuous residence, not continuous physical 
presence, in the United States. Such a person will not be considered to 
have abandoned his/her residence in the

[[Page 72]]

United States solely by having been admitted to the United States in a 
nonimmigrant classification under paragraph (15)(A) or (15)(G) of 
section 101(a) of the Act after a temporary stay in a foreign country or 
countries on one or several occasions.


(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act, 
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)

[47 FR 940, Jan. 8, 1982]



Sec. 101.4  Registration procedure.

    The procedure for an application for creation of a record of lawful 
permanent residence and a Permanent Resident Card, Form I-551, for a 
person eligible for presumption of lawful admission for permanent 
residence under Sec. 101.1 or Sec. 101.2 or for lawful permanent 
residence as a person born in the United States to a foreign diplomatic 
officer under Sec. 101.3 is described in Sec. 264.2 of this chapter.

(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act, 
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)

[47 FR 941, Jan. 8, 1982, as amended at 63 FR 70315, Dec. 21, 1998]



Sec. 101.5  Special immigrant status for certain G-4 nonimmigrants.

    (a) Application. An application for adjustment to special immigrant 
status under section 101(a)(27)(I) of the INA shall be made on Form I-
485. The application date of the I-485 shall be the date of acceptance 
by the Service as properly filed. If the application date is other than 
the fee receipt date it must be noted and initialed by a Service 
officer. The date of application for adjustment of status is the closing 
date for computing the residence and physical presence requirement. The 
applicant must have complied with all requirements as of the date of 
application.
    (b) Documentation. All documents must be submitted in accordance 
with Sec. 103.2(b) of this chapter. The application shall be accompanied 
by documentary evidence establishing the aggregate residence and 
physical presence required. Documentary evidence may include official 
employment verification, records of official or personnel transactions 
or recordings of events occurring during the period of claimed residence 
and physical presence. Affidavits of credible witnesses may also be 
accepted. Persons unable to furnish evidence in their own names may 
furnish evidence in the names of parents or other persons with whom they 
have been living, if affidavits of the parents or other persons are 
submitted attesting to the claimed residence and physical presence. The 
claimed family relationship to the principle G-4 international 
organization officer or employee must be substantiated by the submission 
of verifiable civil documents.
    (c) Residence and physical presence requirements. All applicants 
applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA 
must have resided and been physically present in the United States for a 
designated period of time.
    For purposes of this section only, an absence from the United States 
to conduct official business on behalf of the employing organization, or 
approved customary leave shall not be subtracted from the aggregated 
period of required residence or physical presence for the current or 
former G-4 officer or employee or the accompanying spouse and unmarried 
sons or daughters of such officer or employee, provided residence in the 
United States is maintained during such absences, and the duty station 
of the principle G-4 nonimmigrant continues to be in the United States. 
Absence from the United States by the G-4 spouse or unmarried son or 
daughter without the principle G-4 shall not be subtracted from the 
aggregate period of residence and physical presence if on customary 
leave as recognized by the international organization employer. Absence 
by the unmarried son or daughter while enrolled in a school outside the 
United States will not be counted toward the physical presence 
requirement.
    (d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i), 
and (ii) requires the applicant to accrue the required period of 
residence and physical presence in the United States while maintaining 
status as a G-4 or N nonimmigrant. Section 101(a)(27)(I)(iii) requires 
such time accrued only in G-4 nonimmigrant status.

[[Page 73]]

    Maintaining G-4 status for this purpose is defined as maintaining 
qualified employment with a ``G'' international organization or 
maintaining the qualifying family relationship with the G-4 
international organization officer or employee. Maintaining status as an 
N nonimmigrant for this purpose requires the qualifying family 
relationship to remain in effect. Unauthorized employment will not 
remove an otherwise eligible alien from G-4 status for residence and 
physical presence requirements, provided the qualifying G-4 status is 
maintained.

[54 FR 5927, Feb. 7, 1989]



PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS--Table of Contents




Sec.
103.1  Delegations of authority.
103.2  Applications, petitions, and other documents.
103.3  Denials, appeals, and precedent decisions.
103.4  Certifications.
103.5  Reopening or reconsideration.
103.5a  Service of notification, decisions, and other papers by the 
          Service.
103.5b  Application for further action on an approved application or 
          petition.
103.6  Surety bonds.
103.7  Fees.
103.8  Definitions pertaining to availability of information under the 
          Freedom of Information Act.
103.9  Availability of decisions and interpretive material under the 
          Freedom of Information Act.
103.10  Requests for records under the Freedom of Information Act.
103.11  Business information.
103.12  Definition of the term ``lawfully present'' aliens for purposes 
          of applying for Title II Social Security benefits under Public 
          Law 104-193.
103.20  Purpose and scope.
103.21  Access by individuals to records maintained about them.
103.22  Records exempt in whole or in part.
103.23  Special access procedures.
103.24  Requests for accounting of record disclosure.
103.25  Notice of access decisions; time limits.
103.26  Fees for copies of records.
103.27  Appeals from denials of access.
103.28  Requests for correction of records.
103.29  Records not subject to correction.
103.30  Accounting for disclosures.
103.31  Notices of subpoenas and emergency disclosures.
103.32  Information forms.
103.33  Contracting record systems.
103.34  Security of records systems.
103.35  Use and collection of Social Security numbers.
103.36  Employee standards of conduct with regard to privacy.

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 
3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

    Source: 40 FR 44481, Sept. 26, 1975, unless otherwise noted.



Sec. 103.1  Delegations of authority.

    (a) Deputy Commissioner. Without divesting the Commissioner of any 
of the powers, duties, and privileges delegated by the Attorney General, 
coextensive authority is delegated to the Deputy Commissioner. The 
Deputy Commissioner is delegated responsibility for providing overall 
supervision and direction to the four Executive Associate Commissioners 
of the Service.
    (b) General Counsel--(1) General. Under the direction and 
supervision of the Commissioner, the General Counsel is delegated the 
authority to carry out the duties of the chief legal officer for the 
Service, and is assisted by the deputy general counsel(s) and staff. The 
General Counsel advises the Commissioner, the Deputy Commissioner, and 
staff on legal matters; prepares legislative reports; and assists in 
litigation. The General Counsel is delegated the authority to oversee 
the professional activities of all Service attorneys assigned to field 
offices and to make recommendations to the Department of Justice on all 
personnel matters involving Service attorneys, including attorney 
discipline which requires final action or approval by the Deputy 
Attorney General or other designated Department of Justice official. The 
General Counsel is delegated authority to perform the functions 
conferred upon the Commissioner with respect to production or disclosure 
of material in Federal and state proceedings as provided in 28 CFR 
16.24(a).
    (2) Regional Counsel. In addition to other legal activities 
performed under the direction and supervision of the General Counsel, 
Regional Counsel are

[[Page 74]]

delegated authority within their respective regional areas, concurrent 
with that of the General Counsel, to perform the functions conferred 
upon the Commissioner with respect to production or disclosure of 
material in Federal and state proceedings as provided in 28 CFR 
16.24(a).
    (c) Director of Congressional Relations. Under the direction and 
supervision of the Commissioner, the Director of Congressional Relations 
is delegated authority to respond to Congressional inquiries and advise 
the Commissioner and staff concerning legislative matters of the 
Service.
    (d) Director of Public Affairs. Under the direction and supervision 
of the Commissioner, the Director of Public Affairs is delegated 
authority to direct and coordinate public affairs policy, public 
information, news releases, public liaison, and outreach; to advance 
public affairs and Service initiatives such as naturalization and 
employer education; and to produce information products.
    (e) Director of Internal Audit. Under the direction and supervision 
of the Commissioner, the Director of the Office of Internal Audit is 
delegated authority to plan, direct, and coordinate the Service's 
internal audit program and compliance review program; to initiate and to 
conduct or direct the conduct of investigations of alleged mismanagement 
by Service employees; to initiate and to conduct or direct the conduct 
of investigations of alleged misconduct by Service employees, subject to 
agreements with the Department's Office of Professional Responsibility 
and Office of Inspector General (OIG); to exercise those powers and 
authorities necessary to investigate matters which are material and 
relevant to the administration of the Service, including the power and 
authority to administer oaths and to take and consider evidence; to 
collect information concerning the efficiency and effectiveness of 
Service operations and programs and Service systems to eliminate fraud, 
waste, and abuse in the workplace; and to act as the Service's liaison 
with outside audit/inspection agencies.
    (f) Executive Associate Commissioner for Programs--(1) General. 
Under the direction and supervision of the Deputy Commissioner, the 
Executive Associate Commissioner for Programs is delegated authority for 
policy development, review and integration of the Service's enforcement 
and examinations programs, and for providing general direction to, and 
supervision of, the Associate Commissioners for Enforcement and 
Examinations.
    (2) Associate Commissioner for Enforcement--(i) General. Under the 
direction and supervision of the Executive Associate Commissioner for 
Programs, the Associate Commissioner for Enforcement is delegated 
authority and responsibility for program and policy planning, 
development, coordination, evaluation, and staff direction to the Border 
Patrol, Investigations, Detention and Deportation, Intelligence, and 
Asset Forfeiture programs, and to impose administrative fines, 
penalties, and forfeitures under sections 274, 274A and 274C of the Act. 
The Associate Commissioner for Enforcement is responsible for providing 
general direction and supervision to the:
    (A) Assistant Commissioner for Border Patrol;
    (B) Assistant Commissioner for Investigations;
    (C) Assistant Commissioner for Detention and Deportation;
    (D) Assistant Commissioner for Intelligence; and
    (E) Director of Asset Forfeiture.
    (ii) Director of Asset Forfeiture. Under the direction and 
supervision of the Associate Commissioner for Enforcement, the Director 
of Asset Forfeiture is delegated the authority to direct and coordinate 
the Service program under section 274(b) of the Act which provides for 
the seizure and forfeiture of conveyances used in violation of section 
274(a) of the Act.
    (3) Associate Commissioner for Examinations. (i) General. Under the 
direction and supervision of the Executive Associate Commissioner for 
Programs, the Associate Commissioner for Examinations is delegated 
authority and responsibility for program and policy planning, 
development, coordination, evaluation, and staff direction to the 
Adjudications and Nationality, Inspections, Administrative Appeals, 
Service

[[Page 75]]

Center Operations, and Records programs, and to direct and supervise 
the:
    (A) Assistant Commissioner for Adjudications and Nationality;
    (B) Assistant Commissioner for Inspections;
    (C) Assistant Commissioner for Service Center Operations;
    (D) Assistant Commissioner for Records; and
    (E) Director of Administrative Appeals.
    (ii) Administrative Fines. The Associate Commissioner for 
Examinations is delegated the authority to impose administrative fines 
under provisions of the Act in any case which is transmitted to the 
National Fines Office by a district director.
    (iii) Appellate Authorities. In addition, the Associate Commissioner 
for Examinations exercises appellate jurisdiction over decisions on;
    (A) Breaching of bonds under Sec. 103.6(e);
    (B) Petitions for immigrant visa classification based on employment 
or as a special immigrant or entrepreneur under Secs. 204.5 and 204.6 of 
this chapter except when the denial of the petition is based upon lack 
of a certification by the Secretary of Labor under section 212(a)(5)(A) 
of the Act;
    (C) Indochinese refugee applications for adjustment of status under 
section 103 of the Act of October 28, 1977;
    (D) Revoking approval of certain petitions under Sec. 205.2 of this 
chapter.;
    (E) Applications for permission to reapply for admission to the 
United States after deportation or removal under Sec. 212.2 of this 
chapter;
    (F) Applications for waiver of certain grounds of excludability 
under Sec. 212.7(a) of this chapter;
    (G) Applications for waiver of the two-year foreign residence 
requirement under Sec. 212.7(c) of this chapter;
    (H) Petitions for approval of schools under Sec. 214.3 of this 
chapter;
    (I) Decisions of district directors regarding withdrawal of approval 
of schools for attendance by foreign students under Sec. 214.4 of this 
chapter;
    (J) Petitions for temporary workers or trainees and fiancees or 
fiances of U.S. citizens under Secs. 214.2 and 214.6 of this chapter;
    (K) Applications for issuance of reentry permits under 8 CFR part 
223;
    (L) Applications for refugee travel documents under 8 CFR part 223;
    (M) Applications for benefits of section 13 of the Act of September 
11, 1957, as amended, under Sec. 245.3 of this chapter;
    (N) Adjustment of status of certain resident aliens to nonimmigrants 
under Sec. 247.12(b) of this chapter;
    (O) Applications to preserve residence for naturalization purposes 
under Sec. 316a.21(c) of this chapter;
    (P) Applications for certificates of citizenship under Sec. 341.6 of 
this chapter;
    (Q) Administration cancellation of certificates, documents, and 
records under Sec. 342.8 of this chapter;
    (R) Applications for certificates of naturalization or repatriation 
under Sec. 343.1 of this chapter;
    (S) Applications for new naturalization or citizenship papers under 
Sec. 343a.1(c) of this chapter;
    (T) Applications for special certificates of naturalization under 
Sec. 343b.11(b) of this chapter;
    (U) [Reserved]
    (V) Petitions to classify Amerasians under Public Law 97-359 as the 
children of United States citizens;
    (W) Revoking approval of certain petitions, as provided in 
Secs. 214.2 and 214.6 of this chapter;
    (X) Orphan petitions under 8 CFR 204.3;
    (Y) Applications for advance process of orphan petitions under 8 CFR 
204.3;
    (Z) Invalidation of a temporary labor certification issued by the 
governor of Guam under Sec. 214.2(h)(3)(v) of this chapter;
    (AA) Application for status as temporary or permanent resident under 
Secs. 245a.2 or 245a.3 of this chapter;
    (BB) Application for status as temporary resident under Sec. 210.2 
of this chapter;
    (CC) Termination of status as temporary resident under Sec. 210.4 of 
this chapter;
    (DD) Termination of status as temporary resident under Sec. 245a.2 
of this chapter;
    (EE) Application for waiver of grounds of excludability under Parts 
210, 210a, and 245a of this chapter;

[[Page 76]]

    (FF) Application for status of certain Cuban and Haitian nationals 
under section 202 of the Immigration Reform and Control Act of 1986;
    (GG) A self-petition filed by a spouse or child based on the 
relationship to an abusive citizen or lawful permanent resident of the 
United States for classification under section 201(b)(2)(A)(i) of the 
Act or section 203(a)(2)(A) of the Act;
    (HH) Application for Temporary Protected Status under part 244 of 
this chapter;
    (II) Petitions for special immigrant juveniles under part 204 of 
this chapter;
    (JJ) Applications for adjustment of status under part 245 of this 
title when denied solely because the applicant failed to establish 
eligibility for the bona fide marriage exemption contained in section 
245(e) of the Act;
    (KK) Petition for Armed Forces Special Immigrant under Sec. 204.9 of 
this chapter;
    (LL) Request for participation as a regional center under 
Sec. 204.6(m) of this chapter;
    (MM) Termination of participation of regional center under 
Sec. 204.6(m) of this chapter.
    (iv) Director of the National Fines Office. Under the direction of 
the Assistant Commissioner for Inspections, the Director of the National 
Fines Office has program, administrative, and supervisory responsibility 
for all personnel assigned to the National Fines Office. The Director of 
the National Fines Office is delegated the authority by the Associate 
Commissioner for Examinations to impose fines, penalties, and liquidated 
damages under sections 214, 231, 233, 237, 238, 239, 243, 251, 252, 253, 
254, 255, 256, 257, 258, 271, 272, 273 and 274C of the Act.
    (v) Service Center directors. Under the direction and supervision of 
the Assistant Commissioner for Service Center Operations, the service 
center directors are delegated the authority to control all activities 
conducted within their offices and supervisory responsibility for all 
personnel assigned to their offices. Center directors are delegated the 
authority to grant or deny any application or petition submitted to the 
Service, except for matters delegated to asylum officers pursuant to 
part 208 and Sec. 253.1(f) of this chapter, or exclusively delegated to 
district directors.
    (g) Executive Associate Commissioner for Field Operations--(1) 
General. Under the direction and supervision of the Deputy Commissioner, 
the Executive Associate Commissioner for Field Operations is delegated 
authority and responsibility for implementing policies of the Service's 
field operations, and for providing general direction to and supervision 
of the regional directors and the Director of International Affairs.
    (2) Regional directors--(i) General. Under the direction and 
supervision of the Executive Associate Commissioner for Field 
Operations, the regional directors are delegated authority and 
responsibility for the Service's field operations within their 
respective geographical areas, and for providing direction to and 
supervision of the district directors and chief patrol agents within 
their respective regions.
    (ii) District directors. (A) District directors of offices located 
within the United States are under the direction and supervision of the 
regional director. District directors of foreign offices are under the 
direction and supervision of the Director of International Affairs. 
District directors are delegated authority to control all activities 
conducted within their offices and to supervise all personnel, except 
Service attorneys, assigned to their offices.
    (B) District directors are delegated the authority to grant or deny 
any application or petition submitted to the Service, except for matters 
delegated to asylum officers pursuant to part 208 and Sec. 253.1(f) of 
this chapter, or exclusively delegated to service center directors, to 
initiate any authorized proceeding in their respective districts, and to 
exercise the authorities under Secs. 242.1(a), 242.2(a) and 242.7 of 
this chapter without regard to geographical limitations. District 
directors are delegated authority to conduct the proceeding provided for 
in Sec. 252.2 of this chapter.
    (C) Applications filed for special agricultural worker or 
legalization status pursuant to sections 210 and 245a of the Act, 
respectively, may be approved by

[[Page 77]]

the district director having jurisdiction of the office where a second 
interview is required by the service center, if the alien in the second 
interview can establish eligibility for approval. District directors may 
deny applications for special agricultural worker or legalization status 
at offices under their jurisdiction.
    (D) Officers in charge--(1) General. Under the direction and 
supervision of the district director, officers in charge are delegated 
authority to control all activities conducted within their offices and 
to supervise all personnel assigned to their office. Officers in charge 
direct inspection activities at ports-of-entry and the authorization of 
extensions of nonimmigrant admission periods and of voluntary departure 
prior to the commencement of deportation hearings. The Officers in 
charge in the places enumerated in Sec. 212.1(i) of this chapter are 
delegated the authority to act on requests for waiver of visa and 
passport requirements under the provisions of section 212(d)(4)(A) of 
the Act.
    (2) The offices located in Oranjestaad, Aruba; Calgary, Alberta, 
Canada; Edmonton, Alberta, Canada; Freeport, Bahamas; Hamilton, Bermuda; 
Nassau, Bahamas; Shannon, Ireland; Toronto, Ontario, Canada; Vancouver, 
British Columbia, Canada; Victoria, British Columbia, Canada; Winnipeg, 
Manitoba, Canada; Dublin, Ireland; and such other preinspection or 
preclearance sites as the Service may establish in the future, are 
delegated authority to perform the function of preinspection of 
passengers and crews on aircraft and surface vessels, as appropriate, 
which are departing directly to the United States mainland.
    (3) The Officer in charge of the office in Montreal, Canada, is 
authorized to perform preinspection of passengers and crew of aircraft 
departing directly to the United States mainland and to authorize or 
deny waivers of grounds of excludability under section 212 (h) and (i) 
of the Act; also, to approve or deny applications for permission to 
reapply for admission to the United States after deportation or removal, 
when filed in conjunction with an application for waiver of grounds of 
excludability under section 212 (h) or (i) of the Act.
    (iii) Chief patrol agents. Under the direction and supervision of a 
regional director, chief patrol agents are delegated authority to direct 
the Border Patrol activities of the Service within their respective 
sectors, including exercising the authority in section 242(b) of the Act 
to permit aliens to depart voluntarily from the United States prior to 
commencement of a hearing.
    (3) Director of International Affairs--(i) General. Under the 
direction and supervision of the Executive Associate Commissioner for 
Field Operations, the Director of International Affairs is delegated 
authority to direct and supervise the foreign office district directors, 
to maintain the integrity and efficiency of the Service's international 
operations, and to administer programs related to refugee, asylum, and 
parole benefits. The Director of International Affairs is also 
responsible for the direction and supervision of overseas preinspection 
at sites, if any, for which the Commissioner has specifically delegated 
inspection authority to the Office of International Affairs. The 
Director serves as the principal liaison with foreign governments and 
other agencies of the United States in overseas locations.
    (ii) Asylum officers. Asylum officers constitute a professional 
corps of officers who serve under the supervision and direction of the 
Director of International Affairs and shall be specially trained as 
required in Sec. 208.1(b) of this chapter. Asylum officers are delegated 
the authority to hear and adjudicate credible fear of persecution 
determinations under section 235(b)(1)(B) of the Act, applications for 
asylum and for withholding of removal, as provided under 8 CFR part 208, 
and applications for suspension of deportation and special rule 
cancellation of removal, as provided under 8 CFR part 240, subpart H.
    (iii) Officer in Charge. The officers in charge of the offices 
located at Athens, Greece; Mexico City, Mexico; Ciudad Juarez, Mexico; 
Rome, Italy; Frankfurt, Germany; Moscow, Russia; Vienna, Austria; 
Tegucigalpa, Honduras; Bangkok, Thailand; Hong Kong, BCC; London, 
England; Manila, Philippines;

[[Page 78]]

Monterrey, Mexico; Nairobi, Kenya; New Delhi, India; Seoul, Korea; 
Singapore, Republic of Singapore; Tijuana, Mexico; Port-au-Prince, 
Haiti; Karachi, Pakistan; and such other overseas suboffices as the 
Service may establish in the future, are delegated authority to perform 
the following functions:
    (A) Authorize waivers of grounds of excludability under sections 212 
(h) and (i) of the Act;
    (B) Adjudicate applications for permission to reapply for admission 
to the United States after deportation or removal, if filed by an 
applicant for an immigrant visa in conjunction with an application for 
waiver of grounds of excludability under section 212 (h) or (i) of the 
Act, or if filed by an applicant for a nonimmigrant visa under section 
101(a)(15)(K) of the Act;
    (C) Approve or deny visa petitions for any relative;
    (D) Approve recommendations made by consular officers for waiver of 
grounds of excludability in behalf of nonimmigrant visa applicants under 
section 212(d)(3) of the Act and concur in proposed waivers by consular 
officers of the requirement of visa or passport by a nonimmigrant on the 
basis of unforeseen emergency in cases in which the Department of State 
had delegated recommending power to the consular officers;
    (E) Exercise discretion to grant or deny applications for the 
benefits set forth in sections 211 and 212(c) of the Act;
    (F) Process Form I-90 applications and deliver duplicate Forms I-
551;
    (G) Process Form N-565 applications and deliver certificates issued 
thereunder; and
    (H) Grant or deny applications of aliens seeking classification as 
refugees under section 207 of the Act.
    (h) Executive Associate Commissioner for Policy and Planning. Under 
the direction and supervision of the Deputy Commissioner, the Executive 
Associate Commissioner for Policy and Planning is delegated the 
authority to oversee the development and coordination of long-range 
planning activities, and policy formulation, codification, and 
dissemination within the Agency. The Executive Associate Commissioner is 
also responsible for informing and advising the Commissioner and the 
Deputy Commissioner on other issues which cross program lines or bear 
inter-agency implications. The Executive Associate Commissioner also 
serves as liaison with, and representative of, the Service to other 
organizations engaged in policy development in matters affecting the 
mission of the Service, research and statistics, and the exchange of 
statistical, scientific, technological data and research.
    (i) Executive Associate Commissioner for Management--(1) General. 
Under the direction and supervision of the Deputy Commissioner, the 
Executive Associate Commissioner for Management is delegated authority 
to plan, direct, and manage all aspects of the administration of the 
Service. The delegation includes the authority to develop and promulgate 
administrative policies and programs for all financial, human resource, 
administrative, and information resource matters of the Service. The 
Executive Associate Commissioner for Management is delegated the 
authority to settle tort claims of $25,000 or less than 28 U.S.C. 2672, 
and to compromise, suspend, or terminate collection of claims of the 
United States not exceeding $100,000 (exclusive of interest) under 31 
U.S.C. 3711. The Executive Associate Commissioner for Management 
supervises the Directors of Security, Equal Employment Opportunity, and 
Files and Forms Management, the Associate Commissioner for Human 
Resources and Administration, the Associate Commissioner for Finance, 
the Associate Commissioner for Information Resources Management, and the 
Directors, Administrative Centers.
    (2) Director of Security. Under the direction and supervision of the 
Executive Associate Commissioner for Management, the Director of the 
Office of Security is delegated authority to develop policy, plan, 
direct, and coordinate the Service's security program. The Security 
program includes the application of safeguards in program areas of 
personnel security, physical security, information and document 
security, automated data processing and telecommunications security, and 
contingency planning related to threat, loss, or other serious emergency 
in any of these areas.

[[Page 79]]

    (3) Director of Equal Employment Opportunity. Under the direction 
and supervision of the Executive Associate Commissioner for Management, 
the Director of Equal Employment Opportunity is delegated authority to 
develop policies and to implement and direct the Service's programs 
relating to equal employment opportunity for all employees and 
applicants. The Director is responsible for the Service's efforts to 
comply with provisions of the Civil Rights Act of 1964 and Department of 
Justice programs and directives affecting discrimination in employment. 
The Director supervises, coordinates, directs, and evaluates the 
affirmative employment and discrimination complaint program of the 
Service.
    (4) Director of Files and Forms Management. Under the direction and 
supervision of the Executive Associate Commissioner for Management, the 
Director of Files and Forms Management is delegated authority to develop 
policies, plan, coordinate, evaluate, counsel, and direct the Service's 
National Records Center, Forms Center, SAVE Program, centralized FOIA/
PA, records policy, and correspondence files programs.
    (5) Associate Commissioner for Human Resources and Administration. 
Under the direction and supervision of the Executive Associate 
Commissioner for Management, the Associate Commissioner for Human 
Resources and Administration is delegated authority to develop policies, 
plan, develop, coordinate, evaluate, counsel, and direct the personnel, 
career development, contracting, engineering, facility, and 
administrative programs of the Service. The Associate Commissioner for 
Human Resources and Administration provides direction to, and 
supervision of, the:
    (i) Assistant Commissioner for Human Resources and Development; and
    (ii) Assistant Commissioner for Administration.
    (6) Associate Commissioner for Finance. Under the direction and 
supervision of the Executive Associate Commissioner for Management, the 
Associate Commissioner for Finance is delegated authority to develop 
policies, plan, develop, coordinate, evaluate, counsel, and direct the 
Service's resource requirements and utilization. The Associate 
Commissioner for Finance is responsible for all aspects of financial 
management, including budgeting, reporting, internal controls, and 
analysis. The Associate Commissioner for Finance is responsible for the 
presentation of internal reports to management, the preparation of 
external reports and certifications required by statute or regulation, 
and the representation of the Service before the Congress, and agencies 
of the Executive Branch on matters related to financial activities. The 
Associate Commissioner for Finance is also delegated authority to settle 
claims of $10,000 or less under 28 U.S.C. 2672 and to compromise, 
suspend, or terminate collection of claims of the United States not 
exceeding $50,000 (exclusive of interest) under 31 U.S.C. 3711. The 
Associate Commissioner for Finance provides direction to, and 
supervision of, the:
    (i) Associate Commissioner for Budget; and (ii) Assistant 
Commissioner for Financial Management.
    (7) Associate Commissioner for Information Resources Management. 
Under the direction and supervision of the Executive Associate 
Commissioner for Management, the Associate Commissioner for Information 
Resources Management is delegated authority to develop policies, plan, 
develop, coordinate, evaluate, counsel, manage and direct the Service's 
Automated Data Processing, Telecommunication, Radio, and Electronic 
programs. The Associate Commissioner for Information Resources 
Management provides direction to, and supervision of, the:
    (i) Assistant Commissioner for Data Systems; and
    (ii) Assistant Commissioner for Systems Integration.
    (8) Directors of Administrative Centers. Under the direction and 
supervision of the Executive Associate Commissioner for Management, the 
directors are delegated authority over the human resources, 
administrative, information resource, security, and financial activities 
of the Service within their respective area of responsibility. They are 
also delegated the authority to: (i) Settle tort claims of $10,000 or 
less under 28 U.S.C. 2672; and

[[Page 80]]

    (ii) Compromise, suspend, or terminate collection of claims of the 
United States not exceeding $50,000 (exclusive of interest) under 31 
U.S.C. 3711.
    (j) Immigration Officer. Any immigration officer, immigration 
inspector, immigration examiner, adjudications officers, Border Patrol 
agent, aircraft pilot, airplane pilot, helicopter pilot, deportation 
officer, detention enforcement officer, detention guard, investigator, 
special agent, investigative assistant, intelligence officer, 
intelligence agent, general attorney, applications adjudicator, contact 
representative, chief legalization officer, supervisory legalization 
officer, legalization adjudicator, legalization officer and legalization 
assistant, forensic document analyst, fingerprint specialist, 
immigration information officer, immigration agent (investigations), 
asylum officer, or senior or supervisory officer of such employees is 
hereby designated as an immigration officer authorized to exercise the 
powers and duties of such officer as specified by the Act and this 
chapter.

[59 FR 60070, Nov. 22, 1994, as amended at 61 FR 13072, Mar. 26, 1996; 
61 FR 28010, June 4, 1996; 62 FR 9074, Feb. 28, 1997; 62 FR 10336, Mar. 
6, 1997; 63 FR 12984, Mar. 17, 1998; 63 FR 63595, Nov. 16, 1998; 63 FR 
67724, Dec. 8, 1998; 64 FR 27875, May 21, 1999]

    Effective Date Note: At 65 FR 43531, July 13, 2000, in Sec. 103.1, 
paragraphs (f)(3)(iii)(J) and (W) were revised, effective Nov. 13, 2000. 
At 65 FR 67617, Nov. 13, 2000, the effective date of the revisions was 
delayed until Oct. 1, 2001. For the convenience of the user, the revised 
text is set forth as follows:

Sec. 103.1  Delegation of authority.

                                * * * * *

    (f) * * *
    (3) * * *
    (iii) * * *
    (J) Petitions for temporary workers or trainees and fiancees or 
fiances of U.S. citizens under Sec. 214.2 and Sec. 214.6 of this 
chapter, except petitions for temporary agricultural workers (H-2As), 
which are delegated to the Secretary of Labor.

                                * * * * *

    (W) Revoking approval of certain petitions, as provided in 
Sec. 214.2 and Sec. 214.6 of this chapter, except petitions for 
temporary agricultural workers (H-2As), which are delegated to the 
Secretary of Labor.

                                * * * * *



Sec. 103.2  Applications, petitions, and other documents.

    (a) Filing--(1) General. Every application, petition, appeal, 
motion, request, or other document submitted on the form prescribed by 
this chapter shall be executed and filed in accordance with the 
instructions on the form, such instructions (including where an 
application or petition should be filed) being hereby incorporated into 
the particular section of the regulations in this chapter requiring its 
submission. The form must be filed with the appropriate filing fee 
required by Sec. 103.7. Except as exempted by paragraph (e) of this 
section, forms which require an applicant, petitioner, sponsor, 
beneficiary, or other individual to complete Form FD-258, Applicant 
Card, must also be filed with the service fee for fingerprinting, as 
required by Sec. 103.7(b)(1), for each individual who requires 
fingerprinting. Filing fees and fingerprinting service fees are non-
refundable and, except as otherwise provided in this chapter, must be 
paid when the application is filed.
    (2) Signature. An applicant or petitioner must sign his or her 
application or petition. However, a parent or legal guardian may sign 
for a person who is less than 14 years old. A legal guardian may sign 
for a mentally incompetent person. By signing the application or 
petition, the applicant or petitioner, or parent or guardian certifies 
under penalty of perjury that the application or petition, and all 
evidence submitted with it, either at the time of filing or thereafter, 
is true and correct.
    (3) Representation. An applicant or petitioner may be represented by 
an attorney in the United States, as defined in Sec. 1.1(f) of this 
chapter, by an attorney outside the United States as defined in 
Sec. 292.1(a)(6) of this chapter, or by an accredited representative as 
defined in Sec. 292.1(a)(4) of this chapter. A beneficiary of a petition 
is not a recognized party in such a proceeding. An application or 
petition presented in

[[Page 81]]

person by someone who is not the applicant or petitioner, or his or her 
representative as defined in this paragraph, shall be treated as if 
received through the mail, and the person advised that the applicant or 
petitioner, and his or her representative, will be notified of the 
decision. Where a notice of representation is submitted that is not 
properly signed, the application or petition will be processed as if the 
notice had not been submitted.
    (4) Oath. Any required oath may be administered by an immigration 
officer or person generally authorized to administer oaths, including 
persons so authorized by Article 136 of the Uniform Code of Military 
Justice.
    (5) Translation of name. If a document has been executed in an 
anglicized version of a name, the native form of the name may also be 
required.
    (6) Where to file. Except as otherwise provided in this chapter, an 
application or petition should be filed with the INS office or Service 
Center with jurisdiction over the application or petition and the place 
of residence of the applicant or petitioner as indicated in the 
instructions with the respective form.
    (7) Receipt date--(i) General. An application or petition received 
in a Service office shall be stamped to show the time and date of actual 
receipt and, unless otherwise specified in part 204 or part 245 of this 
chapter, shall be regarded as properly filed when so stamped, if it is 
properly signed and executed and the required filing fee is attached or 
a waiver of the filing fee is granted. An application or petition which 
is not properly signed or is submitted with the wrong filing fee shall 
be rejected as improperly filed. Rejected applications and petitions, 
and ones in which the check or other financial instrument used to pay 
the filing fee is subsequently returned as non-payable will not retain a 
filing date. An application or petition taken to a local Service office 
for the completion of biometric information prior to filing at a Service 
Center shall be considered received when physically received at a 
Service Center.
    (ii) Non-payment. If a check or other financial instrument used to 
pay a filing fee is subsequently returned as not payable, the remitter 
shall be notified and requested to pay the filing fee and associated 
service charge within 14 calendar days, without extension. If the 
application or petition is pending and these charges are not paid within 
14 days, the application or petition shall be rejected as improperly 
filed. If the application or petition was already approved, and these 
charges are not paid, the approval shall be automatically revoked 
because it was improperly field. If the application or petition was 
already denied, revoked, or abandoned, that decision will not be 
affected by the non-payment of the filing or fingerprinting fee. New 
fees will be required with any new application or petition. Any fee and 
service charges collected as the result of collection activities or 
legal action on the prior application or petition shall be used to cover 
the cost of the previous rejection, revocation, or other action.
    (b) Evidence and processing--(1) General. An applicant or petitioner 
must establish eligibility for a requested immigration benefit. An 
application or petition form must be completed as applicable and filed 
with any initial evidence required by regulation or by the instructions 
on the form. Any evidence submitted is considered part of the relating 
application or petition.
    (2) Submitting secondary evidence and affidavits--(i) General. The 
non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. If a required document, such as a birth or 
marriage certificate, does not exist or cannot be obtained, an applicant 
or petitioner must demonstrate this and submit secondary evidence, such 
as church or school records, pertinent to the facts at issue. If 
secondary evidence also does not exist or cannot be obtained, the 
applicant or petitioner must demonstrate the unavailability of both the 
required document and relevant secondary evidence, and submit two or 
more affidavits, sworn to or affirmed by persons who are not parties to 
the petition who have direct personal knowledge of the event and 
circumstances. Secondary evidence must overcome the unavailability of 
primary evidence, and affidavits must overcome the unavailability of 
both primary and secondary evidence.

[[Page 82]]

    (ii) Demonstrating that a record is not available. Where a record 
does not exist, the applicant or petitioner must submit an original 
written statement on government letterhead establishing this from the 
relevant government or other authority. The statement must indicate the 
reason the record does not exist, and indicate whether similar records 
for the time and place are available. However, a certification from an 
appropriate foreign government that a document does not exist is not 
required where the Department of State's Foreign Affairs Manual 
indicates this type of document generally does not exist. An applicant 
or petitioner who has not been able to acquire the necessary document or 
statement from the relevant foreign authority may submit evidence that 
repeated good faith attempts were made to obtain the required document 
or statement. However, where the Service finds that such documents or 
statements are generally available, it may require that the applicant or 
petitioner submit the required document or statement.
    (iii) Evidence provided with a self-petition filed by a spouse or 
child of abusive citizen or resident. The Service will consider any 
credible evidence relevant to a self-petition filed by a qualified 
spouse or child of an abusive citizen or lawful permanent resident under 
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not 
required to, demonstrate that preferred primary or secondary evidence is 
unavailable. The determination of what evidence is credible and the 
weight to be given that evidence shall be within the sole discretion of 
the Service.
    (3) Translations. Any document containing foreign language submitted 
to the Service shall be accompanied by a full English language 
translation which the translator has certified as complete and accurate, 
and by the translator's certification that he or she is competent to 
translate from the foreign language into English.
    (4) Submitting copies of documents. Application and petition forms 
must be submitted in the original. Forms and documents issued to support 
an application or petition, such as labor certifications, Form IAP-66, 
medical examinations, affidavits, formal consultations, and other 
statements, must be submitted in the original unless previously filed 
with the Service. When submission is required, expired Service documents 
must be submitted in the original, as must Service documents required to 
be annotated to indicate the decision. In all other instances, unless 
the relevant regulations or instructions specifically require that an 
original document be filed with an application or petition, an ordinary 
legible photocopy may be submitted. Original documents submitted when 
not required will remain a part of the record, even if the submission 
was not required.
    (5) Request for an original document. Where a copy of a document is 
submitted with an application or petition, the Service may at any time 
require that the original document be submitted for review. If the 
requested original, other than one issued by the Service, is not 
submitted within 12 weeks, the petition or application shall be denied 
or revoked. There shall be no appeal from a denial or revocation based 
on the failure to submit an original document upon the request of the 
Service to substantiate a previously submitted copy. Further, an 
applicant or petitioner may not move to reopen or reconsider the 
proceeding based on the subsequent availability of the document. An 
original document submitted pursuant to a Service request shall be 
returned to the petitioner or applicant when no longer required.
    (6) Withdrawal. An applicant or petitioner may withdraw an 
application or petition at any time until a decision is issued by the 
Service or, in the case of an approved petition, until the person is 
admitted or granted adjustment or change of status, based on the 
petition. However, a withdrawal may not be retracted.
    (7) Testimony. The Service may require the taking of testimony, and 
may direct any necessary investigation. When a statement is taken from 
and signed by a person, he or she shall, upon request, be given a copy 
without fee. Any allegations made subsequent to filing an application or 
petition which are in addition to, or in substitution for, those 
originally made, shall

[[Page 83]]

be filed in the same manner as the original application, petition, or 
document, and acknowledged under oath thereon.
    (8) Request for evidence. If there is evidence of ineligibility in 
the record, an application or petition shall be denied on that basis 
notwithstanding any lack of required initial evidence. If the 
application or petition was pre-screened by the Service prior to filing 
and was filed even though the applicant or petitioner was informed that 
the required initial evidence was missing, the application or petition 
shall be denied for failure to contain the necessary evidence. Except as 
otherwise provided in this chapter, in other instances where there is no 
evidence of ineligibility, and initial evidence or eligibility 
information is missing or the Service finds that the evidence submitted 
either does not fully establish eligibility for the requested benefit or 
raises underlying questions regarding eligibility, the Service shall 
request the missing initial evidence, and may request additional 
evidence, including blood tests. In such cases, the applicant or 
petitioner shall be given 12 weeks to respond to a request for evidence. 
Additional time may not be granted. Within this period the applicant or 
petitioner may:
    (i) Submit all the requested initial or additional evidence;
    (ii) Submit some or none of the requested additional evidence and 
ask for a decision based on the record; or
    (iii) Withdraw the application or petition.
    (9) Request for appearance. An applicant, a petitioner, a sponsor, a 
beneficiary, or other individual residing in the United States at the 
time of filing an application or petition may be required to appear for 
fingerprinting or for an interview. A petitioner shall also be notified 
when a fingerprinting notice or an interview notice is mailed or issued 
to a beneficiary, sponsor, or other individual. The applicant, 
petitioner, sponsor, beneficiary, or other individual may appear as 
requested by the Service, or prior to the dates and times for 
fingerprinting or of the date and time of interview:
    (i) The individual to be fingerprinted or interviewed may, for good 
cause, request that the fingerprinting or interview be rescheduled; or
    (ii) The applicant or petitioner may withdraw the application or 
petition.
    (10) Effect of a request for initial or additional evidence for 
fingerprinting or interview rescheduling--(i) Effect on processing. The 
priority date of a properly filed petition shall not be affected by a 
request for missing initial evidence or request for other evidence. If 
an application or petition is missing required initial evidence, or an 
applicant, petitioner, sponsor, beneficiary, or other individual who 
requires fingerprinting requests that the fingerprinting appointment or 
interview be rescheduled, any time period imposed on Service processing 
will start over from the date of receipt of the required initial 
evidence or request for fingerprint or interview rescheduling. If the 
Service requests that the applicant or petitioner submit additional 
evidence or respond to other than a request for initial evidence, any 
time limitation imposed on the Service for processing will be suspended 
as of the date of request. It will resume at the same point where it 
stopped when the Service receives the requested evidence or response, or 
a request for a decision based on the evidence.
    (ii) Effect on interim benefits. Interim benefits will not be 
granted based on an application or petition held in suspense for the 
submission of requested initial evidence, except that the applicant or 
beneficiary will normally be allowed to remain while an application or 
petition to extend or obtain status while in the United States is 
pending. The Service may choose to pursue other actions to seek removal 
of a person notwithstanding the pending application. Employment 
authorization previously accorded based on the same status and 
employment as that requested in the current application or petition may 
continue uninterrupted as provided in 8 CFR 274a.12(b)(20) during the 
suspense period.
    (11) Submission of evidence in response to a Service request. All 
evidence submitted in response to a Service request must be submitted at 
one time. The submission of only some of the requested evidence will be 
considered a

[[Page 84]]

request for a decision based on the record.
    (12) Effect where evidence submitted in response to a request does 
not establish eligibility at the time of filing. An application or 
petition shall be denied where evidence submitted in response to a 
request for initial evidence does not establish filing eligibility at 
the time the application or petition was filed. An application or 
petition shall be denied where any application or petition upon which it 
was based was filed subsequently.
    (13) Effect of failure to respond to a request for evidence or 
appearance. If all requested initial evidence and requested additional 
evidence is not submitted by the required date, the application or 
petition shall be considered abandoned and, accordingly, shall be 
denied. Except as provided in Sec. 335.6 of this chapter, if an 
individual requested to appear for fingerprinting or for an interview 
does not appear, the Service does not receive his or her request for 
rescheduling by the date of the fingerprinting appointment or interview, 
or the applicant or petitioner has not withdrawn the application or 
petition, the application or petition shall be considered abandoned and, 
accordingly, shall be denied.
    (14) Effect of request for decision. Where an applicant or 
petitioner does not submit all requested additional evidence and 
requests a decision based on the evidence already submitted, a decision 
shall be issued based on the record. Failure to submit requested 
evidence which precludes a material line of inquiry shall be grounds for 
denying the application or petition. Failure to appear for required 
fingerprinting or for a required interview, or to give required 
testimony, shall result in the denial of the related application or 
petition.
    (15) Effect of withdrawal or denial due to abandonment. The 
Service's acknowledgement of a withdrawal may not be appealed. A denial 
due to abandonment may not be appealed, but an applicant or petitioner 
may file a motion to reopen under Sec. 103.5. Withdrawal or denial due 
to abandonment does not preclude the filing of a new application or 
petition with a new fee. However, the priority or processing date of a 
withdrawn or abandoned application or petition may not be applied to a 
later application petition. Withdrawal or denial due to abandonment 
shall not itself affect the new proceeding; but the facts and 
circumstances surrounding the prior application or petition shall 
otherwise be material to the new application or petition.
    (16) Inspection of evidence. An applicant or petitioner shall be 
permitted to inspect the record of proceeding which constitutes the 
basis for the decision, except as provided in the following paragraphs.
    (i) Derogatory information unknown to petitioner or applicant. If 
the decision will be adverse to the applicant or petitioner and is based 
on derogatory information considered by the Service and of which the 
applicant or petitioner is unaware, he/she shall be advised of this fact 
and offered an opportunity to rebut the information and present 
information in his/her own behalf before the decision is rendered, 
except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this 
section. Any explanation, rebuttal, or information presented by or in 
behalf of the applicant or petitioner shall be included in the record of 
proceeding.
    (ii) Determination of statutory eligibility. A determination of 
statutory eligibility shall be based only on information contained in 
the record of proceeding which is disclosed to the applicant or 
petitioner, except as provided in paragraph (b)(16)(iv) of this section.
    (iii) Discretionary determination. Where an application may be 
granted or denied in the exercise of discretion, the decision to 
exercise discretion favorably or unfavorably may be based in whole or in 
part on classified information not contained in the record and not made 
available to the applicant, provided the regional commissioner has 
determined that such information is relevant and is classified under 
Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring 
protection from unauthorized disclosure in the interest of national 
security.
    (iv) Classified information. An applicant or petitioner shall not be 
provided any information contained in the record or outside the record 
which is classified under Executive Order No.

[[Page 85]]

12356 (47 FR 14874; April 6, 1982) as requiring protection from 
unauthorized disclosure in the interest of national security, unless the 
classifying authority has agreed in writing to such disclosure. Whenever 
he/she believes he/she can do so consistently with safeguarding both the 
information and its source, the regional commissioner should direct that 
the applicant or petitioner be given notice of the general nature of the 
information and an opportunity to offer opposing evidence. The regional 
commissioner's authorization to use such classified information shall be 
made a part of the record. A decision based in whole or in part on such 
classified information shall state that the information is material to 
the decision.
    (17) Verifying claimed citizenship or permanent resident status. The 
status of an applicant or petitioner who claims that he or she is a 
permanent resident of the United States will be verified from official 
records of the Service. The term official records, as used herein, 
includes Service files, arrival manifests, arrival records, Service 
index cards, Immigrant Identification Cards, Certificates of Registry, 
Declarations of Intention issued after July 1, 1929, Permanent Resident 
Cards Forms AR-3, AR-103, I-151 or I-551), passports, and reentry 
permits. To constitute an official record a Service index card must bear 
a designated immigrant visa symbol and must have been prepared by an 
authorized official of the Service in the course of processing immigrant 
admissions or adjustments to permanent resident status. Other cards, 
certificates, declarations, permits, and passports must have been issued 
or endorsed by the Service to show admission for permanent residence. 
Except as otherwise provided in 8 CFR part 101, and in the absence of 
countervailing evidence, such official records shall be regarded as 
establishing lawful admission for permanent residence. If a self-
petitioner filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present 
primary or secondary evidence of the abuser's status, the Service will 
attempt to electronically verify the abuser's citizenship or immigration 
status from information contained in Service computerized records. Other 
Service records may also be reviewed at the discretion of the 
adjudicating officer. If the Service is unable to identify a record as 
relating to the abuser, or the record does not establish the abuser's 
immigration or citizenship status, the self-petition will be adjudicated 
based on the information submitted by the self-petitioner.
    (18) Withholding adjudication. A district director may authorize 
withholding adjudication of a visa petition or other application if the 
district director determines that an investigation has been undertaken 
involving a matter relating to eligibility or the exercise of 
discretion, where applicable, in connection with the application or 
petition, and that the disclosure of information to the applicant or 
petitioner in connection with the adjudication of the application or 
petition would prejudice the ongoing investigation. If an investigation 
has been undertaken and has not been completed within one year of its 
inception, the district director shall review the matter and determine 
whether adjudication of the petition or application should be held in 
abeyance for six months or until the investigation is completed, 
whichever comes sooner. If, after six months of the district director's 
determination, the investigation has not been completed, the matter 
shall be reviewed again by the district director and, if he/she 
concludes that more time is needed to complete the investigation, 
adjudication may be held in abeyance for up to another six months. If 
the investigation is not completed at the end of that time, the matter 
shall be referred to the regional commissioner, who may authorize that 
adjudication be held in abeyance for another six months. Thereafter, if 
the Associate Commissioner, Examinations, with the concurrence of the 
Associate Commissioner, Enforcement, determines it is necessary to 
continue to withhold adjudication pending completion of the 
investigation, he/she shall review that determination every six months.
    (19) Notification. An applicant or petitioner shall be sent a 
written decision

[[Page 86]]

on his or her application, petition, motion, or appeal. Where the 
applicant or petitioner has authorized representation pursuant to 
Sec. 103.2(a), that representative shall also be notified. Documents 
produced after an approval notice is sent, such as an alien registration 
card, shall be mailed directly to the applicant or petitioner.
    (c) Filing of applications for adjustment of status under sections 
210 and 245A of the Act, as amended. (1) The filing of an application 
for temporary resident status under section 245A(a) of the Act must 
conform to the provisions of Sec. 245a.2 of this chapter. The filing of 
an application for permanent resident status under section 245A(b)(1) of 
the Act must conform to the provisions of Sec. 245a.3 of this chapter. 
The filing of an application for adjustment of status to that of a 
temporary resident under section 210(a) of the Act must conform to the 
provisions of Sec. 210.2 of this chapter.
    (2) An application for adjustment to temporary or permanent resident 
status pursuant to section 245A (a) or (b)(1) or section 210(a) of the 
Act may be accepted on behalf of the Attorney General by designated 
state, local and community organizations as well as designated voluntary 
organizations and persons. Each such application shall contain a 
certification signed by both the alien and the preparing member of the 
designated organization or entity, that the applicant has approved 
transmittal of the application to the Service for adjudication.
    (3) An application accepted by any of the designated entities shall 
be stamped with an endorsement as to the date of preparation and 
authorization for transmittal, and may be brought to the legalization 
office with the applicant as an application ready for adjudication. 
However, such application shall not be considered as complete until 
accepted for adjudication by and until the appropriate fee has been paid 
to the Immigration and Naturalization Service.
    (d) Filing of petitions for adjustment of status under section 210A 
of the Act, as amended. (1) The filing of a petition for temporary 
resident status as a Replenishment Agricultural Worker, and waivers 
incident to such filing, under section 210A of the Act must conform to 
the provisions of part 210a of this title.
    (2) A petition for adjustment to temporary resident status pursuant 
to section 210A of the Act shall be accepted only by the Service, or by 
personnel employed under contract to the Service, who are under Service 
supervision, and are specifically designated responsibility for the 
initial processing of petitions and waivers. Only Service officers may 
make decisions with respect to the granting or denial of petitions and 
waivers filed under section 210A of the Act and part 210a of this title.
    (3) Petitions and waivers filed with the Service pursuant to part 
210a of this title shall not be considered as complete until accepted 
for adjudication by and until the appropriate fee has been paid to the 
Immigration and Naturalization Service.
    (e) Fingerprinting--(1) General. Service regulations in this 
chapter, including the instructions to benefit applications and 
petitions, require certain applicants, petitioners, beneficiaries, 
sponsors, and other individuals to be fingerprinted on Form FD-258, 
Applicant Card, for the purpose of conducting criminal background 
checks. On and after December 3, 1997, the Service will accept Form FD-
258, Applicant Card, only if prepared by a Service office, a registered 
State or local law enforcement agency designated by a cooperative 
agreement with the Service to provide fingerprinting services (DLEA), a 
United States consular office at United States embassies and consulates, 
or a United States military installation abroad.
    (2) Fingerprinting individuals residing in the United States. 
Beginning on December 3, 1997, for naturalization applications, and on 
March 29, 1998, for all other applications and petitions, applications 
and petitions for immigration benefits shall be filed as prescribed in 
this chapter, without completed Form FD-258, Applicant Card. After the 
filing of an application or petion, the Service will issue a notice to 
all individuals who require fingerprinting and who are residing in the 
United States, as defined in section 101(a)(38) of the Act, and request 
their appearance for fingerprinting at a Service office or

[[Page 87]]

other location designated by the Service, to complete Form FD-258, 
Applicant Card, as prescribed in paragraph (b)(9) of this section.
    (3) Fingerprinting individuals residing abroad. Individuals who 
require fingerprinting and whose place of residence is outside of the 
United States, must submit a properly completed Form FD-258, Applicant 
Card, at the time of filing the application or petition for immigration 
benefits. In the case of individuals who reside abroad, a properly 
completed Form FD-258, Applicant Card, is one prepared by the Service, a 
United States consular office at a United States embassy or consulate or 
a United States military installation abroad. If an individual who 
requires fingerprinting and is residing abroad fails to submit a 
properly completed Form FD-258, Applicant Card, at the time of filing an 
application or petition, the Service will issue a notice to the 
individual requesting submission of a properly completed Form FD-258, 
Applicant Card. The applicant or petitioner will also be notified of the 
request for submission of a properly completed Form FD-258, Applicant 
Card. Failure to submit a properly completed Form FD-258, Applicant 
Card, in response to such a request within the time allotted in the 
notice will result in denial of the application or petition for failure 
to submit a properly completed Form FD-258, Applicant Card. There is no 
appeal from denial of an application or petition for failure to submit a 
properly completed Form FD-258, Applicant Card. A motion to re-open an 
application or petition denied for failure to submit a properly 
completed Form FD-258, Applicant Card, will be granted only on proof 
that:
    (i) A properly completed Form FD-258, Applicant Card, was submitted 
at the time of filing the application or petition;
    (ii) A properly completed Form FD-258, Applicant Card, was submitted 
in response to the notice within the time allotted in the notice; or
    (iii) The notice was sent to an address other than the address on 
the application or petition, or the notice of representation, or that 
the applicant or petitioner notified the Service, in writing, of a 
change of address or change of representation subsequent to filing and 
before the notice was sent and the Service's notice was not sent to the 
new address.
    (4) Submission of service fee for fingerprinting--(i) General. The 
Service will charge a fee, as prescribed in Sec. 103.7(b)(1), for 
fingerprinting at a Service office or a registered State or local law 
enforcement agency designated by a cooperative agreement with the 
Service to provide fingerprinting services. Applications and petitions 
for immigration benefits shall be submitted with the service fee for 
fingerprinting for all individuals who require fingerprinting and who 
reside in the United States at the time of filing the application or 
petition.
    (ii) Exemptions--(A) Individual residing abroad. Individuals who 
require fingerprinting and who reside outside of the United States at 
the time of filing an application or petition for immigration benefits 
are exempt from the requirement to submit the service fee for 
fingerprinting with the application or petition for immigration 
benefits.
    (B) Asylum applicants. Asylum applicants are exempt from the 
requirement to submit the service fee for fingerprinting with the 
application for asylum.
    (iii) Insufficient service fee for fingerprinting; incorrect fees. 
Applications and petitions for immigration benefits received by the 
Service without the correct service fee for fingerprinting will not be 
rejected as improperly filed, pursuant to paragraph (a)(7)(i) of this 
section. However, the application or petition will not continue 
processing and the Service will not issue a notice requesting appearance 
for fingerprinting to the individuals who require fingerprinting until 
the correct service fee for fingerprinting has been submitted. The 
Service will notify the remitter of the filing fee for the application 
or petition of the additional amount required for the fingerprinting 
service fee and request submission of the correct fee. The Service will 
also notify the applicant or petitioner, and, when appropriate, the 
applicant or petitioner's representative, as defined in paragraph (a)(3) 
of this section, of the deficiency. Failure to submit the correct fee 
for

[[Page 88]]

fingerprinting in response to a notice of deficiency within the time 
allotted in the notice will result in denial of the application or 
petition for failure to submit the correct service fee for 
fingerprinting. There is no appeal from the denial of an application or 
petition for failure to submit the correct service fee for 
fingerprinting. A motion to re-open an application or petition denied 
for failure to submit the correct service fee for fingerprinting will be 
granted only on proof that:
    (A) The correct service fee for fingerprinting was submitted at the 
time of filing the application or petition;
    (B) The correct service fee for fingerprinting was submitted in 
response to the notice of deficiency within the time allotted in the 
notice; or
    (C) The notice of deficiency was sent to an address other than the 
address on the application or petition, or the notice of representation, 
or that the applicant or petitioner notified the Service, in writing, of 
a change of address or change of representation subsequent to filing and 
before the notice of deficiency was sent and the Service's notice of 
deficiency was not sent to the new address.
    (iv) Non-payment of service fee for fingerprinting. If a check or 
other financial instrument used to pay a service fee for fingerprinting 
is subsequently returned as not payable, the remitter shall be notified 
and requested to pay the correct service fee for fingerprinting and any 
associated service charges within 14 calendar days. The Service will 
also notify the applicant or petitioner and, when appropriate, the 
applicant or petitioner's representative as defined in paragraph (a)(3) 
of this section, of the non-payment and request to pay. If the correct 
service fee for fingerprinting and associated service charges are not 
paid within 14 calendar days, the application or petition will be denied 
for failure to submit the correct service fee for fingerprinting.

    Editorial Note: For Federal Register citations affecting Sec. 103.2, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 103.3  Denials, appeals, and precedent decisions.

    (a) Denials and appeals--(1) General--(i) Denial of application or 
petition. When a Service officer denies an application or petition filed 
under Sec. 103.2 of this part, the officer shall explain in writing the 
specific reasons for denial. If Form I-292 (a denial form including 
notification of the right of appeal) is used to notify the applicant or 
petitioner, the duplicate of Form I-292 constitutes the denial order.
    (ii) Appealable decisions. Certain unfavorable decisions on 
applications, petitions, and other types of cases may be appealed. 
Decisions under the appellate jurisdiction of the Board of Immigration 
Appeals (Board) are listed in Sec. 3.1(b) of this chapter. Decisions 
under the appellate jurisdiction of the Associate Commissioner, 
Examinations, are listed in Sec. 103.1(f)(2) of this part.
    (iii) Appeal--(A) Jurisdiction. When an unfavorable decision may be 
appealed, the official making the decision shall state the appellate 
jurisdiction and shall furnish the appropriate appeal form.
    (B) Meaning of affected party. For purposes of this section and 
Secs. 103.4 and 103.5 of this part, affected party (in addition to the 
Service) means the person or entity with legal standing in a proceeding. 
It does not include the beneficiary of a visa petition. An affected 
party may be represented by an attorney or representative in accordance 
with part 292 of this chapter.
    (C) Record of proceeding. An appeal and any cross-appeal or briefs 
become part of the record of proceeding.
    (D) Appeal filed by Service officer in case within jurisdiction of 
Board. If an appeal is filed by a Service officer, a copy must be served 
on the affected party.
    (iv) Function of Administrative Appeals Unit (AAU). The AAU is the 
appellate body which considers cases under the appellate jurisdiction of 
the Associate Commissioner, Examinations.
    (v) Summary dismissal. An officer to whom an appeal is taken shall 
summarily dismiss any appeal when the party concerned fails to identify 
specifically any erroneous conclusion of law or statement of fact for 
the appeal.

[[Page 89]]

The filing by an attorney or representative accredited under 8 CFR 
292.2(d) of an appeal which is summarily dismissed under this section 
may constitute frivolous behavior as defined in 8 CFR 292.3(a)(15). 
Summary dismissal of an appeal under Sec. 103.3(a)(1)(v) in no way 
limits the other grounds and procedures for disciplinary action against 
attorneys or representatives provided in 8 CFR 292.2 or in any other 
statute or regulation.
    (2) AAU appeals in other than special agricultural worker and 
legalization cases--(i) Filing appeal. The affected party shall file an 
appeal on Form I-290B. Except as otherwise provided in this chapter, the 
affected party must pay the fee required by Sec. 103.7 of this part. The 
affected party shall file the complete appeal including any supporting 
brief with the office where the unfavorable decision was made within 30 
days after service of the decision.
    (ii) Reviewing official. The official who made the unfavorable 
decision being appealed shall review the appeal unless the affected 
party moves to a new jurisdiction. In that instance, the official who 
has jurisdiction over such a proceeding in that geographic location 
shall review it.
    (iii) Favorable action instead of forwarding appeal to AAU. The 
reviewing official shall decide whether or not favorable action is 
warranted. Within 45 days of receipt of the appeal, the reviewing 
official may treat the appeal as a motion to reopen or reconsider and 
take favorable action. However, that official is not precluded from 
reopening a proceeding or reconsidering a decision on his or her own 
motion under Sec. 103.5(a)(5)(i) of this part in order to make a new 
decision favorable to the affected party after 45 days of receipt of the 
appeal.
    (iv) Forwarding appeal to AAU. If the reviewing official will not be 
taking favorable action or decides favorable action is not warranted, 
that official shall promptly forward the appeal and the related record 
of proceeding to the AAU in Washington, DC.
    (v) Improperly filed appeal--(A) Appeal filed by person or entity 
not entitled to file it--(1) Rejection without refund of filing fee. An 
appeal filed by a person or entity not entitled to file it must be 
rejected as improperly filed. In such a case, any filing fee the Service 
has accepted will not be refunded.
    (2) Appeal by attorney or representative without proper Form G-28--
(i) General. If an appeal is filed by an attorney or representative 
without a properly executed Notice of Entry of Appearance as Attorney or 
Representative (Form G-28) entitling that person to file the appeal, the 
appeal is considered improperly filed. In such a case, any filing fee 
the Service has accepted will not be refunded regardless of the action 
taken.
    (ii) When favorable action warranted. If the reviewing official 
decides favorable action is warranted with respect to an otherwise 
properly filed appeal, that official shall ask the attorney or 
representative to submit Form G-28 to the official's office within 15 
days of the request. If Form G-28 is not submitted within the time 
allowed, the official may, on his or her own motion, under 
Sec. 103.5(a)(5)(i) of this part, make a new decision favorable to the 
affected party without notifying the attorney or representative.
    (iii) When favorable action not warranted. If the reviewing official 
decides favorable action is not warranted with respect to an otherwise 
properly filed appeal, that official shall ask the attorney or 
representative to submit Form G-28 directly to the AAU. The official 
shall also forward the appeal and the relating record of proceeding to 
the AAU. The appeal may be considered properly filed as of its original 
filing date if the attorney or representative submits a properly 
executed Form G-28 entitling that person to file the appeal.
    (B) Untimely appeal--(1) Rejection without refund of filing fee. An 
appeal which is not filed within the time allowed must be rejected as 
improperly filed. In such a case, any filing fee the Service has 
accepted will not be refunded.
    (2) Untimely appeal treated as motion. If an untimely appeal meets 
the requirements of a motion to reopen as described in Sec. 103.5(a)(2) 
of this part or a motion to reconsider as described in Sec. 103.5(a)(3) 
of this part, the appeal must be treated as a motion, and a decision 
must be made on the merits of the case.

[[Page 90]]

    (vi) Brief. The affected party may submit a brief with Form I-290B.
    (vii) Additional time to submit a brief. The affected party may make 
a written request to the AAU for additional time to submit a brief. The 
AAU may, for good cause shown, allow the affected party additional time 
to submit one.
    (viii) Where to submit supporting brief if additional time is 
granted. If the AAU grants additional time, the affected party shall 
submit the brief directly to the AAU.
    (ix) Withdrawal of appeal. The affected party may withdraw the 
appeal, in writing, before a decision is made.
    (x) Decision on appeal. The decision must be in writing. A copy of 
the decision must be served on the affected party and the attorney or 
representative of record, if any.
    (3) Denials and appeals of special agricultural worker and 
legalization applications and termination of lawful temporary resident 
status under sections 210 and 245A. (i) Whenever an application for 
legalization or special agricultural worker status is denied or the 
status of a lawful temporary resident is terminated, the alien shall be 
given written notice setting forth the specific reasons for the denial 
on Form I-692, Notice of Denial. Form I-692 shall also contain advice to 
the applicant that he or she may appeal the decision and that such 
appeal must be taken within 30 days after service of the notification of 
decision accompanied by any additional new evidence, and a supporting 
brief if desired. The Form I-692 shall additionally provide a notice to 
the alien that if he or she fails to file an appeal from the decision, 
the Form I-692 will serve as a final notice of ineligibility.
    (ii) Form I-694, Notice of Appeal, in triplicate, shall be used to 
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service 
on the alien.
    (iii) Upon receipt of an appeal, the administrative record will be 
forwarded to the Administrative Appeals Unit as provided by 
Sec. 103.1(f)(2) of this part for review and decision. The decision on 
the appeal shall be in writing, and if the appeal is dismissed, shall 
include a final notice of ineligibility. A copy of the decision shall be 
served upon the applicant and his or her attorney or representative of 
record. No further administrative appeal shall lie from this decision, 
nor may the application be filed or reopened before an immigration judge 
or the Board of Immigration Appeals during exclusion or deportation 
proceedings.
    (iv) Any appeal which is filed that:
    (A) Fails to state the reason for appeal;
    (B) Is filed solely on the basis of a denial for failure to file the 
application for adjustment of status under section 210 or 245A in a 
timely manner; or
    (C) Is patently frivolous; will be summarily dismissed. An appeal 
received after the thirty (30) day period has tolled will not be 
accepted for processing.
    (4) Denials and appeal of Replenishment Agricultural Worker 
petitions and waivers and termination of lawful temporary resident 
status under section 210A. (i) Whenever a petition for Replenishment 
Agricultural Worker status, or a request for a waiver incident to such 
filing, is denied in accordance with the provisions of part 210a of this 
title, the alien shall be given written notice setting forth the 
specific reasons for the denial on Form I-692, Notice of Denial. Form I-
692 shall also contain advice to the alien that he or she may appeal the 
decision and that such appeal must be taken within thirty (30) days 
after service of the notification of decision accompanied by any 
additional new evidence, and a supporting brief if desired. The Form I-
692 shall additionally provide a notice to the alien that if he or she 
fails to file an appeal from the decision, the Form I-692 shall serve as 
a final notice of ineligibility.
    (ii) Form I-694, Notice of Appeal, in triplicate, shall be used to 
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service 
on the alien.
    (iii) Upon receipt of an appeal, the administrative record will be 
forwarded to the Administrative Appeals Unit as provided by 
Sec. 103.1(f)(2) of this part for review and decision. The decision on 
the appeal shall be in writing, and if the appeal is dismissed, shall 
include a final notice of ineligibility. A

[[Page 91]]

copy of the decision shall be served upon the petitioner and his or her 
attorney or representative of record. No further administrative appeal 
shall lie from this decision, nor may the petition be filed or reopened 
before an immigration judge or the Board of Immigration Appeals during 
exclusion or deportation proceedings.
    (iv) Any appeal which is filed that: Fails to state the reason for 
the appeal; is filed solely on the basis of a denial for failure to file 
the petition for adjustment of status under part 210a of this title in a 
timely manner; or is patently frivolous, will be summarily dismissed. An 
appeal received after the thirty (30) day period has tolled will not be 
accepted for processing.
    (b) Oral argument regarding appeal before AAU--(1) Request. If the 
affected party desires oral argument, the affected party must explain in 
writing specifically why oral argument is necessary. For such a request 
to be considered, it must be submitted within the time allowed for 
meeting other requirements.
    (2) Decision about oral argument. The Service has sole authority to 
grant or deny a request for oral argument. Upon approval of a request 
for oral argument, the AAU shall set the time, date, place, and 
conditions of oral argument.
    (c) Service precedent decisions. In addition to Attorney General and 
Board decisions referred to in Sec. 3.1(g) of this chapter, designated 
Service decisions are to serve as precedents in all proceedings 
involving the same issue(s). Except as these decisions may be modified 
or overruled by later precedent decisions, they are binding on all 
Service employees in the administration of the Act. Precedent decisions 
must be published and made available to the public as described in 
Sec. 103.9(a) of this part.

[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 
FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 
1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55 
FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992]



Sec. 103.4  Certifications.

    (a) Certification of other than special agricultural worker and 
legalization cases--(1) General. The Commissioner or the Commissioner's 
delegate may direct that any case or class of cases be certified to 
another Service official for decision. In addition, regional 
commissioners, regional service center directors, district directors, 
officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City, 
Mexico), and 37 (Rome, Italy), and the Director, National Fines Office, 
may certify their decisions to the appropriate appellate authority (as 
designated in this chapter) when the case involves an unusually complex 
or novel issue of law or fact.
    (2) Notice to affected party. When a case is certified to a Service 
officer, the official certifying the case shall notify the affected 
party using a Notice of Certification (Form I-290C). The affected party 
may submit a brief to the officer to whom the case is certified within 
30 days after service of the notice. If the affected party does not wish 
to submit a brief, the affected party may waive the 30-day period.
    (3) Favorable action. The Service officer to whom a case is 
certified may suspend the 30-day period for submission of a brief if 
that officer takes action favorable to the affected party.
    (4) Initial decision. A case within the appellate jurisdiction of 
the Associate Commissioner, Examinations, or for which there is no 
appeal procedure may be certified only after an initial decision is 
made.
    (5) Certification to AAU. A case described in paragraph (a)(4) of 
this section may be certified to the AAU.
    (6) Appeal to Board. In a case within the Board's appellate 
jurisdiction, an unfavorable decision of the Service official to whom 
the case is certified (whether made initially or upon review) is the 
decision which may be appealed to the Board under Sec. 3.1(b) of this 
chapter.
    (7) Other applicable provisions. The provisions of 
Sec. 103.3(a)(2)(x) of this part also apply to decisions on certified 
cases. The provisions of Sec. 103.3(b) of this part also apply to 
requests for oral argument regarding certified cases considered by the 
AAU.
    (b) Certification of denials of special agricultural worker and 
legalization applications. The Regional Processing Facility director or 
the district director may, in accordance with paragraph (a)

[[Page 92]]

of this section, certify a decision to the Associate Commissioner, 
Examinations (Administrative Appeals Unit) (the appellate authority 
designated in Sec. 103.1(f)(2)) of this part, when the case involves an 
unusually complex or novel question of law or fact.

[52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988; 55 
FR 20770, May 21, 1990]



Sec. 103.5  Reopening or reconsideration.

    (a) Motions to reopen or reconsider in other than special 
agricultural worker and legalization cases--(1) When filed by affected 
party--(i) General. Except where the Board has jurisdiction and as 
otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the 
affected party files a motion, the official having jurisdiction may, for 
proper cause shown, reopen the proceeding or reconsider the prior 
decision. Motions to reopen or reconsider are not applicable to 
proceedings described in Sec. 274a.9 of this chapter. Any motion to 
reconsider an action by the Service filed by an applicant or petitioner 
must be filed within 30 days of the decision that the motion seeks to 
reconsider. Any motion to reopen a proceeding before the Service filed 
by an applicant or petitioner, must be filed within 30 days of the 
decision that the motion seeks to reopen, except that failure to file 
before this period expires, may be excused in the discretion of the 
Service where it is demonstrated that the delay was reasonable and was 
beyond the control of the applicant or petitioner.
    (ii) Jurisdiction. The official having jurisdiction is the official 
who made the latest decision in the proceeding unless the affected party 
moves to a new jurisdiction. In that instance, the new official having 
jurisdiction is the official over such a proceeding in the new 
geographical locations.
    (iii) Filing Requirements-- A motion shall be submitted on Form I-
290A, and may be accompanied by a brief. It must be--
    (A) In writing and signed by the affected party or the attorney or 
representative of record, if any;
    (B) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;
    (C) Accompanied by a statement about whether or not the validity of 
the unfavorable decision has been or is the subject of any judicial 
proceeding and, if so, the court, nature, date, and status or result of 
the proceeding;
    (D) Addressed to the official having jurisdiction; and
    (E) Submitted to the office maintaining the record upon which the 
unfavorable decision was made for forwarding to the official having 
jurisdiction.
    (iv) Effect of motion or subsequent application or petition. Unless 
the Service directs otherwise, the filing of a motion to reopen or 
reconsider or of a subsequent application or petition does not stay the 
execution of any decision in a case or extend a previously set departure 
date.
    (2) Requirements for motion to reopen. A motion to reopen must state 
the new facts to be provided in the reopened proceeding and be supported 
by affidavits or other documentary evidence. A motion to reopen an 
application or petition denied due to abandonment must be filed with 
evidence that the decision was in error because:
    (i) The requested evidence was not material to the issue of 
eligibility;
    (ii) The required initial evidence was submitted with the 
application or petition, or the request for initial evidence or 
additional information or appearance was complied with during the 
allotted period; or
    (iii) The request for additional information or appearance was sent 
to an address other than that on the application, petition, or notice of 
representation, or that the applicant or petitioner advised the Service, 
in writing, of a change of address or change of representation 
subsequent to filing and before the Service's request was sent, and the 
request did not go to the new address.
    (3) Requirements for motion to reconsider. A motion to reconsider 
must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based 
on an incorrect application of law or Service policy. A motion to 
reconsider a decision on an application or petition must, when filed, 
also establish that the decision was incorrect based on the evidence of 
record at the time of the initial decision.

[[Page 93]]

    (4) Processing motions in proceedings before the Service. A motion 
that does not meet applicable requirements shall be dismissed. Where a 
motion to reopen is granted, the proceeding shall be reopened. The 
notice and any favorable decision may be combined.
    (5) Motion by Service officer--(i) Service motion with decision 
favorable to affected party. When a Service officer, on his or her own 
motion, reopens a Service proceeding or reconsiders a Service decision 
in order to make a new decision favorable to the affected party, the 
Service officer shall combine the motion and the favorable decision in 
one action.
    (ii) Service motion with decision that may be unfavorable to 
affected party. When a Service officer, on his or her own motion, 
reopens a Service proceeding or reconsiders a Service decision, and the 
new decision may be unfavorable to the affected party, the officer shall 
give the affected party 30 days after service of the motion to submit a 
brief. The officer may extend the time period for good cause shown. If 
the affected party does not wish to submit a brief, the affected party 
may waive the 30-day period.
    (6) Appeal to AAU from Service decision made as a result of a 
motion. A field office decision made as a result of a motion may be 
applied to the AAU only if the original decision was appealable to the 
AAU.
    (7) Other applicable provisions. The provisions of 
Sec. 103.3(a)(2)(x) of this part also apply to decisions on motions. The 
provisions of Sec. 103.3(b) of this part also apply to requests for oral 
argument regarding motions considered by the AAU.
    (8) Treating an appeal as a motion. The official who denied an 
application or petition may treat the appeal from that decision as a 
motion for the purpose of granting the motion.
    (b) Motions to reopen or reconsider denials of special agricultural 
worker and legalization applications. Upon the filing of an appeal to 
the Associate Commissioner, Examinations (Administrative Appeals Unit), 
the Director of a Regional Processing Facility or the consular officer 
at an Overseas Processing Office may sua sponte reopen any proceeding 
under his or her jurisdiction opened under part 210 or 245a of this 
chapter and may reconsider any decision rendered in such proceeding. The 
new decision must be served on the appellant within 45 days of receipt 
of any brief and/or new evidence, or upon expiration of the time allowed 
for the submission of a brief. The Associate Commissioner, Examinations, 
or the Chief of the Administrative Appeals Unit may sua sponte reopen 
any proceeding conducted by that Unit under part 210 or 245a of this 
chapter and reconsider any decision rendered in such proceeding. Motions 
to reopen a proceeding or reconsider a decision under part 210 or 245a 
of this chapter shall not be considered.
    (c) Motions to reopen or reconsider decisions on replenishment 
agricultural worker petitions. (1) The director of a regional processing 
facility may sua sponte reopen any proceeding under part 210a of this 
title which is within his or her jurisdiction and may render a new 
decision. This decision may reverse a prior favorable decision when it 
is determined that there was fraud during the registration or petition 
processes and the petitioner was not entitled to the status granted. The 
petitioner must be given an opportunity to offer evidence in support of 
the petition and in opposition to the grounds for reopening the petition 
before a new decision is rendered.
    (2) The Associate Commissioner, Examinations or the Chief of the 
Administrative Appeals Unit may sua sponte reopen any proceeding 
conducted by that unit under part 210a of this title and reconsider any 
decision rendered in such proceeding.
    (3) Motions to reopen a proceeding or reconsider a decision under 
part 210a of this title shall not be considered.

