[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1998 Edition]
[From the U.S. Government Printing Office]


[[Page i]]

          8



          Aliens and Nationality




                         Revised as of January 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT
          AS OF JANUARY 1, 1998

          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration
          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            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..........................     663
    Alphabetical List of Agencies Appearing in the CFR........     679
    List of CFR Sections Affected.............................     689



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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.

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


[[Page v]]



                               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, 1998), 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), and Acts Requiring Publication 
in the Federal Register (Table II). 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 
[email protected]

SALES

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ELECTRONIC SERVICES

    The texts of the Code of Federal Regulations, The United States 
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For more information, contact Electronic Information Dissemination 
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[[Page vii]]

    The Office of the Federal Register maintains a free electronic 
bulletin board service, FREND (Federal Register Electronic News 
Delivery), for public law numbers, Federal Register finding aids, and 
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    In addition, the Federal Register's public inspection list and table 
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Administration's Fax-on-Demand system. Phone, 301-713-6905.

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

January 1, 1998.



[[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, 1998.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]




[[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                                              
                                                                                                                                                        

                    SUBCHAPTER A--GENERAL PROVISIONS
Part                                                                Page
1               Definitions.................................           9

[[Page 4]]

2               Authority of the Commissioner...............          10
3               Executive Office for Immigration Review.....          10

                  SUBCHAPTER B--IMMIGRATION REGULATIONS

100             Statement of organization...................          35
101             Presumption of lawful admission.............          53
103             Powers and duties of service officers; 
                    availability of service records.........          58
109

[Reserved]

204             Immigrant petitions.........................          98
205             Revocation of approval of petitions.........         157
207             Admission of refugees.......................         160
208             Procedures for asylum and withholding of 
                    removal.................................         162
209             Adjustment of status of refugees and aliens 
                    granted asylum..........................         178
210             Special agricultural workers................         180
211             Documentary requirements: Immigrants; 
                    waivers.................................         192
212             Documentary requirements: Nonimmigrants; 
                    waivers; admission of certain 
                    inadmissible aliens; parole.............         195
213             Admission of aliens on giving bond or cash 
                    deposit.................................         222
213a            Affidavits of support on behalf of 
                    immigrants..............................         222
214             Nonimmigrant classes........................         229
215             Controls of aliens departing from the United 
                    States..................................         344
216             Conditional basis of lawful permanent 
                    residence status........................         349
217             Visa waiver pilot program...................         358
221             Admission of visitors or students...........         361
223             Reentry permits, refugee travel documents, 
                    and advance parole documents............         361
231             Arrival-departure manifests and lists; 
                    supporting documents....................         363
232             Detention of aliens for physical and mental 
                    examination.............................         365
233             Contracts with transportation lines.........         366
234             Designation of ports of entry for aliens 
                    arriving by civil aircraft..............         367
235             Inspection of persons applying for admission         369
236             Apprehension and detention of inadmissible 
                    and deportable aliens; removal of aliens 
                    ordered removed.........................         386
237

[Reserved]

238             Expedited removal of aggravated felons......         394
239             Initiation of removal proceedings...........         397

[[Page 5]]

240             Proceedings to determine removability of 
                    aliens in the United States.............         398
241             Apprehension and detention of aliens ordered 
                    removed.................................         418
242-243

[Reserved]

244             Temporary protected status for nationals of 
                    designated states.......................         426
245             Adjustment of status to that of person 
                    admitted for permanent residence........         436
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.....................................         457
246             Rescission of adjustment of status..........         494
247             Adjustment of status of certain resident 
                    aliens..................................         496
248             Change of nonimmigrant classification.......         497
249             Creation of records of lawful admission for 
                    permanent residence.....................         500
250             Removal of aliens who have fallen into 
                    distress................................         501
251             Arrival manifests and lists: Supporting 
                    documents...............................         501
252             Landing of alien crewmen....................         504
253             Parole of alien crewmen.....................         508
258             Limitations on performance of longshore work 
                    by alien crewmen........................         510
264             Registration and fingerprinting of aliens in 
                    the United States.......................         513
265             Notices of address..........................         519
270             Penalties for document fraud................         519
271             Diligent and reasonable efforts to prevent 
                    the unauthorized entry of aliens by the 
                    owners of railroad lines, international 
                    bridges or toll roads...................         522
274             Seizure and forfeiture of conveyances.......         522
274a            Control of employment of aliens.............         531
280             Imposition and collection of fines..........         552
286             Immigration user fee........................         557
287             Field officers; powers and duties...........         561
289             American Indians born in Canada.............         575
292             Representation and appearances..............         576
293             Deposit of and interest on cash received to 
                    secure immigration bonds................         582
299             Immigration forms...........................         583
                  SUBCHAPTER C--NATIONALITY REGULATIONS

301             Nationals and citizens of the United States 
                    at birth................................         591
306             Special classes of persons who may be 
                    naturalized: Virgin Islanders...........         591

[[Page 6]]

310             Naturalization authority....................         592
312             Educational requirements for naturalization.         594
313             Membership in the Communist Party or any 
                    other totalitarian organizations........         597
315             Persons ineligible to citizenship: Exemption 
                    from military service...................         599
316             General requirements for naturalization.....         601
318             Pending removal proceedings.................         610
319             Special classes of persons who may be 
                    naturalized: Spouses of United States 
                    citizens................................         610
322             Special classes of persons who may be 
                    naturalized: Children of citizen parent.         613
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...............         615
325             Nationals but not citizens of the United 
                    States; residence within outlying 
                    possessions.............................         617
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............................         617
328             Special classes of persons who may be 
                    naturalized: Persons with three years 
                    service in Armed Forces of the United 
                    States..................................         618
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.............................         619
330             Special classes of persons who may be 
                    naturalized: Seamen.....................         622
331             Alien enemies; naturalization under 
                    specified conditions and procedures.....         623
332             Naturalization administration...............         623
333             Photographs.................................         625
334             Application for naturalization..............         626
335             Examination on application for 
                    naturalization..........................         629
336             Hearings on denials of applications for 
                    naturalization..........................         635
337             Oath of allegiance..........................         637
338             Certificate of naturalization...............         641
339             Functions and duties of clerks of court 
                    regarding naturalization proceedings....         643
340             Revocation of naturalization................         645
341             Certificates of citizenship.................         647
342             Administrative cancellation of certificates, 
                    documents, or records...................         650

[[Page 7]]

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...         652
343a            Naturalization and citizenship papers lost, 
                    mutilated, or destroyed; new certificate 
                    in changed name; certified copy of 
                    repatriation proceedings................         652
343b            Special certificate of naturalization for 
                    recognition by a foreign state..........         654
343c            Certifications from records.................         655
349             Loss of nationality.........................         655
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..................         655
499             Nationality forms...........................         658

[[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 alien who seeks admission to or 
transit through the United States, as provided in 8 CFR part 235, at a 
port-of-entry, or an alien who is 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.
    (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]



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
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.

[[Page 11]]

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.

                          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.

    Authority:  5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 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 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 8 CFR part 3. The Director may redelegate the authority delegated 
to him by the Attorney General to the Chairman of the Board of 
Immigration Appeals or the Chief Immigration Judge. The Director shall 
be assisted in the performance of his duties by an Executive Assistant.
    (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]



                 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 and fourteen other members. The Board Members 
shall exercise their independent judgment and discretion in the cases 
coming before the Board. A majority of the permanent Board Members shall 
constitute a quorum of the Board sitting en banc. 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 to act as 
temporary, additional Board Members for whatever time the Director deems 
necessary. 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 review 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 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 or the Chief Attorney Examiner 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. The 
permanent Board may, by majority vote on

[[Page 12]]

its own motion or by direction of the Chairman, consider any case en 
banc or reconsider en banc any case decided by a panel. By majority vote 
of the permanent Board, decisions of the Board shall be designated to 
serve as precedents pursuant to paragraph (g) of this section. 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.
    (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 a Chief Attorney Examiner, who shall be directly responsible 
to the Chairman. The Chief Attorney Examiner shall serve as an Alternate 
Board Member when, in the absence or unavailability of a Board Member or 
Members or for other good cause, his participation is deemed necessary 
by the Chairman. Once designated, his participation in a case shall 
continue to its normal conclusion.
    (3) Board Members. Board Members shall perform the quasi-judicial 
function of adjudicating cases coming before the Board.
    (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 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.
    (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

[[Page 13]]

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.
    (1-a) 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 Board is satisfied, from a review of the record, that the 
appeal is filed for an improper purpose, such as to cause unnecessary 
delay, or that the appeal lacks an arguable basis in law or fact unless 
the Board determines that it is supported by a good faith argument for 
extension, modification or reversal of existing law.
    (E) 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; or
    (F) The appeal fails to meet essential statutory or regulatory 
requirements or is expressly excluded by statute or regulation.
    (ii) 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.
    (2) Finality of decision. The decision of the Board shall be final 
except in those cases reviewed by the Attorney General in accordance 
with paragraph (h) of this section. The Board may return a case to the 
Service or Immigration Judge for such further action as may be 
appropriate, without entering a final decision on the merits of the 
case.
    (3) 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.

[[Page 14]]

    (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, as amended at 27 FR 96, Jan. 5, 1962; 27 FR 
10789, Nov. 6, 1962; 30 FR 14772, Nov. 30, 1965; 36 FR 316, Jan. 9, 
1971; 40 FR 37207, Aug. 26, 1975; 44 FR 67960, Nov. 28, 1979; 47 FR 
16772, Apr. 20, 1982; 48 FR 8039, Feb. 25, 1983; 52 FR 2943, Jan. 29, 
1987; 52 FR 24981, July 2, 1987; 55 FR 30680, July 27, 1990; 56 FR 624, 
Jan. 7, 1991; 57 FR 11570, Apr. 6, 1992; 59 FR 1899, Jan. 13, 1994; 60 
FR 29469, June 5, 1995; 60 FR 57313, Nov. 15, 1995; 61 FR 18904, Apr. 
29, 1996; 61 FR 59305, Nov. 22, 1996; 62 FR 9072, Feb. 28, 1997; 62 FR 
10330, Mar. 6, 1997; 62 FR 15362, Apr. 1, 1997]



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 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.
    (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

[[Page 15]]

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 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

[[Page 16]]

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 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]



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

[[Page 17]]

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 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

[[Page 18]]

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 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

[[Page 19]]

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. 242.2(d) of this chapter 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]



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

[[Page 20]]

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.



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

    Source:  52 FR 2936, Jan. 29, 1987, unless otherwise noted.



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 Sec. 292.3 of this 
chapter. 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]



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

[[Page 21]]

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 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.

[[Page 22]]

    (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]



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

[[Page 23]]

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



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

[[Page 24]]

(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]



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

[[Page 25]]

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.
    (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. 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 relief under 
section 208 or 241(b)(3) of the Act 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

[[Page 26]]

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 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]



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

[[Page 27]]

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.
    (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

[[Page 28]]

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 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

[[Page 29]]

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 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

[[Page 30]]

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 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).

[[Page 31]]

    (g) In any proceeding before the Board wherein the respondent/
applicant is represented, the attorney or 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

[[Page 32]]

Referral to Immigration Judge. The Service shall also file with the 
notice of referral a copy of the written record 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.
    (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, 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 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, 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]



                          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

[[Page 33]]

    (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
    (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

[[Page 34]]

    (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 
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.

[[Page 35]]



                  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 36]]

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
    (F) Refugee processing, adjudication of relative applications/
petitions filed

[[Page 37]]

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, telecommunications, and emergency 
preparedness planning.

[[Page 38]]

    (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.



Sec. 100.4  Field Offices.

    The territory within which officials of the Immigration and 
Naturalization

[[Page 39]]

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, Burnet, Caldwell, Calhoun, Coke, Coleman, Comal, 
Concho, Coryell, Crockett, De Witt, Dimmitt, Duval, Edwards,

[[Page 40]]

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.
    (30) Helena, Montana. The district office in Helena, Montana, has 
jurisdiction over the State of Montana and

[[Page 41]]

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 
to location by districts and are designated either Class A, B, or C. 
Class A

[[Page 42]]

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 
alien registration receipt 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)
Ogdensburg, NY
Peace Bridge, NY
Rochester, NY

[[Page 43]]

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

                                 Class B

Wichita, KS

[[Page 44]]

                  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 45]]

                    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 46]]

                 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 47]]

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 48]]

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 49]]

                       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 50]]

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 51]]

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 52]]

    (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 8 CFR 100.4(b)(16) and 100.4(b)(39), and that 
southern portion of the State of Nevada currently within the 
jurisdiction of the Las Vegas Suboffice.
    (8) San Francisco, California. The Asylum Office in San Francisco 
has jurisdiction over the northern part of California as listed in 8 CFR 
100.4(b)(13), the portion of Nevada currently under the jurisdiction of 
the Reno Suboffice, and the States of Oregon, Washington, Alaska, and 
Hawaii and the Territory of Guam.
[60 FR 57166, Nov. 14, 1995, as amended at 61 FR 25778, May 23, 1996]



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
Part 231...................................................    1115-0078

[[Page 53]]

                                                                        
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 54]]

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 55]]

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 that he 
establishes by clear, unequivocal, and

[[Page 56]]

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 57]]

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 an Alien Registration Receipt 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]



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 58]]

    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 59]]

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 60]]

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 61]]

    (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 240 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; and
    (NN) Application for certification for designated fingerprinting 
services under Sec. 103.2(e) 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

[[Page 62]]

Act, respectively, may be approved by 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 and applications 
for asylum and for withholding of removal, as provided under 8 CFR part 
208.
    (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; Monterrey, Mexico; Nairobi, Kenya; New 
Delhi, India; Seoul, Korea; Singapore, Republic of Singapore; Tijuana, 
Mexico; Port-au-Prince, Haiti; Karachi,

[[Page 63]]

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.
    (3) Director of Equal Employment Opportunity. Under the direction 
and supervision of the Executive Associate

[[Page 64]]

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
    (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.

[[Page 65]]

    (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]



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, which include where an 
application or petition should be filed, being hereby incorporated into 
the particular section of the regulations requiring its submission. The 
form must be filed with the appropriate filing fee required by 
Sec. 103.7. Such fees are non-refundable and, except as otherwise 
provided in this chapter, must be paid when the application or petition 
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 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 filed when so stamped, if it is properly 
signed and executed and the required fee is attached or a fee waiver is 
granted. An application which is not properly signed or is submitted 
with the wrong fee shall be rejected as improperly filed. Rejected 
applications, and ones in which the check or other financial instrument 
is returned as not payable, will not retain a filing date.

[[Page 66]]

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 the appropriate 
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 immediately pay the filing fee and 
associated service charge within 14 days, without extension. If the 
application or petition is pending and these charges are not paid, it 
shall be rejected as improperly filed. If it was already approved, and 
these charges are not paid, it shall be automatically revoked because it 
was improperly filed. If it was already denied, revoked, or abandoned, 
that decision will not be affected by the non-payment of the filing fee. 
A new fee 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.
    (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

[[Page 67]]

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 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, and/or a 
beneficiary may be required to appear for an interview. A petitioner 
shall also be notified when an interview notice is mailed or issued to a 
beneficiary. The person may appear as requested by the Service or, prior 
to the date and time of the interview:

[[Page 68]]

    (i) The person to be interviewed may, for good cause, request that 
the 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 or for 
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, or beneficiary requests that an 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 
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 the 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 submitted.
    (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 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 a person 
requested to appear for an interview does not appear, the Service does 
not receive his or her request for rescheduling by the date of the 
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. When 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 a required interview, or 
to give required testimony, shall result in the denial of any 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

[[Page 69]]

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. 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, Alien Registration 
Receipt 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

[[Page 70]]

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 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

[[Page 71]]

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. Service regulations require that applicants for 
various types of immigration benefits submit their fingerprints with the 
applications. To ensure they have access to reputable fingerprinting 
services, the fingerprinting of these benefit applicants must be carried 
out pursuant to the fingerprinting service provisions established in 
this paragraph.
    (1) Fingerprinting by the Service. Where feasible, a local Service 
office shall provide fingerprinting service to applicants for 
immigration benefits. Also, the district director shall consider all 
qualified applicants for DFS certification and certify applicants who 
meet the regulatory standards to supplement the district's efforts. 
Where district Service personnel are providing fingerprinting services, 
the district director may end such services when he or she determines 
that there are sufficient outside or private fingerprinting services 
available at a reasonable fee.
    (2) Designated fingerprinting services--(i) Law enforcement 
agencies. Federal, state, or local police, or military police, in the 
United States are not required to apply for DFS certification. However, 
it is essential that any Federal, state, and local police, or military 
police, that provide fingerprinting services to applicants for 
immigration benefits be familiar with the Service's fingerprinting 
regulations and requirements. In order to receive updates on such 
regulations and requirements, a policy agency that does provide such 
services must register with the Service pursuant to procedures 
prescribed by Sec. 103.2(e)(9). Campus police departments having general 
arrest powers pursuant to a State statute and meeting training 
requirements established by law or ordinance for law enforcement 
officers are included within the category of state or local police 
departments for purposes of Sec. 103.2(e).
    (ii) Other business entities or individuals. Businesses and 
individuals who apply and qualify shall, subject to the requirements of 
Sec. 103.2(e), be approved by the Service to provide fingerprinting 
services.
    (3) Transition to use designated fingerprinting services. As of 
March 1, 1997, the Service will not accept fingerprint cards for 
immigration benefits unless they are taken by:
    (i) A DFS accompanied by a completed attestation, Form I-850A, 
Attestation by Designated Fingerprinting Services Certified to Take 
Fingerprints;
    (ii) An intending DFS or organization that has completed and filed 
an application for DFS status prior to March 1, 1997, which may, pending 
the Service's action upon its application, take fingerprints and 
complete the Form I-850A, indicating that its application for DFS status 
is pending. This provisional authority for an outside entity shall cease 
when its application is denied;
    (iii) A recognized law enforcement agency that is registered as a 
DFS; or
    (iv) Designated Service employees.
    (4) Eligibility for DFS. An outside entity applying for DFS status 
may be a business, a not-for-profit organization, or an individual.
    (i) An individual must establish that he or she is a United States 
citizen or lawful permanent resident, and has not been convicted of an 
aggravated felony or any crime related to dishonesty or false statements 
involving a civil penalty for fraud.
    (ii) A business or a not-for-profit organization must establish the 
identity of its chief operations officer, who exercises primary and 
oversight control over the organization's operations, and its 
fingerprinting employees; and the business or a not-for-profit 
organization must establish that the chief operations officer and 
fingerprinting employees are United States citizens or lawful permanent 
resident(s), and that

[[Page 72]]

its principal officers, directors, or partners meet the standard for 
individual applicants.
    (iii) A Federal, state, or local law enforcement agency may register 
as a designated fingerprinting service. However, a law enforcement 
agency is not required to comply with the operating license(s), 
identification and training of employees, criminal record history check, 
attestation, or application fee provisions in this paragraph.
    (5) Criminal history records check. (i) An identification and 
criminal history record check is required for each employee or person as 
otherwise described in paragraphs (e)(4) (i) and (ii) of this section 
who will take fingerprints listed on the application for DFS 
certification. The district director shall designate Service personnel 
of the district office to obtain and transmit fingerprints to the 
Federal Bureau of Investigation (FBI) for such checks. If a DFS needs to 
add new or replacement employees to the personnel approved by the 
Service, it must file a new application with the district director 
having jurisdiction over the DFS's place of business. That new 
application must be accompanied by the required fee for the FBI 
fingerprint check. The Service will accept fingerprints from an 
applicant for DFS certification only it the fingerprints were taken by 
designated Service personnel.
    (ii) An employee who has been convicted of an aggravated felony or a 
crime involving dishonestly or false statement, or who has been 
subjected to a civil penalty for fraud, may not be assigned to take 
fingerprints unless the DFS can establish to the Service's satisfaction 
that the circumstances of the offense are such (because of the person's 
youth at the time of the offense, and/or the number of years that have 
passed since its commission) that there can be no reasonable doubt as to 
the person's reliability in taking fingerprints in conformity with these 
rules.
    (6) Requirements. Except as provided under paragraph(e)(9) of this 
section, an outside entity seeking certification as a DFS must agree 
that it will:
    (i) Abide by Service regulations governing certification of DFS(s);
    (ii) Permit Service personnel and Service contract personnel to make 
on-site inspections to ensure compliance with required procedures;
    (iii) Ensure that the personnel responsible for taking fingerprints 
received training in fingerprinting procedures by the Service or FBI 
(exceptions can be made for those who have previously received training 
from the FBI or the Service or who can otherwise demonstrate equivalent 
training);
    (iv) Notify the district director where the application was filed 
when the completion of fingerprinting training occurred prior to the 
approval of the application, if such training was not completed but was 
in progress or had been scheduled at the filing of the application;
    (v) Use only FBI or Service-trained employees to train its new 
employees on fingerprinting procedures (exceptions can be made for those 
who have previously received training from the FBI or the Service) and 
to conduct periodic refresher training as needed;
    (vi) Make every reasonable effort to take legible and classifiable 
fingerprints, using only black ink;
    (vii) Retake the applicants' prints free of charge if the DFS 
initially fails to take legible and classifiable prints;
    (viii) Use only the fingerprint card(s), Form(s) FD-258, or other 
Service-designated documents to take fingerprints for immigration 
purposes;
    (ix) Ensure that the fingerprint card(s) or other Service-designated 
fingerprint documents are completed in accordance with the instructions 
provided, using FBI prescribed personal descriptor codes;
    (x) Ensure that the fingerprint card(s) or other Service-designated 
forms are signed by the applicants in their presence and by the 
fingerprinter;
    (xi) Verify the identification of the person being fingerprinted by 
comparing the information on the fingerprint card, Form FD-258, or other 
Service-designated forms with the applicant's passport, national ID, 
military ID, driver's license or state-issued photo-ID, alien 
registration card, or other acceptable Service-issued photo-ID;

[[Page 73]]

    (xii) Complete an attestation on Form I-850A, Attestation by 
Designated Fingerprinting Service Certified to Take Fingerprints, and 
provide it to the person being fingerprinted;
    (xiii) Note (legibly by hand or using a rubber stamp) on the back of 
the fingerprint card, Form FD-258, or a Service designated fingerprint 
document, the DFS's name and address, certification number, expiration 
date, the DFS fingerprinter's ID number and signature, and the date on 
which the fingerprints are taken. The DFS fingerprint shall seal the 
completed fingerprint card or fingerprint document, and sign or imprint 
a stamp with an original signature crossing the sealed area.
    (xiv) Charge only reasonable fees for fingerprinting services, and 
the current fee status is to be made known to the Service;
    (xv) Notify the director having jurisdiction over the applicant's 
place of business within 2 working days, on Form I-850 without fee, of 
any changes in personnel responsible for taking fingerprints;
    (xvi) Request approval for any new personnel to take fingerprints 
according to the procedures set forth in paragraphs (e) (4), (5), (6), 
(8), and (9) of this section;
    (xvii) Notify the Service of any conviction for an aggravated felony 
or for a crime involving dishonesty or false statement, or of any civil 
penalty for fraud subsequent to the DFS certification of an employee 
authorized to take fingerprints; and
    (xviii) Maintain facilities which are permanent and accessible to 
the public. The use of the terms permanent and accessible to the public 
shall not include business or organizational operations in private 
homes, vans or automobiles, mobile carts, and removable stands or 
portable storefronts.
    (7) Attestation. (i) To ensure the integrity of the fingerprint 
cards submitted by applicants for benefits, all DFS fingerprinters must 
fill out an attestation on Form I-850A each time they take fingerprints 
for an immigration benefit applicant. Such attestation mut be signed and 
dated by the fingerprinter and show:
    (A) The fingerprinter's name and ID number (as assigned by the 
Service) and a statement that the requirements of Sec. 103.2(e) have 
been met;
    (B) The name, address, certification number (as assigned by the 
Service), and expiration date of the DFS certification;
    (C) That he or she has checked the identity of the person he or she 
fingerprinted and has listed the identification number from the 
individual's passport, national ID, military ID, driver's license or 
state-issued photo-ID, alien registration card, or other acceptable 
Service-issued photo-ID; and
    (D) That it is signed and dated by the benefit applicant.
    (ii) DFS fingerprinters must execute the attestations in duplicate 
in the presence of the applicant. The original must be given to the 
applicant to be filed with the Service with his or her fingerprint card, 
and the copy, which may be a reproduced copy of the original, must be 
kept on file at the DFS for at least 3 months for Service inspection.
    (8) Application. An outside organization seeking certification as a 
DFS, or a DFS seeking approval for personnel change, must submit an 
application on Form I-850, Application for Certification for Designated 
Fingerprinting Services, to the district director having jurisdiction 
over the applicant's place of business. The application must include the 
following:
    (i) The required fee;
    (ii) A copy of all business licenses or permits required for its 
operations and if the organization is a not-for-profit entity, 
documented evidence of such status;
    (iii) The names and signatures of personnel who will take 
fingerprints of applicants for immigration benefits;
    (iv) A set of fingerprints taken by a Service employee on Form FD-
258 for each employee whose name appears on the application form 
pursuant to paragraph (e)(4) of this section, and the required fee (for 
each employee) for the FBI criminal history record check;
    (v) A statement on Form I-850 indicating the fee, if any, it will 
charge for the fingerprinting service; and
    (vi) A signed statement on Form I-850 attesting that the DFS will 
abide

