[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          8

                         Revised as of January 1, 2008


          Aliens and Nationality




________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 8:
          Chapter I--Department of Homeland Security                 3
          Chapter V--Executive Office for Immigration Review, 
          Department of Justice                                    825
  Finding Aids:
      Table of CFR Titles and Chapters........................    1153
      Alphabetical List of Agencies Appearing in the CFR......    1171
      List of CFR Sections Affected...........................    1181

[[Page iv]]





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

                     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 
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    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2008), 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

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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 
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of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
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INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
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20408, or call 202-741-6010.

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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.

[[Page vii]]


REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2008.







[[Page ix]]



                               THIS TITLE

    Title 8--Aliens and Nationality is composed of one volume. Chapter I 
contains regulations of the Department of Homeland Security. Chapter V 
contains regulations of the Executive Office for Immigration Review, 
Department of Justice. The contents of this volume represent all current 
regulations codified under this title of the CFR as of January 1, 2008.

    For this volume, Susannah C. Hurley and Moja N. Mwaniki were Chief 
Editors. The Code of Federal Regulations publication program is under 
the direction of Michael L. White, assisted by Ann Worley.


[[Page 1]]



                     TITLE 8--ALIENS AND NATIONALITY




  --------------------------------------------------------------------
                                                                    Part

chapter i--Department of Homeland Security..................           1

chapter v--Executive Office for Immigration Review, 
  Department of Justice.....................................        1001

[[Page 3]]



               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY




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

  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
2               Authority of the Secretary of Homeland 
                    Security................................          11

[[Page 4]]

3               Executive Office for Immigration Review.....          11
                  SUBCHAPTER B--IMMIGRATION REGULATIONS
100             Statement of organization...................          13
101             Presumption of lawful admission.............          31
103             Powers and duties; availability of records..          36
109             [Reserved]

204             Immigrant petitions.........................          68
205             Revocation of approval of petitions.........         155
207             Admission of refugees.......................         158
208             Procedures for asylum and withholding of 
                    removal.................................         162
209             Adjustment of status of refugees and aliens 
                    granted asylum..........................         191
210             Special agricultural workers................         194
211             Documentary requirements: Immigrants; 
                    waivers.................................         205
212             Documentary requirements: Nonimmigrants; 
                    waivers; admission of certain 
                    inadmissible aliens; parole.............         208
213             Admission of aliens on giving bond or cash 
                    deposit.................................         247
213a            Affidavits of support on behalf of 
                    immigrants..............................         247
214             Nonimmigrant classes........................         261
215             Controls of aliens departing from the United 
                    States..................................         424
216             Conditional basis of lawful permanent 
                    residence status........................         430
217             Visa waiver program.........................         439
221             Admission of visitors or students...........         442
223             Reentry permits, refugee travel documents, 
                    and advance parole documents............         442
231             Arrival and departure manifests.............         444
232             Detention of aliens for physical and mental 
                    examination.............................         446
233             Contracts with transportation lines.........         447
234             Designation of ports of entry for aliens 
                    arriving by civil aircraft..............         448
235             Inspection of persons applying for admission         450
236             Apprehension and detention of inadmissible 
                    and deportable aliens; removal of aliens 
                    ordered removed.........................         468
237             [Reserved]

238             Expedited removal of aggravated felons......         479
239             Initiation of removal proceedings...........         481
240             Proceedings to determine removability of 
                    aliens in the United States.............         483
241             Apprehension and detention of aliens ordered 
                    removed.................................         496
242-243         [Reserved]

[[Page 5]]