[27 FR 7562, Aug. 1, 1962, as amended at 30 FR 12772, Oct. 7, 1965; 32 
FR 271, Jan. 11, 1967; 52 FR 16193, May 1, 1987; 54 FR 29881, July 17, 
1989; 55 FR 20770, 20775, May 21, 1990; 55 FR 25931, June 25, 1990; 56 
FR 41782, Aug. 23, 1991; 59 FR 1463, Jan. 11, 1994; 61 FR 18909, Apr. 
29, 1996; 62 FR 10336, Mar. 6, 1997]



Sec. 103.5a  Service of notification, decisions, and other papers by the Service.

    This section states authorized means of service by the Service on 
parties and

[[Page 94]]

on attorneys and other interested persons of notices, decisions, and 
other papers (except warrants and subpoenas) in administrative 
proceedings before Service officers as provided in this chapter.
    (a) Definitions--(1) Routine service. Routine service consists of 
mailing a copy by ordinary mail addressed to a person at his last known 
address.
    (2) Personal service. Personal service, which shall be performed by 
a Government employee, consists of any of the following, without 
priority or preference:
    (i) Delivery of a copy personally;
    (ii) Delivery of a copy at a person's dwelling house or usual place 
of abode by leaving it with some person of suitable age and discretion;
    (iii) Delivery of a copy at the office of an attorney or other 
person, including a corporation, by leaving it with a person in charge;
    (iv) Mailing a copy by certified or registered mail, return receipt 
requested, addressed to a person at his last known address.
    (3) Personal service involving notices of intention to fine. In 
addition to any of the methods of personal service listed in paragraph 
(a)(2) of this section, personal service of Form I-79, Notice of 
Intention to Fine, may also consist of delivery of the Form I-79 by a 
commercial delivery service at the carrier's address on file with the 
National Fines Office, the address listed on the Form I-849, Record for 
Notice of Intent to Fine, or to the office of the attorney or agent 
representing the carrier, provided that such a commercial delivery 
service requires the addressee or other responsible party accepting the 
package to sign for the package upon receipt.
    (b) Effect of service by mail. Whenever a person has the right or is 
required to do some act within a prescribed period after the service of 
a notice upon him and the notice is served by mail, 3 days shall be 
added to the prescribed period. Service by mail is complete upon 
mailing.
    (c) When personal service required--(1) Generally. In any proceeding 
which is initiated by the Service, with proposed adverse effect, service 
of the initiating notice and of notice of any decision by a Service 
officer shall be accomplished by personal service, except as provided in 
section 239 of the Act.
    (2) Persons confined, minors, and incompetents--(i) Persons 
confined. If a person is confined in a penal or mental institution or 
hospital and is competent to understand the nature of the proceedings 
initiated against him, service shall be made both upon him and upon the 
person in charge of the institution or the hospital. If the confined 
person is not competent to understand, service shall be made only on the 
person in charge of the institution or hospital in which he is confined, 
such service being deemed service on the confined person.
    (ii) Incompetents and minors. In case of mental incompetency, 
whether or not confined in an institution, and in the case of a minor 
under 14 years of age, service shall be made upon the person with whom 
the incompetent or the minor resides; whenever possible, service shall 
also be made on the near relative, guardian, committee, or friend.
    (d) When personal service not required. Service of other types of 
papers in proceedings described in paragraph (c) of this section, and 
service of any type of papers in any other proceedings, may be 
accomplished either by routine service or by personal service.

[37 FR 11470, June 8, 1972, as amended at 39 FR 23247, June 27, 1974; 62 
FR 10336, Mar. 6, 1997; 64 FR 17944, Apr. 13, 1999]



Sec. 103.5b  Application for further action on an approved application or petition.

    (a) General. An application for further action on an approved 
application or petition must be filed on Form I-824 by the applicant or 
petitioner who filed the original application or petition. It must be 
filed with the fee required in Sec. 103.7 and the initial evidence 
required on the application form. Form I-824 may accompany the original 
application or petition, or may be filed after the approval of the 
original application or petition.
    (b) Requested actions. A person whose application was approved may, 
during its validity period, apply for a duplicate approval notice or any 
other action specifically provided for on the form. A petitioner whose 
petition was

[[Page 95]]

approved may, during the validity of the petition, request that the 
Service:
    (1) Issue a duplicate approval notice;
    (2) Notify another consulate of the approved petition;
    (3) Notify a consulate of the person's adjustment of status for the 
purpose of visa issuance to dependents; or
    (4) Take any other action specifically provided for on the form.
    (c) Processing. The application shall be approved if the Service 
determines the applicant has fully demonstrated eligibility for the 
requested action. There is no appeal from the denial of an application 
filed on Form I-824.

[59 FR 1463, Jan. 11, 1994]



Sec. 103.6  Surety bonds.

    (a) Posting of surety bonds--(1) Extension agreements; consent of 
surety; collateral security. All surety bonds posted in immigration 
cases shall be executed on Form I-352, Immigration Bond, a copy of 
which, and any rider attached thereto, shall be furnished the obligor. A 
district director is authorized to approve a bond, a formal agreement to 
extension of liability of surety, a request for delivery of collateral 
security to a duly appointed and undischarged administrator or executor 
of the estate of a deceased depositor, and a power of attorney executed 
on Form I-312, Designation of Attorney in Fact. All other matters 
relating to bonds, including a power of attorney not executed on Form I-
312 and a request for delivery of collateral security to other than the 
depositor or his or her approved attorney in fact, shall be forwarded to 
the regional director for approval.
    (2) Bond riders--(i) General. Bond riders shall be prepared on Form 
I-351, Bond Riders, and attached to Form I-352. If a condition to be 
included in a bond is not on Form I-351, a rider containing the 
condition shall be executed.
    (ii) [Reserved]
    (b) Acceptable sureties. Either a company holding a certificate from 
the Secretary of the Treasury under 6 U.S.C. 6-13 as an acceptable 
surety on Federal bonds, or a surety who deposits cash or U.S. bonds or 
notes of the class described in 6 U.S.C. 15 and Treasury Department 
regulations issued pursuant thereto and which are not redeemable within 
1 year from the date they are offered for deposit is an acceptable 
surety.
    (c) Cancellation--(1) Public charge bonds. A public charge bond 
posted for an immigrant shall be cancelled when the alien dies, departs 
permanently from the United States or is naturalized, provided the 
immigrant did not become a public charge prior to death, departure, or 
naturalization. The district director may cancel a public charge bond at 
any time if he/she finds that the immigrant is not likely to become a 
public charge. A bond may also be cancelled in order to allow 
substitution of another bond. A public charge bond shall be cancelled by 
the district director upon review following the fifth anniversity of the 
admission of the immigrant, provided that the alien has filed Form I-
356, Request for Cancellation of Public Charge Bond, and the district 
director finds that the immigrant did not become a public charge prior 
to the fifth anniversary. If Form I-356 is not filed, the bond shall 
remain in effect until the form is filed and the district director 
reviews the evidence supporting the form and renders a decision to 
breach or cancel the bond.
    (2) Maintenance of status and departure bonds. When the status of a 
nonimmigrant who has violated the conditions of his admission has been 
adjusted as a result of administrative or legislative action to that of 
a permanent resident retroactively to a date prior to the violation, any 
outstanding maintenance of status and departure bond shall be canceled. 
If an application for adjustment of status is made by a nonimmigrant 
while he is in lawful temporary status, the bond shall be canceled if 
his status is adjusted to that of a lawful permanent resident or if he 
voluntarily departs within any period granted to him. As used in this 
paragraph, the term lawful temporary status means that there must not 
have been a violation of any of the conditions of the alien's 
nonimmigrant classification by acceptance of unauthorized employment or 
otherwise during the time he has been accorded such classification, and 
that from the date of admission to the date of departure or adjustment 
of status he must have had uninterrupted Service approval of his 
presence in the United States in the

[[Page 96]]

form of regular extensions of stay or dates set by which departure is to 
occur, or a combination of both. An alien admitted as a nonimmigrant 
shall not be regarded as having violated his nonimmigrant status by 
engaging in employment subsequent to his proper filing of an application 
for adjustment of status under section 245 of the Act and part 245 of 
this chapter. A maintenance of status and departure bond posted at the 
request of an American consular officer abroad in behalf of an alien who 
did not travel to the United States shall be canceled upon receipt of 
notice from an American consular officer that the alien is outside the 
United States and the nonimmigrant visa issued pursuant to the posting 
of the bond has been canceled or has expired.
    (3) Substantial performance. Substantial performance of all 
conditions imposed by the terms of a bond shall release the obligor from 
liability.
    (d) Bond schedules--(1) Blanketbonds for departure of visitors and 
transits. The amount of bond required for various numbers of 
nonimmigrant visitors or transits admitted under bond on Forms I-352 
shall be in accordance with the following schedule:

                                 Aliens

1 to 4--$500 each.
5 to 9--$2,500 total bond.
10 to 24--$3,500 total bond.
25 to 49--$5,000 total bond.
50 to 74--$6,000 total bond.
75 to 99--$7,000 total bond.
100 to 124--$8,000 total bond.
125 to 149--$9,000 total bond.
150 to 199--$10,000 total bond.
200 or more--$10,000 plus $50 for each alien over 200.

    (2) Blanket bonds for importation of workers classified as 
nonimmigrants under section 101(a)(15)(H). The following schedule shall 
be employed by district directors when requiring employers or their 
agents or representatives to post bond as a condition to importing alien 
laborers into the United States from the West Indies, the British Virgin 
Islands, or from Canada:

Less than 500 workers--$15 each
500 to 1,000 workers--$10 each
1,000 or more workers--$5 each


A bond shall not be posted for less than $1,000 or for more than $12,000 
irrespective of the number of workers involved. Failure to comply with 
conditions of the bond will result in the employer's liability in the 
amount of $200 as liquidated damages for each alien involved.
    (e) Breach of bond. A bond is breached when there has been a 
substantial violation of the stipulated conditions. A final 
determination that a bond has been breached creates a claim in favor of 
the United States which may not be released or discharged by a Service 
officer. The district director having custody of the file containing the 
immigration bond executed on Form I-352 shall determine whether the bond 
shall be declared breached or cancelled, and shall notify the obligor on 
Form I-323 or Form I-391 of the decision, and, if declared breached, of 
the reasons therefor, and of the right to appeal in accordance with the 
provisions of this part.

[31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967; 33 
FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23, 
1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40 FR 
42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June 11, 
1984; 60 FR 21974, May 4, 1995; 62 FR 10336, Mar. 6, 1997]



Sec. 103.7  Fees.

    (a) Remittances. (1) Fees prescribed within the framework of 31 
U.S.C. 483a shall be submitted with any formal application or petition 
prescribed in this chapter and shall be in the amount prescribed by law 
or regulation. Except for fees remitted directly to the Board pursuant 
to the provisions of Sec. 3.8(a) of this chapter, any fee relating to 
any Executive Office for Immigration Review proceeding shall be paid to, 
and accepted by, any Service office authorized to accept fees. Payment 
of any fee under this section does not constitute filing of the document 
with the Board or with the Immigration Court. The Service shall return 
to the payer, at the time of payment, a receipt for any fee paid. The 
Service shall also return to the payer any documents, submitted with the 
fee, relating to any Immigration Judge proceeding. A charge of

[[Page 97]]

$30.00 will be imposed if a check in payment of a fee is not honored by 
the bank on which it is drawn. Remittances must be drawn on a bank or 
other institution located in the United States and be payable in United 
States currency. Fees in the form of postage stamps shall not be 
accepted. Remittances to the Service shall be made payable to the 
``Immigration and Naturalization Service,'' except that in case of 
applicants residing in the Virgin Islands of the United States, the 
remittances shall be made payable to the ``Commissioner of Finance of 
the Virgin Islands'' and, in the case of applicants residing in Guam, 
the remittances shall be made payable to the ``Treasurer, Guam.'' If 
application to the Service is submitted from outside the United States, 
remittance may be made by bank international money order or foreign 
draft drawn on a financial institution in the United States and payable 
to the Immigration and Naturalization Service in United States currency. 
Remittances to the Board shall be made payable to the ``United States 
Department of Justice.''
    (2) A charge of $30.00 will be imposed if a check in payment of a 
fee, fine, penalty, and/or any other matter is not honored by the bank 
or financial institution on which it is drawn. A receipt issued by a 
Service officer for any such remittance shall not be binding upon the 
Service if the remittance is found uncollectible. Furthermore, credit 
for meeting legal and statutory deadlines will not be deemed to have 
been met if payment is not made within 10 business days after 
notification by the Service of the dishonored check.
    (b) Amounts of fees. (1) The following fees and charges are 
prescribed:

For certification of true copies, each--$2.00
For attestation under seal--$2.00
For fingerprinting by the Service.  A service fee of $25 will be charged 
by the Service for fingerprinting each applicant, petitioner, sponsor, 
or other individual who is required to complete Form FD-258 in 
connection with an application or petition for an immigration benefit 
(other than asylum) and whose residence is in the United States, as 
defined in section 101(a)(38) of the Act.
DCL System Costs Fee.  For use of a Dedicated Commuter Lane (DCL) 
located at specific Ports of Entry of the United States by an approved 
participant in a designated vehicle--$80.00, with the maximum amount of 
$160.00 payable by a family (husband, wife, and minor children under 18 
years-of-age). Payable following approval of the application but before 
use of the DCL by each participant. This fee is non-refundable, but may 
be waived by the district director. If a participant wishes to enroll 
more than one vehicle for use in the PORTPASS system, he or she will be 
assessed with an additional fee of--$42 for each additional vehicle 
enrolled.
Form EOIR-40.  For filing application for suspension of deportation 
under section 244 of the Act as it existed prior to April 1, 1997--
$100.00. (A single fee of $100.00 will be charged whenever suspension of 
deportation applications are filed by two or more aliens in the same 
proceeding).
Form EOIR-42.  For filing application for cancellation of removal under 
section 240A of the Act--$100.00. (A single fee of $100.00 will be 
charged whenever cancellation of removal applications are filed by two 
or more aliens in the same proceedings).
Form I-17.  For filing an application for school approval, except in the 
case of a school or school system owned or operated as a public 
educational institution or system by the United States or a state or 
political subdivision thereof--$200.00.
Form I-68.  For application for issuance of the Canadian Border Boat 
Landing Permit under section 235 of the Act--$16.00. The maximum amount 
payable by a family (husband, wife, unmarried children under 21 years of 
age, parents of either husband or wife) shall be $32.00.
Form I-90.  For filing an application for Permanent Resident Card (Form 
I-551) in lieu of an obsolete card or in lieu of one lost, mutilated, or 
destroyed, or for a change in name--$110.00.
Form I-94.  For issuance of Arrival/Departure Record at a land border 
Port-of-Entry--$6.00.
Form I-94W.  For issuance of Nonimmigrant Visa Waiver Arrival/Departure 
Form at a land border Port-of-Entry under section 217 of the Act--$6.00.
Form I-102.  For filing a petition for an application (Form I-102) for 
Arrival-Departure Record (Form I-94) or Crewman's Landing (Form I-95), 
in lieu of one lost, mutilated, or destroyed--$85.00.
 Form I-129.  For filing a petition for a nonimmigrant worker, a base 
fee of $110. For filing an H-1B petition, a base fee of $110 plus an 
additional $500 fee in a single remittance of $610. The remittance may 
be in the form of two checks (one in the amount of $500 and the other in 
the amount of $110). Payment of this additional $500 fee is not waivable 
under Sec. 103.7(c)(1). Payment of this additional $500 fee is not 
required if an

[[Page 98]]

organization is exempt under Sec. 214.2(h)(19)(iii) of this chapter. 
Payment of this additional $500 fee is not required if an organization 
is exempt under Sec. 214.2(h)(19)(iii) of this chapter, and this 
additional $500 fee also does not apply to certain filings by any 
employer as provided in Sec. 214.2(h)(19)(v) of this chapter.
Form I-129F.  For filing a petition to classify nonimmigrant as fiancee 
or fiance under section 214(d) of the Act--$95.00.
Form I-130.  For filing a petition to classify status of alien relative 
for issuance of immigrant visa under section 204(a) of the Act--$110.00.
Form I-131.  For filing an application for travel documents--$95.00.
Form I-140.  For filing a petition to classify preference status of an 
alien on basis of profession or occupation under section 204(a) of the 
Act--$115.00.
Form I-175.  For issuance of Nonresident Alien Canadian Border Crossing 
Card (Form I-185)--$30.00.
Form I-190.  For issuance of replacement Nonresident Alien Mexican 
Border Crossing Card (Form I-586) in lieu of one lost, stolen, or 
mutilated--$26.00.
Form I-191.  For filing applications for discretionary relief under 
section 212(c) of the Act--$170.00.
Form I-192.  For filing an application for discretionary relief under 
section 212(d)(3) of the Act, except in an emergency case, or where the 
approval of the application is in the interest of the United States 
Government--$170.00.
Form I-193.  For filing an application for waiver of passport and/or 
visa--$170.00.
Form I-212.  For filing an application for permission to reapply for an 
excluded, deported or removed alien, an alien who has fallen into 
distress, an alien who has been removed as an alien enemy, or an alien 
who has been removed at Government expense in lieu of deportation--
$170.00.
Form I-246.  For filing application for stay of deportation under part 
243 of this chapter--$155.00
Form I-290A.  For filing appeal from any decision under the immigration 
laws in any type of proceedings (except a bond decision) over which the 
Board of Immigration Appeals has appellate jurisdiction in accordance 
with Sec. 3.1(b) of this chapter. (The fee of $110 will be charged 
whenever an appeal is filed by or on behalf of two or more aliens and 
the aliens are covered by one decision)--$110.00
Form I-290B.  For filing an appeal from any decision under the 
immigration laws in any type of proceeding over which the Board of 
Immigration Appeals does not have appellate jurisdiction. (The fee of 
$50 will be charged whenever an appeal is filed by or on behalf of two 
or more aliens and the aliens are covered by one decision)--$110.00
Form I-360.  For filing a petition for an Amerasian, Widow(er), or 
Special Immigrant--$110.00, except there is no fee for a petition 
seeking classification as an Amerasian.
Form I-485.  For filing application for permanent resident status or 
creation of a record of lawful permanent residence--$220.00 for an 
applicant 14 years of age or older; $160.00 for an applicant under the 
age of 14 years; no fee for an applicant filing as a refugee under 
section 209(a) of the Act.
Supplment A to Form I-485.  Supplement to Form I-485 for persons seeking 
to adjust status under the provisions of section 245(i) of the Act--
$1000, except that payment of this additional sum is not required when 
the applicant is an unmarried child who is less than 17 years of age, or 
when the applicant is the spouse or the unmarried child less than 21 
years of age of a legalized alien and is qualified for and has applied 
for voluntary departure under the family unity program.
Form I-506.  For filing application for change of nonimmigrant 
classification under section 248 of the Act--$70.00.
Form I-526.  For filing a petition for an alien entrepreneur--$350.00.
Form I-538.  For filing application by a nonimmigrant student (F-1) for 
an extension of stay, a school transfer or permission to accept or 
continue employment or practical training--$70.00.
Form I-539.  For filing an application to extend or change nonimmigrant 
status--$120.00.
Form I-570.  For filing application for issuance or extension of refugee 
travel document--$45.00
Form I-600.  For filing a petition to classify orphan as an immediate 
relative for issuance of immigrant visa under section 204(a) of the Act. 
(When more than one petition is submitted by the same petitioner on 
behalf of orphans who are brothers or sisters, only one fee will be 
required.)--$405.00.
Form I-600A.  For filing an application for advance processing of orphan 
petition. (When more than one petition is submitted by the same 
petitioner on behalf of orphans who are brothers or sisters, only one 
fee will be required.)--$405.00.
Form I-601.  For filing an application for waiver of ground of 
inadmissability under section 212 (h) or (i) of the Act. (Only a single 
application and fee shall be required when the alien is applying 
simultaneously for a waiver under both those subsections.)--$170.00.
Form I-612.  For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$170.00.

[[Page 99]]

Form I-687.  For filing application for status as a temporary resident 
under section 245A (a) of the Immigration and Nationality Act as 
amended--to be remitted in the form of a cashier's check, certified bank 
check or money order. A fee of one hundred and eighty-five dollars 
($185.00) for each application or fifty dollars ($50.00) for each 
application for a minor child (under 18 years of age) is required at the 
time of filing with the Immigration and Naturalization Service. The 
maximum amount payable by a family (husband, wife, and any minor 
children) shall be four hundred and twenty dollars ($420.00).
Form I-690.  For filing application for waiver for ground of 
excludability under section 212(a) of the Act as amended, in conjunction 
with the application under sections 210 or 245A of the Act, or a 
petition under Sec. 210A. A fee of thirty-five dollars ($35.00) is to be 
remitted in the form of a cashier's check, certified bank check or money 
order.
Form I-694.  For appealing the denial of application under sections 210 
or 245A of the Act, or a petition under Sec. 210A. A fee of fifty 
dollars ($50.00) is to be remitted in the form of a cashier's check, 
certified bank check or money order.
Form I-695.  For filing application for replacement of temporary 
resident card (Form I-688) to be remitted in the form of a cashier's 
check, certified bank check or a money order--$15.00
Form I-698.  For filing application for adjustment from temporary 
resident status to that of lawful permanent resident under section 
245A(b)(1) of the Act, as amended--to be remitted in the form of a 
cashier's check, certified bank check or money order. For applicants 
filing within thirty-one months from the date of adjustment to temporary 
resident status, a fee of eighty dollars ($80.00) for each application 
is required at the time of filing with the Immigration and 
Naturalization Service. The maximum amount payable by a family (husband, 
wife, and any minor children (under 18 years of age living at home)) 
shall be two hundred and forty dollars--($240.00). For applicants filing 
after thirty-one months from the date of approval of temporary resident 
status, who file their applications on or after July 9, 1991, a fee of 
$120.00 (a maximum of $360.00 per family) is required. The adjustment 
date is the date of filing of the application for permanent residence or 
the applicant's eligibility date, whichever is later.
Form I-700.  For filing application for status as a temporary resident 
under section 210(a)(1) of the Act, as amended--to be remitted in the 
form of a cashier's check, certified bank check or a money order. A fee 
of one hundred and eighty-five dollars ($185.00) for each application or 
fifty dollars ($50.00) for each application for a minor child (under 18 
years of age) is required at the time of filing with the Immigration and 
Naturalization Service. The maximum amount payable by a family (husband, 
wife, and any minor children) shall be four hundred and twenty dollars 
($420.00).
Form I-751.  For filing a petition to remove the conditions on 
residence, based on marriage--$125.00.
Form I-765.  For filing an application for employment authorization 
pursuant to 8 CFR 274a.13--$100.00.
Form I-805.  For filing a petition for status as a temporary resident 
under Sec. 210A. A fee of one hundred and seventy-five dollars ($175.00) 
for each petition, is to be remitted in the form of a cashier's check, 
certified bank check or money order at the time of filing with the 
Immigration and Naturalization Service.
Form I-807.  For filing a request for consideration as a replenishment 
agricultural worker (RAW) during an announced period of registration 
under 8 CFR 210a.3. A fee of ten dollars ($10.00) is to be remitted in 
the form of a cashier's check, certified bank check or money order at 
the time of mailing to the Immigration and Naturalization Service.
Form I-817.  For filing an application for voluntary departure under the 
Family Unity Program--$120.00.
Form I-821.  For filing an initial application for Temporary Protected 
Status under section 244 of the Act as amended by section 308(a)(7) of 
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
as amended by the Immigration Act of 1990, to be remitted in the form of 
a cashier's check, certified bank check, or money order. The exact 
amount of the fee, not to exceed fifty dollars ($50.00), will be 
determined at the time a foreign state is designated for Temporary 
Protected Status.
Form I-823.  For application to a PORTPASS program under section 286 of 
the Act--$25.00, with the maximum amount of $50.00 payable by a family 
(husband, wife, and minor children under 18 years of age). The 
application fee may be waived by the district director. If fingerprints 
are required, the inspector will inform the applicant of the current 
Federal Bureau of Investigation fee for conducting fingerprint checks 
prior to accepting the application fee. Both the application fee (if not 
waived) and the fingerprint fee must be paid to the Immigration and 
Naturalization Service before the application will be processed. The 
fingerprint fee may not be waived. For replacement of PORTPASS 
documentation during the participation period--$25.00.
Form I-824.  For filing for action on an approved application or 
petition--$120.00.

[[Page 100]]

Form I-829.  For filing a petition by entrepreneur to remove 
conditions--$345.00.
Form I-881.  For filing an application for suspension of deportation or 
special rule cancellation of removal (pursuant to section 203 of Public 
Law 105-100):

-- $215 for adjudication by the Service, except that the maximum amount 
payable by family members (related as husband, wife, unmarried child 
under 21, unmarried son, or unmarried daughter) who submit applications 
at the same time shall be $430.
-- $100 for adjudication by the Immigration Court (a single fee of $100 
will be charged whenever applications are filed by two or more aliens in 
the same proceedings). The $100 fee is not required if the Form I-881 is 
referred to the Immigration Court by the Service.

Form N-300.  For filing an application for declaration of intention--
$50.00.
Form N-336.  For filing a request for hearing on a decision in 
naturalization proceedings under section 336 of the Act--$170.00.
Form N-400.  For filing an application for naturalization--$225.00.
Form N-410.  For filing motion for amendment of petition for 
naturalization when motion is for the convenience of the petitioner--
$50.00
Form N-455.  For filing application for transfer of petition for 
naturalization under section 335(i) of the Act, except when transfer is 
of a petition for naturalization filed under the Act of October 24, 
1968, Pub. L. 90-633--$90.00.
Form N-470.  For filing an application for section 316(b) or 317 of the 
Act benefits--$80.00.
Form N-565.  For filing an application for a certificate of 
naturalization or declaration of intention in lieu of a certificate or 
declaration alleged to have been lost, mutilated, or destroyed; for a 
certificate of citizenship in a changed name under section 343(b) or (d) 
of the Act; or for a special certificate of naturalization to obtain 
recognition as a citizen of the United States by a foreign state under 
section 343(c) of the Act--$135.00.
Form N-600.  For filing an application for a certificate of citizenship 
under section 309(c) or section 341 of the Act--$160.00.
Form N-643.  For filing an application for a certificate of citizenship 
on behalf of an adopted child--$125.00.
Form N-644.  For filing an application for posthumous citizenship--$80.
Motion. For filing a motion to reopen or reconsider any decision under 
the immigration laws in any type of proceeding over which the Board of 
Immigration Appeals has appellate jurisdiction. No fee shall be charged 
for a motion to reopen or reconsider a decision on an application for 
relief for which no fee is chargeable, for any motion to reopen or 
reconsider made concurrently with any initial application for relief 
under the immigration laws for which no fee is chargeable, or for a 
motion to reopen a deportation or removal order entered in absentia if 
that motion is filed pursuant to 8 U.S.C. 1252b(c)(3)(B) as it existed 
prior to April 1, 1997, or section 240b(5)(C)(ii) of the Immigration and 
Nationality Act, as amended. (The fee of $110 shall be charged whenever 
an appeal or motion is filed by or on behalf of two or more aliens and 
all such aliens are covered by one decision. When a motion to reopen or 
reconsider is made concurrently with any application for relief under 
the immigration laws for which a fee is chargeable, the fee of $110 will 
be charged when the motion is filed and, if the motion is granted, the 
requisite fee for filing the application for relief will be charged and 
must be paid within the time specified in order to complete the 
application.)--$110.
Motion. For filing a motion to reopen or reconsider any decision under 
the immigration laws in any type of proceeding over which the Board of 
Immigration Appeals does not have appellate jurisdiction. No fee shall 
be charged for a motion to reopen or reconsider a decision on an 
application for relief for which no fee is chargeable or for any motion 
to reopen or reconsider made concurrently with any initial application 
for relief under the immigration laws for which no fee is chargeable. 
(The fee of $110 shall be charged whenever an appeal or motion is filed 
by or on behalf of two or more aliens and all such aliens are covered by 
one decision. When a motion to reopen or reconsider is made concurrently 
with any application for relief under the immigration laws for which a 
fee is chargeable, the fee of $110 will be charged when the motion is 
filed and, if the motion is granted, the requisite fee for filing the 
application for relief will be charged and must be paid within the time 
specified in order to complete the application.)--$110.
Request.  For special statistical tabulations a charge will be made to 
cover the cost of the work involved--Cost
Request.  For set of monthly, semiannual, or annual tables entitled 
``Passenger Travel Reports via Sea and Air'' \1\--$7.00

    \1\ Available from Immigration & Naturalization Service for years 
1975 and before. Later editions are available from the United States 
Department of Transportation, contact: United States Department of 
Transportation, Transportation Systems Center, Kendall Sqaure, 
Cambridge, MA 02142.

Request. For classification of a citizen of Canada to be engaged in 
business activities at a professional level pursuant to section

[[Page 101]]

214(e) of the Act (Chapter 16 of the North American Free Trade 
Agreement)--$50.00
Request.  For requesting authorization for parole of an alien into the 
United States--$65.00.

    (2) Fees for production or disclosure of records under 5 U.S.C. 552 
shall be charged in accordance with the regulations of the Department of 
Justice, 28 CFR 16.10.
    (c) Waiver of fees. (1) Except as otherwise provided in this 
paragraph and in Sec. 3.3(b) of this chapter, any of the fees prescribed 
in paragraph (b) of this section relating to applications, petitions, 
appeals, motions, or requests may be waived by the Immigration Judge in 
any case under his/her jurisdiction in which the alien or other party 
affected is able to substantiate that he or she is unable to pay the 
prescribed fee. The person seeking a fee waiver must file his or her 
affidavit, or unsworn declaration made pursuant to 28 U.S.C. 1746, 
asking for permission to prosecute without payment of fee of the 
applicant, petition, appeal, motion, or request, and stating his or her 
belief that he or she is entitled to or deserving of the benefit 
requested and the reasons for his or her inability to pay. The officer 
of the Service having jurisdiction to render a decision on the 
application, petition, appeal, motion, or request may, in his 
discretion, grant the waiver of fee. Fees for ``Passenger Travel Reports 
via Sea and Air'' and for special statistical tabulations may not be 
waived. The payment of the additional sum prescribed by section 245(i) 
of the Act when applying for adjustment of status under section 245 of 
the Act may not be waived. The payment of the additional $500 fee 
prescribed by section 214(c)(9) of the Act when applying for petition 
for nonimmigrant worker under section 101(a)(15)(H)(i)(b) of the Act may 
not be waived.
    (2) Fees under the Freedom of Information Act, as amended, may be 
waived or reduced where the Service determines such action would be in 
the public interest because furnishing the information can be considered 
as primarily benefiting the general public.
    (3) When the prescribed fee is for services to be performed by the 
clerk of court under section 344(a) of the Act, the affidavit for waiver 
of the fee shall be filed with the district director or officer in 
charge of the Service having administrative jurisdiction over the place 
in which the court is located at least 7 days prior to the date the fee 
is required to be paid. If the waiver is granted, there shall be 
delivered to the clerk of court by a Service representative on or before 
the date the fee is required to be paid, a notice prepared on Service 
letterhead and signed by the officer granting the waiver, that the fee 
has been waived pursuant to this paragraph.
    (4) Fees for applications for Temporary Protected Status may be 
waived pursuant to 8 CFR 240.20.
    (d) Authority to certify records. Whenever authorized under 5 U.S.C. 
552 or any other law to furnish information from records to persons 
entitled thereto, the following officials, or their designees authorized 
in writing as specified below, have authority to make certification, as 
follows:
    (1) The Associate Commissioner, Information Systems, the Assistant 
Commissioner, Records Systems Division, the Director, Records Management 
Branch, or their designee, authorized in writing to make certification 
in their absence--copies of files, documents, and records in the custody 
of the Central Office.
    (2) A regional commissioner, or district director, or the designee 
of either, authorized in writing to make certification in his absence--
copies of files, documents, and records in the custody of his office.
    (3) The Immigration and Naturalization Service Program Coordinator, 
El Paso Intelligence Center, or the designee, authorized in writing to 
make certification in event of the Program Coordinator's absence--copies 
of files, documents, and records of the Immigration and Naturalization 
Service in the custody of that office.
    (4) The Assistant Commissioner, Records Systems Division, the 
Director, Records Management Branch, or the Chief, Records Operations 
Section, Central Office, or their designee, authorized in writing to 
make certification in their absence--the non-existence of an official 
Service records.

[38 FR 35296, Dec. 27, 1973]

[[Page 102]]


    Editorial Note: For Federal Register citations affecting Sec. 103.7, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.

    Effective Date Note: At 65 FR 43531, July 13, 2000, in Sec. 103.7, 
(b)(1) was amended by adding the entry for ``Form ETA-9079'' immediately 
following ``Form EOIR-42'', effective Nov. 13, 2000. At 65 FR 67617, 
Nov. 13, 2000, the effective date of the addition was delayed until Oct. 
1, 2001. For the convenience of the user, the added text is set forth as 
follows:

Sec. 103.7  Fees.

                                * * * * *

    (b) * * * (1) * * *

                                * * * * *

    Form ETA-9079. The fee for filing for a labor certification is 
designated in 20 CFR 655.100. The fee for filing the Service's petition 
portion of Form ETA-9079, to classify an agricultural worker as an H-2A 
nonimmigrant, is $110. The total fee will be the sum of DOL labor 
certification fee and the Service's fee. There is no additional fee if 
supplemental Form(s) ETA-9079W is filed with Form ETA-9079. A fee of 
$120 is required to file supplemental Form ETA-9079M (the equivalent to 
Form I-824).

                                * * * * *



Sec. 103.8  Definitions pertaining to availability of information under the Freedom of Information Act.

    Sections 103.8, 103.9, and 103.10 of this part comprise the Service 
regulations under the Freedom of Information Act, 5 U.S.C. 552. These 
regulations supplement those of the Department of Justice, 28 CFR part 
16, subpart A. As used in this part the following definitions shall 
apply:
    (a) The term access means providing a copy of the record requested 
or affording the opportunity for an in-person review of the original 
record or a copy thereof. The determination to permit an in-person 
review is discretionary and will only be made when specifically 
requested. Whenever providing in-person access will unreasonably disrupt 
the normal operations of an office, the requester may be sent a copy of 
the requested records that are nonexempt in lieu of the in-person 
review.
    (b) The term decision means a final written determination in a 
proceeding under the Act accompanied by a statement of reasons. Orders 
made by check marks, stamps, or brief endorsements which are not 
supported by a reasoned explanation, or those incorporating preprinted 
language on Service forms are not decisions.
    (c) The term records includes records of proceedings, documents, 
reports, and other papers maintained by the Service.
    (d) The term record of proceeding is the official history of any 
hearing, examination, or proceeding before the Service, and in addition 
to the application, petition or other initiating document, includes the 
transcript of hearing or interview, exhibits, and any other evidence 
relied upon in the adjudication; papers filed in connection with the 
proceedings, including motions and briefs; the Service officer's 
determination; notice of appeal or certification; the Board or other 
appellate determination; motions to reconsider or reopen; and documents 
submitted in support of appeals, certifications, or motions.

[32 FR 9623, July 4, 1967, as amended at 40 FR 7236, Feb. 19, 1975; 52 
FR 2942, Jan. 29, 1987; 58 FR 31148, June 1, 1993]



Sec. 103.9  Availability of decisions and interpretive material under the Freedom of Information Act.

    (a) Precedent decisions. There may be purchased from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402, bound volumes of designated precedent decisions 
entitled ``Administrative Decisions Under Immigration and Nationality 
Laws of the United States,'' each containing a cumulative index. Prior 
to publication in volume from current precedent decisions, known as 
interim decisions, are obtainable from the Superintendent of Documents 
on a single copy or yearly subscription basis. Bound volumes and current 
precedent decisions may be read at principal Service offices.
    (b) Unpublished decisions. Each district director in the United 
States will maintain copies of unpublished Service and Board decisions 
relating to proceedings in which the initial decision was made in his 
district. Each regional commissioner will maintain copies of

[[Page 103]]

unpublished decisions made by him. The Central Office will maintain 
copies on a national basis of unpublished Service decisions.
    (c) Deletion of identifying details. To the extent that information 
in decisions is exempt from disclosure under the Freedom of Information 
Act (5 U.S.C. 552), the deciding officer shall provide for deletion of 
identifying details, as appropriate, from copies of decisions made 
available to the public.
    (d) Statements of policy, interpretations, manuals, instructions to 
staff. Statements of policy, interpretations, and those manuals and 
instructions to staff (or portions thereof), affecting the public, will 
be made available at district offices in the United States and at the 
Central Office with an accompanying index of any material which is 
issued on or after July 4, 1967.
    (e) Public reading rooms. The Central Office and each district 
office in the United States will provide a reading room or reading area 
where the material described in this section will be made available to 
the public. Additional material will be made available in the public 
reading rooms, including the immigration and nationality laws, title 8 
of the United States Code Annotated, title 8 of the Code of Federal 
Regulations--Chapter I, a complete set of the forms listed in parts 299 
and 499 of this chapter, and the Department of State Foreign Affairs 
Manual, Volume 9--Visas. Fees will not be charged for providing access 
to any of these materials, but fees in accordance with Sec. 103.7(b) 
will be charged for furnishing copies.

[32 FR 9623, July 4, 1967, as amended at 36 FR 20151, Oct. 16, 1971; 40 
FR 7237, Feb. 19, 1975; 48 FR 49652, Oct. 27, 1983]



Sec. 103.10  Requests for records under the Freedom of Information Act.

    (a) Place and manner of requesting records--(1) Place. Records 
should be requested from the office that maintains the records sought, 
if known, or from the Headquarters of the Immigration and Naturalization 
Service, 425 I Street, NW., Washington, DC 20536. Records are maintained 
in the Headquarters, regional offices, service centers, district offices 
and the following suboffices: Agana, Guam; Albany, NY; Charlotte, NC; 
Cincinnati, OH; Hartford, CT; Indianapolis, IN; Las Vegas, NV; 
Louisville, KY; Memphis, TN; Milwaukee, WI; Norfolk, VA; Pittsburgh, PA; 
Providence, RI; Reno, NV; St. Louis, MO; Salt Lake City, UT; Spokane, 
WA; and St. Albans, VT. In certain cases, a district director may 
designate another Service office as a file control office. For locations 
of the Service's regional offices, service centers, district offices, 
and sub-offices see 8 CFR 100.4.
    (2) Manner of requesting records. All Freedom of Information Act 
requests must be in writing. Requests may be submitted in person or by 
mail. If a request is made by mail, both the envelope and its contents 
must be clearly marked: ``FREEDOM OF INFORMATION REQUEST'' or 
``INFORMATION REQUEST.'' Any request for information not marked and 
addressed as specified will be so marked by Service personnel as soon as 
it is properly identified and shall be forwarded immediately to the 
appropriate office designated to control Freedom of Information Act 
requests. A request will not be deemed to have been received for 
purposes of the time period under 5 U.S.C. 552(a)(6) until the request 
has been received by the appropriate office, or would have been received 
with the exercise of due diligence by Service personnel. Service Form G-
639, Freedom of Information/Privacy Act Request, may be used for rapid 
identification as a Freedom of Information matter and to ensure 
expeditous handling; however, a request may be submitted in any written 
form. Each request made under this section pertaining to the 
availability of a record must describe the record with sufficient 
specificity with respect to names, dates, subject matter and location to 
permit it to be identified and located. A request for all records 
falling within a reasonably specific category shall be regarded as 
reasonably described if the description enables the records to be 
identified by any process not unreasonably burdensome. If it is 
determined that the request does not reasonably describe the records 
sought, the response rejecting the request on that ground shall specify 
the reason why the request failed to meet requirements and shall extend 
to

[[Page 104]]

the requester an opportunity to confer with Service personnel to 
reformulate the request. Individuals seeking access to records about 
themselves by mail shall establish their identity by submitting a 
notarized signature along with their address, date of birth, place of 
birth, and alien or employee identification number if applicable.
    (b) Authority to grant and deny requests--(1) Grant or deny. The 
Associate Commissioner for Information Resources Management, regional 
administrators, district directors, service center directors, and heads 
of suboffices specified in paragraph (a)(1) of this section, or their 
designees, may grant or deny requests under exemptions in 5 U.S.C. 552 
(b) and (c).
    (2) [Reserved]
    (3) Authority to state that a record cannot be located or does not 
exist. The head of any office specified in paragraph (a)(1) of this 
section has authority to notify a requester that a record cannot be 
located from the information supplied, or is known to have been 
destroyed or otherwise disposed of.
    (c) Prompt response--(1) Response within 10 days. Within 10 days 
(excluding Saturdays, Sundays, and legal holidays) of the receipt of a 
request by the Service (or in the case of an improperly addressed 
request, of its receipt by the appropriate office as specified in 
paragraph (a) of this section), the authorized Service official shall 
either comply with or deny the request unless an extension of time is 
requested as required under 28 CFR 16.1(d). A request improperly 
addressed will not be deemed to have been received for purposes of 5 
U.S.C 552 (a)(6) until it has been or would have been received by the 
appropriate office with the exercise of due diligence by Service 
personnel.
    (2) Treatment of delay as a denial. If no substantive reply is made 
at the end of the 10 working day period, and any properly invoked 
extension period, requesters may deem their request to be denied and 
exercise their right to appeal in accordance with 28 CFR 16.8 and 
paragraph (d)(3) of this section.
    (d) Disposition of requests--(1) Form of grant. When a requested 
record is available, the responsible office shall notify the requester 
when and where the record will be available. The notification shall also 
advise the requester of any applicable fees under 28 CFR 16.10. The 
Service shall have fulfilled its duty to grant access whenever it 
provides a copy of the record, or, at its discretion, makes the original 
record or a copy available for in-person review in response to an 
express request for such review. In-person review is discretionary and 
shall not be granted when doing so would unreasonably disrupt the normal 
operations of a Service office.
    (2) Form of denial. A reply denying a written request for a record 
in whole or in part shall be in writing, signed by one of the officials 
specified in paragraph (b)(1) of this section. The reply shall include a 
reference to the specific exemption under the Freedom of Information Act 
authorizing withholding of the records. The notice of denial shall 
contain a brief explanation of how the exemption applies to the record 
withheld and, if the deciding official considers it appropriate, a 
statement of why the exempt record is being withheld. The notice of 
denial shall include a statement of the right of appeal to the Attorney 
General under 28 CFR 16.8, and that judicial review will thereafter be 
available in the district in which the requester resides or has a 
principle place of business, or the district in which the agency records 
are situated, or the District of Columbia.
    (3) Right of appeal. When a request for records has been denied in 
whole or in part, the requester may, within 30 days of its receipt, 
appeal the denial to the Assistant Attorney General, Office of Legal 
Policy, (Attention: Office of Information and Privacy), Department of 
Justice, Washington, DC 20530. Both the envelope and letter must be 
clearly marked: ``FREEDOM OF INFORMATION APPEAL'' or ``INFORMATION 
APPEAL.''
    (e) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a 
requester automatically agrees to pay fees up to $25.00 by filing a 
Freedom of Information Act request unless a waiver or reduction of fees 
is sought. Accordingly, all letters of acknowledgment must

[[Page 105]]

confirm the requester's obligation to pay.

[40 FR 7237, Feb. 19, 1975, as amended at 41 FR 34938, Aug. 18, 1976; 42 
FR 15408, March 22, 1977; 43 FR 22332, May 25, 1978; 44 FR 23514, Apr. 
20, 1979; 48 FR 49652, Oct. 27, 1983; 48 FR 51430, Nov. 9, 1983; 52 FR 
2942, Jan. 29, 1987; 58 FR 31148, 31149, June 1, 1993]



Sec. 103.11  Business information.

    Business information provided to the Service by a business submitter 
shall not be disclosed pursuant to a Freedom of Information Act request 
except in accordance with 28 CFR 16.7.

[58 FR 31149, June 1, 1993]



Sec. 103.12  Definition of the term ``lawfully present'' aliens for purposes of applying for Title II Social Security benefits under Public Law 104-193.

    (a) Definition of the term an ``alien who is lawfully present in the 
United States.'' For the purposes of section 401(b)(2) of Pub. L. 104-
193 only, an ``alien who is lawfully present in the United States'' 
means:
    (1) A qualified alien as defined in section 431(b) of Pub. L. 104-
193;
    (2) An alien who has been inspected and admitted to the United 
States and who has not violated the terms of the status under which he 
or she was admitted or to which he or she has changed after admission;
    (3) An alien who has been paroled into the United States pursuant to 
section 212(d)(5) of the Act for less than 1 year, except:
    (i) Aliens paroled for deferred inspection or pending exclusion 
proceedings under 236(a) of the Act; and
    (ii) Aliens paroled into the United States for prosecution pursuant 
to 8 CFR 212.5(a)(3);
    (4) An alien who belongs to one of the following classes of aliens 
permitted to remain in the United States because the Attorney General 
has decided for humanitarian or other public policy reasons not to 
initiate deportation or exclusion proceedings or enforce departure:
    (i) Aliens currently in temporary resident status pursuant to 
section 210 or 245A of the Act;
    (ii) Aliens currently under Temporary Protected Status (TPS) 
pursuant to section 244 of the Act;
    (iii) Cuban-Haitian entrants, as defined in section 202(b) Pub. L. 
99-603, as amended;
    (iv) Family Unity beneficiaries pursuant to section 301 of Pub. L. 
101-649, as amended;
    (v) Aliens currently under Deferred Enforced Departure (DED) 
pursuant to a decision made by the President;
    (vi) Aliens currently in deferred action status pursuant to Service 
Operations Instructions at OI 242.1(a)(22);
    (vii) Aliens who are the spouse or child of a United States citizen 
whose visa petition has been approved and who have a pending application 
for adjustment of status;
    (5) Applicants for asylum under section 208(a) of the Act and 
applicants for withholding of removal under section 241(b)(3) of the Act 
or under the Convention Against Torture who have been granted employment 
authorization, and such applicants under the age of 14 who have had an 
application pending for at least 180 days.
    (b) Non-issuance of an Order to Show Cause and non-enforcement of 
deportation and exclusion orders. An alien may not be deemed to be 
lawfully present solely on the basis of the Service's decision not to, 
or failure to, issue an Order to Show Cause or solely on the basis of 
the Service's decision not to, or failure to, enforce an outstanding 
order of deportation or exclusion.

[61 FR 47041, Sept. 6, 1996, as amended at 63 FR 63595, Nov. 16, 1998; 
64 FR 8487, Feb. 19, 1999]

    Effective Date Note: At 65 FR 82255, Dec. 28, 2000, Sec. 103.12 was 
amended by revising the reference to ``212.5(a)(3)'' to read 
``212.5(b)(3)'' in paragraph (a)(3)(ii), effective Jan. 29, 2001.



Sec. 103.20  Purpose and scope.

    (a) Sections 103.20 through 103.36 comprise the regulations of the 
Service implementing the Privacy Act of 1974, Public Law 93-597. The 
regulations apply to all records contained in systems of records 
maintained by the Service which are identifiable by individual name or 
identifier and which are retrieved by individual name or identifier, 
except those personnel records governed by regulations of the Office of 
Personnel Management. The regulations set forth the procedures by which 
individuals may seek access to records

[[Page 106]]

pertaining to themselves and request correction of those records. The 
regulations also set forth the requirements applicable to Service 
employees maintaining, collecting, using or disseminating such records.
    (b) The Associate Commissioner, Information Systems, shall ensure 
that the provisions of Secs. 103.20 through 103.36 of this title and 28 
CFR 16.40 through 16.58, and any revisions, are brought to the attention 
of and made available to:
    (1) Each employee at the time of issuance of the regulations and at 
the time of any amendments; and
    (2) Each new employee at the time of employment.
    (c) The Associate Commissioner, Information Systems, shall be 
responsible for ensuring that employees of the Service are trained in 
the obligations imposed by the Privacy Act of 1974 (5 U.S.C 522a) and by 
these regulations.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49652, Oct. 27, 1983; 
58 FR 31149, June 1, 1993]



Sec. 103.21  Access by individuals to records maintained about them.

    (a) Access to available records. An individual who seeks access to 
records about himself or herself in a system of records must submit a 
written request in person or by mail to the Freedom of Information/
Privacy Act Officer at the location where the records are maintained. If 
the location is unknown, the request may be submitted to the nearest 
Service office or to the Headquarters FOIA/PA Officer, 425 I Street, 
NW., Washington, DC 20536. The outside of the envelope should be marked 
``Privacy Act Request.'' A Form G-639, Freedom of Information/Privacy 
Act Request may be used for convenience and to facilitate identification 
of the record requested. However, a request may be made in any written 
form and should clearly identity the record sought by the name and any 
other personal identifiers for the individual (such as the alien file 
number or Social Security Account Number), date and place of birth, and 
type of file in which the record is believed to be located.
    (b) Verification of identity. The following standards are applicable 
to any individual who requests records concerning himself, unless other 
provisions for identity verification are specified in the published 
notice pertaining to the particular system of records.
    (1) An individual seeking access to records about himself in person 
shall establish his identity by the presentation of a single document 
bearing a photograph (such as a passport, Permanent Resident Card or 
identification badge) or by the presentation of two items of 
identification which do not bear a photograph but do bear both a name 
and address (such as a driver's license, or credit card).
    (2) Individuals seeking access to records about themselves by mail 
shall establish their identify by submitting a notarized signature along 
with their address, date of birth, place of birth, and alien or employee 
identification number if applicable. Form DOJ 361, Certification of 
Identity, may be obtained from any Service office and used to obtain the 
notarized signature needed to verify identity.
    (c) Verification of guardianship. The parent or guardian of a child 
or of a person judicially determined to be incompetent and seeking to 
act on behalf of such child or incompetent, shall, in addition to 
establishing his own identity, establish the identity of the child or 
other person he represents as required in paragraph (b) of this section, 
and establish his own parentage or guardianship of the subject of the 
record by furnishing either a copy of a birth certificate showing 
parentage or a court order establishing the guardianship.
    (d) Accompanying persons. An individual seeking to review records 
pertaining to himself may be accompanied by another individual of his 
own choosing. Both the individual seeking access and the individual 
accompanying him shall be required to sign the required form indicating 
that the Service is authorized to discuss the contents of the subject 
record in the presence of both individuals.
    (e) Specification of records sought. Requests for access to records, 
either in person or by mail, shall describe the nature of the records 
sought, the approximate dates covered by the record, the system in which 
it is thought to be included as described in the ``Notice of

[[Page 107]]

Systems of Records'' published in the Federal Register, and the identity 
of the individual or office of the Service having custody of the system 
of records. In addition, the published ``Notice of Systems of Records'' 
for individual systems may include further requirements of 
specification, where necessary, to retrieve the individual record from 
the system.
    (f) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a 
requester automatically agrees to pay fees up to $25.00 by filing a 
Privacy Act request unless a waiver or reduction of fees is sought. 
Accordingly, all letters of acknowledgement must confirm the requester's 
obligation to pay.

[40 FR 44481, Sept. 26, 1975; 40 FR 46092, Oct. 6, 1975, as amended at 
42 FR 33025, June 29, 1977; 48 FR 49653, Oct. 27, 1983; 58 FR 31149, 
June 1, 1993; 63 FR 70315, Dec. 21, 1998]



Sec. 103.22  Records exempt in whole or in part.

    (a) When individuals request records about themselves which are 
exempt from access pursuant to the Privacy Act exemptions in 5 U.S.C. 
552a(d)(5), (j) or (k), their requests shall also be considered under 
the Freedom of Information Act, 5 U.S.C. 552, and, unless the records 
are exempt under both Acts, the request shall be granted. If exemptions 
under both Acts permit the denial of the records sought and there is 
good reason to invoke the exemptions, the individual shall be provided a 
denial of his/her request in writing with the governing exemptions 
cited. If the disclosure of the existence of a criminal law enforcement 
proceeding record could itself interfere with a pending law enforcement 
proceeding of which there is reason to believe the subject is unaware, 
the Service may, during only such time as the circumstance continues, 
treat the records as not subject to the requirements of 5 U.S.C. 552.
    (b) Individual requests for access to records which have been 
exempted from access pursuant to 5 U.S.C. 552a(k) shall be processed as 
follows:
    (1) A request for information classified by the Service under 
Executive Order 12356 on National Security Information requires the 
Service to review the information to determine whether it continues to 
warrant classification under the criteria of the Executive Order. 
Information which no longer warrants classification shall be 
declassified and made available to the individual, if not otherwise 
exempt. If the information continues to warrant classification, the 
individual shall be advised that the information sought is classified; 
that it has been reviewed and continues to warrant classification; and 
that it has been exempted from access under 5 U.S.C. 552a(k)(1). 
Information which has been exempted under 5 U.S.C. 552a(j) and which is 
also classified, shall be reviewed as required by this paragraph but the 
response to the individual shall be in the form prescribed by paragraph 
(a) of this section.
    (2) Requests for information which has been exempted from disclosure 
pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the manner 
provided in paragraph (a) of this section unless a review of the 
information indicates that the information has been used or is being 
used to deny the individual any right, privilege or benefit for which he 
is eligible or to which he would otherwise be entitled under Federal 
law. In that event, the individual shall be advised of the existence of 
the record and shall be provided the information except to the extent it 
would identify a confidential source. If and only if information 
identifying a confidential source can be deleted or the pertinent parts 
of the record summarized in a manner which protects the identity of the 
confidential source, the document with deletions made or the summary 
shall be furnished to the requester.
    (3) Information compiled as part of an employee background 
investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5) 
shall be made available to an individual upon request except to the 
extent that it identifies a confidential source. If and only if 
information identifying a confidential source can be deleted or the 
pertinent parts of the record summarized in a manner which protects the 
identity of the confidential source, the document with deletions made or 
the summary shall be furnished to the requester.
    (4) Testing or examination material which has been exempted pursuant 
to 5

[[Page 108]]

U.S.C. 552a(k)(6) shall not be made available to an individual if 
disclosure would compromise the objectivity or fairness of the testing 
or examination process but shall be made available if no such compromise 
possibility exists.
    (5) The Service records which are exempted and the reasons for the 
exemptions are enumerated in 28 CFR 16.99.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 
58 FR 31149, June, 1, 1993]



Sec. 103.23  Special access procedures.

    (a) Records of other agencies. When information sought from a system 
of records of the Service includes information from other agencies or 
components of the Department of Justice that has been classified under 
Executive Order 12356, the request and the requested documents shall be 
referred to the appropriate agency or other component for classification 
review and processing. Only with the consent of the responsible agency 
or component, may the requester be informed of the referral as specified 
in section 3.4(f) of E.O. 12356.
    (b) Medical records. When an individual requests medical records 
concerning himself, which are not otherwise exempt from disclosure, the 
responsible official as specified in Sec. 103.10(a) of this part shall, 
if deemed necessary, advise the individual that records will be provided 
only to a physician designated in writing by the individual. Upon 
receipt of the designation, the responsible official as specified in 
Sec. 103.10(a) of this part will permit the physician to review the 
records or to receive copies of the records by mail, upon proper 
verification of identity. The determination of which records should be 
made available directly to the individual and which records should not 
be disclosed because of possible harm to the individual shall be made by 
the physician.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 
58 FR 31149, 31150, June, 1, 1993]



Sec. 103.24  Requests for accounting of record disclosure.

    At the time of his request for access or correction or at any other 
time, an individual may request an accounting of disclosures made of his 
record outside the Department of Justice. Requests for accounting shall 
be directed to the appropriate responsible official as specified in 
Sec. 103.10(a) of this part listed in the ``Notice of Systems of 
Records''. Any available accounting, whether kept in accordance with the 
requirements of the Privacy Act or under procedures established prior to 
September 27, 1975, shall be made available to the individual except 
that an accounting need not be made available if it relates to: (a) A 
disclosure with respect to which no accounting need be kept (see 
Sec. 103.30(c) of this part); (b) A disclosure made to a law enforcement 
agency pursuant to 5 U.S.C. 552a(b)(7); (c) An accounting which has been 
exempted from disclosure pursuant to 5 U.S.C. 552a (j) or (k).

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.25  Notice of access decisions; time limits.

    (a) Responsibility for notice. The responsible official as specified 
in Sec. 103.10(a) of this part has responsibility for determining 
whether access to records is available under the Privacy Act and for 
notifying the individual of that determination in accordance with these 
regulations. If access is denied because of an exemption, the 
responsible person shall notify the individual that he may appeal that 
determination to the Deputy Attorney General within thirty working days 
of the receipt of the determination.
    (b) Time limits for access determinations. The time limits provided 
by 28 CFR 16.1(d) shall be applicable to requests for access to 
information pursuant to the Privacy Act of 1974.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.26  Fees for copies of records.

    The fees charged by the Service under the Privacy Act shall be those 
specified in 28 CFR 16.47. Remittances shall be made in accordance with 
Sec. 103.7(a) of this part.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]

[[Page 109]]



Sec. 103.27  Appeals from denials of access.

    An individual who has been denied access by the Service to the 
records concerning him may appeal that decision in the manner prescribed 
in 28 CFR 16.48.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.28  Requests for correction of records.

    (a) How made. A request for amendment or correction is made by the 
individual concerned, either in person or by mail, by addressing the 
written request to the FOIA/PA Officer at the location where the record 
is maintained. The requester's identity must be established as provided 
in Sec. 103.21 of this part. The request must indicate the particular 
record involved, the nature of the correction sought, and the 
justification. A request made by mail should be addressed to the FOIA/PA 
Officer at the location where the system of records is maintained and 
the request and envelope must be clearly marked ``Privacy Correction 
Request.'' Where the requester cannot determine the precise location of 
the system of records or believes that the same record appears in more 
than one system, the request may be addressed to the Headquarters FOIA/
PA Officer, Immigration and Naturalization Service, 425 I Street, NW., 
Washington, DC 20536. That officer will assist the requester in 
identifying the location of the records.
    (b) Initial determination. Within 10 working days of the receipt of 
the request, the appropriate Service official shall advise the requester 
that the request has been received. If a correction is to be made, the 
requester shall be advised of the right to obtain a copy of the 
corrected record upon payment of the standard fee, established in 28 CFR 
16.47. If a correction or amendment is refused, in whole or in part, the 
requester shall be given the reasons and advised of the right to appeal 
to the Assistant Attorney General under 28 CFR 16.50.
    (c) Appeals. A refusal, in whole or in part, to amend or correct a 
record may be appealed as provided in 28 CFR 16.50.
    (d) Appeal determinations. 28 CFR 16.50 provides for appeal 
determinations.
    (e) Statements of disagreement. Statements of disagreement may be 
furnished by the individual in the manner prescribed in 28 CFR 16.50.
    (f) Notices of correction or disagreement. When a record has been 
corrected, the responsible official as specified in Sec. 103.10(a) of 
this part shall, within thirty working days thereof, advise all prior 
recipients of the record whose identity can be determined pursuant to 
the accounting required by the Privacy Act or any other accounting 
previously made, of the correction. Any dissemination of a record after 
the filing of a statement of disagreement shall be accompanied by a copy 
of that statement. Any statement of the Service giving reasons for 
refusing to correct shall be included in the file.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 
48 FR 51431, Nov. 9, 1983; 58 FR 31150, June, 1, 1993]



Sec. 103.29  Records not subject to correction.

    The following records are not subject to correction or amendment by 
individuals:
    (a) Transcripts or written statements made under oath;
    (b) Transcripts of Grand Jury Proceedings, judicial or quasi-
judicial proceedings which form the official record of those 
proceedings;
    (c) Pre-sentence reports comprising the property of the courts but 
maintained in Service files; and
    (d) Records duly exempted from correction by notice published in the 
Federal Register.



Sec. 103.30  Accounting for disclosures.

    (a) An accounting of each disclosure of information for which 
accounting is required (see Sec. 103.24 of this part) shall be attached 
to the relating record. A copy of Form G-658, Record of Information 
Disclosure (Privacy Act), or other disclosure document shall be used for 
this accounting. The responsible official as specified in Sec. 103.10(a) 
of this part shall advise the requester, promptly upon request as 
described in Sec. 103.24, of the persons or agencies outside the 
Department of Justice to

[[Page 110]]

which records concerning the requester have been disclosed.
    (b) Accounting records, at a minimum, shall include the 
identification of the particular record disclosed, the name and address 
of the person or agency to which disclosed, and the date of the 
disclosure. Accounting records shall be maintained for at least 5 years, 
or until the record is destroyed or transferred to the Archives, 
whichever is later.
    (c) Accounting is not required to be kept for disclosures made 
within the Department of Justice or disclosures made pursuant to the 
Freedom of Information Act.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 
58 FR 31150, June, 1, 1993]



Sec. 103.31  Notices of subpoenas and emergency disclosures.

    (a) Subpoenas. When records concerning an individual are subpoenaed 
by a Grand Jury, court, or a quasijudicial agency, the official served 
with the subpoena shall be responsible for assuring that notice of its 
issuance is provided to the individual. Notice shall be provided within 
10 days of the service of the subpoena or, in the case of a Grand Jury 
subpoena, within 10 days of its becoming a matter of public record. 
Notice shall be mailed to the last known address of the individual and 
shall contain the following information: The date the subpoena is 
returnable, the court in which it is returnable, the name and number of 
the case or proceeding, and the nature of the information sought. Notice 
of the issuance of subpoenas is not required if the system of records 
has been exempted from the notice requirement pursuant to 5 U.S.C. 
552a(j), by a Notice of Exemption published in the Federal Register.
    (b) Emergency disclosures. If information concerning an individual 
has been disclosed to any person under compelling circumstances 
affecting health or safety, the individual shall be notified at his last 
known address within 10 working days of the disclosure. Notification 
shall include the following information: The nature of the information 
disclosed, the person or agency to whom it was disclosed, the date of 
the disclosure, and the compelling circumstances justifying the 
disclosure. Notification shall be given by the officer who made or 
authorized the disclosure.



Sec. 103.32  Information forms.

    (a) Review of forms. The Service shall be responsible for the review 
of forms it uses to collect information from and about individuals.
    (b) Scope of review. The Service Forms Control Unit shall review 
each form to assure that it complies with the requirements of 28 CFR 
16.52.



Sec. 103.33  Contracting record systems.

    Any contract by the Service for the operation of a record system 
shall be in compliance with 28 CFR 16.55.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.34  Security of records systems.

    The security of records systems shall be in accordance with 28 CFR 
16.54.



Sec. 103.35  Use and collection of Social Security numbers.

    The use and collection of Social Security numbers shall be in 
accordance with 28 CFR 16.56.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.36  Employee standards of conduct with regard to privacy.

    Service employee standards of conduct with regard to privacy shall 
be in compliance with 28 CFR 16.57.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]

                          PART 109  [RESERVED]



PART 204--IMMIGRANT PETITIONS--Table of Contents




Sec.
204.1  General information about immediate relative and family-sponsored 
          petitions.
204.2  Petitions for relatives, widows and widowers, and abused spouses 
          and children.
204.3  Orphans.
204.4  Amerasian child of a United States citizen.
204.5  Petitions for employment-based immigrants.

[[Page 111]]

204.6  Petitions for employment creation aliens.
204.7  Preservation of benefits contained in savings clause of 
          Immigration and Nationality Act Amendments of 1976.
204.8  Petitions for employees of certain United States businesses 
          operating in Hong Kong.
204.9  Special immigrant status for certain aliens who have served 
          honorably (or are enlisted to serve) in the Armed Forces of 
          the United States for at least 12 years.
204.10  Petitions by, or for, certain scientists of the Commonwealth of 
          Independent States or the Baltic states.
204.11  Special immigrant status for certain aliens declared dependent 
          on a juvenile court (special immigrant juvenile).
204.12  How can second-preference immigrant physicians be granted a 
          national interest waiver based on service in a medically 
          underserved area or VA facility?

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255, 
1641; 8 CFR part 2.



Sec. 204.1  General information about immediate relative and family-sponsored petitions.

    (a) Types of petitions. Petitions may be filed for an alien's 
classification as an immediate relative under section 201(b) of the Act 
or as a preference immigrant under section 203(a) of the Act based on a 
qualifying relationship to a citizen or lawful permanent resident of the 
United States, as follows:
    (1) A citizen or lawful permanent resident of the United States 
petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act 
for a qualifying relative's classification as an immediate relative 
under section 201(b) of the Act or as a preference immigrant under 
section 203(a) of the Act must file a Form I-130, Petition for Alien 
Relative. These petitions are described in Sec. 204.2;
    (2) A widow or widower of a United States citizen self-petitioning 
under section 204(a)(1)(A)(ii) of the Act as an immediate relative under 
section 201(b) of the Act must file a Form I-360, Petition for 
Amerasian, Widow, or Special Immigrant. These petitions are described in 
Sec. 204.2;
    (3) A spouse or child of an abusive citizen or lawful permanent 
resident of the United States self-petitioning under section 
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act for classification as an immediate relative 
under section 201(b) of the Act or as a preference immigrant under 
section 203(a) of the Act must file a Form I-360, Petition for 
Amerasian, Widow, or Special Immigrant. These petitions are described in 
Sec. 204.2;
    (4) A citizen of the United States seeking advanced processing of an 
orphan petition must file Form I-600A, Application for Advanced 
Processing of Orphan Petition. A citizen of the United States 
petitioning under section 204(a)(1)(A)(i) of the Act for classification 
of an orphan described in section 101(b)(1)(F) of the Act as an 
immediate relative under section 201(b) of the Act must file Form I-600, 
Petition to Classify Orphan as an Immediate Relative. These applications 
and petitions are described in Sec. 204.3; and
    (5) Any person filing a petition under section 204(f) of the Act as, 
or on behalf of, an Amerasian for classification as an immediate 
relative under section 201(b) of the Act or as a preference immigrant 
under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360, 
Petition for Amerasian, Widow, or Special Immigrant. These petitions are 
described in Sec. 204.4.
    (b) Filing fee. Forms I-130 and I-360 must be accompanied by the 
appropriate fee under 8 CFR 103.7(b)(1).
    (c) Filing date. The filing date of a petition shall be the date it 
is properly filed under paragraph (d) of this section and shall 
constitute the priority date.
    (d) Proper filing. A petition shall be considered properly filed if:
    (1) It is signed by the petitioner, and
    (2) A fee has been received by the Service office or United States 
Consular office having jurisdiction.
    (3) If, during normal processing, a delay results from deficiencies 
in the initial filing, the priority date will be established only when 
the petition is properly signed by the petitioner and the fee has been 
collected by the Service. If questions arise concerning the filing of 
the petition which cannot be resolved through a check of the Service fee 
receipting system (FARES) or other fee collection system, then the 
director may consider the date of receipt of the petition to be the 
priority date.
    (e) Jurisdiction--(1) Petitioner or self-petitioner residing in the 
United States.

[[Page 112]]

The petition or self-petition must be filed with the Service office 
having jurisdiction over the place where the petitioner or self-
petitioner is residing. When the petition or self-petition is 
accompanied by an application for adjustment of status, the petition or 
self-petition may be filed with the Service office having jurisdiction 
over the beneficiary's or self-petitioner's place of residence.
    (2) Petitioner residing in certain countries abroad. The Service has 
overseas offices located in Vienna, Austria; Frankfurt, Germany; Athens, 
Greece; Hong Kong; New Delhi, India; Rome, Italy; Nairobi, Kenya; Seoul, 
Korea; Ciudad Juarez, Mexico City, Monterrey, Guadalajara, and Tijuana, 
Mexico; Manila, the Philippines; Singapore; Bangkok, Thailand; and 
London, the United Kingdom of Great Britain and Northern Ireland. If the 
petitioner resides in one of these countries, the petition must be filed 
with the Service office located in that country. The beneficiary does 
not have to reside in the same jurisdiction as the petitioner for the 
Service to accept the petition. The overseas Service officer may accept 
and adjudicate a petition filed by a petitioner who does not reside 
within the office's jurisdiction when it is established that emergent or 
humanitarian reasons for acceptance exist or when it is in the national 
interest. An overseas Service officer may not accept or approve a self-
petition filed by the spouse or child of an abusive citizen or lawful 
permanent resident of the United States under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. 
These self-petitions must be filed with the Service office in the United 
States having jurisdiction over the self-petitioner's place of residence 
in the United States.
    (3) Jurisdiction assumed by United States consular officer. United 
States consular officers assigned to visa-issuing posts abroad, except 
those in countries listed in paragraph (e)(2) of this section, are 
authorized to accept and approve a relative petition or a petition filed 
by a widow or widower if the petitioner resides in the area over which 
the post has jurisdiction, regardless of the beneficiary's residence or 
physical presence at the time of filing. In emergent or humanitarian 
cases and cases in the national interest, the United States consular 
officer may accept a petition filed by a petitioner who does not reside 
within the consulate's jurisdiction. While consular officers are 
authorized to approve petitions, they must refer any petition which is 
not clearly approvable to the appropriate Service office. Consular 
officers may consult with the appropriate Service office abroad prior to 
stateside referral, if they deem it necessary. A consular official may 
not accept or approve a self-petition filed by the spouse or child of an 
abusive citizen or lawful permanent resident of the United States under 
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with 
the Service office in the United States having jurisdiction over the 
self-petitioner's place of residence in the United States.
    (f) Supporting documentation. (1) Documentary evidence consists of 
those documents which establish the United States citizenship or lawful 
permanent resident status of the petitioner and the claimed relationship 
of the petitioner to the beneficiary. They must be in the form of 
primary evidence, if available. When it is established that primary 
evidence is not available, secondary evidence may be accepted. To 
determine the availability of primary documents, the Service will refer 
to the Department of State's Foreign Affairs Manual (FAM). When the FAM 
shows that primary documents are generally available in the country of 
issue but the petitioner claims that his or her document is unavailable, 
a letter from the appropriate registrar stating that the document is not 
available will not be required before the Service will accept secondary 
evidence. The Service will consider any credible evidence relevant to a 
self-petition filed by a qualified spouse or child of an abusive citizen 
or lawful permanent resident under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The 
self-petitioner may, but is not required to, demonstrate that preferred 
primary or secondary evidence is unavailable. The

[[Page 113]]

determination of what evidence is credible and the weight to be given 
that evidence shall be within the sole discretion of the Service.
    (2) Original documents or legible, true copies of original documents 
are acceptable. The Service reserves the right to require submission of 
original documents when deemed necessary. Documents submitted with the 
petition will not be returned to the petitioner, except when originals 
are requested by the Service. If original documents are requested by the 
Service, they will be returned to the petitioner after a decision on the 
petition has been rendered, unless their validity or authenticity is in 
question. When an interview is required, all original documents must be 
presented for examination at the interview.
    (3) Foreign language documents must be accompanied by an English 
translation which has been certified by a competent translator.
    (g) Evidence of petitioner's United States citizenship or lawful 
permanent residence--(1) Primary evidence. A petition must be 
accompanied by one of the following:
    (i) A birth certificate that was issued by a civil authority and 
that establishes the petitioner's birth in the United States;
    (ii) An unexpired United States passport issued initially for a full 
ten-year period to a petitioner over the age of eighteen years as a 
citizen of the United States (and not merely as a noncitizen national);
    (iii) An unexpired United States passport issued initially for a 
full five-year period to the petitioner under the age of eighteen years 
as a citizen of the United States (and not merely as a noncitizen 
national);
    (iv) A statement executed by a United States consular officer 
certifying the petitioner to be a United States citizen and the bearer 
of a currently valid United States passport;
    (v) The petitioner's Certificate of Naturalization or Certificate of 
Citizenship;
    (vi) Department of State Form FS-240, Report of Birth Abroad of a 
Citizen of the United States, relating to the petitioner;
    (vii) The petitioner's Form I-551, Permanent Resident Card, or other 
proof given by the Service as evidence of lawful permanent residence. 
Photocopies of Form I-551 or of a Certificate of Naturalization or 
Certificate of Citizenship may be submitted as evidence of status as a 
lawfully permanent resident or United States citizen, respectively.
    (2) Secondary evidence. If primary evidence is unavailable, the 
petitioner must present secondary evidence. Any evidence submitted as 
secondary evidence will be evaluated for authenticity and credibility. 
Secondary evidence may include, but is not limited to, one or more of 
the following documents:
    (i) A baptismal certificate with the seal of the church, showing the 
date and place of birth in the United States and the date of baptism;
    (ii) Affidavits sworn to by persons who were living at the time and 
who have personal knowledge of the event to which they attest. The 
affidavits must contain the affiant's full name and address, date and 
place of birth, relationship to the parties, if any, and complete 
details concerning how the affiant acquired knowledge of the event;
    (iii) Early school records (preferably from the first school) 
showing the date of admission to the school, the child's date and place 
of birth, and the name(s) and place(s) of birth of the parent(s);
    (iv) Census records showing the name, place of birth, and date of 
birth or age of the petitioner; or
    (v) If it is determined that it would cause unusual delay or 
hardship to obtain documentary proof of birth in the United States, a 
United States citizen petitioner who is a member of the Armed Forces of 
the United States and who is serving outside the United States may 
submit a statement from the appropriate authority of the Armed Forces. 
The statement should attest to the fact that the personnel records of 
the Armed Forces show that the petitioner was born in the United States 
on a certain date.
    (3) Evidence submitted with a self-petition. If a self-petitioner 
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),

[[Page 114]]

204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present 
primary or secondary evidence of the abuser's status, the Service will 
attempt to electronically verify the abuser's citizenship or immigration 
status from information contained in Service computerized records. Other 
Service records may also be reviewed at the discretion of the 
adjudicating officer. If the Service is unable to identify a record as 
relating to the abuser or the record does not establish the abuser's 
immigration or citizenship status, the self-petition will be adjudicated 
based on the information submitted by the self-petitioner.
    (h) Requests for additional documentation. When the Service 
determines that the evidence is not sufficient, an explanation of the 
deficiency will be provided and additional evidence will be requested. 
The petitioner will be given 60 days to present additional evidence, to 
withdraw the petition, to request a decision based on the evidence 
submitted, or to request additional time to respond. If the director 
determines that the initial 60-day period is insufficient to permit the 
presentation of additional documents, the director may provide an 
additional 60 days for the submission. The total time shall not exceed 
120 days, unless unusual circumstances exist. Failure to respond to a 
request for additional evidence will result in a decision based on the 
evidence previously submitted.