[[Page 74]]

by the Service regulation governing fingerprinting and the certification 
of designated fingerprinting services.
    (9) Registration of police stations or military police agencies. (i) 
Federal, state, or local police stations, or military police agencies, 
may individually register to take fingerprints of applicants for 
immigration benefits by filing a Form I-850, application for 
Certification for Designated Fingerprinting Services, completing only 
the relevant parts of the form. No fee or fingerprint cards need to be 
submitted for their personnel charged with the fingerprinting 
responsibility; nor are these personnel required to have additional 
training in fingerprinting techniques and procedures. Furthermore, law 
enforcement agencies registered to take fingerprints under this 
paragraph are not subject to on-site inspections by the Service. The 
Service will communicate with these agencies through regular liaison 
channels at the local level.
    (ii) A police department may request registration on behalf of all 
of its subordinate stations on a single application by listing their 
precinct numbers and addresses. Once registered, the Service will 
include the individual police stations and military police agencies on 
the Service's list of DFS organizations. The Service will make available 
to these agencies the fingerprinting regulations, related instruction 
material or other relevant information when appropriate.
    (10) Confidentiality. A DFS is prohibited from releasing 
fingerprints taken pursuant to certification, other than to the Service 
or to the applicant or as otherwise provided in the Service's 
regulations. Law enforcement agencies enumerated under paragraph (e)(9) 
of this section are not precluded from using the fingerprints they have 
collected for immigration purposes in other law enforcement efforts.
    (11) Approval of application. The district director shall consider 
all supporting documents submitted and may request additional 
documentation as he or she may deem necessary. When the application has 
been approved, the district director shall assign a certification number 
to the DFS and individual ID numbers to its approved fingerprinters. The 
approval will be valid for a period of 3 years and may be renewed in 
accordance with paragraph (e)(13) of this section. The district director 
shall notify the applicant of the approval and include in the notice of 
approval the following items:
    (i) Instructions on how to prepare Applicant Fingerprint Cards, Form 
FD-258;
    (ii) A listing of acceptable Service-issued photo-IDs; and
    (iii) A statement detailing the DFS(s) responsibilities and rights, 
including the renewal and revocation procedures as provided by 
paragraphs (e) (12) and (13) of this section.
    (12) Denial of the application. The applicant shall be notified of 
the denial of an application, the reasons for the denial, and the right 
to appeal to the AAO under 8 CFR part 103.
    (13) Renewal. (i) Subject to paragraph (e)(13)(ii) of this section, 
a DFS must apply for renewal of its certification at least ninety (90) 
days prior to the expiration date to prevent interruption in its ability 
to provide fingerprinting services. An application for renewal must be 
made on Form I-850 with the required fee and documentation as contained 
in paragraph (e)(8) of this section. In considering an application for 
renewal, the Service will give appropriate weight to the volume, nature, 
and the substance of complaints or issues raised in the past regarding 
that particular DFS and or relevant circumstances which are made known 
to the Service by the general public, other governmental or private 
organizations, or through Service inspections. Also, the Service will 
favorably consider the absence of such complaints or issues. Each 
renewal shall be valid for 3 years. Failure to apply for renewal will 
result in the expiration of the outside entity's DFS status.
    (ii) The Service will certify and renew DFS(s) as long as the need 
for their service exists. Following the development of an automated 
fingerprint information system, the Service will determine if there is a 
continued need for the DFS' services and, if so, whether they should 
switch to newer technologies, such as acquiring compatible automated 
fingerprinting equipment. In either event, the Service shall issue

[[Page 75]]

a public notification or issue a new rule, as appropriate. Nothing in 
this paragraph shall preclude the Service, in its discretion, from 
discontinuing the DFS certification program after the initial 3 years or 
from requiring, as a condition of continued certification, that the DFS 
incorporate automated fingerprinting equipment.
    (14) Revocation of certification. The district director shall revoke 
an approval of application for DFS status under the following 
circumstances:
    (i)Automatic revocation. The approval of any application is 
automatically revoked if the DFS:
    (A) Goes out of business prior to the expiration of the approval; or
    (B) Files a written withdrawal of the application.
    (ii)Revocation on notice. The Service shall revoke on notice the 
certification of a DFS which has violated the regulations governing the 
fingerprinting process as established in paragraph (e) of this section.
    (A) If the district director finds that a DFS has failed to meet the 
required standards, he or she will issue a notice of intent to revoke 
detailing reasons for the intended revocation. Within 30 days of the 
receipt of the notice, the DFS may submit evidence in rebuttal or 
request an inspection following corrective actions. The district 
director shall cancel the notice of intent to revoke if he or she is 
satisfied with the evidence presented by the DFS or the results of a 
reinspection.
    (B) For flagrant violations, such as failure to verify the identity 
of the persons seeking fingerprinting, the district director may, in his 
or her discretion, issue a suspension order and place the DFS on 
immediate suspension. During the suspension period, the DFS may not take 
fingerprints, and the Service will not accept fingerprints taken by the 
suspended DFS. The DFS under suspension may submit a plan for corrective 
action to the district director within 30 days and request a 
reinspection. If the district director approves the plan, he or she 
shall permit the DFS to resume fingerprinting on probation pending the 
results of the reinspection and the Service will resume accepting 
submitted fingerprints. The district director shall cancel the 
suspension order if he or she finds the results of a reinspection 
satisfactory.
    (C) If the DFS fails to submit evidence of rebuttal or corrective 
actions within the 30-day period, or if unsatisfactory conditions 
persist at the second inspection, the district director shall notify the 
DFS of the revocation decision, detailing the reasons, and of its right 
to appeal.
    (D) The district director shall consider all timely submitted 
evidence and decide whether to revoke the DFS approval. The district 
director shall also decide whether any such revocation shall preclude 
accepting fingerprints taken by that DFS (or any of its offices or 
employees) during some or all of the period of its certification.
    (iii) If the Service's investigation uncovers evidence of material 
misconduct, the Service may, in addition to revocation, refer the matter 
for action pursuant to section 274C of the Act (Penalties for Document 
Fraud), or 18 U.S.C. 1001 (false statement), or for other appropriate 
enforcement action.
    (15) Appeal of revocation of approval. The revocation of approval 
may be appealed to the Service's Administrative Appeals Office (AAO). 
There is no appeal from an automatic revocation.
    (16) List of DFS(s). Each district office shall make available a 
list of the DFS(s) it has certified to take fingerprints. Such list 
shall contain the name, address, telephone number, if available, and the 
fingerprinting fee charge, if any, of each DFS certified in the 
district.
    (17) Change of address or in fee. A DFS shall notify the Service, on 
Form I-850, without an application fees, of any change(s) of address or 
change(s) in the fee charged for fingerprinting at least 10 working days 
before such a change takes place. The district office shall update its 
DFS list, including any fingerprinting fee changes, upon receipt of the 
notice of change(s).
    (18) False advertising or misrepresentation by a DFS. Designated 
fingerprinting services are prohibited form exploiting their DFS status 
by creating the impression that they are authorized by the Service to do 
more than fingerprinting. DFS(s) are prohibited from using the Service 
logo on

[[Page 76]]

their stationery, flyers, or advertisements. When dealing with the 
public or advertising for business, a DFS may refer to itself only as 
``an INS-Authorized Fingerprinting Service.'' DFS(s) found in violation 
of this requirement are subject to suspension or revocation actions 
pursuant to Sec. 103.2(e)(14).
[29 FR 11956, Aug. 21, 1964, as amended at 30 FR 14772, Nov. 30, 1965; 
32 FR 9622, July 4, 1967; 33 FR 11644, Aug. 16, 1968; 39 FR 43055, Dec. 
10, 1974; 44 FR 52169, Sept. 7, 1979; 47 FR 44990, Oct. 13, 1982; 50 FR 
11841, Mar. 26, 1985; 52 FR 16192, May 1, 1987; 53 FR 26034, July 11, 
1988; 54 FR 29881, July 17, 1989; 56 FR 624, Jan. 7, 1991; 59 FR 1460, 
1461, Jan. 11, 1994; 59 FR 33905, July 1, 1994; 61 FR 13072, Mar. 26, 
1996; 61 FR 28010, June 4, 1996; 61 FR 57584, Nov. 7, 1996]



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. 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

[[Page 77]]

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.
    (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

[[Page 78]]

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 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).

[[Page 79]]

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) 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.

[[Page 80]]

    (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.
    (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

[[Page 81]]

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 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.
    (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

[[Page 82]]

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]



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 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

[[Page 83]]

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 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


[[Page 84]]



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 $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
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

[[Page 85]]

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--$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--$140.
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 Alien Registration Receipt 
Card (Form I-551) in lieu of an obsolete card or in lieu of one lost, 
mutilated or destroyed, or in a changed name--$75.
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 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--$65.
Form I-129.  For filing a petition for a nonimmigrant worker--If a 
petition with unnamed beneficiaries, a fee of $75 per petition. If a 
petition with named beneficiaries, a base fee of $75 plus: --$10 per 
worker if requesting consulate or port-of-entry notification for visa 
issuance or admission; --$80 per worker if requesting a change of 
status; or --$50 per worker if requesting an extension of stay. If 
filing an extension of stay or change of status for one worker, 
dependents may be included for a fee of $10 per dependent.
Form I-129F.  For filing petition to classify nonimmigrant as fiancee or 
fiance under section 214(d) of the Act--$75.00.
Form I-129H.  For filing a petition to classify nonimmigrant as 
temporary worker or trainee under section 214(c) of the Act--$80.00.
Form I-129L.  Petition to employ intracompany transferee--$80.00.
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--$80.
Form I-131.  For filing an application for issuance of reentry permit--
$70.
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--$75.
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 application for discretionary relief under 
section 212(c) of the Act--$90.00.
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--$90.
Form I-193.  For filing an application for waiver of passport and/or 
visa--$95.
Form I-212.  For filing an application for permission to reapply for an 
excluded or deported alien, an alien who has fallen into distress and 
has been removed as an alien enemy, or an alien who has been removed at 
Government expense in lieu of deportation--$95.
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--$80, 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--$130 for an 
applicant 14 years of age or older;

[[Page 86]]

$100 for an applicant under the age of 14 years.
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-485A.  For filing application by Cuban refugee for permanent 
residence--$120.00 for an applicant 14 years of age or older; $95.00 for 
an applicant under the age of 14 years.
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 enterpreneur--$155.
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--$75 plus $10 per coapplicant.
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.)--$155.
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.--$155.
Form I-601.  For filing an application for waiver of ground of 
excludability 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 sub-sections.)--$95.
Form I-612.  For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$95.
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).

[[Page 87]]

Form I-751.  For filing a petition to remove the conditions on residence 
which is based on marriage--$80.
Form I-765.  For filing an application for employment authorization 
pursuant to 8 CFR 274a.13--$70, unless otherwise noted on the 
instructions attached to the application form.
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--$80. The maximum amount payable by the members of 
a family filing their applications concurrently shall be $225.
Form I-821.  For filing an initial application for Temporary Protected 
Status under section 244A of the Act, 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--$30.00.
Form I-829.  For filing petition by entrepreneur to remove conditions--
$90.00.
Form I-850.  For filing an application for certification as a designated 
fingerprinting service--$370 plus $23 for each fingerprint check for 
initial certification; $200 for renewal of certification; and $23 for 
each fingerprint check for adding or replacing employees. No fee will be 
charged to police stations, military police or campus police agencies 
registering pursuant to Sec. 103.2(e)(9).
Form N-300.  For filing an application for declaration of intention--
$75.
Form N-336.  For filing request for hearing on a decision in 
naturalization proceedings under section 336 of the Act--$110.00
Form N-400.  For filing an application for naturalization--$95. For 
filing an application for naturalization under section 405 of the 
Immigration Act of 1990, if the applicant will be interviewed in the 
Philippines--$120.
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--$115.
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--$65.
Form N-600.  For filing an application for certificate of citizenship 
under section 309(c) or section 341 of the Act--$100.
Form N-643.  For filing an application for a certificate of citizenship 
on behalf of an adopted child--$80.
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

[[Page 88]]

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 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.
    (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.

[[Page 89]]

    (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]

    Editorial Note: For Federal Register citations affecting Sec. 103.7, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



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

[[Page 90]]

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 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

[[Page 91]]

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 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

[[Page 92]]

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 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 244A 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 deportation under section 243(h) of the 
Act 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]



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

[[Page 93]]

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 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, alien registration receipt 
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

[[Page 94]]

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 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]



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

[[Page 95]]

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 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

[[Page 96]]

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]



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.

[[Page 97]]



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 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]

[[Page 98]]



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.
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).

    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

[[Page 99]]

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. 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

[[Page 100]]

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 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, Alien Registration Receipt 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

[[Page 101]]

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), 
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]



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.

[[Page 102]]

    (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 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

[[Page 103]]

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 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:

[[Page 104]]

    (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.)


    (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

[[Page 105]]

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
    (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

[[Page 106]]

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 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.

[[Page 107]]

    (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 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.

[[Page 108]]

    (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 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

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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 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

[[Page 110]]

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 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

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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 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.

[[Page 112]]

    (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 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

[[Page 113]]

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 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

[[Page 114]]

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.
    (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

[[Page 115]]

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 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

[[Page 116]]

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.
    (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

[[Page 117]]

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 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

[[Page 118]]

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), 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

[[Page 119]]

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 
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

[[Page 120]]

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.
    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.

[[Page 121]]

    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 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;
    (iv) Two sets of completed and fully-classifiable fingerprint cards 
for each member of the married prospective adoptive couple or the 
unmarried prospective adoptive parent. The fingerprints must be 
submitted on Form FD-258 (Applicant Fingerprint Card) with the office 
code of the Service office having jurisdiction over the petitioner's 
place of residence preprinted in the box marked ``ORI''; and
    (v) 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

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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; and
    (vi) Two sets of fingerprint cards which conform to the requirements 
in paragraph (c)(1)(iv) of this section for each additional adult member 
of the prospective adoptive parents' household. The Service may waive 
this requirement when it determines that such an adult is physically 
unable to be fingerprinted because of age or medical condition.
    (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.
    (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

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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
    (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

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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 
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

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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, 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

[[Page 126]]

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 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

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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 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

[[Page 128]]

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 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

[[Page 129]]

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 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

[[Page 130]]

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 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.

[[Page 131]]

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 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,

[[Page 132]]

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 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]



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 the fingerprints of the sponsor on Form FD-
258, if not previously submitted. 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

[[Page 133]]

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 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

[[Page 134]]

    (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 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.
    (iv) Fingerprints of sponsor. The petitioner must submit the 
fingerprints of the sponsor on Form FD-258. The petitioner may submit 
Form FD-258 at any time during the processing of the petition. The Form 
FD-258 must reflect the originating agency (ORI) number or special 
office code relating to the Service office where the petition is filed, 
if that office has Forms FD-258 with the relating ORI number.
    (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

[[Page 135]]

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 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]



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.

[[Page 136]]

    (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 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

[[Page 137]]

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 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.

[[Page 138]]

    (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 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

[[Page 139]]

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:
    (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

[[Page 140]]

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 
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;

[[Page 141]]

    (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 
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

[[Page 142]]

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.
    (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

[[Page 143]]

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 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

[[Page 144]]

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 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

[[Page 145]]

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 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

[[Page 146]]

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 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

[[Page 147]]

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 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

[[Page 148]]

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 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

[[Page 149]]

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 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;

[[Page 150]]

    (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 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

[[Page 151]]

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 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

[[Page 152]]

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 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.

[[Page 153]]

    (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 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.

[[Page 154]]

    (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
    (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

[[Page 155]]

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 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

[[Page 156]]

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
    (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

[[Page 157]]

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;
    (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]



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

[[Page 158]]

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 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

[[Page 159]]

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 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

[[Page 160]]

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 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  Physical presence in the United States.
207.8  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]

[[Page 161]]



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).
    (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. The application for refugee status will not 
be approved until the Service receives an acceptable sponsorship 
agreement and guaranty of transportation in behalf of the applicant.



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  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

[[Page 162]]

computed from the date the applicant entered the United States as a 
refugee.



Sec. 207.8  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]



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.
208.11  Comments from the Department of State.
208.12  Reliance on information compiled by other sources.
208.13  Establishing asylum eligibility.
208.14  Approval, denial, or referral of application.
208.15  Definition of ``firm resettlement.''
208.16  Withholding of removal.
208.17  Decisions.
208.18  Determining if an asylum application is frivolous.
208.19  Admission of the asylee's spouse and children.
208.20  Effect on exclusion, deportation, and removal proceedings.
208.21  Restoration of status.
208.22  Termination of asylum or withholding of removal or deportation.
208.23--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.

    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, 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(c). Such applications 
are hereinafter referred to generically 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

[[Page 163]]

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, as well 
as other information relevant to asylum determinations, and shall 
maintain a documentation center with information on human rights 
conditions.



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. An application 
that is complete within the meaning of Sec. 208.3(c)(3) shall be either 
adjudicated or referred by 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. Except as 
provided in Sec. 208.16(a), an asylum officer shall not decide whether 
an alien is entitled to withholding of removal under section 241(b)(3) 
of the Act.
    (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 pursuant to the procedure 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

[[Page 164]]

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. 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.
[62 FR 10337, Mar. 6, 1997; 62 FR 15362, Apr. 1, 1997]



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

[[Page 165]]

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;
    (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.



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 
section 241 of the Act. 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 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

[[Page 166]]

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 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

[[Page 167]]

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).



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, 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.



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.

[[Page 168]]

    (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.



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. Such time 
periods also shall be extended by the equivalent of the time between 
issuance of a request for evidence under 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

[[Page 169]]

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 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.



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.



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

[[Page 170]]

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 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(b).
    (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.



Sec. 208.10  Failure to appear at an interview before an asylum officer.

    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 appear shall be excused if the 
notice of the interview 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. Failure to appear will be 
excused if the applicant demonstrates that such failure was the result 
of exceptional circumstances.



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 in his or her country of nationality or 
habitual residence and the frequency of such persecution; or
    (3) Such other information as it deems relevant.

[[Page 171]]

    (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.



Sec. 208.12  Reliance on information compiled by other sources.

    (a) In deciding an asylum application, or whether the alien has a 
credible fear of persecution pursuant to section 235(b)(1)(B) of the 
Act, 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.



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 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

[[Page 172]]

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.
    (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.



Sec. 208.14  Approval, denial, or referral 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.
    (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.

[[Page 173]]

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.



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 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.



Sec. 208.16  Withholding of removal.

    (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; burden of proof. The 
burden of proof is on the applicant for withholding of removal 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.
    (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

[[Page 174]]

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) Approval or denial of application--(1) General. Subject to 
paragraphs (c)(2) and (c)(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 paragraph (b) of this section.
    (2) Mandatory denials. Except as provided in paragraph (c)(3) of 
this section, an application for withholding of removal shall be denied 
if the applicant 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 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 
Public Law 104-132, 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 1967 
Protocol Relating to the Status of Refugees.
    (d) 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.



Sec. 208.17  Decisions.

    The decision of an asylum officer to grant or to deny asylum or 
withholding of removal, or to refer an asylum application in accordance 
with Sec. 208.14(b), shall be communicated in writing to the applicant. 
Notices of decisions to grant or deny asylum, or to refer an 
application, by asylum officers shall generally be served in person 
unless, in the discretion of the asylum office director, routine service 
by mail is appropriate. A letter communicating denial of the application 
shall state the basis for denial of the asylum application. The letter 
also shall contain an assessment of the applicant's credibility, unless 
the denial is the result of the applicant's conviction of an aggravated 
felony. Pursuant to Sec. 208.9(d), an applicant must appear in person to 
receive and to acknowledge receipt of the decision.



Sec. 208.18  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

[[Page 175]]

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.



Sec. 208.19  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 
section 101(b)(1) of the Act must have existed at the time the principal 
alien's asylum application was approved, except for children born to or 
legally adopted by the principal alien and spouse after approval of the 
principal alien's asylum application.
    (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 principal alien's application, the principal alien may request 
asylum for the spouse or child by filing Form I-730 with the District 
Director having jurisdiction over his only place of residence, 
regardless of the status of that spouse or child in the United States.
    (d) Spouse or child outside the United States. When a spouse or 
child of an alien granted asylum is outside the United States, the 
principal alien may request asylum for the spouse or child by filing 
form I-730 with the District Director, setting forth the full name, 
relationship, date and place of birth, and current location of each such 
person. Upon approval of the request, the District Director shall notify 
the Department of State, which will send an authorization cable to the 
American Embassy or Consulate having jurisdiction over the area in which 
the asylee's spouse or child is located.
    (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 claim of relationship of 
spouse or child as defined in section 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 
8 CFR 204.2(c) (2) and (3). 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.



Sec. 208.20  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. 208.22. An alien in exclusion, deportation, or removal proceedings 
who is granted withholding of removal or deportation may not be deported 
or removed to the country to which his or her deportation or removal is 
ordered withheld unless the withholding order is terminated pursuant to 
Sec. 208.22.

[[Page 176]]

    (b) When an alien's asylum status or withholding of removal or 
deportation is terminated under this chapter, 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. Removal proceedings may also be in conjunction with a 
termination hearing scheduled under Sec. 208.22(e).



Sec. 208.21  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.



Sec. 208.22  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 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

[[Page 177]]

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.



Secs. 208.23--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. The decision

[[Page 178]]

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, the asylum 
officer will so inform the alien and issue a Form I-862, Notice to 
Appear, for full consideration of the asylum 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, 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 claim in proceedings under Sec. 208.2(b)(1).
    (e) Removal of aliens with no credible fear of persecution. If an 
alien is found not to have a credible fear of persecution, 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, the case shall be returned to the Service for removal of 
the alien.
    (2) If the immigration judge finds that the alien, other than an 
alien stowaway, possesses a credible fear of persecution, 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 asylum 
application 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, the alien shall be allowed to file an 
asylum application before the immigration judge in accordance with 
Sec. 208.4(b)(3)(iii). The immigration judge shall decide the asylum 
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 asylum application 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 asylum 
application becomes final, the Service shall terminate removal 
proceedings under section 235(a)(2) of the Act.



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




Sec.
209.1  Admission for permanent residence after one year.
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.