244             Temporary protected status for nationals of 
                    designated states.......................         522
245             Adjustment of status to that of person 
                    admitted for permanent residence........         533
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.....................................         587
246             Rescission of adjustment of status..........         639
247             Adjustment of status of certain resident 
                    aliens..................................         641
248             Change of nonimmigrant classification.......         642
249             Creation of records of lawful admission for 
                    permanent residence.....................         646
250             Removal of aliens who have fallen into 
                    distress................................         647
251             Arrival and departure manifests and lists: 
                    Supporting documents....................         647
252             Landing of alien crewmen....................         650
253             Parole of alien crewmen.....................         654
258             Limitations on performance of longshore work 
                    by alien crewmen........................         656
264             Registration and fingerprinting of aliens in 
                    the United States.......................         659
265             Notices of address..........................         667
270             Penalties for document fraud................         668
271             Diligent and reasonable efforts to prevent 
                    the unauthorized entry of aliens by the 
                    owners of railroad lines, international 
                    bridges or toll roads...................         670
273             Carrier responsibilities at foreign ports of 
                    embarkation; reducing, refunding, or 
                    waiving fines under section 273 of the 
                    Act.....................................         671
274             Seizure and forfeiture of conveyances.......         672
274a            Control of employment of aliens.............         681
280             Imposition and collection of fines..........         707
286             Immigration user fee........................         712
287             Field officers; powers and duties...........         717
289             American Indians born in Canada.............         732
292             Representation and appearances..............         732
293             Deposit of and interest on cash received to 
                    secure immigration bonds................         741
299             Immigration forms...........................         742
                  SUBCHAPTER C--NATIONALITY REGULATIONS
301             Nationals and citizens of the United States 
                    at birth................................         751
306             Special classes of persons who may be 
                    naturalized: Virgin Islanders...........         751
310             Naturalization authority....................         752

[[Page 6]]

312             Educational requirements for naturalization.         754
313             Membership in the Communist Party or any 
                    other totalitarian organizations........         757
315             Persons ineligible to citizenship: Exemption 
                    from military service...................         759
316             General requirements for naturalization.....         761
318             Pending removal proceedings.................         770
319             Special classes of persons who may be 
                    naturalized: Spouses of United States 
                    citizens................................         770
320             Child born outside the United States and 
                    residing permanently in the United 
                    States; requirements for automatic 
                    acquisition of citizenship..............         774
322             Child born outside the United States; 
                    requirements for application for 
                    certificate of citizenship..............         776
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...............         779
325             Nationals but not citizens of the United 
                    States; residence within outlying 
                    possessions.............................         780
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............................         781
328             Special classes of persons who may be 
                    naturalized: Persons with three years 
                    service in Armed Forces of the United 
                    States..................................         782
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.............................         783
330             Special classes of persons who may be 
                    naturalized: Seamen.....................         785
331             Alien enemies; naturalization under 
                    specified conditions and procedures.....         786
332             Naturalization administration...............         787
333             Photographs.................................         789
334             Application for naturalization..............         789
335             Examination on application for 
                    naturalization..........................         792
336             Hearings on denials of applications for 
                    naturalization..........................         799
337             Oath of allegiance..........................         801
338             Certificate of naturalization...............         805
339             Functions and duties of clerks of court 
                    regarding naturalization proceedings....         807
340             Revocation of naturalization................         808
341             Certificates of citizenship.................         811

[[Page 7]]

342             Administrative cancellation of certificates, 
                    documents, or records...................         814
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...         816
343a            Naturalization and citizenship papers lost, 
                    mutilated, or destroyed; new certificate 
                    in changed name; certified copy of 
                    repatriation proceedings................         816
343b            Special certificate of naturalization for 
                    recognition by a foreign state..........         817
343c            Certifications from records.................         819
349             Loss of nationality.........................         819
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..................         819
499             Nationality forms...........................         822

[[Page 9]]



                     SUBCHAPTER A_GENERAL PROVISIONS





PART 1_DEFINITIONS--Table of Contents




    Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public Law 
107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).



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, as it existed prior to March 1, 2003. Unless otherwise 
specified, references to the Service after that date mean the Bureau of 
Citizenship and Immigration Services, the Bureau of Customs and Border 
Protection, and the Bureau of Immigration and Customs Enforcement.
    (d) The term Commissioner means the Commissioner of the Immigration 
and Naturalization Service prior to March 1, 2003. Unless otherwise 
specified, references after that date mean the Director of the Bureau of 
Citizenship and Immigration Services, the Commissioner of the Bureau of 
Customs and Border Protection, and the Assistant Secretary for the 
Bureau of Immigration and Customs Enforcement.
    (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 Sec. Sec. 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.