[57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993; 
61 FR 13072, 13073, Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998]



Sec. 204.2  Petitions for relatives, widows and widowers, and abused spouses and children.

    (a) Petition for a spouse--(1) Eligibility. A United States citizen 
or alien admitted for lawful permanent residence may file a petition on 
behalf of a spouse.
    (i) Marriage within five years of petitioner's obtaining lawful 
permanent resident status. (A) A visa petition filed on behalf of an 
alien by a lawful permanent resident spouse may not be approved if the 
marriage occurred within five years of the petitioner being accorded the 
status of lawful permanent resident based upon a prior marriage to a 
United States citizen or alien lawfully admitted for permanent 
residence, unless:
    (1) The petitioner establishes by clear and convincing evidence that 
the marriage through which the petitioner gained permanent residence was 
not entered into for the purposes of evading the immigration laws; or
    (2) The marriage through which the petitioner obtained permanent 
residence was terminated through death.
    (B) Documentation. The petitioner should submit documents which 
cover the period of the prior marriage. The types of documents which may 
establish that the prior marriage was not entered into for the purpose 
of evading the immigration laws include, but are not limited to:
    (1) Documentation showing joint ownership of property;
    (2) A lease showing joint tenancy of a common residence;
    (3) Documentation showing commingling of financial resources;
    (4) Birth certificate(s) of child(ren) born to the petitioner and 
prior spouse;
    (5) Affidavits sworn to or affirmed by third parties having personal 
knowledge of the bona fides of the prior marital relationship. (Each 
affidavit must contain the full name and address, date and place of 
birth of the person making the affidavit; his or her relationship, if 
any, to the petitioner, beneficiary or prior spouse; and complete 
information and details explaining how the person acquired his or her 
knowledge of the prior marriage. The affiant may be required to testify 
before an immigration officer about the information contained in the 
affidavit. Affidavits should be supported, if possible, by one or more 
types of documentary evidence listed in this paragraph.); or
    (6) Any other documentation which is relevant to establish that the 
prior marriage was not entered into in order to evade the immigration 
laws of the United States.
    (C) The petitioner must establish by clear and convincing evidence 
that the prior marriage was not entered into for the purpose of evading 
the immigration laws. Failure to meet the ``clear and convincing 
evidence'' standard will result in the denial of the petition. Such a 
denial shall be without prejudice to

[[Page 115]]

the filing of a new petition once the petitioner has acquired five years 
of lawful permanent residence. The director may choose to initiate 
deportation proceedings based upon information gained through the 
adjudication of the petition; however, failure to initiate such 
proceedings shall not establish that the petitioner's prior marriage was 
not entered into for the purpose of evading the immigration laws. Unless 
the petition is approved, the beneficiary shall not be accorded a filing 
date within the meaning of section 203(c) of the Act based upon any 
spousal second preference petition.
    (ii) Fraudulent marriage prohibition. Section 204(c) of the Act 
prohibits the approval of a visa petition filed on behalf of an alien 
who has attempted or conspired to enter into a marriage for the purpose 
of evading the immigration laws. The director will deny a petition for 
immigrant visa classification filed on behalf of any alien for whom 
there is substantial and probative evidence of such an attempt or 
conspiracy, regardless of whether that alien received a benefit through 
the attempt or conspiracy. Although it is not necessary that the alien 
have been convicted of, or even prosecuted for, the attempt or 
conspiracy, the evidence of the attempt or conspiracy must be contained 
in the alien's file.
    (iii) Marriage during proceedings--general prohibition against 
approval of visa petition. A visa petition filed on behalf of an alien 
by a United States citizen or a lawful permanent resident spouse shall 
not be approved if the marriage creating the relationship occurred on or 
after November 10, 1986, and while the alien was in exclusion, 
deportation, or removal proceedings, or judicial proceedings relating 
thereto. Determination of commencement and termination of proceedings 
and exemptions shall be in accordance with Sec. 245.1(c)(9) of this 
chapter, except that the burden in visa petition proceedings to 
establish eligibility for the exemption in Sec. 245.1(c)(9)(iii)(F) of 
this chapter shall rest with the petitioner.
    (A) Request for exemption. No application or fee is required to 
request an exemption. The request must be made in writing and submitted 
with the Form I-130. The request must state the reason for seeking the 
exemption and must be supported by documentary evidence establishing 
eligibility for the exemption.
    (B) Evidence to establish eligibility for the bona fide marriage 
exemption. The petitioner should submit documents which establish that 
the marriage was entered into in good faith and not entered into for the 
purpose of procuring the alien's entry as an immigrant. The types of 
documents the petitioner may submit include, but are not limited to:
    (1) Documentation showing joint ownership of property;
    (2) Lease showing joint tenancy of a common residence;
    (3) Documentation showing commingling of financial resources;
    (4) Birth certificate(s) of child(ren) born to the petitioner and 
beneficiary;
    (5) Affidavits of third parties having knowledge of the bona fides 
of the marital relationship (Such persons may be required to testify 
before an immigration officer as to the information contained in the 
affidavit. Affidavits must be sworn to or affirmed by people who have 
personal knowledge of the marital relationship. Each affidavit must 
contain the full name and address, date and place of birth of the person 
making the affidavit and his or her relationship to the spouses, if any. 
The affidavit must contain complete information and details explaining 
how the person acquired his or her knowledge of the marriage. Affidavits 
should be supported, if possible, by one or more types of documentary 
evidence listed in this paragraph); or
    (6) Any other documentation which is relevant to establish that the 
marriage was not entered into in order to evade the immigration laws of 
the United States.
    (C) Decision. Any petition filed during the prohibited period shall 
be denied, unless the petitioner establishes eligibility for an 
exemption from the general prohibition. The petitioner shall be notified 
in writing of the decision of the director.
    (D) Denials. The denial of a petition because the marriage took 
place during the prohibited period shall be without prejudice to the 
filing of a new petition after the beneficiary has resided outside the 
United States for the required

[[Page 116]]

period of two years following the marriage. The denial shall also be 
without prejudice to the consideration of a new petition or a motion to 
reopen the visa petition proceedings if deportation or exclusion 
proceedings are terminated after the denial other than by the 
beneficiary's departure from the United States. Furthermore, the denial 
shall be without prejudice to the consideration of a new petition or 
motion to reopen the visa petition proceedings, if the petitioner 
establishes eligibility for the bona fide marriage exemption contained 
in this part: Provided, That no motion to reopen visa petition 
proceedings may be accepted if the approval of the motion would result 
in the beneficiary being accorded a priority date within the meaning of 
section 203(c) of the Act earlier than November 29, 1990.
    (E) Appeals. The decision of the Board of Immigration Appeals 
concerning the denial of a relative visa petition because the petitioner 
failed to establish eligibility for the bona fide marriage exemption 
contained in this part will constitute the single level of appellate 
review established by statute.
    (F) Priority date. A preference beneficiary shall not be accorded a 
priority date within the meaning of section 203(c) of the Act based upon 
any relative petition filed during the prohibited period, unless an 
exemption contained in this part has been granted. Furthermore, a 
preference beneficiary shall not be accorded a priority date prior to 
November 29, 1990, based upon the approval of a request for 
consideration for the bona fide marriage exemption contained in this 
part.
    (2) Evidence for petition for a spouse. In addition to evidence of 
United States citizenship or lawful permanent residence, the petitioner 
must also provide evidence of the claimed relationship. A petition 
submitted on behalf of a spouse must be accompanied by a recent ADIT-
style photograph of the petitioner, a recent ADIT-style photograph of 
the beneficiary, a certificate of marriage issued by civil authorities, 
and proof of the legal termination of all previous marriages of both the 
petitioner and the beneficiary. However, non-ADIT-style photographs may 
be accepted by the district director when the petitioner or beneficiary 
reside(s) in a country where such photographs are unavailable or cost 
prohibitive.
    (3) Decision on and disposition of petition. The approved petition 
will be forwarded to the Department of State's Processing Center. If the 
beneficiary is in the United States and is eligible for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the petition is denied, the petitioner will 
be notified of the reasons for the denial and of the right to appeal in 
accordance with the provisions of 8 CFR 3.3.
    (4) Derivative beneficiaries. No alien may be classified as an 
immediate relative as defined in section 201(b) of the Act unless he or 
she is the direct beneficiary of an approved petition for that 
classification. Therefore, a child of an alien approved for 
classification as an immediate relative spouse is not eligible for 
derivative classification and must have a separate petition filed on his 
or her behalf. A child accompanying or following to join a principal 
alien under section 203(a)(2) of the Act may be included in the 
principal alien's second preference visa petition. The child will be 
accorded second preference classification and the same priority date as 
the principal alien. However, if the child reaches the age of twenty-one 
prior to the issuance of a visa to the principal alien parent, a 
separate petition will be required. In such a case, the original 
priority date will be retained if the subsequent petition is filed by 
the same petitioner. Such retention of priority date will be accorded 
only to a son or daughter previously eligible as a derivative 
beneficiary under a second preference spousal petition.
    (b) Petition by widow or widower of a United States citizen--(1) 
Eligibility. A widow or widower of a United States citizen may file a 
petition and be classified as an immediate relative under section 201(b) 
of the Act if:
    (i) He or she had been married for at least two years to a United 
States citizen.

    (Note: The United States citizen is not required to have had the 
status of United States citizen for the entire two year period, but must 
have been a United States citizen at the time of death.)



[[Page 117]]


    (ii) The petition is filed within two years of the death of the 
citizen spouse or before November 29, 1992, if the citizen spouse died 
before November 29, 1990;
    (iii) The alien petitioner and the citizen spouse were not legally 
separated at the time of the citizen's death; and
    (iv) The alien spouse has not remarried.
    (2) Evidence for petition of widow or widower. If a petition is 
submitted by the widow or widower of a deceased United States citizen, 
it must be accompanied by evidence of citizenship of the United States 
citizen and primary evidence, if available, of the relationship in the 
form of a marriage certificate issued by civil authorities, proof of the 
termination of all prior marriages of both husband and wife, and the 
United States citizen's death certificate issued by civil authorities. 
To determine the availability of primary documents, the Service will 
refer to the Department of State's Foreign Affairs Manual (FAM). When 
the FAM shows that primary documents are generally available in the 
country at issue but the petitioner claims that his or her document is 
unavailable, a letter from the appropriate registrar stating that the 
document is not available will be required before the Service will 
accept secondary evidence. Secondary evidence will be evaluated for its 
authenticity and credibility. Secondary evidence may include:
    (i) Such evidence of the marriage and termination of prior marriages 
as religious documents, tribal records, census records, or affidavits; 
and
    (ii) Such evidence of the United States citizen's death as religious 
documents, funeral service records, obituaries, or affidavits. 
Affidavits submitted as secondary evidence pursuant to paragraphs 
(b)(2)(i) and (b)(2)(ii) of this section must be sworn to or affirmed by 
people who have personal knowledge of the event to which they attest. 
Each affidavit should contain the full name and address, date and place 
of birth of the person making the affidavit and his or her relationship, 
if any, to the widow or widower. Any such affidavit must contain 
complete information and details explaining how knowledge of the event 
was acquired.
    (3) Decision on and disposition of petition. The approved petition 
will be forwarded to the Department of State's Processing Center. If the 
widow or widower is in the United States and is eligible for adjustment 
of status under section 245 of the Act, the approved petition will be 
retained by the Service. If the petition is denied, the widow or widower 
will be notified of the reasons for the denial and of the right to 
appeal in accordance with the provisions of 8 CFR 3.3.
    (4) Derivative beneficiaries. A child of an alien widow or widower 
classified as an immediate relative is eligible for derivative 
classification as an immediate relative. Such a child may be included in 
the principal alien's immediate relative visa petition, and may 
accompany or follow to join the principal alien to the United States. 
Derivative benefits do not extend to an unmarried or married son or 
daughter of an alien widow or widower.
    (c) Self-petition by spouse of abusive citizen or lawful permanent 
resident--(1) Eligibility--(i) Basic eligibility requirements. A spouse 
may file a self-petition under section 204(a)(1)(A)(iii) or 
204(a)(1)(B)(ii) of the Act for his or her classification as an 
immediate relative or as a preference immigrant if he or she:
    (A) Is the spouse of a citizen or lawful permanent resident of the 
United States;
    (B) Is eligible for immigrant classification under section 
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
    (C) Is residing in the United States;
    (D) Has resided in the United States with the citizen or lawful 
permanent resident spouse;
    (E) Has been battered by, or has been the subject of extreme cruelty 
perpetrated by, the citizen or lawful permanent resident during the 
marriage; or is that parent of a child who has been battered by, or has 
been the subject of extreme cruelty perpetrated by, the citizen or 
lawful permanent resident during the marriage;
    (F) Is a person of good moral character;
    (G) Is a person whose deportation would result in extreme hardship 
to himself, herself, or his or her child; and

[[Page 118]]

    (H) Entered into the marriage to the citizen or lawful permanent 
resident in good faith.
    (ii) Legal status of the marriage. The self-petitioning spouse must 
be legally married to the abuser when the petition is properly filed 
with the Service. A spousal self-petition must be denied if the marriage 
to the abuser legally ended through annulment, death, or divorce before 
that time. After the self-petition has been properly filed, the legal 
termination of the marriage will have no effect on the decision made on 
the self-petition. The self-petitioner's remarriage, however, will be a 
basis for the denial of a pending self-petition.
    (iii) Citizenship or immigration status of the abuser. The abusive 
spouse must be a citizen of the United States or a lawful permanent 
resident of the United States when the petition is filed and when it is 
approved. Changes in the abuser's citizenship or lawful permanent 
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an 
abusive lawful permanent resident spouse will not be automatically 
upgraded to immediate relative status. The self-petitioner would not be 
precluded, however, from filing a new self-petition for immediate 
relative classification after the abuser's naturalization, provided the 
self-petitioner continues to meet the self-petitioning requirements.
    (iv) Eligibility for immigrant classification. A self-petitioner is 
required to comply with the provisions of section 204(c) of the Act, 
section 204(g) of the Act, and section 204(a)(2) of the Act.
    (v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition 
is filed. The self-petitioner is not required to be living with the 
abuser when the petition is filed, but he or she must have resided with 
the abuser in the United States in the past.
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was battered by or was the subject of extreme cruelty'' 
includes, but is not limited to, being the victim of any act or 
threatened act of violence, including any forceful detention, which 
results or threatens to result in physical or mental injury. 
Psychological or sexual abuse or exploitation, including rape, 
molestation, incest (if the victim is a minor), or forced prostitution 
shall be considered acts of violence. Other abusive actions may also be 
acts of violence under certain circumstances, including acts that, in 
and of themselves, may not initially appear violent but that are a part 
of an overall pattern of violence. The qualifying abuse must have been 
committed by the citizen or lawful permanent resident spouse, must have 
been perpetrated against the self-petitioner or the self-petitioner's 
child, and must have taken place during the self-petitioner's marriage 
to the abuser.
    (vii) Good moral character. A self-petitioner will be found to lack 
good moral character if he or she is a person described in section 
101(f) of the Act. Extenuating circumstances may be taken into account 
if the person has not been convicted of an offense or offenses but 
admits to the commission of an act or acts that could show a lack of 
good moral character under section 101(f) of the Act. A person who was 
subjected to abuse in the form of forced prostitution or who can 
establish that he or she was forced to engage in other behavior that 
could render the person excludable under section 212(a) of the Act would 
not be precluded from being found to be a person of good moral 
character, provided the person has not been convicted for the commission 
of the offense or offenses in a court of law. A self-petitioner will 
also be found to lack good moral character, unless he or she establishes 
extenuating circumstances, if he or she willfully failed or refused to 
support dependents; or committed unlawful acts that adversely reflect 
upon his or her moral character, or was convicted or imprisoned for such 
acts, although the acts do not require an automatic finding of lack of 
good moral character. A self-petitioner's claim of good moral character 
will be evaluated on a case-by-case basis, taking into account the 
provisions of section 101(f) of the Act and the standards of the average 
citizen in the community. If the results of record checks conducted 
prior to the issuance of an immigrant visa or approval of an application 
for adjustment of status disclose that the self-petitioner is no

[[Page 119]]

longer a person of good moral character or that he or she has not been a 
person of good moral character in the past, a pending self-petition will 
be denied or the approval of a self-petition will be revoked.
    (viii) Extreme hardship. The Service will consider all credible 
evidence of extreme hardship submitted with a self-petition, including 
evidence of hardship arising from circumstances surrounding the abuse. 
The extreme hardship claim will be evaluated on a case-by-case basis 
after a review of the evidence in the case. Self-petitioners are 
encouraged to cite and document all applicable factors, since there is 
no guarantee that a particular reason or reasons will result in a 
finding that deportation would cause extreme hardship. Hardship to 
persons other than the self-petitioner or the self-petitioner's child 
cannot be considered in determining whether a self-petitioning spouse's 
deportation would cause extreme hardship.
    (ix) Good faith marriage. A spousal self-petition cannot be approved 
if the self-petitioner entered into the marriage to the abuser for the 
primary purpose of circumventing the immigration laws. A self-petition 
will not be denied, however, solely because the spouses are not living 
together and the marriage is no longer viable.
    (2) Evidence for a spousal self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible. 
The Service will consider, however, any credible evidence relevant to 
the petition. The determination of what evidence is credible and the 
weight to be given that evidence shall be within the sole discretion of 
the Service.
    (ii) Relationship. A self-petition filed by a spouse must be 
accompanied by evidence of citizenship of the United States citizen or 
proof of the immigration status of the lawful permanent resident abuser. 
It must also be accompanied by evidence of the relationship. Primary 
evidence of a marital relationship is a marriage certificate issued by 
civil authorities, and proof of the termination of all prior marriages, 
if any, of both the self-petitioner and the abuser. If the self-petition 
is based on a claim that the self-petitioner's child was battered or 
subjected to extreme cruelty committed by the citizen or lawful 
permanent resident spouse, the self-petition should also be accompanied 
by the child's birth certificate or other evidence showing the 
relationship between the self-petitioner and the abused child.
    (iii) Residence. One or more documents may be submitted showing that 
the self-petitioner and the abuser have resided together in the United 
States. One or more documents may also be submitted showing that the 
self-petitioner is residing in the United States when the self-petition 
is filed. Employment records, utility receipts, school records, hospital 
or medical records, birth certificates of children born in the United 
States, deeds, mortgages, rental records, insurance policies, affidavits 
or any other type of relevant credible evidence of residency may be 
submitted.
    (iv) Abuse. Evidence of abuse may include, but is not limited to, 
reports and affidavits from police, judges and other court officials, 
medical personnel, school officials, clergy, social workers, and other 
social service agency personnel. Persons who have obtained an order of 
protection against the abuser or have taken other legal steps to end the 
abuse are strongly encouraged to submit copies of the relating legal 
documents. Evidence that the abuse victim sought safe-haven in a 
battered women's shelter or similar refuge may be relevant, as may a 
combination of documents such as a photograph of the visibly injured 
self-petitioner supported by affidavits. Other forms of credible 
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to establish a pattern of abuse and 
violence and to support a claim that qualifying abuse also occurred.
    (v) Good moral character. Primary evidence of the self-petitioner's 
good moral character is the self-petitioner's affidavit. The affidavit 
should be accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in the United 
States in which the self-petitioner has resided for six or more months 
during the 3-year period immediately preceding the filing of the self-

[[Page 120]]

petition. Self-petitioners who lived outside the United States during 
this time should submit a police clearance, criminal background check, 
or similar report issued by the appropriate authority in each foreign 
country in which he or she resided for six or more months during the 3-
year period immediately preceding the filing of the self-petition. If 
police clearances, criminal background checks, or similar reports are 
not available for some or all locations, the self-petitioner may include 
an explanation and submit other evidence with his or her affidavit. The 
Service will consider other credible evidence of good moral character, 
such as affidavits from responsible persons who can knowledgeably attest 
to the self-petitioner's good moral character.
    (vi) Extreme hardship. Evidence of extreme hardship may include 
affidavits, birth certificates of children, medical reports, protection 
orders and other court documents, police reports, and other relevant 
credible evidence.
    (vii) Good faith marriage. Evidence of good faith at the time of 
marriage may include, but is not limited to, proof that one spouse has 
been listed as the other's spouse on insurance policies, property 
leases, income tax forms, or bank accounts; and testimony or other 
evidence regarding courtship, wedding ceremony, shared residence and 
experiences. Other types of readily available evidence might include the 
birth certificates of children born to the abuser and the spouse; 
police, medical, or court documents providing information about the 
relationship; and affidavits of persons with personal knowledge of the 
relationship. All credible relevant evidence will be considered.
    (3) Decision on and disposition of the petition--(i) Petition 
approved. If the self-petitioning spouse will apply for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the self-petitioner will apply for an 
immigrant visa abroad, the approved self-petition will be forwarded to 
the Department of State's National Visa Center.
    (ii) Notice of intent to deny. If the preliminary decision on a 
properly filed self-petition is adverse to the self-petitioner, the 
self-petitioner will be provided with written notice of this fact and 
offered an opportunity to present additional information or arguments 
before a final decision is rendered. If the adverse preliminary decision 
is based on derogatory information of which the self-petitioner is 
unaware, the self-petitioner will also be offered an opportunity to 
rebut the derogatory information in accordance with the provisions of 8 
CFR 103.2(b)(16).
    (iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial and 
of the right to appeal the decision.
    (4) Derivative beneficiaries. A child accompanying or following-to-
join the self-petitioning spouse may be accorded the same preference and 
priority date as the self-petitioner without the necessity of a separate 
petition, if the child has not been classified as an immigrant based on 
his or her own self-petition. A derivative child who had been included 
in a parent's self-petition may later file a self-petition, provided the 
child meets the self-petitioning requirements. A child who has been 
classified as an immigrant based on a petition filed by the abuser or 
another relative may also be derivatively included in a parent's self-
petition. The derivative child must be unmarried, less than 21 years 
old, and otherwise qualify as the self-petitioner's child under section 
101(b)(1)(F) of the Act until he or she becomes a lawful permanent 
resident based on the derivative classification.
    (5) Name change. If the self-petitioner's current name is different 
than the name shown on the documents, evidence of the name change (such 
as the petitioner's marriage certificate, legal document showing name 
change, or other similar evidence) must accompany the self-petition.
    (6) Prima facie determination. (i) Upon receipt of a self-petition 
under paragraph (c)(1) of this section, the Service shall make a 
determination as to whether the petition and the supporting 
documentation establish a ``prima facie case'' for purposes of 8 U.S.C. 
1641, as amended by section 501 of Public Law 104-208.
    (ii) For purposes of paragraph (c)(6)(i) of this section, a prima 
facie case is established only if the petitioner submits

[[Page 121]]

a completed Form I-360 and other evidence supporting all of the elements 
required of a self-petitioner in paragraph (c)(1) of this section. A 
finding of prima facie eligibility does not relieve the petitioner of 
the burden of providing additional evidence in support of the petition 
and does not establish eligibility for the underlying petition.
    (iii) If the Service determines that a petitioner has made a ``prima 
facie case,'' the Service shall issue a Notice of Prima Facie Case to 
the petitioner. Such Notice shall be valid until the Service either 
grants or denies the petition.
    (iv) For purposes of adjudicating the petition submitted under 
paragraph (c)(1) of this section, a prima facie determination--
    (A) Shall not be considered evidence in support of the petition;
    (B) Shall not be construed to make a determination of the 
credibility or probative value of any evidence submitted along with that 
petition; and,
    (C) Shall not relieve the self-petitioner of his or her burden of 
complying with all of the evidentiary requirements of paragraph (c)(2) 
of this section.
    (d) Petition for a child or son or daughter--(1) Eligibility. A 
United States citizen may file a petition on behalf of an unmarried 
child under twenty-one years of age for immediate relative 
classification under section 201(b) of the Act. A United States citizen 
may file a petition on behalf of an unmarried son or daughter over 
twenty-one years of age under section 203(a)(1) or for a married son or 
daughter for preference classification under section 203(a)(3) of the 
Act. An alien lawfully admitted for permanent residence may file a 
petition on behalf of a child or an unmarried son or daughter for 
preference classification under section 203(a)(2) of the Act.
    (2) Evidence to support petition for child or son or daughter. In 
addition to evidence of United States citizenship or lawful permanent 
resident, the petitioner must also provide evidence of the claimed 
relationship.
    (i) Primary evidence for a legitimate child or son or daughter. If a 
petition is submitted by the mother, the birth certificate of the child 
showing the mother's name must accompany the petition. If the mother's 
name on the birth certificate is different from her name on the 
petition, evidence of the name change must also be submitted. If a 
petition is submitted by the father, the birth certificate of the child, 
a marriage certificate of the parents, and proof of legal termination of 
the parents' prior marriages, if any, issued by civil authorities must 
accompany the petition. If the father's name has been legally changed, 
evidence of the name change must also accompany the petition.
    (ii) Primary evidence for a legitimated child or son or daughter. A 
child can be legitimated through the marriage of his or her natural 
parents, by the laws of the country or state of the child's residence or 
domicile, or by the laws of the country or state of the father's 
residence or domicile. If the legitimation is based on the natural 
parents' marriage, such marriage must have taken place while the child 
was under the age of eighteen. If the legitimation is based on the laws 
of the country or state of the child's residence or domicile, the law 
must have taken effect before the child's eighteenth birthday. If the 
legitimation is based on the laws of the country or state of the 
father's residence or domicile, the father must have resided--while the 
child was under eighteen years of age--in the country or state under 
whose laws the child has been legitimated. Primary evidence of the 
relationship should consist of the beneficiary's birth certificate and 
the parents' marriage certificate or other evidence of legitimation 
issued by civil authorities.
    (iii) Primary evidence for an illegitimate child or son or daughter. 
If a petition is submitted by the mother, the child's birth certificate, 
issued by civil authorities and showing the mother's name, must 
accompany the petition. If the mother's name on the birth certificate is 
different from her name as reflected in the petition, evidence of the 
name change must also be submitted. If the petition is submitted by the 
purported father of a child or son or daughter born out of wedlock, the 
father must show that he is the natural father and that a bona fide 
parent-child

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relationship was established when the child or son or daughter was 
unmarried and under twenty-one years of age. Such a relationship will be 
deemed to exist or to have existed where the father demonstrates or has 
demonstrated an active concern for the child's support, instruction, and 
general welfare. Primary evidence to establish that the petitioner is 
the child's natural father is the beneficiary's birth certificate, 
issued by civil authorities and showing the father's name. If the 
father's name has been legally changed, evidence of the name change must 
accompany the petition. Evidence of a parent/child relationship should 
establish more than merely a biological relationship. Emotional and/or 
financial ties or a genuine concern and interest by the father for the 
child's support, instruction, and general welfare must be shown. There 
should be evidence that the father and child actually lived together or 
that the father held the child out as being his own, that he provided 
for some or all of the child's needs, or that in general the father's 
behavior evidenced a genuine concern for the child. The most persuasive 
evidence for establishing a bona fide parent/child relationship and 
financial responsibility by the father is documentary evidence which was 
contemporaneous with the events in question. Such evidence may include, 
but is not limited to: money order receipts or cancelled checks showing 
the father's financial support of the beneficiary; the father's income 
tax returns; the father's medical or insurance records which include the 
beneficiary as a dependent; school records for the beneficiary; 
correspondence between the parties; or notarized affidavits of friends, 
neighbors, school officials, or other associates knowledgeable about the 
relationship.
    (iv) Primary evidence for a stepchild. If a petition is submitted by 
a stepparent on behalf of a stepchild or stepson or stepdaughter, the 
petition must be supported by the stepchild's or stepson's or 
stepdaughter's birth certificate, issued by civil authorities and 
showing the name of the beneficiary's parent to whom the petitioner is 
married, a marriage certificate issued by civil authorities which shows 
that the petitioner and the child's natural parent were married before 
the stepchild or stepson or stepdaughter reached the age of eighteen; 
and evidence of the termination of any prior marriages of the petitioner 
and the natural parent of the stepchild or stepson or stepdaughter.
    (v) Secondary evidence. When it is established that primary evidence 
is not available, secondary evidence may be accepted. To determine the 
availability of primary documents, the Service will refer to the 
Department of State's Foreign Affairs Manual (FAM). When the FAM shows 
that primary documents are generally available in the country at issue 
but the petitioner claims that his or her document is unavailable, a 
letter from the appropriate registrar stating that the document is not 
available will be required before the Service will accept secondary 
evidence. Secondary evidence will be evaluated for its authenticity and 
credibility. Secondary evidence may take the form of historical 
evidence; such evidence must have been issued contemporaneously with the 
event which it documents any may include, but is not limited to, medical 
records, school records, and religious documents. Affidavits may also by 
accepted. When affidavits are submitted, they must be sworn to by 
persons who were born at the time of and who have personal knowledge of 
the event to which they attest. Any affidavit must contain the affiant's 
full name and address, date and place of birth, relationship to the 
party, if any, and complete details concerning how the affiant acquired 
knowledge of the event.
    (vi) Blood tests. The director may require that a specific Blood 
Group Antigen Test be conducted of the beneficiary and the beneficiary's 
father and mother. In general, blood tests will be required only after 
other forms of evidence have proven inconclusive. If the specific Blood 
Group Antigen Test is also found not to be conclusive and the director 
determines that additional evidence is needed, a Human Leucocyte Antigen 
(HLA) test may be requested. Tests will be conducted, at the expense of 
the petitioner or beneficiary, by the United States Public Health 
Service physician who is authorized overseas or

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by a qualified medical specialist designated by the district director. 
The results of the test should be reported on Form G-620. Refusal to 
submit to a Specific Blood Group Antigen or HLA test when requested may 
constitute a basis for denial of the petition, unless a legitimate 
religious objection has been established. When a legitimate religious 
objection is established, alternate forms of evidence may be considered 
based upon documentation already submitted.
    (vii) Primary evidence for an adopted child or son or daughter. A 
petition may be submitted on behalf of an adopted child or son or 
daughter by a United States citizen or lawful permanent resident if the 
adoption took place before the beneficiary's sixteenth birthday, and if 
the child has been in the legal custody of the adopting parent or 
parents and has resided with the adopting parent or parents for at least 
two years. A copy of the adoption decree, issued by the civil 
authorities, must accompany the petition.
    (A) Legal custody means the assumption of responsibility for a minor 
by an adult under the laws of the state and under the order or approval 
of a court of law or other appropriate government entity. This provision 
requires that a legal process involving the courts or other recognized 
government entity take place. If the adopting parent was granted legal 
custody by the court or recognized governmental entity prior to the 
adoption, that period may be counted toward fulfillment of the two-year 
legal custody requirement. However, if custody was not granted prior to 
the adoption, the adoption decree shall be deemed to mark the 
commencement of legal custody. An informal custodial or guardianship 
document, such as a sworn affidavit signed before a notary public, is 
insufficient for this purpose.
    (B) Evidence must also be submitted to show that the beneficiary 
resided with the petitioner for at least two years. Generally, such 
documentation must establish that the petitioner and the beneficiary 
resided together in a familial relationship. Evidence of parental 
control may include, but is not limited to, evidence that the adoptive 
parent owns or maintains the property where the child resides and 
provides financial support and day-to-day supervision. The evidence must 
clearly indicate the physical living arrangements of the adopted child, 
the adoptive parent(s), and the natural parent(s) for the period of time 
during which the adoptive parent claims to have met the residence 
requirement. When the adopted child continued to reside in the same 
household as a natural parent(s) during the period in which the adoptive 
parent petitioner seeks to establish his or her compliance with this 
requirement, the petitioner has the burden of establishing that he or 
she exercised primary parental control during that period of residence.
    (C) Legal custody and residence occurring prior to or after the 
adoption will satisfy both requirements. Legal custody, like residence, 
is accounted for in the aggregate. Therefore, a break in legal custody 
or residence will not affect the time already fulfilled. To meet the 
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of 
the Act, the child must have been under 16 years of age when the 
adoption is finalized.
    (3) Decision on and disposition of petition. The approved petition 
will be forwarded to the Department of State's Processing Center. If the 
beneficiary is in the United States and is eligible for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the petition is denied, the petitioner will 
be notified of the reasons for the denial and of the right to appeal in 
accordance with the provisions of 8 CFR 3.3.
    (4) Derivative beneficiaries. A spouse or child accompanying or 
following to join a principal alien as used in this section may be 
accorded the same preference and priority date as the principal alien 
without the necessity of a separate petition. However, a child of an 
alien who is approved for classification as an immediate relative is not 
eligible for derivative classification and must have a separate petition 
approved on his or her behalf.
    (5) Name change. When the petitioner's name does not appear on the 
child's birth certificate, evidence of the name change (such as the 
petitioner's marriage certificate, legal document

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showing name change, or other similar evidence) must accompany the 
petition. If the beneficiary's name has been legally changed, evidence 
of the name change must also accompany the petition.
    (e) Self-petition by child of abusive citizen or lawful permanent 
resident--(1) Eligibility. (i) A child may file a self-petition under 
section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act if he or she:
    (A) Is the child of a citizen or lawful permanent resident of the 
United States;
    (B) Is eligible for immigrant classification under section 
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
    (C) Is residing in the United States;
    (D) Has resided in the United States with the citizen or lawful 
permanent resident parent;
    (E) Has been battered by, or has been the subject of extreme cruelty 
perpetrated by, the citizen or lawful permanent resident parent while 
residing with that parent;
    (F) Is a person of good moral character; and
    (G) Is a person whose deportation would result in extreme hardship 
to himself or herself.
    (ii) Parent-child relationship to the abuser. The self-petitioning 
child must be unmarried, less than 21 years of age, and otherwise 
qualify as the abuser's child under the definition of child contained in 
section 101(b)(1) of the Act when the petition is filed and when it is 
approved. Termination of the abuser's parental rights or a change in 
legal custody does not alter the self-petitioning relationship provided 
the child meets the requirements of section 101(b)(1) of the Act.
    (iii) Citizenship or immigration status of the abuser. The abusive 
parent must be a citizen of the United States or a lawful permanent 
resident of the United States when the petition is filed and when it is 
approved. Changes in the abuser's citizenship or lawful permanent 
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an 
abusive lawful permanent resident will not be automatically upgraded to 
immediate relative status. The self-petitioning child would not be 
precluded, however, from filing a new self-petition for immediate 
relative classification after the abuser's naturalization, provided the 
self-petitioning child continues to meet the self-petitioning 
requirements.
    (iv) Eligibility for immigrant classification. A self-petitioner is 
required to comply with the provisions of section 204(c) of the Act, 
section 204(g) of the Act, and section 204(a)(2) of the Act.
    (v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition 
is filed. The self-petitioner is not required to be living with the 
abuser when the petition is filed, but he or she must have resided with 
the abuser in the United States in the past.
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was battered by or was the subject of extreme cruelty'' 
includes, but is not limited to, being the victim of any act or 
threatened act of violence, including any forceful detention, which 
results or threatens to result in physical or mental injury. 
Psychological or sexual abuse or exploitation, including rape, 
molestation, incest (if the victim is a minor), or forced prostitution 
shall be considered acts of violence. Other abusive actions may also be 
acts of violence under certain circumstances, including acts that, in 
and of themselves, may not initially appear violent but are a part of an 
overall pattern of violence. The qualifying abuse must have been 
committed by the citizen or lawful permanent resident parent, must have 
been perpetrated against the self-petitioner, and must have taken place 
while the self-petitioner was residing with the abuser.
    (vii) Good moral character. A self-petitioner will be found to lack 
good moral character if he or she is a person described in section 
101(f) of the Act. Extenuating circumstances may be taken into account 
if the person has not been convicted of an offense or offenses but 
admits to the commission of an act or acts that could show a lack of 
good moral character under section 101(f) of the Act. A person who was 
subjected to abuse in the form of forced prostitution or who can 
establish that he or she was forced to engage in other behavior that 
could render the person excludable

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under section 212(a) of the Act would not be precluded from being found 
to be a person of good moral character, provided the person has not been 
convicted for the commission of the offense or offenses in a court of 
law. A self-petitioner will also be found to lack good moral character, 
unless he or she establishes extenuating circumstances, if he or she 
willfully failed or refused to support dependents; or committed unlawful 
acts that adversely reflect upon his or her moral character, or was 
convicted or imprisoned for such acts, although the acts do not require 
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of 
the Act and the standards of the average citizen in the community. If 
the results of record checks conducted prior to the issuance of an 
immigrant visa or approval of an application for adjustment of status 
disclose that the self-petitioner is no longer a person of good moral 
character or that he or she has not been a person of good moral 
character in the past, a pending self-petition will be denied or the 
approval of a self-petition will be revoked.
    (viii) Extreme hardship. The Service will consider all credible 
evidence of extreme hardship submitted with a self-petition, including 
evidence of hardship arising from circumstances surrounding the abuse. 
The extreme hardship claim will be evaluated on a case-by-case basis 
after a review of the evidence in the case. Self-petitioners are 
encouraged to cite and document all applicable factors, since there is 
no guarantee that a particular reason or reasons will result in a 
finding that deportation would cause extreme hardship. Hardship to 
persons other than the self-petitioner cannot be considered in 
determining whether a self-petitioning child's deportation would cause 
extreme hardship.
    (2) Evidence for a child's self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible. 
The Service will consider, however, any credible evidence relevant to 
the petition. The determination of what evidence is credible and the 
weight to be given that evidence shall be within the sole discretion of 
the Service.
    (ii) Relationship. A self-petition filed by a child must be 
accompanied by evidence of citizenship of the United States citizen or 
proof of the immigration status of the lawful permanent resident abuser. 
It must also be accompanied by evidence of the relationship. Primary 
evidence of the relationship between:
    (A) The self-petitioning child and an abusive biological mother is 
the self-petitioner's birth certificate issued by civil authorities;
    (B) A self-petitioning child who was born in wedlock and an abusive 
biological father is the child's birth certificate issued by civil 
authorities, the marriage certificate of the child's parents, and 
evidence of legal termination of all prior marriages, if any;
    (C) A legitimated self-petitioning child and an abusive biological 
father is the child's birth certificate issued by civil authorities, and 
evidence of the child's legitimation;
    (D) A self-petitioning child who was born out of wedlock and an 
abusive biological father is the child's birth certificate issued by 
civil authorities showing the father's name, and evidence that a bona 
fide parent-child relationship has been established between the child 
and the parent;
    (E) A self-petitioning stepchild and an abusive stepparent is the 
child's birth certificate issued by civil authorities, the marriage 
certificate of the child's parent and the stepparent showing marriage 
before the stepchild reached 18 years of age, and evidence of legal 
termination of all prior marriages of either parent, if any; and
    (F) An adopted self-petitioning child and an abusive adoptive parent 
is an adoption decree showing that the adoption took place before the 
child reached 16 years of age, and evidence that the child has been 
residing with and in the legal custody of the abusive adoptive parent 
for at least 2 years.
    (iii) Residence. One or more documents may be submitted showing that 
the self-petitioner and the abuser have resided together in the United 
States. One or more documents may also be

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submitted showing that the self-petitioner is residing in the United 
States when the self-petition is filed. Employment records, school 
records, hospital or medical records, rental records, insurance 
policies, affidavits or any other type of relevant credible evidence of 
residency may be submitted.
    (iv) Abuse. Evidence of abuse may include, but is not limited to, 
reports and affidavits from police, judges and other court officials, 
medical personnel, school officials, clergy, social workers, and other 
social service agency personnel. Persons who have obtained an order of 
protection against the abuser or taken other legal steps to end the 
abuse are strongly encouraged to submit copies of the relating legal 
documents. Evidence that the abuse victim sought safe-haven in a 
battered women's shelter or similar refuge may be relevant, as may a 
combination of documents such as a photograph of the visibly injured 
self-petitioner supported by affidavits. Other types of credible 
relevant evidence will also be considered. Documentary proof of non-
qualifying abuse may only be used to establish a pattern of abuse and 
violence and to support a claim that qualifying abuse also occurred.
    (v) Good moral character. Primary evidence of the self-petitioner's 
good moral character is the self-petitioner's affidavit. The affidavit 
should be accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in the United 
States in which the self-petitioner has resided for six or more months 
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during 
this time should submit a police clearance, criminal background check, 
or similar report issued by the appropriate authority in the foreign 
country in which he or she resided for six or more months during the 3-
year period immediately preceding the filing of the self-petition. If 
police clearances, criminal background checks, or similar reports are 
not available for some or all locations, the self-petitioner may include 
an explanation and submit other evidence with his or her affidavit. The 
Service will consider other credible evidence of good moral character, 
such as affidavits from responsible persons who can knowledgeably attest 
to the self-petitioner's good moral character. A child who is less than 
14 years of age is presumed to be a person of good moral character and 
is not required to submit affidavits of good moral character, police 
clearances, criminal background checks, or other evidence of good moral 
character.
    (vi) Extreme hardship. Evidence of extreme hardship may include 
affidavits, medical reports, protection orders and other court 
documents, police reports, and other relevant credible evidence.
    (3) Decision on and disposition of the petition--(i) Petition 
approved. If the self-petitioning child will apply for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the self-petitioner will apply for an 
immigrant visa abroad, the approved self-petition will be forwarded to 
the Department of State's National Visa Center.
    (ii) Notice of intent to deny. If the preliminary decision on a 
properly filed self-petition is adverse to the self-petitioner, the 
self-petitioner will be provided with written notice of this fact and 
offered an opportunity to present additional information or arguments 
before a final decision is rendered. If the adverse preliminary decision 
is based on derogatory information of which the self-petitioner is 
unaware, the self-petitioner will also be offered an opportunity to 
rebut the derogatory information in accordance with the provisions of 8 
CFR 103.2(b)(16).
    (iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial and 
of the right to appeal the decision.
    (4) Derivative beneficiaries. A child of a self-petitioning child is 
not eligible for derivative classification and must have a petition 
filed on his or her behalf if seeking immigrant classification.
    (5) Name change. If the self-petitioner's current name is different 
than the name shown on the documents, evidence of the name change (such 
as the petitioner's marriage certificate, legal document showing the 
name change, or other similar evidence) must accompany the self-
petition.

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    (6) prima facie determination. (i) Upon receipt of a self-petition 
under paragraph (e)(1) of this section, the Service shall make a 
determination as to whether the petition and the supporting 
documentation establish a ``prima facie case'' for purposes of 8 U.S.C. 
1641, as amended by section 501 of Public Law 104-208.
    (ii) For purposes of paragraph (e)(6)(i) of this section, a prima 
facie case is established only if the petitioner submits a completed 
Form I-360 and other evidence supporting all of the elements required of 
a self-petitioner in paragraph (e)(1) of this section. A finding of 
prima facie eligibility does not relieve the petitioner of the burden of 
providing additional evidence in support of the petition and does not 
establish eligibility for the underlying petition.
    (iii) If the Service determines that a petitioner has made a ``prima 
facie case'' the Service shall issue a Notice of Prima Facie Case to the 
petitioner. Such Notice shall be valid until the Service either grants 
or denies the petition.
    (iv) For purposes of adjudicating the petition submitted under 
paragraph (e)(1) of this section, a prima facie determination:
    (A) Shall not be considered evidence in support of the petition;
    (B) Shall not be construed to make a determination of the 
credibility or probative value of any evidence submitted along with that 
petition; and,
    (C) Shall not relieve the self-petitioner of his or her burden of 
complying with all of the evidentiary requirements of paragraph (e)(2) 
of this section.
    (f) Petition for a parent--(1) Eligibility. Only a United States 
citizen who is twenty-one years of age or older may file a petition on 
behalf of a parent for classification under section 201(b) of the Act.
    (2) Evidence to support a petition for a parent. In addition to 
evidence of United States citizenship as listed in Sec. 204.1(g) of this 
part, the petitioner must also provide evidence of the claimed 
relationship.
    (i) Primary evidence if petitioner is a legitimate son or daughter. 
If a petition is submitted on behalf of the mother, the birth 
certificate of the petitioner showing the mother's name must accompany 
the petition. If the mother's name on the birth certificate is different 
from her name as reflected in the petition, evidence of the name change 
must also be submitted. If a petition is submitted on behalf of the 
father, the birth certificate of the petitioner, a marriage certificate 
of the parents, and proof of legal termination of the parents' prior 
marriages, if any, issued by civil authorities must accompany the 
petition. If the father's name on the birth certificate has been legally 
changed, evidence of the name change must also accompany the petition.
    (ii) Primary evidence if petitioner is a legitimated son or 
daughter. A child can be legitimated through the marriage of his or her 
natural parents, by the laws of the country or state of the child's 
residence or domicile, or by the laws of the country or state of the 
father's residence or domicile. If the legitimation is based on the 
natural parent's marriage, such marriage must have taken place while the 
child was under the age of eighteen. If the legitimation is based on the 
laws of the country or state of the child's residence or domicile, the 
law must have taken effect before the child's eighteenth birthday. If 
the legitimation is based on the laws of the country or state of the 
father's residence or domicile, the father must have resided--while the 
child was under eighteen years of age--in the country or state under 
whose laws the child has been legitimated. Primary evidence of the 
relationship should consist of petitioner's birth certificate and the 
parents' marriage certificate or other evidence of legitimation issued 
by civil authorities.
    (iii) Primary evidence if the petitioner is an illegitimate son or 
daughter. If a petition is submitted on behalf of the mother, the 
petitioner's birth certificate, issued by civil authorities and showing 
the mother's name, must accompany the petition. If the mother's name on 
the birth certificate is different from her name as reflected in the 
petition, evidence of the name change must also be submitted. If the 
petition is submitted on behalf of the purported father of the 
petitioner, the petitioner must show that the beneficiary is his or her 
natural father and

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that a bona fide parent-child relationship was established when the 
petitioner was unmarried and under twenty-one years of age. Such a 
relationship will be deemed to exist or to have existed where the father 
demonstrates or has demonstrated an active concern for the child's 
support, instruction, and general welfare. Primary evidence to establish 
that the beneficiary is the petitioner's natural father is the 
petitioner's birth certificate, issued by civil authorities and showing 
the father's name. If the father's name has been legally changed, 
evidence of the name change must accompany the petition. Evidence of a 
parent/child relationship should establish more than merely a biological 
relationship. Emotional and/or financial ties or a genuine concern and 
interest by the father for the child's support, instruction, and general 
welfare must be shown. There should be evidence that the father and 
child actually lived together or that the father held the child out as 
being his own, that he provided for some or all of the child's needs, or 
that in general the father's behavior evidenced a genuine concern for 
the child. The most persuasive evidence for establishing a bona fide 
parent/child relationship is documentary evidence which was 
contemporaneous with the events in question. Such evidence may include, 
but is not limited to: money order receipts or cancelled checks showing 
the father's financial support of the beneficiary; the father's income 
tax returns; the father's medical or insurance records which include the 
petitioner as a dependent; school records for the petitioner; 
correspondence between the parties; or notarized affidavits of friends, 
neighbors, school officials, or other associates knowledgeable as to the 
relationship.
    (iv) Primary evidence if petitioner is an adopted son or daughter. A 
petition may be submitted for an adoptive parent by a United States 
citizen who is twenty-one years of age or older if the adoption took 
place before the petitioner's sixteenth birthday and if the two year 
legal custody and residence requirements have been met. A copy of the 
adoption decree, issued by the civil authorities, must accompany the 
petition.
    (A) Legal custody means the assumption of responsibility for a minor 
by an adult under the laws of the state and under the order or approval 
of a court of law or other appropriate government entity. This provision 
requires that a legal process involving the courts or other recognized 
government entity take place. If the adopting parent was granted legal 
custody by the court or recognized governmental entity prior to the 
adoption, that period may be counted toward fulfillment of the two-year 
legal custody requirement. However, if custody was not granted prior to 
the adoption, the adoption decree shall be deemed to mark the 
commencement of legal custody. An informal custodial or guardianship 
document, such as a sworn affidavit signed before a notary public, is 
insufficient for this purpose.
    (B) Evidence must also be submitted to show that the beneficiary 
resided with the petitioner for at least two years. Generally, such 
documentation must establish that the petitioner and the beneficiary 
resided together in a parental relationship. The evidence must clearly 
indicate the physical living arrangements of the adopted child, the 
adoptive parent(s), and the natural parent(s) for the period of time 
during which the adoptive parent claims to have met the residence 
requirement.
    (C) Legal custody and residence occurring prior to or after the 
adoption will satisfy both requirements. Legal custody, like residence, 
is accounted for in the aggregate. Therefore, a break in legal custody 
or residence will not affect the time already fulfilled. To meet the 
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of 
the Act, the child must have been under 16 years of age when the 
adoption is finalized.
    (v) Name change. When the petition is filed by a child for the 
child's parent, and the parent's name is not on the child's birth 
certificate, evidence of the name change (such as the parent's marriage 
certificate, a legal document showing the parent's name change, or other 
similar evidence) must accompany the petition. If the petitioner's name 
has been legally changed, evidence of the name change must also 
accompany the petition.

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    (3) Decision on and disposition of petition. The approved petition 
will be forwarded to the Department of State's Processing Center. If the 
beneficiary is in the United States and is eligible for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the petition is denied, the petitioner will 
be notified of the reasons for the denial and of the right to appeal in 
accordance with the provisions of 8 CFR 3.3.
    (4) Derivative beneficiaries. A child or a spouse of a principal 
alien who is approved for classification as an immediate relative is not 
eligible for derivative classification and must have a separate petition 
approved on his or her behalf.
    (g) Petition for a brother or sister--(1) Eligibility. Only a United 
States citizen who is twenty-one years of age or older may file a 
petition of a brother or sister for classification under section 
203(a)(4) of the Act.
    (2) Evidence to support a petition for brother or sister. In 
addition to evidence of United States citizenship, the petitioner must 
also provide evidence of the claimed relationship.
    (i) Primary evidence if the siblings share a common mother or are 
both legitimate children of a common father. If a sibling relationship 
is claimed through a common mother, the petition must be supported by a 
birth certificate of the petitioner and a birth certificate of the 
beneficiary showing a common mother. If the mother's name on one birth 
certificate is different from her name as reflected on the other birth 
certificate or in the petition, evidence of the name change must also be 
submitted. If a sibling relationship is claimed through a common father, 
the birth certificates of the beneficiary and petitioner, a marriage 
certificate of the parents' and proof of legal termination of the 
parents, prior marriage(s), if any, issued by civil authorities must 
accompany the petition. If the father's name has been legally changed, 
evidence of the name change must also accompany the petition.
    (ii) Primary evidence if either or both siblings are legitimated. A 
child can be legitimated through the marriage of his or her natural 
parents, by the laws of the country or state of the child's residence or 
domicile, or by the laws of the country or state of the father's 
residence or domicile. If the legitimation is based on the natural 
parents' marriage, such marriage must have taken place while the child 
was under the age of eighteen. If the legitimation is based on the laws 
of the country or state of the child's residence or domicile, the law 
must have taken effect before the child's eighteenth birthday. If based 
on the laws of the country or state of the father's residence or 
domicile, the father must have resided--while the child was under 
eighteen years of age--in the country or state under whose laws the 
child has been legitimated. Primary evidence of the relationship should 
consist of the petitioner's birth certificate, the beneficiary's birth 
certificate, and the parents' marriage certificate or other evidence of 
legitimation issued by civil authorities.
    (iii) Primary evidence if either sibling is illegitimate. If one or 
both of the siblings is (are) the illegitimate child(ren) of a common 
father, the petitioner must show that they are the natural children of 
the father and that a bona fide parent-child relationship was 
established when the illegitimate child(ren) was (were) unmarried and 
under twenty-one years of age. Such a relationship will be deemed to 
exist or to have existed where the father demonstrates or has 
demonstrated an active concern for the child's support, instruction, and 
general welfare. Primary evidence is the petitioner's and beneficiary's 
birth certificates, issued by civil authorities and showing the father's 
name, and evidence that the siblings have or had a bona fide parent/
child relationship with the natural father. If the father's name has 
been legally changed, evidence of the name change must accompany the 
petition. Evidence of a parent/child relationship should establish more 
than merely a biological relationship. Emotional and/or financial ties 
or a genuine concern and interest by the father for the child's support, 
instruction, and general welfare must be shown. There should be evidence 
that the father and child actually lived together or that the father 
held the child out as being his own, that he provided for some or

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all of the child's needs, or that in general the father's behavior 
evidenced a genuine concern for the child. The most persuasive evidence 
for establishing a bona fide parent/child relationship is documentary 
evidence which was contemporaneous with the events in question. Such 
evidence may include, but is not limited to: money order receipts or 
canceled checks showing the father's financial support of the 
beneficiary; the father's income tax returns; the father's medical or 
insurance records which include the beneficiary as a dependent; school 
records for the beneficiary; correspondence between the parties; or 
notarized affidavits of friends, neighbors, school officials, or other 
associates knowledgeable about the relationship.
    (iv) Primary evidence for stepsiblings. If the petition is submitted 
on behalf of a brother or sister having a common father, the 
relationship of both the petitioner and the beneficiary to the father 
must be established as required in paragraphs (g)(2)(ii) and (g)(2)(iii) 
of this section. If the petitioner and beneficiary are stepsiblings 
through the marriages of their common father to different mothers, the 
marriage certificates of the parents and evidence of the termination of 
any prior marriages of the parents must be submitted.
    (3) Decision on and disposition of petition. The approved petition 
will be forwarded to the Department of State's Processing Center. If the 
beneficiary is in the United States and is eligible for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the petition is denied, the petitioner will 
be notified of the reasons for the denial and of the right to appeal in 
accordance with the provisions of 8 CFR 3.3.
    (4) Derivative beneficiaries. A spouse or a child accompanying or 
following to join a principal alien beneficiary under this section may 
be accorded the same preference and priority date as the principal alien 
without the necessity of a separate petition.
    (5) Name change. If the name of the petitioner, the beneficiary, or 
both has been legally changed, evidence showing the name change (such as 
a marriage certificate, a legal document showing the name change, or 
other similar evidence) must accompany the petition.
    (h) Validity of approved petitions--(1) General. Unless terminated 
pursuant to section 203(g) of the Act or revoked pursuant to part 205 of 
this chapter, the approval of a petition to classify an alien as a 
preference immigrant under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4) 
of section 203 of the Act, or as an immediate relative under section 
201(b) of the Act, shall remain valid for the duration of the 
relationship to the petitioner and of the petitioner's status as 
established in the petition.
    (2) Subsequent petition by same petitioner for same beneficiary. 
When a visa petition has been approved, and subsequently a new petition 
by the same petitioner is approved for the same preference 
classification on behalf of the same beneficiary, the latter approval 
shall be regarded as a reaffirmation or reinstatement of the validity of 
the original petition, except when the original petition has been 
terminated pursuant to section 203(g) of the Act or revoked pursuant to 
part 205 of this chapter, or when an immigrant visa has been issued to 
the beneficiary as a result of the petition approval. A self-petition 
filed under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 
204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based on the relationship 
to an abusive citizen or lawful permanent resident of the United States 
will not be regarded as a reaffirmation or reinstatement of a petition 
previously filed by the abuser. A self-petitioner who has been the 
beneficiary of a visa petition filed by the abuser to accord the self-
petitioner immigrant classification as his or her spouse or child, 
however, will be allowed to transfer the visa petition's priority date 
to the self-petition. The visa petition's priority date may be assigned 
to the self-petition without regard to the current validity of the visa 
petition. The burden of proof to establish the existence of and the 
filing date of the visa petition lies with the self-petitioner, although 
the Service will attempt to verify a claimed filing through a search of 
the Service's computerized records or other records deemed appropriate 
by the adjudicating officer. A new self-petition filed under section 
204(a)(1)(A)(iii),

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204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act will 
not be regarded as a reaffirmation or reinstatement of the original 
self-petition unless the prior and the subsequent self-petitions are 
based on the relationship to the same abusive citizen or lawful 
permanent resident of the United States.
    (i) Automatic conversion of preference classification--(1) By change 
in beneficiary's marital status. (i) A currently valid petition 
previously approved to classify the beneficiary as the unmarried son or 
daughter of a United States citizen under section 203(a)(1) of the Act 
shall be regarded as having been approved for preference status under 
section 203(a)(3) of the Act as of the date the beneficiary marries. The 
beneficiary's priority date is the same as the date the petition for 
classification under section 203(a)(1) of the Act was properly filed.
    (ii) A currently valid petition previously approved to classify a 
child of a United States citizen as an immediate relative under section 
201(b) of the Act shall be regarded as having been approved for 
preference status under section 203(a)(3) of the Act as of the date the 
beneficiary marries. The beneficiary's priority date is the same as the 
date the petition for 201(b) classification was properly filed.
    (iii) A currently valid petition classifying the married son or 
married daughter of a United States citizen for preference status under 
section 203(a)(3) of the Act shall, upon legal termination of the 
beneficiary's marriage, be regarded as having been approved under 
section 203(a)(1) of the Act if the beneficiary is over twenty-one years 
of age. The beneficiary's priority date is the same as the date the 
petition for classification under section 203(a)(3) of the Act was 
properly filed. If the beneficiary is under twenty-one years of age, the 
petition shall be regarded as having been approved for classification as 
an immediate relative under section 201(b) of the Act as of the date the 
petition for classification under section 203(a)(3) of the Act was 
properly filed.
    (2) By the beneficiary's attainment of the age of twenty-one years. 
A currently valid petition classifying the child of a United States 
citizen as an immediate relative under section 201(b) of the Act shall 
be regarded as having been approved for preference status under section 
203(a)(1) of the Act as of the beneficiary's twenty-first birthday. The 
beneficiary's priority date is the same as the date the petition for 
section 201(b) classification was filed.
    (3) By the petitioner's naturalization. Effective upon the date of 
naturalization of a petitioner who had been lawfully admitted for 
permanent residence, a currently valid petition according preference 
status under section 203(a)(2) of the Act to the petitioner's spouse and 
unmarried children under twenty-one years of age shall be regarded as 
having been approved for immediate relative status under section 201(b) 
of the Act. Similarly, a currently valid petition according preference 
status under section 203(a)(2) of the Act for the unmarried son or 
daughter over twenty-one years of age shall be regarded as having been 
approved under section 203(a)(1) of the Act. In any case of conversion 
to classification under section 203(a)(1) of the Act, the beneficiary's 
priority date is the same as the date the petition for classification 
under section 203(a)(2) of the Act was properly filed. A self-petition 
filed under section 204(a)(1)(B)(ii) or 204(a)(1)(B)(iii) of the Act 
based on the relationship to an abusive lawful permanent resident of the 
United States for classification under section 203(a)(2) of the Act will 
not be affected by the abuser's naturalization and will not be 
automatically converted to a petition for immediate relative 
classification.

[57 FR 41057, Sept. 9, 1992, as amended at 60 FR 34090, June 30, 1995; 
60 FR 38948, July 31, 1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62 
FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13, 1997]



Sec. 204.3  Orphans.

    (a) General--(1) Background. This section addresses a number of 
issues that have arisen in the recent past because of the increased 
interest by United States citizens in the adoption of foreign-born 
orphans and is based on applicable provisions of the Act. It should be 
noted that this section was not drafted in connection with possible

[[Page 132]]

United States ratification and implementation of the Hague Convention on 
Protection of Children and Cooperation in Respect of Inter-country 
Adoption.
    (2) Overview. The processing and adjudication of orphan cases is a 
Service priority. A child who meets the definition of orphan contained 
in section 101(b)(1)(F) of the Act is eligible for classification as the 
immediate relative of a United States citizen. Petitioning for an orphan 
involves two distinct determinations. The first determination concerns 
the advanced processing application which focuses on the ability of the 
prospective adoptive parents to provide a proper home environment and on 
their suitability as parents. This determination, based primarily on a 
home study and fingerprint checks, is essential for the protection of 
the orphan. The second determination concerns the orphan petition which 
focuses on whether the child is an orphan under section 101(b)(1)(F) of 
the Act. The prospective adoptive parents may submit the documentation 
necessary for each of these determinations separately or at one time, 
depending on when the orphan is identified. An orphan petition cannot be 
approved unless there is a favorable determination on the advanced 
processing application. However, a favorable determination on the 
advanced processing application does not guarantee that the orphan 
petition will be approved. Prospective adoptive parents may consult with 
the local Service office on matters relating to an advanced processing 
application and/or orphan petition.
    (b) Definitions. As used in this section, the term:
    Abandonment by both parents means that the parents have willfully 
forsaken all parental rights, obligations, and claims to the child, as 
well as all control over and possession of the child, without intending 
to transfer, or without transferring, these rights to any specific 
person(s). Abandonment must include not only the intention to surrender 
all parental rights, obligations, and claims to the child, and control 
over and possession of the child, but also the actual act of surrending 
such rights, obligations, claims, control, and possession. A 
relinquishment or release by the parents to the prospective adoptive 
parents or for a specific adoption does not constitute abandonment. 
Similarly, the relinquishment or release of the child by the parents to 
a third party for custodial care in anticipation of, or preparation for, 
adoption does not constitute abandonment unless the third party (such as 
a governmental agency, a court of competent jurisdiction, an adoption 
agency, or an orphanage) is authorized under the child welfare laws of 
the foreign-sending country to act in such a capacity. A child who is 
placed temporarily in an orphanage shall not be considered to be 
abandoned if the parents express an intention to retrieve the child, are 
contributing or attempting to contribute to the support of the child, or 
otherwise exhibit ongoing parental interest in the child. A child who 
has been given unconditionally to an orphanage shall be considered to be 
abandoned.
    Adult member of the prospective adoptive parents' household means an 
individual, other than a prospective adoptive parent, over the age of 18 
whose principal or only residence is the home of the prospective 
adoptive parents. This definition excludes any child of the prospective 
adoptive parents, whose principal or only residence is the home of the 
prospective adoptive parents, who reaches his or her eighteenth birthday 
after the prospective adoptive parents have filed the advanced 
processing application (or the advanced processing application 
concurrently with the orphan petition) unless the director has an 
articulable and substantive reason for requiring an evaluation by a home 
study preparer and/or fingerprint check.
    Advanced processing application means Form I-600A (Application for 
Advanced Processing of Orphan Petition) completed in accordance with the 
form's instructions and submitted with the required supporting 
documentation and the fee as required in 8 CFR 103.7(b)(1). The 
application must be signed in accordance with the form's instructions by 
the married petitioner and spouse, or by the unmarried petitioner.
    Application is synonymous with advanced processing application.