[[Page 179]]



Sec. 209.1  Admission for permanent residence after one year.

    (a) Eligibility. (1) Every alien in the United States as a refugee 
under Sec. 207 of this chapter whose status has not been terminated, is 
required to appear before an immigration officer one year after entry to 
determine his/her admissibility under sections 235 and 240 of the Act. 
The applicant shall be examined under oath to determine admissibility. 
If the applicant is found to be admissible, he/she shall be inspected 
and admitted for lawful permanent residence as of the date of the 
alien's arrival in the United States. If the applicant is determined to 
be inadmissible, he/she shall be informed that he/she may renew the 
request for admission to the United States as an immigrant in exclusion 
proceedings under section 236 of the Act. 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/her refugee status.
    (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) Processing Application. One year after arrival in the United 
States, every refugee entrant shall be notified to appear for 
examination before an immigration officer. Each applicant shall be 
examined under oath to determine eligibility for permanent residence. If 
the refugee entrant has been physically present in the United States for 
at least one year, forms FD-258 (Applicant Card) and G-325A 
(Biographical Information) will be processed. Unless there were medical 
grounds for exclusion at the time of arrival, a United States Public 
Health Service medical examination is not required. If the alien is 
found admissible after inspection under section 209(a) of the Act, he/
she shall be processed for issuance of Form I-551 (Alien Registration 
Receipt Card).
[46 FR 45119, Sept. 10, 1981, as amended at 62 FR 10346, Mar. 6, 1997]



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 district 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 
district 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

[[Page 180]]

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 district 
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 fee, with the district 
director having jurisdiction over the applicant's place of residence. A 
separate application must be filed by each alien, and if the alien is 14 
years or older it must be accompanied by a completed Form G-325A 
(Biographical Information) and Form FD-258 (Applicant Card). 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 one year. If an alien has been placed 
in deportation, exclusion, or removal proceedings under any section of 
this Act (as effective on the date such proceedings commenced), the 
application can be filed and considered only in those proceedings.
    (d) Medical Examination. Upon acceptance of the application, the 
applicant shall submit to an examination by a selected civil surgeon as 
required by sections 221(d) and 234 of the Act. The report setting forth 
the findings of the mental and physical condition of the applicant shall 
be incorporated into the record.
    (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.
    (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 district director but such 
denial will be without prejudice to the alien's right to renew the 
application in proceedings under parts 242 and 236 of this chapter. If 
the application is approved, the district 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, 42884, Sept. 17, 1992; 58 FR 12149, Mar. 3, 1993; 62 FR 
10346, Mar. 6, 1997]



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.

[[Page 181]]


    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 Alien Registration Receipt 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 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

[[Page 182]]

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 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]



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

[[Page 183]]

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 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.
    (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

[[Page 184]]

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 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,

[[Page 185]]

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 
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

[[Page 186]]

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, 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

[[Page 187]]

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 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.

[[Page 188]]

    (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 
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

[[Page 189]]

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 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

[[Page 190]]

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]



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

[[Page 191]]

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 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]



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,

[[Page 192]]

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, Alien Registration Receipt Card. Such 
appearance may be prior to the date of adjustment, but only upon 
invitation by the Service. Form I-551 shall be 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]



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) 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, Alien Registration Receipt 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, Alien Registration Receipt 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

[[Page 193]]

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 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 Alien Registration Receipt 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.



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

[[Page 194]]

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.
    (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

[[Page 195]]

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 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 alien registration receipt 
card to show that he or she has taken up residence in the United States 
shall be made on Form I-90.



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  Departmental parole determinations respecting certain Mariel 
          Cubans.
212.14  Parole determinations for alien witnesses and informants for 
          whom a law enforcement authority (``LEA'') will request S 
          classification.

    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

[[Page 196]]

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 Islands or the Turks 
and Caicos Islands indicating no criminal record.
    (b) 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 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: (1) Is 
proceeding to the United States as an agricultural worker; or (2) 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 is the spouse or child of such an alien 
accompanying or following to join him. A visa is not required of a 
national of the British Virgin Islands who has his residence in the 
British Virgin Islands, and who is proceeding to the Virgin Islands of 
the United States.
    (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 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.

[[Page 197]]

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 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.

[[Page 198]]

    (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 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

[[Page 199]]

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.


(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 in the Finding Aids section in 
this volume.



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 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

[[Page 200]]

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. 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. 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 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.

[[Page 201]]

    (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.
    (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 from exclusion, deportation, or removal proceedings 
which are instituted subsequent to the date permission to reapply is 
granted.
[56 FR 23212, May 21, 1991]



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

[[Page 202]]

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 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

[[Page 203]]

    (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 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

[[Page 204]]

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 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

[[Page 205]]

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 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

[[Page 206]]

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 
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

[[Page 207]]

    (3) Agreement to reasonable conditions (such as periodic reporting 
of whereabouts).
    (d) Termination of parole--(1) Automatic. Parole shall be 
automatically terminated without written notice (i) upon the departure 
from the United States of the alien, or, (ii) if not departed, at the 
expiration of the time for which parole was authorized, and in the 
latter case the alien shall be processed in accordance with paragraph 
(d)(2) of this section except that no written notice shall be required.
    (2)(i) On notice. In cases not covered by paragraph (d)(1) of this 
section, upon accomplishment of the purpose for which parole was 
authorized or when in the opinion of the district director or chief 
patrol agent in charge of the area in which the alien is located, 
neither humanitarian reasons nor public benefit warrants the continued 
presence of the alien in the United States, parole shall be terminated 
upon written notice to the alien and he or she shall be restored to the 
status that he or she had at the time of parole. When a charging 
document is served on the alien, the charging document will constitute 
written notice of termination of parole, unless otherwise specified. Any 
further inspection or hearing shall be conducted under section 235 or 
240 of the Act and this chapter, or any order of exclusion, deportation, 
or removal previously entered shall be executed. If the exclusion, 
deportation, or removal order cannot be executed by removal within a 
reasonable time, the alien shall again be released on parole unless in 
the opinion of the district director or the chief patrol agent the 
public interest requires that the alien be continued in custody.
    (ii) An alien who is granted parole into the United States after 
enactment of the Immigration Reform and Control Act of 1986 for other 
than the specific purpose of applying for adjustment of status under 
section 245A of the Act shall not be permitted to avail him or herself 
of the privilege of adjustment thereunder. Failure to abide by this 
provision through making such an application will subject the alien to 
termination of parole status and institution of proceedings under 
sections 235 and 236 of the Act without the written notice of 
termination required by Sec. 212.5(d)(2)(i) of this chapter.
    (e) Advance authorization. When parole is authorized for an alien 
who will travel to the United States without a visa, the alien shall be 
issued Form I-512.
    (f) Parole for certain Cuban nationals. Notwithstanding any other 
provision respecting parole, the determination whether to release on 
parole, or to revoke the parole of, a native of Cuba who last came to 
the United States between April 15, 1980, and October 20, 1980, shall be 
governed by the terms of Secs. 212.12 and 212.13.
    (g) Effect of parole of Cuban and Haitian nationals. (1) Except as 
provided in paragraph (g)(2) of this section, any national of Cuba or 
Haiti who was paroled into the United States on or after October 10, 
1980, shall be considered to have been paroled in the special status for 
nationals of Cuba or Haiti, referred to in section 501(e)(1) of the 
Refugee Education Assistance Act of 1980, Public Law 96-422, as amended 
(8 U.S.C. 1522 note).
    (2) A national of Cuba or Haiti shall not be considered to have been 
paroled in the special status for nationals of Cuba or Haiti, referred 
to in section 501(e)(1) of the Refugee Education Assistance Act of 1980, 
Public Law 96-422, as amended, if the individual was paroled into the 
United States:
    (i) In the custody of a Federal, State or local law enforcement or 
prosecutorial authority, for purposes of criminal prosecution in the 
United States; or
    (ii) Solely to testify as a witness in proceedings before a 
judicial, administrative, or legislative body in the United States.
[47 FR 30045, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982; 52 
FR 16194, May 1, 1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450, May 17, 
1988; 61 FR 36611, July 12, 1996; 62 FR 10348, Mar. 6, 1997]



Sec. 212.6  Nonresident alien border crossing cards.

    (a) Use--(1) Nonresident alien Canadian border crossing card, Form 
I-185. Any Canadian citizen or British subject residing in Canada may 
use Form I-185 for entry at a United States port of entry.

[[Page 208]]

    (2) Mexican border crossing card, Form I-186 or I-586. The rightful 
holder of a nonresident alien Mexican border crossing card, Form I-186 
or I-586, may be admitted under Sec. 235.1(f) of this chapter if found 
otherwise admissible. However, any alien seeking entry as a visitor for 
business or pleasure must also present a valid passport and shall be 
issued Form I-94 if the alien is applying for admission from:
    (i) A country other than Mexico or Canada, or
    (ii) Canada if the alien has been in a country other than the United 
States or Canada since leaving Mexico.
    (b) Application. A citizen of Canada or a British subject residing 
in Canada must apply on Form I-175 for a nonresident alien border 
crossing card, supporting his/her application with evidence of Canadian 
or British citizenship, residence in Canada, and two photographs, size 
1\1/2\' x 1\1/2\'. Form I-175 must be submitted to an immigration 
officer at a Canadian border port of entry. A citizen of Mexico must 
apply on Form I-190 for a nonresident alien border crossing card, 
supporting his application with evidence of Mexican citizenship and 
residence, a valid unexpired passport or a valid Mexican Form 13, and 
one color photograph with a white background. The photograph must be 
glossy, unretouched and not mounted. Dimension of the facial image must 
be approximately one inch from chin to top of hair, and the applicant 
must be shown in \3/4\ frontal view showing right side of face with 
right ear visible. Form I-190 must be submitted to an immigration 
officer at a Mexican border port of entry or to an American consular 
officer in Mexico, other than one assigned to a consulate situated 
adjacent to the border between Mexico and the United States; however, 
Form FS-257 may be used in lieu of Form I-190 when the application is 
made to an American consular officer. If the application is submitted to 
an immigration officer, each applicant, regardless of age, must appear 
in person for an interview concerning eligibility for a nonresident 
alien border crossing card. If the application is submitted to a 
consular officer, each applicant, except a child under fourteen years of 
age, must appear in person for the interview. If the application is 
denied, the applicant shall be given a notice of denial with the reasons 
on Form I-180. There is no appeal from the denial but the denial is 
without prejudice to a subsequent application for a visa or for 
admission to the United States.
    (c) Validity. Notwithstanding any expiration dates which may appear 
thereon, Forms I-185, I-186, and I-586, are valid until revoked or 
voided.
    (d) Voidance--(1) At port of entry. Forms I-185, I-186 and I-586 may 
be declared void by a supervisory immigration officer at a port of 
entry. If the card is declared void, the applicant shall be advised in 
writing that he/she may request a hearing before an immigration judge to 
determine his/her admissibility in accordance with part 236 of this 
chapter and may be represented at this hearing by an attorney of his/her 
own choice at no expense to the Government. He/she shall also be advised 
of the availability of free legal services provided by organizations and 
attorneys qualified under part 3 of this chapter and organizations 
recognized under Sec. 292.2 of this chapter, located in the district 
where the exclusion hearing is to be held. If the applicant requests a 
hearing, Forms I-185, I-186 and I-586 shall be held at the port of entry 
for presentation to the immigration judge. If the applicant chooses not 
to have a hearing, the card shall be voided. The alien to whom the form 
was issued shall be notified of the action taken and the reasons 
therefore by means of form I-180 delivered in person or, if such action 
is not possible, by mailing the Form I-180 to the last known address.
    (2) Within the United States. If the holder of a Form I-185, I-186 
or I-586 is placed under deportation proceedings, no action to void the 
card shall be taken pending the outcome of the hearing. If the alien is 
ordered deported or granted voluntary departure, the card shall be 
voided by an immigration officer. In the case of an alien holder of a 
Form I-185, I-186 or I-586 who is granted voluntary departure without a 
hearing, the card may be declared void by an immigration officer who is 
authorized to issue an Order to Show Cause or to grant voluntary 
departure.

[[Page 209]]

    (3) In Mexico or Canada. Forms I-185, I-186 or I-586 may be declared 
void by a consular officer in Mexico or Canada if the card was issued in 
one of those countries.
    (4) Grounds. Grounds for voidance of a Form I-185, I-186 or I-586 
shall be that the holder has violated the immigration laws; that he/she 
is inadmissible to the United States; or that he/she has abandoned his/
her residence in the country upon which the card was granted.
    (e) Replacement. If a nonresident alien border crossing card has 
been lost, stolen, mutilated, or destroyed, the person to show the card 
was issued may apply for a new card as provided for in this section. A 
fee as prescribed in Sec. 103.7(b)(1) of this chapter must be submitted 
at time of application for the replacement card. The holder of a Form I-
185, I-186, or I-586 which is in poor condition because of improper 
production may be issued a new form without submitting fee or 
application upon surrendering the original card.
    (f) Previous removal or deportation; waiver of inadmissibility. 
Pursuant to the authority contained in section 212 (d)(3) of the Act, 
the temporary admission of an alien who is inadmissible under paragraph 
(16) or (17) of section 212(a) of the Act is authorized if such alien is 
in possession of a Mexican Nonresident Alien Border Crossing Card and he 
establishes that he is otherwise admissible as a nonimmigrant visitor or 
student except for his removal or deportation prior to November 1, 1956, 
because of entry without inspection or lack of required documents.
[30 FR 10184, Aug. 17, 1965, as amended at 34 FR 129, Jan. 4, 1969; 35 
FR 3065, Feb. 17, 1970; 37 FR 7584, Apr. 18, 1972; 37 FR 8061, Apr. 25, 
1972; 45 FR 11114, Feb. 20, 1980; 46 FR 25082, May 5, 1981; 48 FR 35349, 
Aug. 4, 1983; 60 FR 40068, Aug. 7, 1995; 62 FR 9074, Feb. 28, 1997; 62 
FR 10349, Mar. 6, 1997]



Sec. 212.7  Waiver of certain grounds of excludability.

    (a) Section 212(h) or (i)--(1) Filing procedure--(i) Immigrant visa 
or fiance(e) nonimmigrant visa applicant. An applicant for an immigrant 
visa or ``K'' nonimmigrant visa who is excludable and seeks a waiver 
under section 212(h) or (i) of the Act shall file an application on Form 
I-601 at the consular office considering the visa application. Upon 
determining that the alien is admissible except for the grounds for 
which a waiver is sought, the consular officer shall transmit the Form 
I-601 to the Service for decision.
    (ii) Adjustment of status applicant. An applicant for adjustment of 
status who is excludable and seeks a waiver under section 212(h) or (i) 
of the Act shall file an application on Form I-601 with the director or 
immigration judge considering the application for adjustment of status.
    (2) Termination of application for lack of prosecution. An applicant 
may withdraw the application at any time prior to the final decision, 
whereupon the case will be closed and the consulate notified. If the 
applicant fails to prosecute the application within a reasonable time 
either before or after interview the applicant shall be notified that if 
he or she fails to prosecute the application within 30 days the case 
will be closed subject to being reopened at the applicant's request. If 
no action has been taken within the 30-day period immediately 
thereafter, the case will be closed and the appropriate consul notified.
    (3) Decision. If the application is approved the director shall 
complete Form I-607 for inclusion in the alien's file and shall notify 
the alien of the decision. If the application is denied the applicant 
shall be notified of the decision, of the reasons therefor, and of the 
right to appeal in accordance with part 103 of this chapter.
    (4) Validity. A waiver granted under section 212(h) or section 
212(i) of the Act shall apply only to those grounds of excludability and 
to those crimes, events or incidents specified in the application for 
waiver. Once granted, the waiver shall be valid indefinitely, even if 
the recipient of the waiver later abandons or otherwise loses lawful 
permanent resident status, except that any waiver which is granted to an 
alien who obtains lawful permanent residence on a conditional basis 
under section 216 of the Act shall automatically terminate concurrently 
with the termination of such residence pursuant to the provisions of 
section 216. Separate notification of the termination of the

[[Page 210]]

waiver is not required when an alien is notified of the termination of 
residence under section 216 of the Act, and no appeal shall lie from the 
decision to terminate the waiver on this basis. However, if the 
respondent is found not to be deportable in a deportation proceeding 
based on the termination, the waiver shall again become effective. 
Nothing in this subsection shall preclude the director from 
reconsidering a decision to approve a waiver if the decision is 
determined to have been made in error.
    (b) Section 212(g) (tuberculosis and certain mental conditions)--(1) 
General. Any alien who is ineligible for a visa and is excluded from 
admission into the United States under section 212(a) (1), (3), or (6) 
of the Act may file an Application for Waiver of Grounds of 
Excludability (Form I-601) under section 212(g) of the Act at an office 
designated in paragraph (2). The family member specified in section 
212(g) of the Act may file the waiver for the applicant if the applicant 
is incompetent to file the waiver personally.
    (2) Locations for filing Form I-601. Form I-601 may be filed at any 
one of the following offices:
    (i) The American consulate where the application for a visa is being 
considered if the alien is outside the United States;
    (ii) The Service office having jurisdiction over the port of entry 
where the alien is applying for admission into the United States; or
    (iii) The Service office having jurisdiction over the alien if the 
alien is in the United States.
    (3) Section 212(a)(6) (tuberculosis). If the alien is excludable 
under section 212(a)(6) of the Act because of tuberculosis, he shall 
execute Statement A on the reverse of page 1 of Form I-601. In addition, 
he or his sponsor in the United States is responsible for having 
Statement B executed by the physician or health facility which has 
agreed to supply treatment or observation; and, if required, Statement C 
shall be executed by the appropriate local or State health officer.
    (4) Section 212(a) (1) or (3) (certain mental conditions)--(i) 
Arrangements for submission of medical report. If the alien is 
excludable under section 212(a) (1) or (3) (because of mental 
retardation or because of a past history of mental illness) he or his 
sponsoring family member shall submit an executed Form I-601 to the 
consular or Service office with a statement that arrangements have been 
made for the submission to that office of a medical report. The medical 
report shall contain a complete medical history of the alien, including 
details of any hospitalization or institutional care or treatment for 
any physical or mental condition; findings as to the current physical 
condition of the alien, including reports of chest X-ray examination and 
of serologic test for syphilis if the alien is 15 years of age or over, 
and other pertinent diagnostic tests; and findings as to the current 
mental condition of the alien, with information as to prognosis and life 
expectancy and with a report of a psychiatric examination conducted by a 
psychiatrist who shall, in case of mental retardation, also provide an 
evaluation of the alien's intelligence. For an alien with a past history 
of mental illness, the medical report shall also contain available 
information on which the U.S. Public Health Service can base a finding 
as to whether the alien has been free of such mental illness for a 
period of time sufficient in the light of such history to demonstrate 
recovery. Upon receipt of the medical report, the consular or Service 
office shall refer it to the U.S. Public Health Service for review.
    (ii) Submission of statement. Upon being notified that the medical 
report has been reviewed by the U.S. Public Health Service and 
determined to be acceptable, the alien or the alien's sponsoring family 
member shall submit a statement to the consular or Service office. The 
statement must be from a clinic, hospital, institution, specialized 
facility, or specialist in the United States approved by the U.S. Public 
Health Service. The alien or alien's sponsor may be referred to the 
mental retardation or mental health agency of the state of proposed 
residence for guidance in selecting a post-arrival medical examining 
authority who will complete the evaluation and provide an evaluation 
report to the

[[Page 211]]

Centers for Disease Control. The statement must specify the name and 
address of the specialized facility, or specialist, and must affirm 
that:
    (A) The specified facility or specialist agrees to evaluate the 
alien's mental status and prepare a complete report of the findings of 
such evaluation.
    (B) The alien, the alien's sponsoring family member, or another 
responsible person has made complete financial arrangements for payment 
of any charges that may be incurred after arrival for studies, care, 
training and service;
    (C) The Director, Division of Quarantine, Center for Prevention 
Services, Centers for Disease Control, Atlanta, GA. 30333 shall be 
furnished:
    (1) The report evaluating the alien's mental status within 30 days 
after the alien's arrival; and
    (2) Prompt notification of the alien's failure to report to the 
facility or specialist within 30 days after being notified by the U.S. 
Public Health Service that the alien has arrived in the United States.
    (D) The alien shall be in an outpatient, inpatient, study, or other 
specified status as determined by the responsible local physcian or 
specialist during the initial evaluation.
    (5) Assurances: Bonds. In all cases under paragraph (b) of this 
section the alien or his or her sponsoring family member shall also 
submit an assurance that the alien will comply with any special travel 
requirements as may be specified by the U.S. Public Health Service and 
that, upon the admission of the alien into the United States, he or she 
will proceed directly to the facility or specialist specified for the 
initial evaluation, and will submit to such further examinations or 
treatment as may be required, whether in an outpatient, inpatient, or 
other status. The alien, his or her sponsoring family member, or other 
responsible person shall provide such assurances or bond as may be 
required to assure that the necessary expenses of the alien will be met 
and that he or she will not become a public charge. For procedures 
relating to cancellation or breaching of bonds, see part 103 of this 
chapter.
    (c) Section 212(e). (1) An alien who was admitted to the United 
States as an exchange visitor, or who acquired that status after 
admission, is subject to the foreign residence requirement of section 
212(e) of the Act if his or her participation in an exchange program was 
financed in whole or in part, directly or indirectly, by a United States 
government agency or by the government of the country of his or her 
nationality or last foreign residence.
    (2) An alien is also subject to the foreign residence requirement of 
section 212(e) of the Act if at the time of admission to the United 
States as an exchange visitor or at the time of acquisition of exchange 
visitor status after admission to the United States, the alien was a 
national or lawful permanent resident of a country which the Director of 
the United States Information Agency had designated, through public 
notice in the Federal Register, as clearly requiring the services of 
persons engaged in the field of specialized knowledge or skill in which 
the alien was to engage in his or her exchange visitor program.
    (3) An alien is also subject to the foreign residence requirement of 
section 212(e) of the Act if he or she was admitted to the United States 
as an exchange visitor on or after January 10, 1977 to receive graduate 
medical education or training, or following admission, acquired such 
status on or after that date for that purpose. However, an exchange 
visitor already participating in an exchange program of graduate medical 
education or training as of January 9, 1977 who was not then subject to 
the foreign residence requirement of section 212(e) and who proceeds or 
has proceeded abroad temporarily and is returning to the United States 
to participate in the same program, continues to be exempt from the 
foreign residence requirement.
    (4) A spouse or child admitted to the United States or accorded 
status under section 101(a)(15)(J) of the Act to accompany or follow to 
join an exchange visitor who is subject to the foreign residence 
requirement of section 212(e) of the Act is also subject to that 
requirement.
    (5) An alien who is subject to the foreign residence requirement and 
who believes that compliance therewith would impose exceptional hardship 
upon his/her spouse or child who is a citizen of