[[Page 10]]

    (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 terms director or district director prior to March 1, 2003, 
mean the district director or regional service center director, unless 
otherwise specified. On or after March 1, 2003, pursuant to delegation 
from the Secretary of Homeland Security or any successive re-delegation, 
the terms mean, to the extent that authority has been delegated to such 
official: service center director; special agent in charge; field office 
director; district director for services; district director for interior 
enforcement; or director, field operations. The terms also mean such 
other official, including an official in an acting capacity, within the 
Bureau of Citizenship and Immigration Services, the Bureau of Customs 
and Border Protection, the Bureau of Immigration and Customs 
Enforcement, or other component of the Department of Homeland Security 
who is delegated the function or authority above referenced for a 
particular geographic district, region, or area.
    (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 status terminates 
upon entry of a final administrative order of exclusion, deportation, or 
removal.
    (q) The term arriving alien means an applicant for admission coming 
or attempting to come into the United States at a port-of-entry, or an 
alien seeking transit through the United States at a port-of-entry, or 
an alien interdicted in international or United States waters and 
brought into the United States by any means, whether or not to a 
designated port-of-entry, and regardless of the means of transport. An 
arriving alien remains an arriving alien even if paroled pursuant to 
section 212(d)(5) of the Act, and even after any such parole is 
terminated or revoked. However, an arriving alien who was paroled into 
the United States before April 1, 1997, or who was paroled into the 
United States on or after April 1, 1997, pursuant to a grant of advance 
parole which the alien applied for and obtained in the United States 
prior to the alien's departure from and return to the United States, 
will not be treated, solely by reason of that grant of parole, as an 
arriving alien under section 235(b)(1)(A)(i) of the Act.
    (r) The term respondent means a person named in a Notice to Appear 
issued in accordance with section 239(a) of the Act, or in an Order to 
Show Cause issued in accordance with Sec. 242.1 of this chapter as it 
existed prior to April 1, 1997.
    (s) The term Service counsel means any immigration officer assigned 
to represent the Service in any proceeding before an immigration judge 
or the Board of Immigration Appeals.
    (t) The term aggravated felony means a crime (or a conspiracy or 
attempt to commit a crime) described in section 101(a)(43) of the Act. 
This definition is applicable to any proceeding, application, custody 
determination, or adjudication pending on or after September 30, 1996, 
but shall apply under section 276(b) of the Act only to violations of 
section 276(a) of the Act occurring on or after that date.
    (u) The term Department, unless otherwise noted, means the 
Department of Homeland Security.
    (v) The term Secretary, unless otherwise noted, means the Secretary 
of Homeland Security.
    (w) The term Bureau means generally, unless otherwise noted, the 
Bureau of Citizenship and Immigration Services, the Bureau of Customs 
and Border Protection, and the Bureau of Immigration and Customs 
Enforcement, as created by the Homeland Security Act of 2002, as 
amended, Pub. L. 107-296, November 25, 2002, 116 Stat. 2135, and the 
President's Reorganization Plan, as modified.
    (x) The term BCIS means the Bureau of Citizenship and Immigration 
Services.
    (y) The term CBP means the Bureau of Customs and Border Protection.

[[Page 11]]

    (z) The term ICE means the Bureau of Immigration and Customs 
Enforcement.

[23 FR 9115, Nov. 26, 1958, as amended at 30 FR 14772, Nov. 30, 1965; 34 
FR 12213, July 24, 1969; 38 FR 8590, Apr. 4, 1973; 40 FR 23271, May 29, 
1975; 48 FR 8039, Feb. 25, 1983, 52 FR 2936, Jan. 29, 1987; 53 FR 30016, 
Aug. 10, 1988; 61 FR 18904, Apr. 29, 1996; 62 FR 10330, Mar. 6, 1997; 63 
FR 19383, Apr. 20, 1998; 68 FR 10923, Mar. 6, 2003; 68 FR 35275, June 
13, 2003; 71 FR 27591, May 12, 2006]



PART 2_AUTHORITY OF THE SECRETARY OF HOMELAND SECURITY--Table of 
Contents




    Authority: 8 U.S.C. 1103; 5 U.S.C. 301; Public Law 107-296, 116 
Stat. 2135 (6 U.S.C. 1 et seq.).