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    Competent authority means a court or governmental agency of a 
foreign-sending country having jurisdiction and authority to make 
decisions in matters of child welfare, including adoption.
    Desertion by both parents means that the parents have willfully 
forsaken their child and have refused to carry out their parental rights 
and obligations and that, as a result, the child has become a ward of a 
competent authority in accordance with the laws of the foreign-sending 
country.
    Disappearance of both parents means that both parents have 
unaccountably or inexplicably passed out of the child's life, their 
whereabouts are unknown, there is no reasonable hope of their 
reappearance, and there has been a reasonable effort to locate them as 
determined by a competent authority in accordance with the laws of the 
foreign-sending country.
    Foreign-sending country means the country of the orphan's 
citizenship, or if he or she is not permanently residing in the country 
of citizenship, the country of the orphan's habitual residence. This 
excludes a country to which the orphan travels temporarily, or to which 
he or she travels either as a prelude to, or in conjunction with, his or 
her adoption and/or immigration to the United States.
    Home study preparer means any party licensed or otherwise authorized 
under the law of the State of the orphan's proposed residence to conduct 
the research and preparation for a home study, including the required 
personal interview(s). This term includes a public agency with authority 
under that State's law in adoption matters, public or private adoption 
agencies licensed or otherwise authorized by the laws of that State to 
place children for adoption, and organizations or individuals licensed 
or otherwise authorized to conduct the research and preparation for a 
home study, including the required personal interview(s), under the laws 
of the State of the orphan's proposed residence. In the case of an 
orphan whose adoption has been finalized abroad and whose adoptive 
parents reside abroad, the home study preparer includes any party 
licensed or otherwise authorized to conduct home studies under the law 
of any State of the United States, or any party licensed or otherwise 
authorized by the foreign country's adoption authorities to conduct home 
studies under the laws of the foreign country.
    Incapable of providing proper care means that a sole or surviving 
parent is unable to provide for the child's basic needs, consistent with 
the local standards of the foreign sending country.
    Loss from both parents means the involuntary severance or detachment 
of the child from the parents in a permanent manner such as that caused 
by a natural disaster, civil unrest, or other calamitous event beyond 
the control of the parents, as verified by a competent authority in 
accordance with the laws of the foreign sending country.
    Orphan petition means Form I-600 (Petition to Classify Orphan as an 
Immediate Relative). The petition must be completed in accordance with 
the form's instructions and submitted with the required supporting 
documentation and, if there is not an advanced processing application 
approved within the previous 18 months or pending, the fee as required 
in 8 CFR 103.7(b)(1). The petition must be signed in accordance with the 
form's instructions by the married petitioner and spouse, or the 
unmarried petitioner.
    Overseas site means the Department of State immigrant visa-issuing 
post having jurisdiction over the orphan's residence, or in foreign 
countries in which the Services has an office or offices, the Service 
office having jurisdiction over the orphan's residence.
    Petition is synonymous with orphan petition.
    Petitioner means a married United States citizen of any age, or an 
unmarried United States citizen who is at least 24 years old at the time 
he or she files the advanced processing application and at least 25 
years old at the time he or she files the orphan petition. In the case 
of a married couple, both of whom are United States citizens, either 
party may be the petitioner.
    Prospective adoptive parents means a married United States citizen 
of any age and his or her spouse of any age, or an unmarried United 
States citizen who is at least 24 years old at the time he or she files 
the advanced processing

[[Page 134]]

application and at least 25 years old at the time he or she files the 
orphan petition. The spouse of the United States citizen may be a 
citizen or an alien. An alien spouse must be in lawful immigration 
status if residing in the United States.
    Separation from both parents means the involuntary severance of the 
child from his or her parents by action of a competent authority for 
good cause and in accordance with the laws of the foreign-sending 
country. The parents must have been properly notified and granted the 
opportunity to contest such action. The termination of all parental 
rights and obligations must be permanent and unconditional.
    Sole parent means the mother when it is established that the child 
is illegitimate and has not acquired a parent within the meaning of 
section 101(b)(2) of the Act. An illegitimate child shall be considered 
to have a sole parent if his or her father has severed all parental 
ties, rights, duties, and obligations to the child, or if his or her 
father has, in writing, irrevocably released the child for emigration 
and adoption. This definition is not applicable to children born in 
countries which make no distinction between a child born in or out of 
wedlock, since all such children are considered to be legitimate. In all 
cases, a sole parent must be incapable of providing proper care as that 
term is defined in this section.
    Surviving parent means the child's living parent when the child's 
other parent is dead, and the child has not acquired another parent 
within the meaning of section 101(b)(2) of the Act. In all cases, a 
surviving parent must be incapable of providing proper care as that term 
is defined in this section.
    (c) Supporting documentation for an advanced processing application. 
The prospective adoptive parents may file an advanced processing 
application before an orphan is identified in order to secure the 
necessary clearance to file the orphan petition. Any document not in the 
English language must be accompanied by a certified English translation.
    (1) Required supporting documentation that must accompany the 
advanced processing application. The following supporting documentation 
must accompany an advanced processing application at the time of filing:
    (i) Evidence of the petitioner's United States citizenship as set 
forth in Sec. 204.1(g) and, if the petitioner is married and the married 
couple is residing in the United States, evidence of the spouse's United 
States citizenship or lawful immigration status;
    (ii) A copy of the petitioner's marriage certificate to his or her 
spouse, if the petitioner is currently married;
    (iii) Evidence of legal termination of all previous marriages for 
the petitioner and/or spouse, if previously married; and
    (iv) Evidence of compliance with preadoption requirements, if any, 
of the State of the orphan's proposed residence in cases where it is 
known that there will be no adoption abroad, or that both members of the 
married prospective adoptive couple or the unmarried prospective 
adoptive parent will not personally see the child prior to, or during, 
the adoption abroad, and/or that the adoption abroad will not be full 
and final. Any preadoption requirements which cannot be met at the time 
the advanced processing application is filed because of operation of 
State law must be noted and explained when the application is filed. 
Preadoption requirements must be met at the time the petition is filed, 
except for those which cannot be met until the orphan arrives in the 
United States.
    (2) Home study. The home study must comply with the requirements 
contained in paragraph (e) of this section. If the home study is not 
submitted when the advanced processing application is filed, it must be 
submitted within one year of the filing date of the advanced processing 
application, or the application will be denied pursuant to paragraph 
(h)(5) of this section.
    (3) After receipt of a properly filed advanced processing 
application, the Service will fingerprint each member of the married 
prospective adoptive couple or the unmarried prospective adoptive 
parent, as prescribed in Sec. 103.2(e) of this chapter. The Service will 
also fingerprint each additional adult member of the prospective 
adoptive parents' household, as prescribed in Sec. 103.2(e) of this 
chapter. The Service may waive the requirement that each

[[Page 135]]

additional adult member of the prospective adoptive parents' household 
be fingerprinted when it determines that such adult is physically unable 
to be fingerprinted because of age or medical condition.
    (d) Supporting documentation for a petition for an identified 
orphan. Any document not in the English language must be accompanied by 
a certified English translation. If an orphan has been identified for 
adoption and the advanced processing application is pending, the 
prospective adoptive parents may file the orphan petition at the Service 
office where the application is pending. The prospective adoptive 
parents who have an approved advanced processing application must file 
an orphan petition and all supporting documents within eighteen months 
of the date of the approval of the advanced processing application. If 
the prospective adoptive parents fail to file the orphan petition within 
the eighteen-month period, the advanced processing application shall be 
deemed abandoned pursuant to paragraph (h)(7) of this section. If the 
prospective adoptive parents file the orphan petition after the 
eighteen-month period, the petition shall be denied pursuant to 
paragraph (h)(13) of this section. Prospective adoptive parents who do 
not have an advanced processing application approved or pending may file 
the application and petition concurrently on one Form I-600 if they have 
identified an orphan for adoption. An orphan petition must be 
accompanied by full documentation as follows:
    (1) Filing an orphan petition after the advanced processing 
application has been approved. The following supporting documentation 
must accompany an orphan petition filed after approval of the advanced 
processing application:
    (i) Evidence of approval of the advanced processing application;
    (ii) The orphan's birth certificate, or if such a certificate is not 
available, an explanation together with other proof of identity and age;
    (iii) Evidence that the child is an orphan as appropriate to the 
case:
    (A) Evidence that the orphan has been abandoned or deserted by, 
separated or lost from both parents, or that both parents have 
disappeared as those terms are defined in paragraph (b) of this section; 
or
    (B) The death certificate(s) of the orphan's parent(s), if 
applicable;
    (C) If the orphan has only a sole or surviving parent, as defined in 
paragraph (b) of this section, evidence of this fact and evidence that 
the sole or surviving parent is incapable of providing for the orphan's 
care and has irrevocably released the orphan for emigration and 
adoption; and
    (iv) Evidence of adoption abroad or that the prospective adoptive 
parents have, or a person or entity working on their behalf has, custody 
of the orphan for emigration and adoption in accordance with the laws of 
the foreign-sending country:
    (A) A legible, certified copy of the adoption decree, if the orphan 
has been the subject of a full and final adoption abroad, and evidence 
that the unmarried petitioner, or married petitioner and spouse, saw the 
orphan prior to or during the adoption proceeding abroad; or
    (B) If the orphan is to be adopted in the United States because 
there was no adoption abroad, or the unmarried petitioner, or married 
petitioner and spouse, did not personally see the orphan prior to or 
during the adoption proceeding abroad, and/or the adoption abroad was 
not full and final:
    (1) Evidence that the prospective adoptive parents have, or a person 
or entity working on their behalf has, secured custody of the orphan in 
accordance with the laws of the foreign-sending country;
    (2) An irrevocable release of the orphan for emigration and adoption 
from the person, organization, or competent authority which had the 
immediately previous legal custody or control over the orphan if the 
adoption was not full and final under the laws of the foreign-sending 
country;
    (3) Evidence of compliance with all preadoption requirements, if 
any, of the State of the orphan's proposed residence. (Any such 
requirements that cannot be complied with prior to the orphan's arrival 
in the United States because of State law must be noted and explained); 
and

[[Page 136]]

    (4) Evidence that the State of the orphan's proposed residence 
allows readoption or provides for judicial recognition of the adoption 
abroad if there was an adoption abroad which does not meet statutory 
requirements pursuant to section 101(b)(1)(F) of the Act, because the 
unmarried petitioner, or married petitioner and spouse, did not 
personally see the orphan prior to or during the adoption proceeding 
abroad, and/or the adoption abroad was not full and final.
    (2) Filing an orphan petition while the advanced processing 
application is pending. An orphan petition filed while an advanced 
processing application is pending must be filed at the Service office 
where the application is pending. The following supporting documentation 
must accompany an orphan petition filed while the advanced processing 
application is pending:
    (i) A photocopy of the fee receipt relating to the advanced 
processing application, or if not available, other evidence that the 
advanced processing application has been filed, such as a statement 
including the date when the application was filed;
    (ii) The home study, if not already submitted; and
    (iii) The supporting documentation for an orphan petition required 
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of 
this section.
    (3) Filing an orphan petition concurrently with the advanced 
processing application. A petition filed concurrently with the advanced 
processing application must be submitted on Form I-600, completed and 
signed in accordance with the form's instructions. (Under this 
concurrent procedure, Form I-600 serves as both the Forms I-600A and I-
600, and the prospective adoptive parents should not file a separate 
Form I-600A). The following supporting documentation must accompany a 
petition filed concurrently with the application under this provision:
    (i) The supporting documentation for an advanced processing 
application required in paragraph (c) of this section; and
    (ii) The supporting documentation for an orphan petition required in 
paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this 
section.
    (e) Home study requirements. For immigration purposes, a home study 
is a process for screening and preparing prospective adoptive parents 
who are interested in adopting an orphan from another country. The home 
study should be tailored to the particular situation of the prospective 
adoptive parents: for example, a family which previously has adopted 
children will require different preparation than a family that has no 
adopted children. If there are any additional adult members of the 
prospective adoptive parents' household, the home study must address 
this fact. The home study preparer must interview any additional adult 
member of the prospective adoptive parents' household and assess him or 
her in light of the requirements of paragraphs (e)(1), (e)(2)(i), (iii), 
(iv), and (v) of this section. A home study must be conducted by a home 
study preparer, as defined in paragraph (b) of this section. The home 
study, or the most recent update to the home study, must not be more 
than six months old at the time the home study is submitted to the 
Service. Only one copy of the home study must be submitted to the 
Service. Ordinarily, a home study (or a home study and update as 
discussed above) will not have to be updated after it has been submitted 
to the Service unless there is a significant change in the household of 
the prospective adoptive parents such as a change in residence, marital 
status, criminal history, financial resources, and/or the addition of 
one or more children or other dependents to the family prior to the 
orphan's immigration into the United States. In addition to meeting any 
State, professional, or agency requirements, a home study must include 
the following:
    (1) Personal interview(s) and home visit(s). The home study preparer 
must conduct at least one interview in person, and at least one home 
visit, with the prospective adoptive couple or the unmarried prospective 
adoptive parent. Each additional adult member of the prospective 
adoptive parents' household must also be interviewed in person at least 
once. The home study report must state the number of such interviews and 
visits, and must specify any other contacts with the prospective

[[Page 137]]

adoptive parents and any adult member of the prospective adoptive 
parents' household.
    (2) Assessment of the capabilities of the prospective adoptive 
parents to properly parent the orphan. The home study must include a 
discussion of the following areas:
    (i) Assessment of the physical, mental, and emotional capabilities 
of the prospective adoptive parents to properly parent the orphan. The 
home study preparer must make an initial assessment of how the physical, 
mental, and emotional health of the prospective adoptive parents would 
affect their ability to properly care for the prospective orphan. If the 
home study preparer determines that there are areas beyond his or her 
expertise which need to be addressed, he or she shall refer the 
prospective adoptive parents to an appropriate licensed professional, 
such as a physician, psychiatrist, clinical psychologist, or clinical 
social worker for an evaluation. Some problems may not necessarily 
disqualify applicants. For example, certain physical limitations may 
indicate which categories of children may be most appropriately placed 
with certain prospective adoptive parents. Certain mental and emotional 
health problems may be successfully treated. The home study must include 
the home study preparer's assessment of any such potential problem 
areas, a copy of any outside evaluation(s), and the home study 
preparer's recommended restrictions, if any, on the characteristics of 
the child to be placed in the home. Additionally, the home study 
preparer must apply the requirements of this paragraph to each adult 
member of the prospective adoptive parents' household.
    (ii) Assessment of the finances of the prospective adoptive parents. 
The financial assessment must include a description of the income, 
financial resources, debts, and expenses of the prospective adoptive 
parents. A statement concerning the evidence that was considered to 
verify the source and amount of income and financial resources must be 
included. Any income designated for the support of one or more children 
in the care and custody of the prospective adoptive parents, such as 
funds for foster care, or any income designated for the support of 
another member of the household must not be counted towards the 
financial resources available for the support of a prospective orphan. 
The Service will not routinely require a detailed financial statement or 
supporting financial documents. However, should the need arise, the 
Service reserves the right to ask for such detailed documentation.
    (iii) History of abuse and/or violence.
    (A) Screening for abuse and violence.
    (1) Checking available child abuse registries. The home study 
preparer must ensure that a check of each prospective adoptive parent 
and each adult member of the prospective adoptive parents' household has 
been made with available child abuse registries and must include in the 
home study the results of the checks including, if applicable, a report 
that no record was found to exist. Depending on the access allowed by 
the state of proposed residence of the orphan, the home study preparer 
must take one of the following courses of action:
    (i) If the home study preparer is allowed access to information from 
the child abuse registries, he or she shall make the appropriate checks 
for each of the prospective adoptive parents and for each adult member 
of the prospective adoptive parents' household;
    (ii) If the State requires the home study preparer to secure 
permission from each of the prospective adoptive parents and for each 
adult member of the prospective adoptive parents' household before 
gaining access to information in such registries, the home study 
preparer must secure such permission from those individuals, and make 
the appropriate checks;
    (iii) If the State will only release information directly to each of 
the prospective adoptive parents and directly to the adult member of the 
prospective adoptive parents' household, those individuals must secure 
such information and provide it to the home study preparer. The home 
study preparer must include the results of these checks in the home 
study;
    (iv) If the State will not release information to either the home 
study preparer or the prospective adoptive parents and the adult members 
of the prospective adoptive parents' household,

[[Page 138]]

this must be noted in the home study; or
    (v) If the State does not have a child abuse registry, this must be 
noted in the home study.
    (2) Inquiring about abuse and violence. The home study preparer must 
ask each prospective adoptive parent whether he or she has a history of 
substance abuse, sexual or child abuse, or domestic violence, even if it 
did not result in an arrest or conviction. The home study preparer must 
include each prospective adoptive parent's response to the questions 
regarding abuse and violence. Additionally, the home study preparer must 
apply the requirements of this paragraph to each adult member of the 
prospective adoptive parents' household.
    (B) Information concerning history of abuse and/or violence. If the 
petitioner and/or spouse, if married, disclose(s) any history of abuse 
and/or violence as set forth in paragraph (e)(2)(iii)(A) of this 
section, or if, in the absence of such disclosure, the home study 
preparer becomes aware of any of the foregoing, the home study report 
must contain an evaluation of the suitability of the home for adoptive 
placement of an orphan in light of this history. This evaluation must 
include information concerning all arrests or convictions or history of 
substance abuse, sexual or child abuse, and/or domestic violence and the 
date of each occurrence. A certified copy of the documentation showing 
the final disposition of each incident, which resulted in arrest, 
indictment, conviction, and/or any other judicial or administrative 
action, must accompany the home study. Additionally, the prospective 
adoptive parent must submit a signed statement giving details including 
mitigating circumstances, if any, about each incident. The home study 
preparer must apply the requirements of this paragraph to each adult 
member of the prospective adoptive parents' household.
    (C) Evidence of rehabilitation. If a prospective adoptive parent has 
a history of substance abuse, sexual or child abuse, and/or domestic 
violence, the home study preparer may, nevertheless, make a favorable 
finding if the prospective adoptive parent has demonstrated appropriate 
rehabilitation. In such a case, a discussion of such rehabilitation 
which demonstrates that the prospective adoptive parent is and will be 
able to provide proper care for the orphan must be included in the home 
study. Evidence of rehabilitation may include an evaluation of the 
seriousness of the arrest(s), conviction(s), or history of abuse, the 
number of such incidents, the length of time since the last incident, 
and any type of counseling or rehabilitation programs which have been 
successfully completed. Evidence of rehabilitation may also be provided 
by an appropriate licensed professional, such as a psychiatrist, 
clinical psychologist, or clinical social worker. The home study report 
must include all facts and circumstances which the home study preparer 
has considered, as well as the preparer's reasons for a favorable 
decision regarding the prospective adoptive parent. Additionally, if any 
adult member of the prospective adoptive parents' household has a 
history of substance abuse, sexual or child abuse, and/or domestic 
violence, the home study preparer must apply the requirements of this 
paragraph to that adult member of the prospective adoptive parents' 
household.
    (D) Failure to disclose or cooperate. Failure to disclose an arrest, 
conviction, or history of substance abuse, sexual or child abuse, and/or 
domestic violence by the prospective adoptive parents or an adult member 
of the prospective adoptive parents' household to the home study 
preparer and to the Service, may result in the denial of the advanced 
processing application or, if applicable, the application and orphan 
petition, pursuant to paragraph (h)(4) of this section. Failure by the 
prospective adoptive parents or an adult member of the prospective 
adoptive parents' household to cooperate in having available child abuse 
registries in accordance with paragraphs (e)(2)(iii)(A)(1) and 
(e)(2)(iii)(A)(1)(i) through (e)(2)(iii)(A)(1)(iii) of this section will 
result in the denial of the advanced processing application or, if 
applicable, the application and orphan petition, pursuant to paragraph 
(h)(4) of this section.
    (iv) Previous rejection for adoption or prior unfavorable home 
study. The home

[[Page 139]]

study preparer must ask each prospective adoptive parent whether he or 
she previously has been rejected as a prospective adoptive parent or has 
been the subject of an unfavorable home study, and must include each 
prospective adoptive parent's response to this question in the home 
study report. If a prospective adoptive parent previously has been 
rejected or found to be unsuitable, the reasons for such a finding must 
be set forth as well as the reason(s) why he or she is not being 
favorably considered as a prospective adoptive parent. A copy of each 
previous rejection and/or unfavorable home study must be attached to the 
favorable home study. Additionally, the home study preparer must apply 
the requirements of this paragraph to each adult member of the 
prospective adoptive parents' household.
    (v) Criminal history. The prospective adoptive parents and the adult 
members of the prospective adoptive parents' household are expected to 
disclose to the home study preparer and the Service any history of 
arrest and/or conviction early in the advanced processing procedure. 
Failure to do so may result in denial pursuant to paragraph (h)(4) of 
this section or in delays. Early disclosure provides the prospective 
adoptive parents with the best opportunity to gather and present 
evidence, and it gives the home study preparer and the Service the 
opportunity to properly evaluate the criminal record in light of such 
evidence. When such information is not presented early in the process, 
it comes to light when the fingerprint checks are received by the 
Service. By that time, the prospective adoptive parents are usually well 
into preadoption proceedings of identifying a child and may even have 
firm travel plans. At times, the travel plans have to be rescheduled 
while the issues raised by the criminal record are addressed. It is in 
the best interests of all parties to have any criminal records disclosed 
and resolved early in the process.
    (3) Living accommodations. The home study must include a detailed 
description of the living accommodations where the prospective adoptive 
parents currently reside. If the prospective adoptive parents are 
planning to move, the home study must include a description of the 
living accommodations where the child will reside with the prospective 
adoptive parents, if known. If the prospective adoptive parents are 
residing abroad at the time of the home study, the home study must 
include a description of the living accommodations where the child will 
reside in the United States with the prospective adoptive parents, if 
known. Each description must include an assessment of the suitability of 
accommodations for a child and a determination whether such space meets 
applicable State requirements, if any.
    (4) Handicapped or special needs orphan. A home study conducted in 
conjunction with the proposed adoption of a special needs or handicapped 
orphan must contain a discussion of the prospective adoptive parents' 
preparation, willingness, and ability to provide proper care for such an 
orphan.
    (5) Summary of the counseling given and plans for post-placement 
counseling. The home study must include a summary of the counseling 
given to prepare the prospective adoptive parents for an international 
adoption and any plans for post-placement counseling. Such preadoption 
counseling must include a discussion of the processing, expenses, 
difficulties, and delays associated with international adoptions.
    (6) Specific approval of the prospective adoptive parents for 
adoption. If the home study preparer's findings are favorable, the home 
study must contain his or her specific approval of the prospective 
adoptive parents for adoption and a discussion of the reasons for such 
approval. The home study must include the number of orphans which the 
prospective adoptive parents may adopt. The home study must state 
whether there are any specific restrictions to the adoption such as 
nationality, age, or gender of the orphan. If the home study preparer 
has approved the prospective parents for a handicapped or special needs 
adoption, this fact must be clearly stated.
    (7) Home study preparer's certification and statement of authority 
to conduct home studies. The home study must include a statement in 
which the home study preparer certifies that he or she is licensed or 
otherwise authorized by

[[Page 140]]

the State of the orphan's proposed residence to research and prepare 
home studies. In the case of an orphan whose adoption was finalized 
abroad and whose adoptive parents reside abroad, the home study preparer 
must certify that he or she is licensed or otherwise authorized to 
conduct home studies under the law of any State of the United States, or 
authorized by the adoption authorities of the foreign country to conduct 
home studies under the laws of the foreign country. In every case, this 
statement must cite the State or country under whose authority the home 
study preparer is licensed or authorized, the specific law or regulation 
authorizing the preparer to conduct home studies, the license number, if 
any, and the expiration date, if any, of this authorization or license.
    (8) Review of home study. If the prospective adoptive parents reside 
in a State which requires the State to review the home study, such a 
review must occur and be documented before the home study is submitted 
to the Service. If the prospective adoptive parents reside abroad, an 
appropriate public or private adoption agency licensed, or otherwise 
authorized, by any State of the United States to place children for 
adoption, must review and favorably recommend the home study before it 
is submitted to the Service.
    (9) Home study updates and amendments--(i) Updates. If the home 
study is more than six months old at the time it would be submitted to 
the Service, the prospective adoptive parents must ensure that it is 
updated by a home study preparer before it is submitted to the Service. 
Each update must include screening in accordance with paragraphs 
(e)(2)(iii) (A) and (B) of this section.
    (ii) Amendments. If there have been any significant changes, such as 
a change in the residence of the prospective adoptive parents, marital 
status, criminal history, financial resources, and/or the addition of 
one or more children or other dependents to the family, the prospective 
adoptive parents must ensure that the home study is amended by a home 
study preparer to reflect any such changes. If the orphan's proposed 
State of residence has changed, the home study amendment must contain a 
recommendation in accordance with paragraph (e)(8) of this section, if 
required by State law. Any preadoption requirements of the new State 
must be complied with in the case of an orphan coming to the United 
States to be adopted.
    (10) ``Grandfather'' provision for home study. A home study properly 
completed in conformance with the regulations in force prior to 
September 30, 1994, shall be considered acceptable if submitted to the 
Service within 90 days of September 30, 1994. Any such home study 
accepted under this ``grandfather'' provision must include screening in 
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section. 
Additionally, any such home study submitted under this ``grandfather'' 
provision which is more than six months old at the time of its 
submission must be amended or updated pursuant to the requirements of 
paragraph (e)(9) of this section.
    (f) State preadoption requirements--(1) General. Many States have 
preadoption requirements which, under the Act, must be complied with in 
every case in which a child is coming to such a State as an orphan to be 
adopted in the United States.
    (2) Child coming to be adopted in the United States. An orphan is 
coming to be adopted in the United States if he or she will not be or 
has not been adopted abroad, or if the unmarried petitioner or both the 
married petitioner and spouse did not or will not personally see the 
orphan prior to or during the adoption proceeding abroad, and/or if the 
adoption abroad will not be, or was not, full and final. If the 
prospective adoptive parents reside in a State with preadoption 
requirements and they plan to have the child come to the United States 
for adoption, they must submit evidence of compliance with the State's 
preadoption requirements to the Service. Any preadoption requirements 
which by operation of State law cannot be met before filing the advanced 
processing application must be noted. Such requirements must be met 
prior to filing the petition, except for those which cannot be met by 
operation of State law until the orphan is physically in the United

[[Page 141]]

States. Those requirements which cannot be met until the orphan is 
physically present in the United States must be noted.
    (3) Special circumstances. If both members of the prospective 
adoptive couple or the unmarried prospective adoptive parent intend to 
travel abroad to see the child prior to or during the adoption, the Act 
permits the application and/or petition, if otherwise approvable, to be 
approved without preadoption requirements having been met. However, if 
plans change and both members of the prospective adoptive couple or the 
unmarried prospective adoptive parent fail to see the child prior to or 
during the adoption, then preadoption requirements must be met before 
the immigrant visa can be issued, except for those preadoption 
requirements that cannot be met until the child is physically in the 
United States because of operation of State law.
    (4) Evidence of compliance. In every case where compliance with 
preadoption requirements is required, the evidence of compliance must be 
in accordance with applicable State law, regulation, and procedure.
    (g) Where to file--(1) Where to file an advanced processing 
application. An advanced processing application must be filed with the 
Service as follows:
    (i) Prospective adoptive parents residing in the United States. If 
the prospective adoptive parents reside in the United States, the 
application must be filed with the Service office having jurisdiction 
over their place of residence.
    (ii) Prospective adoptive parents residing in Canada. If the 
prospective adoptive parents reside in Canada, the application must be 
filed with the stateside Service office having jurisdiction over the 
proposed place of residence of the prospective adoptive parents in the 
United States.
    (iii) Prospective adoptive parents residing in a foreign country 
other than Canada. If the prospective adoptive parents reside outside of 
the United States or Canada, the application may be filed with the 
overseas Service office having jurisdiction over the current place of 
residence pursuant to Sec. 100.4(b) of this chapter, or with the 
stateside Service office having jurisdiction over the proposed place of 
residence of the prospective adoptive parents in the United States.
    (2) Where to file an orphan petition when the advanced processing 
application has been approved. An orphan petition must be filed with the 
appropriate Service office or immigrant visa-issuing post of the 
Department of State as follows:
    (i) Prospective adoptive parents residing in the United States who 
do not travel abroad to locate and/or adopt an orphan. If the 
prospective adoptive parents reside in the United States and do not 
travel abroad to locate and/or adopt an orphan, the petition must be 
filed with the Service office having jurisdiction over the place of 
residence of the prospective adoptive parents.
    (ii) Prospective adoptive parents residing in the United States, 
with one or both members of the prospective adoptive couple, or the 
unmarried prospective adoptive parent, traveling abroad to locate and/or 
adopt an orphan. If the prospective adoptive parents reside in the 
United States, and one or both members of the prospective adoptive 
couple, or the unmarried prospective adoptive parent, travel abroad to 
locate and/or adopt an orphan, the petition may be filed with the 
stateside Service office having jurisdiction over the place of residence 
of the prospective adoptive parents in the United States or at the 
overseas site. The petitioner may file the orphan petition at the 
overseas site only while he or she is physically present within the 
jurisdiction of the overseas site. If only one member of a married 
couple, which includes an alien, travels abroad to file the petition, it 
must be the United States citizen who travels abroad so that the 
overseas site will have jurisdiction over the petition.
    (iii) Prospective adoptive parents residing outside the United 
States. Prospective adoptive parents residing outside of the United 
States may file the petition with the overseas site, or with the 
stateside Service office having jurisdiction over the proposed place of 
residence of the prospective adoptive parents in the United States.
    (3) Where to file an orphan petition when the advanced processing 
application

[[Page 142]]

is pending. When the advanced processing application is pending, the 
petition must be filed at the Service office at which the application is 
pending.
    (4) Where to file an orphan petition concurrently with the advanced 
processing application. When the petition is filed concurrently with the 
advanced processing application, it must be filed in accordance with the 
instruction for filing an advanced processing application in paragraphs 
(g)(1)(i) through (g)(1)(iii) of this section.
    (h) Adjudication and decision--(1) ``Grandfather'' provision for 
advanced processing application and/or orphan petition. All applications 
and petitions filed under prior regulations which are filed before and 
are still pending on September 30, 1994, shall be processed and 
adjudicated under the prior regulations.
    (2) Director's responsibility to make an independent decision in an 
advanced processing application. No advanced processing application 
shall be approved unless the director is satisfied that proper care will 
be provided for the orphan. If the director has reason to believe that a 
favorable home study, or update, or both are based on an inadequate or 
erroneous evaluation of all the facts, he or she shall attempt to 
resolve the issue with the home study preparer, the agency making the 
recommendation pursuant to paragraph (e)(8) of this section, if any, and 
the prospective adoptive parents. If such consultations are 
unsatisfactory, the director may request a review and opinion from the 
appropriate State Government authorities.
    (3) Advanced processing application approved. If the advanced 
processing application is approved, the prospective adoptive parents 
shall be advised in writing. The application and supporting documents 
shall be forwarded to the overseas site where the orphan resides. 
Additionally, if the petitioner advises the director that he or she 
intends to travel abroad to file the petition, telegraphic notification 
shall be sent overseas as detailed in paragraph (j)(1) of this section. 
The approved application shall be valid for eighteen months from its 
approval date. During this time, the prospective adoptive parents may 
file an orphan petition for one orphan without fee. If approved in the 
home study for more than one orphan, the prospective adoptive parents 
may file a petition for each of the additional children, to the maximum 
number approved. If the orphans are siblings, no additional fee is 
required. If the orphans are not siblings, an additional fee is required 
for each orphan beyond the first orphan. Approval of an advanced 
processing application does not guarantee that the orphan petition will 
be approved.
    (4) Advanced processing application denied for failure to disclose 
history of abuse and/or violence, or for failure to disclose a criminal 
history, or for failure to cooperate in checking child abuse registries. 
Failure to disclose an arrest, conviction, or history of substance 
abuse, sexual or child abuse, and/or domestic violence, or a criminal 
history to the home study preparer and to the Service in accordance with 
paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of this section may 
result in the denial of the advanced processing application, or if 
applicable, the application and orphan petition filed concurrently. 
Failure by the prospective adoptive parents or an adult member of the 
prospective adoptive parents' household to cooperate in having available 
child abuse registries checked in accordance with paragraphs 
(e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) through 
(e)(2)(iii)(A)(1)(iii) of this section will result in the denial of the 
advanced processing application or, if applicable, the application and 
orphan petition filed concurrently. Any new application and/or petition 
filed within a year of such denial will also be denied.
    (5) Advanced processing denied for failure to submit home study. If 
the home study is not submitted within one year of the filing date of 
the advanced processing application, the application shall be denied. 
This action shall be without prejudice to a new filing at any time with 
fee.
    (6) Advanced processing application otherwise denied. If the 
director finds that the prospective adoptive parents have otherwise 
failed to establish eligibility, the applicable provisions of 8 CFR part 
103 regarding a letter of intent to deny, if appropriate, and denial

[[Page 143]]

and notification of appeal rights shall govern.
    (7) Advanced processing application deemed abandoned for failure to 
file orphan petition within eighteen months of application's approval 
date. If an orphan petition is not properly filed within eighteen months 
of the approval date of the advanced processing application, the 
application shall be deemed abandoned. Supporting documentation shall be 
returned to the prospective adoptive parents, except for documentation 
submitted by a third party which shall be returned to the third party, 
and documentation relating to the fingerprint checks. The director shall 
dispose of documentation relating to fingerprint checks in accordance 
with current policy. Such abandonment shall be without prejudice to a 
new filing at any time with fee.
    (8) Orphan petition approved by a stateside Service office. If the 
orphan petition is approved by a stateside Service office, the 
prospective adoptive parents shall be advised in writing, telegraphic 
notification shall be sent to the immigrant visa-issuing post pursuant 
to paragraph (j)(3) of this section, and the petition and supporting 
documents shall be forwarded to the Department of State.
    (9) Orphan petition approved by an overseas Service office. If the 
orphan petition is approved by an overseas Service office located in the 
country of the orphan's residence, the prospective adoptive parents 
shall be advised in writing, and the petition and supporting documents 
shall be forwarded to the immigrant visa-issuing post having 
jurisdiction for immigrant visa processing.
    (10) Orphan petition approved at an immigrant visa-issuing post. If 
the orphan petition is approved at an immigrant visa-issuing post, the 
post shall initiate immigrant visa processing.
    (11) Orphan petition found to be ``not readily approvable'' by a 
consular officer. If the consular officer adjudicating the orphan 
petition finds that it is ``not readily approvable,'' he or she shall 
notify the prospective adoptive parents in his or her consular district 
and forward the petition, the supporting documents, the findings of the 
I-604 investigation conducted pursuant to paragraph (k)(1) of this 
section, and any other relating documentation to the overseas Service 
office having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
    (12) Orphan petition denied: petitioner fails to establish that the 
child is an orphan. If the director finds that the petitioner has failed 
to establish that the child is an orphan who is eligible for the 
benefits sought, the applicable provisions of 8 CFR part 103 regarding a 
letter of intent to deny and notification of appeal rights shall govern.
    (13) Orphan petition denied: petitioner files orphan petition more 
than eighteen months after the approval of the advanced processing 
application. If the petitioner files the orphan petition more than 
eighteen months after the approval date of the advanced processing 
application, the petition shall be denied. This action shall be without 
prejudice to a new filing at any time with fee.
    (14) Revocation. The approval of an advanced processing application 
or an orphan petition shall be automatically revoked in accordance with 
Sec. 205.1 of this chapter, if an applicable reason exists. The approval 
of an advanced processing application or an orphan petition shall be 
revoked if the director becomes aware of information that would have 
resulted in denial had it been known at the time of adjudication. Such a 
revocation or any other revocation on notice shall be made in accordance 
with Sec. 205.2 of this chapter.
    (i) Child-buying as a ground for denial. An orphan petition must be 
denied under this section if the prospective adoptive parents or 
adoptive parent(s), or a person or entity working on their behalf, have 
given or will given money or other consideration either directly or 
indirectly to the child's parent(s), agent(s), other individual(s), or 
entity as payment for the child or as an inducement to release the 
child. Nothing in this paragraph shall be regarded as precluding 
reasonable payment for necessary activities such as administrative, 
court, legal, translation, and/or medical services related to the 
adoption proceedings.
    (j) Telegraphic notifications--(1) Telegraphic notification of 
approval of advanced processing application. Unless

[[Page 144]]

conditions preclude normal telegraphic transmissions, whenever an 
advanced processing application is approved in the United States, the 
director shall send telegraphic notification of the approval to the 
overseas site if a prospective adoptive parent advises the director that 
the petitioner intends to travel abroad and file the orphan petition 
abroad.
    (2) Requesting a change in visa-issuing posts. If a prospective 
adoptive parent is in the United States, he or she may request the 
director to transfer notification of the approved advanced processing 
application to another visa-issuing post. Such a request shall be made 
on Form I-824 (Application for Action on an Approved Application or 
Petition) with the appropriate fee. The director shall send a Visas 37 
telegram to both the previously and the newly designated posts. The 
following shall be inserted after the last numbered standard entry. 
``To: [insert name of previously designated visa-issuing post or 
overseas Service office]. Pursuant to the petitioner's request, the 
Visas 37 cable previously sent to your post/office in this matter is 
hereby invalidated. The approval is being transferred to the other post/
office addressed in this telegram. Please forward the approved advanced 
processing application to that destination.'' Prior to sending such a 
telegram, the director must ensure that the change in posts does not 
alter any conditions of the approval.
    (3) Telegraphic notification of approval of an orphan petition. 
Unless conditions preclude normal telegraphic transmissions, whenever a 
petition is approved by a stateside Service office, the director shall 
send telegraphic notification of the approval to the immigrant visa-
issuing post.
    (k) Other considerations--(1) I-604 investigations. An I-604 
investigation must be completed in every orphan case. The investigation 
must be completed by a consular officer except when the petition is 
properly filed at a Service office overseas, in which case it must be 
completed by a Service officer. An I-604 investigation shall be 
completed before a petition is adjudicated abroad. When a petition is 
adjudicated by a stateside Service office, the I-604 investigation is 
normally completed after the case has been forwarded to visa-issuing 
post abroad. However, in a case where the director of a stateside 
Service office adjudicating the petition has articulable concerns that 
can only be resolved through the I-604 investigation, he or she shall 
request the investigation prior to adjudication. In any case in which 
there are significant differences between the facts presented in the 
approved advanced processing application and/or orphan petition and the 
facts uncovered by the I-604 investigation, the overseas site may 
consult directly with the appropriate Service office. In any instance 
where an I-604 investigation reveals negative information sufficient to 
sustain a denial or revocation, the investigation report, supporting 
documentation, and petition shall be forwarded to the appropriate 
Service office for action. Depending on the circumstances surrounding 
the case, the I-604 investigation shall include, but shall not 
necessarily be limited to, document checks, telephonic checks, 
interview(s) with the natural parent(s), and/or a field investigation.
    (2) Authority of consular officers. An American consular officer is 
authorized to approve an orphan petition if the Service has made a 
favorable determination on the related advanced processing application, 
and the petitioner, who has traveled abroad to a country with no Service 
office in order to locate or adopt an orphan, has properly filed the 
petition, and the petition is approvable. A consular officer, however, 
shall refer any petition which is ``not clearly approvable'' for a 
decision by the Service office having jurisdiction pursuant to 
Sec. 100.4(b) of this chapter. The consular officer's adjudication 
includes all aspects of eligibility for classification as an orphan 
under section 101(b)(1)(F) of the Act other than the issue of the 
ability of the prospective adoptive parents to furnish proper care to 
the orphan. However, if the consular officer has a well-founded and 
substantive reason to believe that the advanced processing approval was 
obtained on the basis of fraud or misrepresentation, or has knowledge of 
a change in material fact subsequent to

[[Page 145]]

the approval of the advanced processing application, he or she shall 
consult with the Service office having jurisdiction pursuant to 
Sec. 100.4(b) of this chapter.
    (3) Child in the United States. A child who is in parole status and 
who has not been adopted in the United States is eligible for the 
benefits of an orphan petition when all the requirements of sections 
101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in 
the United States either illegally or as a nonimmigrant, however, is 
ineligible for the benefits of an orphan petition.
    (4) Liaison. Each director shall develop and maintain liaison with 
State Government adoption authorities having jurisdiction within his or 
her jurisdiction, including the administrator(s) of the Interstate 
Compact on the Placement of Children, and with other parties with 
interest in international adoptions. Such parties include, but are not 
necessarily limited to, adoption agencies, organizations representing 
adoption agencies, organizations representing adoptive parents, and 
adoption attorneys.

[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994, as amended at 63 
FR 12986, Mar. 17, 1998]



Sec. 204.4  Amerasian child of a United States citizen.

    (a) Eligibility. An alien is eligible for benefits under Public Law 
97-359 as the Amerasian child or son or daughter of a United States 
citizen if there is reason to believe that the alien was born in Korea, 
Vietnam, Laos, Kampuchea, or Thailand after December 31, 1950, and 
before October 22, 1982, and was fathered by a United States citizen. 
Such an alien is eligible for classification under sections 201(b), 
203(a)(1), or 203(a)(3) of the Act as the Amerasian child or son or 
daughter of a United States citizen, pursuant to section 204(f) of the 
Act.
    (b) Filing petition. Any alien claiming to be eligible for benefits 
as an Amerasian under Public Law 97-359, or any person on the alien's 
behalf, may file a petition, Form I-360, Petition for Amerasian, Widow, 
or Special Immigrant. Any person filing the petition must either be 
eighteen years of age or older or be an emancipated minor. In addition, 
a corporation incorporated in the United States may file the petition on 
the alien's behalf.
    (c) Jurisdiction. The petition must be filed with the Service office 
having jurisdiction over the place of the alien's intended residence in 
the United States or with the overseas Service office having 
jurisdiction over the alien's residence abroad.
    (d) Two-stage processing--(1) Preliminary processing. Upon initial 
submission of a petition with the documentary evidence required in 
paragraph (f)(1) of this section, the director shall adjudicate the 
petition to determine whether there is reason to believe the beneficiary 
was fathered by a United States citizen. If the preliminary processing 
is completed in a satisfactory manner, the director shall advise the 
petitioner to submit the documentary evidence required in paragraph 
(f)(1) of this section and shall fingerprint the sponsor in accordance 
with Sec. 103.2(e) of this chapter. The petitioner must submit all 
required documents within one year of the date of the request or the 
petition will be considered to have been abandoned. To reactivate an 
abandoned petition, the petitioner must submit a new petition, Form I-
360, without the previously submitted documentation, to the Service 
office having jurisdiction over the prior petition.
    (2) Final processing. Upon submission of the documentary evidence 
required in paragraph (f)(1) of this section, the director shall 
complete the adjudication of the petition.
    (e) One-stage processing. If all documentary evidence required in 
paragraph (f)(1) of this section is available when the petition is 
initially filed, the petitioner may submit it at that time. In that 
case, the director shall consider all evidence without using the two-
stage processing procedure set out in paragraph (d) of this section.
    (f) Evidence to support a petition for an Amerasian child of a 
United States citizen--(1) Two-stage processing of petition--(i) 
Preliminary processing. (A) A petition filed by or on behalf of an 
Amerasian under this section must be accompanied by evidence that the 
beneficiary was born in Korea, Vietnam, Laos, Kampuchea, or Thailand 
after December 31, 1950, and before October 22, 1982. If the beneficiary 
was born in

[[Page 146]]

Vietnam, the beneficiary's ID card must be submitted, if available. If 
it is not available, the petitioner must submit an affidavit explaining 
why the beneficiary's ID card is not available. Evidence that the 
beneficiary was fathered by a United States citizen must also be 
presented. The putative father must have been a United States citizen at 
the time of the beneficiary's birth or at the time of the father's 
death, if his death occurred prior to the beneficiary's birth. It is not 
required that the name of the father be given. Such evidence may 
include, but need not be limited to:
    (1) The beneficiary's birth and baptismal certificates or other 
religious documents;
    (2) Local civil records;
    (3) Affidavits from knowledgeable witnesses;
    (4) Letters or evidence of financial support from the beneficiary's 
putative father;
    (5) Photographs of the beneficiary's putative father, especially 
with the beneficiary; and
    (6) Evidence of the putative father's United States citizenship.
    (B) The beneficiary's photograph must be submitted.
    (C) The beneficiary's marriage certificate, if married, and evidence 
of the termination of any previous marriages, if applicable, is 
required.
    (D) If the beneficiary is under eighteen years of age, a written 
irrevocable release for emigration must be received from the 
beneficiary's mother or legal guardian. The mother or legal guardian 
must authorize the placing agency or agencies to make decisions 
necessary for the child's immediate care until the sponsor receives 
custody. Interim costs are the responsibility of the sponsor. The mother 
or legal guardian must show an understanding of the effects of the 
release and state before signing the release whether any money was paid 
or any coercion was used. The signature of the mother or legal guardian 
must be authenticated by the local registrar, the court of minors, or a 
United States immigration or consular officer. The release must include 
the mother's or legal guardian's full name, date and place of birth, and 
current or permanent address.
    (ii) Final processing. (A) If the director notifies the petitioner 
that all preliminary processing has been completed in a satisfactory 
manner, the petitioner must then submit Form I-361, Affidavit of 
Financial Support and Intent to Petition for Legal Custody for Public 
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with 
the documentary evidence of the sponsor's financial ability required by 
that form. If the beneficiary is under eighteen years of age, the 
sponsor must agree to petition the court having jurisdiction, within 
thirty days of the beneficiary's arrival in the United States, for legal 
custody under the laws of the state where the beneficiary will reside 
until the beneficiary is eighteen years of age. The term ``legal 
custody'' as used in this section means the assumption of responsibility 
for a minor by an adult under the laws of the state in a court of law. 
The sponsor must be a United States citizen or lawful permanent resident 
who is twenty-one years of age or older and who is of good moral 
character.
    (B) Other documents necessary to support the petition are:
    (1) Evidence of the age of the beneficiary's sponsor;
    (2) Evidence of United States citizenship or lawful permanent 
residence of the sponsor as provided in Sec. 204.1(f); and
    (C) If the beneficiary is under eighteen years of age, evidence that 
a public, private, or state agency licensed in the United States to 
place children and actively involved, with recent experience, in the 
intercountry placement of children has arranged the beneficiary's 
placement in the United States. Evidence must also be provided that the 
sponsor with whom the beneficiary is being placed is able to accept the 
beneficiary for care in the sponsor's home under the laws of the state 
of the beneficiary's intended residence. The evidence must demonstrate 
the agency's capability, including financial capability, to arrange the 
placement as described in paragraph (f)(1) of this section, either 
directly or through cooperative agreement with other suitable 
provider(s) of service.
    (iii) Arrangements for placement of beneficiary under eighteen years 
of age. (A) If the beneficiary is under eighteen

[[Page 147]]

years of age, the petitioner must submit evidence of the placement 
arrangement required under paragraph (f)(1) of this section. A favorable 
home study of the sponsor is necessary and must be conducted by an 
agency in the United States legally authorized to conduct that study. If 
the sponsor resides outside the United States, a home study of the 
sponsor must be conducted by an agency legally authorized to conduct 
home studies in the state of the sponsor's and beneficiary's intended 
residence in the United States and must be submitted with a favorable 
recommendation by the agency.
    (B) A plan from the agency to provide follow-up services, including 
mediation and counselling, is required to ensure that the sponsor and 
the beneficiary have satisfactorily adjusted to the placement and to 
determine whether the terms of the sponsorship are being observed. A 
report from the agency concerning the placement, including information 
regarding any family separation or dislocation abroad that results from 
the placement, must also be submitted. In addition, the agency must 
submit to the Director, Outreach Program, Immigration and Naturalization 
Service, Washington, DC, within 90 days of each occurrence, reports of 
any breakdowns in sponsorship that occur, and reports of the steps taken 
to remedy these breakdowns. The petitioner must also submit a statement 
from the agency:
    (1) Indicating that, before signing the sponsorship agreement, the 
sponsor has been provided a report covering pre-placement screening and 
evaluation, including a health evaluation, of the beneficiary;
    (2) Describing the agency's orientation of both the sponsor and the 
beneficiary on the legal and cultural aspects of the placement;
    (3) Describing the initial facilitation of the placement through 
introduction, translation, and similar services; and
    (4) Describing the contingency plans to place the beneficiary in 
another suitable home if the initial placement fails. The new sponsor 
must execute and submit a Form I-361 to the Service office having 
jurisdiction over the beneficiary's residence in the United States. The 
original sponsor nonetheless retains financial responsibility for the 
beneficiary under the terms of the guarantee of financial support and 
intent to petition for legal custody which that sponsor executed, unless 
that responsibility is assumed by a new sponsor. In the event that the 
new sponsor does not comply with the terms of the new guarantee of 
financial support and intent to petition for legal custody and if, for 
any reason, that guarantee is not enforced, the original sponsor again 
becomes financially responsible for the beneficiary.
    (2) One-stage processing of petition. If the petitioner chooses to 
have the petition processed under the one-stage processing procedure 
described in paragraph (e) of this section, the petitioner must submit 
all evidence required by paragraph (f)(1) of this section.
    (g) Decision--(1) General. The director shall notify the petitioner 
of the decision and, if the petition is denied, of the reasons for the 
denial. If the petition is denied, the petitioner may appeal the 
decision under part 103 of this chapter.
    (2) Denial upon completion of preliminary processing. The director 
may deny the petition upon completion of the preliminary processing 
under paragraph (d) of this section for:
    (i) Failure to establish that there is reason to believe the alien 
was fathered by a United States citizen; or
    (ii) Failure to meet the sponsorship requirements if the 
fingerprints of the sponsor, required in paragraph (f)(1) of this 
section, were submitted during the preliminary processing and the 
completed background check of the sponsor discloses adverse information 
resulting in a finding that the sponsor is not of good moral character.
    (3) Denial upon completion of final processing. The director may 
deny the petition upon completion of final processing if it is 
determined that the sponsorship requirements, or one or more of the 
other applicable requirements, have not been met.
    (4) Denial upon completion of one-stage processing. The director may 
deny the petition upon completion of all processing if any of the 
applicable requirements in a case being processed under the one-stage 
processing described in

[[Page 148]]

paragraph (e) of this section are not met.
    (h) Classification of Public Law 97-359 Amerasian. If the petition 
is approved the beneficiary is classified as follows:
    (1) An unmarried beneficiary under the age of twenty-one is 
classified as the child of a United States citizen under section 201(b) 
of the Act;
    (2) An unmarried beneficiary twenty-one years of age or older is 
classified as the unmarried son or daughter of a United States citizen 
under section 203(a)(1) of the Act; and
    (3) A married beneficiary is classified as the married son or 
daughter of a United States citizen under section 203(a)(3) of the Act.
    (i) Enforcement of affidavit of financial support and intent to 
petition for legal custody. A guarantee of financial support and intent 
to petition for legal custody on Form I-361 may be enforced against the 
alien's sponsor in a civil suit brought by the Attorney General in the 
United States District Court for the district in which the sponsor 
resides, except that the sponsor's estate is not liable under the 
guarantee if the sponsor dies or is adjudicated as bankrupt under title 
11, United States Code. After admission to the United States, if the 
beneficiary of a petition requires enforcement of the guarantee of 
financial support and intent to petition for legal custody executed by 
the beneficiary's sponsor, the beneficiary may file Form I-363 with the 
Service office having jurisdiction over the beneficiary's residence in 
the United States. If the beneficiary is under eighteen years of age, 
any agency or individual (other than the sponsor) having legal custody 
of the beneficiary, or a legal guardian acting on the alien's behalf, 
may file Form I-363.

[57 FR 41066, Sept. 9, 1992, as amended at 63 FR 12986, Mar. 17, 1998]



Sec. 204.5  Petitions for employment-based immigrants.

    (a) General. A petition to classify an alien under section 
203(b)(1), 203(b)(2), or 203(b)(3) of the Act must be filed on Form I-
140, Petition for Immigrant Worker. A petition to classify an alien 
under section 203(b)(4) (as it relates to special immigrants under 
section 101(a)(27)(C)) must be filed on kForm I-360, Petition for 
Amerasian, Widow, or Special Immigrant. A separate Form I-140 or I-360 
must be filed for each beneficiary, accompanied by the applicable fee. A 
petition is considered properly filed if it is:
    (1) Accepted for processing under the provisions of part 103;
    (2) Accompanied by any required individual labor certification, 
application for Schedule A designation, or evidence that the alien's 
occupation qualifies as a shortage occupation within the Department of 
Labor's Labor Market Information Pilot Program; and
    (3) Accompanied by any other required supporting documentation.
    (b) Jurisdiction. Form I-140 or I-360 must be filed with the Service 
Center having jurisdiction over the intended place of employment, unless 
specifically designated for local filing by the Associate Commissioner 
for Examinations.
    (c) Filing petition. Any United States employer desiring and 
intending to employ an alien may file a petition for classification of 
the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 
203(b)(3) of the Act. An alien, or any person in the alien's behalf, may 
file a petition for classification under section 203(b)(1)(A) or 
203(b)(4) of the Act (as it relates to special immigrants under section 
101(a)(27)(C) of the Act).
    (d) Priority date. The priority date of any petition filed for 
classification under section 203(b) of the Act which is accompanied by 
an individual labor certification from the Department of Labor shall be 
the date the request for certification was accepted for processing by 
any office within the employment service system of the Department of 
Labor. The priority date of any petition filed for classification under 
section 203(b) of the Act which is accompanied by an application for 
Schedule A designation or with evidence that the alien's occupation is a 
shortage occupation within the Department of Labor's Labor Market 
Information Pilot Program shall be the date the completed, signed 
petition (including all initial evidence and the correct fee) is 
properly filed with the Service. The priority date of a petition filed 
for classification as a special immigrant under section 203(b)(4) of the 
Act shall

[[Page 149]]

be the date the completed, signed petition (including all initial 
evidence and the correct fee) is properly filed with the Service. The 
priority date of an alien who filed for classification as a special 
immigrant prior to October 1, 1991, and who is the beneficiary of an 
approved I-360 petition after October 1, 1991, shall be the date the 
alien applied for an immigrant visa or adjustment of status. In the case 
of a special immigrant alien who applied for adjustment before October 
1, 1991, Form I-360 may be accepted and adjudicated at a Service 
District Office or sub-office.
    (e) Retention of section 203(b) (1), (2), or (3) priority date. A 
petition approved on behalf of an alien under sections 203(b) (1), (2), 
or (3) of the Act accords the alien the priority date of the approved 
petition for any subsequently filed petition for any classification 
under sections 203(b) (1), (2), or (3) of the Act for which the alien 
may qualify. In the event that the alien is the beneficiary of multiple 
petitions under sections 203(b) (1), (2), or (3) of the Act, the alien 
shall be entitled to the earliest priority date. A petition revoked 
under sections 204(e) or 205 of the Act will not confer a priority date, 
nor will any priority date be established as a result of a denied 
petition. A priority date is not transferable to another alien.
    (f) Maintaining the priority date of a third or sixth preference 
petition filed prior to October 1, 1991. Any petition filed before 
October 1, 1991, and approved on any date, to accord status under 
section 203(a)(3) or 203(a)(6) of the Act, as in effect before October 
1, 1991, shall be deemed a petition approved to accord status under 
section 203(b)(2) or within the appropriate classification under section 
203(b)(3), respectively, of the Act as in effect on or after October 1, 
1991, provided that the alien applies for an immigrant visa or 
adjustment of status within the two years following notification that an 
immigrant visa is immediately available for his or her use.
    (g) Initial evidence--(1) General. Specific requirements for initial 
supporting documents for the various employment-based immigrant 
classifications are set forth in this section. In general, ordinary 
legible photocopies of such documents (except for labor certifications 
from the Department of Labor) will be acceptable for initial filing and 
approval. However, at the discretion of the director, original documents 
may be required in individual cases. Evidence relating to qualifying 
experience or training shall be in the form of letter(s) from current or 
former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties 
performed by the alien or of the training received. If such evidence is 
unavailable, other documentation relating to the alien's experience or 
training will be considered.
    (2) Ability of prospective employer to pay wage. Any petition filed 
by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United 
States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date 
is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited 
financial statements. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a 
statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In 
appropriate cases, additional evidence, such as profit/loss statements, 
bank account records, or personnel records, may be submitted by the 
petitioner or requested by the Service.
    (h) Aliens with extraordinary ability. (1) An alien, or any person 
on behalf of the alien, may file an I-140 visa petition for 
classification under section 203(b)(1)(A) of the Act as an alien of 
extraordinary ability in the sciences, arts, education, business, or 
athletics.
    (2) Definition. As used in this section:
    Extraordinary ability means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very 
top of the field of endeavor.
    (3) Initial evidence. A petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien

[[Page 150]]

has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise. Such 
evidence shall include evidence of a one-time achievement (that is, a 
major, international recognized award), or at least three of the 
following:
    (i) Documentation of the alien's receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field 
of endeavor;
    (ii) Documentation of the alien's membership in associations in the 
field for which classification is sought, which require outstanding 
achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields;
    (iii) Published material about the alien in professional or major 
trade publications or other major media, relating to the alien's work in 
the field for which classification is sought. Such evidence shall 
include the title, date, and author of the material, and any necessary 
translation;
    (iv) Evidence of the alien's participation, either individually or 
on a panel, as a judge of the work of others in the same or an allied 
field of specification for which classification is sought;
    (v) Evidence of the alien's original scientific, scholarly, 
artistic, athletic, or business-related contributions of major 
significance in the field;
    (vi) Evidence of the alien's authorship of scholarly articles in the 
field, in professional or major trade publications or other major media;
    (vii) Evidence of the display of the alien's work in the field at 
artistic exhibitions or showcases;
    (viii) Evidence that the alien has performed in a leading or 
critical role for organizations or establishments that have a 
distinguished reputation;
    (ix) Evidence that the alien has commanded a high salary or other 
significantly high remuneration for services, in relation to others in 
the field; or
    (x) Evidence of commercial successes in the performing arts, as 
shown by box office receipts or record, cassette, compact disk, or video 
sales.
    (4) If the above standards do not readily apply to the beneficiary's 
occupation, the petitioner may submit comparable evidence to establish 
the beneficiary's eligibility.
    (5) No offer of employment required. Neither an offer for employment 
in the United States nor a labor certification is required for this 
classification; however, the petition must be accompanied by clear 
evidence that the alien is coming to the United States to continue work 
in the area of expertise. Such evidence may include letter(s) from 
prospective employer(s), evidence of prearranged commitments such as 
contracts, or a statement from the beneficiary detailing plans on how he 
or she intends to continue his or her work in the United States.
    (i) Outstanding professors and researchers. (1) Any United States 
employer desiring and intending to employ a professor or researcher who 
is outstanding in an academic field under section 203(b)(1)(B) of the 
Act may file an I-140 visa petition for such classification.
    (2) Definitions. As used in this section:
    Academic field means a body of specialized knowledge offered for 
study at an accredited United States university or institution of higher 
education.
    Permanent, in reference to a research position, means either 
tenured, tenure-track, or for a term of indefinite or unlimited 
duration, and in which the employee will ordinarily have an expectation 
of continued employment unless there is good cause for termination.
    (3) Initial evidence. A petition for an outstanding professor or 
researcher must be accompanied by:
    (i) Evidence that the professor or researcher is recognized 
internationally as outstanding in the academic field specified in the 
petition. Such evidence shall consist of at least two of the following:
    (A) Documentation of the alien's receipt of major prizes or awards 
for outstanding achievement in the academic field;
    (B) Documentation of the alien's membership in associations in the 
academic field which require outstanding achievements of their members;
    (C) Published material in professional publications written by 
others about the alien's work in the academic field. Such material shall 
include the

[[Page 151]]

title, date, and author of the material, and any necessary translation;
    (D) Evidence of the alien's participation, either individually or on 
a panel, as the judge of the work of others in the same or an allied 
academic field;
    (E) Evidence of the alien's original scientific or scholarly 
research contributions to the academic field; or
    (F) Evidence of the alien's authorship of scholarly books or 
articles (in scholarly journals with international circulation) in the 
academic field;
    (ii) Evidence that the alien has at least three years of experience 
in teaching and/or research in the academic field. Experience in 
teaching or research while working on an advanced degree will only be 
acceptable if the alien has acquired the degree, and if the teaching 
duties were such that he or she had full responsibility for the class 
taught or if the research conducted toward the degree has been 
recognized within the academic field as outstanding. Evidence of 
teaching and/or research experience shall be in the form of letter(s) 
from current or former employer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties 
performed by the alien; and
    (iii) An offer of employment from a prospective United States 
employer. A labor certification is not required for this classification. 
The offer of employment shall be in the form of a letter from:
    (A) A United States university or institution of higher learning 
offering the alien a tenured or tenure-track teaching position in the 
alien's academic field;
    (B) A United States university or institution of higher learning 
offering the alien a permanent research position in the alien's academic 
field; or
    (C) A department, division, or institute of a private employer 
offering the alien a permanent research position in the alien's academic 
field. The department, division, or institute must demonstrate that it 
employs at least three persons full-time in research positions, and that 
it has achieved documented accomplishments in an academic field.
    (j) Certain multinational executives and managers. (1) A United 
States employer may file a petition on Form I-140 for classification of 
an alien under section 203(b)(1)(C) of the Act as a multinational 
executive or manager.
    (2) Definitions. As used in this section:
    Affiliate means:
    (A) One of two subsidiaries both of which are owned and controlled 
by the same parent or individual;
    (B) One of two legal entities owned and controlled by the same group 
of individuals, each individual owning and controlling approximately the 
same share or proportion of each entity; or
    (C) In the case of a partnership that is organized in the United 
States to provide accounting services, along with managerial and/or 
consulting services, and markets its accounting services under an 
internationally recognized name under an agreement with a worldwide 
coordinating organization that is owned and controlled by the member 
accounting firms, a partnership (or similar organization) that is 
organized outside the United States to provide accounting' services 
shall be considered to be an affiliate of the United States partnership 
if it markets its accounting services under the same internationally 
recognized name under the agreement with the worldwide coordinating 
organization of which the United States partnership is also a member.
    Doing business means the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (A) Directs the management of the organization or a major component 
or function of the organization;
    (B) Establishes the goals and policies of the organization, 
component, or function;
    (C) Exercises wide latitude in discretionary decisionmaking; and
    (D) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization.
    Managerial capacity means an assignment within an organization in 
which the employee primarily:

[[Page 152]]

    (A) Manages the organization, or a department, subdivision, 
function, or component of the organization;
    (B) Supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential function 
within the organization, or a department or subdivision of the 
organization;
    (C) If another employee or other employees are directly supervised, 
has the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or, if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and
    (D) Exercises direction over the day-to-day operations of the 
activity or function for which the employee has authority.
    Multinational means that the qualifying entity, or its affiliate, or 
subsidiary, conducts business in two or more countries, one of which is 
the United States.
    Subsidiary means a firm, corporation, or other legal entity of which 
a parent owns, directly or indirectly, more than half of the entity and 
controls the entity; or owns, directly or indirectly, half of the entity 
and controls the entity; or owns, directly or indirectly, 50 percent of 
a 50-50 joint venture and has equal control and veto power over the 
entity; or owns, directly or indirectly, less than half of the entity, 
but in fact controls the entity.
    (3) Initial evidence--(i) Required evidence. A petition for a 
multinational executive or manager must be accompanied by a statement 
from an authorized official of the petitioning United States employer 
which demonstrates that:
    (A) If the alien is outside the United States, in the three years 
immediately preceding the filing of the petition the alien has been 
employed outside the United States for at least one year in a managerial 
or executive capacity by a firm or corporation, or other legal entity, 
or by an affiliate or subsidiary of such a firm or corporation or other 
legal entity; or
    (B) If the alien is already in the United States working for the 
same employer or a subsidiary or affiliate of the firm or corporation, 
or other legal entity by which the alien was employed overseas, in the 
three years preceding entry as a nonimmigrant, the alien was employed by 
the entity abroad for at least one year in a managerial or executive 
capacity;
    (C) The prospective employer in the United States is the same 
employer or a subsidiary or affiliate of the firm or corporation or 
other legal entity by which the alien was employed overseas; and
    (D) The prospective United States employer has been doing business 
for at least one year.
    (ii) Appropriate additional evidence. In appropriate cases, the 
director may request additional evidence.
    (4) Determining managerial or exectuve capacities--(i) Supervisors 
as managers. A first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties 
unless the employees supervised are professional.
    (ii) Staffing levels. If staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive 
capacity, the reasonable needs of the organization, component, or 
function, in light of the overall purpose and stage of development of 
the organization, component, or function, shall be taken into account. 
An individual shall not be considered to be acting in a managerial or 
executive capacity merely on the basis of the number of employees that 
the individual supervises or has supervised or directs or has directed.
    (5) Offer of employment. No labor certification is required for this 
classification; however, the prospective employer in the United States 
must furnish a job offer in the form of a statement which indicates that 
the alien is to be employed in the United States in a managerial or 
executive capacity. Such letter must clearly describe the duties to be 
performed by the alien.
    (k) Aliens who are members of the professions holding advanced 
degrees or aliens of exceptional ability. (1) Any United States employer 
may file a petition on Form I-140 for classification of an alien under 
section 203(b)(2) of the Act as an alien who is a member of the

[[Page 153]]

professions holding an advanced degree or an alien of exceptional 
ability in the sciences, arts, or business. If an alien is claiming 
exceptional ability in the sciences, arts, or business and is seeking an 
exemption from the requirement of a job offer in the United States 
pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone 
in the alien's behalf, may be the petitioner.
    (2) Definitions. As used in this section: Advanced degree means any 
United States academic or professional degree or a foreign equivalent 
degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of 
progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily 
required by the specialty, the alien must have a United States doctorate 
or a foreign equivalent degree.
    Exceptional ability in the sciences, arts, or business means a 
degree of expertise significantly above that ordinarily encountered in 
the sciences, arts, or business.
    Profession means one of the occupations listed in section 101(a)(32) 
of the Act, as well as any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation.
    (3) Initial evidence. The petition must be accompanied by 
documentation showing that the alien is a professional holding an 
advanced degree or an alien of exceptional ability in the sciences, the 
arts, or business.
    (i) To show that the alien is a professional holding an advanced 
degree, the petition must be accompanied by:
    (A) An official academic record showing that the alien has a United 
States advanced degree or a foreign equivalent degree; or
    (B) An official academic record showing that the alien has a United 
States baccalaureate degree or a foreign equivalent degree, and evidence 
in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate 
experience in the specialty.
    (ii) To show that the alien is an alien of exceptional ability in 
the sciences, arts, or business, the petition must be accompanied by at 
least three of the following:
    (A) An official academic record showing that the alien has a degree, 
diploma, certificate, or similar award from a college, university, 
school, or other institution of learning relating to the area of 
exceptional ability;
    (B) Evidence in the form of letter(s) from current or former 
employer(s) showing that the alien has at least ten years of full-time 
experience in the occupation for which he or she is being sought;
    (C) A license to practice the profession or certification for a 
particular profession or occupation;
    (D) Evidence that the alien has commanded a salary, or other 
renumeration for services, which demonstrates exceptional ability;
    (E) Evidence of membership in professional associations; or
    (F) Evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, 
or professional or business organizations.
    (iii) If the above standards do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence 
to establish the beneficiary's eligibility.
    (4) Labor certification or evidence that alien qualifies for Labor 
Market Information Pilot Program--(i) General. Every petition under this 
classification must be accompanied by an individual labor certification 
from the Department of Labor, by an application for Schedule A 
designation (if applicable), or by documentation to establish that the 
alien qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is within the 
Labor Market Information Program, a fully executed uncertified Form ETA-
750 in duplicate must accompany the petition. The job offer portion of 
the individual labor certification, Schedule A application, or Pilot 
Program application must demonstrate that the job requires a

[[Page 154]]

professional holding an advanced degree or the equivalent or an alien of 
exceptional ability.
    (ii) Exemption from job offer. The director may exempt the 
requirement of a job offer, and thus of a labor certification, for 
aliens of exceptional ability in the sciences, arts, or business if 
exemption would be in the national interest. To apply for the exemption, 
the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien, in duplicate, as well as evidence to support the claim that such 
exemption would be in the national interest.
    (l) Skilled workers, professionals, and other workers. (1) Any 
United States employer may file a petition on Form I-140 for 
classification of an alien under section 203(b)(3) as a skilled worker, 
professional, or other (unskilled) worker.
    (2) Definitions. As used in this part:
    Other worker means a qualified alien who is capable, at the time of 
petitioning for this classification, of performing unskilled labor 
(requiring less than two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not 
available in the United States.
    Professional means a qualified alien who holds at least a United 
States baccalaureate degree or a foreign equivalent degree and who is a 
member of the professions.
    Skilled worker means an alien who is capable, at the time of 
petitioning for this classification, of performing skilled labor 
(requiring at least two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not 
available in the United States. Relevant post-secondary education may be 
considered as training for the purposes of this provision.
    (3) Initial evidence--(i) Labor certification or evidence that alien 
qualifies for Labor Market Information Pilot Program. Every petition 
under this classification must be accompanied by an individual labor 
certification from the Department of Labor, by an application for 
Schedule A designation, or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is a shortage 
occupation with the Labor Market Pilot Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The 
job offer portion of an individual labor certification, Schedule A 
application, or Pilot Program application for a professional must 
demonstrate that the job requires the minimum of a baccalaureate degree.
    (ii) Other documentation--(A) General. Any requirements of training 
or experience for skilled workers, professionals, or other workers must 
be supported by letters from trainers or employers giving the name, 
address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien.
    (B) Skilled workers. If the petition is for a skilled worker, the 
petition must be accompanied by evidence that the alien meets the 
educational, training or experience, and any other requirements of the 
individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience.
    (C) Professionals. If the petition is for a professional, the 
petition must be accompanied by evidence that the alien holds a United 
States baccalaureate degree or a foreign equivalent degree and by 
evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or 
university record showing the date the baccalaureate degree was awarded 
and the area of concentration of study. To show that the alien is a 
member of the professions, the petitioner must submit evidence showing 
that the minimum of a baccalaureate degree is required for entry into 
the occupation.
    (D) Other workers. If the petition is for an unskilled (other) 
worker, it must be accompanied by evidence that the alien meets any 
educational, training and experience, and other requirements of the 
labor certification.

[[Page 155]]

    (4) Differentiating between skilled and other workers. The 
determination of whether a worker is a skilled or other worker will be 
based on the requirements of training and/or experience placed on the 
job by the prospective employer, as certified by the Department of 
Labor. In the case of a Schedule A occupation or a shortage occupation 
within the Labor Market Pilot Program, the petitioner will be required 
to establish to the director that the job is a skilled job, i.e., one 
which requires at least two years of training and/or experience.
    (m) Religious workers--(1) An alien, or any person in behalf of the 
alien, may file an I-360 visa petition for classification under section 
203(b)(4) of the Act as a section 101(a)(27)(C) special immigrant 
religious worker. Such a petition may be filed by or for an alien, who 
(either abroad or in the United States) for at least the two years 
immediately preceding the filing of the petition has been a member of a 
religious denomination which has a bona fide nonprofit religious 
organization in the United States. The alien must be coming to the 
United States solely for the purpose of carrying on the vocation of a 
minister of that religious denomination, working for the organization at 
the organization's request in a professional capacity in a religious 
vocation or occupation for the organization or a bona fide organization 
which is affiliated with the religious denomination and is exempt from 
taxation as an organization described in section 501(c)(3) of the 
Internal Revenue Code of 1986 at the request of the organization. All 
three types of religious workers must have been performing the vocation, 
professional work, or other work continuously (either abroad or in the 
United States) for at least the two-year period immediately preceding 
the filing of the petition. Professional workers and other workers must 
obtain permanent resident status through immigration or adjustment of 
status on or before September 30, 1997, in order to immigrate under 
section 203(b)(4) of the Act as section 101(a)(27)(C) special immigrant 
religious workers.
    (2) Definitions. As used in this section:
    Bona fide nonprofit religious organization in the United States 
means an organization exempt from taxation as described in section 
501(c)(3) of the Internal Revenue Code of 1986 as it relates to 
religious organizations, or one that has never sought such exemption but 
establishes to the satisfaction of the Service that it would be eligible 
therefor if it had applied for tax exempt status.
    Bona fide organization which is affiliated with the religious 
denomination means an organization which is closely associated with the 
religious denomination and which is exempt from taxation as described in 
section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to 
religious organizations.
    Minister means an individual duly authorized by a recognized 
religious denomination to conduct religious worship and to perform other 
duties usually performed by authorized members of the clergy of that 
religion. In all cases, there must be a reasonable connection between 
the activities performed and the religious calling of the minister. The 
term does not include a lay preacher not authorized to perform such 
duties.
    Professional capacity means an activity in a religious vocation or 
occupation for which the minimum of a United States baccalaureate degree 
or a foreign equivalent degree is required.
    Religious denomination means a religious group or community of 
believers having some form of ecclesiastical government, a creed or 
statement of faith, some form of worship, a formal or informal code of 
doctrine and discipline, religious services and ceremonies, established 
places of religious worship, religious congregations, or comparable 
indicia of a bona fide religious denomination. For the purposes of this 
definition, an inter-denominational religious organization which is 
exempt from taxation pursuant to section 501(c)(3) of the Internal 
Revenue Code of 1986 will be treated as a religious denomination.
    Religious occupation means an activity which relates to a 
traditional religious function. Examples of individuals in religious 
occupations include, but are not limited to, liturgical workers, 
religious instructors, religious counselors, cantors, catechists, 
workers in

[[Page 156]]

religious hospitals or religious health care facilities, missionaries, 
religious translators, or religious broadcasters. This group does not 
include janitors, maintenance workers, clerks, fund raisers, or persons 
solely involved in the solicitation of donations.
    Religious vocation means a calling to religious life evidenced by 
the demonstration of commitment practiced in the religious denomination, 
such as the taking of vows. Examples of individuals with a religious 
vocation include, but are not limited to, nuns, monks, and religious 
brothers and sisters.
    (3) Initial evidence. Unless otherwise specified, each petition for 
a religious worker must be accompanied by:
    (i) Evidence that the organization qualifies as a nonprofit 
organization in the form of either:
    (A) Documentation showing that it is exempt from taxation in 
accordance with section 501(c)(3) of the Internal Revenue Code of 1986 
as it relates to religious organizations (in appropriate cases, evidence 
of the organization's assets and methods of operation and the 
organization's papers of incorporation under applicable state law may be 
requested); or
    (B) Such documentation as is required by the Internal Revenue 
Service to establish eligibility for exemption under section 501(c)(3) 
of the Internal Revenue Code of 1986 as it relates to religious 
organizations; and
    (ii) A letter from an authorized official of the religious 
organization in the United States which (as applicable to the particular 
alien) establishes:
    (A) That, immediately prior to the filing of the petition, the alien 
has the required two years of membership in the denomination and the 
required two years of experience in the religious vocation, professional 
religious work, or other religious work; and
    (B) That, if the alien is a minister, he or she has authorization to 
conduct religious worship and to perform other duties usually performed 
by authorized members of the clergy, including a detailed description of 
such authorized duties. In appropriate cases, the certificate of 
ordination or authorization may be requested; or
    (C) That, if the alien is a religious professional, he or she has at 
least a United States baccalaureate or its foreign equivalent required 
for entry into the religious profession. In all professional cases, an 
official academic record showing that the alien has the required degree 
must be submitted; or
    (D) That, if the alien is to work in another religious vocation or 
occupation, he or she is qualified in the religious vocation or 
occupation. Evidence of such qualifications may include, but need not be 
limited to, evidence establishing that the alien is a nun, monk, or 
religious brother, or that the type of work to be done relates to a 
traditional religious function.
    (iii) If the alien is to work in a non-ministerial and non-
professional capacity for a bona fide religious organization which is 
affiliated with the religious denomination, the letter from the 
authorized official must explain how the affiliation exists. A tax-
exempt certificate indicating that the affiliated organization is exempt 
from taxation in accordance with section 501(c)(3) of the Internal 
Revenue Code of 1986 as it relates to religious organizations is 
required in this instance.
    (iv) In appropriate cases, the director may request appropriate 
additional evidence relating to the eligibility under section 203(b)(4) 
of the Act of the religious organization, the alien, or the affiliated 
organization.
    (4) Job offer. The letter from the authorized official of the 
religious organization in the United States must also state how the 
alien will be solely carrying on the vocation of a minister (including 
any terms of payment for services or other remuneration), or how the 
alien will be paid or remunerated if the alien will work in a 
professional religious capacity or in other religious work. The 
documentation should clearly indicate that the alien will not be solely 
dependent on supplemental employment or solicitation of funds for 
support. In doubtful cases, additional evidence such as bank letters, 
recent audits, church membership figures, and/or the number of 
individuals currently receiving compensation may be requested.
    (n) Closing action--(1) Approval. An approved employment-based 
petition will be forwarded to the United States Consulate selected by 
the petitioner

[[Page 157]]

and indicated on the petition. If a United States Consulate is not 
designated, the petition will be forwarded to the consulate having 
jurisdiction over the place of the alien's last residence abroad. If the 
petition indicates that the alien will apply for adjustment to permanent 
residence in the United States, the approved petition will be retained 
by the Service for consideration with the application for permanent 
resident (Form I-485).
    (2) Denial. The denial of a petition for classification under 
section 203(b)(1), 203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it 
relates to special immigrants under section 101(a)(27)(C) of the Act) 
shall be appealable to the Associate Commissioner for Examinations. The 
petitioner shall be informed in plain language of the reasons for denial 
and of his or her right to appeal.
    (3) Validity of approved petitions. Unless revoked under section 
203(e) or 205 of the Act, an employment-based petition is valid 
indefinitely.

[56 FR 60905, Nov. 29, 1991, as amended at 59 FR 502, Jan. 5, 1994; 59 
FR 27229, May 26, 1994; 60 FR 29753, June 6, 1995; 61 FR 33305, June 27, 
1996]



Sec. 204.6  Petitions for employment creation aliens.