[[Page 212]]

the United States or a lawful permanent resident alien, or that he or 
she cannot return to the country of his or her nationality or last 
residence because he or she will be subject to persecution on account of 
race, religion, or political opinion, may apply for a waiver on Form I-
612. The alien's spouse and minor children, if also subject to the 
foreign residence requirement, may be included in the application, 
provided the spouse has not been a participant in an exchange program.
    (6) Each application based upon a claim to exceptional hardship must 
be accompanied by the certificate of marriage between the applicant and 
his or her spouse and proof of legal termination of all previous 
marriages of the applicant and spouse; the birth certificate of any 
child who is a United States citizen or lawful permanent resident alien, 
if the application is based upon a claim of exceptional hardship to a 
child, and evidence of the United States citizenship of the applicant's 
spouse or child, when the application is based upon a claim of 
exceptional hardship to a spouse or child who is a citizen of the United 
States.
    (7) Evidence of United States citizenship and of status as a lawful 
permanent resident shall be in the form provided in part 204 of this 
chapter. An application based upon exceptional hardship shall be 
supported by a statement, dated and signed by the applicant, giving a 
detailed explanation of the basis for his or her belief that his or her 
compliance with the foreign residence requirement of section 212(e) of 
the Act, as amended, would impose exceptional hardship upon his or her 
spouse or child who is a citizen of the United States or a lawful 
permanent resident thereof. The statement shall include all pertinent 
information concerning the incomes and savings of the applicant and 
spouse. If exceptional hardship is claimed upon medical grounds, the 
applicant shall submit a medical certificate from a qualified physician 
setting forth in terms understandable to a layman the nature and effect 
of the illness and prognosis as to the period of time the spouse or 
child will require care or treatment.
    (8) An application based upon the applicant's belief that he or she 
cannot return to the country of his or her nationality or last residence 
because the applicant would be subject to persecution on account of 
race, religion, or political opinion, must be supported by a statement, 
dated and signed by the applicant, setting forth in detail why the 
applicant believes he or she would be subject to persecution.
    (9) Waivers under Pub. L. 103-416 based on a request by a State 
Department of Public Health (or equivalent). In accordance with section 
220 of Pub. L. 103-416, an alien admitted to the United States as a 
nonimmigrant under section 101(a)(15)(J) of the Act, or who acquired 
status under section 101(a)(15)(J) of the Act after admission to the 
United States, to participate in an exchange program of graduate medical 
education or training (as of January 9, 1977), may apply for a waiver of 
the 2-year home country residence and physical presence requirement (the 
``2-year requirement'') under section 212(e)(iii) of the Act based on a 
request by a State Department of Pubic Health, or its equivalent. To 
initiate the application for a waiver under Pub. L. 103-416, the 
Department of Public Health, or its equivalent, or the State in which 
the foreign medical graduate seeks to practice medicine, must request 
the Director of USIA to recommend a waiver to the Service. The waiver 
may be granted only if the Director of USIA provides the Service with a 
favorable waiver recommendation. Only the Service, however, may grant or 
deny the waiver application. If granted, such a waiver shall be subject 
to the terms and conditions imposed under section 214(l) of the Act (as 
redesignated by section 671(a)(3)(A) of Pub. L. 104-208). Although the 
alien is not required to submit a separate waiver application to the 
Service, the burden rests on the alien to establish eligibility for the 
waiver. If the Service approves a waiver request made under Pub. L. 103-
416, the foreign medical graduate (and accompanying dependents) may 
apply for change of nonimmigrant status, from J-1 to H-1B and, in the 
case of dependents of such a foreign medical graduate, from J-2 to H-4. 
Aliens receiving waivers under section 220 of Pub. L. 103-416 are 
subject, in all cases, to the

[[Page 213]]

provisions of section 214(g)(1)(A) of the Act.
    (i) Eligiblity criteria. J-1 foreign medical graduates (with 
accompanying J-2 dependents) are eligible to apply for a waiver of the 
2-year requirement under Pub. L. 103-416 based on a request by a State 
Department of Public Health (or its equivalent) if:
    (A) They were admitted to the United States under section 
101(a)(15)(J) of the Act, or acquired J nonimmigrant status before June 
1, 2002, to pursue graduate medical education or training in the United 
States.
    (B) They have entered into a bona fide, full-time employment 
contract for 3 years to practice medicine at a health care facility 
located in an area or areas designated by the Secretary of Health and 
Human Services as having a shortage of health care professionals (``HHS-
designated shortage area'');
    (C) They agree to commence employment within 90 days of receipt of 
the waiver under this section and agree to practice medicine for 3 years 
at the facility named in the waiver application and only in HHS-
designated shortage areas. The health care facility named in the waiver 
application may be operated by:
    (1) An agency of the Government of the United States or of the State 
in which it is located; or
    (2) A charitable, educational, or other not-for-profit organization; 
or
    (3) Private medical practitioners.
    (D) The Department of Public Health, or its equivalent, in the State 
where the health care facility is located has requested the Director, 
USIA, to recommend the waiver, and the Director, USIA, submits a 
favorable waiver recommendation to the Service; and
    (E) Approval of the waiver will not cause the number of waivers 
granted pursuant to Pub. L. 103-416 and this section to foreign medical 
graduates who will practice medicine in the same state to exceed 20 
during the current fiscal year.
    (ii) Decision on waivers under Pub. L. 103-416 and notification to 
the alien--(A) Approval. If the Director of USIA submits a favorable 
waiver recommendation on behalf of a foreign medical graduate pursuant 
to Pub. L. 103-416, and the Service grants the waiver, the alien shall 
be notified of the approval on Form I-797 (or I-797A or I-797B, as 
appropriate). The approval notice shall clearly state the terms and 
conditions imposed on the waiver, and the Service's records shall be 
noted accordingly.
    (B) Denial. If the Director of USIA issues a favorable waiver 
recommendation under Pub. L. 103-416 and the Service denies the waiver, 
the alien shall be notified of the decision and of the right to appeal 
under 8 CFR part 103. However, no appeal shall lie where the basis for 
denial is that the number of waivers granted to the State in which the 
foreign medical graduate will be employed would exceed 20 for that 
fiscal year.
    (iii) Conditions. The foreign medical graduate must agree to 
commence employment for the health care facility specified in the waiver 
application within 90 days of receipt of the waiver under Pub. L. 103-
416. The foreign medical graduate may only fulfill the requisite 3-year 
employment contract as an H-1B nonimmigrant. A foreign medical graduate 
who receives a waiver under Pub. L. 103-416 based on a request by a 
State Department of Public Health (or equivalent), and changes his or 
her nonimmigrant classification from J-1 to H-1B, may not apply for 
permanent residence or for any other change of nonimmigrant 
classification unless he or she has fulfilled the 3-year employment 
contract with the health care facility and in the specified HHS-
designated shortage area named in the waiver application.
    (iv) Failure to fulfill the three-year employment contract due to 
extenuating circumstances. A foreign medical graduate who fails to meet 
the terms and conditions imposed on the waiver under section 214(l) of 
the Act and this paragraph will once again become subject to the 2-year 
requirement under section 212(e) of the Act.
    Under section 214(l)(1)(B) of the Act, however, the Service, in the 
exercise of discretion, may excuse early termination of the foreign 
medical graduate's 3-year period of employment with the health care 
facility named in the waiver application due to extenuating 
circumstances. Extenuating circumstances may include, but are not

[[Page 214]]

limited to, closure of the health care facility or hardship to the 
alien. In determining whether to excuse such early termination of 
employment, the Service shall base its decision on the specific facts of 
each case. In all cases, the burden of establishing eligibility for a 
favorable exercise of discretion rests with the foreign medical 
graduate. Depending on the circumstances, closure of the health care 
facility named in the waiver application may, but need not, be 
considered an extenuating circumstance excusing early termination of 
employment. Under no circumstances will a foreign medical graduate be 
eligible to apply for change of status to another nonimmigrant category, 
for an immigrant visa or for status as a lawful permanent resident prior 
to completing the requisite 3-year period of employment for a health 
care facility located in an HHS-designated shortage area.
    (v) Required evidence. A foreign medical graduate who seeks to have 
early termination of employment excused due to extenuating circumstances 
shall submit documentary evidence establishing such a claim. In all 
cases, the foreign medical graduate shall submit an employment contract 
with another health care facility located in an HHS-designated shortage 
area for the balance of the required 3-year period of employment. A 
foreign medical graduate claiming extenuating circumstances based on 
hardship shall also submit evidence establishing that such hardship was 
caused by unforeseen circumstances beyond his or her control. A foreign 
medical graduate claiming extenuating circumstances based on closure of 
the health care facility named in the waiver application shall also 
submit evidence that the facility has closed or is about to be closed.
    (vi) Notification requirements. A J-1 foreign medical graduate who 
has been granted a waiver of the 2-year requirement pursuant to Pub. L. 
103-416, is required to comply with the terms and conditions specified 
in section 214(l) of the Act and the implementing regulations in this 
section. If the foreign medical graduate subsequently applies for and 
receives H-1B status, he or she must also comply with the terms and 
conditions of that nonimmigrant status. Such compliance shall also 
include notifying the Service of any material change in the terms and 
conditions of the H-1B employment, by filing either an amended or a new 
H-1B petition, as required, under Secs. 214.2(h)(2)(i)(D), 
214.2(h)(2)(i)(E), and 214.2(h)(11) of this chapter.
    (A) Amended H-1B petitions. The health care facility named in the 
waiver application and H-1B petition shall file an amended H-1B 
petition, as required under Sec. 214.2(h)(2)(i)(E) of this chapter, if 
there are any material changes in the terms and conditions of the 
beneficiary's employment or eligibility as specified in the waiver 
application filed under Pub. L. 103-416 and in the subsequent H-1B 
petition. In such a case, an amended H-1B petition shall be accompanied 
by evidence that the alien will continue practicing medicine with the 
original employer in an HHS-designated shortage area.
    (B) New H-1B petitions. A health care facility seeking to employ a 
foreign medical graduate who has been granted a waiver under Pub. L. 
103-416 (prior to the time the alien has completed his or her 3-year 
contract with the facility named in the waiver application and original 
H-1B petition), shall file a new H-1B petition with the Service, as 
required under Secs. 214.2(h)(2)(i) (D) and (E) of this chapter. 
Although a new waiver application need not be filed, the new H-1B 
petition shall be accompanied by the documentary evidence generally 
required under Sec. 214.2(h) of this chapter, and the following 
additional documents:
    (1) A copy of Form I-797 (and/or I-797A and I-797B) relating to the 
waiver and nonimmigrant H status granted under Pub. L. 103-416;
    (2) An explanation from the foreign medical graduate, with 
supporting evidence, establishing that extenuating circumstances 
necessitate a change in employment;
    (3) An employment contract establishing that the foreign medical 
graduate will practice medicine at the health care facility named in the 
new H-1B petition for the balance of the required 3-year period; and

[[Page 215]]

    (4) Evidence that the geographic area or areas of intended 
employment indicated in the new H-1B petition are in HHS-designated 
shortage areas.
    (C) Review of amended and new H-1B petitions for foreign medical 
graduates granted waivers under Pub. L. 103-416 and who seek to have 
early termination of employment excused due to extenuating 
circumstances--(1) Amended H-1B petitions. The waiver granted under Pub. 
L. 103-416 may be affirmed, and the amended H-1B petition may be 
approved, if the petitioning health care facility establishes that the 
foreign medical graduate otherwise remains eligible for H-1B 
classification and that he or she will continue practicing medicine in 
an HHS-designated shortage area.
    (2) New H-1B petitions. The Service shall review a new H-1B petition 
filed on behalf of a foreign medical graduate who has not yet fulfilled 
the required 3-year period of employment with the health care facility 
named in the waiver application and in the original H-1B petition to 
determine whether extenuating circumstances exist which warrant a change 
in employment, and whether the waiver granted under Pub. L. 103-416 
should be affirmed. In conducting such a review, the Service shall 
determine whether the foreign medical graduate will continue practicing 
medicine in an HHS-designated shortage area, and whether the new H-1B 
petitioner and the foreign medical graduate have satisfied the remaining 
H-1B eligibility criteria described under section 101(a)(15)(H) of the 
Act and Sec. 214.2(h) of this chapter. If these criteria have been 
satisfied, the waiver granted to the foreign medical graduate under Pub. 
L. 103-416 may be affirmed, and the new H1-B petition may be approved in 
the exercise of discretion, thereby permitting the foreign medical 
graduate to serve the balance of the requisite 3-year employment period 
at the health care facility named in the new H-1B petition.
    (D) Failure to notify the Service of any material changes in 
employment. Foreign medical graduates who have been granted a waiver of 
the 2-year requirement and who have obtained H-1B status under Pub. L. 
103-416 but fail to: Properly notify the Service of any material change 
in the terms and conditions of their H-1B employment, by having their 
employer file an amended or a new H-1B petition in accordance with this 
section and Sec. 214.2(h) of this chapter; or establish continued 
eligibility for the waiver and H-1B status, shall (together with their 
dependents) again become subject to the 2-year requirement. Such foreign 
medical graduates and their accompanying H-4 dependents also become 
subject to deportation under section 241(a)(1)(C)(i) of the Act.
    (10) The applicant and his or her spouse may be interviewed by an 
immigration officer in connection with the application and consultation 
may be had with the Director, United States Information Agency and the 
sponsor of any exchange program in which the applicant has been a 
participant.
    (11) The applicant shall be notified of the decision, and if the 
application is denied, of the reasons therefor and of the right of 
appeal in accordance with the provisions of part 103 of this chapter. 
However, no appeal shall lie from the denial of an application for lack 
of a favorable recommendation from the Secretary of State. When an 
interested United States Government agency requests a waiver of the two-
year foreign-residence requirement and the Director, United States 
Information Agency had made a favorable recommendation, the interested 
agency shall be notified of the decision on its request and, if the 
request is denied, of the reasons thereof, and of the right of appeal. 
If the foreign country of the alien's nationality or last residence has 
furnished statement in writing that it has no objection to his/her being 
granted a waiver of the foreign residence requirement and the Director, 
United States Information Agency has made a favorable recommendation, 
the Director shall be notified of the decision and, if the foreign 
residence requirement is not waived, of the reasons therefor and of the 
foregoing right of appeal. However, this ``no objection'' provision is 
not applicable to the exchange visitor admitted to the United States on 
or after January 10, 1977 to receive graduate medical education or 
training, or who acquired such status on or after that date for such 
purpose;

[[Page 216]]

except that the alien who commenced a program before January 10, 1977 
and who was readmitted to the United States on or after that date to 
continue participation in the same program, is eligible for the ``no 
objection'' waiver.


(Secs. 103, 203, 212 of the Immigration and Nationality Act, as amended 
by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8 U.S.C. 
1103, 1153, 1182)
[29 FR 12584, Sept. 4, 1964; 29 FR 13242, Sept. 24, 1964, as amended at 
30 FR 14776, Nov. 30, 1965; 32 FR 2500, Feb. 7, 1967; 37 FR 22725, Oct. 
31, 1972; 46 FR 45327, Sept. 11, 1981; 47 FR 44235, Oct. 7, 1982; 48 FR 
20684, May 9, 1983; 48 FR 23159, May 24, 1983; 48 FR 30610, July 5, 
1983; 49 FR 48530, Dec. 13, 1984; 53 FR 30017, Aug. 10, 1988; 60 FR 
26681, May 18, 1995; 60 FR 27598, May 24, 1995; 62 FR 18508, Apr. 16, 
1997]



Sec. 212.8  Certification requirement of section 212(a)(14).

    (a) General. The certification requirement of section 212(a)(14) of 
the Act applies to aliens seeking admission to the United States or 
adjustment of status under section 245 of the Act for the purpose of 
performing skilled or unskilled labor, who are preference immigrants as 
described in section 203(a) (3) or (6) of the Act, or who are 
nonpreference immigrants as described in section 203(a)(8). The 
certification requirement shall not be applicable to a nonpreference 
applicant for admission to the United States or to a nonpreference 
applicant for adjustment of status under section 245 who establishes 
that he will not perform skilled or unskilled labor. A native of the 
Western Hemisphere who established a priority date with a consular 
officer prior to January 1, 1977 and who was found to be entitled to an 
exemption from the labor certification requirement of section 212(a)(14) 
of the Act under the law in effect prior to January 1, 1977 as the 
parent, spouse or child of a United States citizen or lawful permanent 
resident alien shall continue to be exempt from that requirement for so 
long as the relationship upon which the exemption is based continues to 
exist.
    (b) Aliens not required to obtain labor certifications. The 
following persons are not considered to be within the purview of section 
212(a)(14) of the Act and do not require a labor certification: (1) A 
member of the Armed Forces of the United States; (2) a spouse or child 
accompanying or following to join his spouse or parent who either has a 
labor certification or is a nondependent alien who does not require such 
a certification; (3) a female alien who intends to marry a citizen or 
alien lawful permanent resident of the United States, who establishes 
satisfactorily that she does not intend to seek employment in the United 
States and whose fiance has guaranteed her support; (4) an alien who 
establishes on Form I-526 that he has invested, or is actively in the 
process of investing, capital totaling at least $40,000 in an enterprise 
in the United States of which he will be a principal manager and that 
the enterprise will employ a person or persons in the United States of 
which he will be a principal manager and that the enterprise will employ 
a person or persons in the United States who are United States citizens 
or aliens lawfully admitted for permnanent residence, exclusive of the 
alien, his spouse and children. A copy of a document submitted in 
support of Form I-526 may be accepted though unaccompanied by the 
original, if the copy bears a certification by an attorney, typed or 
rubber-stamped in the language set forth in Sec. 204.2(j) of this 
chapter. However, the original document shall be submitted, if submittal 
is requested by the Service.
[31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended at 
34 FR 5326, Mar. 18, 1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566, 
Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR 44990, Oct. 13, 1982; 
48 FR 19157, Apr. 28, 1983]



Sec. 212.9  Applicability of section 212(a)(32) to certain derivative third and sixth preference and nonpreference immigrants.

    A derivative beneficiary who is the spouse or child of a qualified 
third or sixth preference or nonpreference immigrant and who is also a 
graduate of a medical school as defined by section 101(a)(41) of the Act 
is not considered to be an alien who is coming to the United States 
principally to perform services as a member of the medical profession. 
Therefore, a derivative

[[Page 217]]

third or sixth preference or nonpreference immigrant under section 
203(a)(8) of the Act, who is also a graduate of a medical school, is 
eligible for an immigrant visa or for adjustment of status under section 
245 of the Act, whether or not such derivative immigrant has passed 
Parts I and II of the National Board of Medical Examiners Examination or 
equivalent examination.


(Secs. 103, 203(a)(8), and 212(a)(32), 8 U.S.C 1103, 1153(a)(8), and 
1182(a)(32))
[45 FR 63836, Sept. 26, 1980]



Sec. 212.10  Section 212(k) waiver.

    Any applicant for admission who is in possession of an immigrant 
visa, and who is excludable under sections 212(a)(14), (20), or (21) of 
the Act, may apply to the district director at the port of entry for a 
waiver under section 212(k) of the Act. If the application for waiver is 
denied by the district director, the application may be renewed in 
exclusion proceedings before an immigration judge as provided in part 
236 of this chapter.


(Secs. 103, 203, 212 of the Immigration and Nationality Act, as amended 
by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8 U.S.C. 
1103, 1153, 1182)
[47 FR 44236, Oct. 7, 1982]



Sec. 212.11  Controlled substance convictions.

    In determining the admissibility of an alien who has been convicted 
of a violation of any law or regulation of a State, the United States, 
or a foreign country relating to a controlled substance, the term 
controlled substance as used in section 212(a)(23) of the Act, shall 
mean the same as that referenced in the Controlled Substances Act, 21 
U.S.C. 801, et seq., and shall include any substance contained in 
Schedules I through V of 21 CFR 1308.1, et seq. For the purposes of this 
section, the term controlled substance includes controlled substance 
analogues as defined in 21 U.S.C. 802(23) and 813.
[53 FR 9282, Mar. 22, 1988]



Sec. 212.12  Parole determinations and revocations respecting Mariel Cubans.

    (a) Scope. This section applies to any native of Cuba who last came 
to the United States between April 15, 1980, and October 20, 1980 
(hereinafter referred to as Mariel Cuban) and who is being detained by 
the Immigration and Naturalization Service (hereinafter referred to as 
the Service) pending his or her exclusion hearing, or pending his or her 
return to Cuba or to another country. It covers Mariel Cubans who have 
never been paroled as well as those Mariel Cubans whose previous parole 
has been revoked by the Service. It also applies to any Mariel Cuban, 
detained under the authority of the Immigration and Nationality Act in 
any facility, who has not been approved for release or who is currently 
awaiting movement to a Service or Bureau Of Prisons (BOP) facility. In 
addition, it covers the revocation of parole for those Mariel Cubans who 
have been released on parole at any time.
    (b) Parole authority and decision. Except as provided in 
Sec. 212.13, the authority to grant parole under section 212(d)(5) of 
the Act to a detained Mariel Cuban shall be exercised by the 
Commissioner, acting through the Associate Commissioner for Enforcement, 
as follows:
    (1) Parole decisions. The Associate Commissioner for Enforcement 
may, in the exercise of discretion, grant parole to a detained Mariel 
Cuban for emergent reasons or for reasons deemed strictly in the public 
interest. A decision to retain in custody shall briefly set forth the 
reasons for the continued detention. A decision to release on parole may 
contain such special conditions as are considered appropriate. A copy of 
any decision to parole or to detain, with an attached copy translated 
into Spanish, shall be provided to the detainee. Parole documentation 
for Mariel Cubans shall be issued by the district director having 
jurisdiction over the alien, in accordance with the parole determination 
made by the Associate Commissioner for Enforcement.
    (2) Additional delegation of authority. All references to the 
Commissioner and Associate Commissioner for Enforcement in this section 
shall be deemed to

[[Page 218]]

include any person or persons (including a committee) designated in 
writing by the Commissioner or Associate Commissioner for Enforcement to 
exercise powers under this section.
    (c) Review Plan Director. The Associate Commissioner for Enforcement 
shall appoint a Director of the Cuban Review Plan. The Director shall 
have authority to establish and maintain appropriate files respecting 
each Mariel Cuban to be reviewed for possible parole, to determine the 
order in which the cases shall be reviewed, and to coordinate activities 
associated with these reviews.
    (d) Recommendations to the Associate Commissioner for Enforcement. 
Parole recommendations for detained Mariel Cubans shall be developed in 
accordance with the following procedures.
    (1) Review Panels. The Director shall designate a panel or panels to 
make parole recommendations to the Associate Commissioner for 
Enforcement. A Cuban Review Panel shall, except as otherwise provided, 
consist of two persons. Members of a Review Panel shall be selected from 
the professional staff of the Service. All recommendations by a two-
member Panel shall be unanimous. If the vote of a two-member Panel is 
split, it shall adjourn its deliberations concerning that particular 
detainee until a third Panel member is added. A recommendation by a 
three-member Panel shall be by majority vote. The third member of any 
Panel shall be the Director of the Cuban Review Plan or his designee.
    (2) Criteria for Review. Before making any recommendation that a 
detainee be granted parole, a majority of the Cuban Review Panel 
members, or the Director in case of a record review, must conclude that:
    (i) The detainee is presently a nonviolent person;
    (ii) The detainee is likely to remain nonviolent;
    (iii) The detainee is not likely to pose a threat to the community 
following his release; and
    (iv) The detainee is not likely to violate the conditions of his 
parole.
    (3) Factors for consideration. The following factors should be 
weighed in considering whether to recommend further detention or release 
on parole of a detainee:
    (i) The nature and number of disciplinary infractions or incident 
reports received while in custody;
    (ii) The detainee's past history of criminal behavior;
    (iii) Any psychiatric and psychological reports pertaining to the 
detainee's mental health;
    (iv) Institutional progress relating to participation in work, 
educational and vocational programs;
    (v) His ties to the United States, such as the number of close 
relatives residing lawfully here;
    (vi) The likelihood that he may abscond, such as from any 
sponsorship program; and
    (vii) Any other information which is probative of whether the 
detainee is likely to adjust to life in a community, is likely to engage 
in future acts of violence, is likely to engage in future criminal 
activity, or is likely to violate the conditions of his parole.
    (4) Procedure for review. The following procedures will govern the 
review process:
    (i) Record review. Initially, the Director or a Panel shall review 
the detainee's file. Upon completion of this record review, the Director 
or the Panel shall issue a written recommendation that the detainee be 
released on parole or scheduled for a personal interview.
    (ii) Personal interview. If a recommendation to grant parole after 
only a record review is not accepted or if the detainee is not 
recommended for release, a Panel shall personally interview the 
detainee. The scheduling of such interviews shall be at the discretion 
of the Director. The detainee may be accompanied during the interview by 
a person of his choice, who is able to attend at the time of the 
scheduled interview, to assist in answering any questions. The detainee 
may submit to the Panel any information, either orally or in writing, 
which he believes presents a basis for release on parole.
    (iii) Panel recommendation. Following completion of the interview 
and its deliberations, the Panel shall issue a written recommendation 
that the detainee be released on parole or remain in custody pending 
deportation or

[[Page 219]]

pending further observation and subsequent review. This written 
recommendation shall include a brief statement of the factors which the 
Panel deems material to its recommendation. The recommendation and 
appropriate file material shall be forwarded to the Associate 
Commissioner for Enforcement, to be considered in the exercise of 
discretion pursuant to Sec. 212.12(b).
    (e) Withdrawal of parole approval. The Associate Commissioner for 
Enforcement may, in his or her discretion, withdraw approval for parole 
of any detainee prior to release when, in his or her opinion, the 
conduct of the detainee, or any other circumstance, indicates that 
parole would no longer be appropriate.
    (f) Sponsorship. No detainee may be released on parole until 
suitable sponsorship or placement has been found for the detainee. The 
paroled detainee must abide by the parole conditions specified by the 
Service in relation to his sponsorship or placement. The following 
sponsorships and placements are suitable:
    (1) Placement by the Public Health Service in an approved halfway 
house or mental health project;
    (2) Placement by the Community Relations Service in an approved 
halfway house or community project; and
    (3) Placement with a close relative such as a parent, spouse, child, 
or sibling who is a lawful permanent resident or a citizen of the United 
States.
    (g) Timing of reviews. The timing of review shall be in accordance 
with the following guidelines.
    (1) Parole revocation cases. The Director shall schedule the review 
process in the case of a new or returning detainee whose previous 
immigration parole has been revoked. The review process will commence 
with a scheduling of a file review, which will ordinarily be expected to 
occur within approximately three months after parole is revoked. In the 
case of a Mariel Cuban who is in the custody of the Service, the Cuban 
Review Plan Director may, in his or her discretion, suspend or postpone 
the parole review process if such detainee's prompt deportation is 
practicable and proper.
    (2) Continued detention cases. A subsequent review shall be 
commenced for any detainee within one year of a refusal to grant parole 
under either Sec. 212.12(b) or Sec. 212.13, whichever is later, unless a 
shorter interval is specified by the Director.
    (3) Discretionary reviews. The Cuban Review Plan Director, in his 
discretion, may schedule a review of a detainee at any time when the 
Director deems such a review to be warranted.
    (h) Revocation of parole. The Associate Commissioner for Enforcement 
shall have authority, in the exercise of discretion, to revoke parole in 
respect to Mariel Cubans. A district director may also revoke parole 
when, in the district director's opinion, revocation is in the public 
interest and circumstances do not reasonably permit referral of the case 
to the Associate Commissioner. Parole may be revoked in the exercise of 
discretion when, in the opinion of the revoking official:
    (1) The purposes of parole have been served;
    (2) The Mariel Cuban violates any condition of parole;
    (3) It is appropriate to enforce an order of exclusion or to 
commence proceedings against a Mariel Cuban; or
    (4) The period of parole has expired without being renewed.
[52 FR 48802, Dec. 28, 1987, as amended at 59 FR 13870, Mar. 24, 1994]



Sec. 212.13  Departmental parole determinations respecting certain Mariel Cubans.