Sec. 2.1  Authority of the Secretary of Homeland Security.

    All authorities and functions of the Department of Homeland Security 
to administer and enforce the immigration laws are vested in the 
Secretary of Homeland Security. The Secretary of Homeland Security may, 
in the Secretary's discretion, delegate any such authority or function 
to any official, officer, or employee of the Department of Homeland 
Security, including delegation through successive redelegation, or to 
any employee of the United States to the extent authorized by law. Such 
delegation may be made by regulation, directive, memorandum, or other 
means as deemed appropriate by the Secretary in the exercise of the 
Secretary's discretion. A delegation of authority or function may in the 
Secretary's discretion be published in the Federal Register, but such 
publication is not required.

[68 FR 10923, Mar. 6, 2003]



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




    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 1252b, 
1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 
1950, 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 
111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386; 114 Stat. 
1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 
to -328.



Sec. 3.0  Executive Office for Immigration Review

    Regulations of the Executive Office for Immigration Review relating 
to the adjudication of immigration matters before immigration judges 
(referred to in some regulations as special inquiry officers) and the 
Board of Immigration Appeals are located in 8 CFR chapter V, part 1003.

[68 FR 9831, Feb. 28, 2003]

[[Page 13]]



                  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 14]]

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

[[Page 15]]

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

[[Page 16]]

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

[59 FR 60068, Nov. 22, 1994]



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

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

[[Page 17]]



Sec. 100.4  Field Offices.

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

[[Page 18]]

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

[[Page 19]]

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

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

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

[[Page 20]]

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

                        District No. 1 [Reserved]

                  District No. 2--Boston, Massachusetts

                                 Class A

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

                                 Class C

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

                   District No. 3--New York, New York

                                 Class A

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

               District No. 4--Philadelphia, Pennsylvania

                                 Class A

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

                   District No. 5--Baltimore, Maryland

                                 Class A

Baltimore, MD
Patuxent River, MD

                                 Class C

Piney Point, MD
Salisbury, MD

                     District No. 6--Miami, Florida

                                 Class A

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

                                 Class C

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

                    District No. 7--Buffalo, New York

                                 Class A

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

[[Page 21]]

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 22]]

                  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, Ingleside, 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 23]]

                    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 24]]

                 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 25]]

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

[[Page 26]]

                  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 27]]

                       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 28]]

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 29]]

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
Missouri Service Center, Lee's Summit, Missouri

    (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,

[[Page 30]]

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

[60 FR 57166, Nov. 14, 1995, as amended at 61 FR 25778, May 23, 1996; 63 
FR 70315, Dec. 21, 1998; 65 FR 39072, June 23, 2000; 66 FR 29672, June 
1, 2001]



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

[[Page 31]]

 
Part 223...................................................    1115-0005
Part 223a..................................................    1115-0084
223.1......................................................    1115-0037
Part 231...................................................    1115-0083
Part 231...................................................    1115-0078
Part 231...................................................    1115-0108
Part 232...................................................    1115-0036
Part 233...................................................    1115-0036
234.2(c)...................................................    1115-0048
Part 235...................................................    1115-0077
235.1(e)...................................................    1115-0065
243.4......................................................    1115-0055
243.7......................................................    1115-0043
Part 244...................................................    1115-0025
Part 245...................................................    1115-0053
Part 245...................................................    1115-0066
245.2......................................................    1115-0089
245.2(a)(2)................................................    1115-0067
247.11.....................................................    1115-0037
247.12.....................................................    1115-0037
247.13.....................................................    1115-0037
248.3......................................................    1115-0032
248.3(b)...................................................    1115-0038
248.4......................................................    1115-0038
Part 249...................................................    1115-0053
Part 249...................................................    1115-0066
Part 250...................................................    1115-0020
Part 251...................................................    1115-0083
Part 251...................................................    1115-0040
Part 252...................................................    1115-0040
252.1(f)...................................................    1115-0073
253.1......................................................    1115-0029
264.1......................................................    1115-0004
264.1(c)...................................................    1115-0079
264.1(f)...................................................    1115-0002
265.1......................................................    1115-0003
292.2......................................................    1115-0026
316a.21....................................................    1115-0014
319.11.....................................................    1115-0009
Part 322...................................................    1115-0010
324.11.....................................................    1115-0009
327.1......................................................    1115-0009
Part 328...................................................    1115-0009
328.3......................................................    1115-0022
Part 329...................................................    1115-0009
329.2......................................................    1115-0022
Part 330...................................................    1115-0009
Part 330...................................................    1115-0031
Part 334a..................................................    1115-0008
334.11.....................................................    1115-0009
334.17.....................................................    1115-0035
335.11.....................................................    1115-0009
336.16a....................................................    1115-0076
336.16a....................................................    1115-0052
338.16.....................................................    1115-0030
Part 341...................................................    1115-0018
341.1(b)...................................................    1115-0009
343a.1.....................................................    1115-0015
343b.......................................................    1115-0016
------------------------------------------------------------------------