    (a) General. A petition to classify an alien under section 203(b)(5) 
of the Act must be filed on Form I-526, Immigrant Petition by Alien 
Entrepreneur. The petition must be accompanied by the appropriate fee. 
Before a petition is considered properly filed, the petition must be 
signed by the petitioner, and the initial supporting documentation 
required by this section must be attached. Legible photocopies of 
supporting documents will ordinarily be acceptable for initial filing 
and approval. However, at the discretion of the director, original 
documents may be required.
    (b) Jurisdiction. The petition must be filed with the Service Center 
having jurisdiction over the area in which the new commercial enterprise 
is or will be principally doing business.
    (c) Eligibility to file. A petition for classification as an alien 
entrepreneur may only be filed by any alien on his or her own behalf.
    (d) Priority date. The priority date of a petition for 
classification as an alien entrepreneur is the date the petition is 
properly filed with the Service or, if filed prior to the effective date 
of these regulations, the date the Form I-526 was received at the 
appropriate Service Center.
    (e) Definitions. As used in this section:
    Capital means cash, equipment, inventory, other tangible property, 
cash equivalents, and indebtedness secured by assets owned by the alien 
entrepreneur, provided that the alien entrepreneur is personally and 
primarily liable and that the assets of the new commercial enterprise 
upon which the petition is based are not used to secure any of the 
indebtedness. All capital shall be valued at fair market value in United 
States dollars. Assets acquired, directly or indirectly, by unlawful 
means (such as criminal activities) shall not be considered capital for 
the purposes of section 203(b)(5) of the Act.
    Commercial enterprise means any for-profit activity formed for the 
ongoing conduct of lawful business including, but not limited to, a sole 
proprietorship, partnership (whether limited or general), holding 
company, joint venture, corporation, business trust, or other entity 
which may be publicly or privately owned. This definition includes a 
commercial enterprise consisting of a holding company and its wholly-
owned subsidiaries, provided that each such subsidiary is engaged in a 
for-profit activity formed for the ongoing conduct of a lawful business. 
This definition shall not include a noncommercial activity such as 
owning and operating a personal residence.
    Employee means an individual who provides services or labor for the 
new commercial enterprise and who receives wages or other remuneration 
directly from the new commercial enterprise. In the case of the 
Immigrant Investor Pilot Program, ``employee'' also means an individual 
who provides services or labor in a job which has been created 
indirectly through investment in the new commercial enterprise. This 
definition shall not include independent contractors.
    Full-time employment means employment of a qualifying employee by 
the

[[Page 158]]

new commercial enterprise in a position that requires a minimum of 35 
working hours per week. In the case of the Immigrant Investor Pilot 
Program, ``full-time employment'' also means employment of a qualifying 
employee in a position that has been created indirectly through revenues 
generated from increased exports resulting from the Pilot Program that 
requires a minimum of 35 working hours per week. A job-sharing 
arrangement whereby two or more qualifying employees share a full-time 
position shall count as full-time employment provided the hourly 
requirement per week is met. This definition shall not include 
combinations of part-time positions even if, when combined, such 
positions meet the hourly requirement per week.
    High employment area means a part of a metropolitan statistical area 
that at the time of investment:
    (i) Is not a targeted employment area; and
    (ii) Is an area with an unemployment rate significantly below the 
national average unemployment rates.
    Invest means to contribute capital. A contribution of capital in 
exchange for a note, bond, convertible debt, obligation, or any other 
debt arrangement between the alien entrepreneur and the new commercial 
enterprise does not constitute a contribution of capital for the 
purposes of this part.
    New means established after November 29, 1990.
    Qualifying employee means a United States citizen, a lawfully 
admitted permanent resident, or other immigrant lawfully authorized to 
be employed in the United States including, but not limited to, a 
conditional resident, a temporary resident, an asylee, a refugee, or an 
alien remaining in the United States under suspension of deportation. 
This definition does not include the alien entrepreneur, the alien 
entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien.
    Regional center means any economic unit, public or private, which is 
involved with the promotion of economic growth, including increased 
export sales, improved regional productivity, job creation, and 
increased domestic capital investment.
    Rural area means any area not within either a metropolitan 
statistical area (as designated by the Office of Management and Budget) 
or the outer boundary of any city or town having a population of 20,000 
or more.
    Targeted employment area means an area which, at the time of 
investment, is a rural area or an area which has experienced 
unemployment of at least 150 percent of the national average rate.
    Troubled business means a business that has been in existence for at 
least two years, has incurred a net loss for accounting purposes 
(determined on the basis of generally accepted accounting principles) 
during the twelve- or twenty-four month period prior to the priority 
date on the alien entrepreneur's Form  I-526, and the loss for such 
period is at least equal to twenty percent of the troubled business's 
net worth prior to such loss. For purposes of determining whether or not 
the troubled business has been in existence for two years, successors in 
interest to the troubled business will be deemed to have been in 
existence for the same period of time as the business they succeeded.
    (f) Required amounts of capital. (1) General. Unless otherwise 
specified, the amount of capital necessary to make a qualifying 
investment in the United States is one million United States dollars 
($1,000,000).
    (2) Targeted employment area. The amount of capital necessary to 
make a qualifying investment in a targeted employment area within the 
United States is five hundred thousand United States dollars ($500,000).
    (3) High employment area. The amount of capital necessary to make a 
qualifying investment in a high employment area within the United 
States, as defined in section 203(b)(5)(C)(iii) of the Act, is one 
million United States dollars ($1,000,000).
    (g) Multiple investors--(1) General. The establishment of a new 
commercial enterprise may be used as the basis of a petition for 
classification as an alien entrepreneur by more than one investor, 
provided each petitioning investor has invested or is actively in the 
process of investing the required amount for the area in which the new 
commercial enterprise is principally doing

[[Page 159]]

business, and provided each individual investment results in the 
creation of at least ten full-time positions for qualifying employees. 
The establishment of a new commercial enterprise may be used as the 
basis of a petition for classification as an alien entrepreneur even 
though there are several owners of the enterprise, including persons who 
are not seeking classification under section 203(b)(5) of the Act and 
non-natural persons, both foreign and domestic, provided that the 
source(s) of all capital invested is identified and all invested capital 
has been derived by lawful means.
    (2) Employment creation allocation. The total number of full-time 
positions created for qualifying employees shall be allocated solely to 
those alien entrepreneurs who have used the establishment of the new 
commercial enterprise as the basis of a petition on Form I-526. No 
allocation need be made among persons not seeking classification under 
section 203(b)(5) of the Act or among non-natural persons, either 
foreign or domestic. The Service shall recognize any reasonable 
agreement made among the alien entrepreneurs in regard to the 
identification and allocation of such qualifying positions.
    (h) Establishment of a new commercial enterprise. The establishment 
of a new commercial enterprise may consist of:
    (1) The creation of an original business;
    (2) The purchase of an existing business and simultaneous or 
subsequent restructuring or reorganization such that a new commercial 
enterprise results; or
    (3) The expansion of an existing business through the investment of 
the required amount, so that a substantial change in the net worth or 
number of employees results from the investment of capital. Substantial 
change means a 40 percent increase either in the net worth, or in the 
number of employees, so that the new net worth, or number of employees 
amounts to at least 140 percent of the pre-expansion net worth or number 
of employees. Establishment of a new commercial enterprise in this 
manner does not exempt the petitioner from the requirements of 8 CFR 
204.6(j) (2) and (3) relating to the required amount of capital 
investment and the creation of full-time employment for ten qualifying 
employees. In the case of a capital investment in a troubled business, 
employment creation may meet the criteria set forth in 8 CFR 
204.6(j)(4)(ii).
    (i) State designation of a high unemployment area. The state 
government of any state of the United States may designate a particular 
geographic or political subdivision located within a metropolitan 
statistical area or within a city or town having a population of 20,000 
or more within such state as an area of high unemployment (at least 150 
percent of the national average rate). Evidence of such designation, 
including a description of the boundaries of the geographic or political 
subdivision and the method or methods by which the unemployment 
statistics were obtained, may be provided to a prospective alien 
entrepreneur for submission with Form I-526. Before any such designation 
is made, an official of the state must notify the Associate Commissioner 
for Examinations of the agency, board, or other appropriate governmental 
body of the state which shall be delegated the authority to certify that 
the geographic or political subdivision is a high unemployment area.
    (j) Initial evidence to accompany petition. A petition submitted for 
classification as an alien entrepreneur must be accompanied by evidence 
that the alien has invested or is actively in the process of investing 
lawfully obtained capital in a new commercial enterprise in the United 
States which will create full-time positions for not fewer than 10 
qualifying employees. In the case of petitions submitted under the 
Immigrant Investor Pilot Program, a petition must be accompanied by 
evidence that the alien has invested, or is actively in the process of 
investing, capital obtained through lawful means within a regional 
center designated by the Service in accordance with paragraph (m)(4) of 
this section. The petitioner may be required to submit information or 
documentation that the Service deems appropriate in addition to that 
listed below.
    (1) To show that a new commercial enterprise has been established by 
the

[[Page 160]]

petitioner in the United States, the petition must be accompanied by:
    (i) As applicable, articles of incorporation, certificate of merger 
or consolidation, partnership agreement, certificate of limited 
partnership, joint venture agreement, business trust agreement, or other 
similar organizational document for the new commercial enterprise;
    (ii) A certificate evidencing authority to do business in a state or 
municipality or, if the form of the business does not require any such 
certificate or the State or municipality does not issue such a 
certificate, a statement to that effect; or
    (iii) Evidence that, as of a date certain after November 29, 1990, 
the required amount of capital for the area in which an enterprise is 
located has been transferred to an existing business, and that the 
investment has resulted in a substantial increase in the net worth or 
number of employees of the business to which the capital was 
transferred. This evidence must be in the form of stock purchase 
agreements, investment agreements, certified financial reports, payroll 
records, or any similar instruments, agreements, or documents evidencing 
the investment in the commercial enterprise and the resulting 
substantial change in the net worth, number of employees.
    (2) To show that the petitioner has invested or is actively in the 
process of investing the required amount of capital, the petition must 
be accompanied by evidence that the petitioner has placed the required 
amount of capital at risk for the purpose of generating a return on the 
capital placed at risk. Evidence of mere intent to invest, or of 
prospective investment arrangements entailing no present commitment, 
will not suffice to show that the petitioner is actively in the process 
of investing. The alien must show actual commitment of the required 
amount of capital. Such evidence may include, but need not be limited 
to:
    (i) Bank statement(s) showing amount(s) deposited in United States 
business account(s) for the enterprise;
    (ii) Evidence of assets which have been purchased for use in the 
United States enterprise, including invoices, sales receipts, and 
purchase contracts containing sufficient information to identify such 
assets, their purchase costs, date of purchase, and purchasing entity;
    (iii) Evidence of property transferred from abroad for use in the 
United States enterprise, including United States Customs Service 
commercial entry documents, bills of lading, and transit insurance 
policies containing ownership information and sufficient information to 
identify the property and to indicate the fair market value of such 
property;
    (iv) Evidence of monies transferred or committed to be transferred 
to the new commercial enterprise in exchange for shares of stock (voting 
or nonvoting, common or preferred). Such stock may not include terms 
requiring the new commercial enterprise to redeem it at the holder's 
request; or
    (v) Evidence of any loan or mortgage agreement, promissory note, 
security agreement, or other evidence of borrowing which is secured by 
assets of the petitioner, other than those of the new commercial 
enterprise, and for which the petitioner is personally and primarily 
liable.
    (3) To show that the petitioner has invested, or is actively in the 
process of investing, capital obtained through lawful means, the 
petition must be accompanied, as applicable, by:
    (i) Foreign business registration records;
    (ii) Corporate, partnership (or any other entity in any form which 
has filed in any country or subdivision thereof any return described in 
this subpart), and personal tax returns including income, franchise, 
property (whether real, personal, or intangible), or any other tax 
returns of any kind filed within five years, with any taxing 
jurisdiction in or outside the United States by or on behalf of the 
petitioner;
    (iii) Evidence identifying any other source(s) of capital; or
    (iv) Certified copies of any judgments or evidence of all pending 
governmental civil or criminal actions, governmental administrative 
proceedings, and any private civil actions (pending or otherwise) 
involving monetary judgments against the petitioner from any

[[Page 161]]

court in or outside the United States within the past fifteen years.
    (4) Job creation--(i) General. To show that a new commercial 
enterprise will create not fewer than ten (10) full-time positions for 
qualifying employees, the petition must be accompanied by:
    (A) Documentation consisting of photocopies of relevant tax records, 
Form I-9, or other similar documents for ten (10) qualifying employees, 
if such employees have already been hired following the establishment of 
the new commercial enterprise; or
    (B) A copy of a comprehensive business plan showing that, due to the 
nature and projected size of the new commercial enterprise, the need for 
not fewer than ten (10) qualifying employees will result, including 
approximate dates, within the next two years, and when such employees 
will be hired.
    (ii) Troubled business. To show that a new commercial enterprise 
which has been established through a capital investment in a troubled 
business meets the statutory employment creation requirement, the 
petition must be accompanied by evidence that the number of existing 
employees is being or will be maintained at no less than the pre-
investment level for a period of at least two years. Photocopies of tax 
records, Forms I-9, or other relevant documents for the qualifying 
employees and a comprehensive business plan shall be submitted in 
support of the petition.
    (iii) Immigrant Investor Pilot Program. To show that the new 
commercial enterprise located within a regional center approved for 
participation in the Immigrant Investor Pilot Program meets the 
statutory employment creation requirement, the petition must be 
accompanied by evidence that the investment will create full-time 
positions for not fewer than 10 persons either directly or indirectly 
through revenues generated from increased exports resulting from the 
Pilot Program. Such evidence may be demonstrated by reasonable 
methodologies including those set forth in paragraph (m)(3) of this 
section.
    (5) To show that the petitioner is or will be engaged in the 
management of the new commercial enterprise, either through the exercise 
of day-to-day managerial control or through policy formulation, as 
opposed to maintaining a purely passive role in regard to the 
investment, the petition must be accompanied by:
    (i) A statement of the position title that the petitioner has or 
will have in the new enterprise and a complete description of the 
position's duties;
    (ii) Evidence that the petitioner is a corporate officer or a member 
of the corporate board of directors; or
    (iii) If the new enterprise is a partnership, either limited or 
general, evidence that the petitioner is engaged in either direct 
management or policy making activities. For purposes of this section, if 
the petitioner is a limited partner and the limited partnership 
agreement provides the petitioner with certain rights, powers, and 
duties normally granted to limited partners under the Uniform Limited 
Partnership Act, the petitioner will be considered sufficiently engaged 
in the management of the new commercial enterprise.
    (6) If applicable, to show that the new commercial enterprise has 
created or will create employment in a targeted employment area, the 
petition must be accompanied by:
    (i) In the case of a rural area, evidence that the new commercial 
enterprise is principally doing business within a civil jurisdiction not 
located within any standard metropolitan statistical area as designated 
by the Office of Management and Budget, or within any city or town 
having a population of 20,000 or more as based on the most recent 
decennial census of the United States; or
    (ii) In the case of a high unemployment area:
    (A) Evidence that the metropolitan statistical area, the specific 
county within a metropolitan statistical area, or the county in which a 
city or town with a population of 20,000 or more is located, in which 
the new commercial enterprise is principally doing business has 
experienced an average unemployment rate of 150 percent of the national 
average rate; or
    (B) A letter from an authorized body of the government of the state 
in which

[[Page 162]]

the new commercial enterprise is located which certifies that the 
geographic or political subdivision of the metropolitan statistical area 
or of the city or town with a population of 20,000 or more in which the 
enterprise is principally doing business has been designated a high 
unemployment area. The letter must meet the requirements of 8 CFR 
204.6(i).
    (k) Decision. The petitioner will be notified of the decision, and, 
if the petition is denied, of the reasons for the denial and of the 
petitioner's right of appeal to the Associate Commissioner for 
Examinations in accordance with the provisions of part 103 of this 
chapter. The decision must specify whether or not the new commercial 
enterprise is principally doing business within a targeted employment 
area.
    (l) Disposition of approved petition. The approved petition will be 
forwarded to the United States consulate selected by the petitioner and 
indicated on the petition. If a consulate has not been designated, the 
petition will be forwarded to the consulate having jurisdiction over the 
place of the petitioner's last residence abroad. If the petitioner is 
eligible for adjustment of status to conditional permanent residence, 
and if the petition indicates that the petitioner intends to apply for 
such adjustment, the approved petition will be retained by the Service 
for consideration in conjunction with the application for adjustment of 
status.
    (m) Immigrant Investor Pilot Program--(1) Scope. The Immigrant 
Investor Pilot Program is established solely pursuant to the provisions 
of section 610 of the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriation Act, and subject to all 
conditions and restrictions stipulated in that section. Except as 
provided herein, aliens seeking to obtain immigration benefits under 
this paragraph continue to be subject to all conditions and restrictions 
set forth in section 203(b)(5) of the Act and this section.
    (2) Number of immigrant visas allocated. The annual allocation of 
the visas available under the Immigrant Investor Pilot Program is set at 
300 for each of the five fiscal years commencing on October 1, 1993.
    (3) Requirements for regional centers. Each regional center wishing 
to participate in the Immigrant Investor Pilot Program shall submit a 
proposal to the Assistant Commissioner for Adjudications, which:
    (i) Clearly describes how the regional center focuses on a 
geographical region of the United States, and how it will promote 
economic growth through increased export sales, improved regional 
productivity, job creation, and increased domestic capital investment;
    (ii) Provides in verifiable detail how jobs will be created 
indirectly through increased exports;
    (iii) Provides a detailed statement regarding the amount and source 
of capital which has been committed to the regional center, as well as a 
description of the promotional efforts taken and planned by the sponsors 
of the regional center;
    (iv) Contains a detailed prediction regarding the manner in which 
the regional center will have a positive impact on the regional or 
national economy in general as reflected by such factors as increased 
household earnings, greater demand for business services, utilities, 
maintenance and repair, and construction both within and without the 
regional center; and
    (v) Is supported by economically or statistically valid forecasting 
tools, including, but not limited to, feasibility studies, analyses of 
foreign and domestic markets for the goods or services to be exported, 
and/or multiplier tables.
    (4) Submission of proposals to participate in the Immigrant Investor 
Pilot Program. On August 24, 1993, the Service will accept proposals 
from regional centers seeking approval to participate in the Immigrant 
Investor Pilot Program. Regional centers that have been approved by the 
Assistant Commissioner for Adjudications will be eligible to participate 
in the Immigrant Investor Pilot Program.
    (5) Decision to participate in the Immigrant Investor Pilot Program. 
The Assistant Commissioner for Adjudications shall notify the regional 
center of his or her decision on the request for approval to participate 
in the Immigrant

[[Page 163]]

Investor Pilot Program, and, if the petition is denied, of the reasons 
for the denial and of the regional center's right of appeal to the 
Associate Commissioner for Examinations. Notification of denial and 
appeal rights, and the procedure for appeal shall be the same as those 
contained in 8 CFR 103.3.
    (6) Termination of participation of regional centers. To ensure that 
regional centers continue to meet the requirements of section 610(a) of 
the Appropriations Act, the Assistant Commissioner for Adjudications 
shall issue a notice of intent to terminate the participation of a 
regional center in the pilot program upon a determination that the 
regional center no longer serves the purpose of promoting economic 
growth, including increased export sales, improved regional 
productivity, job creation, and increased domestic capital investment. 
The notice of intent to terminate shall be made upon notice to the 
regional center and shall set forth the reasons for termination. The 
regional center must be provided thirty days from receipt of the notice 
of intent to terminate to offer evidence in opposition to the ground or 
grounds alleged in the notice of intent to terminate. If the Assistant 
Commissioner for Adjudications determines that the regional center's 
participation in the Pilot Program should be terminated, the Assistant 
Commissioner for Adjudications shall notify the regional center of the 
decision and of the reasons for termination. The regional center may 
appeal the decision within thirty days after the service of notice to 
the Associate Commissioner for Examinations as provided in 8 CFR 103.3.
    (7) Requirements for alien entrepreneurs. An alien seeking an 
immigrant visa as an alien entrepreneur under the Immigrant Investor 
Pilot Program must demonstrate that his or her qualifying investment is 
within a regional center approved pursuant to paragraph (m)(4) of this 
section and that such investment will create jobs indirectly through 
revenues generated from increased exports resulting from the new 
commercial enterprise.
    (i) Exports. For purposes of paragraph (m) of this section, the term 
``exports'' means services or goods which are produced directly or 
indirectly through revenues generated from a new commercial enterprise 
and which are transported out of the United States;
    (ii) Indirect job creation. To show that 10 or more jobs are 
actually created indirectly by the business, reasonable methodologies 
may be used. Such methodologies may include multiplier tables, 
feasibility studies, analyses of foreign and domestic markets for the 
goods or services to be exported, and other economically or 
statistically valid forecasting devices which indicate the likelihood 
that the business will result in increased employment.
    (8) Time for submission of petitions for classification as an alien 
entrepreneur under the Immigrant Investor Pilot Program. Commencing on 
October 1, 1993, petitions will be accepted for filing and adjudicated 
in accordance with the provisions of this section if the alien 
entrepreneur has invested or is actively in the process of investing 
within a regional center which has been approved by the Service for 
participation in the Pilot Program.
    (9) Effect of termination of approval of regional center to 
participate in the Immigrant Investor Pilot Program. Upon termination of 
approval of a regional center to participate in the Immigrant Investor 
Pilot Program, the director shall send a formal written notice to any 
alien within the regional center who has been granted lawful permanent 
residence on a conditional basis under the Pilot Program, and who has 
not yet removed the conditional basis of such lawful permanent 
residence, of the termination of the alien's permanent resident status, 
unless the alien can establish continued eligibility for alien 
entrepreneur classification under section 203(b)(5) of the Act.

[56 FR 60910, Nov. 29, 1991, as amended at 57 FR 1860, Jan. 16, 1992; 58 
FR 44608, 44609, Aug. 24, 1993]



Sec. 204.7  Preservation of benefits contained in savings clause of Immigration and Nationality Act Amendments of 1976.

    In order to be considered eligible for the benefits of the savings 
clause contained in section 9 of the Immigration and Nationality Act 
Amendments of 1976, an alien must show that the facts

[[Page 164]]

established prior to January 1, 1977 upon which the entitlement to such 
benefits was based continue to exist.

[41 FR 55849, Dec. 23, 1976]



Sec. 204.8  Petitions for employees of certain United States businesses operating in Hong Kong.

    (a) General. A petition to accord an alien status as an employee of 
a United States business operating in Hong Kong pursuant to section 124 
of the Immigration Act of 1990 shall be filed by the employer on Form I-
140, Immigrant Petition for Alien Worker. Since section 124 provides for 
up to 12,000 additional visa numbers only in each of fiscal years 1991 
through 1993, petitions for these employees will not be accepted after 
September 30, 1993.
    (b) Definitions. As used in this section:
    Affiliate means one of two subsidiaries both of which are owned and 
controlled by the same parent or individual or one of two legal entities 
owned and controlled by the same group of individuals, each individual 
owning and controlling approximately the same share or proportion of 
each entity. Effective October 1, 1991, in the case of a partnership 
that is organized in the United States to provide accounting services 
along with managerial and consulting services and that markets its 
accounting services under an internationally recognized name under an 
agreement with a worldwide coordinating organization that is owned and 
controlled by the member accounting firms, a partnership (or similar 
organization) that is organized outside the United States to provide 
accounting services shall be considered to be an affiliate of the United 
States partnership if its markets its accounting services under the same 
internationally recognized name under the agreement with the worldwide 
coordinating organization of which the United States partnership is also 
a member.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (i) Directs the management of the organization or a major component 
or function of the organization;
    (ii) Establishes the goals and policies of the organization, 
component, or function;
    (iii) Exercises wide latitude in discretionary decision-making; and
    (iv) Receives only general supervision or direction from higher 
level executives, the board of directors, or stockholders of the 
organization.
    Managerial capacity means an assignment within an organization in 
which the employee primarily:
    (i) Manages the organization, or a department, subdivision, 
function, or component of the organization;
    (ii) Supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential function 
within the organization, or a department or subdivision of the 
organization;
    (iii) Has the authority to hire and fire or recommend those as well 
as other personnel actions (such as promotion and leave authorization) 
if another employee or other employees are directly supervised, or, if 
no other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and
    (iv) Exercises direction over the day-to-day operations of the 
activity or function for which the employee has authority.
    Officer means, with respect to a business entity, the chairman or 
vice-chairman of the board of directors of the entity, the chairman or 
vice-chairman of the executive committee of the board of directors, the 
president, any vice-president, any assistant vice-president, any senior 
trust officer, the secretary, any assistant secretary, the treasurer, 
any assistant treasurer, any trust officer or associate trust officer, 
the controller, any assistant controller, or any other officer of the 
entity customarily performing functions similar to those performed by 
any of the foregoing officers.
    Parent means a firm, corporation, or other legal entity which has 
subsidiaries.
    Specialized knowledge means, with respect to an organization, that 
an alien has a special knowledge of the organization's product and its 
application in

[[Page 165]]

international markets or has an advanced level of knowledge of processes 
and procedures of the organization.
    Subsidiary means a firm, corporation, or other legal entity of which 
a parent owns, directly or indirectly, more than half of the entity and 
controls the entity; or owns, directly or indirectly, 50 percent of a 
50-50 joint venture and has equal control and veto power; or owns, 
directly or indirectly, less than half the entity, but in fact controls 
the entity.
    Supervisor means any individual having authority, in the interest of 
the employer, to hire, transfer, suspend, lay off, recall, promote, 
discharge, assign, award, or discipline other employees, or 
responsibility to direct them, or to adjust their grievances, or 
effectively recommend such action, if in connection with the foregoing, 
the exercise of such authority is not merely of a routine or clerical 
nature, but requires the use of independent judgement.
    United States business, as used in this section, means an entity or 
organization created under the laws of the United States which has a 
United States principal place of business and which is at least 50 
percent owned by United States citizens or permanent residents.
    (c) Jurisdiction. The petition must be filed at the Service Center 
having jurisdiction over the corporate headquarters of the business in 
the United States. There will be no concurrent filing of a petition with 
an application for status as a permanent resident (Form I-485).
    (d) Eligibility. The alien beneficiary must:
    (1) Be a resident of Hong Kong who:
    (i) Is employed in Hong Kong and has been employed in Hong Kong 
during the 12 previous consecutive months; or
    (ii) Is employed outside of Hong Kong during a temporary absence 
(i.e., of limited duration) from Hong Kong at the request of the 
employer and had been employed in Hong Kong for 12 consecutive months 
prior to such absence(s); and
    (2) Be employed as an officer or supervisor or in a capacity that is 
managerial or executive or involves specialized knowledge, by a 
qualifying business entity. A qualifying business entity is one which:
    (i) Is owned and organized in the United States (or is the 
subsidiary or affiliate of a business owned and organized in the United 
States);
    (ii) Employs at least 100 employees in the United States and at 
least 50 employees outside the United States (not necessarily all in 
Hong Kong); and
    (iii) Has a gross annual income of at least $50,000,000.
    (3) Have an offer of employment in the United States from the United 
States business entity as an officer or supervisor or in a capacity that 
is managerial or executive, or involves specialized knowledge. The offer 
of employment must:
    (i) Be effective from the time of filing the petition through and 
including the time of entry into the United States, and
    (ii) Provide for salary and benefits comparable to the salary and 
benefits provided to others with similar responsibilities and experience 
within the same company.
    (e) Determining managerial or executive capacities--(1) Supervisors 
as managers. A first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties of 
the supervisor's supervisory duties unless the employees supervised are 
professional.
    (2) Staffing levels. If staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive 
capacity, the reasonable needs of the organization, component, or 
function in light of the overall purpose and stage of development of the 
organization, component, or function shall be taken into account. An 
individual shall not be considered to be acting in a managerial or 
executive capacity merely on the basis of the number of employees that 
the individual supervises or has supervised or directs or has directed.
    (f) Evidence to accompany petition. A petition filed on Form I-140 
shall be accompanied by:
    (1) Form ETA-750B, Statement of Qualifications of Alien; and
    (2) A letter from the employer attesting to the information 
contained in paragraph (d) of this section. Since the

[[Page 166]]

alien's move to the United States from Hong Kong does not need to take 
place immediately, the employer's information on the job in the United 
States will be determined by the circumstances of the individual case. 
If immediate immigration is intended, a specific job description must be 
included with the employer's attestation. If immigration will be 
deferred, a simple commitment by the employer that a qualifying job will 
be available in the United States will be acceptable. Prior to seeking 
admission to the United States, a deferred visa applicant must present a 
specific job description letter for redetermination of eligibility. Such 
letter shall be presented to the visa-issuing consular post, or to the 
Service office where the alien is applying for adjustment of status in 
the United States.
    (g) Closing action--(1) Approval. If the alien is residing in Hong 
Kong, an approved petition will be forwarded for visa processing to the 
United States Consulate at Hong Kong. Whether the alien is in Hong Kong 
or is adjusting in the United States, the legend ``HONG KONG SEC. 124'' 
will be clearly printed in the block used for indicating preference at 
the top of Form I-140.
    (2) Denial. The denial of a petition filed under this provision 
shall be appealable to the Associate Commissioner, Examinations. 
Notification of denial and appeal rights, and the procedure for appeal 
shall be the same as those contained in 8 CFR 103.3.
    (3) Revocation. A petition approved under this provision shall be 
automatically revoked for the same reasons provided in 8 CFR 205.1(c). 
The procedure for revocation on notice shall be the procedure described 
in 8 CFR 205.2. Termination of employment shall be grounds for automatic 
revocation; however, a transfer within the same company to a different 
division, section, subsidiary, or affiliate (regardless of geographical 
location) will not be disqualifying.

[56 FR 23210, May 21, 1991, as amended at 57 FR 14792, 14793, Apr. 23, 
1992]



Sec. 204.9  Special immigrant status for certain aliens who have served honorably (or are enlisted to serve) in the Armed Forces of the United States for at least 12 years.

    (a) Petition for Armed Forces special immigrant. An alien may not be 
classified as an Armed Forces special immigrant unless the alien is the 
beneficiary of an approved petition to classify such an alien as a 
special immigrant under section 101(a)(27)(K) of the Act. The petition 
must be filed on Form I-360, Petition for Amerasian, Widow or Special 
Immigrant.
    (1) Who may file. An alien Armed Forces enlistee or veteran may file 
the petition for Armed Forces special immigrant status in his or her own 
behalf. The person filing the petition is not required to be a citizen 
or lawful permanent resident of the United States.
    (2) Where to file. The petition must be filed with the Service 
Center having jurisdiction over the place of the alien's current or 
intended place of residence in the United States, with the overseas 
Service office having jurisdiction over the alien's residence abroad, or 
in conjunction with 8 CFR 245.8.
    (b) Eligibility. An alien is eligible for classification as a 
special immigrant under section 101(a)(27)(K) of the Act if:
    (1) The alien has served honorably on active duty in the Armed 
Forces of the United States after October 15, 1978;
    (2) The alien's original lawful enlistment was outside the United 
States (under a treaty or agreement in effect October 1, 1991) for a 
period or periods aggregating--
    (i) Twelve years, and who, if separated from such service, was never 
separated except under honorable conditions; or
    (ii) Six years, in the case of an immigrant who is on active duty at 
the time of seeking special immigrant status under this rule and who has 
reenlisted to incur a total active duty service obligation of at least 
12 years;
    (3) The alien is a national of an independent state which maintains 
a treaty or agreement allowing nationals of that state to enlist in the 
United States Armed Forces each year; and

[[Page 167]]

    (4) The executive department under which the alien has served or is 
serving has recommended the granting of special immigrant status to the 
immigrant.
    (c) Derivative beneficiaries. A spouse or child accompanying or 
following to join a principal immigrant who has requested benefits under 
this section may be accorded the same special immigrant classification 
as the principal alien. This may occur whether or not the spouse or 
child is named in the petition and without the approval of a separate 
petition, but only if the executive department under which the immigrant 
serves or served recommends the granting of special immigrant status to 
the principal immigrant.
    (1) The relationship of spouse and child as defined in section 
101(b)(1) of the Act must have existed at the time the principal alien's 
special immigrant application under section 101(a)(27)(K) of the Act was 
approved. The spouse or child of an immigrant classified as a section 
103(a)(27)(K) special immigrant is entitled to a derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (2) When a spouse or child of an alien granted special immigrant 
status under section 101(a)(27)(K) of the Act is in the United States 
but was not included in the principal alien's application, the spouse or 
child shall file Form I-485, Application to Register Permanent Residence 
or Adjust Status, with the director having jurisdiction over his or her 
place of residence, regardless of the status of that spouse or child in 
the United States. The application must be supported by evidence that 
the principal alien has been granted special immigrant status under 
section 101(a)(27)(K) of the Act.
    (3) Revocation of derivative status. The termination of special 
immigrant status for a person who was the principal applicant shall 
result in termination of the special immigrant status of a spouse or 
child whose status was based on the special immigrant application of the 
principal.
    (d) Documents which must be submitted in support of the petition.
    (1) A petition to classify an immigrant as a special immigrant under 
section 101(a)(27)(K) of the Act must be accompanied by the following:
    (i) Certified proof of reenlistment (after 6 years of active duty 
service), or certification of past active duty status of 12 years, 
issued by the authorizing official of the executive department in which 
the applicant serves or has served, which certifies that the applicant 
has the required honorable active duty service and commitment. The 
authorizing official need not be at a level above the ``local command''. 
The certification must be submitted with Form I-360, Petition for 
Amerasian, Widow(er), or Special Immigrant; and
    (ii) Birth certificate of the applicant establishing that the 
applicant is a national of an independent state which maintains a treaty 
or agreement allowing nationals of that state to enlist in the United 
States Armed Forces each year.
    (2) Any documents submitted in support of the petition must meet the 
evidentiary requirements as set forth in 8 CFR part 103.
    (3) Submission of an original Form DD-214, Certificate of Release or 
Discharge from Active Duty; Form G-325b, Biographic Information; and 
Form N-426, Request for Certification of Military or Naval Service, is 
not required for approval of a petition for special immigrant status.
    (e) Decision. The petitioner will be notified of the director's 
decision and, if the petition is denied, of the reasons for the denial. 
If the petition is denied, the petitioner will also be notified of the 
petitioner's right to appeal the decision to the Associate Commissioner 
for Examinations in accordance with 8 CFR part 103.
    (f) Revocation under section 205 of the Act. An alien who has been 
granted special immigrant classification under section 101(a)(27)(K) of 
the Act must meet the qualifications set forth in the Act at the time he 
or she is admitted to the United States for lawful permanent residence. 
If an Armed Forces special immigrant ceases to be a qualified enlistee 
by failing to complete the required active duty service obligation for 
reasons other than an honorable discharge prior to entering the United 
States with an immigrant visa or approval of an application for 
adjustment

[[Page 168]]

of status to that of an alien lawfully admitted for permanent residence, 
the petition designating his or her classification as a special 
immigrant is revoked automatically under the general provisions of 
section 205 of the Act. The Service shall obtain a current Form DD-214, 
Certificate of Release or Discharge from Active Duty, from the 
appropriate executive department for verification of the alien's failure 
to maintain eligibility for the classification under section 
101(a)(27)(K) of the Act.

[57 FR 33861, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993]



Sec. 204.10  Petitions by, or for, certain scientists of the Commonwealth of Independent States or the Baltic states.

    (a) General. A petition to classify an alien under section 203(b)(2) 
of the Act as a scientist of the eligible independent states of the 
former Soviet Union or the Baltic states must be filed on Form I-140, 
Immigrant Petition for Alien Worker. The petition may be filed by the 
alien, or anyone in the alien's behalf. The Service must approve a 
petition filed on behalf of the alien on or before October 24, 1996, or 
until 750 petitions have been approved on behalf of eligible scientists, 
whichever is earliest.
    (b) Jurisdiction. Form I-140 must be filed with the service center 
having jurisdiction over the alien's place of intended residence in the 
United States, unless specifically designated for local filing by the 
Associate Commissioner for Examinations. To clarify that the petition is 
for a Soviet scientist, the petitioner should check the block in part 2 
of Form I-140 which indicates that the petition is for ``a member of the 
professions holding an advanced degree or an alien of exceptional 
ability'' and clearly print the words ``SOVIET SCIENTIST'' in an 
available space in Part 2.
    (c) Priority date. The priority date of any petition filed for this 
classification shall be the date the completed, signed petition 
(including all initial evidence and the correct fee) is properly filed 
with the Service.
    (d) Definitions. As used in this section:
    Baltic states means the sovereign nations of Latvia, Lithuania, and 
Estonia.
    Eligible independent states and Baltic scientists means aliens:
    (i) Who are nationals of any of the independent states of the former 
Soviet Union or the Baltic states; and
    (ii) Who are scientists or engineers who have expertise in a high-
technology field which is clearly applicable to the design, development, 
or production of ballistic missiles, nuclear, biological, chemical, or 
other high-technology weapons of mass destruction, or who are working on 
the design, development, and production of ballistic missiles, nuclear, 
biological, chemical, or other high-technology weapons of mass 
destruction.
    Independent states of the former Soviet Union means the sovereign 
nations of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, 
Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and 
Uzbekistan.
    (e) Initial evidence. A petition for classification as a scientist 
of the independent states of the former Soviet Union or the Baltic 
states must be accompanied by:
    (1) Evidence that the alien is a national of one of the independent 
states of the former Soviet Union or one of the Baltic states. Such 
evidence includes, but is not limited to, identifying page(s) from a 
passport issued by the former Soviet Union, or by one of the independent 
or Baltic states; and
    (2) Evidence that the alien possesses exceptional ability in the 
field. Such evidence shall include:
    (i) Form ETA 750B, Statement of Qualifications of Alien and a 
supplementary statement of relevant experience within the past ten 
years; and
    (ii) Written testimony that the alien has expertise in a field 
described in paragraph (d) of this section, or that the alien is or has 
been working on a high-technology defense project or projects in a field 
described in paragraph (d) of this section, from either two recognized 
national or international experts in the same field or from the head or 
duly appointed designee of an agency of the Federal Government of the 
United States; and

[[Page 169]]

    (iii) Corroborative evidence of the claimed expertise, including the 
beneficiary's official Labor Record Book (Trudavaya Knizhka), any 
significant awards and publications, and other comparable evidence, or 
an explanation why the foregoing items cannot be submitted; or
    (iv) In the case of a qualified scientist who establishes that he or 
she is unable to submit the initial evidence prescribed by paragraphs 
(e)(2) (ii) or (iii) of this section, a full explanation and statement 
of the facts concerning his or her eligibility. This statement must be 
sufficiently detailed so as to enable the Service to meaningfully 
consult with other government agencies as provided in paragraph (g) of 
this section.
    (f) No offer of employment required. Neither an offer of employment 
nor a labor certification is required for this classification.
    (g) Consultation with other United States Government agencies. In 
evaluating the claimed qualifications of applicants under this 
provision, the Service may consult with other United States Government 
agencies having expertise in defense matters including, but not limited 
to, the Department of Defense, the Department of State, and the Central 
Intelligence Agency. The Service may, in the exercise of discretion, 
accept a favorable report from such agency as evidence in lieu of the 
documentation prescribed in paragraphs (e)(2) (ii) and (iii) of this 
section.
    (h) Decision on and disposition of petition. If the beneficiary is 
outside of the United States, or is in the United States but seeks to 
apply for an immigrant visa abroad, the approved petition will be 
forwarded by the service center to the Department of State's National 
Visa Center. If the beneficiary is in the United States and seeks to 
apply for adjustment of status, the approved petition will be retained 
at the service center for consideration with the application for 
adjustment of status. If the petition is denied, the petitioner will be 
notified of the reasons for the denial and of the right to appeal in 
accordance with the provisions of 8 CFR part 103.

[58 FR 30701, May 27, 1993, as amended at 60 FR 54030, Oct. 19, 1995]



Sec. 204.11  Special immigrant status for certain aliens declared dependent on a juvenile court (special immigrant juvenile).

    (a) Definitions.
    Eligible for long-term foster care means that a determination has 
been made by the juvenile court that family reunification is no longer a 
viable option. A child who is eligible for long-term foster care will 
normally be expected to remain in foster care until reaching the age of 
majority, unless the child is adopted or placed in a guardianship 
situation. For the purposes of establishing and maintaining eligibility 
for classification as a special immigrant juvenile, a child who has been 
adopted or placed in guardianship situation after having been found 
dependent upon a juvenile court in the United States will continue to be 
considered to be eligible for long-term foster care.
    Juvenile court means a court located in the United States having 
jurisdiction under State law to make judicial determinations about the 
custody and care of juveniles.
    (b) Petition for special immigrant juvenile. An alien may not be 
classified as a special immigrant juvenile unless the alien is the 
beneficiary of an approved petition to classify an alien as a special 
immigrant under section 101(a)(27) of the Act. The petition must be 
filed on Form I-360, Petition for Amerasian, Widow(er) or Special 
Immigrant.
    (1) Who may file. The alien, or any person acting on the alien's 
behalf, may file the petition for special immigrant juvenile status. The 
person filing the petition is not required to be a citizen or lawful 
permanent resident of the United States.
    (2) Where to file. The petition must be filed at the district office 
of the Immigration and Naturalization Service having jurisdiction over 
the alien's place of residence in the United States.
    (c) Eligibility. An alien is eligible for classification as a 
special immigrant under section 101(a)(27)(J) of the Act if the alien:
    (1) Is under twenty-one years of age;

[[Page 170]]

    (2) Is unmarried;
    (3) Has been declared dependent upon a juvenile court located in the 
United States in accordance with state law governing such declarations 
of dependency, while the alien was in the United States and under the 
jurisdiction of the court;
    (4) Has been deemed eligible by the juvenile court for long-term 
foster care;
    (5) Continues to be dependent upon the juvenile court and eligible 
for long-term foster care, such declaration, dependency or eligibility 
not having been vacated, terminated, or otherwise ended; and
    (6) Has been the subject of judicial proceedings or administrative 
proceedings authorized or recognized by the juvenile court in which it 
has been determined that it would not be in the alien's best interest to 
be returned to the country of nationality or last habitual residence of 
the beneficiary or his or her parent or parents; or
    (7) On November 29, 1990, met all the eligibility requirements for 
special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of 
this section, and for whom a petition for classification as a special 
immigrant juvenile is filed on Form I-360 before June 1, 1994.
    (d) Initial documents which must be submitted in support of the 
petition. (1) Documentary evidence of the alien's age, in the form of a 
birth certificate, passport, official foreign identity document issued 
by a foreign government, such as a Cartilla or a Cedula, or other 
document which in the discretion of the director establishes the 
beneficiary's age; and
    (2) One or more documents which include:
    (i) A juvenile court order, issued by a court of competent 
jurisdiction located in the United States, showing that the court has 
found the beneficiary to be dependent upon that court;
    (ii) A juvenile court order, issued by a court of competent 
jurisdiction located in the United States, showing that the court has 
found the beneficiary eligible for long-term foster care; and
    (iii) Evidence of a determination made in judicial or administrative 
proceedings by a court or agency recognized by the juvenile court and 
authorized by law to make such decisions, that it would not be in the 
beneficiary's best interest to be returned to the country of nationality 
or last habitual residence of the beneficiary or of his or her parent or 
parents.
    (e) Decision. The petitioner will be notified of the director's 
decision, and, if the petition is denied, of the reasons for the denial. 
If the petition is denied, the petitioner will also be notified of the 
petitioner's right to appeal the decision to the Associate Commissioner, 
Examinations, in accordance with part 103 of this chapter.

[58 FR 42850, Aug. 12, 1993]



Sec. 204.12  How can second-preference immigrant physicians be granted a national interest waiver based on service in a medically underserved area or VA facility?

    (a) Which physicians qualify? Any alien physician (namely doctors of 
medicine and doctors of osteopathy) for whom an immigrant visa petition 
has been filed pursuant to section 203(b)(2) of the Act shall be granted 
a national interest waiver under section 203(b)(2)(B)(ii) of the Act if 
the physician requests the waiver in accordance with this section and 
establishes that:
    (1) The physician agrees to work full-time (40 hours per week) in a 
clinical practice for an aggregate of 5 years (not including time served 
in J-1 nonimmigrant status); and
    (2) The service is;
    (i) In a geographical area or areas designated by the Secretary of 
Health and Human Services (HHS) as a Medically Underserved Area, a 
Primary Medical Health Professional Shortage Area, or a Mental Health 
Professional Shortage Area, and in a medical speciality that is within 
the scope of the Secretary's designation for the geographical area or 
areas; or
    (ii) At a health care facility under the jurisdiction of the 
Secretary of Veterans Affairs (VA); and
    (3) A Federal agency or the department of public health of a State, 
territory of the United States, or the District of Columbia, has 
previously determined that the physician's work in that area or facility 
is in the public interest.

[[Page 171]]

    (b) Is there a time limit on how long the physician has to complete 
the required medical service?
    (1) If the physician already has authorization to accept employment 
(other than as a J-1 exchange alien), the beneficiary physician must 
complete the aggregate 5 years of qualifying full-time clinical practice 
during the 6-year period beginning on the date of approval of the Form 
I-140.
    (2) If the physician must obtain authorization to accept employment 
before the physician may lawfully begin working, the physician must 
complete the aggregate 5 years of qualifying full-time clinical practice 
during the 6-year period beginning on the date of the Service issues the 
necessary employment authorization document.
    (c) Are there special requirements for these physicians? Petitioners 
requesting the national interest waiver as described in this section on 
behalf of a qualified alien physician, or alien physicians self-
petitioning for second preference classification, must meet all 
eligibility requirements found in paragraphs (k)(1) through (k)(3) of 
Sec. 204.5. In addition, the petitioner or self-petitioner must submit 
the following evidence with Form I-140 to support the request for a 
national interest waiver. Physicians planning to divide the practice of 
full-time clinical medicine between more than one underserved area must 
submit the following evidence for each area of intended practice.
    (1)(i) If the physician will be an employee, a full-time employment 
contract for the required period of clinical medical practice, or an 
employment commitment letter from a VA facility. The contract or letter 
must have been issued and dated within 6 months prior to the date the 
petition is filed.
    (ii) If the physician will establish his or her own practice, the 
physician's sworn statement committing to the full-time practice of 
clinical medicine for the required period, and describing the steps the 
physician has taken or intends to actually take to establish the 
practice.
    (2) Evidence that the physician will provide full-time clinical 
medical service:
    (i) In a geographical area or areas designated by the Secretary of 
HHS as having a shortage of health care professionals and in a medical 
speciality that is within the scope of the Secretary's designation for 
the geographical area or areas; or
    (ii) In a facility under the jurisdiction of the Secretary of VA.
    (3) A letter (issued and dated within 6 months prior to the date on 
which the petition is filed) from a Federal agency or from the 
department of public health (or equivalent) of a State or territory of 
the United States or the District of Columbia, attesting that the alien 
physician's work is or will be in the public interest.
    (i) An attestation from a Federal agency must reflect the agency's 
knowledge of the alien's qualifications and the agency's background in 
making determinations on matters involving medical affairs so as to 
substantiate the finding that the alien's work is or will be in the 
public interest.
    (ii) An attestation from the public health department of a State, 
territory, or the District of Columbia must reflect that the agency has 
jurisdiction over the place where the alien physician intends to 
practice clinical medicine. If the alien physician intends to practice 
clinical medicine in more than one underserved area, attestations from 
each intended area of practice must be included.
    (4) Evidence that the alien physician meets the admissibility 
requirements established by section 212(a)(5)(B) of the Act.
    (5) Evidence of the Service-issued waivers, if applicable, of the 
requirements of sections 212(e) of the Act, if the alien physician has 
been a J-1 nonimmigrant receiving medical training within the United 
States.
    (d) How will the Service process petitions filed on different dates?
    (1) Petitions filed on or after November 12, 1999. For petitions 
filed on or after November 12, 1999, the Service will approve a national 
interest waiver provided the petitioner or beneficiary (if self-
petitioning) submits the necessary documentation to satisfy the 
requirements of section 203(b)(2)(B)(ii) of the Act and this section, 
and the physician is otherwise eligible for classification as a second 
preference employment-

[[Page 172]]

based immigrant. Nothing in this section relieves the alien physician 
from any other requirement other than that of fulfilling the labor 
certification process as provided in Sec. 204.5(k)(4).
    (2) Petitions pending on November 12, 1999. Section 203(b)(2)(B)(ii) 
of the Act applies to all petitions that were pending adjudication as of 
November 12, 1999 before a Service Center, before the associate 
Commissioner for Examinations, or before a Federal court. Petitioners 
whose petitions were pending on November 12, 1999, will not be required 
to submit a new petition, but may be required to submit supplemental 
evidence noted in paragraph (c) of this section. The requirement that 
supplemental evidence be issued and dated within 6 months prior to the 
date on which the petition is filed is not applicable to petitions that 
were pending as of November 12, 1999. If the case was pending before the 
Associate Commissioner for Examinations or a Federal court on November 
12, 1999, the petitioner should ask for a remand to the proper Service 
Center for consideration of this new evidence.
    (3) Petitions denied on or after November 12, 1999. The Service 
Center or the Associate Commissioner for Examinations shall reopen any 
petition affected by the provision of section 203(b)(2)(B)(ii) of the 
Act that the Service denied on or after November 12, 1999, but prior to 
the effective date of this rule.
    (4) Petitions filed prior to November 1, 1998. For petitions filed 
prior to November 1, 1998, and still pending as of November 12, 1999, 
the Service will approve a national interest waiver provided the 
beneficiary fulfills the evidence requirements of paragraph (c) of this 
section. Alien physicians that are beneficiaries of pre-November 1, 
1998, petitions are only required to work full-time as a physician 
practicing clinical medicine for an aggregate of 3 years, rather than 5 
years, not including time served in J-1 nonimmigrant status, prior to 
the physician either adjusting status under section 245 of the Act or 
receiving a visa issued under section 204(b) of the Act. The physician 
must complete the aggregate of 3 years of medical service within the 4-
year period beginning on the date of the approval of the petition, if 
the physician already has authorization to accept employment (other than 
as a J-1 exchange alien). If the physician does not already have 
authorization to accept employment, the physician must perform the 
service within the 4-year period beginning the date the Service issues 
the necessary employment authorization document.
    (5) Petitions filed and approved before November 12, 1999. An alien 
physician who obtained approval of a second preference employment-based 
visa petition and a national interest waiver before November 12, 1999, 
is not subject to the service requirements imposed in section 
203(b)(2)(B)(ii) of the Act. If the physician obtained under section 
214(1) of the Act a waiver of the foreign residence requirement imposed 
under section 212(e) of the Act, he or she must comply with the 
requirements of section 214(1) of the Act in order to continue to have 
the benefit of that waiver.
    (6) Petitions denied prior to November 12, 1999. If a prior Service 
decision denying a national interest waiver under section 203(b)(2)(B) 
of the Act became administratively final before November 12, 1999, an 
alien physician who believes that he or she is eligible for the waiver 
under the provisions of section 203(b)(2)(B)(ii) of the Act may file a 
new Form I-140 petition accompanied by the evidence required in 
paragraph (c) of this section. The Service must deny any motion to 
reopen or reconsider a decision denying an immigrant visa petition if 
the decision became final before November 12, 1999, without prejudice to 
the filing of a new visa petition with a national interest waiver 
request that comports with section 203(b)(2)(B)(ii) of the Act.
    (e) May physicians file adjustment of status applications? Upon 
approval of a second preference employment-based immigrant petition, 
Form I-140, and national interest waiver based on a full-time clinical 
practice in a shortage area or areas of the United States, an alien 
physician may submit Form I-485, Application to Register Permanent 
Residence or Adjust Status, to the appropriate Service Center. The 
Service will not approve the alien physician's application for 
adjustment of status

[[Page 173]]

until the alien physician submits evidence documenting that the alien 
physician has completed the period of required service. Specific 
instructions for alien physicians filing adjustment applications are 
found in Sec. 245.18 of this chapter.
    (f) May a physician practice clinical medicine in a different 
underserved area? Physicians in receipt of an approved Form I-140 with a 
national interest waiver based on full-time clinical practice in a 
designated shortage area and a pending adjustment of status application 
may apply to the Service if the physician is offered new employment to 
practice full-time in another underserved area of the United States.
    (1) If the physician beneficiary has found a new employer desiring 
to petition the Service on the physician's behalf, the new petitioner 
must submit a new Form I-140 (with fee) with all the evidence required 
in paragraph (c) of this section, including a copy of the approval 
notice from the initial Form I-140. If approved, the new petition will 
be matched with the pending adjustment of status application. The 
beneficiary will retain the priority date from the initial Form I-140. 
The Service will calculate the amount of time the physician was between 
employers so as to adjust the count of the aggregate time served in an 
underserved area. This calculation will be based on the evidence the 
physician submits pursuant to the requirements of Sec. 245.18(d) of this 
chapter. An approved change of practice to another underserved area does 
not constitute a new 6-year period in which the physician must complete 
the aggregate 5 years of service.
    (2) If the physician intends to establish his or her own practice, 
the physician must submit a new Form I-140 (with fee) will all the 
evidence required in paragraph (c) of this section, including the 
special requirement of paragraph (c)(1)(ii) of this section and a copy 
of the approval notice from the initial Form I-140. If approved, the new 
petition will be matched with the pending adjustment of status 
application. The beneficiary will retain the priority date from the 
initial Form I-140. The Service will calculate the amount of time the 
physician was between practices so as to adjust the count of the 
aggregate time served in an underserved area. This calculation will be 
based on the evidence the physician submits pursuant to the requirements 
of Sec. 245.18(d) of this chapter. An approved change of practice to 
another underserved area does not constitute a new 6-year period in 
which the physician must complete the aggregate 5 years of service.
    (g) Do these provisions have any effect on physicians with foreign 
residence requirements? Because the requirements of section 
203(b)(2)(B)(ii) of the Act are not exactly the same as the requirements 
of section 212(e) or 214(l) of the Act, approval of a national interest 
waiver under section 203(b)(2)(B)(ii) of the Act and this paragraph does 
not relieve the alien physician of any foreign residence requirement 
that the alien physician may have under section 212(e) of the Act.

[65 FR 53893, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000]



PART 205--REVOCATION OF APPROVAL OF PETITIONS--Table of Contents




Sec.
205.1  Automatic revocation.
205.2  Revocation on notice.

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, and 
1186a.



Sec. 205.1  Automatic revocation.

    (a) Reasons for automatic revocation. The approval of a petition or 
self-petition made under section 204 of the Act and in accordance with 
part 204 of this chapter is revoked as of the date of approval:
    (1) If the Secretary of State shall terminate the registration of 
the beneficiary pursuant to the provisions of section 203(e) of the Act 
before October 1, 1991, or section 203(g) of the Act on or after October 
1, 1994;
    (2) If the filing fee and associated service charge are not paid 
within 14 days of the notification to the remitter that his or her check 
or other financial instrument used to pay the filing fee has been 
returned as not payable; or
    (3) If any of the following circumstances occur before the 
beneficiary's or self-petitioner's journey to

[[Page 174]]

the United States commences or, if the beneficiary or self-petitioner is 
an applicant for adjustment of status to that of a permanent resident, 
before the decision on his or her adjustment application becomes final:
    (i) Immediate relative and family-sponsored petitions, other than 
Amerasian petitions. (A) Upon written notice of withdrawal filed by the 
petitioner or self-petitioner with any officer of the Service who is 
authorized to grant or deny petitions.
    (B) Upon the death of the beneficiary or the self-petitioner.
    (C) Upon the death of the petitioner, unless the Attorney General in 
his or her discretion determines that for humanitarian reasons 
revocation would be inappropriate.
    (D) Upon the legal termination of the marriage when a citizen or 
lawful permanent resident of the United States has petitioned to accord 
his or her spouse immediate relative or family-sponsored preference 
immigrant classification under section 201(b) or section 203(a)(2) of 
the Act. The approval of a spousal self-petition based on the 
relationship to an abusive citizen or lawful permanent resident of the 
United States filed under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) 
of the Act, however, will not be revoked solely because of the 
termination of the marriage to the abuser.
    (E) Upon the remarriage of the spouse of an abusive citizen or 
lawful permanent resident of the United States when the spouse has self-
petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the 
Act for immediate relative classification under section 201(b) of the 
Act or for preference classification under section 203(a)(2) of the Act.
    (F) Upon a child reaching the age of 21, when he or she has been 
accorded immediate relative status under section 201(b) of the Act. A 
petition filed on behalf of a child under section 204(a)(1)(A)(i) of the 
Act or a self-petition filed by a child of an abusive United States 
citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain 
valid for the duration of the relationship to accord preference status 
under section 203(a)(1) of the Act if the beneficiary remains unmarried, 
or to accord preference status under section 203(a)(3) of the Act if he 
or she marries.
    (G) Upon the marriage of a child, when he or she has been accorded 
immediate relative status under section 201(b) of the Act. A petition 
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act or 
a self-petition filed by a child of an abusive United States citizen 
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid 
for the duration of the relationship to accord preference status under 
section 203(a)(3) of the Act if he or she marries.
    (H) Upon the marriage of a person accorded preference status as a 
son or daughter of a United States citizen under section 203(a)(1) of 
the Act. A petition filed on behalf of the son or daughter, however, 
will remain valid for the duration of the relationship to accord 
preference status under section 203(a)(3) of the Act.
    (I) Upon the marriage of a person accorded status as a son or 
daughter of a lawful permanent resident alien under section 203(a)(2) of 
the Act.
    (J) Upon legal termination of the petitioner's status as an alien 
admitted for lawful permanent residence in the United States unless the 
petitioner became a United States citizen. The provisions of 8 CFR 
204.2(i)(3) shall apply if the petitioner became a United States 
citizen.
    (ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice 
of withdrawal filed by the petitioner with the officer who approved the 
petition.
    (B) Upon the death of the beneficiary.
    (C) Upon the death or bankruptcy of the sponsor who executed Form I-
361, Affidavit of Financial Support and Intent to Petition for Legal 
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may 
be filed in the beneficiary's behalf with the documentary evidence 
relating to sponsorship and, in the case of a beneficiary under 18 years 
of age, placement. If the new petition is approved, it will be given the 
priority date of the previously approved petition.
    (D) Upon the death or substitution of the petitioner if other than 
the beneficiary or sponsor. However, if the petitioner dies or no longer 
desires or is able to proceed with the petition, and

[[Page 175]]

another person 18 years of age or older, an emancipated minor, or a 
corporation incorporated in the United States desires to be substituted 
for the deceased or original petitioner, a written request may be 
submitted to the Service or American consular office where the petition 
is located to reinstate the petition and restore the original priority 
date.
    (E) Upon the beneficiary's reaching the age of 21 when the 
beneficiary has been accorded classification under section 201(b) of the 
Act. Provided that all requirements of section 204(f) of the Act 
continue to be met, however, the petition is to be considered valid for 
purposes of according the beneficiary preference classification under 
section 203(a)(1) of the Act if the beneficiary remains unmarried or 
under section 203(a)(3) if the beneficiary marries.
    (F) Upon the beneficiary's marriage when the beneficiary has been 
accorded classification under section 201(b) or section 203(a)(1) of the 
Act. Provided that all requirements of section 204(f) of the Act 
continue to be met, however, the petition is to be considered valid for 
purposes of according the beneficiary preference classification under 
section 203(a)(3) of the Act.
    (iii) Petitions under section 203(b), other than special immigrant 
juvenile petitions. (A) Upon invalidation pursuant to 20 CFR Part 656 of 
the labor certification in support of the petition.
    (B) Upon the death of the petitioner or beneficiary.
    (C) Upon written notice of withdrawal filed by the petitioner, in 
employment-based preference cases, with any officer of the Service who 
is authorized to grant or deny petitions.
    (D) Upon termination of the employer's business in an employment-
based preference case under section 203(b)(1)(B), 203(b)(1)(C), 
203(b)(2), or 203(b)(3) of the Act.
    (iv) Special immigrant juvenile petitions. Unless the beneficiary 
met all of the eligibility requirements as of November 29, 1990, and the 
petition requirements as of November 29, 1990, and the petition for 
classification as a special immigrant juvenile was filed before June 1, 
1994, or unless the change in circumstances resulted from the 
beneficiary's adoption or placement in a guardianship situation:
    (A) Upon the beneficiary reaching the age of 21;
    (B) Upon the marriage of the beneficiary;
    (C) Upon the termination of the beneficiary's dependency upon the 
juvenile court;
    (D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
    (E) Upon the determination in administrative or judicial proceedings 
that it is in the beneficiary's best interest to be returned to the 
country of nationality or last habitual residence of the beneficiary or 
of his or her parent or parents.
    (b) Notice. When it shall appear to the director that the approval 
of a petition has been automatically revoked, he or she shall cause a 
notice of such revocation to be sent promptly to the consular office 
having jurisdiction over the visa application and a copy of such notice 
to be mailed to the petitioner's last known address.

[61 FR 13077, Mar. 26, 1996]



Sec. 205.2  Revocation on notice.

    (a) General. Any Service officer authorized to approve a petition 
under section 204 of the Act may revoke the approval of that petition 
upon notice to the petitioner on any ground other than those specified 
in Sec. 205.1 when the necessity for the revocation comes to the 
attention of this Service.
    (b) Notice of intent. Revocation of the approval of a petition of 
self-petition under paragraph (a) of this section will be made only on 
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support of 
the petition or self-petition and in opposition to the grounds alleged 
for revocation of the approval.
    (c) Notification of revocation. If, upon reconsideration, the 
approval previously granted is revoked, the director shall provide the 
petitioner or the self-petitioner with a written notification of the 
decision that explains the specific reasons for the revocation. The 
director shall notify the consular officer

[[Page 176]]

having jurisdiction over the visa application, if applicable, of the 
revocation of an approval.
    (d) Appeals. The petitioner or self-petitioner may appeal the 
decision to revoke the approval within 15 days after the service of 
notice of the revocation. The appeal must be filed as provided in part 3 
of this chapter, unless the Associate Commissioner for Examinations 
exercises appellate jurisdiction over the revocation under part 103 of 
this chapter. Appeals filed with the Associate Commissioner for 
Examinations must meet the requirements of part 103 of this chapter.

[48 FR 19156, Apr. 28, 1983, as amended at 58 FR 42851, Aug. 12, 1993; 
61 FR 13078, Mar. 26, 1996]



PART 207--ADMISSION OF REFUGEES--Table of Contents




Sec.
207.1  Eligibility.
207.2  Applicant processsing.
207.3  Waivers of inadmissibility.
207.4  Approved application.
207.5  Waiting lists and priority handling.
207.6  Control over approved refugee numbers.
207.7  Derivatives of refugees.
207.8  Physical presence in the United States.
207.9  Termination of refugee status.

    Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR part 
2.

    Source: 46 FR 45118, Sept. 10, 1981, unless otherwise noted.



Sec. 207.1  Eligibility.

    (a) Filing jurisdiction. Any alien who believes he or she is a 
refugee as defined in section 101(a)(42) of the Act, and is included in 
a refugee group identified in section 207(a) of the Act, may apply for 
admission to the United States by filing an application in accordance 
with Sec. 207.2 with the Service office having jurisdiction over the 
area where the applicant is located. In those areas too distant from a 
Service office, the application may be filed at a designated United 
States consular office.
    (b) Firmly resettled. A refugee is considered to be ``firmly 
resettled'' if he/she has been offered resident status, citizenship, or 
some other type of permanent resettlement by a country other than the 
United States and has travelled to and entered that country as a 
consequence of his/her flight from persecution. Any applicant who has 
become firmly resettled in a foreign country is not eligible for refugee 
status under this chapter.
    (c) Not firmly resettled. Any applicant who claims not to be firmly 
resettled in a foreign country must establish that the conditions of 
his/her residence in that country are so restrictive as to deny 
resettlement. In determining whether or not an applicant is firmly 
resettled in a foreign country, the officer reviewing the matter shall 
consider the conditions under which other residents of the country live: 
(1) Whether permanent or temporary housing is available to the refugee 
in the foreign country; (2) nature of employment available to the 
refugee in the foreign country; and (3) other benefits offered or denied 
to the refugee by the foreign country which are available to other 
residents, such as (i) right to property ownership, (ii) travel 
documentation, (iii) education, (iv) public welfare, and (v) 
citizenship.
    (d) Immediate relatives and special immigrants. Any applicant for 
refugee status who qualifies as an immediate relative or as a special 
immigrant shall not be processed as a refugee unless it is in the public 
interest. The alien shall be advised to obtain an immediate relative or 
special immigrant visa and shall be provided with the proper petition 
forms to send to any prospective petitioners. An applicant who may be 
eligible for classification under sections 203(a)(1), (2), (3), (4), 
(5), (6), or (7) of the Act, and for whom a visa number is now 
available, shall be advised of such eligibility but is not required to 
apply.

[46 FR 45118, Sept. 10, 1981, as amended at 62 FR 10336, Mar. 6, 1997]



Sec. 207.2  Applicant processing.

    (a) Forms. Each applicant who seeks admission as a refugee shall 
submit an individual Form I-590 (Registration for Classification as 
Refugee). Additionally, each applicant 14 years old or older must submit 
completed forms G-325C (Biographical Information) and FD-258 (Applicant 
Card).

[[Page 177]]

    (b) Hearing. Each applicant 14 years old or older shall appear in 
person before an immigration officer for inquiry under oath to determine 
his/her eligibility for admission as a refugee.
    (c) Medical examination. Each applicant shall submit to a medical 
examination as required by sections 221(d) and 234 of the Act.
    (d) Sponsorship. Each applicant must be sponsored by a responsible 
person or organization. Transportation for the applicant from his/her 
present abode to the place of resettlement in the United States must be 
guaranteed by the sponsor.

[46 FR 45118, Sept. 10, 1981, as amended at 64 FR 27661, May 21, 1999]



Sec. 207.3  Waivers of inadmissibility.

    (a) Authority. Section 207(c)(3) of the Act sets forth grounds of 
inadmissibility under section 212(a) of the Act which are not applicable 
and those which may be waived in the case of an otherwise qualified 
refugee and the conditions under which such waivers may be approved. 
Officers in charge of overseas offices are delegated authority to 
initiate the necessary investigations to establish the facts in each 
waiver application pending before them and to approve or deny such 
waivers.
    (b) Filing requirements. The applicant for a waiver must submit Form 
I-602, Application by Refugee for Waiver of Grounds of Inadmissibility, 
with the Service office processing his or her case. The burden is on the 
applicant to show that the waiver should be granted based upon 
humanitarian grounds, family unity, or the public interest. The 
applicant shall be notified in writing of the decision, including the 
reasons for denial, if the application is denied. There is no appeal 
from such decision.

[62 FR 10336, Mar. 6, 1997]



Sec. 207.4  Approved application.

    Approval of Form I-590 by an officer in charge outside the United 
States authorizes the district director of the port of entry in the 
United States to admit the applicant conditionally as a refugee upon 
arrival at the port within four months of the date the Form I-590 was 
approved. There is no appeal from a denial of refugee status under this 
chapter.



Sec. 207.5  Waiting lists and priority handling.

    Waiting lists are maintained for each designated refugee group of 
special humanitarian concern. Each applicant whose application is 
accepted for filing by the Immigration and Naturalization Service shall 
be registered as of the date of filing. The date of filing is the 
priority date for purposes of case control. Refugees or groups of 
refugees may be selected from these lists in a manner that will best 
support the policies and interests of the United States. The Attorney 
General may adopt appropriate criteria for selecting the refugees and 
assignment of processing priorities for each designated group based upon 
such considerations as: Reuniting families, close association with the 
United States, compelling humanitarian concerns, and public interest 
factors.



Sec. 207.6  Control over approved refugee numbers.

    Current numerical accounting of approved refugees is maintained for 
each special group designated by the President. As refugee status is 
authorized for each applicant, the total count is reduced 
correspondingly from the appropriate group so that information is 
readily available to indicate how many refugee numbers remain available 
for issuance.



Sec. 207.7  Derivatives of refugees.

    (a) Eligibility. A spouse, as defined in section 101(a)(35) of the 
Act, and/or child(ren), as defined in section 101(b)(1)(A), (B), (C), 
(D), or (E) of the Act, shall be granted refugee status if accompanying 
or following-to-join the principal alien. An accompanying derivative is 
a spouse or child of a refugee who is in the physical company of the 
principal refugee when he or she is admitted to the United States, or a 
spouse or child of a refugee who is admitted within 4 months following 
the principal refugee's admission. A following-to-join derivative, on 
the other hand, is a spouse or child of a refugee who seeks admission 
more than 4

[[Page 178]]

months after the principal refugee's admission to the United States.
    (b) Ineligibility. The following relatives of refugees are 
ineligible for accompanying or following-to-join benefits:
    (1) A spouse or child who has previously been granted asylee or 
refugee status;
    (2) An adopted child, if the adoption took place after the child 
became 16 years old, or if the child has not been in the legal custody 
and living with the parent(s) for at least 2 years;
    (3) A stepchild, if the marriage that created this relationship took 
place after the child became 18 years old;
    (4) A husband or wife if each/both were not physically present at 
the marriage ceremony, and the marriage was not consummated (section 
101(a)(35) of the Act);
    (5) A husband or wife if the U.S. Attorney General has determined 
that such alien has attempted or conspired to enter into a marriage for 
the purpose of evading immigration laws; and
    (6) A parent, sister, brother, grandparent, grandchild, nephew, 
niece, uncle, aunt, cousin or in-law.
    (c) Relationship. The relationship of a spouse and child as defined 
in sections 101(a)(35) and 101(b) (1)(A), (B), (C), (D), or (E), 
respectively, of the Act, must have existed prior to the refugee's 
admission to the United States and must continue to exist at the time of 
filing for accompanying or following-to-join benefits and at the time of 
the spouse or child's subsequent admission to the United States. If the 
refugee proves that the refugee is the parent of a child who was born 
after the refugee's admission as a refugee, but who was in utero on the 
date of the refugee's admission as a refugee, the child shall be 
eligible to accompany or follow-to-join the refugee. The child's mother, 
if not the principal refugee, shall not be eligible to accompany or 
follow-to-join the principal refugee unless the child's mother was the 
principal refugee's spouse on the date of the principal refugee's 
admission as a refugee.
    (d) Filing. A refugee may request accompanying or following-to-join 
benefits for his/her spouse and unmarried, minor child(ren) (whether the 
spouse and children are in or outside the United States) by filing a 
separate Form I-730 Refugee/Asylee Relative Petition, for each 
qualifying family member with the designated Service office. The Form I-
730 may only be filed by the principal refugee. Family members who 
derived their refugee status are not eligible to file the Form I-730 on 
behalf of their spouse and child(ren). A separate Form I-730 must be 
filed for each qualifying family member before February 28, 2000 or 
within 2 years of the refugee's admission to the United States, 
whichever is later, unless the Service determines that the filing period 
should be extended for humanitarian reasons. There is no time limit 
imposed on a family member's travel to the United States once the Form 
I-730 has been approved, provided that the relationship of spouse or 
child continues to exist and approval of the Form I-730 petition has not 
been subsequently revoked. There is no fee for filing this petition.
    (e) Evidence. Documentary evidence consists of those documents which 
establish that the petitioner is a refugee, and evidence of the claimed 
relationship of the petitioner to the beneficiary. The burden of proof 
is on the petitioner to establish by a preponderance of the evidence 
that any person on whose behalf he/she is making a request under this 
section is an eligible spouse or unmarried, minor child. Evidence to 
establish the claimed relationship for a spouse or unmarried, minor 
child as set forth in 8 CFR part 204 must be submitted with the request 
for accompanying or following-to-join benefits. Where possible this will 
consist of the documents specified in Sec. 204.2(a (1)(i)(B), 
(a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter. In addition, 
a recent photograph of each derivative must accompany the Form I-730. 
The photograph must clearly identify the derivative, and will be made 
part of the derivative's immigration record for identification purposes.
    (f) Approvals--(1) Spouse or child in the United States. When a 
spouse or child of a refugee is in the United States and the Form I-730 
is approved, the Service will notify the refugee of such approval on 
Form I-797, Notice of Action. Employment will be authorized incident to 
status.

[[Page 179]]

    (2) Spouse or child outside the United States. When a spouse or 
child of a refugee is outside the United States and the Form I-730 is 
approved, the Service will notify the refugee of such approval on Form 
I-797. The approved Form I-730 will be sent by the Service to the 
Department of State for forwarding to the American Embassy or Consulate 
having jurisdiction over the area in which the refugee's spouse or child 
is located.
    (3) Benefits. The approval of the Form I-730 shall remain valid for 
the duration of the relationship to the refugee and, in the case of a 
child, while the child is under 21 years of age and unmarried, provided 
also that the principal's status has not been revoked. However, the 
approved Form I-730 will cease to confer immigration benefits after it 
has been used by the beneficiary for admission to the United States as a 
derivative of a refugee. To demonstrate employment authorization, the 
Service will issue a Form I-94, Arrival-Departure Record, which also 
reflects the derivative's current status as a refugee, or the derivative 
may apply under Sec. 274a.12(a) of this chapter, using Form I-765, 
Application for Employment Authorization, and a copy of the Form I-797.
    (g) Denials. If the spouse or child of a refugee is found to be 
ineligible for derivative status, a written notice explaining the basis 
for denial shall be forwarded to the principal refugee. There shall be 
no appeal from this decision. However, the denial shall be without 
prejudice to the consideration of a new petition or motion to reopen the 
refugee or asylee relative petition proceeding, if the refugee 
establishes eligibility for the accompanying or following-to-join 
benefits contained in this part.

[63 FR 3795, Jan. 27, 1998]



Sec. 207.8  Physical presence in the United States.

    For the purpose of adjustment of status under section 209(a)(1) of 
the Act, the required one year physical presence of the applicant in the 
United States is computed from the date the applicant entered the United 
States as a refugee.

[46 FR 45118, Sept. 10, 1981. Redesignated at 63 FR 3795, Jan. 27, 1998]



Sec. 207.9  Termination of refugee status.

    The refugee status of any alien (and of the spouse or child of the 
alien) admitted to the United States under section 207 of the Act shall 
be terminated by any district director in whose district the alien is 
found if the alien was not a refugee within the meaning of section 
101(a)(42) of the Act at the time of admission. The district director 
shall notify the alien in writing of the Service's intent to terminate 
the alien's refugee status. The alien shall have 30 days from the date 
notice is served upon him/her or, delivered to his/her last known 
address, to present written or oral evidence to show why the alien's 
refugee status should not be terminated. There is no appeal under this 
chapter from the termination of refugee status by the district director. 
Upon termination of refugee status, the district director shall process 
the alien under sections 235, 240, and 241 of the Act.

[46 FR 45118, Sept. 10, 1981, as amended at 62 FR 10337, Mar. 6, 1997. 
Redesignated at 63 FR 3795, Jan. 27, 1998]



PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of Contents




              Subpart A--Asylum and Withholding of Removal

Sec.
208.1  General.
208.2  Jurisdiction.
208.3  Form of application.
208.4  Filing the application.
208.5  Special duties toward aliens in custody of the Service.
208.6  Disclosure to third parties.
208.7  Employment authorization.
208.8  Limitations on travel outside the United States.
208.9  Procedure for interview before an asylum officer.
208.10  Failure to appear at an interview before an asylum officer or 
          failure to follow requirements for fingerprint processing.
208.11  Comments from the Department of State.
208.12  Reliance on information compiled by other sources.

[[Page 180]]

208.13  Establishing asylum eligibility.
208.14  Approval, denial, referral, or dismissal of application.
208.15  Definition of ``firm resettlement.''
208.16  Withholding of removal under section 241(b)(3)(B) of the Act and 
          withholding of removal under the Convention Against Torture.
208.17  Deferral of removal under the Convention Against Torture.
208.18  Implementation of the Convention Against Torture.
208.19  Determining if an asylum application is frivolous.
208.20  Admission of the asylee's spouse and children.
208.21  Effect on exclusion, deportation, and removal proceedings.
208.22  Restoration of status.
208.23  Termination of asylum or withholding of removal or deportation.
208.24--29  [Reserved]

                 Subpart B--Credible Fear of Persecution

208.30  Credible fear determinations involving stowaways and applicants 
          for admission found inadmissible pursuant to section 
          212(a)(6)(C) or 212(a)(7) of the Act.
208.31  Reasonable fear of persecution or torture determinations 
          involving aliens ordered removed under section 238(b) of the 
          Act and aliens whose removal is reinstated under section 
          241(a)(5) of the Act.

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.

    Source: 62 FR 10337, Mar. 6, 1997, unless otherwise noted.



              Subpart A--Asylum and Withholding of Removal



Sec. 208.1  General.

    (a) Applicability. Unless otherwise provided in this chapter, this 
subpart shall apply to all applications for asylum under section 208 of 
the Act or for withholding of deportation or withholding of removal 
under section 241(b)(3) of the Act, or under the Convention Against 
Torture, whether before an asylum officer or an immigration judge, 
regardless of the date of filing. For purposes of this chapter, 
withholding of removal shall also mean withholding of deportation under 
section 243(h) of the Act, as it appeared prior to April 1, 1997, except 
as provided in Sec. 208.16(d). Such applications are hereinafter 
referred to as ``asylum applications.'' The provisions of this part 
shall not affect the finality or validity of any decision made by a 
district director, an immigration judge, or the Board of Immigration 
Appeals in any such case prior to April 1, 1997. No asylum application 
that was filed with a district director, asylum officer, or immigration 
judge prior to April 1, 1997, may be reopened or otherwise reconsidered 
under the provisions of this part except by motion granted in the 
exercise of discretion by the Board of Immigration Appeals, an 
immigration judge, or an asylum officer for proper cause shown. Motions 
to reopen or reconsider must meet the requirements of sections 240(c)(5) 
and (c)(6) of the Act, and 8 CFR parts 3 and 103, where applicable.
    (b) Training of asylum officers. The Director of International 
Affairs shall ensure that asylum officers receive special training in 
international human rights law, nonadversarial interview techniques, and 
other relevant national and international refugee laws and principles. 
The Director of International Affairs shall also, in cooperation with 
the Department of State and other appropriate sources, compile and 
disseminate to asylum officers information concerning the persecution of 
persons in other countries on account of race, religion, nationality, 
membership in a particular social group, or political opinion, torture 
of persons in other countries, and other information relevant to asylum 
determinations, and shall maintain a documentation center with 
information on human rights conditions.

[64 FR 8487, Feb. 19, 1999]



Sec. 208.2  Jurisdiction.

    (a) Office of International Affairs. Except as provided in paragraph 
(b) of this section, the Office of International Affairs shall have 
initial jurisdiction over an asylum application filed by, or a credible 
fear determination pertaining to, an alien physically present in the 
United States or seeking admission at a port-of-entry. The Office of 
International Affairs shall also have initial jurisdiction to consider 
applications for withholding of removal under Sec. 208.31. An 
application that is complete within the meaning of Sec. 208.3(c)(3) 
shall either be adjudicated or referred by

[[Page 181]]

asylum officers under this part in accordance with Sec. 208.14. An 
application that is incomplete within the meaning of Sec. 208.3(c)(3) 
shall be returned to the applicant.
    (b) Immigration Court--(1) Certain aliens not entitled to 
proceedings under section 240 of the Act. After Form I-863, Notice of 
Referral to Immigration Judge, has been filed with the Immigration 
Court, an immigration judge shall have exclusive jurisdiction over any 
asylum application filed on or after April 1, 1997, by:
    (i) An alien crewmember who:
    (A) Is an applicant for a landing permit;
    (B) Has been refused permission to land under section 252 of the 
Act; or
    (C) On or after April 1, 1997, was granted permission to land under 
section 252 of the Act, regardless of whether the alien has remained in 
the United States longer than authorized;
    (ii) An alien stowaway who has been found to have a credible fear of 
persecution or torture pursuant to the procedures set forth in subpart B 
of this part;
    (iii) An alien who is an applicant for admission pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act;
    (iv) An alien who was admitted to the United States pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act and has remained 
longer than authorized or has otherwise violated his or her immigration 
status;
    (v) An alien who has been ordered removed under section 235(c) of 
the Act; or
    (vi) An alien who is an applicant for admission, or has been 
admitted, as an alien classified under section 101(a)(15)(S) of the Act.
    (2) Rules of procedure--(i) General. Except as provided in this 
section, proceedings falling under the jurisdiction of the immigration 
judge pursuant to paragraph (b)(1) of this section shall be conducted in 
accordance with the same rules of procedure as proceedings conducted 
under 8 CFR part 240, except the scope of review shall be limited to a 
determination of whether the alien is eligible for asylum or withholding 
of removal and whether asylum shall be granted in the exercise of 
discretion. During such proceedings all parties are prohibited from 
raising or considering any other issues, including but not limited to 
issues of admissibility, removability, eligibility for waivers, and 
eligibility for any form of relief other than asylum or withholding of 
removal.
    (ii) Notice of hearing procedures and in-absentia decisions. The 
alien will be provided with notice of the time and place of the 
proceeding. The request for asylum and withholding of removal submitted 
by an alien who fails to appear for the hearing shall be denied. The 
denial of asylum and withholding of removal for failure to appear may be 
reopened only upon a motion filed with the immigration judge with 
jurisdiction over the case. Only one motion to reopen may be filed, and 
it must be filed within 90 days, unless the alien establishes that he or 
she did not receive notice of the hearing date or was in Federal or 
State custody on the date directed to appear. The motion must include 
documentary evidence which demonstrates that:
    (A) The alien did not receive the notice;
    (B) The alien was in Federal or State custody and the failure to 
appear was through no fault of the alien; or
    (C) ``Exceptional circumstances,'' as defined in section 240(e)(1) 
of the Act, caused the failure to appear.
    (iii) Relief. The filing of a motion to reopen shall not stay 
removal of the alien unless the immigration judge grants a written 
request for a stay pending disposition of the motion. An alien who fails 
to appear for a proceeding under this section shall not be eligible for 
relief under section 208, 212(h), 212(i), 240A, 240B, 245, 248, or 249 
for a period of 10 years after the date of the denial.
    (3) Other aliens. Immigration judges shall have exclusive 
jurisdiction over asylum applications filed by an alien who has been 
served Form I-221, Order to Show Cause; Form I-122, Notice to Applicant 
for Admission Detained for a Hearing before an Immigration Judge; or 
Form I-862, Notice to Appear, after a copy of the charging document has 
been filed with the Immigration Court.