    (a) Scope. This section, establishing a Departmental Release Review 
Program, applies to all excludable Mariel Cubans who on the effective 
date of this regulation are detained by virtue of the Attorney General's 
authority under the Immigration and Nationality Act and whose parole has 
been denied after the exhaustion of the procedures set forth in 
Sec. 212.12. This Departmental Release Review Program shall be under the 
general supervision of the Associate Attorney General, who shall 
administer the Program and establish such additional procedures as may 
be required.
    (b) Single review. Each detainee described in paragraph (a) above 
shall be

[[Page 220]]

entitled to only one review before a Departmental Panel. Should a 
detainee denied parole under this section subsequently receive further 
review pursuant to Sec. 212.12 or any successor parole review plan of 
the Service, such detainee shall not be entitled to a second review 
before a Departmental Panel.
    (c) Departmental panels. The Associate Attorney General shall 
establish panels which will be comprised of three persons from within 
the Department of Justice, one of whom must be an attorney, and one of 
whom must be a representative of the Community Relations Service. The 
Immigration and Naturalization Service shall not be represented on the 
panels. These panels shall consider the cases of those Mariel Cubans 
whose parole has previously been denied pursuant to the provisions set 
forth in Sec. 212.12.
    (d) Parole authority. Each Departmental Panel shall be vested with 
the full discretion of the Attorney General under section 212(d)(5) of 
the Act to grant parole for emergent reasons or for reasons deemed 
strictly in the public interest.
    (e) Notification and submission. Prior to the submission by the 
Service of a case to a Departmental Panel, the detainee shall receive 
notification from the Service that he is about to receive Departmental 
Panel consideration. Such notification shall inform the detainee that he 
may submit a written statement to a Departmental Panel, within 30 days 
from the date of service of the notification, setting forth any factors 
he deems relevant to the parole consideration and he may, at no expense 
to the government, have his representative or counsel assist in the 
preparation of this written statement.
    (f) Interviews. A Departmental Panel may designate one of its 
members to interview the detainee and report in writing to the full 
Panel whenever in its sole discretion it deems such action appropriate.
    (g) Panel decisions. The written decision of a Departmental Panel 
will be based on a review of the record created during the review by the 
Service pursuant to Sec. 212.12, the written submission, if any, from 
the detainee, and the information obtained from any Panel interview of 
the detainee. Except as provided in paragraph (i) of this section, all 
written decisions of a Departmental Panel will be final and subject to 
no further review.
    (h) Sponsorship. No detainee may be released on parole until 
suitable sponsorship or placement has been found for the detainee. The 
paroled detainee must abide by the parole conditions specified by the 
Service in relation to his sponsorship or placement. The following 
sponsorships and placements are suitable:
    (1) Placement by the Public Health Service in an approved halfway 
house or mental health project;
    (2) Placement by the Community Relations Service in an approved 
halfway house or community project; and
    (3) Placement with a close relative such as a parent, spouse, child, 
or sibling who is a lawful permanent resident or a citizen of the United 
States.
    (i) Withdrawal of parole approval. A Departmental Panel may, in its 
discretion, withdraw its approval for parole of any detainee prior to 
release when, in its opinion, the conduct of the detainee, or any other 
circumstance, indicates that parole would no longer be appropriate.
    (j) Parole revocations. Parole granted under this section may be 
revoked pursuant to Sec. 212.12.
[52 FR 48804, Dec. 28, 1987]



Sec. 212.14  Parole determinations for alien witnesses and informants for whom a law enforcement authority (``LEA'') will request S classification.

    (a) Parole authority. Parole authorization under section 212(d)(5) 
of the Act for aliens whom LEAs seek to bring to the United States as 
witnesses or informants in criminal/counter terrorism matters and to 
apply for S classification shall be exercised as follows:
    (1) Grounds of eligibility. The Commissioner may, in the exercise of 
discretion, grant parole to an alien (and the alien's family members) 
needed for law enforcement purposes provided that a state or federal 
LEA:
    (i) Establishes its intention to file, within 30 days after the 
alien's arrival in the United States, a completed Form I-854, Inter-
Agency Alien Witness

[[Page 221]]

and Informant Record, with the Assistant Attorney General, Criminal 
Division, Department of Justice, in accordance with the instructions on 
or attached to the form, which will include the names of qualified 
family members for whom parole is sought;
    (ii) Specifies the particular operational reasons and basis for the 
request, and agrees to assume responsibility for the alien during the 
period of the alien's temporary stay in the United States, including 
maintaining control and supervision of the alien and the alien's 
whereabouts and activities, and further specifies any other terms and 
conditions specified by the Service during the period for which the 
parole is authorized;
    (iii) Agrees to advise the Service of the alien's failure to report 
quarterly any criminal conduct by the alien, or any other activity or 
behavior on the alien's part that may constitute a ground of 
excludability or deportability;
    (iv) Assumes responsibility for ensuring the alien's departure on 
the date of termination of the authorized parole (unless the alien has 
been admitted in S nonimmigrant classification pursuant to the terms of 
paragraph (a)(2) of this section), provides any and all assistance 
needed by the Service, if necessary, to ensure departure, and verifies 
departure in a manner acceptable to the Service;
    (v) Provide LEA seat-of-government certification that parole of the 
alien is essential to an investigation or prosecution, is in the 
national interest, and is requested pursuant to the terms and authority 
of section 212(d)(5) of the Act;
    (vi) Agrees that no promises may be, have been, or will be made by 
the LEA to the alien that the alien will or may:
    (A) Remain in the United States in parole status or any other 
nonimmigrant classification;
    (B) Adjust status to that of lawful permanent resident; or
    (C) Otherwise attempt to remain beyond the authorized parole. The 
alien (and any family member of the alien who is 18 years of age or 
older) shall sign a statement acknowledging an awareness that parole 
only authorizes a temporary stay in the United States and does not 
convey the benefits of S nonimmigrant classification, any other 
nonimmigrant classification, or any entitlement to further benefits 
under the Act; and
    (vii) Provides, in the case of a request for the release of an alien 
from Service custody, certification that the alien is eligible for 
parole pursuant to Sec. 235.3 of this chapter.
    (2) Authorization. (i) Upon approval of the request for parole, the 
Commissioner shall notify the Assistant Attorney General, Criminal 
Division, of the approval.
    (ii) Upon notification of approval of a request for parole, the LEA 
will advise the Commissioner of the date, time, and place of the arrival 
of the alien. The Commissioner will coordinate the arrival of the alien 
in parole status with the port director prior to the time of arrival.
    (iii) Parole will be authorized for a period of thirty (30) days to 
commence upon the alien's arrival in the United States in order for the 
LEA to submit a completed Form I-854 to the Assistant Attorney General, 
Criminal Division. Upon the submission to the Assistant Attorney General 
of the Form I-854 requesting S classification, the period of parole will 
be automatically extended while the request is being reviewed. The 
Assistant Attorney General, Criminal Division, will notify the 
Commissioner of the submission of a Form I-854.
    (b) Termination of parole--(1) General. The Commissioner may 
terminate parole for any alien (including a member of the alien's 
family) in parole status under this section where termination is in the 
public interest. A district director may also terminate parole when, in 
the district director's opinion, termination is in the public interest 
and circumstances do not reasonably permit referral of the case to the 
Commissioner. In such a case, the Commissioner shall be notified 
immediately. In the event the Commissioner, or in the appropriate case, 
a district director, decides to terminate the parole of a alien witness 
or informant authorized under the terms of this paragraph, the Assistant 
Attorney General, Criminal Division, and the relevant LEA shall be 
notified in writing to that effect. The

[[Page 222]]

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 terminate parole.
    (2) Termination of parole and admission in S classification. When an 
LEA has filed a request for an alien in authorized parole status to be 
admitted in S nonimmigrant classification and that request has been 
approved by the Commissioner pursuant to the procedures outlines in 8 
CFR 214.2(t), the Commissioner may, in the exercise of discretion:
    (i) Terminate the alien's parole status;
    (ii) Determine eligibility for waivers; and
    (iii) Admit the alien in S nonimmigrant classification pursuant to 
the terms and conditions of section 101(a)(15(S) of the Act and 8 CFR 
214.2(t).
    (c) Departure. If the alien's parole has been terminated and the 
alien has been ordered excluded from the United States, the LEA shall 
ensure departure from the United States and so inform the district 
director in whose jurisdiction the alien has last resided. The district 
director, if necessary, shall oversee the alien's departure from the 
United States and, in any event, shall notify the Commissioner of the 
alien's departure. The Commissioner shall be notified in writing of the 
failure of any alien authorized parole under this paragraph to depart in 
accordance with an order of exclusion and deportation entered after 
parole authorized under this paragraph has been terminated.
    (d) Failure to comply with procedures. Any failure to adhere to the 
parole procedures contained in this section shall immediately be brought 
to the attention of the Commissioner, who will notify the Attorney 
General.
[60 FR 44265, Aug. 25, 1995]



PART 213--ADMISSION OF ALIENS ON GIVING BOND OR CASH DEPOSIT--Table of Contents




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



Sec. 213.1  Admission under bond or cash deposit.

    The district director having jurisdiction over the intended place of 
residence of an alien may accept a public charge bond prior to the 
issuance of an immigrant visa to the alien upon receipt of a request 
directly from a United States consular officer or upon presentation by 
an interested person of a notification from the consular officer 
requiring such a bond. Upon acceptance of such a bond, the district 
director shall notify the U.S. consular officer who requested the bond, 
giving the date and place of acceptance and the amount of the bond. The 
district director having jurisdiction over the place where the 
examination for admission is being conducted or the special inquiry 
officer to whom the case is referred may exercise the authority 
contained in section 213 of the Act. All bonds and agreements covering 
cash deposits given as a condition of admission of an alien under 
section 213 of the Act shall be executed on Form I-352 and shall be in 
the sum of not less than $1,000. The officer accepting such deposit 
shall give his receipt therefor on Form I-305. For procedures relating 
to bond riders, acceptable sureties, cancellation or breaching of bonds, 
see Sec.  103.6 of this chapter.
[29 FR 10579, July 30, 1964, as amended at 32 FR 9626, July 4, 1967; 62 
FR 10349, Mar. 6, 1997]



PART 213a--AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS--Table of Contents




Sec.
213a.1  Definitions.
213a.2  Use of affidavit of support.
213a.3  Notice of change of address.
213a.4  Actions for reimbursement, public notice, and congressional 
          reports.
213a.5  Relationship of this part to other affidavits of support.

    Authority:  8 U.S.C. 1183a; 8 CFR part 2.

    Source: 62 FR 54352, Oct. 20, 1997, unless otherwise noted.

[[Page 223]]



Sec. 213a.1  Definitions.

    As used in this part, the term:
    Domicile means the place where a sponsor has a residence, as defined 
in section 101(a)(33) of the Act, in the United States, with the 
intention to maintain that residence for the foreseeable future, 
provided, that a permanent resident who is living abroad temporarily 
shall be considered to be domiciled in the United States if the 
permanent resident has applied for and obtained the preservation of 
residence benefit under section 316(b) or section 317 of the Act, and 
provided further, that a citizen who is living abroad temporarily shall 
be considered to be domiciled in the United States if the citizen's 
employment abroad meets the requirements of section 319(b)(1) of the 
Act.
    Federal poverty line means the level of income equal to the poverty 
guidelines as issued by the Secretary of Health and Human Services in 
accordance with 42 U.S.C. 9902 that is applicable to a household of the 
size involved. For purposes of considering the Form I-864, Affidavit of 
Support Under Section 213A of the Act, the Service and Consular Posts 
will use the most recent income-poverty guidelines published in the 
Federal Register by the Department of Health and Human Services. These 
guidelines are updated annually, and the Service and Consular Posts will 
begin to use updated guidelines on the first day of the second month 
after the date the guidelines are published in the Federal Register.
    Household income means the income used to determine whether the 
sponsor meets the minimum income requirements under sections 
213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act. It includes the 
sponsor's income and may also include the incomes of any individuals who 
either are related to the sponsor by birth, marriage, or adoption and 
have been living in the sponsor's residence for the previous 6 months or 
are lawfully listed as dependents on the sponsor's Federal income tax 
return for the most recent tax year, even if such dependents do not live 
at the same residence as the sponsor.
    Household size means the number obtained by adding: (1) The sponsor 
and all persons living at the same residence with the sponsor who are 
related to the sponsor by birth, marriage, or adoption; (2) all persons 
whom the sponsor has claimed as a dependent on the sponsor's Federal 
income tax return for the most recent tax year, even if such persons do 
not live at the same residence as the sponsor; and (3) the number of 
aliens the sponsor has sponsored under any prior Forms I-864 for whom 
the sponsor's support obligation has not terminated, plus the number of 
aliens to be sponsored under the current Form I-864, even if such aliens 
do not or will not live at the same residence as the sponsor.
    Immigration Officer, solely for purposes of this part, includes a 
Consular Officer, as defined by section 101(a)(9) of the Act, as well as 
an Immigration Officer, as defined by Sec. 103.1(j) of this chapter.
    Income means an individual's gross income, for purposes of the 
individual's Federal income tax liability, including a joint income tax 
return.
    Intending immigrant means any beneficiary of an immigrant visa 
petition filed under section 204 of the Act, including any alien who 
will accompany or follow-to-join the principal beneficiary.
    Means-tested public benefit means either a Federal means-tested 
public benefit, which is any public benefit funded in whole or in part 
by funds provided by the Federal Government that the Federal agency 
administering the Federal funds has determined to be a Federal means-
tested public benefit under the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996, Public Law 104-193, or a State 
means-tested public benefit, which is any public benefit for which no 
Federal funds are provided that a State, State agency, or political 
subdivision of a State has determined to be a means-tested public 
benefit. No benefit shall be considered to be a means-tested public 
benefit if it is a benefit described in sections 401(b), 411(b), 422(b) 
or 423(d) of Public Law 104-193.
    Program official means the officer or employee of any Federal, 
State, or local government agency or of any private agency that 
administers any means-tested public benefit program

[[Page 224]]

who has authority to act on the agency's behalf in seeking reimbursement 
of means-tested public benefits.
    Relative means a husband, wife, father, mother, child, adult son, 
adult daughter, brother, or sister.
    Significant ownership interest means an ownership interest of 5 
percent or more in a for-profit entity that filed an immigrant visa 
petition to accord a prospective employee an immigrant status under 
section 203(b) of the Act.
    Sponsor means a person who either is eligible to execute or has 
executed an affidavit of support under this part.
    Sponsored immigrant means an immigrant on whose behalf a sponsor has 
executed an affidavit of support under this part, including any spouse 
or child who will accompany or follow-to-join the beneficiary of an 
immigrant visa petition filed by a sponsor.



Sec. 213a.2  Use of affidavit of support.

    (a) General. (1) In any case specified in paragraph (a)(2) of this 
section, an intending immigrant is inadmissible as an alien likely to 
become a public charge, unless a sponsor has executed on behalf of the 
intending immigrant a Form I-864, Affidavit of Support Under Section 
213A of the Act, in accordance with section 213A of the Act, this 
section, and the instructions on Form I-864. An affidavit of support is 
executed when a sponsor signs a Form I-864 before a notary public or an 
Immigration or Consular Officer and that form I-864 is submitted to an 
Immigration or Consular officer. The sponsor must execute a separate 
affidavit of support for each visa petition beneficiary and for each 
alien who will accompany or follow-to-join a visa petition beneficiary. 
For any spouse or children immigrating with a sponsored immigrant, the 
sponsor may execute an affidavit of support by submitting photocopies of 
the Form I-864 and all accompanying documentation, but each photocopy of 
the Form I-864 must have an original signature. Under this rule, a 
spouse or child is immigrating with a sponsored immigrant if he or she 
is listed in Part 3 of Form I-864 and applies for an immigrant visa or 
adjustment of status within 6 months of the date the Form I-864 is 
originally signed. The signature on the Form I-864, including 
photocopies, must be notarized by a notary public or signed before an 
Immigration or Consular Officer.
    (2)(i) Except for cases specified in paragraph (a)(2)(ii) of this 
section, paragraph (a)(1) of this section applies to any application for 
an immigrant visa or for adjustment of status filed on or after December 
19, 1997, in which an intending immigrant seeks an immigrant visa, 
admission as an immigrant, or adjustment of status as:
    (A) An immediate relative under section 201(b)(2)(A)(i) of the Act;
    (B) A family-based immigrant under section 203(a) of the Act; or
    (C) An employment-based immigrant under section 203(b) of the Act, 
if a relative of the intending immigrant either filed the employment-
based immigrant petition or has a significant ownership interest in the 
entity that filed the immigrant visa petition on behalf of the intending 
immigrant.
    (ii) Paragraph (a)(1) of this section shall not apply if the 
intending immigrant:
    (A) Filed a visa petition on his or her own behalf pursuant to 
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or 
(iii) of the Act, or who seeks to accompany or follow-to-join an 
immigrant who filed a visa petition on his or his own behalf pursuant to 
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or 
(iii) of the Act; or
    (B) Seeks admission as an immigrant on or after December 19, 1997, 
in a category specified in paragraph (a)(2)(i) of this section with an 
immigrant visa issued before December 19, 1997.
    (b) Affidavit of support sponsors. The following individuals must 
execute Form I-864 on behalf of the intending immigrant in order for the 
intending immigrant to be found admissible on public charge grounds:
    (1) For immediate relatives and family-based immigrants. The person 
who filed the immigrant visa petition, the approval of which forms the 
basis of the intending immigrant's eligibility to apply for an immigrant 
visa or adjustment of status as an immediate relative or as a family-
sponsored immigrant, must execute a Form I-864 on behalf of the 
intending immigrant.