[48 FR 37201, Aug. 17, 1983]



PART 101_PRESUMPTION OF LAWFUL ADMISSION--Table of Contents




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

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



Sec. 101.1  Presumption of lawful admission.

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

[[Page 32]]

    (e) Chinese and Japanese aliens--(1) Prior to July 1, 1924. A 
Chinese alien for 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.

[[Page 33]]

    (h) Citizens of the Trust Territory of the Pacific Islands who 
entered Guam prior to 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

[[Page 34]]

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

[32 FR 9622, July 4, 1967]



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

    (a) Person born to foreign diplomat--(1) Status of person. A person 
born in the United States to a foreign diplomatic officer accredited to 
the United States, as a matter of international law, is not subject to 
the jurisdiction of the United States. That person is not a United 
States citizen under the Fourteenth Amendment to the Constitution. Such 
a person may be considered a lawful permanent resident at birth.
    (2) Definition of foreign diplomatic officer. Foreign diplomatic 
officer means a person listed in the State Department Diplomatic List, 
also known as the Blue List. It includes ambassadors, ministers, 
charg[eacute]s d'affaires, counselors, secretaries and attach[eacute]s 
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 35]]

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

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

[47 FR 940, Jan. 8, 1982]



Sec. 101.4  Registration procedure.

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

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

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



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

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

[[Page 36]]

    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; AVAILABILITY OF RECORDS--Table of Contents




Sec.
103.1 Delegations of authority; designation of immigration officers.
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.
103.37 Precedent decisions.

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 
31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 
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; designation of immigration 
officers.

    (a) Delegations of authority. Delegations of authority to perform 
functions and exercise authorities under the immigration laws may be 
made by the Secretary of Homeland Security as provided by Sec. 2.1 of 
this chapter.
    (b) Immigration Officer. The following employees of the Department 
of Homeland Security, including senior or supervisory officers of such 
employees, are designated as immigration officers authorized to exercise 
the powers and duties of such officer as specified by the Act and this 
chapter I: Immigration officer, immigration inspector, immigration 
examiner, adjudications officer, Border Patrol agent, aircraft pilot, 
airplane pilot, helicopter pilot, deportation officer, detention 
enforcement officer, detention officer, investigator, special agent, 
investigative assistant, immigration enforcement agent, intelligence 
officer, intelligence agent, general attorney (except with respect to 
CBP, only to the extent that the attorney is performing any immigration 
function), applications adjudicator, contact representative, 
legalization adjudicator, legalization officer, legalization assistant, 
forensic document analyst, fingerprint specialist, immigration 
information officer, immigration agent (investigations), asylum officer, 
other officer or employee of the Department of Homeland Security or of 
the United States as designated by the Secretary of Homeland Security as 
provided in Sec. 2.1 of this chapter. Any customs officer, as defined 
in 19 CFR 24.16, is hereby authorized to exercise the powers and duties

[[Page 37]]

of an immigration officer as specified by the Act and this chapter.