[[Page 182]]

Immigration judges shall also have jurisdiction over any asylum 
applications filed prior to April 1, 1997, by alien crewmembers who have 
remained in the United States longer than authorized, by applicants for 
admission under the Visa Waiver Pilot Program, and by aliens who have 
been admitted to the United States under the Visa Waiver Pilot Program. 
Immigration judges shall also have the authority to review reasonable 
fear determinations referred to the Executive Office for Immigration 
Review under Sec. 208.31.

[62 FR 10337, Mar. 6, 1997; 62 FR 15362, Apr. 1, 1997, as amended at 64 
FR 8487, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76130, Dec. 6, 2000, Sec. 208.2 was 
revised, effective Jan. 5, 2001. For the convenience of the user, the 
revised text is set forth as follows:

Sec. 208.2  Jurisdiction

    (a) Office of International Affairs. Except as provided in paragraph 
(b) or (c) of this section, the Office of International Affairs shall 
have initial jurisdiction over an asylum application filed by an alien 
physically present in the United States or seeking admission at a port-
of-entry. The Office of International Affairs shall also have initial 
jurisdiction over credible fear determinations under Sec. 208.30 and 
reasonable fear determinations under Sec. 208.31.
    (b) Jurisdiction of Immigration Court in general. Immigration judges 
shall have exclusive jurisdiction over asylum applications filed by an 
alien who has been served a Form I-221, Order to Show Cause; Form I-122, 
Notice to Applicant for Admission Detained for a Hearing before an 
Immigration Judge; or Form I-862, Notice to Appear, after the charging 
document has been filed with the Immigration Court. Immigration judges 
shall also have jurisdiction over any asylum applications filed prior to 
April 1, 1997, by alien crewmembers who have remained in the United 
States longer than authorized, by applicants for admission under the 
Visa Waiver Pilot Program, and by aliens who have been admitted to the 
United States under the Visa Waiver Pilot Program. Immigration judges 
shall also have the authority to review reasonable fear determinations 
referred to the Immigration Court under Sec. 208.31, and credible fear 
determinations referred to the Immigration Court under Sec. 208.30.
    (c) Certain aliens not entitled to proceedings under section 240 of 
the Act.
    (1) Asylum applications and withholding of removal applications 
only. After Form I-863, Notice of Referral to Immigration Judge, has 
been filed with the Immigration Court, an immigration judge shall have 
exclusive jurisdiction over any asylum application filed on or after 
April 1, 1997, by:
    (i) An alien crewmember who:
    (A) Is an applicant for a landing permit;
    (B) Has been refused permission to land under section 252 of the 
Act; or
    (C) On or after April 1, 1997, was granted permission to land under 
section 252 of the Act, regardless of whether the alien has remained in 
the United States longer than authorized;
    (ii) An alien stowaway who has been found to have a credible fear of 
persecution or torture pursuant to the procedures set forth in subpart B 
of this part;
    (iii) An alien who is an applicant for admission pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act;
    (iv) An alien who was admitted to the United States pursuant to the 
Visa Waiver Pilot Program under section 217 of the Act and has remained 
longer than authorized or has otherwise violated his or her immigration 
status;
    (v) An alien who has been ordered removed under Sec. 235(c) of the 
Act, as described in Sec. 235.8(a) of this chapter (applicable only in 
the event that the alien is referred for proceedings under this 
paragraph by the Regional Director pursuant to section 235.8(b)(2)(ii) 
of this chapter); or
    (vi) An alien who is an applicant for admission, or has been 
admitted, as an alien classified under section 101(a)(15)(S) of the Act 
(applicable only in the event that the alien is referred for proceedings 
under this paragraph by the district director).
    (2) Withholding of removal applications only. After Form I-863, 
Notice of Referral to Immigration Judge, has been filed with the 
Immigration Court, an immigration judge shall have exclusive 
jurisdiction over any application for withholding of removal filed by:
    (i) An alien who is the subject of a reinstated removal order 
pursuant to section 241(a)(5) of the Act; or
    (ii) An alien who has been issued an administrative removal order 
pursuant to section 238 of the Act as an alien convicted of committing 
an aggravated felony.
    (3) Rules of procedure.
    (i) General. Except as provided in this section, proceedings falling 
under the jurisdiction of the immigration judge pursuant to paragraph 
(c)(1) or (c)(2) of this section shall be conducted in accordance with 
the same rules of procedure as proceedings conducted under 8 CFR part 
240, subpart A. The scope of review in proceedings conducted pursuant to 
paragraph (c)(1) of this section shall be limited to a determination of 
whether the alien is eligible for asylum or withholding or deferral of 
removal, and whether asylum shall be granted in the exercise of 
discretion. The scope of review in proceedings conducted pursuant to 
paragraph (c)(2) of this section

[[Page 183]]

shall be limited to a determination of whether the alien is eligible for 
withholding or deferral of removal. During such proceedings, all parties 
are prohibited from raising or considering any other issues, including 
but not limited to issues of admissibility, deportability, eligibility 
for waivers, and eligibility for any other form of relief.
    (ii) Notice of hearing procedures and in-absentia decisions. The 
alien will be provided with notice of the time and place of the 
proceeding. The request for asylum and withholding of removal submitted 
by an alien who fails to appear for the hearing shall be denied. The 
denial of asylum and withholding of removal for failure to appear may be 
reopened only upon a motion filed with the immigration judge with 
jurisdiction over the case. Only one motion to reopen may be filed, and 
it must be filed within 90 days, unless the alien establishes that he or 
she did not receive notice of the hearing date or was in Federal or 
State custody on the date directed to appear. The motion must include 
documentary evidence, which demonstrates that:
    (A) The alien did not receive the notice;
    (B) The alien was in Federal or State custody and the failure to 
appear was through no fault of the alien; or
    (C) ``Exceptional circumstances,'' as defined in section 240(e)(1) 
of the Act, caused the failure to appear.
    (iii) Relief. The filing of a motion to reopen shall not stay 
removal of the alien unless the immigration judge issues an order 
granting a stay pending disposition of the motion. An alien who fails to 
appear for a proceeding under this section shall not be eligible for 
relief under section 240A, 240B, 245, 248, or 249 of the Act for a 
period of 10 years after the date of the denial, unless the applicant 
can show exceptional circumstances resulted in his or her failure to 
appear.



Sec. 208.3  Form of application.

    (a) An asylum applicant must file Form I-589, Application for Asylum 
or Withholding of Removal, together with any additional supporting 
evidence in accordance with the instructions on the form. The 
applicant's spouse and children shall be listed on the application and 
may be included in the request for asylum if they are in the United 
States. One additional copy of the principal applicant's Form I-589 must 
be submitted for each dependent included in the principal's application.
    (b) An asylum application shall be deemed to constitute at the same 
time an application for withholding of removal, unless adjudicated in 
deportation or exclusion proceedings commenced prior to April 1, 1997. 
In such instances, the asylum application shall be deemed to constitute 
an application for withholding of deportation under section 243(h) of 
the Act, as that section existed prior to April 1, 1997. Where a 
determination is made that an applicant is ineligible to apply for 
asylum under section 208(a)(2) of the Act, an asylum application shall 
be construed as an application for withholding of removal.
    (c) Form I-589 shall be filed under the following conditions and 
shall have the following consequences:
    (1) If the application was filed on or after January 4, 1995, 
information provided in the application may be used as a basis for the 
initiation of removal proceedings, or to satisfy any burden of proof in 
exclusion, deportation, or removal proceedings;
    (2) The applicant and anyone other than a spouse, parent, son, or 
daughter of the applicant who assists the applicant in preparing the 
application must sign the application under penalty of perjury. The 
applicant's signature establishes a presumption that the applicant is 
aware of the contents of the application. A person other than a relative 
specified in this paragraph who assists the applicant in preparing the 
application also must provide his or her full mailing address;
    (3) An asylum application that does not include a response to each 
of the questions contained in the Form I-589, is unsigned, or is 
unaccompanied by the required materials specified in paragraph (a) of 
this section is incomplete. The filing of an incomplete application 
shall not commence the 150-day period after which the applicant may file 
an application for employment authorization in accordance with 
Sec. 208.7. An application that is incomplete shall be returned by mail 
to the applicant within 30 days of the receipt of the application by the 
Service. If the Service has not mailed the incomplete application back 
to the applicant within 30 days, it shall be deemed complete. An 
application returned to the applicant as incomplete shall be resubmitted 
by the applicant with the additional information if he or she wishes to 
have the application considered;

[[Page 184]]

    (4) Knowing placement of false information on the application may 
subject the person placing that information on the application to 
criminal penalties under title 18 of the United States Code and to civil 
penalties under section 274C of the Act; and
    (5) Knowingly filing a frivolous application on or after April 1, 
1997, so long as the applicant has received the notice required by 
section 208(d)(4) of the Act, shall render the applicant permanently 
ineligible for any benefits under the Act pursuant to Sec. 208.18.

    Effective Date Note: At 65 FR 76131, Dec. 6, 2000, Sec. 208.3 was 
amended by revising paragraphs, (a), (c)(4) and (c)(5), effective Jan. 
5, 2001. For the convenience of the user, the revised text is set forth 
as follows:

Sec. 208.3  Form of application.

    (a) An asylum applicant must file Form I-589, Application for Asylum 
and for Withholding of Removal, together with any additional supporting 
evidence in accordance with the instructions on the form. The 
applicant's spouse and children shall be listed on the application and 
may be included in the request for asylum if they are in the United 
States. One additional copy of the principal applicant's Form I-589 must 
be submitted for each dependent included in the principal's application.

                                * * * * *

    (c) * * *
    (4) Knowing placement of false information on the application may 
subject the person placing that information on the application to 
criminal penalties under title 18 of the United States Code and to civil 
or criminal penalties under section 274C of the Act; and
    (5) Knowingly filing a frivolous application on or after April 1, 
1997, so long as the applicant has received the notice required by 
section 208(d)(4) of the Act, shall render the applicant permanently 
ineligible for any benefits under the Act pursuant to Sec. 208.20.



Sec. 208.4  Filing the application.

    Except as prohibited in paragraph (a) of this section, asylum 
applications shall be filed in accordance with paragraph (b) of this 
section.
    (a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits 
certain aliens from filing for asylum on or after April 1, 1997, unless 
the alien can demonstrate to the satisfaction of the Attorney General 
that one of the exceptions in section 208(a)(2)(D) of the Act applies. 
Such prohibition applies only to asylum applications under section 208 
of the Act and not to applications for withholding of removal under 
Sec. 208.16 of this part. If an applicant submits an asylum application 
and it appears that one or more of the prohibitions contained in section 
208(a)(2) of the Act apply, an asylum officer or an immigration judge 
shall review the application to determine if the application should be 
rejected or denied. For the purpose of making determinations under 
section 208(a)(2) of the Act, the following rules shall apply:
    (1) Authority. Only an asylum officer, an immigration judge, or the 
Board of Immigration Appeals is authorized to make determinations 
regarding the prohibitions contained in section 208(a)(2)(B) or (C) of 
the Act;
    (2) One-year filing deadline. (i) For purposes of section 
208(a)(2)(B) of the Act, an applicant has the burden of proving
    (A) By clear and convincing evidence that he or she applied within 
one year of the alien's arrival in the United States or
    (B) To the satisfaction of the asylum officer, immigration judge, or 
Board of Immigration Appeals that he or she qualifies for an exception 
to the one-year deadline.
    (ii) The one-year period shall be calculated from the date of the 
alien's last arrival in the United States or April 1, 1997, whichever is 
later. In the case of an application that appears to have been filed 
more than a year after the applicant arrived in the United States, an 
asylum officer or immigration judge will determine whether the applicant 
qualifies under one of the exceptions to the deadline;
    (3) Prior denial of application. For purposes of section 
208(a)(2)(C) of the Act, an asylum application has not been denied 
unless denied by an immigration judge or the Board of Immigration 
Appeals;
    (4) Changed circumstances. (i) The term ``changed circumstances'' in 
section 208(a)(2)(D) of the Act shall refer to circumstances materially 
affecting the applicant's eligibility for asylum. They may include:
    (A) Changes in conditions in the applicant's country of nationality 
or, if

[[Page 185]]

the person is stateless, country of last habitual residence or
    (B) Changes in objective circumstances relating to the applicant in 
the United States, including changes in applicable U.S. law, that create 
a reasonable possibility that applicant may qualify for asylum.
    (ii) The applicant shall apply for asylum within a reasonable period 
given those ``changed circumstances.''
    (5) The term extraordinary circumstances in section 208(a)(2)(D) of 
the Act shall refer to events or factors beyond the alien's control that 
caused the failure to meet the 1-year deadline. Such circumstances shall 
excuse the failure to file within the 1-year period so long as the alien 
filed the application within a reasonable period given those 
circumstances. The burden of proof is on the applicant to establish to 
the satisfaction of the asylum officer or immigration judge that the 
circumstances were both beyond his or her control and that, but for 
those circumstances, he or she would have filed within the 1-year 
period. These circumstances may include:
    (i) Serious illness or mental or physical disability of significant 
duration, including any effects of persecution or violent harm suffered 
in the past, during the 1-year period after arrival;
    (ii) Legal disability (e.g., the applicant was an unaccompanied 
minor or suffered from a mental impairment) during the first year after 
arrival;
    (iii) Ineffective assistance of counsel, provided that:
    (A) The alien files an affidavit setting forth in detail the 
agreement that was entered into with counsel with respect to the actions 
to be taken and what representations counsel did or did not make to the 
respondent in this regard;
    (B) The counsel whose integrity or competence is being impugned has 
been informed of the allegations leveled against him or her and given an 
opportunity to respond; and
    (C) The alien indicates whether a complaint has been filed with 
appropriate disciplinary authorities with respect to any violation of 
counsel's ethical or legal responsibilities, and if not, why not;
    (iv) The applicant maintained Temporary Protected Status until a 
reasonable period before the filing of the asylum application; and
    (v) The applicant submitted an asylum application prior to the 
expiration of the 1-year deadline, but that application was rejected by 
the Service as not properly filed, was returned to the applicant for 
corrections, and was refiled within a reasonable period thereafter.
    (b) Filing location--(1) With the service center by mail. Except as 
provided in paragraphs (b)(2), (b)(3), (b)(4) and (b)(5) of this 
section, asylum applications shall be filed directly by mail with the 
service center servicing the asylum office with jurisdiction over the 
place of the applicant's residence or, in the case of an alien without a 
United States residence, the applicant's current lodging or the land 
border port-of-entry through which the alien seeks admission to the 
United States.
    (2) With the asylum office. Asylum applications shall be filed 
directly with the asylum office having jurisdiction over the matter in 
the case of an alien who has received the express consent of the 
Director of Asylum to do so.
    (3) With the immigration judge. Asylum applications shall be filed 
directly with the Immigration Court having jurisdiction over the case in 
the following circumstances:
    (i) During exclusion, deportation, or removal proceedings, with the 
Immigration Court having jurisdiction over the port, district office, or 
sector after service and filing of the appropriate charging document.
    (ii) After completion of exclusion, deportation, or removal 
proceedings, and in conjunction with a motion to reopen pursuant to 8 
CFR part 3 where applicable, with the Immigration Court having 
jurisdiction over the prior proceeding. Any such motion must reasonably 
explain the failure to request asylum prior to the completion of the 
proceedings.
    (iii) In asylum proceedings pursuant to Sec. 208.2(b)(1) and after 
the Notice of Referral to Immigration Judge has been served on the alien 
and filed with the Immigration Court having jurisdiction over the case.
    (4) With the Board of Immigration Appeals. In conjunction with a 
motion to

[[Page 186]]

remand or reopen pursuant to Secs. 3.2 and 3.8 of this chapter where 
applicable, an initial asylum application shall be filed with the Board 
of Immigration Appeals if jurisdiction over the proceedings is vested in 
the Board of Immigration Appeals under 8 CFR part 3. Any such motion 
must reasonably explain the failure to request asylum prior to the 
completion of the proceedings.
    (5) With the district director. In the case of any alien described 
in Sec. 208.2(b)(1) and prior to the service on the alien of Form I-863, 
any asylum application shall be submitted to the district director 
having jurisdiction pursuant to 8 CFR part 103. The district director 
shall forward such asylum application to the appropriate Immigration 
Court with the Form I-863 being filed with that Immigration Court.
    (c) Amending an application after filing. Upon request of the alien 
and as a matter of discretion, the asylum officer or immigration judge 
having jurisdiction may permit an asylum applicant to amend or 
supplement the application, but any delay caused by such request shall 
extend the period within which the applicant may not apply for 
employment authorization in accordance with Sec. 208.7(a).

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 64 
FR 13881, Mar. 23, 1999]

    Effective Date Note: At 65 FR 76131, Dec. 6, 2000, Sec. 208.4 was 
amended by revising paragraphs (a), (b)(2), (b)(3), and (b)(5), 
effective Jan. 5, 2001. For the convenience of the user, the revised 
text is set forth as follows:

Sec. 208.4  Filing the application.

                                * * * * *

    (a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits 
certain aliens from filing for asylum on or after April 1, 1997, unless 
the alien can demonstrate to the satisfaction of the Attorney General 
that one of the exceptions in section 208(a)(2)(D) of the Act applies. 
Such prohibition applies only to asylum applications under section 208 
of the Act and not to applications for withholding of removal under 
Sec. 208.16. If an applicant files an asylum application and it appears 
that one or more of the prohibitions contained in section 208(a)(2) of 
the Act apply, an asylum officer, in an interview, or an immigration 
judge, in a hearing, shall review the application and give the applicant 
the opportunity to present any relevant and useful information bearing 
on any prohibitions on filing to determine if the application should be 
rejected. For the purpose of making determinations under section 
208(a)(2) of the Act, the following rules shall apply:
    (1) Authority. Only an asylum officer, an immigration judge, or the 
Board of Immigration Appeals is authorized to make determinations 
regarding the prohibitions contained in section 208(a)(2)(B) or (C) of 
the Act.
    (2) One-year filing deadline.
    (i) For purposes of section 208(a)(2)(B) of the Act, an applicant 
has the burden of proving:
    (A) By clear and convincing evidence that the application has been 
filed within 1 year of the date of the alien's arrival in the United 
States, or
    (B) To the satisfaction of the asylum officer, the immigration 
judge, or the Board that he or she qualifies for an exception to the 1-
year deadline.
    (ii) The 1-year period shall be calculated from the date of the 
alien's last arrival in the United States or April 1, 1997, whichever is 
later. When the last day of the period so computed falls on a Saturday, 
Sunday, or legal holiday, the period shall run until the end of the next 
day that is not a Saturday, Sunday, or legal holiday. For the purpose of 
making determinations under section 208(a)(2)(B) of the Act only, an 
application is considered to have been filed on the date it is received 
by the Service, pursuant to Sec. 103.2(a)(7) of this chapter. In a case 
in which the application has not been received by the Service within 1 
year from the applicant's date of entry into the United States, but the 
applicant provides clear and convincing documentary evidence of mailing 
the application within the 1-year period, the mailing date shall be 
considered the filing date. For cases before the Immigration Court in 
accordance with Sec. 3.13 of this chapter, the application is considered 
to have been filed on the date it is received by the Immigration Court. 
For cases before the Board of Immigration Appeals, the application is 
considered to have been filed on the date it is received by the Board. 
In the case of an application that appears to have been filed more than 
a year after the applicant arrived in the United States, the asylum 
officer, the immigration judge, or the Board will determine whether the 
applicant qualifies for an exception to the deadline.
    (3) Prior denial of application. For purposes of section 
208(a)(2)(C) of the Act, an asylum application has not been denied 
unless denied by an immigration judge or the Board of Immigration 
Appeals.
    (4) Changed circumstances.
    (i) The term ``changed circumstances'' in section 208(a)(2)(D) of 
the Act shall refer to

[[Page 187]]

circumstances materially affecting the applicant's eligibility for 
asylum. They may include, but are not limited to:
    (A) Changes in conditions in the applicant's country of nationality 
or, if the applicant is stateless, country of last habitual residence;
    (B) Changes in the applicant's circumstances that materially affect 
the applicant's eligibility for asylum, including changes in applicable 
U.S. law and activities the applicant becomes involved in outside the 
country of feared persecution that place the applicant at risk; or
    (C) In the case of an alien who had previously been included as a 
dependent in another alien's pending asylum application, the loss of the 
spousal or parent-child relationship to the principal applicant through 
marriage, divorce, death, or attainment of age 21.
    (ii) The applicant shall file an asylum application within a 
reasonable period given those ``changed circumstances.'' If the 
applicant can establish that he or she did not become aware of the 
changed circumstances until after they occurred, such delayed awareness 
shall be taken into account in determining what constitutes a 
``reasonable period.''
    (5) The term ``extraordinary circumstances'' in section 208(a)(2)(D) 
of the Act shall refer to events or factors directly related to the 
failure to meet the 1-year deadline. Such circumstances may excuse the 
failure to file within the 1-year period as long as the alien filed the 
application within a reasonable period given those circumstances. The 
burden of proof is on the applicant to establish to the satisfaction of 
the asylum officer, the immigration judge, or the Board of Immigration 
Appeals that the circumstances were not intentionally created by the 
alien through his or her own action or inaction, that those 
circumstances were directly related to the alien's failure to file the 
application within the 1-year period, and that the delay was reasonable 
under the circumstances. Those circumstances may include but are not 
limited to:
    (i) Serious illness or mental or physical disability, including any 
effects of persecution or violent harm suffered in the past, during the 
1-year period after arrival;
    (ii) Legal disability (e.g., the applicant was an unaccompanied 
minor or suffered from a mental impairment) during the 1-year period 
after arrival;
    (iii) Ineffective assistance of counsel, provided that:
    (A) The alien files an affidavit setting forth in detail the 
agreement that was entered into with counsel with respect to the actions 
to be taken and what representations counsel did or did not make to the 
respondent in this regard;
    (B) The counsel whose integrity or competence is being impugned has 
been informed of the allegations leveled against him or her and given an 
opportunity to respond; and
    (C) The alien indicates whether a complaint has been filed with 
appropriate disciplinary authorities with respect to any violation of 
counsel's ethical or legal responsibilities, and if not, why not;
    (iv) The applicant maintained Temporary Protected Status, lawful 
immigrant or nonimmigrant status, or was given parole, until a 
reasonable period before the filing of the asylum application;
    (v) The applicant filed an asylum application prior to the 
expiration of the 1-year deadline, but that application was rejected by 
the Service as not properly filed, was returned to the applicant for 
corrections, and was refiled within a reasonable period thereafter; and
    (vi) The death or serious illness or incapacity of the applicant's 
legal representative or a member of the applicant's immediate family.
    (b) * * *
    (2) With the asylum office. An asylum application shall be filed 
directly with the asylum office having jurisdiction over the matter in 
the case of an alien who:
    (i) Has received the express consent of the asylum office director 
or the Director of Asylum to do so, or
    (ii) Previously was included in a spouse's or parent's pending 
application but is no longer eligible to be included as a derivative. In 
such cases, the derivative should include a cover letter referencing the 
previous application and explaining that he or she is now independently 
filing for asylum.
    (3) With the Immigration Court. Asylum applications shall be filed 
directly with the Immigration Court having jurisdiction over the case in 
the following circumstances:
    (i) During exclusion, deportation, or removal proceedings, with the 
Immigration Court having jurisdiction over the underlying proceeding.
    (ii) After completion of exclusion, deportation, or removal 
proceedings, and in conjunction with a motion to reopen pursuant to 8 
CFR part 3 where applicable, with the Immigration Court having 
jurisdiction over the prior proceeding. Any such motion must reasonably 
explain the failure to request asylum prior to the completion of the 
proceedings.
    (iii) In asylum proceedings pursuant to Sec. 208.2(c)(1) and after 
the Form I-863, Notice of Referral to Immigration Judge, has been served 
on the alien and filed with the Immigration Court having jurisdiction 
over the case.
    (4) * * *
    (5) With the district director. In the case of any alien described 
in Sec. 208.2(c)(1) and prior to the service on the alien of Form I-863, 
any

[[Page 188]]

asylum application shall be submitted to the district director having 
jurisdiction pursuant to 8 CFR part 103. If the district director elects 
to issue the Form I-863, the district director shall forward such asylum 
application to the appropriate Immigration Court with the Form I-863 
being filed with that Immigration Court.

                                * * * * *



Sec. 208.5  Special duties toward aliens in custody of the Service.

    (a) General. When an alien in the custody of the Service requests 
asylum or withholding of removal or expresses a fear of persecution or 
harm upon return to his or her country of origin or to agents thereof, 
the Service shall make available the appropriate application forms and 
shall provide the applicant with the information required by section 
208(d)(4) of the Act, except in the case of an alien who is in custody 
pending a credible fear of persecution determination under section 
235(b)(1)(B) of the Act. Where possible, expedited consideration shall 
be given to applications of detained aliens. Except as provided in 
paragraph (c) of this section, such alien shall not be excluded, 
deported, or removed before a decision is rendered on his or her asylum 
application.
    (b) Certain aliens aboard vessels. (1) If an alien crewmember or 
alien stowaway on board a vessel or other conveyance alleges, claims, or 
otherwise makes known to an immigration inspector or other official 
making an examination on the conveyance that he or she is unable or 
unwilling to return to his or her country of nationality or last 
habitual residence (if not a national of any country) because of 
persecution or a fear of persecution in that country on account of race, 
religion, nationality, membership in a particular social group, or 
political opinion, or if the alien expresses a fear of torture upon 
return to that country, the alien shall be promptly removed from the 
conveyance. If the alien makes such fear known to an official while off 
such conveyance, the alien shall not be returned to the conveyance but 
shall be retained in or transferred to the custody of the Service.
    (i) An alien stowaway will be referred to an asylum officer for a 
credible fear determination under Sec. 208.30.
    (ii) An alien crewmember shall be provided the appropriate 
application forms and information required by section 208(d)(4) of the 
Act and may then have 10 days within which to submit an asylum 
application to the district director having jurisdiction over the port 
of entry. The district director, pursuant to Sec. 208.4(b), shall serve 
Form I-863 on the alien and immediately forward any such application to 
the appropriate Immigration Court with a copy of the Form I-863 being 
filed with that court.
    (2) Pending adjudication of the application, and, in the case of a 
stowaway the credible fear determination and any review thereof, the 
alien may be detained by the Service or otherwise paroled in accordance 
with Sec. 212.5 of this chapter. However, pending the credible fear 
determination, parole of an alien stowaway may be permitted only when 
the Attorney General determines, in the exercise of discretion, that 
parole is required to meet a medical emergency or is necessary for a 
legitimate law enforcement objective.
    (c) Exception to prohibition on removal. A motion to reopen or an 
order to remand accompanied by an asylum application pursuant to 
Sec. 208.4(b)(3)(iii) shall not stay execution of a final exclusion, 
deportation, or removal order unless such stay is specifically granted 
by the Board of Immigration Appeals or the immigration judge having 
jurisdiction over the motion.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76132, Dec. 6, 2000, Sec. 208.5 was 
amended by revising the first sentence in paragraph (a), by adding a 
second sentence to paragraph (a), and by revising paragraph (b)(1)(ii), 
effective Jan. 5, 2001. For the convenience of the user, the revised and 
added text is set forth as follows:

Sec. 208.5  Special duties toward aliens in custody of the Service.

    (a) General. When an alien in the custody of the Service requests 
asylum or withholding of removal, or expresses a fear of persecution or 
harm upon return to his or her country of origin or to agents thereof, 
the Service shall make available the appropriate application forms and 
shall provide the applicant with the information required by section 
208(d)(4) of the Act, except in the case of an alien who

[[Page 189]]

is in custody pending a credible fear determination under Sec. 208.30 or 
a reasonable fear determination pursuant to Sec. 208.31. Although the 
Service does not have a duty in the case of an alien who is in custody 
pending a credible fear or reasonable fear determination under either 
Sec. 208.30 or Sec. 208.31, the Service may provide the appropriate 
forms, upon request. * * *
    (b) * * *
    (1) * * *
    (ii) An alien crewmember shall be provided the appropriate 
application forms and information required by section 208(d)(4) of the 
Act and may then have 10 days within which to submit an asylum 
application to the district director having jurisdiction over the port-
of-entry. The district director may extend the 10-day filing period for 
good cause. Once the application has been filed, the district director, 
pursuant to Sec. 208.4(b), shall serve Form I-863 on the alien and 
immediately forward any such application to the appropriate Immigration 
Court with a copy of the Form I-863 being filed with that court.

                                * * * * *



Sec. 208.6  Disclosure to third parties.

    (a) Information contained in or pertaining to any asylum application 
shall not be disclosed without the written consent of the applicant, 
except as permitted by this section or at the discretion of the Attorney 
General.
    (b) The confidentiality of other records kept by the Service that 
indicate that a specific alien has applied for asylum shall also be 
protected from disclosure. The Service will coordinate with the 
Department of State to ensure that the confidentiality of these records 
is maintained if they are transmitted to Department of State offices in 
other countries.
    (c) This section shall not apply to any disclosure to:
    (1) Any United States Government official or contractor having a 
need to examine information in connection with:
    (i) The adjudication of asylum applications;
    (ii) The defense of any legal action arising from the adjudication 
of or failure to adjudicate the asylum application;
    (iii) The defense of any legal action of which the asylum 
application is a part; or
    (iv) Any United States Government investigation concerning any 
criminal or civil matter; or
    (2) Any Federal, state, or local court in the United States 
considering any legal action:
    (i) Arising from the adjudication of or failure to adjudicate the 
asylum application; or
    (ii) Arising from the proceedings of which the asylum application is 
a part.

    Effective Date Note: At 65 FR 76133, Dec. 6, 2000, Sec. 208.6 was 
revised, effective Jan. 5, 2001. For the convenience of the user, the 
revised text is set forth as follows:

Sec. 208.6  Disclosure to third parties.

    (a) Information contained in or pertaining to any asylum 
application, records pertaining to any credible fear determination 
conducted pursuant to Sec. 208.30, and records pertaining to any 
reasonable fear determination conducted pursuant to Sec. 208.31, shall 
not be disclosed without the written consent of the applicant, except as 
permitted by this section or at the discretion of the Attorney General.
    (b) The confidentiality of other records kept by the Service and the 
Executive Office for Immigration Review that indicate that a specific 
alien has applied for asylum, received a credible fear or reasonable 
fear interview, or received a credible fear or reasonable fear review 
shall also be protected from disclosure. The Service will coordinate 
with the Department of State to ensure that the confidentiality of those 
records is maintained if they are transmitted to Department of State 
offices in other countries.
    (c) This section shall not apply to any disclosure to:
    (1) Any United States Government official or contractor having a 
need to examine information in connection with:
    (i) The adjudication of asylum applications;
    (ii) The consideration of a request for a credible fear or 
reasonable fear interview, or a credible fear or reasonable fear review;
    (iii) The defense of any legal action arising from the adjudication 
of, or failure to adjudicate, the asylum application, or from a credible 
fear determination or reasonable fear determination under Sec. 208.30 or 
Sec. 208.31;
    (iv) The defense of any legal action of which the asylum 
application, credible fear determination, or reasonable fear 
determination is a part; or
    (v) Any United States Government investigation concerning any 
criminal or civil matter; or
    (2) Any Federal, State, or local court in the United States 
considering any legal action:

[[Page 190]]

    (i) Arising from the adjudication of, or failure to adjudicate, the 
asylum application, or from a credible fear or reasonable fear 
determination under Sec. 208.30 or Sec. 208.31; or
    (ii) Arising from the proceedings of which the asylum application, 
credible fear determination, or reasonable fear determination is a part.



Sec. 208.7  Employment authorization.

    (a) Application and approval. (1) Subject to the restrictions 
contained in sections 208(d) and 236(a) of the Act, an applicant for 
asylum who is not an aggravated felon shall be eligible pursuant to 
Secs. 274a.12(c)(8) and 274a.13(a) of this chapter to submit a Form I-
765, Application for Employment Authorization. Except in the case of an 
alien whose asylum application has been recommended for approval, or in 
the case of an alien who filed an asylum application prior to January 4, 
1995, the application shall be submitted no earlier than 150 days after 
the date on which a complete asylum application submitted in accordance 
with Secs. 208.3 and 208.4 has been received. In the case of an 
applicant whose asylum application has been recommended for approval, 
the applicant may apply for employment authorization when he or she 
receives notice of the recommended approval. If an asylum application 
has been returned as incomplete in accordance with Sec. 208.3(c)(3), the 
150-day period will commence upon receipt by the Service of a complete 
asylum application. An applicant whose asylum application has been 
denied by an asylum officer or by an immigration judge within the 150-
day period shall not be eligible to apply for employment authorization. 
If an asylum application is denied prior to a decision on the 
application for employment authorization, the application for employment 
authorization shall be denied. If the asylum application is not so 
denied, the Service shall have 30 days from the date of filing of the 
Form I-765 to grant or deny that application, except that no employment 
authorization shall be issued to an asylum applicant prior to the 
expiration of the 180-day period following the filing of the asylum 
application filed on or after April 1, 1997.
    (2) The time periods within which the alien may not apply for 
employment authorization and within which the Service must respond to 
any such application and within which the asylum application must be 
adjudicated pursuant to section 208(d)(5)(A)(iii) of the Act shall begin 
when the alien has filed a complete asylum application in accordance 
with Secs. 208.3 and 208.4. Any delay requested or caused by the 
applicant shall not be counted as part of these time periods, including 
delays caused by failure without good cause to follow the requirements 
for fingerprint processing. Such time periods shall also be extended by 
the equivalent of the time between issuance of a request for evidence 
pursuant to Sec. 103.2(b)(8) of this chapter and the receipt of the 
applicant's response to such request.
    (3) The provisions of paragraphs (a)(1) and (a)(2) of this section 
apply to applications for asylum filed on or after January 4, 1995.
    (4) Employment authorization pursuant to Sec. 274a.12(c)(8) of this 
chapter may not be granted to an alien who fails to appear for a 
scheduled interview before an asylum officer or a hearing before an 
immigration judge, unless the applicant demonstrates that the failure to 
appear was the result of exceptional circumstances.
    (b) Renewal and termination. Employment authorization shall be 
renewable, in increments to be determined by the Commissioner, for the 
continuous period of time necessary for the asylum officer or 
immigration judge to decide the asylum application and, if necessary, 
for completion of any administrative or judicial review.
    (1) If the asylum application is denied by the asylum officer, the 
employment authorization shall terminate at the expiration of the 
employment authorization document or 60 days after the denial of asylum, 
whichever is longer.
    (2) If the application is denied by the immigration judge, the Board 
of Immigration Appeals, or a Federal court, the employment authorization 
terminates upon the expiration of the employment authorization document, 
unless the applicant has filed an appropriate request for administrative 
or judicial review.
    (c) Supporting evidence for renewal of employment authorization. In 
order for

[[Page 191]]

employment authorization to be renewed under this section, the alien 
must provide the Service (in accordance with the instructions on or 
attached to the employment authorization application) with a Form I-765, 
the required fee (unless waived in accordance with Sec. 103.7(c) of this 
chapter), and (if applicable) proof that he or she has continued to 
pursue his or her asylum application before an immigration judge or 
sought administrative or judicial review. For purposes of employment 
authorization, pursuit of an asylum application is established by 
presenting to the Service one of the following, depending on the stage 
of the alien's immigration proceedings:
    (1) If the alien's case is pending in proceedings before the 
immigration judge, and the alien wishes to continue to pursue his or her 
asylum application, a copy of any asylum denial, referral notice, or 
charging document placing the alien in such proceedings;
    (2) If the immigration judge has denied asylum, a copy of the 
document issued by the Board of Immigration Appeals to show that a 
timely appeal has been filed from a denial of the asylum application by 
the immigration judge; or
    (3) If the Board of Immigration Appeals has dismissed the alien's 
appeal of a denial of asylum, or sustained an appeal by the Service of a 
grant of asylum, a copy of the petition for judicial review or for 
habeas corpus pursuant to section 242 of the Act, date stamped by the 
appropriate court.
    (d) In order for employment authorization to be renewed before its 
expiration, the application for renewal must be received by the Service 
90 days prior to expiration of the employment authorization.

[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 12986, Mar. 17, 1998]



Sec. 208.8  Limitations on travel outside the United States.

    (a) An applicant who leaves the United States without first 
obtaining advance parole under Sec. 212.5(e) of this chapter shall be 
presumed to have abandoned his or her application under this section.
    (b) An applicant who leaves the United States pursuant to advance 
parole under Sec. 212.5(e) of this chapter and returns to the country of 
claimed persecution shall be presumed to have abandoned his or her 
application, unless the applicant is able to establish compelling 
reasons for such return.

    Effective Date Note: At 65 FR 82255, Dec. 28, 2000, Sec. 208.8 was 
amended by revising the reference to ``212.5(e)'' to read ``212.5(f)'' 
in paragraph (a) and (b), effective Jan. 29, 2001.



Sec. 208.9  Procedure for interview before an asylum officer.

    (a) The Service shall adjudicate the claim of each asylum applicant 
whose application is complete within the meaning of Sec. 208.3(c)(3) and 
is within the jurisdiction of the Service.
    (b) The asylum officer shall conduct the interview in a 
nonadversarial manner and, except at the request of the applicant, 
separate and apart from the general public. The purpose of the interview 
shall be to elicit all relevant and useful information bearing on the 
applicant's eligibility for asylum. At the time of the interview, the 
applicant must provide complete information regarding his or her 
identity, including name, date and place of birth, and nationality, and 
may be required to register this identity electronically or through any 
other means designated by the Attorney General. The applicant may have 
counsel or a representative present, may present witnesses, and may 
submit affidavits of witnesses and other evidence.
    (c) The asylum officer shall have authority to administer oaths, 
verify the identity of the applicant (including through the use of 
electronic means), verify the identity of any interpreter, present and 
receive evidence, and question the applicant and any witnesses.
    (d) Upon completion of the interview, the applicant or the 
applicant's representative shall have an opportunity to make a statement 
or comment on the evidence presented. The asylum officer may, in his or 
her discretion, limit the length of such statement or comment and may 
require its submission in writing. Upon completion of the interview, the 
applicant shall be informed that he or she must appear in person to 
receive and to acknowledge receipt of the decision of the asylum officer 
and any other accompanying

[[Page 192]]

material at a time and place designated by the asylum officer, except as 
otherwise provided by the asylum officer. An applicant's failure to 
appear to receive and acknowledge receipt of the decision shall be 
treated as delay caused by the applicant for purposes of 
Sec. 208.7(a)(3) and shall extend the period within which the applicant 
may not apply for employment authorization by the number of days until 
the applicant does appear to receive and acknowledge receipt of the 
decision or until the applicant appears before an immigration judge in 
response to the issuance of a charging document under Sec. 208.14(c).
    (e) The asylum officer shall consider evidence submitted by the 
applicant together with his or her asylum application, as well as any 
evidence submitted by the applicant before or at the interview. As a 
matter of discretion, the asylum officer may grant the applicant a brief 
extension of time following an interview during which the applicant may 
submit additional evidence. Any such extension shall extend by an 
equivalent time the periods specified by Sec. 208.7 for the filing and 
adjudication of any employment authorization application.
    (f) The asylum application, all supporting information provided by 
the applicant, any comments submitted by the Department of State or by 
the Service, and any other information specific to the applicant's case 
and considered by the asylum officer shall comprise the record.
    (g) An applicant unable to proceed with the interview in English 
must provide, at no expense to the Service, a competent interpreter 
fluent in both English and the applicant's native language or any other 
language in which the applicant is fluent. The interpreter must be at 
least 18 years of age. Neither the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, nor a representative or employee of the applicant's country of 
nationality, or if stateless, country of last habitual residence, may 
serve as the applicant's interpreter. Failure without good cause to 
comply with this paragraph may be considered a failure to appear for the 
interview for purposes of Sec. 208.10.

    Effective Date Note: At 65 FR 76133, Dec. 6, 2000, Sec. 208.9 was 
amended in paragraph (d) by revising the reference to ``Sec. 208.14(b)'' 
to read ``Sec. 208.14(c)'', effective Jan. 5, 2001.



Sec. 208.10  Failure to appear at an interview before an asylum officer or failure to follow requirements for fingerprint processing.

    Failure to appear for a scheduled interview without prior 
authorization may result in dismissal of the application or waiver of 
the right to an interview. Failure to comply with fingerprint processing 
requirements without good cause may result in dismissal of the 
application or waiver of the right to an adjudication by an asylum 
officer. Failure to appear shall be excused if the notice of the 
interview or fingerprint appointment was not mailed to the applicant's 
current address and such address had been provided to the Office of 
International Affairs by the applicant prior to the date of mailing in 
accordance with section 265 of the Act and regulations promulgated 
thereunder, unless the asylum officer determines that the applicant 
received reasonable notice of the interview or fingerprinting 
appointment. Failure to appear at the interview or fingerprint 
appointment will be excused if the applicant demonstrates that such 
failure was the result of exceptional circumstances.

[63 FR 12986, Mar. 17, 1998]



Sec. 208.11  Comments from the Department of State.

    (a) The Service shall forward to the Department of State a copy of 
each completed application it receives. At its option, the Department of 
State may provide detailed country conditions information relevant to 
eligibility for asylum or withholding of removal.
    (b) At its option, the Department of State may also provide:
    (1) An assessment of the accuracy of the applicant's assertions 
about conditions in his or her country of nationality or habitual 
residence and his or her particular situation;
    (2) Information about whether persons who are similarly situated to 
the applicant are persecuted or tortured in

[[Page 193]]

his or her country of nationality or habitual residence and the 
frequency of such persecution or torture; or
    (3) Such other information as it deems relevant.
    (c) Asylum officers and immigration judges may request specific 
comments from the Department of State regarding individual cases or 
types of claims under consideration, or such other information as they 
deem appropriate.
    (d) Any such comments received pursuant to paragraphs (b) and (c) of 
this section shall be made part of the record. Unless the comments are 
classified under the applicable Executive Order, the applicant shall be 
provided an opportunity to review and respond to such comments prior to 
the issuance of any decision to deny the application.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999]



Sec. 208.12  Reliance on information compiled by other sources.

    (a) In deciding an asylum application, or in deciding whether the 
alien has a credible fear of persecution or torture pursuant to 
Sec. 208.30 of this part, or a reasonable fear of persecution or torture 
pursuant to Sec. 208.31, the asylum officer may rely on material 
provided by the Department of State, the Office of International 
Affairs, other Service offices, or other credible sources, such as 
international organizations, private voluntary agencies, news 
organizations, or academic institutions.
    (b) Nothing in this part shall be construed to entitle the applicant 
to conduct discovery directed toward the records, officers, agents, or 
employees of the Service, the Department of Justice, or the Department 
of State.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76133, Dec. 6, 2000, Sec. 208.12 was 
amended by revising paragraph (b), effective Jan. 5, 2001. For the 
convenience of the user, the revised text is set forth as follows:

Sec. 208.12  Reliance on information compiled by other sources.

                                * * * * *

    (b) Nothing in this part shall be construed to entitle the applicant 
to conduct discovery directed toward the records, officers, agents, or 
employees of the Service, the Department of Justice, or the Department 
of State. Persons may continue to seek documents available through a 
Freedom of Information Act (FOIA) request pursuant to 8 CFR part 103.



Sec. 208.13  Establishing asylum eligibility.

    (a) Burden of proof. The burden of proof is on the applicant for 
asylum to establish that he or she is a refugee as defined in section 
101(a)(42) of the Act. The testimony of the applicant, if credible, may 
be sufficient to sustain the burden of proof without corroboration. The 
fact that the applicant previously established a credible fear of 
persecution for purposes of section 235(b)(1)(B) of the Act does not 
relieve the alien of the additional burden of establishing eligibility 
for asylum.
    (b) Persecution. The applicant may qualify as a refugee either 
because he or she has suffered past persecution or because he or she has 
a well-founded fear of future persecution.
    (1) Past persecution. An applicant shall be found to be a refugee on 
the basis of past persecution if he or she can establish that he or she 
has suffered persecution in the past in his or her country of 
nationality or last habitual residence on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion, and that he or she is unable or unwilling to return to or avail 
himself or herself of the protection of that country owing to such 
persecution.
    (i) If it is determined that the applicant has established past 
persecution, he or she shall be presumed also to have a well-founded 
fear of persecution unless a preponderance of the evidence establishes 
that since the time the persecution occurred conditions in the 
applicant's country of nationality or last habitual residence have 
changed to such an extent that the applicant no longer has a well-
founded fear of being persecuted if he or she were to return.
    (ii) An application for asylum shall be denied if the applicant 
establishes past persecution under this paragraph but it is also 
determined that he or she does not have a well-founded fear of future 
persecution under paragraph (b)(2) of this section, unless it is 
determined that the applicant has demonstrated compelling reasons for 
being unwilling

[[Page 194]]

to return to his or her country of nationality or last habitual 
residence arising out of the severity of the past persecution. If the 
applicant demonstrates such compelling reasons, he or she may be granted 
asylum unless such a grant is barred by paragraph (c) of this section .
    (2) Well-founded fear of persecution. An applicant shall be found to 
have a well-founded fear of persecution if he or she can establish 
first, that he or she has a fear of persecution in his or her country of 
nationality or last habitual residence on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; second, that there is a reasonable possibility of suffering 
such persecution if he or she were to return to that country; and third, 
that he or she is unable or unwilling to return to or avail himself or 
herself of the protection of that country because of such fear. In 
evaluating whether the applicant has sustained his or her burden of 
proving that he or she has a well-founded fear of persecution, the 
asylum officer or immigration judge shall not require the applicant to 
provide evidence that he or she would be singled out individually for 
persecution if:
    (i) The applicant establishes that there is a pattern or practice in 
his or her country of nationality or last habitual residence of 
persecution of a group of persons similarly situated to the applicant on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion; and
    (ii) The applicant establishes his or her own inclusion in and 
identification with such group of persons such that his or her fear of 
persecution upon return is reasonable.
    (c) Mandatory denials--(1) Applications filed on or after April 1, 
1997. For applications filed on or after April 1, 1997, an applicant 
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the 
Act applies to the applicant. If the applicant is found to be ineligible 
for asylum under either section 208(a)(2) or 208(b)(2) of the Act, the 
applicant shall be considered for eligibility for withholding of removal 
under section 241(b)(3) of the Act. The applicant shall also be 
considered for eligibility for withholding of removal under the 
Convention Against Torture if the applicant requests such consideration 
or if the evidence presented by the alien indicates that the alien may 
be tortured in the country of removal.
    (2) Applications filed before April 1, 1997. (i) An immigration 
judge or asylum officer shall not grant asylum to any applicant who 
filed his or her application before April 1, 1997, if the alien:
    (A) Having been convicted by a final judgment of a particularly 
serious crime in the United States, constitutes a danger to the 
community;
    (B) Has been firmly resettled within the meaning of Sec. 208.15;
    (C) Can reasonably be regarded as a danger to the security of the 
United States;
    (D) Has been convicted of an aggravated felony, as defined in 
section 101(a)(43) of the Act; or
    (E) Ordered, incited, assisted, or otherwise participated in the 
persecution of any person on account of race, religion, nationality, 
membership in a particular social group, or political opinion.
    (ii) If the evidence indicates that one of the above grounds apply 
to the applicant, he or she shall have the burden of proving by a 
preponderance of the evidence that he or she did not so act.
    (d) Discretionary denial. An asylum application may be denied in the 
discretion of the Attorney General if the alien can be removed to a 
third country which has offered resettlement and in which the alien 
would not face harm or persecution.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76133, Dec. 6, 2000, Sec. 208.13 was 
amended by revising the heading of paragraph (b), (b)(1) and (b)(2), by 
adding paragraphs (b)(3) and (c)(2)(i)(F), and by removing paragraph 
(d), effective Jan. 5, 2001. For the convenience of the user, the 
revised and added text is set forth as follows:

Sec. 208.13  Establishing asylum eligibility.

                                * * * * *

    (b) Eligibility. * * *
    (1) Past persecution. An applicant shall be found to be a refugee on 
the basis of past persecution if the applicant can establish that he or 
she has suffered persecution in the past

[[Page 195]]

in the applicant's country of nationality or, if stateless, in his or 
her country of last habitual residence, on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion, and is unable or unwilling to return to, or avail himself or 
herself of the protection of, that country owing to such persecution. An 
applicant who has been found to have established such past persecution 
shall also be presumed to have a well-founded fear of persecution on the 
basis of the original claim. That presumption may be rebutted if an 
asylum officer or immigration judge makes one of the findings described 
in paragraph (b)(1)(i) of this section. If the applicant's fear of 
future persecution is unrelated to the past persecution, the applicant 
bears the burden of establishing that the fear is well-founded.
    (i) Discretionary referral or denial. Except as provided in 
paragraph (b)(1)(iii) of this section, an asylum officer shall, in the 
exercise of his or her discretion, refer or deny, or an immigration 
judge, in the exercise of his or her discretion, shall deny the asylum 
application of an alien found to be a refugee on the basis of past 
persecution if any of the following is found by a preponderance of the 
evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant no longer has a well-founded fear of persecution in the 
applicant's country of nationality or, if stateless, in the applicant's 
country of last habitual residence, on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; or
    (B) The applicant could avoid future persecution by relocating to 
another part of the applicant's country of nationality or, if stateless, 
another part of the applicant's country of last habitual residence, and 
under all the circumstances, it would be reasonable to expect the 
applicant to do so.
    (ii) Burden of proof. In cases in which an applicant has 
demonstrated past persecution under paragraph (b)(1) of this section, 
the Service shall bear the burden of establishing by a preponderance of 
the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this 
section.
    (iii) Grant in the absence of well-founded fear of persecution. An 
applicant described in paragraph (b)(1)(i) of this section who is not 
barred from a grant of asylum under paragraph (c) of this section, may 
be granted asylum, in the exercise of the decision-maker's discretion, 
if:
    (A) The applicant has demonstrated compelling reasons for being 
unwilling or unable to return to the country arising out of the severity 
of the past persecution; or
    (B) The applicant has established that there is a reasonable 
possibility that he or she may suffer other serious harm upon removal to 
that country.
    (2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
    (A) The applicant has a fear of persecution in his or her country of 
nationality or, if stateless, in his or her country of last habitual 
residence, on account of race, religion, nationality, membership in a 
particular social group, or political opinion;
    (B) There is a reasonable possibility of suffering such persecution 
if he or she were to return to that country; and
    (C) He or she is unable or unwilling to return to, or avail himself 
or herself of the protection of, that country because of such fear.
    (ii) An applicant does not have a well-founded fear of persecution 
if the applicant could avoid persecution by relocating to another part 
of the applicant's country of nationality or, if stateless, another part 
of the applicant's country of last habitual residence, if under all the 
circumstances it would be reasonable to expect the applicant to do so.
    (iii) In evaluating whether the applicant has sustained the burden 
of proving that he or she has a well-founded fear of persecution, the 
asylum officer or immigration judge shall not require the applicant to 
provide evidence that there is a reasonable possibility he or she would 
be singled out individually for persecution if:
    (A) The applicant establishes that there is a pattern or practice in 
his or her country of nationality or, if stateless, in his or her 
country of last habitual residence, of persecution of a group of persons 
similarly situated to the applicant on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; and
    (B) The applicant establishes his or her own inclusion in, and 
identification with, such group of persons such that his or her fear of 
persecution upon return is reasonable.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of 
this section, adjudicators should consider, but are not limited to 
considering, whether the applicant would face other serious harm in the 
place of suggested relocation; any ongoing civil strife within the 
country; administrative, economic, or judicial infrastructure; 
geographical limitations; and social and cultural constraints, such as 
age, gender, health, and social and familial ties. Those factors may, or 
may not, be relevant, depending on all the circumstances of the case, 
and are not necessarily determinative of whether it would be reasonable 
for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it

[[Page 196]]

would not be reasonable for him or her to relocate, unless the 
persecution is by a government or is government-sponsored.
    (ii) In cases in which the persecutor is a government or is 
government-sponsored, or the applicant has established persecution in 
the past, it shall be presumed that internal relocation would not be 
reasonable, unless the Service establishes by a preponderance of the 
evidence that, under all the circumstances, it would be reasonable for 
the applicant to relocate.

                                * * * * *

    (c) * * *
    (2) * * *
    (i) * * *
    (F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III) 
of the Act as it existed prior to April 1, 1997, and as amended by the 
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless 
it is determined that there are no reasonable grounds to believe that 
the individual is a danger to the security of the United States.



Sec. 208.14  Approval, denial, referral, or dismissal of application.

    (a) By an immigration judge. Unless otherwise prohibited in 
Sec. 208.13(c), an immigration judge may grant or deny asylum in the 
exercise of discretion to an applicant who qualifies as a refugee under 
section 101(a)(42) of the Act.
    (b) By an asylum officer. Unless otherwise prohibited in 
Sec. 208.13(c):
    (1) An asylum officer may grant asylum in the exercise of discretion 
to an applicant who qualifies as a refugee under section 101(a)(42) of 
the Act.
    (2) If the alien appears to be deportable, excludable or removable 
under section 240 of the Act, the asylum officer shall either grant 
asylum or refer the application to an immigration judge for adjudication 
in deportation, exclusion, or removal proceedings. An asylum officer may 
refer such an application after an interview conducted in accordance 
with Sec. 208.9, or if, in accordance with Sec. 208.10, the applicant is 
deemed to have waived his or her right to an interview or an 
adjudication by an asylum officer.
    (3) If the applicant is maintaining valid nonimmigrant status at the 
time the application is decided, the asylum officer may grant or deny 
asylum, except in the case of an applicant described in 
Sec. 208.2(b)(1).
    (c) Applicability of Sec. 103.2(b) of this chapter. No application 
for asylum or withholding of deportation shall be subject to denial 
pursuant to Sec. 103.2(b) of this chapter.
    (d) Duration. If the alien's asylum application is granted, the 
grant will be effective for an indefinite period, subject to termination 
as provided in Sec. 208.22.
    (e) Effect of denial of principal's application on separate 
applications by dependents. The denial of an asylum application filed by 
a principal applicant for asylum shall also result in the denial of 
asylum status to any dependents of that principal applicant who are 
included in that same application. Such denial shall not preclude a 
grant of asylum for an otherwise eligible dependent who has filed a 
separate asylum application, nor shall such denial result in an 
otherwise eligible dependent becoming ineligible to apply for asylum due 
to the provisions of section 208(a)(2)(C) of the Act.
    (f) If an asylum applicant is granted adjustment of status to lawful 
permanent resident, the Service may provide written notice to the 
applicant that his or her asylum application will be presumed abandoned 
and dismissed without prejudice, unless the applicant submits a written 
request within 30 days of the notice, that the asylum application be 
adjudicated. If an applicant does not respond within 30 days of the date 
the written notice was sent or served, the Service may presume the 
asylum application abandoned and dismiss it without prejudice.

[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 12986, Mar. 17, 1998; 64 
FR 27875, May 21, 1999]

    Effective Date Note: At 65 FR 76134, Dec. 6, 2000, Sec. 208.14 was 
amended by revising paragraph (b), by redesignating paragraphs (c) 
through (f) as (d) through (g), by adding paragraph (c), by revising 
newly redesignated paragraph (e), and by adding a heading to newly 
redesignated paragraph (g), effective Jan. 5, 2001. For the convenience 
of the user, the revised and added text is set forth as follows:

Sec. 208.14  Approval, denial, referral, or dismissal of application.

                                * * * * *

[[Page 197]]

    (b) Approval by an asylum officer. In any case within the 
jurisdiction of the Office of International Affairs, unless otherwise 
prohibited in Sec. 208.13(c), an asylum officer may grant, in the 
exercise of his or her discretion, asylum to an applicant who qualifies 
as a refugee under section 101(a)(42) of the Act, and whose identity has 
been checked pursuant to section 208(d)(5)(A)(i) of the Act.
    (c) Denial, referral, or dismissal by an asylum officer. If the 
asylum officer does not grant asylum to an applicant after an interview 
conducted in accordance with Sec. 208.9, or if, as provided in 
Sec. 208.10, the applicant is deemed to have waived his or her right to 
an interview or an adjudication by an asylum officer, the asylum officer 
shall deny, refer, or dismiss the application, as follows:
    (1) Inadmissible or deportable aliens. Except as provided in 
paragraph (c)(4) of this section, in the case of an applicant who 
appears to be inadmissible or deportable under section 212(a) or 237(a) 
of the Act, the asylum officer shall refer the application to an 
immigration judge, together with the appropriate charging document, for 
adjudication in removal proceedings (or, where charging documents may 
not be issued, shall dismiss the application).
    (2) Alien in valid status. In the case of an applicant who is 
maintaining valid immigrant, nonimmigrant, or Temporary Protected Status 
at the time the application is decided, the asylum officer shall deny 
the application for asylum.
    (3) Alien with valid parole. If an applicant has been paroled into 
the United States and the parole has not expired or been terminated by 
the Service, the asylum officer shall deny the application for asylum.
    (4) Alien paroled into the United States whose parole has expired or 
is terminated.
    (i) Alien paroled prior to April 1, 1997, or with advance 
authorization for parole. In the case of an applicant who was paroled 
into the United States prior to April 1, 1997, or who, prior to 
departure from the United States, had received an advance authorization 
for parole, the asylum officer shall refer the application, together 
with the appropriate charging documents, to an immigration judge for 
adjudication in removal proceedings if the parole has expired, the 
Service has terminated parole, or the Service is terminating parole 
through issuance of the charging documents, pursuant to 
Sec. 212.5(d)(2)(i) of this chapter.
    (ii) Alien paroled on or after April 1, 1997, without advance 
authorization for parole. In the case of an applicant who is an arriving 
alien or is otherwise subject to removal under Sec. 235.3(b) of this 
chapter, and was paroled into the United States on or after April 1, 
1997, without advance authorization for parole prior to departure from 
the United States, the asylum officer will take the following actions, 
if the parole has expired or been terminated:
    (A) Inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act. 
If the applicant appears inadmissible to the United States under section 
212(a)(6)(C) or 212(a)(7) of the Act and the asylum officer does not 
intend to lodge any additional charges of inadmissibility, the asylum 
officer shall proceed in accordance with Sec. 235.3(b) of this chapter. 
If such applicant is found to have a credible fear of persecution or 
torture based on information elicited from the asylum interview, an 
asylum officer may refer the applicant directly to an immigration judge 
in removal proceedings under section 240 of the Act, without conducting 
a separate credible fear interview pursuant to Sec. 208.30. If such 
applicant is not found to have a credible fear based on information 
elicited at the asylum interview, an asylum officer will conduct a 
credible fear interview and the applicant will be subject to the 
credible fear process specified at Sec. 208.30(b).
    (B) Inadmissible on other grounds. In the case of an applicant who 
was paroled into the United States on or after April 1, 1997, and will 
be charged as inadmissible to the United States under provisions of the 
Act other than, or in addition to, sections 212(a)(6)(C) or 212(a)(7), 
the asylum officer shall refer the application to an immigration judge 
for adjudication in removal proceedings.

                                * * * * *

    (e) Duration. If the applicant is granted asylum, the grant will be 
effective for an indefinite period, subject to termination as provided 
in Sec. 208.24.

                                * * * * *

    (g) Applicants granted lawful permanent residence status. * * *



Sec. 208.15  Definition of ``firm resettlement.''

    An alien is considered to be firmly resettled if, prior to arrival 
in the United States, he or she entered into another nation with, or 
while in that nation received, an offer of permanent resident status, 
citizenship, or some other type of permanent resettlement unless he or 
she establishes:
    (a) That his or her entry into that nation was a necessary 
consequence of his or her flight from persecution, that he or she 
remained in that nation only as long as was necessary to arrange onward 
travel, and that he or she did not

[[Page 198]]

establish significant ties in that nation; or
    (b) That the conditions of his or her residence in that nation were 
so substantially and consciously restricted by the authority of the 
country of refuge that he or she was not in fact resettled. In making 
his or her determination, the Asylum Officer or Immigration Judge shall 
consider the conditions under which other residents of the country live, 
the type of housing made available to the refugee, whether permanent or 
temporary, the types and extent of employment available to the refugee, 
and the extent to which the refugee received permission to hold property 
and to enjoy other rights and privileges, such as travel documentation 
including a right of entry or reentry, education, public relief, or 
naturalization, ordinarily available to others resident in the country.

    Effective Date Note: At 65 FR 76135, Dec. 6, 2000, Sec. 208.15 was 
revised, effective Jan. 5, 2001. For the convenience of the user, the 
revised text is set forth as follows:

Sec. 208.15  Definition of ``firm resettlement.''

    An alien is considered to be firmly resettled if, prior to arrival 
in the United States, he or she entered into another country with, or 
while in that country received, an offer of permanent resident status, 
citizenship, or some other type of permanent resettlement unless he or 
she establishes:
    (a) That his or her entry into that country was a necessary 
consequence of his or her flight from persecution, that he or she 
remained in that country only as long as was necessary to arrange onward 
travel, and that he or she did not establish significant ties in that 
country; or
    (b) That the conditions of his or her residence in that country were 
so substantially and consciously restricted by the authority of the 
country of refuge that he or she was not in fact resettled. In making 
his or her determination, the asylum officer or immigration judge shall 
consider the conditions under which other residents of the country live; 
the type of housing, whether permanent or temporary, made available to 
the refugee; the types and extent of employment available to the 
refugee; and the extent to which the refugee received permission to hold 
property and to enjoy other rights and privileges, such as travel 
documentation that includes a right of entry or reentry, education, 
public relief, or naturalization, ordinarily available to others 
resident in the country.



Sec. 208.16  Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not decide whether the exclusion, deportation, or 
removal of an alien to a country where the alien's life or freedom would 
be threatened must be withheld, except in the case of an alien who is 
otherwise eligible for asylum but is precluded from being granted such 
status due solely to section 207(a)(5) of the Act. In exclusion, 
deportation, or removal proceedings, an immigration judge may adjudicate 
both an asylum claim and a request for withholding of removal whether or 
not asylum is granted.
    (b) Eligibility for withholding of removal under section 241(b)(3) 
of the Act; burden of proof. The burden of proof is on the applicant for 
withholding of removal under section 241(b)(3) of the Act to establish 
that his or her life or freedom would be threatened in the proposed 
country of removal on account of race, religion, nationality, membership 
in a particular social group, or political opinion. The testimony of the 
applicant, if credible, may be sufficient to sustain the burden of proof 
without corroboration. The evidence shall be evaluated as follows:
    (1) The applicant's life or freedom shall be found to be threatened 
if it is more likely than not that he or she would be persecuted on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion.
    (2) If the applicant is determined to have suffered persecution in 
the past such that his or her life or freedom was threatened in the 
proposed country of removal on account of race, religion, nationality, 
membership in a particular social group, or political opinion, it shall 
be presumed that his or her life or freedom would be threatened on 
return to that country unless a preponderance of the evidence 
establishes that conditions in the country have changed to such an 
extent that it is no longer more likely than not that the applicant 
would be so persecuted there.

[[Page 199]]

    (3) In evaluating whether the applicant has sustained the burden of 
proving that his or her life or freedom would be threatened in a 
particular country on account of race, religion, nationality, membership 
in a particular social group, or political opinion, the asylum officer 
or immigration judge shall not require the applicant to provide evidence 
that he or she would be singled out individually for such persecution 
if:
    (i) The applicant establishes that there is a pattern or practice in 
the country of proposed removal of persecution of a group of persons 
similarly situated to the applicant on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; and
    (ii) The applicant establishes his or her own inclusion in and 
identification with such group of persons such that it is more likely 
than not that his or her life or freedom would be threatened upon 
return.
    (c) Eligibility for withholding of removal under the Convention 
Against Torture. (1) For purposes of regulations under Title II of the 
Act, ``Convention Against Torture'' shall refer to the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. 
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture 
contained in Sec. 208.18(a) of this part shall govern all decisions made 
under regulations under Title II of the Act about the applicability of 
Article 3 of the Convention Against Torture.
    (2) The burden of proof is on the applicant for withholding of 
removal under this paragraph to establish that it is more likely than 
not that he or she would be tortured if removed to the proposed country 
of removal. The testimony of the applicant, if credible, may be 
sufficient to sustain the burden of proof without corroboration.
    (3) In assessing whether it is more likely than not that an 
applicant would be tortured in the proposed country of removal, all 
evidence relevant to the possibility of future torture shall be 
considered, including, but not limited to:
    (i) Evidence of past torture inflicted upon the applicant;
    (ii) Evidence that the applicant could relocate to a part of the 
country of removal where he or she is not likely to be tortured;
    (iii) Evidence of gross, flagrant or mass violations of human rights 
within the country of removal, where applicable; and
    (iv) Other relevant information regarding conditions in the country 
of removal.
    (4) In considering an application for withholding of removal under 
the Convention Against Torture, the immigration judge shall first 
determine whether the alien is more likely than not to be tortured in 
the country of removal. If the immigration judge determines that the 
alien is more likely than not to be tortured in the country of removal, 
the alien is entitled to protection under the Convention Against 
Torture. Protection under the Convention Against Torture will be granted 
either in the form of withholding of removal or in the form of deferral 
of removal. An alien entitled to such protection shall be granted 
withholding of removal unless the alien is subject to mandatory denial 
of withholding of removal under paragraphs (d)(2) or (d)(3) of this 
section. If an alien entitled to such protection is subject to mandatory 
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of 
this section, the alien's removal shall be deferred under 
Sec. 208.17(a).
    (d) Approval or denial of application--(1) General. Subject to 
paragraphs (d)(2) and (d)(3) of this section, an application for 
withholding of deportation or removal to a country of proposed removal 
shall be granted if the applicant's eligibility for withholding is 
established pursuant to paragraphs (b) or (c) of this section.
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under the Convention Against Torture shall be 
denied if the applicant

[[Page 200]]

falls within section 241(b)(3)(B) of the Act or, for applications for 
withholding of deportation adjudicated in proceedings commenced prior to 
April 1, 1997, within section 243(h)(2) of the Act as it appeared prior 
to that date. For purposes of section 241(b)(3)(B)(ii) of the Act, or 
section 243(h)(2)(B) of the Act as it appeared prior to April 1, 1997, 
an alien who has been convicted of a particularly serious crime shall be 
considered to constitute a danger to the community. If the evidence 
indicates the applicability of one or more of the grounds for denial of 
withholding enumerated in the Act, the applicant shall have the burden 
of proving by a preponderance of the evidence that such grounds do not 
apply.
    (3) Exception to the prohibition on withholding of deportation in 
certain cases. Section 243(h)(3) of the Act, as added by section 413 of 
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications 
adjudicated in proceedings commenced before April 1, 1997, and in which 
final action had not been taken before April 24, 1996. The discretion 
permitted by that section to override section 243(h)(2) of the Act shall 
be exercised only in the case of an applicant convicted of an aggravated 
felony (or felonies) where he or she was sentenced to an aggregate term 
of imprisonment of less than 5 years and the immigration judge 
determines on an individual basis that the crime (or crimes) of which 
the applicant was convicted does not constitute a particularly serious 
crime. Nevertheless, it shall be presumed that an alien convicted of an 
aggravated felony has been convicted of a particularly serious crime. 
Except in the cases specified in this paragraph, the grounds for denial 
of withholding of deportation in section 243(h)(2) of the Act as it 
appeared prior to April 1, 1997, shall be deemed to comply with the 
Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 
6577.
    (e) Reconsideration of discretionary denial of asylum. In the event 
that an applicant is denied asylum solely in the exercise of discretion, 
and the applicant is subsequently granted withholding of deportation or 
removal under this section, thereby effectively precluding admission of 
the applicant's spouse or minor children following to join him or her, 
the denial of asylum shall be reconsidered. Factors to be considered 
will include the reasons for the denial and reasonable alternatives 
available to the applicant such as reunification with his or her spouse 
or minor children in a third country.
    (f) Removal to third country. Nothing in this section or Sec. 208.17 
shall prevent the Service from removing an alien to a third country 
other than the country to which removal has been withheld or deferred.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76135, Dec. 6, 2000, Sec. 208.16 was 
amended by revising paragraphs (b)(1), (b)(2), and (b)(3), effective 
Jan. 5, 2001. For the convenience of the user, the revised text is set 
forth as follows:

Sec. 208.16  Withholding of removal under section 241(b)(3) of the Act 
          and withholding of removal under the Convention Against 
          Torture.

                                * * * * *

    (b) * * *
    (1) Past threat to life or freedom. (i) If the applicant is 
determined to have suffered past persecution in the proposed country of 
removal on account of race, religion, nationality, membership in a 
particular social group, or political opinion, it shall be presumed that 
the applicant's life or freedom would be threatened in the future in the 
country of removal on the basis of the original claim. This presumption 
may be rebutted if an asylum officer or immigration judge finds by a 
preponderance of the evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant's life or freedom would not be threatened on account of 
any of the five grounds mentioned in this paragraph upon the applicant's 
removal to that country; or
    (B) The applicant could avoid a future threat to his or her life or 
freedom by relocating to another part of the proposed country of removal 
and, under all the circumstances, it would be reasonable to expect the 
applicant to do so.
    (ii) In cases in which the applicant has established past 
persecution, the Service shall bear the burden of establishing by a 
preponderance of the evidence the requirements of paragraphs 
(b)(1)(i)(A) or (b)(1)(i)(B) of this section.
    (iii) If the applicant's fear of future threat to life or freedom is 
unrelated to the past persecution, the applicant bears the burden of 
establishing that it is more likely than not that he or she would suffer 
such harm.

[[Page 201]]

    (2) Future threat to life or freedom. An applicant who has not 
suffered past persecution may demonstrate that his or her life or 
freedom would be threatened in the future in a country if he or she can 
establish that it is more likely than not that he or she would be 
persecuted on account of race, religion, nationality, membership in a 
particular social group, or political opinion upon removal to that 
country. Such an applicant cannot demonstrate that his or her life or 
freedom would be threatened if the asylum officer or immigration judge 
finds that the applicant could avoid a future threat to his or her life 
or freedom by relocating to another part of the proposed country of 
removal and, under all the circumstances, it would be reasonable to 
expect the applicant to do so. In evaluating whether it is more likely 
than not that the applicant's life or freedom would be threatened in a 
particular country on account of race, religion, nationality, membership 
in a particular social group, or political opinion, the asylum officer 
or immigration judge shall not require the applicant to provide evidence 
that he or she would be singled out individually for such persecution 
if:
    (i) The applicant establishes that in that country there is a 
pattern or practice of persecution of a group of persons similarly 
situated to the applicant on account of race, religion, nationality, 
membership in a particular social group, or political opinion; and
    (ii) The applicant establishes his or her own inclusion in and 
identification with such group of persons such that it is more likely 
than not that his or her life or freedom would be threatened upon return 
to that country.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1) and (b)(2) of this section, 
adjudicators should consider, among other things, whether the applicant 
would face other serious harm in the place of suggested relocation; any 
ongoing civil strife within the country; administrative, economic, or 
judicial infrastructure; geographical limitations; and social and 
cultural constraints, such as age, gender, health, and social and 
familial ties. These factors may or may not be relevant, depending on 
all the circumstances of the case, and are not necessarily determinative 
of whether it would be reasonable for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it 
would not be reasonable for him or her to relocate, unless the 
persecutor is a government or is government-sponsored.
    (ii) In cases in which the persecutor is a government or is 
government-sponsored, or the applicant has established persecution in 
the past, it shall be presumed that internal relocation would not be 
reasonable, unless the Service establishes by a preponderance of the 
evidence that under all the circumstances it would be reasonable for the 
applicant to relocate.

                                * * * * *



Sec. 208.17  Deferral of removal under the Convention Against Torture.