[[Page 225]]

    (2) For employment-based immigrants. A relative of an intending 
immigrant seeking an immigrant visa under section 203(b) of the Act who 
either filed the immigrant visa petition on behalf of the intending 
immigrant or owns a significant ownership interest in an entity that 
filed an immigrant visa petition on behalf of the intending immigrant.
    (c) Sponsorship requirements--(1) General. A sponsor must:
    (i) Be at least 18 years of age;
    (ii) Be domiciled in the United States or any territory or 
possession of the United States; and
    (iii)(A) Be a citizen of the United States or an alien lawfully 
admitted for permanent residence in the case described in paragraph 
(a)(2)(i)(A) or (B) of this section; or
    (B) Be a citizen or national of the United States or an alien 
lawfully admitted for permanent residence in the case described in 
paragraph (a)(2)(i)(C) of this section or if the individual is a joint 
sponsor.
    (2) Demonstration of ability to support sponsored immigrants. In 
order for the intending immigrant to overcome the public charge ground 
of inadmissibility, the sponsor must demonstrate the means to maintain 
an annual income of at least 125 percent of the Federal poverty line. If 
the sponsor is on active duty in the Armed Forces of the United States 
(other than active duty for training) and the intending immigrant is the 
sponsor's spouse or child, the sponsor's income must equal at least 100 
percent of the Federal poverty line.
    (i) Proof of income. (A) The sponsor must file with the Form I-864 a 
copy of his or her Federal income tax returns for each of the 3 most 
recent taxable years, if he or she had a legal duty to file. By 
executing Form I-864, the sponsor certifies under penalty of perjury 
under United States law that each return is a true and correct copy of 
the return that the sponsor filed with the Internal Revenue Service for 
that taxable year.
    (B) If the sponsor had no legal duty to file a Federal income tax 
return for any of the 3 most recent tax years, the sponsor must explain 
why he or she had no legal duty to a file a Federal income tax return 
for each year for which no Federal income tax return is available. If 
the sponsor had no legal obligation to file a Federal income tax return, 
he or she may submit other evidence of annual income.
    (C)(1) The sponsor's ability to meet the income requirement will be 
determined based on the sponsor's household income. The sponsor may rely 
entirely on his or her own income as his or her household income if it 
is sufficient to meet the requirement. If needed, the sponsor may 
include in his or her household income the incomes of other individuals 
if they either are related to the sponsor by birth, marriage, or 
adoption and have been living in the sponsor's residence for the 
previous 6 months or are lawfully listed as dependents on the sponsor's 
Federal income tax return for the most recent tax year. In order for the 
Immigration Officer or Consular Officer to consider the income of any of 
these individuals, the sponsor must include with the Form I-864 a 
written contract on Form I-864A between the sponsor and each other 
individual on whose income the sponsor seeks to rely.
    Under this written contract each other individual must agree, in 
consideration of the sponsor's signing of the Form I-864, to provide to 
the sponsor as much financial assistance as may be necessary to enable 
the sponsor to maintain the sponsored immigrants at the annual income 
level required by section 213A(a)(1)(A) of the Act, to be jointly and 
severally liable for any reimbursement obligation that the sponsor may 
incur, and to submit to the personal jurisdiction of any court that has 
subject matter jurisdiction over a civil suit to enforce the contract or 
the affidavit of support. The sponsor, as a party to the contract, may 
bring suit to enforce the contract. The sponsored immigrants and any 
Federal, State, or local agency or private entity that provides a means-
tested public benefit to a sponsored immigrant are third party 
beneficiaries of the contract between the sponsor and the other 
individual or individuals on whose income the sponsor relies and may 
bring an action to enforce the contract in the same manner as third 
party beneficiaries of other contracts. If there is no spouse or child

[[Page 226]]

immigrating with the sponsored immigrant, then there will be no need for 
the sponsored immigrant to sign a Form I-864A, even if the sponsor will 
rely on the income of the sponsored immigrant to meet the income 
requirement. If, however, the sponsor seeks to rely on a sponsored 
immigrant's income to establish the sponsor's ability to support the 
sponsored immigrant's spouse or children, then the sponsored immigrant 
whose income is to be relied on must sign the Form I-864A.
    (2) If the sponsor relies on the income of any other individual, the 
sponsor must also attach that individual's Federal income tax returns 
for each of the 3 most recent tax years. That individual must certify, 
under penalty of perjury, on Form I-864A that each tax return submitted 
is a true and correct copy of the Federal income tax return filed with 
the Internal Revenue Service. If that individual has no legal obligation 
to file a Federal income tax return, he or she must explain and submit 
other evidence of annual income. If the individual whose income the 
sponsor will rely on is not lawfully claimed as a dependent on the 
sponsor's Federal income tax return for the most recent tax year, then 
the sponsor must also attach proof of the relationship between the 
sponsor and that individual and proof of residency in the sponsor's 
residence during at least the preceding 6 months.
    (ii) Proof of employment or self-employment. The sponsor must attach 
evidence of current employment which provides the sponsor's salary or 
wage, or evidence of current self employment. If the sponsor is 
unemployed or retired, the sponsor must state the length of his or her 
unemployment or retirement. The same information must be provided for 
any other person whose income is used to qualify under this section.
    (iii) Determining the sufficiency of an affidavit of support. The 
sufficiency of an affidavit of support shall be determined in accordance 
with this paragraph.
    (A) Income. The sponsor shall first calculate the total income 
attributable to the sponsor under paragraph (c)(2)(i)(C) of this 
section.
    (B) Number of persons to be supported. The sponsor shall then 
determine his or her household size as defined in Sec. 213a.1.
    (C) Sufficiency of Income. The sponsor's income shall be considered 
sufficient if the household income calculated under paragraph 
(c)(2)(iii)(A) of this section would equal at least 125 percent of the 
Federal poverty line for the sponsor's household size as defined in 
Sec. 213a.1, except that the sponsor's income need only equal at least 
100 percent of the Federal poverty line for the sponsor's household 
size, if the sponsor is on active duty (other than for training) in the 
Armed Forces of the United States and the intending immigrant is the 
sponsor's spouse or child.
    (iv) Inability to meet income requirement. If the sponsor is unable 
to meet the minimum income requirement in paragraph (c)(2)(iii) of this 
section, the intending immigrant is inadmissible unless the sponsor and/
or the intending immigrant demonstrates significant assets or a joint 
sponsor executes a separate Form I-864.
    (A) Significant assets. The sponsor may submit evidence of the 
sponsor's ownership of significant assets, such as savings accounts, 
stocks, bonds, certificates of deposit, real estate, or other assets. A 
sponsored immigrant may submit evidence of the sponsored immigrant's 
assets as a part of the affidavit of support, even if the sponsored 
immigrant is not required to sign a Form I-864A. The assets of any 
person who has signed a Form I-864A will also be considered in 
determining whether the assets are sufficient to meet this requirement. 
The combined cash value of all the assets (the total value of the assets 
less any offsetting liabilities) must exceed five times the difference 
between the sponsor's household income and the Federal poverty line for 
the sponsor's household size (including all immigrants sponsored in any 
affidavit of support in force under this section).
    (B) Joint sponsor. A joint sponsor must execute a separate Form I-
864 on behalf of the intending immigrant(s) and be willing to accept 
joint and several liability with the sponsor. A joint sponsor must meet 
the eligibility requirements under paragraph (c)(1) of

[[Page 227]]

this section. A joint sponsor's household income must meet or exceed the 
income requirement in paragraph (c)(2)(iii) of this section unless the 
joint sponsor can demonstrate significant assets as provided in 
paragraph (c)(2)(iv)(A) of this section.
    (v) Immigration or Consular Officer's determination of insufficient 
income and/or assets. Notwithstanding paragraphs (c)(2)(iii)(C) and 
(c)(2)(iv) (A) and (B) of this section, an Immigration Officer or 
Consular Officer may determine the income and/or assets of the sponsor 
or a joint sponsor to be insufficient if the Immigration Officer or 
Consular Officer determines, based on the sponsor's or joint sponsor's 
employment situation, income for the previous 3 years, assets, or 
receipt of welfare benefits, that the sponsor or joint sponsor cannot 
maintain his or her income at the required level.
    (vi) Verification of employment, income and assets. The Government 
may pursue verification of any information provided on or with Form I-
864, including information on employment, income, or assets, with the 
employer, financial or other institutions, the Internal Revenue Service, 
or the Social Security Administration.
    (vii) Effect of fraud or material concealment or misrepresentation. 
If the Consular Officer or Immigration Officer finds that the sponsor or 
joint sponsor has concealed or misrepresented facts concerning income, 
or household size, or any other material fact, the Consular Officer or 
Immigration Officer shall conclude that the affidavit of support is not 
sufficient to establish that the sponsored immigrant is not likely to 
become a public charge, and the sponsor or joint sponsor may be liable 
for criminal prosecution under the laws of the United States.
    (d) Legal effect of affidavit of support. Execution of a Form I-864 
under this section creates a contract between the sponsor and the U.S. 
Government for the benefit of the sponsored immigrant, and of any 
Federal, State, or local governmental agency or private entity that 
administers any means-tested public benefits program. The sponsored 
immigrant, or any Federal, State, or local governmental agency or 
private entity that provides any means-tested public benefit to the 
sponsored immigrant after the sponsored immigrant acquires permanent 
resident status, may seek enforcement of the sponsor's obligations 
through an appropriate civil action.
    (e) Termination of support obligation. (1)(i) The sponsor's support 
obligation with respect to a sponsored immigrant terminates by operation 
of law when the sponsored immigrant:
    (A) Becomes a citizen of the United States;
    (B) Has worked, or can be credited with, 40 qualifying quarters of 
work; provided, that the sponsored immigrant is not credited with any 
quarter beginning after December 31, 1996, during which the sponsored 
immigrant receives any Federal means-tested public benefit;
    (C) Ceases to hold the status of an alien lawfully admitted for 
permanent residence and has departed the United States; or
    (D) Dies.
    (ii) The sponsor's support obligation also terminates if the sponsor 
dies.
    (2) The termination of the sponsor's support obligation does not 
relieve the sponsor (or the sponsor's estate) of any reimbursement 
obligation under section 213A(b) of the Act that accrued before the 
support obligation terminated.
    (f) In the case of an alien who seeks to follow-to-join the 
principal sponsored immigrant, as provided for by section 203(d) of the 
Act, the same sponsor who filed the visa petition and affidavit of 
support for the principal sponsored immigrant must, at the time that the 
alien seeks to follow-to-join the principal sponsored immigrant, sign an 
affidavit of support on behalf of the alien who seeks to follow-to-join 
the principal sponsored immigrant. If that sponsor has died, then the 
alien who seeks to follow-to-join the principal sponsored immigrant 
shall be held to be inadmissible, unless another person, who would 
qualify as a joint sponsor if the principal sponsor were still alive, 
submits on behalf of the alien who seeks to follow-to-join the

[[Page 228]]

principal sponsored immigrant, an affidavit of support that meets the 
requirements of this section. If the original sponsor is deceased and no 
other eligible sponsor is available, the principal sponsored immigrant 
may sign an affidavit of support on behalf of the alien seeking to 
follow-to-join the principal immigrant, if the principal sponsored 
immigrant can meet the requirements of paragraph (c) of this section.
[62 FR 54352, Oct. 20, 1997; 62 FR 60122, Nov. 6, 1997; 62 FR 64048, 
Dec. 3, 1997]



Sec. 213a.3  Notice of change of address.

    (a) General. If the address of a sponsor (including a joint sponsor) 
changes for any reason while the sponsor's support obligation under the 
affidavit of support remains in effect with respect to any sponsored 
immigrant, the sponsor shall file Form I-865, Sponsor's Notice of Change 
of Address, with the Service no later than 30 days after the change of 
address becomes effective.
    (b) Civil penalty--(1) Amount of penalty. (i) Except as provided in 
paragraph (b)(1)(ii) of this section, if the sponsor fails to give 
notice in accordance with paragraph (a) of this section, the Service may 
impose on the sponsor a civil penalty in an amount within the penalty 
range established in section 213A(d)(2)(A) of the Act.
    (ii) If the sponsor, knowing that the sponsored immigrant has 
received any means-tested public benefit, fails to give notice in 
accordance with paragraph (a) of this section, the Service may impose on 
the sponsor a civil penalty in an amount within the penalty range 
established in section 213A(d)(2)(B) of the Act.
    (2) Procedure for imposing penalty. The procedure for imposing a 
civil penalty under this paragraph follows that which is established at 
8 CFR part 280.
    (c) Change of address. If the sponsor is an alien, filing Form I-865 
under this section does not satisfy or substitute for the change of 
address notice required under Sec. 265.1 of this chapter.



Sec. 213a.4  Actions for reimbursement, public notice, and congressional reports.

    (a) Requests for reimbursement. Requests for reimbursement under 
section 213A(b)(2) of the Act must be served by personal service, as 
defined by Sec. 103.5a(a)(2) of this chapter. The request for 
reimbursement shall specify the date the sponsor's affidavit of support 
was received by the Service, the sponsored immigrant's name, alien 
registration number, address, and date of birth, as well as the types of 
means-tested public benefit(s) that the sponsored immigrant received, 
the dates the sponsored immigrant received the means-tested public 
benefit(s), and the total amount of the means-tested public benefit(s) 
received. It is not necessary to make a separate request for each type 
of means-tested public benefit, nor for each separate payment. The 
agency may instead aggregate in a single request all benefit payments 
the agency has made as of the date of the request. The request for 
reimbursement shall also notify the sponsor that the sponsor must, 
within 45 days of the date of service, respond to the request for 
reimbursement either by paying the reimbursement or by arranging to 
commence payments pursuant to a payment schedule that is agreeable to 
the program official. Prior to filing a lawsuit against a sponsor to 
enforce the sponsor's support obligation under section 213A(b)(2) of the 
Act, a Federal, State, or local governmental agency or a private entity 
must wait 45 days from the date it issues a written request for 
reimbursement under section 213A(b)(1) of the Act. If a sponsored 
immigrant, a Federal, State, or local agency, or a private entity sues 
the sponsor and obtains a final civil judgment against the sponsor, the 
sponsored immigrant, the Federal, State, or local agency, or the private 
entity shall mail a certified copy of the final civil judgment to the 
Service's Statistics Branch, 425 I Street, NW., Washington, DC 20536. 
The copy should be accompanied by a cover letter that includes the 
reference ``Civil Judgments for Congressional Reports under section 
213A(i)(3) of the Act.'' Failure to file a certified copy of the final 
civil judgment in accordance with this section has no effect on the 
plaintiff's ability to collect on the judgment pursuant to law.
    (b) Federal, State, and local government agencies should issue 
public notice of determinations regarding which benefits are considered 
``means-tested

[[Page 229]]

public benefits'' prior to December 19, 1997, the date the new affidavit 
of support goes into effect, or as soon as possible thereafter. 
Additional notices should be issued whenever an agency revises its 
determination of which benefits are considered ``means-tested public 
benefits.''
    (c) Congressional reports. (1) For purposes of section 213A(i)(3) of 
the Act, a sponsor shall be considered to be in compliance with the 
financial obligations of section 213A of the Act unless the sponsored 
immigrant or a Federal, State, or local agency or private entity has 
sued the sponsor, obtained a final judgment enforcing the sponsor's 
obligations under section 213A(a)(1)(A) or 213A(b) of the Act, and 
mailed a certified copy of the final judgment to the Service's 
Statistics Branch, 425 I Street, NW., Washington, DC 20536.
    (2) If a Federal, State, or local agency or private entity that 
administers any means-tested public benefit makes a determination under 
section 421(e) of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 in the case of any sponsored immigrant, the 
program official shall send written notice of the determination, 
including the name of the sponsored immigrant and of the sponsor, to the 
Service's Statistics Branch. The written notice should include the 
reference ``Determinations under 421(e) of the Personal Responsibility 
and Work Opportunity Reconciliation Act of 1996.''



Sec. 213a.5  Relationship of this part to other affidavits of support.

    Nothing in this part precludes the continued use of Form I-134, 
Affidavit of Support (other than INA section 213A), or of Form I-361, 
Affidavit of Financial Support and Intent to Petition for Legal Custody 
for Public Law 97-359 Amerasian, in any case, other than a case 
described in Sec. 213a.2(a)(2), in which these forms were used prior to 
enactment of section 213A of the Act. The obligations of section 213A of 
the Act do not bind a person who executes Form I-134 or Form I-361, 
although the person who executes Form I-361 remains subject to the 
provisions of section 204(f)(4)(B) of the Act and of Sec. 204.4(i) of 
this chapter.



PART 214--NONIMMIGRANT CLASSES--Table of Contents




Sec.
214.1  Requirements for admission, extension, and maintenance of status.
214.2  Special requirements for admission, extension, and maintenance of 
          status.
214.3  Petitions for approval of schools.
214.4  Withdrawal of school approval.
214.5  Libyan and third country nationals acting on behalf of Libyan 
          entities.
214.6  Canadian and Mexican citizens seeking temporary entry to engage 
          in business activities at a professional level.

    Authority:  8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2.



Sec. 214.1  Requirements for admission, extension, and maintenance of status.

    (a) General. (1) Nonimmigrant classes. For the purpose of 
administering the nonimmigrant provisions of the Act, the following 
administrative subclassifications of nonimmigrant classifications as 
defined in section 101(a)(15) of the Act are established:
    (i) Section 101(a)(15)(B) is divided into (B)(i) for visitors for 
business and (B)(ii) for visitors for pleasure;
    (ii) Section 101(a)(15)(C) is divided into (C)(i) for aliens who are 
not diplomats and are in transit through the United States; (C)(ii) for 
aliens in transit to and from the United Nations Headquarters District; 
and (C)(iii) for alien diplomats in transit through the United States;
    (iii) Section 101(a)(15)(H) is divided to create an (H)(iv) 
subclassification for the spouse and children of a nonimmigrant 
classified under section 101(a)(15) (H) (i), (ii), or (iii);
    (iv) Section 101(a)(15)(J) is divided into (J)(i) for principal 
aliens and (J)(ii) for such alien's spouse and children;
    (v) Section 101(a)(15)(K) is divided into (K)(i) for the fiance(e) 
and (K)(ii) for the fiance(e)'s children; and
    (vi) Section 101(a)(15)(L) is divided into (L)(i) for principal 
aliens and (L)(ii) for such alien's spouse and children.
    (2) Classification designations. For the purpose of this chapter the 
following nonimmigrant designations are established. The designation in 
the second

[[Page 230]]

column may be used to refer to the appropriate nonimmigrant 
classification.

                                                                        
------------------------------------------------------------------------
                 Section                            Designation         
------------------------------------------------------------------------
101(a)(15)(A)(i).........................  A-1.                         
101(a)(15)(A)(ii)........................  A-2.                         
101(a)(15)(A)(iii).......................  A-3.                         
101(a)(15)(B)(i).........................  B-1.                         
101(a)(15)(B)(ii)........................  B-2.                         
101(a)(15)(C)(i).........................  C-1.                         
101(a)(15)(C)(ii)........................  C-2.                         
101(a)(15)(C)(iii).......................  C-3.                         
101(a)(15)(D)(i).........................  D-1.                         
101(a)(15)(D)(ii)........................  D-2.                         
101(a)(15)(E)(i).........................  E-1.                         
101(a)(15)(E)(ii)........................  E-2.                         
101(a)(15)(F)(i).........................  F-1.                         
101(a)(15)(F)(ii)........................  F-2.                         
101(a)(15)(G)(i).........................  G-1.                         
101(a)(15)(G)(ii)........................  G-2.                         
101(a)(15)(G)(iii).......................  G-3.                         
101(a)(15)(G)(iv)........................  G-4.                         
101(a)(15)(g)(v).........................  G-5.                         
101(a)(15)(H)(i)(A)......................  H-1A.                        
101(a)(15)(H)(i)(B)......................  H-1B.                        
101(a)(15)(H)(ii)(A).....................  H-2A.                        
101(a)(15)(H)(ii)(B).....................  H-2B.                        
101(a)(15)(H)(iii).......................  H-3.                         
101(a)(15)(H)(iv)........................  H-4.                         
101(a)(15)(I)............................  I.                           
101(a)(15)(J)(i).........................  J-1.                         
101(a)(15)(J)(ii)........................  J-2.                         
101(a)(15)(K)(i).........................  K-1.                         
101(a)(15)(K)(ii)........................  K-2.                         
101(a)(15)(L)(i).........................  L-1.                         
101(a)(15)(L)(ii)........................  L-2.                         
101(a)(15)(M)(i).........................  M-1.                         
101(a)(15)(M)(ii)........................  M-2.                         
101(a)(15)(N)(i).........................  N-8.                         
101(a)(15)(N)(ii)........................  N-9.                         
101(a)(15)(O)(i).........................  O-1.                         
101(a)(15)(O)(ii)........................  O-2.                         
101(a)(15)(O)(iii).......................  O-3.                         
101(a)(15)(P)(i).........................  P-1.                         
101(a)(15)(P)(ii)........................  P-2.                         
101(a)(15)(P)(iii).......................  P-3.                         
101(a)(15)(P)(iv)........................  P-4.                         
101(a)(15)(Q)............................  Q.                           
101(a)(15)(R)(i).........................  R-1.                         
101(a)(15)(R)(ii)........................  R-2.                         
101(a)(15)(S)(i).........................  S-5.                         
101(a)(15)(S)(ii)........................  S-6.                         
101(a)(15)(S) qualified family members...  S-7.                         
Cdn FTA, Professional....................  TC.                          
NAFTA, Principal.........................  TN.                          
NAFTA, Dependent.........................  TD.                          
Visa Waiver, Business....................  WB.                          
Visa Waiver, Tourist.....................  WT.                          
------------------------------------------------------------------------

    (3) General requirements. Every nonimmigrant alien who applies for 
admission to, or an extension of stay in, the United States, shall 
establish that he or she is admissible to the United States, or that any 
ground of inadmissibility has been waived under section 212(d)(3) of the 
Act. Upon application for admission, the alien shall present a valid 
passport and valid visa unless either or both documents have been 
waived. However, an alien applying for extension of stay shall present a 
passport only if requested to do so by the Service. The passport of an 
alien applying for admission shall be valid for a minimum of six months 
from the expiration date of the contemplated period of stay, unless 
otherwise provided in this chapter, and the alien shall agree to abide 
by the terms and conditions of his or her admission. The passport of an 
alien applying for extension of stay shall be valid at the time of 
application for extension, unless otherwise provided in this chapter, 
and the alien shall agree to maintain the validity of his or her 
passport and to abide by all the terms and conditions of his extension. 
The alien shall also agree to depart the United States at the expiration 
of his or her authorized period of admission or extension, or upon 
abandonment of his or her authorized nonimmigrant status. At the time a 
nonimmigrant alien applies for admission or extension of stay he or she 
shall post a bond on Form I-352 in the sum of not less than $500, to 
insure the maintenance of his or her nonimmigrant status and departure 
from the United States, if required to do so by the director, 
immigration judge, or Board of Immigration Appeals.
    (b) Readmission of nonimmigrants under section 101(a)(15) (F), (J), 
or (M) to complete unexpired periods of previous admission or extension 
of stay--(1) Section 101(a)(15)(F). The inspecting immigration officer 
shall readmit for duration of status as defined in 
Sec. 214.2(f)(5)(iii), any nonimmigrant alien whose nonimmigrant visa is 
considered automatically revalidated pursuant to 22 CFR 41.125(f) and 
who is applying for readmission under section 101(a)(15)(F) of the Act, 
if the alien:
    (i) Is admissible;
    (ii) Is applying for readmission after an absence from the United 
States not exceeding thirty days solely in contiguous territory or 
adjacent islands;
    (iii) Is in possession of a valid passport unless exempt from the 
requirement for presentation of a passport; and
    (iv) Presents, or is the accompanying spouse or child of an alien 
who presents, an Arrival-Departure Record, Form I-94, issued to the 
alien in connection with the previous admission or

[[Page 231]]

stay, the alien's Form I-20 ID copy, and either:
    (A) A properly endorsed page 4 of Form I-20A-B if there has been no 
substantive change in the information on the student's most recent Form 
I-20A since the form was initially issued; or
    (B) A new Form I-20A-B if there has been any substantive change in 
the information on the student's most recent Form I-20A since the form 
was initially issued.
    (2) Section 101(a)(15)(J). The inspecting immigration officer shall 
readmit for the unexpired period of stay authorized prior to the alien's 
departure, any nonimmigrant alien whose nonimmigrant visa is considered 
automatically revalidated pursuant to 22 CFR 41.125(f) and who is 
applying for readmission under section 101(a)(15)(J) of the Act, if the 
alien:
    (i) Is admissible;
    (ii) Is applying for readmission after an absence from the United 
States not exceeding thirty days solely in contiguous territory or 
adjacent islands;
    (iii) Is in possession of a valid passport unless exempt from the 
requirement for the presentation of a passport; and
    (iv) Presents, or is the accompanying spouse or child of an alien 
who presents, Form I-94 issued to the alien in connection with the 
previous admission or stay or copy three of the last Form IAP-66 issued 
to the alien. Form I-94 or Form IAP-66 must show the unexpired period of 
the alien's stay endorsed by the Service.
    (3) Section 101(a)(15)(M). The inspecting immigration officer shall 
readmit for the unexpired period of stay authorized prior to the alien's 
departure, any nonimmigrant alien whose nonimmigrant visa is considered 
automatically revalidated pursuant to 22 CFR 41.125(f) and who is 
applying for readmission under section 101(a)(15)(M) of the Act, if the 
alien:
    (i) Is admissible;
    (ii) Is applying for readmission after an absence not exceeding 
thirty days solely in contiguous territory;
    (iii) Is in possession of a valid passport unless exempt from the 
requirement for presentation of a passport; and
    (iv) Presents, or is the accompanying spouse or child of an alien 
who presents, Form I-94 issued to the alien in connection with the 
previous admission or stay, the alien's Form I-20 ID copy, and a 
properly endorsed page 4 of Form I-20M-N.
    (c) Extensions of stay--(1) Filing on Form I-129. An employer 
seeking the services of an E-1, E-2, H-1A, H-1B, H-2A, H-2B, H-3, L-1, 
O-1, O-2, P-1, P-2, P-3, Q, R-1, or TC nonimmigrant beyond the period 
previously granted, must petition for an extension of stay on Form I-
129. The petition must be filed with the fee required in Sec. 103.7 of 
this chapter, and the initial evidence specified in Sec. 214.2, and on 
the petition form. Dependents holding derivative status may be included 
in the petition if it is for only one worker and the form version 
specifically provides for their inclusion. In all other cases dependents 
of the worker should file on Form I-539.
    (2) Filing on Form I-539. Any other nonimmigrant alien, except an 
alien in F or J status who has been granted duration of status, who 
seeks to extend his or her stay beyond the currently authorized period 
of admission, must apply for an extension of stay on Form I-539 with the 
fee required in Sec. 103.7 of this chapter together with any initial 
evidence specified in the applicable provisions of Sec. 214.2, and on 
the application form. More than one person may be included in an 
application where the co-applicants are all members of a single family 
group and either all hold the same nonimmigrant status or one holds a 
nonimmigrant status and the other co-applicants are his or her spouse 
and/or children who hold derivative nonimmigrant status based on his or 
her status. Extensions granted to members of a family group must be for 
the same period of time. The shortest period granted to any member of 
the family shall be granted to all members of the family.
    (3) Ineligible for extension of stay. A nonimmigrant in any of the 
following classes is ineligible for an extension of stay:
    (i) B-1 or B-2 where admission was pursuant to the Visa Waiver Pilot 
Program;
    (ii) C-1, C-2, C-3;