[68 FR 10923, Mar. 6, 2003, as amended at 68 FR 35275, June 13, 2003; 69 
FR 35234, June 24, 2004]



Sec. 103.2  Applications, petitions, and other documents.

    (a) Filing--(1) General. Every application, petition, appeal, 
motion, request, or other document submitted on the form prescribed by 
this chapter shall be executed and filed in accordance with the 
instructions on the form, such instructions (including where an 
application or petition should be filed) being hereby incorporated into 
the particular section of the regulations in this chapter requiring its 
submission. The form must be filed with the appropriate filing fee 
required by Sec. 103.7. Except as exempted by paragraph (e) of this 
section, forms which require an applicant, petitioner, sponsor, 
beneficiary, or other individual to complete Form FD-258, Applicant 
Card, must also be filed with the service fee for fingerprinting, as 
required by Sec. 103.7(b)(1), for each individual who requires 
fingerprinting. Filing fees and fingerprinting service fees are non-
refundable and, except as otherwise provided in this chapter, must be 
paid when the application is filed.
    (2) Signature. An applicant or petitioner must sign his or her 
application or petition. However, a parent or legal guardian may sign 
for a person who is less than 14 years old. A legal guardian may sign 
for a mentally incompetent person. By signing the application or 
petition, the applicant or petitioner, or parent or guardian certifies 
under penalty of perjury that the application or petition, and all 
evidence submitted with it, either at the time of filing or thereafter, 
is true and correct. Unless otherwise specified in this chapter, an 
acceptable signature on an application or petition that is being filed 
with the BCIS is one that is either handwritten or, for applications or 
petitions filed electronically as permitted by the instructions to the 
form, in electronic format.
    (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 USCIS office 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 USCIS office shall be stamped to show the time and date of actual 
receipt and, unless otherwise specified in part 204 or part 245 or part 
245a of this chapter, shall be regarded as properly filed when so 
stamped, if it is signed and executed and the required filing fee is 
attached or a waiver of the filing fee is granted. An application or 
petition which is not properly signed or is submitted with the wrong 
filing fee shall be rejected as improperly filed. Rejected applications 
and petitions, and ones in which the check or other financial instrument 
used to pay the filing fee is subsequently returned as non-payable will 
not retain a filing date. An application or petition taken to a local 
USCIS office for the completion of biometric information prior to filing 
at a service

[[Page 38]]

center shall be considered received when physically received at a 
service center.
    (ii) Non-payment. If a check or other financial instrument used to 
pay a filing fee is subsequently returned as not payable, the remitter 
shall be notified and requested to pay the filing fee and associated 
service charge within 14 calendar days, without extension. If the 
application or petition is pending and these charges are not paid within 
14 days, the application or petition shall be rejected as improperly 
filed. If the application or petition was already approved, and these 
charges are not paid, the approval shall be automatically revoked 
because it was improperly field. If the application or petition was 
already denied, revoked, or abandoned, that decision will not be 
affected by the non-payment of the filing or fingerprinting fee. New 
fees will be required with any new application or petition. Any fee and 
service charges collected as the result of collection activities or 
legal action on the prior application or petition shall be used to cover 
the cost of the previous rejection, revocation, or other action.
    (b) Evidence and processing--(1) Demonstrating eligibility at time 
of filing. An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the application 
or petition. All required application or petition forms must be properly 
completed and filed with any initial evidence required by applicable 
regulations and/or the form's instructions. Any evidence submitted in 
connection with the application or petition is incorporated into and 
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 USCIS 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 USCIS 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 
USCIS.
    (3) Translations. Any document containing foreign language submitted 
to USCIS shall be accompanied by a full

[[Page 39]]