    (a) Grant of deferral of removal. An alien who: has been ordered 
removed; has been found under Sec. 208.16(c)(3) to be entitled to 
protection under the Convention Against Torture; and is subject to the 
provisions for mandatory denial of withholding of removal under 
Sec. 208.16(d)(2) or (d)(3), shall be granted deferral of removal to the 
country where he or she is more likely than not to be tortured.
    (b) Notice to alien. (1) After an immigration judge orders an alien 
described in paragraph (a) of this section removed, the immigration 
judge shall inform the alien that his or her removal to the country 
where he or she is more likely than not to be tortured shall be deferred 
until such time as the deferral is terminated under this section. The 
immigration judge shall inform the alien that deferral of removal:
    (i) Does not confer upon the alien any lawful or permanent 
immigration status in the United States;
    (ii) Will not necessarily result in the alien being released from 
the custody of the Service if the alien is subject to such custody;
    (iii) Is effective only until terminated; and
    (iv) Is subject to review and termination if the immigration judge 
determines that it is not likely that the alien would be tortured in the 
country to which removal has been deferred, or if the alien requests 
that deferral be terminated.
    (2) The immigration judge shall also inform the alien that removal 
has been deferred only to the country in which it has been determined 
that the alien is likely to be tortured, and that the alien may be 
removed at any time to another country where he or she is not likely to 
be tortured.
    (c) Detention of an alien granted deferral of removal under this 
section. Nothing in this section shall alter the authority of the 
Service to detain an alien whose removal has been deferred under this

[[Page 202]]

section and who is otherwise subject to detention. In the case of such 
an alien, decisions about the alien's release shall be made according to 
part 241 of this chapter.
    (d) Termination of deferral of removal. (1) At any time while 
deferral of removal is in effect, the INS District Counsel for the 
District with jurisdiction over an alien whose removal has been deferred 
under paragraph (a) of this section may file a motion with the 
Immigration Court having administrative control pursuant to Sec. 3.11 of 
this chapter to schedule a hearing to consider whether deferral of 
removal should be terminated. The Service motion shall be granted if it 
is accompanied by evidence that is relevant to the possibility that the 
alien would be tortured in the country to which removal has been 
deferred and that was not presented at the previous hearing. The Service 
motion shall not be subject to the requirements for reopening in 
Secs. 3.2 and 3.23 of this chapter.
    (2) The Immigration Court shall provide notice to the alien and the 
Service of the time, place, and date of the termination hearing. Such 
notice shall inform the alien that the alien may supplement the 
information in his or her initial application for withholding of removal 
under the Convention Against Torture and shall provide that the alien 
must submit any such supplemental information within 10 calendar days of 
service of such notice (or 13 calendar days if service of such notice 
was by mail). At the expiration of this 10 or 13 day period, the 
Immigration Court shall forward a copy of the original application, and 
any supplemental information the alien or the Service has submitted, to 
the Department of State, together with notice to the Department of State 
of the time, place and date of the termination hearing. At its option, 
the Department of State may provide comments on the case, according to 
the provisions of Sec. 208.11 of this part.
    (3) The immigration judge shall conduct a hearing and make a de novo 
determination, based on the record of proceeding and initial application 
in addition to any new evidence submitted by the Service or the alien, 
as to whether the alien is more likely than not to be tortured in the 
country to which removal has been deferred. This determination shall be 
made under the standards for eligibility set out in Sec. 208.16(c). The 
burden is on the alien to establish that it is more likely than not that 
he or she would be tortured in the country to which removal has been 
deferred.
    (4) If the immigration judge determines that the alien is more 
likely than not to be tortured in the country to which removal has been 
deferred, the order of deferral shall remain in place. If the 
immigration judge determines that the alien has not established that he 
or she is more likely than not to be tortured in the country to which 
removal has been deferred, the deferral of removal shall be terminated 
and the alien may be removed to that country. Appeal of the immigration 
judge's decision shall lie to the Board.
    (e) Termination at the request of the alien. (1) At any time while 
deferral of removal is in effect, the alien may make a written request 
to the Immigration Court having administrative control pursuant to 
Sec. 3.11 of this chapter to terminate the deferral order. If satisfied 
on the basis of the written submission that the alien's request is 
knowing and voluntary, the immigration judge shall terminate the order 
of deferral and the alien may be removed.
    (2) If necessary the immigration judge may calendar a hearing for 
the sole purpose of determining whether the alien's request is knowing 
and voluntary. If the immigration judge determines that the alien's 
request is knowing and voluntary, the order of deferral shall be 
terminated. If the immigration judge determines that the alien's request 
is not knowing and voluntary, the alien's request shall not serve as the 
basis for terminating the order of deferral.
    (f) Termination pursuant to Sec. 208.18(c). At any time while 
deferral of removal is in effect, the Attorney General may determine 
whether deferral should be terminated based on diplomatic assurances 
forwarded by the Secretary of State pursuant to the procedures in 
Sec. 208.18(c).

[64 FR 8489, Feb. 19, 1999]

[[Page 203]]



Sec. 208.18  Implementation of the Convention Against Torture.

    (a) Definitions. The definitions in this subsection incorporate the 
definition of torture contained in Article 1 of the Convention Against 
Torture, subject to the reservations, understandings, declarations, and 
provisos contained in the United States Senate resolution of 
ratification of the Convention.
    (1) Torture is defined as any act by which severe pain or suffering, 
whether physical or mental, is intentionally inflicted on a person for 
such purposes as obtaining from him or her or a third person information 
or a confession, punishing him or her for an act he or she or a third 
person has committed or is suspected of having committed, or 
intimidating or coercing him or her or a third person, or for any reason 
based on discrimination of any kind, when such pain or suffering is 
inflicted by or at the instigation of or with the consent or 
acquiescence of a public official or other person acting in an official 
capacity.
    (2) Torture is an extreme form of cruel and inhuman treatment and 
does not include lesser forms of cruel, inhuman or degrading treatment 
or punishment that do not amount to torture.
    (3) Torture does not include pain or suffering arising only from, 
inherent in or incidental to lawful sanctions. Lawful sanctions include 
judicially imposed sanctions and other enforcement actions authorized by 
law, including the death penalty, but do not include sanctions that 
defeat the object and purpose of the Convention Against Torture to 
prohibit torture.
    (4) In order to constitute torture, mental pain or suffering must be 
prolonged mental harm caused by or resulting from:
    (i) The intentional infliction or threatened infliction of severe 
physical pain or suffering;
    (ii) The administration or application, or threatened administration 
or application, of mind altering substances or other procedures 
calculated to disrupt profoundly the senses or the personality;
    (iii) The threat of imminent death; or
    (iv) The threat that another person will imminently be subjected to 
death, severe physical pain or suffering, or the administration or 
application of mind altering substances or other procedures calculated 
to disrupt profoundly the sense or personality.
    (5) In order to constitute torture, an act must be specifically 
intended to inflict severe physical or mental pain or suffering. An act 
that results in unanticipated or unintended severity of pain and 
suffering is not torture.
    (6) In order to constitute torture an act must be directed against a 
person in the offender's custody or physical control.
    (7) Acquiescence of a public official requires that the public 
official, prior to the activity constituting torture, have awareness of 
such activity and thereafter breach his or her legal responsibility to 
intervene to prevent such activity.
    (8) Noncompliance with applicable legal procedural standards does 
not per se constitute torture.
    (b) Applicability of Secs. 208.16(c) and 208.17(a)--(1) Aliens in 
proceedings on or after March 22, 1999. An alien who is in exclusion, 
deportation, or removal proceedings on or after March 22, 1999 may apply 
for withholding of removal under Sec. 208.16(c), and, if applicable, may 
be considered for deferral of removal under Sec. 208.17(a).
    (2) Aliens who were ordered removed, or whose removal orders became 
final, before March 22, 1999. An alien under a final order of 
deportation, exclusion, or removal that became final prior to March 22, 
1999 may move to reopen proceedings for the sole purpose of seeking 
protection under Sec. 208.16(c). Such motions shall be governed by 
Secs. 3.23 and 3.2 of this chapter, except that the time and numerical 
limitations on motions to reopen shall not apply and the alien shall not 
be required to demonstrate that the evidence sought to be offered was 
unavailable and could not have been discovered or presented at the 
former hearing. The motion to reopen shall not be granted unless:
    (i) The motion is filed within June 21, 1999; and
    (ii) The evidence sought to be offered establishes a prima facie 
case that the applicant's removal must be withheld or deferred under 
Secs. 208.16(c) or 208.17(a).

[[Page 204]]

    (3) Aliens who, on March 22, 1999, have requests pending with the 
Service for protection under Article 3 of the Convention Against 
Torture.
    (i) Except as otherwise provided, after March 22, 1999, the Service 
will not:
    (A) Consider, under its pre-regulatory administrative policy to 
ensure compliance with the Convention Against Torture, whether Article 3 
of that Convention prohibits the removal of an alien to a particular 
country, or
    (B) Stay the removal of an alien based on a request filed with the 
Service for protection under Article 3 of that Convention.
    (ii) For each alien who, on or before March 22, 1999, filed a 
request with the Service for protection under Article 3 of the 
Convention Against Torture, and whose request has not been finally 
decided by the Service, the Service shall provide written notice that, 
after March 22, 1999, consideration for protection under Article 3 can 
be obtained only through the provisions of this rule.
    (A) The notice shall inform an alien who is under an order of 
removal issued by EOIR that, in order to seek consideration of a claim 
under Secs. 208.16(c) or 208.17(a), such an alien must file a motion to 
reopen with the immigration court or the Board of Immigration Appeals. 
This notice shall be accompanied by a stay of removal, effective until 
30 days after service of the notice on the alien. A motion to reopen 
filed under this paragraph for the limited purpose of asserting a claim 
under Secs. 208.16(c) or 208.17(a) shall not be subject to the 
requirements for reopening in Secs. 3.2 and 3.23 of this chapter. Such a 
motion shall be granted if it is accompanied by a copy of the notice 
described in paragraph (b)(3)(ii) or by other convincing evidence that 
the alien had a request pending with the Service for protection under 
Article 3 of the Convention Against Torture on March 22, 1999. The 
filing of such a motion shall extend the stay of removal during the 
pendency of the adjudication of this motion.
    (B) The notice shall inform an alien who is under an administrative 
order of removal issued by the Service under section 238(b) of the Act 
or an exclusion, deportation, or removal order reinstated by the Service 
under section 241(a)(5) of the Act that the alien's claim to withholding 
of removal under Sec. 208.16(c) or deferral of removal under 
Sec. 208.17(a) will be considered under Sec. 208.31.
    (C) The notice shall inform an alien who is under an administrative 
order of removal issued by the Service under section 235(c) of the Act 
that the alien's claim to protection under the Convention Against 
Torture will be decided by the Service as provided in Sec. 208.18(d) and 
235.8(b)(4) and will not be considered under the provisions of this part 
relating to consideration or review by an immigration judge, the Board 
of Immigration Appeals, or an asylum officer.
    (4) Aliens whose claims to protection under the Convention Against 
Torture were finally decided by the Service prior to March 22, 1999. 
Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3) 
of this section do not apply to cases in which, prior to March 22, 1999, 
the Service has made a final administrative determination about the 
applicability of Article 3 of the Convention Against Torture to the case 
of an alien who filed a request with the Service for protection under 
Article 3. If, prior to March 22, 1999, the Service determined that an 
applicant cannot be removed consistent with the Convention Against 
Torture, the alien shall be considered to have been granted withholding 
of removal under Sec. 208.16(c), unless the alien is subject to 
mandatory denial of withholding of removal under Sec. 208.16(d)(2) or 
(d)(3), in which case the alien will be considered to have been granted 
deferral of removal under 208.17(a). If, prior to March 22, 1999, the 
Service determined that an alien can be removed consistent with the 
Convention Against Torture, the alien will be considered to have been 
finally denied withholding of removal under Sec. 208.16(c) and deferral 
of removal under Sec. 208.17(a).
    (c) Diplomatic assurances against torture obtained by the Secretary 
of State. (1) The Secretary of State may forward to the Attorney General 
assurances that the Secretary has obtained from the government of a 
specific country that an alien would not be tortured

[[Page 205]]

there if the alien were removed to that country.
    (2) If the Secretary of State forwards assurances described in 
paragraph (c)(1) of this section to the Attorney General for 
consideration by the Attorney General or her delegates under this 
paragraph, the Attorney General shall determine, in consultation with 
the Secretary of State, whether the assurances are sufficiently reliable 
to allow the alien's removal to that country consistent with Article 3 
of the Convention Against Torture. The Attorney General's authority 
under this paragraph may be exercised by the Deputy Attorney General or 
by the Commissioner, Immigration and Naturalization Service, but may not 
be further delegated.
    (3) Once assurances are provided under paragraph (c)(2) of this 
section, the alien's claim for protection under the Convention Against 
Torture shall not be considered further by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer.
    (d) Cases involving aliens ordered removed under section 235(c) of 
the Act. With respect to an alien terrorist or other alien subject to 
administrative removal under section 235(c) of the Act who requests 
protection under Article 3 of the Convention Against Torture, the 
Service will assess the applicability of Article 3 through the removal 
process to ensure that a removal order will not be executed under 
circumstances that would violate the obligations of the United States 
under Article 3. In such cases, the provisions of Part 208 relating to 
consideration or review by an immigration judge, the Board of 
Immigration Appeals, or an asylum officer shall not apply.
    (e) Judicial review of claims for protection from removal under 
Article 3 of the Convention Against Torture. (1) Pursuant to the 
provisions of section 2242(d) of the Foreign Affairs Reform and 
Restructuring Act of 1998, there shall be no judicial appeal or review 
of any action, decision, or claim raised under the Convention or that 
section, except as part of the review of a final order of removal 
pursuant to section 242 of the Act; provided however, that any appeal or 
petition regarding an action, decision, or claim under the Convention or 
under section 2242 of the Foreign Affairs Reform and Restructuring Act 
of 1998 shall not be deemed to include or authorize the consideration of 
any administrative order or decision, or portion thereof, the appeal or 
review of which is restricted or prohibited by the Act.
    (2) Except as otherwise expressly provided, nothing in this 
paragraph shall be construed to create a private right of action or to 
authorize the consideration or issuance of administrative or judicial 
relief.

[64 FR 8490, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]



Sec. 208.19  Determining if an asylum application is frivolous.

    For applications filed on or after April 1, 1997, an applicant is 
subject to the provisions of section 208(d)(6) of the Act only if a 
final order by an immigration judge or the Board of Immigration Appeals 
specifically finds that the alien knowingly filed a frivolous asylum 
application. For purposes of this section, an asylum application is 
frivolous if any of its material elements is deliberately fabricated. 
Such finding shall only be made if the immigration judge or the Board is 
satisfied that the applicant, during the course of the proceedings, has 
had sufficient opportunity to account for any discrepancies or 
implausible aspects of the claim. For purposes of this section, a 
finding that an alien filed a frivolous asylum application shall not 
preclude the alien from seeking withholding of removal.

[64 FR 8492, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76136, Dec. 6, 2000, Sec. 208.19 was 
redesignated as Sec. 208.20 and a new Sec. 208.19 was added, effective 
Jan. 5, 2001. For the convenience of the user, the added text is set 
forth as follows:

Sec. 208.19  Decisions.

    The decision of an asylum officer to grant or to deny asylum or to 
refer an asylum application, in accordance with Sec. 208.14(b) or (c), 
shall be communicated in writing to the applicant. Pursuant to 
Sec. 208.9(d), an applicant must appear in person to receive and to 
acknowledge receipt of the decision to grant or deny asylum, or to refer 
an asylum application unless, in the discretion of the asylum office 
director, service by mail is appropriate. A letter communicating denial 
of asylum or referral of the application shall

[[Page 206]]

state the basis for denial or referral and include an assessment of the 
applicant's credibility.



Sec. 208.20  Admission of the asylee's spouse and children.

    (a) Eligibility. A spouse, as defined in section 101(a)(35) of the 
Act, 8 U.S.C. 1101(a)(35), or child, as defined in section 101(b)(1)(A), 
(B), (C), (D), (E), or (F) of the Act, also may be granted asylum if 
accompanying or following to join the principal alien who was granted 
asylum, unless it is determined that:
    (1) The spouse or child ordered, incited, assisted, or otherwise 
participated in the persecution of any persons on account of race, 
religion, nationality, membership in a particular social group, or 
political opinion;
    (2) The spouse or child, having been convicted by a final judgment 
of a particularly serious crime in the United States, constitutes a 
danger to the community of the United States;
    (3) The spouse or child has been convicted of an aggravated felony, 
as defined in section 101(a)(43) of the Act; or
    (4) There are reasonable grounds for regarding the spouse or child a 
danger to the security of the United States.
    (b) Relationship. The relationship of spouse and child as defined in 
sections 101(a)(35) and 101(b)(1) of the Act must have existed at the 
time the principal alien's asylum application was approved and must 
continue to exist at the time of filing for accompanying or following-
to-join benefits and at the time of the spouse or child's subsequent 
admission to the United States. If the asylee proves that the asylee is 
the parent of a child who was born after asylum was granted, but who was 
in utero on the date of the asylum grant, the child shall be eligible to 
accompany or follow-to-join the asylee. The child's mother, if not the 
principal asylee, shall not be eligible to accompany or follow-to-join 
the principal asylee unless the child's mother was the principal 
asylee's spouse on the date the principal asylee was granted asylum.
    (c) Spouse or child in the United States. When a spouse or child of 
an alien granted asylum is in the United States, but was not included in 
the asylee's application, the asylee may request accompanying or 
following-to-join benefits for his/her spouse or child by filing for 
each qualifying family member a separate Form I-730, Refugee/Asylee 
Relative Petition, and supporting evidence, with the designated Service 
office, regardless of the status of that spouse or child in the United 
States. A recent photograph of each derivative must accompany the Form 
I-730. The photograph must clearly identify the derivative, and will be 
made part of the derivative's immigration record for identification 
purposes. Additionally, a separate Form I-730 must be filed by the 
asylee for each qualifying family member before February 28, 2000, or 
within 2 years of the date in which he/she was granted asylum status, 
whichever is later, unless it is determined by the Service that this 
period should be extended for humanitarian reasons. Upon approval of the 
Form I-730, the Service will notify the asylee of such approval on Form 
I-797, Notice of Action. Employment will be authorized incident to 
status. To demonstrate employment authorization, the Service will issue 
a Form I-94, Arrival-Departure Record, which also reflects the 
derivative's current status as an asylee, or the derivative may apply 
under Sec. 274a.12(a) of this chapter, using Form I-765, Application for 
Employment Authorization, and a copy of the Form I-797. The approval of 
the Form I-730 shall remain valid for the duration of the relationship 
to the asylee and, in the case of a child, while the child is under 21 
years of age and unmarried, provided also that the principal's status 
has not been revoked. However, the approved Form I-730 will cease to 
confer immigration benefits after it has been used by the beneficiary 
for admission to the United States as a derivative of an asylee.
    (d) Spouse or child outside the United States. When a spouse or 
child of an alien granted asylum is outside the United States, the 
asylee may request accompanying or following-to-join benefits for his/
her spouse or child(ren) by filing a separate Form I-730 for each 
qualifying family member with the designated Service office, setting 
forth the full name, relationship, date and place of birth, and current 
location of each such person. A recent photograph of each derivative 
must accompany the

[[Page 207]]

Form I-730. The photograph must clearly identify the derivative, and 
will be made part of the derivative's immigration record for 
identification purposes. A separate Form I-730 for each qualifying 
family member must be filed before February 28, 2000, or within 2 years 
of the date in which the asylee was granted asylum status, whichever is 
later, unless the Service determines that the filing period should be 
extended for humanitarian reasons. When the Form I-730 is approved, the 
Service will notify the asylee of such approval on Form I-797. The 
approved Form I-730 shall be forwarded by the Service to the Department 
of State for delivery to the American Embassy or Consulate having 
jurisdiction over the area in which the asylee's spouse or child is 
located. The approval of the Form I-730 shall remain valid for the 
duration of the relationship to the asylee and, in the case of a child, 
while the child is under 21 years of age and unmarried, provided also 
that the principal's status has not been revoked. However, the approved 
Form I-730 will cease to confer immigration benefits after it has been 
used by the beneficiary for admission to the United States as a 
derivative of an asylee.
    (e) Denial. If the spouse or child is found to be ineligible for the 
status accorded under section 208(c) of the Act, a written notice 
stating the basis for denial shall be forwarded to the principal alien. 
No appeal shall lie from this decision.
    (f) Burden of proof. To establish the claimed relationship of spouse 
or child as defined in sections 101(a)(35) and 101(b)(1) of the Act, 
evidence must be submitted with the request as set forth in part 204 of 
this chapter. Where possible this will consist of the documents 
specified in Sec. 204.2 (a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), 
and (d)(5) of this chapter. The burden of proof is on the principal 
alien to establish by a preponderance of the evidence that any person on 
whose behalf he or she is making a request under this section is an 
eligible spouse or child.
    (g) Duration. The spouse or child qualifying under section 208(c) of 
the Act shall be granted asylum for an indefinite period unless the 
principal's status is revoked.

[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 3796, Jan. 27, 1998. 
Redesignated at 64 FR 8490, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76136, Dec. 6, 2000, Sec. 208.20 was 
redesignated as Sec. 208.21 and then amended by revising paragraph (a), 
effective Jan. 5, 2001. For the convenience of the user, the revised 
text is set forth as follows:

Sec. 208.21  Admission of the asylee's spouse and children.

    (a) Eligibility. In accordance with section 208(b)(3) of the Act, a 
spouse, as defined in section 101(a)(35) of the Act, 8 U.S.C. 
1101(a)(35), or child, as defined in section 101(b)(1) of the Act, also 
may be granted asylum if accompanying, or following to join, the 
principal alien who was granted asylum, unless it is determined that the 
spouse or child is ineligible for asylum under section 208(b)(2)(A)(i), 
(ii), (iii), (iv) or (v) of the Act for applications filed on or after 
April 1, 1997, or under Sec. 208.13(c)(2)(i)(A), (C), (D), (E), or (F) 
for applications filed before April 1, 1997.

                                * * * * *



Sec. 208.21  Effect on exclusion, deportation, and removal proceedings.

    (a) An alien who has been granted asylum may not be deported or 
removed unless his or her asylum status is terminated pursuant to 
Sec. 208.23 of this part. An alien in exclusion, deportation, or removal 
proceedings who is granted withholding of removal or deportation or 
deferral of removal may not be deported or removed to the country to 
which his or her deportation or removal is ordered withheld or deferred 
unless the withholding order is terminated pursuant to Sec. 208.23 or 
deferral is terminated pursuant to Sec. 208.17(d) or (e).
    (b) When an alien's asylum status or withholding of removal or 
deportation is terminated under this part, the Service shall initiate 
removal proceedings under section 235 or 240 of the Act, as appropriate, 
if the alien is not already in exclusion, deportation, or removal 
proceedings or subject to a final order of removal. Removal proceedings 
may also be in conjunction with a termination hearing scheduled under 
Sec. 208.23(e).

[64 FR 8492, Feb. 19, 1999]

[[Page 208]]


    Effective Date Note: At 65 FR 76136, Dec. 6, 2000, Sec. 208.21 was 
redesignated as Sec. 208.22 and then revised, effective Jan. 5, 2001. 
For the convenience of the user, the revised text is set forth as 
follows:

Sec. 208.22  Effect on exclusion, deportation, and removal proceedings.

    An alien who has been granted asylum may not be deported or removed 
unless his or her asylum status is terminated pursuant to Sec. 208.24. 
An alien in exclusion, deportation, or removal proceedings who is 
granted withholding of removal or deportation, or deferral of removal, 
may not be deported or removed to the country to which his or her 
deportation or removal is ordered withheld or deferred unless the 
withholding order is terminated pursuant to Sec. 208.24 or deferral is 
terminated pursuant to Sec. 208.17(d) or (e).



Sec. 208.22  Restoration of status.

    An alien who was maintaining his or her nonimmigrant status at the 
time of filing an asylum application and has such application denied may 
continue in or be restored to that status, if it has not expired.

[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76136, Dec. 6, 2000, Sec. 208.22 was 
redesignated as Sec. 208.23, effective Jan. 5, 2001.



Sec. 208.23  Termination of asylum or withholding of removal or deportation.

    (a) Termination of asylum by the Service. Except as provided in 
paragraph (e) of this section, an asylum officer may terminate a grant 
of asylum made under the jurisdiction of an asylum officer or a district 
director if following an interview, the asylum officer determines that:
    (1) There is a showing of fraud in the alien's application such that 
he or she was not eligible for asylum at the time it was granted;
    (2) As to applications filed on or after April 1, 1997, one or more 
of the conditions described in section 208(c)(2) of the Act exist; or
    (3) As to applications filed before April 1, 1997, the alien no 
longer has a well-founded fear of persecution upon return due to a 
change of country conditions in the alien's country of nationality or 
habitual residence or the alien has committed any act that would have 
been grounds for denial of asylum under Sec. 208.13(c)(2).
    (b) Termination of withholding of deportation or removal by the 
Service. Except as provided in paragraph (e) of this section, an asylum 
officer may terminate a grant of withholding of deportation or removal 
made under the jurisdiction of an asylum officer or a district director 
if the asylum officer determines, following an interview, that:
    (1) The alien is no longer entitled to withholding of deportation or 
removal due to a change of conditions in the country to which removal 
was withheld;
    (2) There is a showing of fraud in the alien's application such that 
the alien was not eligible for withholding of removal at the time it was 
granted;
    (3) The alien has committed any other act that would have been 
grounds for denial of withholding of removal under section 241(b)(3)(B) 
of the Act had it occurred prior to the grant of withholding of removal; 
or
    (4) For applications filed in proceedings commenced before April 1, 
1997, the alien has committed any act that would have been grounds for 
denial of withholding of deportation under section 243(h)(2) of the Act.
    (c) Procedure. Prior to the termination of a grant of asylum or 
withholding of deportation or removal, the alien shall be given notice 
of intent to terminate, with the reasons therefor, at least 30 days 
prior to the interview specified in paragraph (a) of this section before 
an asylum officer. The alien shall be provided the opportunity to 
present evidence showing that he or she is still eligible for asylum or 
withholding of deportation or removal. If the asylum officer determines 
that the alien is no longer eligible for asylum or withholding of 
deportation or removal, the alien shall be given written notice that 
asylum status or withholding of deportation or removal and any 
employment authorization issued pursuant thereto, are terminated.
    (d) Termination of derivative status. The termination of asylum 
status for a person who was the principal applicant shall result in 
termination of the asylum status of a spouse or child whose

[[Page 209]]

status was based on the asylum application of the principal. Such 
termination shall not preclude the spouse or child of such alien from 
separately asserting an asylum or withholding of deportation or removal 
claim.
    (e) Termination of asylum or withholding of deportation or removal 
by the Executive Office for Immigration Review. An immigration judge or 
the Board of Immigration Appeals may reopen a case pursuant to Sec. 3.2 
or Sec. 3.23 of this chapter for the purpose of terminating a grant of 
asylum or withholding of deportation or removal made under the 
jurisdiction of an immigration judge. In such a reopened proceeding, the 
Service must establish, by a preponderance of evidence, one or more of 
the grounds set forth in paragraphs (a) or (b) of this section. In 
addition, an immigration judge may terminate a grant of asylum or 
withholding of deportation or removal made under the jurisdiction of the 
Service at any time after the alien has been provided a notice of intent 
to terminate by the Service. Any termination under this paragraph may 
occur in conjunction with an exclusion, deportation or removal 
proceeding.
    (f) Termination of asylum for arriving aliens. If the Service 
determines that an applicant for admission who had previously been 
granted asylum in the United States falls within conditions set forth in 
section 208(c)(2) of the Act and is inadmissible, the Service shall 
issue a notice of intent to terminate asylum and initiate removal 
proceedings under section 240 of the Act. The alien shall present his or 
her response to the intent to terminate during proceedings before the 
immigration judge.

[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76136, Dec. 6, 2000, Sec. 208.23 was 
redesignated as Sec. 208.24 and then amended by revising paragraph 
(b)(1), by redesignating paragraphs (e) and (f) as (f) and (g) and then 
revising them, and by adding a new paragraph (e), effective Jan. 5, 
2001. For the convenience of the user, the revised and added text is set 
forth as follows:

Sec. 208.24  Termination of asylum or withholding of removal or 
          deportation.

                                * * * * *

    (b) * * *
    (1) The alien is no longer entitled to withholding of deportation or 
removal because, owing to a fundamental change in circumstances relating 
to the original claim, the alien's life or freedom no longer would be 
threatened on account of race, religion, nationality, membership in a 
particular social group, or political opinion in the country from which 
deportation or removal was withheld.

                                * * * * *

    (e) Removal proceedings. When an alien's asylum status or 
withholding of removal or deportation is terminated under this section, 
the Service shall initiate removal proceedings, as appropriate, if the 
alien is not already in exclusion, deportation, or removal proceedings. 
Removal proceedings may take place in conjunction with a termination 
hearing scheduled under Sec. 208.24(f).
    (f) Termination of asylum, or withholding of deportation or removal, 
by an immigration judge or the Board of Immigration Appeals. An 
immigration judge or the Board of Immigration Appeals may reopen a case 
pursuant to Sec. 3.2 or Sec. 3.23 of this chapter for the purpose of 
terminating a grant of asylum, or a withholding of deportation or 
removal. In such a reopened proceeding, the Service must establish, by a 
preponderance of evidence, one or more of the grounds set forth in 
paragraphs (a) or (b) of this section. In addition, an immigration judge 
may terminate a grant of asylum, or a withholding of deportation or 
removal, made under the jurisdiction of the Service at any time after 
the alien has been provided a notice of intent to terminate by the 
Service. Any termination under this paragraph may occur in conjunction 
with an exclusion, deportation, or removal proceeding.
    (g) Termination of asylum for arriving aliens. If the Service 
determines that an applicant for admission who had previously been 
granted asylum in the United States falls within conditions set forth in 
Sec. 208.24 and is inadmissible, the Service shall issue a notice of 
intent to terminate asylum and initiate removal proceedings under 
section 240 of the Act. The alien shall present his or her response to 
the intent to terminate during proceedings before the immigration judge.

[[Page 210]]



Secs. 208.24--208.29  [Reserved]



                 Subpart B--Credible Fear of Persecution



Sec. 208.30  Credible fear determinations involving stowaways and applicants for admission found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act.

    (a) Jurisdiction. The provisions of this subpart apply to aliens 
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to 
section 235(b)(1)(B) of the Act, the Service has exclusive jurisdiction 
to make credible fear determinations, and the Executive Office for 
Immigration Review has exclusive jurisdiction to review such 
determinations. Except as otherwise provided in this subpart, paragraphs 
(b) through (e) of this section are the exclusive procedures applicable 
to credible fear interviews, determinations, and review under section 
235(b)(1)(B) of the Act.
    (b) Interview and procedure. The asylum officer, as defined in 
section 235(b)(1)(E) of the Act, will conduct the interview in a 
nonadversarial manner, separate and apart from the general public. At 
the time of the interview, the asylum officer shall verify that the 
alien has received Form M-444, Information about Credible Fear Interview 
in Expedited Removal Cases. The officer shall also determine that the 
alien has an understanding of the credible fear determination process. 
The alien may be required to register his or her identity electronically 
or through any other means designated by the Attorney General. The alien 
may consult with a person or persons of the alien's choosing prior to 
the interview or any review thereof, and may present other evidence, if 
available. Such consultation shall be at no expense to the Government 
and shall not unreasonably delay the process. Any person or persons with 
whom the alien chooses to consult may be present at the interview and 
may be permitted, in the discretion of the asylum officer, to present a 
statement at the end of the interview. The asylum officer, in his or her 
discretion, may place reasonable limits on the number of such persons 
who may be present at the interview and on the length of statement or 
statements made. If the alien is unable to proceed effectively in 
English, and if the asylum officer is unable to proceed competently in a 
language chosen by the alien, the asylum officer shall arrange for the 
assistance of an interpreter in conducting the interview. The 
interpreter may not be a representative or employee of the applicant's 
country of nationality or, if the applicant is stateless, the 
applicant's country of last habitual residence. The asylum officer shall 
create a summary of the material facts as stated by the applicant. At 
the conclusion of the interview, the officer shall review the summary 
with the alien and provide the alien with an opportunity to correct 
errors therein. The asylum officer shall create a written record of his 
or her determination, including a summary of the material facts as 
stated by the applicant, any additional facts relied on by the officer, 
and the officer's determination of whether, in light of such facts, the 
alien has established a credible fear of persecution or torture. The 
decision shall not become final until reviewed by a supervisory asylum 
officer.
    (c) Authority. Asylum officers conducting credible fear interviews 
shall have the authorities described in Sec. 208.9(c).
    (d) Referral for an asylum hearing. If an alien, other than an alien 
stowaway, is found to have a credible fear of persecution or torture, 
the asylum officer will so inform the alien and issue a Form I-862, 
Notice to Appear, for full consideration of the asylum and withholding 
of removal claim in proceedings under section 240 of the Act. Parole of 
the alien may only be considered in accordance with section 212(d)(5) of 
the Act and Sec. 212.5 of this chapter. If an alien stowaway is found to 
have a credible fear of persecution or torture, the asylum officer will 
so inform the alien and issue a Form I-863, Notice to Referral to 
Immigration Judge, for full consideration of the asylum and withholding 
of removal claim in proceedings under Sec. 208.2(b)(1).
    (e) Removal of aliens with no credible fear of persecution or 
torture. If an alien is found not to have a credible fear of

[[Page 211]]

persecution or torture, the asylum officer shall provide the alien with 
a written notice of decision and inquire whether the alien wishes to 
have an immigration judge review the negative decision, using Form I-
869, Record of Negative Credible Fear Finding and Request for Review by 
Immigration Judge, on which the alien shall indicate whether he or she 
desires such review. If the alien is not a stowaway, the officer shall 
also order the alien removed and issue a Form I-860, Notice and Order of 
Expedited Removal. If the alien is a stowaway and the alien does not 
request a review by an immigration judge, the asylum officer shall also 
refer the alien to the district director for completion of removal 
proceedings in accordance with section 235(a)(2) of the Act.
    (f) Review by immigration judge. The asylum officer's negative 
decision regarding credible fear shall be subject to review by an 
immigration judge upon the applicant's request, in accordance with 
section 235(b)(1)(B)(iii)(III) of the Act. If the alien requests such 
review, the asylum officer shall arrange for the detention of the alien 
and serve him or her with a Form I-863, Notice of Referral to 
Immigration Judge. The record of determination, including copies of the 
Form I-863, the asylum officer's notes, the summary of the material 
facts, and other materials upon which the determination was based shall 
be provided to the immigration judge with the negative determination. 
Upon review of the asylum officer's negative credible fear 
determination:
    (1) If the immigration judge concurs with the determination of the 
asylum officer that the alien does not have a credible fear of 
persecution or torture, the case shall be returned to the Service for 
removal of the alien. The immigration judge's decision is final and may 
not be appealed.
    (2) If the immigration judge finds that the alien, other than an 
alien stowaway, possesses a credible fear of persecution or torture, the 
immigration judge shall vacate the order of the asylum officer issued on 
Form I-860 and the Service may commence removal proceedings under 
section 240 of the Act, during which time the alien may file an 
application for asylum and withholding of removal in accordance with 
Sec. 208.4(b)(3)(i).
    (3) If the immigration judge finds that an alien stowaway possesses 
a credible fear of persecution or torture, the alien shall be allowed to 
file an application for asylum and withholding of removal before the 
immigration judge in accordance with Sec. 208.4(b)(3)(iii). The 
immigration judge shall decide the application as provided in that 
section. Such decision may be appealed by either the stowaway or the 
Service to the Board of Immigration Appeals. If and when a denial of the 
application for asylum or withholding of removal becomes final, the 
alien shall be removed from the United States in accordance with section 
235(a)(2) of the Act. If and when an approval of the application for 
asylum or withholding of removal becomes final, the Service shall 
terminate removal proceedings under section 235(a)(2) of the Act.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8492, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76136, Dec. 6, 2000, Sec. 208.30 was 
revised, effective Jan. 5, 2001. For the convenience of the user, the 
revised text is set forth as follows:

Sec. 208.30  Credible fear determinations involving stowaways and 
          applicants for admission found inadmissible pursuant to 
          section 212(a)(6)(C) or 212(a)(7) of the Act.

    (a) Jurisdiction. The provisions of this subpart apply to aliens 
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to 
section 235(b)(1)(B) of the Act, the Service has exclusive jurisdiction 
to make credible fear determinations, and the Executive Office for 
Immigration Review has exclusive jurisdiction to review such 
determinations. Except as otherwise provided in this subpart, paragraphs 
(b) through (g) of this section are the exclusive procedures applicable 
to credible fear interviews, determinations, and reviews under section 
235(b)(1)(B) of the Act.
    (b) Treatment of dependents. A spouse or child of an alien may be 
included in that alien's credible fear evaluation and determination, if 
such spouse or child:
    (1) Arrived in the United States concurrently with the principal 
alien; and
    (2) Desires to be included in the principal alien's determination. 
However, any alien may have his or her credible fear evaluation and 
determination made separately, if he or she expresses such a desire.
    (c) Authority. Asylum officers conducting credible fear interviews 
shall have the authorities described in Sec. 208.9(c).

[[Page 212]]

    (d) Interview. The asylum officer, as defined in section 
235(b)(1)(E) of the Act, will conduct the interview in a nonadversarial 
manner, separate and apart from the general public. The purpose of the 
interview shall be to elicit all relevant and useful information bearing 
on whether the applicant has a credible fear of persecution or torture, 
and shall conduct the interview as follows:
    (1) If the officer conducting the credible fear interview determines 
that the alien is unable to participate effectively in the interview 
because of illness, fatigue, or other impediments, the officer may 
reschedule the interview.
    (2) At the time of the interview, the asylum officer shall verify 
that the alien has received Form M-444, Information about Credible Fear 
Interview in Expedited Removal Cases. The officer shall also determine 
that the alien has an understanding of the credible fear determination 
process.
    (3) The alien may be required to register his or her identity 
electronically or through any other means designated by the Attorney 
General.
    (4) The alien may consult with a person or persons of the alien's 
choosing prior to the interview or any review thereof, and may present 
other evidence, if available. Such consultation shall be at no expense 
to the Government and shall not unreasonably delay the process. Any 
person or persons with whom the alien chooses to consult may be present 
at the interview and may be permitted, in the discretion of the asylum 
officer, to present a statement at the end of the interview. The asylum 
officer, in his or her discretion, may place reasonable limits on the 
number of persons who may be present at the interview and on the length 
of the statement.
    (5) If the alien is unable to proceed effectively in English, and if 
the asylum officer is unable to proceed competently in a language chosen 
by the alien, the asylum officer shall arrange for the assistance of an 
interpreter in conducting the interview. The interpreter must be at 
least 18 years of age and may not be the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, a representative or employee of the applicant's country of 
nationality, or, if the applicant is stateless, the applicant's country 
of last habitual residence.
    (6) The asylum officer shall create a summary of the material facts 
as stated by the applicant. At the conclusion of the interview, the 
officer shall review the summary with the alien and provide the alien 
with an opportunity to correct any errors therein.
    (e) Determination. (1) The asylum officer shall create a written 
record of his or her determination, including a summary of the material 
facts as stated by the applicant, any additional facts relied on by the 
officer, and the officer's determination of whether, in light of such 
facts, the alien has established a credible fear of persecution or 
torture.
    (2) In determining whether the alien has a credible fear of 
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a 
credible fear of torture, the asylum officer or immigration judge shall 
consider whether the alien's case presents novel or unique issues that 
merit consideration in a full hearing before an immigration judge.
    (3) If an alien is able to establish a credible fear of persecution 
or torture but appears to be subject to one or more of the mandatory 
bars to applying for, or being granted, asylum contained in section 
208(a)(2) and 208(b)(2) of the Act, or to withholding of removal 
contained in section 241(b)(3)(B) of the Act, the Service shall 
nonetheless place the alien in proceedings under section 240 of the Act 
for full consideration of the alien's claim, if the alien is not a 
stowaway. If the alien is a stowaway, the Service shall place the alien 
in proceedings for consideration of the alien's claim pursuant to 
Sec. 208.2(c)(3).
    (4) An asylum officer's determination shall not become final until 
reviewed by a supervisory asylum officer.
    (f) Procedures for a positive credible fear finding. If an alien, 
other than an alien stowaway, is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-862, Notice to Appear, for full consideration of the 
asylum and withholding of removal claim in proceedings under section 240 
of the Act. If an alien stowaway is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-863, Notice of Referral to Immigration Judge, for full 
consideration of the asylum claim, or the withholding of removal claim, 
in proceedings under Sec. 208.2(c). Parole of the alien may be 
considered only in accordance with section 212(d)(5) of the Act and 
Sec. 212.5 of this chapter.
    (g) Procedures for a negative credible fear finding. (1) If an alien 
is found not to have a credible fear of persecution or torture, the 
asylum officer shall provide the alien with a written notice of decision 
and inquire whether the alien wishes to have an immigration judge review 
the negative decision, using Form I-869, Record of Negative Credible 
Fear Finding and Request for Review by Immigration Judge. The alien 
shall indicate whether he or she desires such review on Form I-869. A 
refusal by the alien to make such indication shall be considered a 
request for review.
    (i) If the alien requests such review, or refuses to either request 
or decline such review, the asylum officer shall arrange for detention 
of the alien and serve him or her with a Form I-863, Notice of Referral 
to Immigration Judge, for review of the credible fear determination in 
accordance with paragraph (f)(2) of this section.

[[Page 213]]

    (ii) If the alien is not a stowaway and does not request a review by 
an immigration judge, the officer shall order the alien removed and 
issue a Form I-860, Notice and Order of Expedited Removal, after review 
by a supervisory asylum officer.
    (iii) If the alien is a stowaway and the alien does not request a 
review by an immigration judge, the asylum officer shall refer the alien 
to the district director for completion of removal proceedings in 
accordance with section 235(a)(2) of the Act.
    (2) Review by immigration judge of a negative credible fear finding.
    (i) The asylum officer's negative decision regarding credible fear 
shall be subject to review by an immigration judge upon the applicant's 
request, or upon the applicant's refusal either to request or to decline 
the review after being given such opportunity, in accordance with 
section 235(b)(1)(B)(iii)(III) of the Act.
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based shall be provided to the immigration judge with 
the negative determination.
    (iii) A credible fear hearing shall be closed to the public unless 
the alien states for the record or submits a written statement that the 
alien is waiving that requirement; in that event the hearing shall be 
open to the public, subject to the immigration judge's discretion as 
provided in Sec. 3.27.
    (iv) Upon review of the asylum officer's negative credible fear 
determination:
    (A) If the immigration judge concurs with the determination of the 
asylum officer that the alien does not have a credible fear of 
persecution or torture, the case shall be returned to the Service for 
removal of the alien. The immigration judge's decision is final and may 
not be appealed. The Service, however, may reconsider a negative 
credible fear finding that has been concurred upon by an immigration 
judge after providing notice of its reconsideration to the immigration 
judge.
    (B) If the immigration judge finds that the alien, other than an 
alien stowaway, possesses a credible fear of persecution or torture, the 
immigration judge shall vacate the order of the asylum officer issued on 
Form I-860 and the Service may commence removal proceedings under 
section 240 of the Act, during which time the alien may file an 
application for asylum and withholding of removal in accordance with 
Sec. 208.4(b)(3)(i).
    (C) If the immigration judge finds that an alien stowaway possesses 
a credible fear of persecution or torture, the alien shall be allowed to 
file an application for asylum and withholding of removal before the 
immigration judge in accordance with Sec. 208.4(b)(3)(iii). The 
immigration judge shall decide the application as provided in that 
section. Such decision may be appealed by either the stowaway or the 
Service to the Board of Immigration Appeals. If a denial of the 
application for asylum and for withholding of removal becomes final, the 
alien shall be removed from the United States in accordance with section 
235(a)(2) of the Act. If an approval of the application for asylum or 
for withholding of removal becomes final, the Service shall terminate 
removal proceedings under section 235(a)(2) of the Act.



Sec. 208.31  Reasonable fear of persecution or torture determinations involving aliens ordered removed under section 238(b) of the Act and aliens whose removal is reinstated under section 241(a)(5) of the Act.

    (a) Jurisdiction. This section shall apply to any alien ordered 
removed under section 238(b) of the Act or whose deportation, exclusion, 
or removal order is reinstated under section 241(a)(5) of the Act who, 
in the course of the administrative removal or reinstatement process, 
expresses a fear of returning to the country of removal. The Service has 
exclusive jurisdiction to make reasonable fear determinations, and EOIR 
has exclusive jurisdiction to review such determinations.
    (b) Initiation of reasonable fear determination process. Upon 
issuance of a Final Administrative Removal Order under Sec. 238.1 of 
this chapter, or notice under Sec. 241.8(b) of this chapter that an 
alien is subject to removal, an alien described in paragraph (a) of this 
section shall be referred to an asylum officer for a reasonable fear 
determination. In the absence of exceptional circumstances, this 
determination will be conducted within 10 days of the referral.
    (c) Interview and procedure. The asylum officer shall conduct the 
interview in a non-adversarial manner, separate and apart from the 
general public. At the time of the interview, the asylum officer shall 
determine that the alien has an understanding of the reasonable fear 
determination process. The alien may be represented by counsel or an 
accredited representative at the interview, at no expense to the 
Government, and may present evidence, if available, relevant to the 
possibility of persecution or torture. The alien's representative may 
present a statement at the

[[Page 214]]

end of the interview. The asylum officer, in his or her discretion, may 
place reasonable limits on the number of persons who may be present at 
the interview and the length of the statement. If the alien is unable to 
proceed effectively in English, and if the asylum officer is unable to 
proceed competently in a language chosen by the alien, the asylum 
officer shall arrange for the assistance of an interpreter in conducting 
the interview. The interpreter may not be a representative or employee 
of the applicant's country or nationality, or if the applicant is 
stateless, the applicant's country of last habitual residence. The 
asylum officer shall create a summary of the material facts as stated by 
the applicant. At the conclusion of the interview, the officer shall 
review the summary with the alien and provide the alien with an 
opportunity to correct errors therein. The asylum officer shall create a 
written record of his or her determination, including a summary of the 
material facts as stated by the applicant, any additional facts relied 
on by the officers, and the officer's determination of whether, in light 
of such facts, the alien has established a reasonable fear of 
persecution or torture. The alien shall be determined to have a 
reasonable fear of persecution or torture if the alien establishes a 
reasonable possibility that he or she would be persecuted on account of 
his or her race, religion, nationality, membership in a particular 
social group or political opinion, or a reasonable possibility that he 
or she would be tortured in the country of removal. For purposes of the 
screening determination, the bars to eligibility for withholding of 
removal under section 241(b)(3)(B) of the Act shall not be considered.
    (d) Authority. Asylum officers conducting screening determinations 
under this section shall have the authority described in Sec. 208.9(c).
    (e) Referral to Immigration Judge. If an asylum officer determines 
that an alien described in this section has a reasonable fear of 
persecution or torture, the officer shall so inform the alien and issue 
a Form I-863, Notice of Referral to the Immigration Judge, for full 
consideration of the request for withholding of removal only. Such cases 
shall be adjudicated by the immigration judge in accordance with the 
provisions of Sec. 208.16. Appeal of the immigration judge's decision 
shall lie to the Board of Immigration Appeals.
    (f) Removal of aliens with no reasonable fear of persecution or 
torture. If the asylum officer determines that the alien has not 
established a reasonable fear of persecution or torture, the asylum 
officer shall inform the alien in writing of the decision and shall 
inquire whether the alien wishes to have an immigration judge review the 
negative decision, using Form I-898, Record of Negative Reasonable Fear 
Finding and Request for Review by Immigration Judge, on which the alien 
shall indicate whether he or she desires such review.
    (g) Review by immigration judge. The asylum officer's negative 
decision regarding reasonable fear shall be subject to review by an 
immigration judge upon the alien's request. If the alien requests such 
review, the asylum officer shall serve him or her with a Form I-863. The 
record of determination, including copies of the Form I-863, the asylum 
officer's notes, the summary of the material facts, and other materials 
upon which the determination was based shall be provided to the 
immigration judge with the negative determination. In the absence of 
exceptional circumstances, such review shall be conducted by the 
immigration judge within 10 days of the filing of the Form I-863 with 
the immigration court. Upon review of the asylum officer's negative 
reasonable fear determination:
    (1) If the immigration judge concurs with the asylum officer's 
determination that the alien does not have a reasonable fear of 
persecution or torture, the case shall be returned to the Service for 
removal of the alien. No appeal shall lie from the immigration judge's 
decision.
    (2) If the immigration judge finds that the alien has a reasonable 
fear of persecution or torture, the alien may submit Form I-589, 
Application for Asylum and Withholding of Removal.
    (i) The immigration judge shall consider only the alien's 
application for withholding of removal under Sec. 208.16 and shall 
determine whether the alien's

[[Page 215]]

removal to the country of removal must be withheld or deferred.
    (ii) Appeal of the immigration judge's decision whether removal must 
be withheld or deferred lies to the Board of Immigration Appeals. If the 
alien or the Service appeals the immigration judge's decision, the Board 
shall review only the immigration judge's decision regarding the alien's 
eligibility for withholding or deferral of removal under Sec. 208.16.

[64 FR 8493, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]



PART 209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED ASYLUM--Table of Contents




Sec.
209.1  Adjustment of status of refugees.
209.2  Adjustment of status of alien granted asylum.

    Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252, 1282; 
8 CFR part 2.



Sec. 209.1   Adjustment of status of refugees.

    The provisions of this section shall provide the sole and exclusive 
procedure for adjustment of status by a refugee admitted under section 
207 of the Act whose application is based on his or her refugee status.
    (a) Eligibility. (1) Every alien in the United States who is 
classified as a refugee under part 207 of this chapter, whose status has 
not been terminated, is required to apply to the Service 1 year after 
entry in order for the Service to determine his or her admissibility 
under section 212 of the Act.
    (2) Every alien processed by the Immigration and Naturalization 
Service abroad and paroled into the United States as a refugee after 
April 1, 1980, and before May 18, 1980, shall be considered as having 
entered the United States as a refugee under section 207(a) of the Act.
    (b) Application. Upon admission to the United States, every refugee 
entrant shall be notified of the requirement to submit an application 
for permanent residence 1 year after entry. An application for the 
benefits of section 209(a) of the Act shall be filed on Form I-485, 
without fee, with the director of the appropriate Service office 
identified in the instructions which accompany the Form I-485. A 
separate application must be filed by each alien. Every applicant who is 
14 years of age or older must submit a completed Form G-325A 
(Biographical Information) with the Form I-485 application. Following 
submission of the Form I-485 application, a refugee entrant who is 14 
years of age or older will be required to execute a Form FD-258 
(Applicant Fingerprint Card) at such time and place as the Service will 
designate.
    (c) Medical examination. A refugee seeking adjustment of status 
under section 209(a) of the Act is not required to repeat the medical 
examination performed under Sec. 207.2(c), unless there were medical 
grounds of inadmissibility applicable at the time of admission. The 
refugee is, however, required to establish compliance with the 
vaccination requirements described under section 212(a)(1)(A)(ii) of the 
Act, by submitting with the adjustment of status application a 
vaccination supplement, completed by a designated civil surgeon in the 
United States.
    (d) Interview. The Service director having jurisdiction over the 
application will determine, on a case-by-case basis, whether an 
interview by an immigration officer is necessary to determine the 
applicant's admissibility for permanent resident status under this part.
    (e) Decision. The director will notify the applicant in writing of 
the decision of his or her application for admission to permanent 
residence. If the applicant is determined to be inadmissible or no 
longer a refugee, the director will deny the application and notify the 
applicant of the reasons for the denial. The director will, in the same 
denial notice, inform the applicant of his or her right to renew the 
request for permanent residence in removal proceedings under section 240 
of the Act. There is no appeal of the denial of an application by the 
director, but such denial will be without prejudice to the alien's right 
to renew the application in removal proceedings under part 240 of this 
chapter. If the applicant is found to be admissible for permanent 
residence under section 209(a) of the Act, the director will approve the 
application and admit the applicant for

[[Page 216]]

lawful permanent residence as of the date of the alien's arrival in the 
United States. An alien admitted for lawful permanent residence will be 
issued Form I-551, Alien Registration Receipt Card.

[63 FR 30109, June 3, 1998]



Sec. 209.2  Adjustment of status of alien granted asylum.

    The provisions of this section shall be the sole and exclusive 
procedure for adjustment of status by an asylee admitted under section 
208 of the Act whose application is based on his or her asylee status.
    (a) Eligibility. (1) Except as provided in paragraph (a)(2) of this 
section, the status of any alien who has been granted asylum in the 
United States may be adjusted by the director to that of an alien 
lawfully admitted for permanent residence, provided the alien:
    (i) Applies for such adjustment;
    (ii) Has been physically present in the United States for at least 
one year after having been granted asylum;
    (iii) Continues to be a refugee within the meaning of section 
101(a)(42) of the Act, or is the spouse or child of a refugee;
    (iv) Has not been firmly resettled in any foreign country; and
    (v) Is admissible to the United States as an immigrant under the Act 
at the time of examination for adjustment without regard to paragraphs 
(4), (5)(A), (5)(B), and (7)(A)(i) of section 212(a) of the Act, and 
(vi) has a refugee number available under section 207(a) of the Act.

If the application for adjustment filed under this part exceeds the 
refugee numbers available under section 207(a) of the Act for the fiscal 
year, a waiting list will be established on a priority basis by the date 
the application was properly filed.
    (2) An alien, who was granted asylum in the United States prior to 
November 29, 1990 (regardless of whether or not such asylum has been 
terminated under section 208(b) of the Act), and is no longer a refugee 
due to a change in circumstances in the foreign state where he or she 
feared persecution, may also have his or her status adjusted by the 
director to that of an alien lawfully admitted for permanent residence 
even if he or she is no longer able to demonstrate that he or she 
continues to be a refugee within the meaning of section 10l(a)(42) of 
the Act, or to be a spouse or child of such a refugee or to have been 
physically present in the United States for at least one year after 
being granted asylum, so long as he or she is able to meet the 
requirements noted in paragraphs (a)(1)(i), (iv), and (v) of this 
section. Such persons are exempt from the numerical limitations of 
section 209(b) of the Act. However, the number of aliens who are natives 
of any foreign state who may adjust status pursuant to this paragraph in 
any fiscal year shall not exceed the difference between the per country 
limitation established under section 202(a) of the Act and the number of 
aliens who are chargeable to that foreign state in the fiscal year under 
section 202 of the Act. Aliens who applied for adjustment of status 
under section 209(b) of the Act before June 1, 1990, are also exempt 
from its numerical limitation without any restrictions.
    (b) Inadmissible Alien. An applicant who is inadmissible to the 
United States under section 212(a) of the Act, may, under section 209(c) 
of the Act, have the grounds of inadmissibility waived by the director 
(except for those grounds under paragraphs (27), (29), (33), and so much 
of (23) as relates to trafficking in narcotics) for humanitarian 
purposes, to assure family unity, or when it is otherwise in the public 
interest. An application for the waiver may be filed on Form I-602 
(Application by Refugee for Waiver of Grounds of Excludability) with the 
application for adjustment. An applicant for adjustment who has had the 
status of an exchange alien nonimmigrant under section 101(a)(15)(J) of 
the Act, and who is subject to the foreign resident requirement of 
section 212(e) of the Act, shall be eligible for adjustment without 
regard to the foreign residence requirement.
    (c) Application. An application for the benefits of section 209(b) 
of the Act may be filed on Form I-485, with the correct fee, with the 
director of the appropriate Service office identified in the 
instructions to the Form I-485. A separate application must be filed by

[[Page 217]]

each alien. Every applicant who is 14 years of age or older must submit 
a completed Form G-325A (Biographic Information) with the Form I-485 
application. Following submission of the Form I-485 application, every 
applicant who is 14 years of age or older will be required to execute a 
Form FD-258 (Applicant Fingerprint Card) at such time and place as the 
Service will designate. Except as provided in paragraph (a)(2) of this 
section, the application must also be supported by evidence that the 
applicant has been physically present in the United States for at least 
1 year. If an alien has been placed in deportation or exclusion 
proceedings, the application can be filed and considered only in 
proceedings under section 240 of the Act.
    (d) Medical examination. An alien seeking adjustment of status under 
section 209(b) of the Act 1 year following the grant of asylum under 
section 208 of the Act shall submit the results of a medical examination 
to determine whether any grounds of inadmissibility described under 
section 212(a)(1)(A) of the Act apply. Form I-693, Medical Examination 
of Aliens Seeking Adjustment of Status, and a vaccination supplement to 
determine compliance with the vaccination requirements described under 
section 212(a)(1)(A)(ii) of the Act must be completed by a designed 
civil surgeon in the United States and submitted at the time of 
application for adjustment of status.
    (e) Interview. Each applicant for adjustment of status under this 
part shall be interviewed by an immigration officer. The interview may 
be waived for a child under 14 years of age. The Service director having 
jurisdiction over the application will determine, on a case-by-case 
basis, whether an interview by an immigration officer is necessary to 
determine the applicant's admissibility for permanent resident status 
under this part.
    (f) Decision. The applicant shall be notified of the decision, and 
if the application is denied, of the reasons for denial. No appeal shall 
lie from the denial of an application by the director but such denial 
will be without prejudice to the alien's right to renew the application 
in proceedings under part 240 of this chapter. If the application is 
approved, the director shall record the alien's admission for lawful 
permanent residence as of the date one year before the date of the 
approval of the application, but not earlier than the date of the 
approval for asylum in the case of an applicant approved under paragraph 
(a)(2) of this section.

[46 FR 45119, Sept. 10, 1981, as amended at 56 FR 26898, June 12, 1991; 
57 FR 42883, Sept. 17, 1992; 63 FR 30109, June 3, 1998]



PART 210--SPECIAL AGRICULTURAL WORKERS--Table of Contents




Sec.
210.1  Definition of terms used in this part.
210.2  Application for temporary resident status.
210.3  Eligibility.
210.4  Status and benefits.
210.5  Adjustment to permanent resident status.

    Authority: 8 U.S.C. 1103, 1160, 8 CFR part 2.

    Source: 53 FR 10064, Mar. 29, 1988, unless otherwise noted.



Sec. 210.1  Definition of terms used in this part.

    (a) Act. The Immigration and Nationality Act, as amended by the 
Immigration Reform and Control Act of 1986.
    (b) ADIT. Alien Documentation, Identification and Telecommunications 
card, Form I-89. Used to collect key data concerning an alien. When 
processed together with an alien's photographs, fingerprints and 
signature, this form becomes the source document for generation of Form 
I-551, Permanent Resident Card.
    (c) Application period. The 18-month period during which an 
application for adjustment of status to that of a temporary resident may 
be accepted, begins on June 1, 1987, and ends on November 30, 1988.
    (d) Complete application. A complete application consists of an 
executed Form I-700, Application for Temporary Resident Status as a 
Special Agricultural Worker, evidence of qualifying

[[Page 218]]

agricultural employment and residence, a report of medical examination, 
and the prescribed number of photographs. An application is not complete 
until the required fee has been paid and recorded.
    (e) Determination process. Determination process as used in this 
part means reviewing and evaluating all information provided pursuant to 
an application for the benefit sought and making a determination 
thereon. If fraud, willful misrepresentation of a material fact, a false 
writing or document, or any other activity prohibited by section 
210(b)(7) of the Act is discovered during the determination process the 
Service shall refer the case to a U.S. Attorney for possible 
prosecution.
    (f) Family unity. The term family unity as used in section 
210(c)(2)(B)(i) of the Act means maintaining the family group without 
deviation or change. The family group shall include the spouse, 
unmarried minor children who are not members of some other household, 
and parents who reside regularly in the household of the family group.
    (g) Group 1. Special agricultural workers who have performed 
qualifying agricultural employment in the United States for at least 90 
man-days in the aggregate in each of the twelve-month periods ending on 
May 1, 1984, 1985, and 1986, and who have resided in the United States 
for six months in the aggregate in each of those twelve-month periods.
    (h) Group 2. Special agricultural workers who during the twelve-
month period ending on May 1, 1986 have performed at least 90 man-days 
in the aggregate of qualifying agricultural employment in the United 
States.
    (i) Legalization Office. Legalization offices are local offices of 
the Immigration and Naturalization Service which accept and process 
applications for legalization or special agricultural worker status, 
under the authority of the district directors in whose districts such 
offices are located.
    (j) Man-day. The term man-day means the performance during any day 
of not less than one hour of qualifying agricultural employment for 
wages paid. If employment records relating to an alien applicant show 
only piece rate units completed, then any day in which piece rate work 
was performed shall be counted as a man-day. Work for more than one 
employer in a single day shall be counted as no more than one man-day 
for the purposes of this part.
    (k) Nonfrivolous application. A complete application will be 
determined to be nonfrivolous at the time the applicant appears for an 
interview at a legalization or overseas processing office if it 
contains:
    (1) Evidence or information which shows on its face that the 
applicant is admissible to the United States or, if inadmissible, that 
the applicable grounds of excludability may be waived under the 
provisions of section 210(c)(2)(i) of the Act,
    (2) Evidence or information which shows on its face that the 
applicant performed at least 90 man-days of qualifying employment in 
seasonal agricultural services during the twelve-month period from May 
1, 1985 through May 1, 1986, and
    (3) Documentation which establishes a reasonable inference of the 
performance of the seasonal agricultural services claimed by the 
applicant.
    (l) Overseas processing office. Overseas processing offices are 
offices outside the United States at which applications for adjustment 
to temporary resident status as a special agricultural worker are 
received, processed, referred to the Service for adjudication or denied. 
The Secretary of State has designated for this purpose the United States 
Embassy at Mexico City, and in all other countries the immigrant visa 
issuing of office at which the alien, if an applicant for an immigrant 
visa, would make such application. Consular officers assigned to such 
offices are authorized to recommend approval of an application for 
special agricultural worker status to the Service if the alien 
establishes eligibility for approval and to deny such an application if 
the alien fails to establish eligibility for approval or is found to 
have committed fraud or misrepresented facts in the application process.
    (m) Preliminary application. A preliminary application is defined as 
a fully completed and signed application with fee and photographs which 
contains specific information concerning the performance of qualifying 
employment

[[Page 219]]

in the United States, and identifies documentary evidence which the 
applicant intends to submit as proof of such employment. The applicant 
must be otherwise admissible to the United States and must establish to 
the satisfaction of the examining officer during an interview that his 
or her claim to eligibility for special agriculture worker status is 
credible.
    (n) Public cash assistance. Public cash assistance means income or 
needs-based monetary assistance. This includes but is not limited to 
supplemental security income received by the alien or his immediate 
family members through federal, state, or local programs designed to 
meet subsistence levels. It does not include assistance in kind, such as 
food stamps, public housing, or other non-cash benefits, nor does it 
include work-related compensation or certain types of medical assistance 
(Medicare, Medicaid, emergency treatment, services to pregnant women or 
children under 18 years of age, or treatment in the interest of public 
health).
    (o) Qualified designated entity. A qualified designated entity is 
any state, local, church, community, or voluntary agency, farm labor 
organization, association of agricultural employers or individual 
designated by the Service to assist aliens in the preparation of 
applications for Legalization and/or Special Agricultural Worker status.
    (p) Qualifying agricultural employment. Qualifying agricultural 
employment means the performance of ``seasonal agricultural services'' 
described at section 210(h) of the Act as that term is defined in 
regulations by the Secretary of Agriculture at 7 CFR part 1d.
    (q) Regional processing facility. Regional Processing Facilities are 
Service offices established in each of the four Service regions to 
adjudicate, under the authority of the Directors of the Regional 
Processing Facilities, applications for adjustment of status under 
sections 210 and 245a of the Act.
    (r) Service. The Immigration and Naturalization Service (INS).
    (s) Special agricultural worker. Any individual granted temporary 
resident status in the Group 1 or Group 2 classification or permanent 
resident status under section 210(a) of the Act.

[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989; 63 
FR 70315, Dec. 21, 1998]



Sec. 210.2  Application for temporary resident status.

    (a)(1) Application for temporary resident status. An alien 
agricultural worker who believes that he or she is eligible for 
adjustment of status under the provisions of Sec. 210.3 of this part may 
file an application for such adjustment at a qualified designated 
entity, at a legalization office, or at an overseas processing office 
outside the United States. Such application must be filed within the 
application period.
    (2) Application for Group 1 status. An alien who believes that he or 
she qualifies for Group 1 status as defined in Sec. 210.1(f) of this 
part and who desires to apply for that classification must so endorse 
his or her application at the time of filing. Applications not so 
endorsed will be regarded as applications for Group 2 status as defined 
in Sec. 210.1(g) of this part.
    (3) Numerical limitations. The numerical limitations of sections 201 
and 202 of the Act do not apply to the adjustment of aliens to lawful 
temporary or permanent resident status under section 210 of the Act. No 
more than 350,000 aliens may be granted temporary resident status in the 
Group 1 classification. If more than 350,000 aliens are determined to be 
eligible for Group 1 classification, the first 350,000 applicants (in 
chronological order by date the application is filed at a legalization 
or overseas processing office) whose applications are approved for Group 
1 status shall be accorded that classification. Aliens admitted to the 
United States under the transitional admission standard placed in effect 
between July 1, 1987, and November 1, 1987, and under the preliminary 
application standard at Sec. 210.2(c)(4) who claim eligibility for Group 
1 classification shall be registered as applicants for that 
classification on the date of submission to a legalization office of a 
complete application as defined in Sec. 210.1(c) of this part. Other 
applicants who may be eligible for Group 1 classification shall be 
classified as Group 2

[[Page 220]]

aliens. There is no limitation on the number of aliens whose resident 
status may be adjusted from temporary to permanent in Group 2 
classification.
    (b) Filing date of application--(1) General. The date the alien 
submits an application to a qualified designated entity, legalization 
office or overseas processing office shall be considered the filing date 
of the application, provided that in the case of an application filed at 
a qualified designated entity the alien has consented to have the entity 
forward the application to a legalization office. Qualified designated 
entities are required to forward completed applications to the 
appropriate legalization office within 60 days after the applicant gives 
consent for such forwarding.
    (2) [Reserved]
    (c) Filing of application--(1) General. The application must be 
filed on Form I-700 at a qualified designated entity, at a legalization 
office, at a designated port of entry, or at an overseas processing 
office within the eighteen-month period beginning on June 1, 1987 and 
ending on November 30, 1988.
    (2) Applications in the United States. (i) The application must be 
filed on Form I-700 with the required fee and, if the applicant is 14 
years or older, the application must be accompanied by a completed Form 
FD-258 (Fingerprint Card).
    (ii) All fees for applications filed in the United States, other 
than those within the provisions of Sec. 210.2(c)(4), must be submitted 
in the exact amount in the form of a money order, cashier's check, or 
bank check made payable to the Immigration and Naturalization Service. 
No personal checks or currency will be accepted. Fees will not be waived 
or refunded under any circumstances.
    (iii) In the case of an application filed at a legalization office, 
including an application received from a qualified designated entity, 
the district director may, at his or her discretion, require filing 
either by mail or in person, or may permit filing in either manner.
    (iv) Each applicant, regardless of age, must appear at the 
appropriate Service legalization office and must be fingerprinted for 
the purpose of issuance of Form I-688A. Each applicant shall be 
interviewed by an immigration officer, except that the interview may be 
waived when it is impractical because of the health of the applicant.
    (3) Filing at overseas processing offices. (i) The application must 
be filed on Form I-700 and must include a completed State Department 
Form OF-179 (Biographic Data for Visa Purposes).
    (ii) Every applicant must appear at the appropriate overseas 
processing office to be interviewed by a consular officer. The overseas 
processing office will inform each applicant of the date and time of the 
interview. At the time of the interview every applicant shall submit the 
required fee.
    (iii) All fees for applications submitted to an overseas processing 
office shall be submitted in United States currency, or in the currency 
of the country in which the overseas processing office is located. Fees 
will not be waived or refunded under any circumstances.
    (iv) An applicant at an overseas processing office whose application 
is recommended for approval shall be provided with an entry document 
attached to the applicant's file. Upon admission to the United States, 
the applicant shall proceed to a legalization office for presentation or 
completion of Form FD-258 (Fingerprint Card), presentation of the 
applicant's file and issuance of the employment authorization Form I-
688A.
    (4) Border processing. The Commissioner will designate specific 
ports of entry located on the southern land border to accept and process 
applications under this part. Ports of entry so designated will process 
preliminary applications as defined at Sec. 210.1(l) under the authority 
of the district directors in whose districts they are located. The ports 
of entry at Calexico, California, Otay Mesa, California, and Laredo, 
Texas have been designated to conduct preliminary application 
processing. Designated ports of entry may be closed or added at the 
discretion of the Commissioner.
    (i) Admission standard. The applicant must present a fully completed 
and signed Form I-700, Application for Temporary Resident Status with 
the required fee and photographs at a designated port of entry. The 
application

[[Page 221]]

must contain specific information concerning the performance of 
qualifying employment in the United States and identify documentary 
evidence which the applicant intends to submit as proof of such 
employment. The applicant must establish to the satisfaction of the 
examining officer during an interview that his or her claim to 
eligibility for special agricultural worker classification is credible, 
and that he or she is otherwise admissible to the United States under 
the provisions of Sec. 210.3(e) of this part including, if required, 
approval of an application for waiver of grounds of excludability.
    (ii) Procedures. The fee for any application under this paragraph 
including applications for waivers of grounds of excludability, must be 
submitted in United States currency. Application fees shall not be 
collected until the examining immigration officer has determined that 
the applicant has presented a preliminary application and is admissible 
to the United States including, if required, approval of an application 
for waiver of grounds of excludability as provided in this paragraph. 
Applicants at designated ports of entry must present proof of identity 
in the form of a valid passport, a ``cartilla'' (Mexican military 
service registration booklet), a Form 13 (``Forma trece''--Mexican lieu 
passport identity document), or a certified copy of a birth certificate 
accompanied by additional evidence of identity bearing a photograph and/
or fingerprint of the applicant. Upon a determination by an immigration 
officer at a designated port of entry that an applicant has presented a 
preliminary application, the applicant shall be admitted to the United 
States as an applicant for special agricultural worker status. All 
preliminary applicants shall be considered as prospective applicants for 
the Group 2 classification. However, such applicants may later submit a 
complete application for either the Group 1 or Group 2 classification to 
a legalization office. Preliminary applicants are not required to pay 
the application fee a second time when submitting the complete 
application to a legalization office.
    (iii) Conditions of admission. Aliens who present a preliminary 
application shall be admitted to the United States for a period of 
ninety (90) days with authorization to accept employment, if they are 
determined by an immigration officer to be admissible to the United 
States. Such aliens are required, within that ninety-day period, to 
submit evidence of eligibility which meets the provisions of Sec. 210.3 
of this part; to complete Form FD-258 (Fingerprint Card); to obtain a 
report of medical examination in accordance with Sec. 210.2(d) of this 
part; and to submit to a legalization office a complete application as 
defined at Sec. 210.1(c) of this part. The INS may, for good cause, 
extend the ninety-day period and grant further authorization to accept 
employment in the United States if an alien demonstrates he or she was 
unable to perfect an application within the initial period. If an alien 
described in this paragraph fails to submit a complete application to a 
legalization office within ninety days or within such additional period 
as may have been authorized, his or her application may be denied for 
lack of prosecution, without prejudice.
    (iv) Deportation is not stayed for an alien subject to deportation 
and removal under the INA, notwithstanding a claim to eligibility for 
SAW status, unless that alien has filed a nonfrivolous application.
    (d) Medical examination. An applicant under this part must be 
examined at no expense to the government by a designated civil surgeon 
or, in the case of an applicant abroad, by a physician or clinic 
designated to perform medical examinations of immigrant visa applicants. 
The medical report setting forth the findings concerning the mental and 
physical condition of the applicant shall be incorporated into the 
record. Any applicant certified under paragraph (1), (2), (3), (4), or 
(5) of section 212(a) of the Act may appeal to a Board of Medical 
Officers of the U.S. Public Health Service as provided in section 234 of 
the Act and part 235 of this chapter.
    (e) Limitation on access to information and confidentiality. (1) 
Except for consular officials engaged in the processing of applications 
overseas and employees of a qualified designated entity where an 
application is filed with that entity, no person other than a sworn

[[Page 222]]

officer or employee of the Department of Justice or bureau or agency 
thereof, or contract personnel employed by the Service to work in 
connection with the legalization program, will be permitted to examine 
individual applications.
    (2) Files and records prepared by qualified designated entities 
under this section are confidential. The Attorney General and the 
Service shall not have access to these files and records without the 
consent of the alien.
    (3) All information furnished pursuant to an application for 
temporary resident status under this part including documentary evidence 
filed with the application shall be used only in the determination 
process, including a determination under Sec. 210.4(d) of this part, or 
to enforce the provisions of section 210(b)(7) of the Act, relating to 
prosecutions for fraud and false statements made in connection with 
applications, as provided in paragraph (e)(4) of this section.
    (4) If a determination is made by the Service that the alien has, in 
connection with his or her application, engaged in fraud or willful 
misrepresentation or concealment of a material fact, knowingly provided 
a false writing or document in making his or her application, knowingly 
made a false statement or representation, or engaged in any other 
activity prohibited by section 210(b)(7) of the Act, the Service shall 
refer the matter to the U.S. Attorney for prosecution of the alien or 
any person who created or supplied a false writing or document for use 
in an application for adjustment of status under this part.
    (f) Decision. The applicant shall be notified in writing of the 
decision and, if the application is denied, of the reason(s) therefor. 
An adverse decision under this part including an overseas application 
may be appealed to the Associate Commissioner, Examinations 
(Administrative Appeals Unit) on Form I-694. The appeal with the 
required fee shall be filed with the Regional Processing Facility in 
accordance with the provisions of Sec. 103.3(a)(2) of this chapter. An 
applicant for Group 1 status as defined in Sec. 210.1(f) of this part 
who is determined to be ineligible for that status may be classified as 
a temporary resident under Group 2 as defined in Sec. 210.1(g) of this 
part if otherwise eligible for Group 2 status. In such a case the 
applicant shall be notified of the decision to accord him or her Group 2 
status and to deny Group 1 status. He or she is entitled to file an 
appeal in accordance with the provisions of Sec. 103.3(a)(2) of this 
chapter from that portion of the decision denying Group 1 status. In the 
case of an applicant who is represented in the application process in 
accordance with 8 CFR part 292, the applicant's representative shall 
also receive notification of decision specified in this section.
    (g) Motions. In accordance with the provisions of Sec. 103.5(b) of 
this chapter, the director of a regional processing facility or a 
consular officer at an overseas processing office may sua sponte reopen 
any proceeding under this part under his or her jurisdiction and reverse 
any adverse decision in such proceeding when appeal is taken under 
Sec. 103.3(a)(2) of this part from such adverse decision; the Associate 
Commissioner, Examinations, and the Chief of the Administrative Appeals 
Unit may sua sponte reopen any proceeding conducted by that unit under 
this part and reconsider any decision rendered in such proceeding. The 
decision must be served on the appealing party within forty-five (45) 
days of receipt of any briefs and/or new evidence, or upon expiration of 
the time allowed for the submission of any briefs. Motions to reopen a 
proceeding or reconsider a decision shall not be considered under this 
part.
    (h) Certifications. The regional processing facility director may, 
in accordance with Sec. 103.4 of this chapter, certify a decision to the 
Associate Commissioner, Examinations when the case involves an unusually 
complex or novel question of law or fact. A consular officer assigned to 
an overseas processing office is authorized to certify a decision in the 
same manner and upon the same basis.