[[Page 232]]

    (iii) D-1, D-2;
    (iv) K-1, K-2;
    (v) Any nonimmigrant admitted for duration of status, other than as 
provided in Sec. 214.2(f)(7); or
    (vi) Any nonimmigrant who is classified pursuant to section 
101(a)(15)(S) of the Act beyond a total of 3 years.
    (4) Timely filing and maintenance of status. An extension of stay 
may not be approved for an applicant who failed to maintain the 
previously accorded status or where such status expired before the 
application or petition was filed, except that failure to file before 
the period of previously authorized status expired may be excused in the 
discretion of the Service and without separate application, with any 
extension granted from the date the previously authorized stay expired, 
where it is demonstrated at the time of filing that:
    (i) The delay was due to extraordinary circumstances beyond the 
control of the applicant or petitioner, and the Service finds the delay 
commensurate with the circumstances;
    (ii) The alien has not otherwise violated his or her nonimmigrant 
status;
    (iii) The alien remains a bona fide nonimmigrant; and
    (iv) The alien is not the subject of deportation proceedings under 
section 242 of the Act (prior to April 1, 1997) or removal proceedings 
under section 240 of the Act.
    (5) Decision in Form I-129 or I-539 extension proceedings. Where an 
applicant or petitioner demonstrates eligibility for a requested 
extension, it may be granted at the discretion of the Service. There is 
no appeal from the denial of an application for extension of stay filed 
on Form I-129 or I-539.
    (d) Termination of status. Within the period of initial admission or 
extension of stay, the nonimmigrant status of an alien shall be 
terminated by the revocation of a waiver authorized on his or her behalf 
under section 212(d) (3) or (4) of the Act; by the introduction of a 
private bill to confer permanent resident status on such alien; or, 
pursuant to notification in the Federal Register, on the basis of 
national security, diplomatic, or public safety reasons.
    (e) Employment. A nonimmigrant in the United States in a class 
defined in section 101(a)(15)(B) of the Act as a temporary visitor for 
pleasure, or section 101(a)(15)(C) of the Act as an alien in transit 
through this country, may not engage in any employment. Any other 
nonimmigrant in the United States may not engage in any employment 
unless he has been accorded a nonimmigrant classification which 
authorizes employment or he has been granted permission to engage in 
employment in accordance with the provisions of this chapter. A 
nonimmigrant who is permitted to engage in employment may engage only in 
such employment as has been authorized. Any unauthorized employment by a 
nonimmigrant constitutes a failure to maintain status within the meaning 
of section 241(a)(1)(C)(i) of the Act.
    (f) False information. A condition of a nonimmigrant's admission and 
continued stay in the United States is the full and truthful disclosure 
of all information requested by the Service. Willful failure by a 
nonimmigrant to provide full and truthful information requested by the 
Service (regardless of whether or not the information requested was 
material) constitutes a failure to maintain nonimmigrant status under 
section 241(a)(1)(C)(i) of the Act.
    (g) Criminal activity. A condition of a nonimmigrant's admission and 
continued stay in the United States is obedience to all laws of United 
States jurisdictions which prohibit the commission of crimes of violence 
and for which a sentence of more than one year imprisonment may be 
imposed. A nonimmigrant's conviction in a jurisdiction in the United 
States for a crime of violence for which a sentence of more than one 
year imprisonment may be imposed (regardless of whether such sentence is 
in fact imposed) constitutes a failure to maintain status under section 
241(a)(1)(C)(i) of the Act.
[26 FR 12067, Dec. 16, 1961, as amended at 36 FR 8048, Apr. 29, 1971; 37 
FR 14288, June 19, 1972; 43 FR 12674, Mar. 27, 1978; 44 FR 65727, Nov. 
14, 1979; 48 FR 14582, Apr. 5, 1983; 48 FR 20685, May 9, 1983; 48 FR 
30350, July 1, 1983; 52 FR 45446, Nov. 30, 1987; 56 FR 38333, Aug. 13, 
1991; 59 FR 1463, Jan. 11, 1994; 60 FR 44266, Aug. 25, 1995; 60 FR 
52248, Oct. 5, 1995; 62 FR 10349, Mar. 6, 1997]

[[Page 233]]



Sec. 214.2  Special requirements for admission, extension, and maintenance of status.

    The general requirements in Sec. 214.1 are modified for the 
following nonimmigrant classes:
    (a) Foreign government officials--(1) General. The determination by 
a consular officer prior to admission and the recognition by the 
Secretary of State subsequent to admission is evidence of the proper 
classification of a nonimmigrant under section 101(a)(15)(A) of the Act. 
An alien who has a nonimmigrant status under section 101(a)(15)(A)(i) or 
(ii) of the Act is to be admitted for the duration of the period for 
which the alien continues to be recognized by the Secretary of State as 
being entitled to that status. An alien defined in section 
(101)(a)(15)(A)(iii) of the Act is to be admitted for an initial period 
of not more than three years, and may be granted extensions of temporary 
stay in increments of not more than two years. In addition, the 
application for extension of temporary stay must be accompanied by a 
statement signed by the employing official stating that he/she intends 
to continue to employ the applicant and describing the type of work the 
applicant will perform.
    (2) Definition of A-1 or A-2 dependent. For purposes of employment 
in the United States, the term dependent of an A-1 or A-2 principal 
alien, as used in Sec. 214.2(a), means any of the following immediate 
members of the family habitually residing in the same household as the 
principal alien who is an officer or employee assigned to a diplomatic 
or consular office in the United States:
    (i) Spouse;
    (ii) Unmarried children under the age of 21;
    (iii) Unmarried sons or daughters under the age of 23 who are in 
full-time attendance as students at post-secondary educational 
institutions;
    (iv) Unmarried sons or daughters under the age of 25 who are in 
full-time attendance as students at post-secondary educational 
institutions if a formal bilateral employment agreement permitting their 
employment in the United States was signed prior to November 21, 1988, 
and such bilateral employment agreement does not specify 23 as the 
maximum age for employment of such sons and daughters. The Office of 
Protocol of the Department of State shall maintain a listing of foreign 
states with which the United States has such bilateral employment 
agreements;
    (v) Unmarried sons or daughters who are physically or mentally 
disabled to the extent that they cannot adequately care for themselves 
or cannot establish, maintain or re-establish their own households. The 
Department of State or the Service may require certification(s) as it 
deems sufficient to document such mental or physical disability.
    (3) Applicability of a formal bilateral agreement or an informal de 
facto arrangement for A-1 or A-2 dependents. The applicability of a 
formal bilateral agreement shall be based on the foreign state which 
employs the principal alien and not on the nationality of the principal 
alien or dependent. The applicability of an informal de facto 
arrangement shall be based on the foreign state which employs the 
principal alien, but under a de facto arrangement the principal alien 
also must be a national of the foreign state which employs him/her in 
the United States.
    (4) Income tax, Social Security liability; non-applicability of 
certain immunities. Dependents who are granted employment authorization 
under this section are responsible for payment of all federal, state and 
local income, employment and related taxes and Social Security 
contributions on any remuneration received. In addition, immunity from 
civil or administrative jurisdiction in accordance with Article 37 of 
the Vienna Convention on Diplomatic Relations or other international 
agreements does not apply to these dependents with respect to matters 
arising out of their employment.
    (5) Dependent employment pursuant to formal bilateral employment 
agreements and informal de facto reciprocal arrangements. (i) The Office 
of Protocol shall maintain a listing of foreign states which have 
entered into formal bilateral employment agreements. Dependents of an A-
1 or A-2 principal alien assigned to official duty in the United

[[Page 234]]

States may accept or continue in unrestricted employment based on such 
formal bilateral agreements upon favorable recommendation by the 
Department of State and issuance of employment authorization 
documentation by the Service in accordance with 8 CFR part 274a. The 
application procedures are set forth in paragraph (a)(6) of this 
section.
    (ii) For purposes of this section, an informal de facto reciprocal 
arrangement exists when the Department of State determines that a 
foreign state allows appropriate employment on the local economy for 
dependents of certain United States officials assigned to duty in that 
foreign state. The Office of Protocol shall maintain a listing of 
countries with which such reciprocity exists. Dependents of an A-1 or A-
2 principal alien assigned to official duty in the United States may be 
authorized to accept or continue in employment based upon informal de 
facto arrangements upon favorable recommendation by the Department of 
State and issuance of employment authorization by the Service in 
accordance with 8 CFR part 274a. Additionally, the procedures set forth 
in paragraph (a)(6) of this section must be complied with, and the 
following conditions must be met:
    (A) Both the principal alien and the dependent desiring employment 
are maintaining A-1 or A-2 status as appropriate;
    (B) The principal's assignment in the United States is expected to 
last more than six months;
    (C) Employment of a similar nature for dependents of United States 
Government officials assigned to official duty in the foreign state 
employing the principal alien is not prohibited by that foreign state's 
government;
    (D) The proposed employment is not in an occupation listed in the 
Department of Labor Schedule B (20 CFR part 656), or otherwise 
determined by the Department of Labor to be one for which there is an 
oversupply of qualified U.S. workers in the area of proposed employment. 
This Schedule B restriction does not apply to a dependent son or 
daughter who is a full-time student if the employment is part-time, 
consisting of not more than 20 hours per week, and/or if it is temporary 
employment of not more than 12 weeks during school holiday periods; and
    (E) The proposed employment is not contrary to the interest of the 
United States. Employment contrary to the interest of the United States 
includes, but is not limited to, the employment of A-1 or A-2 
dependents: who have criminal records; who have violated United States 
immigration laws or regulations, or visa laws or regulations; who have 
worked illegally in the United States; and/or who cannot establish that 
they have paid taxes and social security on income from current or 
previous United States employment.
    (6) Application procedures. The following procedures are applicable 
to dependent employment applications under bilateral agreements and de 
facto arrangements:
    (i) The dependent must submit a completed Form I-566 to the 
Department of State through the office, mission, or organization which 
employs his/her principal alien. A dependent applying under paragraph 
(a)(2)(iii) or (iv) of this section must submit a certified statement 
from the post-secondary educational institution confirming that he/she 
is pursuing studies on a full-time basis. A dependent applying under 
paragraph (a)(2)(v) of this section must submit medical certification 
regarding his/her condition. The certification should identify the 
dependent and the certifying physician and give the physician's phone 
number; identify the condition, describe the symptoms and provide a 
prognosis; and certify that the dependent is unable to maintain a home 
of his or her own. Additionally, a dependent applying under the terms of 
a de facto arrangement must attach a statement from the prospective 
employer which includes the dependent's name; a description of the 
position offered and the duties to be performed; the salary offered; and 
verification that the dependent possesses the qualifications for the 
position.
    (ii) The Department of State reviews and verifies the information 
provided, makes its determination, and endorses the Form I-566.
    (iii) If the Department of State's endorsement is favorable, the 
dependent may apply to the Service. A dependent

[[Page 235]]

whose principal alien is stationed at a post in Washington, DC, or New 
York City shall apply to the District Director, Washington, DC, or New 
York City, respectively. A dependent whose principal alien is stationed 
elsewhere shall apply to the District Director, Washington, DC, unless 
the Service, through the Department of State, directs the dependent to 
apply to the district director having jurisdiction over his or her place 
of residence. Directors of the regional service centers may have 
concurrent adjudicative authority for applications filed within their 
respective regions. When applying to the Service, the dependent must 
present his or her Form I-566 with a favorable endorsement from the 
Department of State and any additional documentation as may be required 
by the Attorney General.
    (7) Period of time for which employment may be authorized. If 
approved, an application to accept or continue employment under this 
section shall be granted in increments of not more than three years 
each.
    (8) No appeal. There shall be no appeal from a denial of permission 
to accept or continue employment under this section.
    (9) Dependents or family members of principal aliens classified A-3. 
A dependent or family member of a principal alien classified A-3 may not 
be employed in the United States under this section.
    (10) Unauthorized employment. An alien classified under section 
101(a)(15)(A) of the Act who is not a principal alien and who engages in 
employment outside the scope of, or in a manner contrary to this 
section, may be considered in violation of section 241(a)(1)(C)(i) of 
the Act. An alien who is classified under section 101(a)(15)(A) of the 
Act who is a principal alien and who engages in employment outside the 
scope of his/her official position may be considered in violation of 
section 241(a)(1)(C)(i) of the Act.
    (b) Visitors--(1) General. any B-1 visitor for business or B-2 
visitor for pleasure may be admitted for not more than one year and may 
be granted extensions of temporary stay in increments of not more than 
six months each, except that alien members of a religious denomination 
coming temporarily and solely to do missionary work in behalf of a 
religious denomination may be granted extensions of not more than one 
year each, provided that such work does not involve the selling of 
articles or the solicitation or acceptance of donations. Those B-1 and 
B-2 visitors admitted pursuant to the waiver provided at Sec. 212.1(e) 
of this chapter may be admitted to and stay on Guam for period not to 
exceed fifteen days and are not eligible for extensions of stay.
    (2) Minimum six month admissions. Any B-2 visitor who is found 
otherwise admissible and is issued a Form I-94, will be admitted for a 
minimum period of six months, regardless of whether less time is 
requested, provided, that any required passport is valid as specified in 
section 212(a)(26) of the Act. Exceptions to the minimum six month 
admission may be made only in individual cases upon the specific 
approval of the district director for good cause.
    (3) Visa Waiver Pilot Program. Special requirements for admission 
and maintenance of status for visitors admitted to the United States 
under the Visa Waiver Pilot Program are set forth in section 217 of the 
Act and part 217 of this chapter.
    (4) Admission of aliens pursuant to the North American Fee Trade 
Agreement (NAFTA). A citizen of Canada or Mexico seeking temporary entry 
for purposes set forth in paragraph (b)(4)(i) of this section, who 
otherwise meets existing requirements under section 101(a)(15)(B) of the 
Act, including but not limited to requirements regarding the source of 
remuneration, shall be admitted upon presentation of proof of such 
citizenship in the case of Canadian applicants, and valid entry 
documents such as a passport and visa or Mexican Border Crossing Card 
(Form I-186 or I-586) in the case of Mexican applicants, a description 
of the purpose of entry, and evidence demonstrating that he or she is 
engaged in one of the occupations or professions set forth in paragraph 
(b)(4)(i) of this section. Existing requirements, with respect to 
Canada, are those requirements which were in effect at the time of entry 
into force of the CFTA and, with respect to Mexico, are those 
requirements which are in effect at the time of entry into

[[Page 236]]

force of the NAFTA. Additionally, nothing shall preclude the admission 
of a citizen of Mexico or Canada who meets the requirements of paragraph 
(b)(4)(ii) of this section.
    (i) Occupations and professions set forth in Appendix 1603.A.1 to 
Annex 1603 of the NAFTA--(A) Research and design. Technical scientific 
and statistical researchers conducting independent research or research 
for an enterprise located in the territory of another Party.
    (B) Growth, manufacture and production (1) Harvester owner 
supervising a harvesting crew admitted under applicable law. (Applies 
only to harvesting of agricultural crops: Grain, fiber, fruit and 
vegetables.)
    (2) Purchasing and production management personnel conducting 
commercial transactions for an enterprise located in the territory of 
another Party.
    (C) Marketing. (1) Market researchers and analyst conducting 
independent research or analysis, or research or analysis for an 
enterprise located in the territory of another Party.
    (2) Trade fair and promotional personnel attending a trade 
convention.
    (D) Sales. (1) Sales representatives and agents taking orders or 
negotiating contracts for goods or services for an enterprise located in 
the territory of another Party but not delivering goods or providing 
services.
    (2) Buyers purchasing for an enterprise located in the territory of 
another Party.
    (E) Distribution. (1) Transportation operators transporting goods or 
passengers to the United States from the territory of another Party or 
loading and transporting goods or passengers from the United States to 
the territory of another Party, with no unloading in the United States, 
to the territory of another Party. (These operators may make deliveries 
in the United States if all goods or passengers to be delivered were 
loaded in the territory of another Party. Furthermore, they may load 
from locations in the United States if all goods or passengers to be 
loaded will be delivered in the territory of another Party. Purely 
domestic service or solicitation, in competition with the United States 
operators, is not permitted.)
    (2) Customs brokers performing brokerage duties associated with the 
export of goods from the United States to or through Canada.
    (F) After-sales service. Installers, repair and maintenance 
personnel, and supervisors, possessing specialized knowledge essential 
to the seller's contractual obligation, performing services or training 
workers to perform services, pursuant to a warranty or other service 
contract incidental to the sale of commercial or industrial equipment or 
machinery, including computer software, purchased from an enterprise 
located outside the United States, during the life of the warranty or 
service agreement. (For the purposes of this provision, the commercial 
or industrial equipment or machinery, including computer software, must 
have been manufactured outside the United States.)
    (G) General service. (1) Professionals engaging in a business 
activity at a professional level in a profession set out in Appendix 
1603.D.1 to Annex 1603 of the NAFTA, but receiving no salary or other 
remuneration from a United States source (other than an expense 
allowance or other reimbursement for expenses incidental to the 
temporary stay) and otherwise satisfying the requirements of Section A 
to Annex 1063 of the NAFTA.
    (2) Management and supervisory personnel engaging in commercial 
transactions for an enterprise located in the territory of another 
Party.
    (3) Financial services personnel (insurers, bankers or investment 
brokers) engaging in commercial transactions for an enterprise located 
in the territory of another Party.
    (4) Public relations and advertising personnel consulting with 
business associates, or attending or participating in conventions.
    (5) Tourism personnel (tour and travel agents, tour guides or tour 
operators) attending or participating in conventions or conducting a 
tour that has begun in the territory of another Party. (The tour may 
begin in the United States; but must terminate in foreign territory, and 
a significant portion of the tour must be conducted in foreign 
territory. In such a case, an operator may enter the United States

[[Page 237]]

with an empty conveyance and a tour guide may enter on his or her own 
and join the conveyance.)
    (6) Tour bus operators entering the United States:
    (i) With a group of passengers on a bus tour that has begun in, and 
will return to, the territory of another Party.
    (ii) To meet a group of passengers on a bus tour that will end, and 
the predominant portion of which will take place, in the territory of 
another Party.
    (iii) With a group of passengers on a bus tour to be unloaded in the 
United States and returning with no passengers or reloading with the 
group for transportation to the territory of another Party.
    (7) Translators or interpreters performing services as employees of 
an enterprise located in the territory of another Party.
    (ii) Occupations and professions not listed in Appendix 1603.A.1 to 
Annex 1603 of the NAFTA. Nothing in this paragraph shall preclude a 
business person engaged in an occupation or profession other than those 
listed in Appendix 1603.A.1 to Annex 1603 of the NAFTA from temporary 
entry under section 101(a)(15)(B) of the Act, if such person otherwise 
meets the existing requirements for admission as prescribed by the 
Attorney General.
    (5) Construction workers not admissible. Aliens seeking to enter the 
country to perform building or construction work, whether on-site or in-
plant, are not eligible for classification or admission as B-1 
nonimmigrants under section 101(a)(15)(B) of the Act. However, alien 
nonimmigrants otherwise qualified as B-1 nonimmigrants may be issued 
visas and may enter for the purpose of supervision or training of others 
engaged in building or construction work, but not for the purpose of 
actually performing any such building or construction work themselves.
    (c) Transits--(1) Without visas. An applicant for admission under 
the transit without visa privilege must establish that he is admissable 
under the immigration laws; that he has confirmed and onward 
reservations to at least the next country beyond the United States, and 
that he will continue his journey on the same line or a connecting line 
within 8 hours after his arrival; however, if there is no scheduled 
transportation within that 8-hour period, continuation of the journey 
thereafter on the first available transport will be satisfactory. 
Transfers from the equipment on which an applicant arrives to other 
equipment of the same or a connecting line shall be limited to 2 in 
number, with the last transport departing foreign (but not necessarily 
nonstop foreign), and the total period of waiting time for connecting 
transportation shall not exceed 8 hours except as provided above. 
Notwithstanding the foregoing, an applicant, if seeking to join a vessel 
in the United States as a crewman, shall be in possession of a valid 
``D'' visa and a letter from the owner or agent of the vessel he seeks 
to join, shall proceed directly to the vessel on the first available 
transportation and upon joining the vessel shall remain aboard at all 
times until it departs from the United States. Except for transit from 
one part of foreign contiguous territory to another part of the same 
territory, application for direct transit without a visa must be made at 
one of the following ports of entry: Agana, Guam, Anchorage, AK, 
Atlanta, GA, Baltimore, MD, Bangor, ME, Boston, MA, Brownsville, TX, 
Buffalo, NY, Charlotte, NC, Charlotte Amalie, VI, Chicago, IL, 
Christiansted, VI, Dallas, TX, Daytona, FL, Denver, CO, Detroit, MI, 
Fairbanks, AK, Hartford, CT, Honolulu, HI, Houston, TX, Los Angeles, CA, 
Memphis, TN, Miami, FL, Newark, NJ, New Orleans, LA, New York, NY, 
Niagara Falls, NY, Norfolk, VA, Oakland, CA, Orlando, FL, Philadelphia, 
PA, Pittsburgh, PA, Ponce, PR, Port Everglades FL, Portland, OR, San 
Antonio, TX, San Diego, CA, Sanford, FL, San Francisco, CA, San Juan, 
PR, Seattle, WA, St. Paul, MN, Tampa, FL, Washington, DC. The privilege 
of transit without a visa may be authorized only under the conditions 
that the transportation line, without the prior consent of the Service, 
will not refund the ticket which was presented to the Service as 
evidence of the alien's confirmed and onward reservations; that the 
alien will not apply for extension of temporary stay or for adjustment 
of status under section 245 of the Act, and that until his departure 
from the

[[Page 238]]

United States responsibility for his continuous actual custody will lie 
with the transportation line which brought him to the United States 
unless at the direction of the district director he is in the custody of 
this Service or other custody approved by the Commissioner.
    (2) United Nations Headquarters District. An alien of the class 
defined in section 101(a)(15)(C) of the Act, whose visa is limited to 
transit to and from the United Nations Headquarters District, if 
otherwise admissible, shall be admitted on the additional conditions 
that he proceed directly to the immediate vicinity of the United Nations 
Headquarters District, and remain there continuously, departing 
therefrom only if required in connection with his departure from the 
United States, and that he have a document establishing his ability to 
enter some country other than the United States following his sojourn in 
the United Nations Headquarters District. The immediate vicinity of the 
United Nations Headquarters District is that area lying within a twenty-
five mile radius of Columbus Circle, New York, NY.
    (3) Others. The period of admission of an alien admitted under 
section 101(a)(15)(C) of the Act shall not exceed 29 days.
    (d) Crewmen. (1) The provisions of parts 251, 252, 253, and 258 of 
this chapter shall govern the landing of crewmen as nonimmigrants of the 
class defined in section 101(a)(15)(D) of the Act. An alien in this 
status may be employed only in a crewman capacity on the vessel or 
aircraft of arrival, or on a vessel or aircraft of the same 
transportation company, and may not be employed in connection with 
domestic flights or movements of a vessel or aircraft. However, 
nonimmigrant crewmen may perform crewmember duties through stopovers on 
an international flight for any United States carrier where such flight 
uses a single aircraft and has an origination or destination point 
outside the United States.
    (2) Denial of crewman status in the case of certain labor disputes 
(D nonimmigrants). (i) An alien shall be denied D crewman status as 
described in section 101(a)(15)(D) of the Act if:
    (A) The alien intends to land for the purpose of performing service 
on a vessel of the United States (as defined in 46 U.S.C. 2101(46)) or 
an aircraft of an air carrier (as defined in section 101(3) of the 
Federal Aviation Act of 1958); and
    (B) A labor dispute consisting of a strike or lockout exists in the 
bargaining unit of the employer in which the alien intends to perform 
such service; and
    (C) The alien is not already an employee of the company (as 
described in paragraph (d)(2)(iv) of this section).
    (ii) Refusal to land. Any alien (except a qualified current employee 
as described in paragraph (d)(2)(iv) of this section) who the examining 
immigration officer determines has arrived in the United States for the 
purpose of performing service on board a vessel or an aircraft of the 
United States when a strike or lockout is under way in the bargaining 
unit of the employer, shall be refused a conditional landing permit 
under section 252 of the Act.
    (iii) Ineligibility for parole. An alien described in paragraph 
(d)(2)(i) of this section may not be paroled into the United States 
under section 212(d)(5) of the Act for the purpose of performing 
crewmember duties unless the Attorney General determines that the parole 
of such alien is necessary to protect the national security of the 
United States. This paragraph does not prohibit the granting of parole 
for other purposes, such as medical emergencies.
    (iv) Qualified current employees. (A) Paragraphs (d)(2)(i), 
(d)(2)(ii), and (d)(2)(iii) of this section do not apply to an alien who 
is already an employee of the owner or operator of the vessel or air 
carrier and who at the time of inspection presents true copies of 
employer work records which satisfy the examining immigration officer 
that the alien:
    (1) Has been an employee of such employer for a period of not less 
than one year preceding the date that a strike or lawful lockout 
commenced;
    (2) Has served as a qualified crewman for such employer at least 
once in three different months during the 12-month period preceding the 
date that the strike or lockout commenced; and

[[Page 239]]

    (3) Shall continue to provide the same crewman services that he or 
she previously provided to the employer.
    (B) An alien crewman who qualifies as a current employee under this 
paragraph remains subject to the restrictions on his or her employment 
in the United States contained in paragraph (d)(1) of this section.
    (v) Strike or lockout determination. These provisions will take 
effect if the Attorney General, through the Commissioner of the 
Immigration and Naturalization Service or his or her designee, after 
consultation with the National Mediation Board, determines that a 
strike, lockout, or labor dispute involving a work stoppage is in 
progress in the bargaining unit of the employer for whom the alien 
intends to perform such service.
    (e) Treaty traders and investors--(1) Treaty trader. An alien, if 
otherwise admissible, may be classified as a nonimmigrant treaty trader 
(E-1) under the provisions of section 101(a)(15)(E)(i) of the Act if the 
alien:
    (i) Will be in the United States solely to carry on trade of a 
substantial nature, which is international in scope, either on the 
alien's behalf or as an employee of a foreign person or organization 
engaged in trade principally between the United States and the treaty 
country of which the alien is a national, taking into consideration any 
conditions in the country of which the alien is a national which may 
affect the alien's ability to carry on such substantial trade; and
    (ii) Intends to depart the United States upon the expiration or 
termination of treaty trader (E-1) status.
    (2) Treaty investor. An alien, if otherwise admissible, may be 
classified as a nonimmigrant treaty investor (E-2) under the provision 
of section 101(a)(15)(E)(ii) of the Act if the alien:
    (i) Has invested or is actively in the process of investing a 
substantial amount of capital in a bona fide enterprise in the United 
States, as distinct from a relatively small amount of capital in a 
marginal enterprise solely for the purpose of earning a living;
    (ii) Is seeking entry solely to develop and direct the enterprise; 
and
    (iii) Intends to depart the United States upon the expiration or 
termination of treaty investor (E-2) status.
    (3) Employee of treaty trader or treaty investor. An alien employee 
of a treaty trader, if otherwise admissible, may be classified as E-1, 
and an alien employee of a treaty investor, if otherwise admissible, may 
be classified as E-2 if the employee is in or is coming to the United 
States to engage in duties of an executive or supervisory character, or, 
if employed in a lesser capacity, the employee has special 
qualifications that make the alien's services essential to the efficient 
operation of the enterprise. The employee must have the same nationality 
as the principal alien employer. In addition, the employee must intend 
to depart the United States upon the expiration or termination of E-1 or 
E-2 status. The principal alien employer must be:
    (i) A person in the United States having the nationality of the 
treaty country and maintaining nonimmigrant treaty trader or treaty 
investor status or, if not in the United States, would be classifiable 
as a treaty trader or treaty investor; or
    (ii) An enterprise or organization at least 50 percent owned by 
persons in the United States having the nationality of the treaty 
country and maintaining nonimmigrant treaty trader or treaty investor 
status or who, if not in the United States, would be classifiable as 
treaty traders or treaty investors.
    (4) Spouse and children of treaty trader or treaty investor. The 
spouse and child of a treaty trader or treaty investor accompanying or 
following to join the principal alien, if otherwise admissible, may 
receive the same classification as the principal alien. The nationality 
of a spouse or child of a treaty trader or treaty investor is not 
material to the classification of the spouse or child under the 
provisions of section 101(a)(15)(E) of the Act.
    (5) Nonimmigrant intent. An alien classified under section 
101(a)(15)(E) of the Act shall maintain an intention to depart the 
United States upon the expiration or termination of E-1 or E-2 status. 
However, an application for initial admission, change of status, or 
extension of stay in E classification may not

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be denied solely on the basis of an approved request for permanent labor 
certification or a filed or approved immigrant visa preference petition.
    (6) Treaty country. A treaty country is, for purposes of this 
section, a foreign state with which a qualifying Treaty of Friendship, 
Commerce, or Navigation or its equivalent exists with the United States. 
A treaty country includes a foreign state that is accorded treaty visa 
privileges under section 101(a)(15)(E) of the Act by specific 
legislation.
    (7) Treaty country nationality. The nationality of an individual 
treaty trader or treaty investor is determined by the authorities of the 
foreign state of which the alien is a national. In the case of an 
enterprise or organization, ownership must be traced as best as is 
practicable to the individuals who are ultimately its owners.
    (8) Terms and conditions of E treaty status--(i) Limitations on 
employment. The Service determines the terms and conditions of E treaty 
status at the time of admission or approval of a request to change 
nonimmigrant status to E classification. A treaty trader, treaty 
investor, or treaty employee may engage only in employment which is 
consistent with the terms and conditions of his or her status and the 
activity forming the basis for the E treaty status.
    (ii) Subsidiary employment. Treaty employees may perform work for 
the parent treaty organization or enterprise, or any subsidiary of the 
parent organization or enterprise. Performing work for subsidiaries of a 
common parent enterprise or organization will not be deemed to 
constitute a substantive change in the terms and conditions of the 
underlying E treaty employment if, at the time the E treaty status was 
determined, the applicant presented evidence establishing:
    (A) The enterprise or organization, and any subsidiaries thereof, 
where the work will be performed; the requisite parent-subsidiary 
relationship; and that the subsidiary independently qualifies as a 
treaty organization or enterprise under this paragraph;
    (B) In the case of an employee of a treaty trader or treaty 
investor, the work to be performed requires executive, supervisory, or 
essential skills; and
    (C) The work is consistent with the terms and conditions of the 
activity forming the basis of the classification.
    (iii) Substantive changes. Prior Service approval must be obtained 
where there will be a substantive change in the terms or conditions of E 
status. In such cases, a treaty alien must file a new application on 
Form I-129 and E supplement, in accordance with the instructions on that 
form, requesting extension of stay in the United States. In support of 
an alien's Form I-129 application, the treaty alien must submit evidence 
of continued eligibility for E classification in the new capacity. 
Alternatively, the alien must obtain from a consular officer a visa 
reflecting the new terms and conditions and subsequently apply for 
admission at a port-of-entry. The Service will deem there to have been a 
substantive change necessitating the filing of a new Form I-129 
application in cases where there has been a fundamental change in the 
employing entity's basic characteristics, such as a merger, acquisition, 
or sale of the division where the alien is employed.
    (iv) Non-substantive changes. Prior approval is not required, and 
there is no need to file a new Form I-129, if there is no substantive, 
or fundamental, change in the terms or conditions of the alien's 
employment which would affect the alien's eligibility for E 
classification. Further, prior approval is not required if corporate 
changes occur which do not affect the previously approved employment 
relationship, or are otherwise non-substantive. To facilitate admission, 
the alien may:
    (A) Present a letter from the treaty-qualifying company through 
which the alien attained E classification explaining the nature of the 
change;
    (B) Request a new Form I-797, Approval Notice, reflecting the non-
substantive change by filing with the appropriate Service Center Form I-
129, with fee, and a complete description of the change, or;
    (C) Apply directly to State for a new E visa reflecting the change. 
An alien who does not elect one of the three options contained in 
paragraph (e)(8)(iv) (A) through (C) of this section, is not

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precluded from demonstrating to the satisfaction of the immigration 
officer at the port-of-entry in some other manner, his or her 
admissibility under section 101(a)(15)(E) of the Act.
    (v) Advice. To ascertain whether a change is substantive, an alien 
may file with the Service Center Form I-129, with fee, and a complete 
description of the change, to request appropriate advice. In cases 
involving multiple employees, an alien may request that a Service Center 
determine if a merger or other corporate restructuring requires the 
filing of separate applications by filing a single Form I-129, with fee, 
and attaching a list of the related receipt numbers for the employees 
involved and an explanation of the change or changes. Where employees 
are located within multiple jurisdictions, such a request for advice 
must be filed with the Service Center in Lincoln, Nebraska.
    (vi) Approval. If an application to change the terms and conditions 
of E status or employment is approved, the Service shall notify the 
applicant on Form I-797. An extension of stay in nonimmigrant E 
classification may be granted for the validity of the approved 
application. The alien is not authorized to begin the new employment 
until the application is approved. Employment is authorized only for the 
period of time the alien remains in the United States. If the alien 
subsequently departs from the United States, readmission in E 
classification may be authorized where the alien presents his or her 
unexpired E visa together with the Form I-797, Approval Notice, 
indicating Service approval of a change of employer or of a change in 
the substantive terms or conditions of treaty status or employment in E 
classification, or, in accordance with 22 CFR 41.112(d), where the alien 
is applying for readmission after an absence not exceeding 30 days 
solely in contiguous territory.
    (vii) An unauthorized change of employment to a new employer will 
constitute a failure to maintain status within the meaning of section 
237(a)(1)(C)(i) of the Act. In all cases where the treaty employee will 
be providing services to a subsidiary under this paragraph, the 
subsidiary is required to comply with the terms of 8 CFR part 274a.
    (9) Trade--definitions. For purposes of this paragraph: Items of 
trade include but are not limited to goods, services, international 
banking, insurance, monies, transportation, communications, data 
processing, advertising, accounting, design and engineering, management 
consulting, tourism, technology and its transfer, and some news-
gathering activities. For purposes of this paragraph, goods are tangible 
commodities or merchandise having extrinsic value. Further, as used in 
this paragraph, services are legitimate economic activities which 
provide other than tangible goods.
    Trade is the existing international exchange of items of trade for 
consideration between the United States and the treaty country. Existing 
trade includes successfully negotiated contracts binding upon the 
parties which call for the immediate exchange of items of trade. 
Domestic trade or the development of domestic markets without 
international exchange does not constitute trade for purposes of section 
101(a)(15)(E) of the Act. This exchange must be traceable and 
identifiable. Title to the trade item must pass from one treaty party to 
the other.
    (10) Substantial trade. Substantial trade is an amount of trade 
sufficient to ensure a continuous flow of international trade items 
between the United States and the treaty country. This continuous flow 
contemplates numerous transactions over time. Treaty trader status may 
not be established or maintained on the basis of a single transaction, 
regardless of how protracted or monetarily valuable the transaction. 
Although the monetary value of the trade item being exchanged is a 
relevant consideration, greater weight will be given to more numerous 
exchanges of larger value. There is no minimum requirement with respect 
to the monetary value or volume of each individual transaction. In the 
case of smaller businesses, an income derived from the value of numerous 
transactions which is sufficient to support the treaty trader and his or 
her family constitutes a favorable factor in assessing the existence of 
substantial trade.

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    (11) Principal trade. Principal trade between the United States and 
the treaty country exists when over 50 percent of the volume of 
international trade of the treaty trader is conducted between the United 
States and the treaty country of the treaty trader's nationality.
    (12) Investment. An investment is the treaty investor's placing of 
capital, including funds and other assets (which have not been obtained, 
directly or indirectly, through criminal activity), at risk in the 
commercial sense with the objective of generating a profit. The treaty 
investor must be in possession of and have control over the capital 
invested or being invested. The capital must be subject to partial or 
total loss if investment fortunes reverse. Such investment capital must 
be the investor's unsecured personal business capital or capital secured 
by personal assets. Capital in the process of being invested or that has 
been invested must be irrevocably committed to the enterprise. The alien 
has the burden of establishing such irrevocable commitment. The alien 
may use any legal mechanism available, such as the placement of invested 
funds in escrow pending admission in, or approval of, E classification, 
that would not only irrevocably commit funds to the enterprise, but 
might also extend personal liability protection to the treaty investor 
in the event the application for E classification is denied.
    (13) Bona fide enterprise. The enterprise must be a real, active, 
and operating commercial or entrepreneurial undertaking which produces 
services or goods for profit. The enterprise must meet applicable legal 
requirements for doing business in the particular jurisdiction in the 
United States.
    (14) Substantial amount of capital. A substantial amount of capital 
constitutes an amount which is:
    (i) Substantial in relationship to the total cost of either 
purchasing an established enterprise or creating the type of enterprise 
under consideration;
    (ii) Sufficient to ensure the treaty investor's financial commitment 
to the successful operation of the enterprise; and
    (iii) Of a magnitude to support the likelihood that the treaty 
investor will successfully develop and direct the enterprise. Generally, 
the lower the cost of the enterprise, the higher, proportionately, the 
investment must be to be considered a substantial amount of capital.
    (15) Marginal enterprise. For purposes of this section, an 
enterprise may not be marginal. A marginal enterprise is an enterprise 
that does not have the present or future capacity to generate more than 
enough income to provide a minimal living for the treaty investor and 
his or her family. An enterprise that does not have the capacity to 
generate such income, but that has a present or future capacity to make 
a significant economic contribution is not a marginal enterprise. The 
projected future income-generating capacity should generally be 
realizable within 5 years from the date the alien commences the normal 
business activity of the enterprise.
    (16) Solely to develop and direct. An alien seeking classification 
as a treaty investor (or, in the case of an employee of a treaty 
investor, the owner of the treaty enterprise) must demonstrate that he 
or she does or will develop and direct the investment enterprise. Such 
an applicant must establish that he or she controls the enterprise by 
demonstrating ownership of at least 50 percent of the enterprise, by 
possessing operational control through a managerial position or other 
corporate device, or by other means.
    (17) Executive and supervisory character. The applicant's position 
must be principally and primarily, as opposed to incidentally or 
collaterally, executive or supervisory in nature. Executive and 
supervisory duties are those which provide the employee ultimate control 
and responsibility for the enterprise's overall operation or a major 
component thereof. In determining whether the applicant has established 
possession of the requisite control and responsibility, a Service 
officer shall consider, where applicable:
    (i) That an executive position is one which provides the employee 
with great authority to determine the policy of, and the direction for, 
the enterprise;

[[Page 243]]

    (ii) That a position primarily of supervisory character provides the 
employee supervisory responsibility for a significant proportion of an 
enterprise's operations and does not generally involve the direct 
supervision of low-level employees, and;
    (iii) Whether the applicant possesses executive and supervisory 
skills and experience; a salary and position title commensurate with 
executive or supervisory employment; recognition or indicia of the 
position as one of authority and responsibility in the overall 
organizational structure; responsibility for making discretionary 
decisions, setting policies, directing and managing business operations, 
supervising other professional and supervisory personnel; and that, if 
the position requires some routine work usually performed by a staff 
employee, such functions may only be of an incidental nature.
    (18) Special qualifications. Special qualifications are those skills 
and/or aptitudes that an employee in a lesser capacity brings to a 
position or role that are essential to the successful or efficient 
operation of the treaty enterprise. In determining whether the skills 
possessed by the alien are essential to the operation of the employing 
treaty enterprise, a Service officer must consider, where applicable:
    (i) The degree of proven expertise of the alien in the area of 
operations involved; whether others possess the applicant's specific 
skill or aptitude; the length of the applicant's experience and/or 
training with the treaty enterprise; the period of training or other 
experience necessary to perform effectively the projected duties; the 
relationship of the skill or knowledge to the enterprise's specific 
processes or applications, and the salary the special qualifications can 
command; that knowledge of a foreign language and culture does not, by 
itself, meet the special qualifications requirement, and;
    (ii) Whether the skills and qualifications are readily available in 
the United States. In all cases, in determining whether the applicant 
possesses special qualifications which are essential to the treaty 
enterprise, a Service officer must take into account all the particular 
facts presented. A skill that is essential at one point in time may 
become commonplace at a later date. Skills that are needed to start up 
an enterprise may no longer be essential after initial operations are 
complete and running smoothly. Some skills are essential only in the 
short-term for the training of locally hired employees. Under certain 
circumstances, an applicant may be able to establish his or her 
essentiality to the treaty enterprise for a longer period of time, such 
as, in connection with activities in the areas of product improvement, 
quality control, or the provision of a service not yet generally 
available in the United States. Where the treaty enterprise's need for 
the applicant's special qualifications, and therefore, the applicant's 
essentiality, is time-limited, Service officers may request that the 
applicant provide evidence of the period for which skills will be needed 
and a reasonable projected date for completion of start-up or 
replacement of the essential skilled workers.
    (19) Period of admission. Periods of admission are as follows:
    (i) A treaty trader or treaty investor may be admitted for an 
initial period of not more than 2 years.
    (ii) The spouse and minor children accompanying or following to join 
a treaty trader or treaty investor shall be admitted for the period 
during which the principal alien is in valid treaty trader or investor 
status. The temporary departure from the United States of the principal 
trader or investor shall not affect the derivative status of the 
dependent spouse and minor unmarried children, provided the familial 
relationship continues to exist and the principal remains eligible for 
admission as an E nonimmigrant to perform the activity.
    (iii) Unless otherwise provided for in this chapter, an alien shall 
not be admitted in E classification for a period of time extending more 
than 6 months beyond the expiration date of the alien's passport.
    (20) Extensions of stay. Requests for extensions of stay may be 
granted in increments of not more than 2 years. A treaty trader or 
treaty investor in valid E status may apply for an extension of stay by 
filing an application for

[[Page 244]]

extension of stay on Form I-129 and E Supplement, with required 
accompanying documents, in accordance with Sec. 214.1 and the 
instructions on that form.
    (i) For purposes of eligibility for an extension of stay, the alien 
must prove that he or she:
    (A) Has at all times maintained the terms and conditions of his or 
her E nonimmigrant classification;
    (B) Was physically present in the United States at the time of 
filing the application for extension of stay; and
    (C) Has not abandoned his or her extension request.
    (ii) With limited exceptions, it is presumed that employees of 
treaty enterprises with special qualifications who are responsible for 
start-up operations should be able to complete their objectives within 2 
years. Absent special circumstances, therefore, such employees will not 
be eligible to obtain an extension of stay.
    (iii) Subject to paragraph (e)(5) of this section and the 
presumption noted in paragraph (e)(22)(ii) of this section, there is no 
specified number of extensions of stay that a treaty trader or treaty 
investor may be granted.
    (21) Change of nonimigrant status. (i) An alien in another valid 
nonimmigrant status may apply for change of status to E classification 
by filing an application for change of status on Form I-129 and E 
Supplement, with required accompanying documents establishing 
eligibility for a change of status and E classification, in accordance 
with 8 CFR part 248 and the instructions on Form I-129 and E Supplement.
    (ii) The spouse or minor children of an applicant seeking a change 
of status to that of treaty trader or treaty investor alien shall file 
concurrent applications for change of status to derivative treaty 
classification on the appropriate Service form. Applications for 
derivative treaty status shall:
    (A) Be approved only if the principal treaty alien is granted treaty 
alien status and continues to maintain that status;
    (B) Be approved for the period of admission authorized in paragraph 
(e)(20) of this section.
    (22) Denial of treaty trader or treaty investor status to citizens 
of Canada or Mexico in the case of certain labor disputes. (i) A citizen 
of Canada or Mexico may be denied E treaty trader or treaty investor 
status as described in section 101(a)(15)(E) of the Act and section B of 
Annex 1603 of the NAFTA if:
    (A) The Secretary of Labor certifies to, or otherwise informs, the 
Commissioner that a strike or other labor dispute involving a work 
stoppage of workers is in progress at the place where the alien is or 
intends to be employed; and
    (B) Temporary entry of that alien may adversely affect either:
    (1) The settlement of any labor dispute that is in progress at the 
place or intended place of employment, or
    (2) The employment of any person who is involved in such dispute.
    (ii) If the alien has already commenced employment in the United 
States and is participating in a strike or other labor dispute involving 
a work stoppage of workers, whether or not such strike or other labor 
dispute has been certified by the Department of Labor, the alien shall 
not be deemed to be failing to maintain his or her status solely on 
account of past, present, or future participation in a strike or other 
labor dispute involving a work stoppage of workers, but is subject to 
the following terms and conditions:
    (A) The alien shall remain subject to all applicable provisions of 
the Act and regulations applicable to all other E nomimmigrants; and
    (B) The status and authorized period of stay of such an alien is not 
modified or extended in any way by virtue of his or her participation in 
a strike or other labor dispute involving a work stoppage of workers.
    (iii) Although participation by an E nonimmigrant alien in a strike 
or other labor dispute involving a work stoppage of workers will not 
constitute a ground for deportation, any alien who violates his or her 
status or who remains in the United States after his or her authorized 
period of stay has expired will be subject to deportation.
    (f) Students in colleges, universities, seminaries, conservatories, 
academic high

[[Page 245]]

schools, elementary schools, other academic institutions, and in 
language training programs--(1) Admission of student--(i) Eligibility 
for admission. A nonimmigrant student and his or her accompanying spouse 
and minor children may be admitted into the United States in F-1 and F-2 
classifications for duration of status under section 101(a)(15)(F)(i) of 
the Act, if the student:
    (A) Presents a properly completed Form I-20 A-B/I-20 ID, Certificate 
of Eligibility for Nonimmigrant (F-1) Student Status, which is issued by 
a school approved by the Service for attendance by foreign students;
    (B) Has documentary evidence of financial support in the amount 
indicated on the Form I-20 A-B/I-20 ID; and
    (C) For students seeking initial admission only, intends to attend 
the school specified in the student's visa except where the student is 
exempt from the requirement for a visa, in which case the student must 
intend to attend the school indicated on the Form I-20 A-B/I-20 ID.
    (ii) Disposition of Form I-20 A-B/I-20 ID. Form I-20 A-B/I-20 ID 
contains two copies, the I-20 School Copy and the I-20 ID (Student) 
Copy. For purposes of clarity, the entire Form I-20 A-B/I-20 ID shall be 
referred to as Form I-20 A-B and the I-20 ID (Student) Copy shall