[53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990; 60 
FR 21975, May 4, 1995]



Sec. 210.3  Eligibility.

    (a) General. An alien who, during the twelve-month period ending on 
May 1,

[[Page 223]]

1986, has engaged in qualifying agricultural employment in the United 
States for at least 90 man-days is eligible for status as an alien 
lawfully admitted for temporary residence if otherwise admissible under 
the provisions of section 210(c) of the Act and if he or she is not 
ineligible under the provisions of paragraph (d) of this section.
    (b) Proof of eligibility--(1) Burden of proof. An alien applying for 
adjustment of status under this part has the burden of proving by a 
preponderance of the evidence that he or she has worked the requisite 
number of man-days, is admissible to the United States under the 
provisions of section 210(c) of the Act, is otherwise eligible for 
adjustment of status under this section and in the case of a Group 1 
applicant, has resided in the United States for the requisite periods. 
If the applicant cannot provide documentation which shows qualifying 
employment for each of the requisite man-days, or in the case of a Group 
1 applicant, which meets the residence requirement, the applicant may 
meet his or her burden of proof by providing documentation sufficient to 
establish the requisite employment or residence as a matter of just and 
reasonable inference. The inference to be drawn from the documentation 
provided shall depend on the extent of the documentation, its 
credibility and amenability to verification as set forth in paragraphs 
(b)(2) and (3) of this section. If an applicant establishes that he or 
she has in fact performed the requisite qualifying agricultural 
employment by producing sufficient evidence to show the extent of that 
employment as a matter of just and reasonable inference, the burden then 
shifts to the Service to disprove the applicant's evidence by showing 
that the inference drawn from the evidence is not reasonable.
    (2) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. Original documents will be given greater weight than 
copies. To meet his or her burden of proof, an applicant must provide 
evidence of eligibility apart from his or her own testimony. Analysis of 
evidence submitted will include consideration of the fact that work 
performed by minors and spouses is sometimes credited to a principal 
member of a family.
    (3) Verification. Personal testimony by an applicant which is not 
corroborated, in whole or in part, by other credible evidence (including 
testimony of persons other than the applicant) will not serve to meet an 
applicant's burden of proof. All evidence of identity, qualifying 
employment, admissibility, and eligibility submitted by an applicant for 
adjustment of status under this part will be subject to verification by 
the Service. Failure by an applicant to release information protected by 
the Privacy Act or related laws when such information is essential to 
the proper adjudication of an application may result in denial of the 
benefit sought. The Service may solicit from agricultural producers, 
farm labor contractors, collective bargaining organizations and other 
groups or organizations which maintain records of employment, lists of 
workers against which evidence of qualifying employment can be checked. 
If such corroborating evidence is not available and the evidence 
provided is deemed insufficient, the application may be denied.
    (4) Securing SAW employment records. When a SAW applicant alleges 
that an employer or farm labor contractor refuses to provide him or her 
with records relating to his or her employment and the applicant has 
reason to believe such records exist, the Service shall attempt to 
secure such records. However, prior to any attempt by the Service to 
secure the employment records, the following conditions must be met: a 
SAW application (Form I-700) must have been filed; an interview must 
have been conducted; the applicant's testimony must support credibly his 
or her claim; and, the Service must determine that the application 
cannot be approved in the absence of the employer or farm labor 
contractor records. Provided each of these conditions has been met, and 
after unsuccessful attempts by the Service for voluntary compliance, the 
District Directors shall utilize section 235 of the Immigration and 
Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in 
such cases where the employer or farm labor contractor refuses

[[Page 224]]

to release the needed employment records.
    (c) Documents. A complete application for adjustment of status must 
be accompanied by proof of identity, evidence of qualifying employment, 
evidence of residence and such evidence of admissibility or eligibility 
as may be requested by the examining immigration officer in accordance 
with requirements specified in this part. At the time of filing, 
certified copies of documents may be submitted in lieu of originals. 
However, at the time of the interview, wherever possible, the original 
documents must be presented except for the following: Official 
government records; employment or employment related records maintained 
by employers, unions, or collective bargaining organizations; medical 
records; school records maintained by a school or school board; or other 
records maintained by a party other than the applicant. Copies of 
records maintained by parties other than the applicant which are 
submitted in evidence must be certified as true and correct by such 
parties and must bear their seal or signature or the signature and title 
of persons authorized to act in their behalf. If at the time of the 
interview the return of original documents is desired by the applicant, 
they must be accompanied by notarized copies or copies certified true 
and correct by a qualified designated entity or by the alien's 
representative in the format prescribed in Sec. 204.2(j)(1) or (2) of 
this chapter. At the discretion of the district director or consular 
officer, original documents, even if accompanied by certified copies, 
may be temporarily retained for further examination.
    (1) Proof of identity. Evidence to establish identity is listed 
below in descending order of preference:
    (i) Passport;
    (ii) Birth certificate;
    (iii) Any national identity document from a foreign country bearing 
a photo and/or fingerprint (e.g., ``cedula'', ``cartilla'', ``carte 
d'identite,'' etc.);
    (iv) Driver's license or similar document issued by a state if it 
contains a photo;
    (v) Baptismal record or marriage certificate;
    (vi) Affidavits, or
    (vii) Such other documentation which may establish the identity of 
the applicant.
    (2) Assumed names--(i) General. In cases where an applicant claims 
to have met any of the eligibility criteria under an assumed name, the 
applicant has the burden of proving that the applicant was in fact the 
person who used that name.
    (ii) Proof of common identity. The most persuasive evidence is a 
document issued in the assumed name which identifies the applicant by 
photograph, fingerprint or detailed physical description. Other evidence 
which will be considered are affidavit(s) by a person or persons other 
than the applicant, made under oath, which identify the affiant by name 
and address and state the affiant's relationship to the applicant and 
the basis of the affiant's knowledge of the applicant's use of the 
assumed name. Affidavits accompanied by a photograph which has been 
identified by the affiant as the individual known to the affiant under 
the assumed name in question will carry greater weight. Other documents 
showing the assumed name may serve to establish the common identity when 
substantiated by corroborating detail.
    (3) Proof of employment. The applicant may establish qualifying 
employment through government employment records, or records maintained 
by agricultural producers, farm labor contractors, collective bargaining 
organizations and other groups or organizations which maintain records 
of employment, or such other evidence as worker identification issued by 
employers or collective bargaining organizations, union membership cards 
or other union records such as dues receipts or records of the 
applicant's involvement or that of his or her immediate family with 
organizations providing services to farmworkers, or work records such as 
pay stubs, piece work receipts, W-2 Forms or certification of the filing 
of Federal income tax returns on IRS Form 6166, or state verification of 
the filing of state income tax returns. Affidavits may be submitted 
under oath, by agricultural producers, foremen, farm labor contractors, 
union officials, fellow employees, or other persons with specific

[[Page 225]]

knowledge of the applicant's employment. The affiant must be identified 
by name and address; the name of the applicant and the relationship of 
the affiant to the applicant must be stated; and the source of the 
information in the affidavit (e.g. personal knowledge, reliance on 
information provided by others, etc.) must be indicated. The affidavit 
must also provide information regarding the crop and the type of work 
performed by the applicant and the period during which such work was 
performed. The affiant must provide a certified copy of corroborating 
records or state the affiant's willingness to personally verify the 
information provided. The weight and probative value of any affidavit 
accepted will be determined on the basis of the substance of the 
affidavit and any documents which may be affixed thereto which may 
corroborate the information provided.
    (4) Proof of residence. Evidence to establish residence in the 
United States during the requisite period(s) includes: Employment 
records as described in paragraph (c)(3) of this section; utility bills 
(gas, electric, phone, etc.), receipts, or letters from companies 
showing the dates during which the applicant received service; school 
records (letters, report cards, etc.) from the schools that the 
applicant or his or her children have attended in the United States 
showing the name of school, name and, if available, address of student, 
and periods of attendance, and hospital or medical records showing 
similar information; attestations by churches, unions, or other 
organizations to the applicant's residence by letter which: Identify 
applicant by name, are signed by an official (whose title is shown), 
show inclusive dates of membership, state the address where applicant 
resided during the membership period, include the seal of the 
organization impressed on the letter, establish how the author knows the 
applicant, and the origin of the information; and additional documents 
that could show that the applicant was in the United States at a 
specific time, such as: Money order receipts for money sent out of the 
country; passport entries; birth certificates of children born in the 
United States; bank books with dated transactions; letters of 
correspondence between the applicant and another person or organization; 
Social Security card; Selective Service card; automobile license 
receipts, title, vehicle registration, etc.; deeds, mortgages, contracts 
to which applicant has been a party; tax receipts; insurance policies, 
receipts, or letters; and any other document that will show that 
applicant was in the United States at a specific time. For Group 2 
eligibility, evidence of performance of the required 90 man-days of 
seasonal agricultural services shall constitute evidence of qualifying 
residence.
    (5) Proof of financial responsibility. Generally, the evidence of 
employment submitted under paragraph (c)(3) of this section will serve 
to demonstrate the alien's financial responsibility. If it appears that 
the applicant may be inadmissible under section 212(a)(15) of the Act, 
he or she may be required to submit documentation showing a history of 
employment without reliance on public cash assistance for all periods of 
residence in the United States.
    (d) Ineligible classes. The following classes of aliens are 
ineligible for temporary residence under this part:
    (1) An alien who at any time was a nonimmigrant exchange visitor 
under section 101(a)(15)(J) of the Act who is subject to the two-year 
foreign residence requirement unless the alien has complied with that 
requirement or the requirement has been waived pursuant to the 
provisions of section 212(e) of the Act;
    (2) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived, pursuant to 
section 210(c)(2)(B)(ii) of the Act;
    (3) An alien who has been convicted of a felony, or three or more 
misdemeanors.
    (e) Exclusion grounds--(1) Grounds of exclusion not to be applied. 
Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act 
shall not apply to applicants applying for temporary resident status.
    (2) Waiver of grounds for exclusion. Except as provided in paragraph 
(e)(3) of this section, the Service may waive any other provision of 
section 212(a) of the Act only in the case of individual aliens for 
humanitarian purposes, to

[[Page 226]]

assure family unity, or when the granting of such a waiver is in the 
public interest. If an alien is excludable on grounds which may be 
waived as set forth in this paragraph, he or she shall be advised of the 
procedures for applying for a waiver of grounds of excludability on Form 
I-690. When an application for waiver of grounds of excludability is 
submitted in conjunction with an application for temporary residence 
under this section, it shall be accepted for processing at the 
legalization office, overseas processing office, or designated port of 
entry. If an application for waiver of grounds of excludability is 
submitted after the alien's preliminary interview at the legalization 
office it shall be forwarded to the appropriate regional processing 
facility. All applications for waivers of grounds of excludability must 
be accompanied by the correct fee in the exact amount. All fees for 
applications filed in the United States other than those within the 
provisions of Sec. 210.2(c)(4) must be in the form of a money order, 
cashier's check, or bank check. No personal checks or currency will be 
accepted. Fees for waiver applications filed at the designated port of 
entry under the preliminary application standard must be submitted in 
United States currency. Fees will not be waived or refunded under any 
circumstances. Generally, an application for waiver of grounds of 
excludability under this part submitted at a legalization office or 
overseas processing office will be approved or denied by the director of 
the regional processing facility in whose jurisdiction the applicant's 
application for adjustment of status was filed. However, in cases 
involving clear statutory ineligibility or admitted fraud, such 
application for a waiver may be denied by the district director in whose 
jurisdiction the application is filed; in cases filed at overseas 
processing offices, such application for a waiver may be denied by a 
consular officer; or, in cases returned to a legalization office for 
reinterview, such application may be approved at the discretion of the 
district director. Waiver applications filed at the port of entry under 
the preliminary application standard will be approved or denied by the 
district director having jurisdiction over the port of entry. The 
applicant shall be notified of the decision and, if the application is 
denied, of the reason(s) therefor. The applicant may appeal the decision 
within 30 days after the service of the notice pursuant to the 
provisions of Sec. 103.3(a)(2) of this chapter.
    (3) Grounds of exclusion that may not be waived. The following 
provisions of section 212(a) of the Act may not be waived:
    (i) Paragraphs (9) and (10) (criminals);
    (ii) Paragraph (15) (public charge) except as provided in paragraph 
(c)(4) of this section.
    (iii) Paragraph (23) (narcotics) except for a single offense of 
simple possession of thirty grams or less of marijuana.
    (iv) Paragraphs (27), (prejudicial to the public interest), (28), 
(communists), and (29) (subversive);
    (v) Paragraph (33) (Nazi persecution).
    (4) Special Rule for determination of public charge. An applicant 
who has a consistent employment history which shows the ability to 
support himself and his or her family, even though his income may be 
below the poverty level, is not excludable under paragraph (e)(3)(ii) of 
this section. The applicant's employment history need not be continuous 
in that it is uninterrupted. It should be continuous in the sense that 
the applicant shall be regularly attached to the workforce, has an 
income over a substantial period of the applicable time, and has 
demonstrated the capacity to exist on his or her income and maintain his 
or her family without reliance on public cash assistance. This 
regulation is prospective in that the Service shall determine, based on 
the applicant's history, whether he or she is likely to become a public 
charge. Past acceptance of public cash assistance within a history of 
consistent employment will enter into this decision. The weight given in 
considering applicability of the public charge provisions will depend on 
many factors, but the length of time an applicant has received public 
cash assistance will constitute a significant factor.

[53 FR 10064, Mar. 29, 1988, as amended at 53 FR 27335, July 20, 1988; 
54 FR 4757, Jan. 31, 1989; 55 FR 12629, Apr. 5, 1990]

[[Page 227]]



Sec. 210.4  Status and benefits.

    (a) Date of adjustment. The status of an alien whose application for 
temporary resident status is approved shall be adjusted to that of a 
lawful temporary resident as of the date on which the fee was paid at a 
legalization office, except that the status of an alien who applied for 
such status at an overseas processing office whose application has been 
recommended for approval by that office shall be adjusted as of the date 
of his or her admission into the United States.
    (b) Employment and travel authorization--(1) General. Authorization 
for employment and travel abroad for temporary resident status 
applicants under section 210 of the Act be granted by the INS. In the 
case of an application which has been filed with a qualified designated 
entity, employment authorization may only be granted after a 
nonfrivolous application has been received at a legalization office, and 
receipt of the fee has been recorded.
    (2) Employment and travel authorization prior to the granting of 
temporary resident status. Permission to travel abroad and to accept 
employment will be granted to the applicant after an interview has been 
conducted in connection with a nonfrivolous application at a Service 
office. If an interview appointment cannot be scheduled within 30 days 
from the date an application is filed at a Service office, authorization 
to accept employment will be granted, valid until the scheduled 
appointment date. Employment authorization, both prior and subsequent to 
an interview, will be restricted to increments not exceeding 1 year, 
pending final determination on the application for temporary resident 
status. If a final determination has not been made prior to the 
expiration date on the Employment Authorization Document (Form I-766, 
Form I-688A or Form I-688B) that date may be extended upon return of the 
employment authorization document by the applicant to the appropriate 
Service office. Persons submitting applications who currently have work 
authorization incident to status as defined in Sec. 274a.12(b) of this 
chapter shall be granted work authorization by the Service effective on 
the date the alien's prior work authorization expires. Permission to 
travel abroad shall be granted in accordance with the Service's advance 
parole provisions contained in Sec. 212.5(e) of this chapter.
    (3) Employment and travel authorization upon grant of temporary 
resident status. Upon the granting of an application for adjustment to 
temporary resident status, the service center will forward a notice of 
approval to the applicant at his or her last known address and to his or 
her qualified designated entity or representative. The applicant may 
appear at any Service office, and upon surrender of the previously 
issued Employment Authorization Document, will be issued Form I-688, 
Temporary Resident Card. An alien whose status is adjusted to that of a 
lawful temporary resident under section 210 of the Act has the right to 
reside in the United States, to travel abroad (including commuting from 
a residence abroad), and to accept employment in the United States in 
the same manner as aliens lawfully admitted to permanent residence.
    (c) Ineligibility for immigration benefits. An alien whose status is 
adjusted to that of a lawful temporary resident under section 210 of the 
Act is not entitled to submit a petition pursuant to section 203(a)(2) 
of the Act or to any other benefit or consideration accorded under the 
Act to aliens lawfully admitted for permanent residence, except as 
provided in paragraph (b)(3) of this section.
    (d) Termination of temporary resident status--(1) General. The 
temporary resident status of a special agricultural worker is terminated 
automatically and without notice under section 210(a)(3) of the Act upon 
entry of a final order of deportation by an immigration judge based on a 
determination that the alien is deportable under section 241 of the Act.
    (2) The status of an alien lawfully admitted for temporary residence 
under section 210(a)(2) of the Act, may be terminated before the alien 
becomes eligible for adjustment of status under Sec. 210.5 of this part, 
upon the occurrence of any of the following:
    (i) It is determined by a preponderance of the evidence that the 
adjustment to temporary resident status was

[[Page 228]]

the result of fraud or willful misrepresentation as provided in section 
212(a)(19) of the Act;
    (ii) The alien commits an act which renders him or her inadmissible 
as an immigrant, unless a waiver is secured pursuant to Sec. 210.3(e)(2) 
of this part;
    (iii) The alien is convicted of any felony, or three or more 
misdemeanors in the United States.
    (3) Procedure. (i) Termination of an alien's status under paragraph 
(d)(2) of this section will be made only on notice to the alien sent by 
certified mail directed to his or her last known address, and to his or 
her representative. The alien must be given an opportunity to offer 
evidence in opposition to the grounds alleged for termination of his or 
her status. Evidence in opposition must be submitted within thirty (30) 
days after the service of the Notice of Intent to Terminate. If the 
alien's status is terminated, the director of the regional processing 
facility shall notify the alien of the decision and the reasons for the 
termination, and further notify the alien that any Service Form I-94, 
Arrival-Departure Record or other official Service document issued to 
the alien authorizing employment and/or travel abroad, or any Form I-
688, Temporary Resident Card previously issued to the alien will be 
declared void by the director of the regional processing facility within 
thirty (30) days if no appeal of the termination decision is filed 
within that period. The alien may appeal the decision to the Associate 
Commissioner, Examinations (Administrative Appeals Unit) using Form I-
694. Any appeal with the required fee shall be filed with the regional 
processing facility within thirty (30) days after the service of the 
notice of termination. If no appeal is filed within that period, the 
Forms I-94, I-688 or other official Service document shall be deemed 
void, and must be surrendered without delay to an immigration officer or 
to the issuing office of the Service.
    (ii) Termination proceedings must be commenced before the alien 
becomes eligible for adjustment of status under Sec. 210.5 of this part. 
The timely commencement of termination proceedings will preclude the 
alien from becoming a lawful permanent resident until a final 
determination is made in the proceedings, including any appeal.

[53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990; 60 
FR 21975, May 4, 1995; 61 FR 46536, Sept. 4, 1996]

    Effective Date Note: At 65 FR 82255, Dec. 28, 2000, Sec. 210.4 was 
amended by revising the reference to ``212.5(e)'' to read ``212.5(f)'' 
in the last sentence of paragraph (b)(2), effective Jan. 29, 2001.



Sec. 210.5  Adjustment to permanent resident status.

    (a) Eligibility and date of adjustment to permanent resident status. 
The status of an alien lawfully admitted to the United States for 
temporary residence under section 210(a)(1) of the Act, if the alien has 
otherwise maintained such status as required by the Act, shall be 
adjusted to that of an alien lawfully admitted to the United States for 
permanent residence as of the following dates:
    (1) Group 1. Aliens determined to be eligible for Group 1 
classification, whose adjustment to temporary residence occurred prior 
to November 30, 1988, shall be adjusted to lawful permanent residence as 
of December 1, 1989. Those aliens whose adjustment to temporary 
residence occurred after November 30, 1988 shall be adjusted to lawful 
permanent residence one year from the date of the adjustment to 
temporary residence.
    (2) Group 2. Aliens determined to be eligible for Group 2 
classification whose adjustment to temporary residence occurred prior to 
November 30, 1988, shall be adjusted to lawful permanent residence as of 
December 1, 1990. Those aliens whose adjustment to temporary residence 
occurred after November 30, 1988 shall be adjusted to lawful permanent 
residence two years from the date of the adjustment to temporary 
residence.
    (b) ADIT processing--(1) General. To obtain proof of permanent 
resident status an alien described in paragraph (a) of this section must 
appear at a legalization or Service office designated for this purpose 
for preparation of Form I-551, Permanent Resident Card. Such appearance 
may be prior to the date of adjustment, but only upon invitation by the 
Service. Form I-551 shall be

[[Page 229]]

issued subsequent to the date of adjustment.
    (2) Upon appearance at a Service office for preparation of Form I-
551, an alien must present proof of identity, suitable ADIT photographs, 
and a fingerprint and signature must be obtained from the alien on Form 
I-89.

[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989; 63 
FR 70315, Dec. 21, 1998]



PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS--Table of Contents




Sec.
211.1  Visas.
211.2  Passports.
211.3  Expiration of immigrant visas, reentry permits, refugee travel 
          documents, and Form I-551.
211.4  Waiver of documents for returning residents.
211.5  Alien commuters.

    Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 CFR 
part 2.

    Source: 62 FR 10346, Mar. 6, 1997, unless otherwise noted.



Sec. 211.1  Visas.

    (a) General. Except as provided in paragraph (b)(1) of this section, 
each arriving alien applying for admission (or boarding the vessel or 
aircraft on which he or she arrives) into the United States for lawful 
permanent residence, or as a lawful permanent resident returning to an 
unrelinquished lawful permanent residence in the United States, shall 
present one of the following:
    (1) A valid, unexpired immigrant visa;
    (2) A valid, unexpired Form I-551, Permanent Resident Card, if 
seeking readmission after a temporary absence of less than 1 year, or in 
the case of a crewmember regularly serving on board a vessel or aircraft 
of United States registry seeking readmission after any temporary 
absence connected with his or her duties as a crewman;
    (3) A valid, unexpired Form I-327, Permit to Reenter the United 
States;
    (4) A valid, unexpired Form I-571, Refugee Travel Document, properly 
endorsed to reflect admission as a lawful permanent resident;
    (5) An expired Form I-551, Permanent Resident Card, accompanied by a 
filing receipt issued within the previous 6 months for either a Form I-
751, Petition to Remove the Conditions on Residence, or Form I-829, 
Petition by Entrepreneur to Remove Conditions, if seeking admission or 
readmission after a temporary absence of less than 1 year;
    (6) A Form I-551, whether or not expired, presented by a civilian or 
military employee of the United States Government who was outside the 
United States pursuant to official orders, or by the spouse or child of 
such employee who resided abroad while the employee or serviceperson was 
on overseas duty and who is preceding, accompanying or following to join 
within 4 months the employee, returning to the United States; or
    (7) Form I-551, whether or not expired, or a transportation letter 
issued by an American consular officer, presented by an employee of the 
American University of Beirut, who was so employed immediately preceding 
travel to the United States, returning temporarily to the United States 
before resuming employment with the American University of Beirut, or 
resuming permanent residence in the United States.
    (b) Waivers. (1) A waiver of the visa required in paragraph (a) of 
this section shall be granted without fee or application by the district 
director, upon presentation of the child's birth certificate, to a child 
born subsequent to the issuance of an immigrant visa to his or her 
accompanying parent who applies for admission during the validity of 
such a visa; or a child born during the temporary visit abroad of a 
mother who is a lawful permanent resident alien, or a national, of the 
United States, provided that the child's application for admission to 
the United States is made within 2 years of birth, the child is 
accompanied by the parent who is applying for readmission as a permanent 
resident upon the first return of the parent to the United States after 
the birth of the child, and the accompanying parent is found to be 
admissible to the United States.
    (2) For an alien described in paragraph (b)(1) of this section, 
recordation

[[Page 230]]

of the child's entry shall be on Form I-181, Memorandum of Creation of 
Record of Admission for Lawful Permanent Residence. The carrier of such 
alien shall not be liable for a fine pursuant to section 273 of the Act.
    (3) If an immigrant alien returning to an unrelinquished lawful 
permanent residence in the United States after a temporary absence 
abroad believes that good cause exists for his or her failure to present 
an immigrant visa, Form I-551, or reentry permit, the alien may file an 
application for a waiver of this requirement with the district director 
in charge of the port-of-entry. To apply for this waiver, the alien must 
file Form I-193, Application for Waiver of Passport and/or Visa, with 
the fee prescribed in Sec. 103.7(b)(1) of this chapter, except that if 
the alien's Form I-551 was lost or stolen, the alien shall instead file 
Form I-90, Application to Replace Permanent Resident Card, with the fee 
prescribed in Sec. 103.7(b)(1) of this chapter, provided the temporary 
absence did not exceed 1 year. In the exercise of discretion, the 
district director in charge of the port-of-entry may waive the alien's 
lack of an immigrant visa, Form I-551, or reentry permit and admit the 
alien as a returning resident, if the district director is satisfied 
that the alien has established good cause for the alien's failure to 
present an immigrant visa, Form I-551, or reentry permit. Filing the 
Form I-90 will serve as both application for replacement and as 
application for waiver of passport and visa, without the obligation to 
file a separate waiver application.
    (c) Immigrants having occupational status defined in section 
101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry 
permit, or Form I-551 shall be invalid when presented by an alien who 
has an occupational status under section 101(a)(15) (A), (E), or (G) of 
the Act, unless he or she has previously submitted, or submits at the 
time he or she applies for admission to the United States, the written 
waiver required by section 247(b) of the Act and 8 CFR part 247.
    (d) Returning temporary residents. (1) Form I-688, Temporary 
Resident Card, may be presented in lieu of an immigrant visa by an alien 
whose status has been adjusted to that of a temporary resident under the 
provisions of Sec. 210.1 of this chapter, such status not having 
changed, and who is returning to an unrelinquished residence within one 
year after a temporary absence abroad.
    (2) Form I-688 may be presented in lieu of an immigrant visa by an 
alien whose status has been adjusted to that of a temporary resident 
under the provisions of Sec. 245a.2 of this chapter, such status not 
having changed, and who is returning to an unrelinquished residence 
within 30 days after a temporary absence abroad, provided that the 
aggregate of all such absences abroad during the temporary residence 
period has not exceeded 90 days.

[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 39218, July 22, 1998; 63 
FR 70315, Dec. 21, 1998]



Sec. 211.2  Passports.

    (a) A passport valid for the bearer's entry into a foreign country 
at least 60 days beyond the expiration date of his or her immigrant visa 
shall be presented by each immigrant except an immigrant who:
    (1) Is the parent, spouse, or unmarried son or daughter of a United 
States citizen or of an alien lawful permanent resident of the United 
States;
    (2) Is entering under the provisions of Sec. 211.1(a)(2) through 
(a)(7);
    (3) Is a child born during the temporary visit abroad of a mother 
who is a lawful permanent resident alien, or a national, of the United 
States, provided that the child's application for admission to the 
United States is made within 2 years of birth, the child is accompanied 
by the parent who is applying for readmission as a permanent resident 
upon the first return of the parent to the United States after the birth 
of the child, and the accompanying parent is found to be admissible to 
the United States;
    (4) Is a stateless person or a person who because of his or her 
opposition to Communism is unwilling or unable to obtain a passport from 
the country of his or her nationality, or is the accompanying spouse or 
unmarried son or daughter of such immigrant; or
    (5) Is a member of the Armed Forces of the United States.

[[Page 231]]

    (b) Except as provided in paragraph (a) of this section, if an alien 
seeking admission as an immigrant with an immigrant visa believes that 
good cause exists for his or her failure to present a passport, the 
alien may file an application for a waiver of this requirement with the 
district director in charge of the port-of-entry. To apply for this 
waiver, the alien must file Form I-193, Application for Waiver of 
Passport and/or Visa, with the fee prescribed in Sec. 103.7(b)(1) of 
this chapter. In the exercise of discretion, the district director in 
charge of the port-of-entry may waive the alien's lack of passport and 
admit the alien as an immigrant, if the district director is satisfied 
that the alien has established good cause for the alien's failure to 
present a passport.



Sec. 211.3  Expiration of immigrant visas, reentry permits, refugee travel documents, and Form I-551.

    An immigrant visa, reentry permit, refugee travel document, or Form 
I-551 shall be regarded as unexpired if the rightful holder embarked or 
enplaned before the expiration of his or her immigrant visa, reentry 
permit, or refugee travel document, or with respect to Form I-551, 
before the first anniversary of the date on which he or she departed 
from the United States, provided that the vessel or aircraft on which he 
or she so embarked or enplaned arrives in the United States or foreign 
contiguous territory on a continuous voyage. The continuity of the 
voyage shall not be deemed to have been interrupted by scheduled or 
emergency stops of the vessel or aircraft en route to the United States 
or foreign contiguous territory, or by a layover in foreign contiguous 
territory necessitated solely for the purpose of effecting a 
transportation connection to the United States.



Sec. 211.4  Waiver of documents for returning residents.

    (a) Pursuant to the authority contained in section 211(b) of the 
Act, an alien previously lawfully admitted to the United States for 
permanent residence who, upon return from a temporary absence was 
inadmissible because of failure to have or to present a valid passport, 
immigrant visa, reentry permit, border crossing card, or other document 
required at the time of entry, may be granted a waiver of such 
requirement in the discretion of the district director if the district 
director determines that such alien:
    (1) Was not otherwise inadmissible at the time of entry, or having 
been otherwise inadmissible at the time of entry is with respect thereto 
qualified for an exemption from deportability under section 237(a)(1)(H) 
of the Act; and
    (2) Is not otherwise subject to removal.
    (b) Denial of a waiver by the district director is not appealable 
but shall be without prejudice to renewal of an application and 
reconsideration in proceedings before the immigration judge.



Sec. 211.5  Alien commuters.

    (a) General. An alien lawfully admitted for permanent residence or a 
special agricultural worker lawfully admitted for temporary residence 
under section 210 of the Act may commence or continue to reside in 
foreign contiguous territory and commute as a special immigrant defined 
in section 101(a)(27)(A) of the Act to his or her place of employment in 
the United States. An alien commuter engaged in seasonal work will be 
presumed to have taken up residence in the United States if he or she is 
present in this country for more than 6 months, in the aggregate, during 
any continuous 12-month period. An alien commuter's address report under 
section 265 of the Act must show his or her actual residence address 
even though it is not in the United States.
    (b) Loss of residence status. An alien commuter who has been out of 
regular employment in the United States for a continuous period of 6 
months shall be deemed to have lost residence status, notwithstanding 
temporary entries in the interim for other than employment purposes. An 
exception applies when employment in the United States was interrupted 
for reasons beyond the individual's control other than lack of a job 
opportunity or the commuter can demonstrate that he or she has worked 90 
days in the United States in the aggregate during the 12-month period 
preceding the application for admission

[[Page 232]]

into the United States. Upon loss of status, Form I-551 or I-688 shall 
become invalid and must be surrendered to an immigration officer.
    (c) Eligibility for benefits under the immigration and nationality 
laws. Until he or she has taken up residence in the United States, an 
alien commuter cannot satisfy the residence requirements of the 
naturalization laws and cannot qualify for any benefits under the 
immigration laws on his or her own behalf or on behalf of his or her 
relatives other than as specified in paragraph (a) of this section. When 
an alien commuter takes up residence in the United States, he or she 
shall no longer be regarded as a commuter. He or she may facilitate 
proof of having taken up such residence by notifying the Service as soon 
as possible, preferably at the time of his or her first reentry for that 
purpose. Application for issuance of a new Permanent Resident Card to 
show that he or she has taken up residence in the United States shall be 
made on Form I-90.

[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 70315, Dec. 21, 1998]



PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents




Sec.
212.1  Documentary requirements for nonimmigrants.
212.2  Consent to reapply for admission after deportation, removal or 
          departure at Government expense.
212.3  Application for the exercise of discretion under section 212(c).
212.4  Applications for the exercise of discretion under section 
          212(d)(1) and 212(d)(3).
212.5  Parole of aliens into the United States.
212.6  Nonresident alien border crossing cards.
212.7  Waiver of certain grounds of excludability.
212.8  Certification requirement of section 212(a)(14).
212.9  Applicability of section 212(a)(32) to certain derivative third 
          and sixth preference and nonpreference immigrants.
212.10  Section 212(k) waiver.
212.11  Controlled substance convictions.
212.12  Parole determinations and revocations respecting Mariel Cubans.
212.13  [Reserved]
212.14  Parole determinations for alien witnesses and informants for 
          whom a law enforcement authority (``LEA'') will request S 
          classification.
212.15  Certificates for foreign health care workers.

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 1226, 
1227, 1228, 1252; 8 CFR part 2.



Sec. 212.1  Documentary requirements for nonimmigrants.

    A valid unexpired visa and an unexpired passport, valid for the 
period set forth in section 212(a)(26) of the Act, shall be presented by 
each arriving nonimmigrant alien except that the passport validity 
period for an applicant for admission who is a member of a class 
described in section 102 of the Act is not required to extend beyond the 
date of his application for admission if so admitted, and except as 
otherwise provided in the Act, this chapter, and for the following 
classes:
    (a) Canadian nationals, and aliens having a common nationality with 
nationals of Canada or with British subjects in Bermuda, Bahamian 
nationals or British subjects resident in Bahamas, Cayman Islands, and 
Turks and Caicos Islands. A visa is not required of a Canadian national 
in any case. A passport is not required of such national except after a 
visit outside of the Western Hemisphere. A visa is not required of an 
alien having a common nationality with Canadian nationals or with 
British subjects in Bermuda, who has his or her residence in Canada or 
Bermuda. A passport is not required of such alien except after a visit 
outside of the Western Hemisphere. A visa and a passport are required of 
a Bahamian national or a British subject who has his residence in the 
Bahamas except that a visa is not required of such an alien who, prior 
to or at the time of embarkation for the United States on a vessel or 
aircraft, satisfied the examining U.S. immigration officer at the 
Bahamas, that he is clearly and beyond a doubt entitled to admission in 
all other respects. A visa is not required of a British subject who has 
his residence in, and arrives directly from, the Cayman Islands or the 
Turks and Caicos Islands and who presents a current certificate from the 
Clerk of Court of the Cayman

[[Page 233]]

Islands or the Turks and Caicos Islands indicating no criminal record.
    (b) Certain Caribbean residents--(1) British, French, and 
Netherlands nationals, and nationals of certain adjacent islands of the 
Caribbean which are independent countries. A visa is not required of a 
British, French, or Netherlands national, or of a national of Barbados, 
Grenada, Jamaica, or Trinidad and Tobago, who has his or her residence 
in British, French, or Netherlands territory located in the adjacent 
islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or 
Trinidad and Tobago, who:
    (i) Is proceeding to the United States as an agricultural worker;
    (ii) Is the beneficiary of a valid, unexpired indefinite 
certification granted by the Department of Labor for employment in the 
Virgin Islands of the United States and is proceeding to the Virgin 
Islands of the United States for such purpose, or
    (iii) Is the spouse or child of an alien described in paragraph 
(b)(1)(i) or (b)(1)(ii) of this section, and is accompanying or 
following to join him or her.
    (2) Nationals of the British Virgin Islands. A visa is not required 
of a national of the British Virgin Islands who has his or her residence 
in the British Virgin Islands, if:
    (i) The alien is seeking admission solely to visit the Virgin 
Islands of the United States; or
    (ii) At the time of embarking on an aircraft at St. Thomas, U.S. 
Virgin Islands, the alien meets each of the following requirements:
    (A) The alien is traveling to any other part of the United States by 
aircraft as a nonimmigrant visitor for business or pleasure (as 
described in section 101(a)(15)(B) of the Act);
    (B) The alien satisfies the examining U.S. Immigration officer at 
the port-of-entry that he or she is clearly and beyond a doubt entitled 
to admission in all other respects; and
    (C) The alien presents a current Certificate of Good Conduct issued 
by the Royal Virgin Islands Police Department indicating that he or she 
has no criminal record.
    (c) Mexican nationals. A visa and a passport are not required of a 
Mexican national who is in possession of a border crossing card on Form 
I-186 or I-586 and is applying for admission as a temporary visitor for 
business or pleasure from continguous territory; or is entering solely 
for the purpose of applying for a Mexican passport or other official 
Mexican document at a Mexican consular office on the United States side 
of the border. A visa is not required of a Mexican national who is in 
possession of a border crossing card and is applying for admission to 
the United States as a temporary visitor for business or pleasure from 
other than contiguous territory. A visa is not required of a Mexican 
national who is a crewman employed on an aircraft belonging to a Mexican 
company authorized to engage in commercial transportation into the 
United States.
    (c-1)  Bearers of Mexican diplomatic or official passports. A visa 
shall not be required by a Mexican national bearing a Mexican diplomatic 
or official passport who is a military or civilian official of the 
Federal Government of Mexico entering the United States for six months 
or less for a purpose other than on assignment as a permanent employee 
to an office of the Mexican Federal Government in the United States and 
the official's spouse or any of the official's dependent family members 
under 19 years of age, bearing diplomatic or official passports, who are 
in the actual company of such official at the time of entry into the 
United States. This waiver does not apply to the spouse or any of the 
official's family members classifiable under section 101(a)(15) (F) or 
(M) of the Act.
    (c-2)  Aliens entering pursuant to International Boundary and Water 
Commission Treaty. A visa and a passport are not required of an alien 
employed either directly or indirectly on the construction, operation, 
or maintenance of works in the United States undertaken in accordance 
with the treaty concluded on February 3, 1944, between, the United 
States and Mexico regarding the functions of the International Boundary 
and Water Commission, and entering the United States temporarily in 
connection with such employment.
    (d) Citizens of the Freely Associated States, formerly Trust 
Territory of the Pacific Islands. Citizens of the Republic of

[[Page 234]]

the Marshall Islands and the Federated States of Micronesia may enter 
into, lawfully engage in employment, and establish residence in the 
United States and its territories and possessions without regard to 
paragraphs (14), (20) and (26) of section 212(a) of the Act pursuant to 
the terms of Pub. L. 99-239. Pending issuance by the aforementioned 
governments of travel documents to eligible citizens, travel documents 
previously issued by the Trust Territory of the Pacific Islands will 
continue to be accepted for purposes of identification and to establish 
eligibility for admission into the United States, its territories and 
possessions.
    (e) Aliens entering Guam pursuant to section 14 of Pub. L. 99-396, 
``Omnibus Territories Act.'' (1) A visa is not required of an alien who 
is a citizen of a country enumerated in paragraph (e)(3) of this section 
who:
    (i) Is classifiable as a vistor for business or pleasure;
    (ii) Is solely entering and staying on Guam for a period not to 
exceed fifteen days;
    (iii) Is in possession of a round-trip nonrefundable and 
nontransferable transportation ticket bearing a confirmed departure date 
not exceeding fifteen days from the date of admission to Guam;
    (iv) Is in possession of a completed and signed Visa Waiver 
Information Form (Form I-736);
    (v) Waives any right to review or appeal the immigration officer's 
determination of admissibility at the port of entry at Guam; and
    (vi) Waives any right to contest any action for deportation, other 
than on the basis of a request for asylum.
    (2) An alien is eligible for the waiver provision if all of the 
eligibility criteria in paragraph (e)(1) of this section have been met 
prior to embarkation and the alien is a citizen of a country that:
    (i) Has a visa refusal rate of 16.9% or less, or a country whose 
visa refusal rate exceeds 16.9% and has an established preinspection or 
preclearance program, pursuant to a bilateral agreement with the United 
States under which its citizens traveling to Guam without a valid United 
States visa are inspected by the Immigration and Naturalization Service 
prior to departure from that country;
    (ii) Is within geographical proximity to Guam, unless the country 
has a substantial volume of nonimmigrant admissions to Guam as 
determined by the Commissioner and extends reciprocal privileges to 
citizens of the United States;
    (iii) Is not designated by the Department of State as being of 
special humanitarian concern; and
    (iv) Poses no threat to the welfare, safety or security of the 
United States, its territories, or commonwealths.

Any potential threats to the welfare, safety, or security of the United 
States, its territories, or commonwealths will be dealt with on a 
country by country basis, and a determination by the Commissioner of the 
Immigration and Naturalization Service that a threat exists will result 
in the immediate deletion of that country from the listing in paragraph 
(e)(3) of this section.
    (3)(i) The following geographic areas meet the eligibility criteria 
as stated in paragraph (e)(2) of this section: Australia, Brunei, Burma, 
Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea, 
Republic of Korea, Singapore, Solomon Islands, Taiwan (residents thereof 
who begin their travel in Taiwan and who travel on direct flights from 
Taiwan to Guam without an intermediate layover or stop except that the 
flights may stop in a territory of the United States enroute), the 
United Kingdom (including the citizens of the colony of Hong Kong), 
Vanuatu, and Western Samoa. The provision that flights transporting 
residents of Taiwan to Guam may stop at a territory of the United States 
enroute may be rescinded whenever the number of inadmissible passengers 
arriving in Guam who have transited a territory of the United States 
enroute to Guam exceeds 20 percent of all the inadmissible passengers 
arriving in Guam within any consecutive two-month period. Such 
rescission will be published in the Federal Register.
    (ii) For the purposes of this section, the term citizen of a country 
as used in 8 CFR 212.1(e)(1) when applied to Taiwan refers only to 
residents of Taiwan

[[Page 235]]

who are in possession of Taiwan National Identity Cards and a valid 
Taiwan passport with a valid re-entry permit issued by the Taiwan 
Ministry of Foreign Affairs. It does not refer to any other holder of a 
Taiwan passport or a passport issued by the People's Republic of China.
    (4) Admission under this section renders an alien ineligible for:
    (i) Adjustment of status to that of a temporary resident or, except 
under the provisions of section 245(i) of the Act, to that of a lawful 
permanent resident;
    (ii) Change of nonimmigrant status; or
    (iii) Extension of stay.
    (5) A transportation line bringing any alien to Guam pursuant to 
this section shall:
    (i) Enter into a contract on Form I-760, made by the Commissioner of 
the Immigration and Naturalization Service in behalf of the government;
    (ii) Transport only an alien who is a citizen and in possession of a 
valid passport of a country enumerated in paragraph (e)(3) of this 
section;
    (iii) Transport only an alien in possession of a round-trip, 
nontransferable transportation ticket:
    (A) Bearing a confirmed departure date not exceeding fifteen days 
from the date of admission to Guam,
    (B) Valid for a period of not less than one year,
    (C) Nonrefundable except in the country in which issued or in the 
country of the alien's nationality or residence,
    (D) Issued by a carrier which has entered into an agreement 
described in part (5)(i) of this section, and
    (E) Which the carrier will unconditionally honor when presented for 
return passage; and
    (iv) Transport only an alien in possession of a completed and signed 
Visa Waiver Information Form I-736.
    (f) Direct transits--(1) Transit without visa. A passport and visa 
are not required of an alien who is being transported in immediate and 
continuous transit through the United States in accordance with the 
terms of an agreement entered into between the transportation line and 
the Service under the provisions of section 238(d) of the Act on Form I-
426 to insure such immediate and continuous transit through, and 
departure from, the United States en route to a specifically designated 
foreign country: Provided, That such alien is in possession of a travel 
document or documents establishing his/her identity and nationality and 
ability to enter some country other than the United States.
    (2) Waiver of passport and visa. On the basis of reciprocity, the 
waiver of passport and visa is available to a national of Albania, 
Bulgaria, Czechoslovakia, Estonia, the German Democratic Republic, 
Hungary, Latvia, Lithuania, Mongolian People's Republic, People's 
Republic of China, Poland, Romania, or the Union of Soviet Socialist 
Republics resident in one of said countries, only if he/she is 
transiting the United States by aircraft of a transportation line 
signatory to an agreement with the Service on Form I-426 on a direct 
through flight which will depart directly to a foreign place from the 
port of arrival.
    (3) Unavailability to transit. This waiver of passport and visa 
requirement is not available to an alien who is a citizen of 
Afghanistan, Bangladesh, Cuba, India, Iran, Iraq, Libya, Pakistan, Sri 
Lanka, or a national of a Republic of the former Socialist Federal 
Republic of Yugoslavia (effective August 16, 1993) which includes 
Bosnia, Croatia, Serbia, Montenegro, Slovenia, and Macedonia. This 
waiver of passport and visa requirement is not available to an alien who 
is a citizen or national of North Korea (Democratic People's Republic of 
Korea) or Democratic Republic of Vietnam and is a resident of the said 
countries.
    (4) Foreign government officials in transit. If an alien is of the 
class described in section 212(d)(8) of the Act, only a valid unexpired 
visa and a travel document valid for entry into a foreign country for at 
least 30 days from the date of admission to the United States are 
required.
    (g) Unforeseen emergency. A nonimmigrant seeking admission to the 
United States must present an unexpired visa and a passport valid for 
the amount of time set forth in section 212(a)(7)(B) of the Act, or a 
valid border crossing identification card at the time of application for 
admission, unless the

[[Page 236]]

nonimmigrant satisfies the requirements described in one or more of the 
paragraphs (a) through (f) or (i) of this section. Upon a nonimmigrant's 
application on Form I-193, a district director at a port of entry may, 
in the exercise of his or her discretion, on a case-by-case basis, waive 
the documentary requirements, if satisfied that the nonimmigrant cannot 
present the required documents because of an unforeseen emergency. The 
district director or the Deputy Commissioner may at any time revoke a 
waiver previously authorized pursuant to this paragraph and notify the 
nonimmigrant in writing to that effect.
    (h) Fiancees or fiances of U.S. citizens. Notwithstanding any of the 
provisions of this part, an alien seeking admission as a fiancee or 
fiance of a U.S. citizen pursuant to section 101(a)(15)(K) of the Act 
shall be in possession of a nonimmigrant visa issued by an American 
consular officer classifying the alien under that section.
    (i) Visa Waiver Pilot Program. A visa is not required of any alien 
who is eligible to apply for admission to the United States as a Visa 
Waiver Pilot Program applicant pursuant to the provisions of section 217 
of the Act and part 217 of this chapter if such alien is a national of a 
country designated under the Visa Waiver Pilot Program, who seeks 
admission to the United States for a period of 90 days or less as a 
visitor for business or pleasure.
    (j) Officers authorized to act upon recommendations of United States 
consular officers for waiver of visa and passport requirements. All 
district directors, the officers in charge are authorized to act upon 
recommendations made by United States consular officers or by officers 
of the Visa Office, Department of State, pursuant to the provisions of 
22 CFR 41.7 for waiver of visa and passport requirements under the 
provisions of section 212(d)(4)(A) of the Act. The District Director at 
Washington, DC, has jurisdiction in such cases recommended to the 
Service at the seat of Government level by the Department of State. 
Neither an application nor fee are required if the concurrence in a 
passport or visa waiver is requested by a U.S. consular officer or by an 
officer of the Visa Office. The district director or the Deputy 
Commissioner, may at any time revoke a waiver previously authorized 
pursuant to this paragraph and notify the nonimmigrant alien in writing 
to that effect.
    (k) Cancellation of nonimmigrant visas by immigration officers. Upon 
receipt of advice from the Department of State that a nonimmigrant visa 
has been revoked or invalidated, and request by that Department for such 
action, immigration officers shall place an appropriate endorsement 
thereon.
    (l) Treaty traders and investors. Notwithstanding any of the 
provisions of this part, an alien seeking admission as a treaty trader 
or investor under the provisions of Chapter 16 of the North American 
Free Trade Agreement (NAFTA) pursuant to section 101(a)(15)(E) of the 
Act, shall be in possession of a nonimmigrant visa issued by an American 
consular officer classifying the alien under that section.
    (m) Aliens in S classification. Notwithstanding any of the 
provisions of this part, an alien seeking admission pursuant to section 
101(a)(15)(S) of the Act must be in possession of appropriate documents 
issued by a United States consular officer classifying the alien under 
that section.
    (n) Alien in Q-2 classification. Notwithstanding any of the 
provisions of this part, an alien seeking admission as a principal 
according to section 101(a)(15)(Q)(ii) of the Act must be in possession 
of a Certification Letter issued by the Department of State's Program 
Administrator documenting participation in the Irish peace process 
cultural and training programs.

(Secs. 103, 104, 212 of the Immigration and Nationality Act, as amended 
(8 U.S.C. 1103, 1104, 1132))

[26 FR 12066, Dec. 16, 1961]

    Editorial Note: For Federal Register citations affecting Sec. 212.1, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section in the printed volume and on GPO Access.



Sec. 212.2  Consent to reapply for admission after deportation, removal or departure at Government expense.

    (a) Evidence. Any alien who has been deported or removed from the 
United States is inadmissible to the United

[[Page 237]]

States unless the alien has remained outside of the United States for 
five consecutive years since the date of deportation or removal. If the 
alien has been convicted of an aggravated felony, he or she must remain 
outside of the United States for twenty consecutive years from the 
deportation date before he or she is eligible to re-enter the United 
States. Any alien who has been deported or removed from the United 
States and is applying for a visa, admission to the United States, or 
adjustment of status, must present proof that he or she has remained 
outside of the United States for the time period required for re-entry 
after deportation or removal. The examining consular or immigration 
officer must be satisfied that since the alien's deportation or removal, 
the alien has remained outside the United States for more than five 
consecutive years, or twenty consecutive years in the case of an alien 
convicted of an aggravated felony as defined in section 101(a)(43) of 
the Act. Any alien who does not satisfactorily present proof of absence 
from the United States for more than five consecutive years, or twenty 
consecutive years in the case of an alien convicted of an aggravated 
felony, to the consular or immigration officer, and any alien who is 
seeking to enter the United States prior to the completion of the 
requisite five- or twenty-year absence, must apply for permission to 
reapply for admission to the United States as provided under this part. 
A temporary stay in the United States under section 212(d)(3) of the Act 
does not interrupt the five or twenty consecutive year absence 
requirement.
    (b) Alien applying to consular officer for nonimmigrant visa or 
nonresident alien border crossing card. (1) An alien who is applying to 
a consular officer for a nonimmigrant visa or a nonresident alien border 
crossing card, must request permission to reapply for admission to the 
United States if five years, or twenty years if the alien's deportation 
was based upon a conviction for an aggravated felony, have not elapsed 
since the date of deportation or removal. This permission shall be 
requested in the manner prescribed through the consular officer, and may 
be granted only in accordance with sections 212(a)(17) and 212(d)(3)(A) 
of the Act and Sec. 212.4 of this part. However, the alien may apply for 
such permission by submitting Form I-212, Application for Permission to 
Reapply for Admission into the United States after Deportation or 
Removal, to the consular officer if that officer is willing to accept 
the application, and recommends to the district director that the alien 
be permitted to apply.
    (2) The consular officer shall forward the Form I-212 to the 
district director with jurisdiction over the place where the deportation 
or removal proceedings were held.
    (c) Special provisions for an applicant for nonimmigrant visa under 
section 101(a)(15)(K) of the Act. (1) An applicant for a nonimmigrant 
visa under section 101(a)(15)(K) must:
    (i) Be the beneficiary of a valid visa petition approved by the 
Service; and
    (ii) File an application on Form I-212 with the consular officer for 
permission to reapply for admission to the United States after 
deportation or removal.
    (2) The consular officer must forward the Form I-212 to the Service 
office with jurisdiction over the area within which the consular officer 
is located. If the alien is ineligible on grounds which, upon the 
applicant's marriage to the United States citizen petitioner, may be 
waived under section 212 (g), (h), or (i) of the Act, the consular 
officer must also forward a recommendation as to whether the waiver 
should be granted.
    (d) Applicant for immigrant visa. Except as provided in paragraph 
(g)(3) of this section, an applicant for an immigrant visa who is not 
physically present in the United States and who requires permission to 
reapply must file Form I-212 with the district director having 
jurisdiction over the place where the deportation or removal proceedings 
were held. Except as provided in paragraph (g)(3) of this section, if 
the applicant also requires a waiver under section 212 (g), (h), or (i) 
of the Act, Form I-601, Application for Waiver of Grounds of 
Excludability, must be filed simultaneously with the Form I-212 with the 
American consul having jurisdiction over the alien's place of residence. 
The consul must forward these forms to the appropriate Service

[[Page 238]]

office abroad with jurisdiction over the area within which the consul is 
located.
    (e) Applicant for adjustment of status. An applicant for adjustment 
of status under section 245 of the Act and part 245 of this chapter must 
request permission to reapply for entry in conjunction with his or her 
application for adjustment of status. This request is made by filing an 
application for permission to reapply, Form I-212, with the district 
director having jurisdiction over the place where the alien resides. If 
the application under section 245 of the Act has been initiated, 
renewed, or is pending in a proceeding before an immigration judge, the 
district director must refer the Form I-212 to the immigration judge for 
adjudication.
    (f) Applicant for admission at port of entry. Within five years of 
the deportation or removal, or twenty years in the case of an alien 
convicted of an aggravated felony, an alien may request permission at a 
port of entry to reapply for admission to the United States. The alien 
shall file the Form I-212 with the district director having jurisdiction 
over the port of entry.
    (g) Other applicants. (1) Any applicant for permission to reapply 
for admission under circumstances other than those described in 
paragraphs (b) through (f) of this section must file Form I-212. This 
form is filed with either:
    (i) The district director having jurisdiction over the place where 
the deportation or removal proceedings were held; or
    (ii) The district director who exercised or is exercising 
jurisdiction over the applicant's most recent proceeding.
    (2) If the applicant is physically present in the United States but 
is ineligible to apply for adjustment of status, he or she must file the 
application with the district director having jurisdiction over his or 
her place of residence.
    (3) If an alien who is an applicant for parole authorization under 
Sec. 245.15(t)(2) of this chapter requires consent to reapply for 
admission after deportation, removal, or departure at Government 
expense, or a waiver under section 212(g), 212(h), or 212(i) of the Act, 
he or she may file the requisite Form I-212 or Form I-601 at the 
Nebraska Service Center concurrently with the Form I-131, Application 
for Travel Document. If an alien who is an applicant for parole 
authorization under Sec. 245.13(k)(2) of this chapter requires consent 
to reapply for admission after deportation, removal, or departure at 
Government expense, or a waiver under section 212(g), 212(h), or 212(i) 
of the Act, he or she may file the requisite Form I-212 or Form I-601 at 
the Texas Service Center concurrently with the Form I-131, Application 
for Travel Document.
    (h) Decision. An applicant who has submitted a request for consent 
to reapply for admission after deportation or removal must be notified 
of the decision. If the application is denied, the applicant must be 
notified of the reasons for the denial and of his or her right to appeal 
as provided in part 103 of this chapter. Except in the case of an 
applicant seeking to be granted advance permission to reapply for 
admission prior to his or her departure from the United States, the 
denial of the application shall be without prejudice to the renewal of 
the application in the course of proceedings before an immigration judge 
under section 242 of the Act and this chapter.
    (i) Retroactive approval. (1) If the alien filed Form I-212 when 
seeking admission at a port of entry, the approval of the Form I-212 
shall be retroactive to either:
    (i) The date on which the alien embarked or reembarked at a place 
outside the United States; or
    (ii) The date on which the alien attempted to be admitted from 
foreign contiguous territory.
    (2) If the alien filed Form I-212 in conjunction with an application 
for adjustment of status under section 245 of the Act, the approval of 
Form I-212 shall be retroactive to the date on which the alien embarked 
or reembarked at a place outside the United States.
    (j) Advance approval. An alien whose departure will execute an order 
of deportation shall receive a conditional approval depending upon his 
or her satisfactory departure. However, the grant of permission to 
reapply does not waive inadmissibility under section 212(a) (16) or (17) 
of the Act resulting

[[Page 239]]

from exclusion, deportation, or removal proceedings which are instituted 
subsequent to the date permission to reapply is granted.

[56 FR 23212, May 21, 1991, as amended at 64 FR 25766, May 12, 1999; 65 
FR 15854, Mar. 24, 2000]



Sec. 212.3  Application for the exercise of discretion under section 212(c).

    (a) Jurisdiction. An application for the exercise of discretion 
under section 212(c) of the Act shall be submitted on Form I-191, 
Application for Advance Permission to Return to Unrelinquished Domicile, 
to:
    (1) The district director having jurisdiction over the area in which 
the applicant's intended or actual place of residence in the United 
States is located; or
    (2) The Immigration Court if the application is made in the course 
of proceedings under sections 235, 236, or 242 of the Act.
    (b) Filing of application. The application may be filed prior to, at 
the time of, or at any time after the applicant's departure from or 
arrival into the United States. All material facts and/or circumstances 
which the applicant knows or believes apply to the grounds of 
excludability or deportability must be described. The applicant must 
also submit all available documentation relating to such grounds.
    (c) Decision of the District Director. A district director may grant 
or deny an application for advance permission to return to an 
unrelinquished domicile under section 212(c) of the Act, in the exercise 
of discretion, unless otherwise prohibited by paragraph (f) of this 
section. The applicant shall be notified of the decision and, if the 
application is denied, of the reason(s) for denial. No appeal shall lie 
from denial of the application, but the application may be renewed 
before an Immigration Judge as provided in paragraph (e) of this 
section.
    (d) Validity. Once an application is approved, that approval is 
valid indefinitely. However, the approval covers only those specific 
grounds of excludability or deportability that were described in the 
application. An application who failed to describe any other grounds of 
excludability or deportability, or failed to disclose material facts 
existing at the time of the approval of the application, remains 
excludable or deportable under the previously unidentified grounds. If 
at a later date, the applicant becomes subject to exclusion or 
deportation based upon these previously unidentified grounds or upon new 
ground(s), a new application must be filed with the appropriate district 
director.
    (e) Filing or renewal of applications before an Immigration Judge. 
(1) An application for the exercise of discretion under section 212(c) 
of the Act may be renewed or submitted in proceedings before an 
Immigration Judge under sections 235, 236, or 242 of the Act, and under 
this chapter. Such application shall be adjudicated by the Immigration 
Judge, without regard to whether the applicant previously has made 
application to the district director.
    (2) The Immigration Judge may grant or deny an application for 
advance permission to return to an unrelinquished domicile under section 
212(c) of the Act, in the exercise of discretion, unless otherwise 
prohibited by paragraph (f) of this section.
    (3) An alien otherwise entitled to appeal to the Board of 
Immigration Appeals may appeal the denial by the Immigration Judge of 
this application in accordance with the provisions of Sec. 3.36 of this 
chapter.
    (f) Limitations on discretion to grant an application under section 
212(c) of the Act. A district director or Immigration Judge shall deny 
an application for advance permission to enter under section 212(c) of 
the Act if:
    (1) The alien has not been lawfully admitted for permanent 
residence;
    (2) The alien has not maintained lawful domicile in the United 
States, as either a lawful permanent resident or a lawful temporary 
resident pursuant to section 245A or section 210 of the Act, for at 
least seven consecutive years immediately preceding the filing of the 
application;
    (3) The alien is subject to exclusion from the United States under 
paragraphs (3)(A), (3)(B), (3)(C), or (3)(E) of section 212(a) of the 
Act;
    (4) The alien has been convicted of an aggravated felony, as defined 
by section 101(a)(43) of the Act, and has

[[Page 240]]

served a term of imprisonment of at least five years for such 
conviction; or
    (5) The alien applies for relief under section 212(c) within five 
years of the barring act as enumerated in one or more sections of 
section 242B(e) (1) through (4) of the Act.

[56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61 
FR 59825, Nov. 25, 1996]



Sec. 212.4  Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3).

    (a) Applications under section 212(d)(3)(A)--(1) General. District 
directors and officers in charge outside the United States in the 
districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy are 
authorized to act upon recommendations made by consular officers for the 
exercise of discretion under section 212(d)(3)(A) of the Act. The 
District Director, Washington, DC, has jurisdiction in such cases 
recommended to the Service at the seat-of-government level by the 
Department of State. When a consular officer or other State Department 
official recommends that the benefits of section 212(d)(3)(A) of the Act 
be accorded an alien, neither an application nor fee shall be required. 
The recommendation shall specify:
    (i) The reasons for inadmissibility and each section of law under 
which the alien is inadmissible;
    (ii) Each intended date of arrival;
    (iii) The length of each proposed stay in the United States;
    (iv) The purpose of each stay;
    (v) The number of entries which the alien intends to make; and
    (vi) The justification for exercising the authority contained in 
section 212(d)(3) of the Act.

If the alien desires to make multiple entries and the consular officer 
or other State Department official believes that the circumstances 
justify the issuance of a visa valid for multiple entries rather than 
for a specified number of entries, and recommends that the alien be 
accorded an authorization valid for multiple entries, the information 
required by items (ii) and (iii) shall be furnished only with respect to 
the initial entry. Item (ii) does not apply to a bona fide crewman. The 
consular officer or other State Department official shall be notified of 
the decision on his recommendation. No appeal by the alien shall lie 
from an adverse decision made by a Service officer on the recommendation 
of a consular officer or other State Department official.
    (2) Authority of consular officers to approve section 212(d)(3)(A) 
recommendations pertaining to aliens inadmissible under section 
212(a)(28)(C). In certain categories of visa cases defined by the 
Secretary of State, United States consular officers assigned to visa-
issuing posts abroad may, on behalf of the Attorney General pursuant to 
section 212(d)(3)(A) of the Act, approve a recommendation by another 
consular officer that an alien be admitted temporarily despite visa 
ineligibility solely because the alien is of the class of aliens defined 
at section 212(a)(28)(C) of the Act, as a result of presumed or actual 
membership in, or affiliation with, an organization described in that 
section. Authorizations for temporary admission granted by consular 
officers shall be subject to the terms specified in Sec. 212.4(c) of 
this chapter. Any recommendation which is not clearly approvable shall, 
and any recommendation may, be presented to the appropriate official of 
the Immigration and Naturalization Service for a determination.
    (b) Applications under section 212(d)(3)(B). An application for the 
exercise of discretion under section 212(d)(3)(B) of the Act shall be 
submitted on Form I-192 to the district director in charge of the 
applicant's intended port of entry prior to the applicant's arrival in 
the United States. (For Department of State procedure when a visa is 
required, see 22 CFR 41.95 and paragraph (a) of this section.) If the 
application is made because the applicant may be inadmissible due to 
present or past membership in or affiliation with any Communist or other 
totalitarian party or organization, there shall be attached to the 
application a written statement of the history of the applicant's 
membership or affiliation, including the period of such membership or 
affiliation, whether the applicant held any office in the organization, 
and whether his membership or affiliation was voluntary or involuntary. 
If the applicant alleges that his

[[Page 241]]

membership or affiliation was involuntary, the statement shall include 
the basis for that allegation. When the application is made because the 
applicant may be inadmissible due to disease, mental or physical defect, 
or disability of any kind, the application shall describe the disease, 
defect, or disability. If the purpose of seeking admission to the United 
States is for treatment, there shall be attached to the application 
statements in writing to establish that satisfactory treatment cannot be 
obtained outside the United States; that arrangements have been 
completed for treatment, and where and from whom treatment will be 
received; what financial arrangements for payment of expenses incurred 
in connection with the treatment have been made, and that a bond will be 
available if required. When the application is made because the 
applicant may be inadmissible due to the conviction of one or more 
crimes, the designation of each crime, the date and place of its 
commission and of the conviction thereof, and the sentence or other 
judgment of the court shall be stated in the application; in such a case 
the application shall be supplemented by the official record of each 
conviction, and any other documents relating to commutation of sentence, 
parole, probation, or pardon. If the application is made at the time of 
the applicant's arrival to the district director at a port of entry, the 
applicant shall establish that he was not aware of the ground of 
inadmissibility and that it could not have been ascertained by the 
exercise of reasonable diligence, and he shall be in possession of a 
passport and visa, if required, or have been granted a waiver thereof. 
The applicant shall be notified of the decision and if the application 
is denied of the reasons therefor and of his right to appeal to the 
Board within 15 days after the mailing of the notification of decision 
in accordance with the Provisions of part 3 of this chapter. If denied, 
the denial shall be without prejudice to renewal of the application in 
the course of proceedings before a special inquiry officer under 
sections 235 and 236 of the Act and this chapter. When an appeal may not 
be taken from a decision of a special inquiry officer excluding an alien 
but the alien has applied for the exercise of discretion under section 
212(d)(3)(B) of the Act, the alien may appeal to the Board from a denial 
of such application in accordance with the provisions of Sec. 236.5(b) 
of this chapter.
    (c) Terms of authorization. Each authorization under section 
212(d)(3) (A) or (B) of the Act shall specify:
    (1) Each section of law under which the alien is inadmissible;
    (2) The intended date of each arrival;
    (3) The length of each stay authorized in the United States;
    (4) The purpose of each stay;
    (5) The number of entries for which the authorization is valid;
    (6) The dates on or between which each application for admission at 
ports of entry in the United States is valid; and
    (7) The justification for exercising the authority contained in 
section 212(d)(3) of the Act. If the consular officer has recommended 
under section 212(d)(3)(A), or an applicant under section 212(d)(3)(B) 
seeks, the issuance of an authorization valid for multiple entries 
rather than for a specified number of entries, and it is determined that 
the circumstances justify the issuance of the authorization valid for 
mutiple entries, the information required by items (2) and (3) shall be 
specified only with respect to the initial entry. Item (2) does not 
apply to a bona fide crewman. Authorizations granted to crewmen may be 
valid for a maximum period of 2 years for application for admission at 
U.S. ports of entry and may be valid for multiple entries. An 
authorization issued in conjunction with an application for a 
nonresident alien border crossing card shall be valid for a period not 
to exceed the validity of such card for applications for admission at 
U.S. ports of entry and shall be valid for multiple entries. A multiple 
entry authorization for a person other than a crewman or applicant for a 
border crossing card may be made valid for a maximum period of 1 year 
for applications for admission at U.S. ports of entry, except that a 
period in excess of 1 year may be permitted on the recommendation of the 
Department of State. A single entry authorization to apply for admission 
at a U.S. port of entry shall not be valid for more than

[[Page 242]]

6 months from the date the authorization is issued. All admissions 
pursuant to section 212(d)(3) of the Act shall be subject to the terms 
and conditions set forth in the authorization. The period for which the 
alien's admission is authorized pursuant to item (3) shall not exceed 
the period justified, subject to the limitations specified in part 214 
of this chapter for each class of nonimmigrants. Each authorization 
shall specify that it is subject to revocation at any time. Unless the 
alien applies for admission during the period of validity of the 
authorization, a new authorization is required. An authorization may not 
be revalidated.
    (d) Admission of groups inadmissible under section 212(a)(28) for 
attendance at international conferences. When the Secretary of State 
recommends that a group of nonimmigrant aliens and their accompanying 
family members be admitted to attend international conferences 
notwithstanding their inadmissibility under section 212(a)(28) of the 
Act, the Deputy Commissioner, may enter an order pursuant to the 
authority contained in section 212(d)(3)(A) of the Act specifying the 
terms and conditions of their admission and stay.
    (e) Inadmissibility under section 212(a)(1). Pursuant to the 
authority contained in section 212(d)(3) of the Act, the temporary 
admission of a nonimmigrant visitor is authorized notwithstanding 
inadmissibility under section 212(a)(1) of the Act, if such alien is 
accompanied by a member of his/her family, or a guardian who will be 
responsible for him/her during the period of admission authorized.
    (f) Action upon alien's arrival. Upon admitting an alien who has 
been granted the benefits of section 212(d)(3)(A) of the Act, the 
immigration officer shall be guided by the conditions and limitations 
imposed in the authorization and noted by the consular officer in the 
alien's passport. When admitting any alien who has been granted the 
benefits of section 212(d)(3)(B) of the Act, the Immigration officer 
shall note on the arrival-departure record, Form I-94, or crewman's 
landing permit, Form I-95, issued to the alien, the conditions and 
limitations imposed in the authorization.
    (g) Authorizations issued to crewmen without limitation as to period 
of validity. When a crewman who has a valid section 212(d)(3) 
authorization without any time limitation comes to the attention of the 
Service, his travel document shall be endorsed to show that the validity 
of his section 212(d)(3) authorization expires as of a date six months 
thereafter, and any previously-issued Form I-184 shall be lifted and 
Form I-95 shall be issued in its place and similarly endorsed.
    (h) Revocation. The Deputy Commissioner or the district director may 
at any time revoke a waiver previously authorized under section 
212(d)(3) of the Act and shall notify the nonimmigrant in writing to 
that effect.
    (i) Alien witnesses and informants--(1) Waivers under section 
212(d)(1) of the Act. Upon the application of a federal or state law 
enforcement authority (``LEA''), which shall include a state or federal 
court or United States Attorney's Office, pursuant to the filing of Form 
I-854, Inter-Agency Alien Witness and Informant Record, for nonimmigrant 
classification described in section 101(a)(15)(S) of the Act, the 
Commissioner shall determine whether a ground of exclusion exists with 
respect to the alien for whom classification is sought and, if so, 
whether it is in the national interest to exercise the discretion to 
waive the ground of excludability, other than section 212(a)(3)(E) of 
the Act. The Commissioner may at any time revoke a waiver previously 
authorized under section 212(d)(1) of the Act. In the event the 
Commissioner decides to revoke a previously authorized waiver for an S 
nonimmigrant, the Assistant Attorney General, Criminal Division, and the 
relevant LEA shall be notified in writing to that effect. The Assistant 
Attorney General, Criminal Division, shall concur in or object to the 
decision. Unless the Assistant Attorney General, Criminal Division, 
objects within 7 days, he or she shall be deemed to have concurred in 
the decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred to 
the Deputy Attorney General for a final resolution. In no circumstances 
shall the alien or the relevant LEA

[[Page 243]]

have a right of appeal from any decision to revoke.
    (2) Grounds of removal. Nothing shall prohibit the Service from 
removing from the United States an alien classified pursuant to section 
101(a)(15)(S) of the Act for conduct committed after the alien has been 
admitted to the United States as an S nonimmigrant, or after the alien's 
change to S classification, or for conduct or a condition undisclosed to 
the Attorney General prior to the alien's admission in, or change to, S 
classification, unless such conduct or condition is waived prior to 
admission and classification. In the event the Commissioner decides to 
remove an S nonimmigrant from the United States, the Assistant Attorney 
General, Criminal Division, and the relevant LEA shall be notified in 
writing to that effect. The Assistant Attorney General, Criminal 
Division, shall concur in or object to that decision. Unless the 
Assistant Attorney General, Criminal Division, objects within 7 days, he 
or she shall be deemed to have concurred in the decision. In the event 
of an objection by the Assistant Attorney General, Criminal Division, 
the matter will be expeditiously referred to the Deputy Attorney General 
for a final resolution. In no circumstances shall the alien or the 
relevant LEA have a right of appeal from any decision to remove.

[29 FR 15252, Nov. 13, 1964, as amended at 30 FR 12330, Sept. 28, 1965; 
31 FR 10413, Aug. 3, 1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb. 
17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470, July 21, 1975; 51 FR 
32295, Sept. 10, 1986; 53 FR 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25, 
1995; 60 FR 52248, Oct. 5, 1995]



Sec. 212.5  Parole of aliens into the United States.

    (a) The parole of aliens within the following groups who have been 
or are detained in accordance with Sec. 235.3(b) or (c) of this chapter 
would generally be justified only on a case-by-case basis for ``urgent 
humanitarian reasons'' or ``significant public benefit,'' provided the 
aliens present neither a security risk nor a risk of absconding:
    (1) Aliens who have serious medical conditions in which continued 
detention would not be appropriate;
    (2) Women who have been medically certified as pregnant;
    (3) Aliens who are defined as juveniles in Sec. 236.3(a) of this 
chapter. The district director or chief patrol agent shall follow the 
guidelines set forth in Sec. 236.3(a) of this chapter and paragraphs 
(a)(3)(i) through (iii) of this section in determining under what 
conditions a juvenile should be paroled from detention:
    (i) Juveniles may be released to a relative (brother, sister, aunt, 
uncle, or grandparent) not in Service detention who is willing to 
sponsor a minor and the minor may be released to that relative 
notwithstanding that the juvenile has a relative who is in detention.
    (ii) If a relative who is not in detention cannot be located to 
sponsor the minor, the minor may be released with an accompanying 
relative who is in detention.
    (iii) If the Service cannot locate a relative in or out of detention 
to sponsor the minor, but the minor has identified a non-relative in 
detention who accompanied him or her on arrival, the question of 
releasing the minor and the accompanying non-relative adult shall be 
addressed on a case-by-case basis;
    (4) Aliens who will be witnesses in proceedings being, or to be, 
conducted by judicial, administrative, or legislative bodies in the 
United States; or
    (5) Aliens whose continued detention is not in the public interest 
as determined by the district director or chief patrol agent.
    (b) In the cases of all other arriving aliens, except those detained 
under Sec. 235.3(b) or (c) of this chapter and paragraph (a) of this 
section, the district director or chief patrol agent may, after review 
of the individual case, parole into the United States temporarily in 
accordance with section 212(d)(5)(A) of the Act, any alien applicant for 
admission, under such terms and conditions, including those set forth in 
paragraph (c) of this section, as he or she may deem appropriate. An 
alien who arrives at a port-of-entry and applies for parole into the 
United States for the sole purpose of seeking adjustment of status under 
section 245A of the Act, without benefit of advance authorization as 
described in paragraph (e) of this section shall be denied parole and

[[Page 244]]

detained for removal in accordance with the provisions of Sec. 235.3(b) 
or (c) of this chapter. An alien seeking to enter the United States for 
the sole purpose of applying for adjustment of status under section 210 
of the Act shall be denied parole and detained for removal under 
Sec. 235.3(b) or (c) of this chapter, unless the alien has been 
recommended for approval of such application for adjustment by a 
consular officer at an Overseas Processing Office.
    (c) Conditions. In any case where an alien is paroled under 
paragraph (a) or (b) of this section, the district director or chief 
patrol agent may require reasonable assurances that the alien will 
appear at all hearings and/or depart the United States when required to 
do so. Not all factors listed need be present for parole to be 
exercised. The district director or chief patrol agent should apply 
reasonable discretion. The consideration of all relevant factors 
includes:
    (1) The giving of an undertaking by the applicant, counsel, or a 
sponsor to ensure appearances or departure, and a bond may be required 
on Form I-352 in such amount as the district director or chief patrol 
agent may deem appropriate;
    (2) Community ties such as close relatives with known addresses; and
    (3) Agreement to reasonable conditions (such as periodic reporting 
of whereabouts).
    (d) Termination of parole--(1) Automatic. Pa