English language translation which the translator has certified as 
complete and accurate, and by the translator's certification that he or 
she is competent to translate from the foreign language into English.
    (4) Submitting copies of documents. Application and petition forms, 
and documents issued to support an application or petition (such as 
labor certifications, Form DS 2019, medical examinations, affidavits, 
formal consultations, letters of current employment and other 
statements) must be submitted in the original unless previously filed 
with USCIS. Official documents issued by the Department or by the former 
Immigration and Naturalization Service need not be submitted in the 
original unless required by USCIS. Unless otherwise required by the 
applicable regulation or form's instructions, a legible photocopy of any 
other supporting document may be submitted. Applicants and petitioners 
need only submit those original documents necessary to support the 
benefit sought. However, original documents submitted when not required 
will remain a part of the record.
    (5) Request for an original document. USCIS may, at any time, 
request submission of an original document for review. The request will 
set a deadline for submission of the original document. Failure to 
submit the requested original document by the deadline may result in 
denial or revocation of the underlying application or benefit. An 
original document submitted in response to such a request, when no 
longer required by USCIS, will be returned to the petitioner or 
applicant upon completion of the adjudication. If USCIS does not return 
an original document within a reasonable time after completion of the 
adjudication, the petitioner or applicant may request return of the 
original document by submitting a properly completed and signed Form G-
884 to the adjudicating USCIS office.
    (6) Withdrawal. An applicant or petitioner may withdraw an 
application or petition at any time until a decision is issued by USCIS 
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 USCIS 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; Notice of Intent to Deny--(i) Evidence of 
eligibility or ineligibility. If the evidence submitted with the 
application or petition establishes eligibility, USCIS will approve the 
application or petition, except that in any case in which the applicable 
statute or regulation makes the approval of a petition or application a 
matter entrusted to USCIS discretion, USCIS will approve the petition or 
application only if the evidence of record establishes both eligibility 
and that the petitioner or applicant warrants a favorable exercise of 
discretion. If the record evidence establishes ineligibility, the 
application or petition will be denied on that basis.
    (ii) Initial evidence. If all required initial evidence is not 
submitted with the application or petition or does not demonstrate 
eligibility, USCIS in its discretion may deny the application or 
petition for lack of initial evidence or for ineligibility or request 
that the missing initial evidence be submitted within a specified period 
of time as determined by USCIS.
    (iii) Other evidence. If all required initial evidence has been 
submitted but the evidence submitted does not establish eligibility, 
USCIS may: deny the application or petition for ineligibility; request 
more information or evidence from the applicant or petitioner, to be 
submitted within a specified period of time as determined by USCIS; or 
notify the applicant or petitioner of its intent to deny the application 
or petition and the basis for the proposed denial, and require that the 
applicant or petitioner submit a response within a specified period of 
time as determined by USCIS.

[[Page 40]]

    (iv) Process. A request for evidence or notice of intent to deny 
will be in writing and will specify the type of evidence required, and 
whether initial evidence or additional evidence is required, or the 
bases for the proposed denial sufficient to give the applicant or 
petitioner adequate notice and sufficient information to respond. The 
request for evidence or notice of intent to deny will indicate the 
deadline for response, but in no case shall the maximum response period 
provided in a request for evidence exceed twelve weeks, nor shall the 
maximum response time provided in a notice of intent to deny exceed 
thirty days. Additional time to respond to a request for evidence or 
notice of intent to deny may not be granted.
    (9) Request for appearance. An applicant, a petitioner, a sponsor, a 
beneficiary, or other individual residing in the United States at the 
time of filing an application or petition may be required to appear for 
fingerprinting or for an interview. A petitioner shall also be notified 
when a fingerprinting notice or an interview notice is mailed or issued 
to a beneficiary, sponsor, or other individual. The applicant, 
petitioner, sponsor, beneficiary, or other individual may appear as 
requested by USCIS, or prior to the dates and times for fingerprinting 
or of the date and time of interview:
    (i) The individual to be fingerprinted or interviewed may, for good 
cause, request that the fingerprinting or interview be rescheduled; or
    (ii) The applicant or petitioner may withdraw the application or 
petition.
    (10) Effect of a request for initial or additional evidence for 
fingerprinting or interview rescheduling--(i) Effect on processing. The 
priority date of a properly filed petition shall not be affected by a 
request for missing initial evidence or request for other evidence. If 
an application or petition is missing required initial evidence, or an 
applicant, petitioner, sponsor, beneficiary, or other individual who 
requires fingerprinting requests that the fingerprinting appointment or 
interview be rescheduled, any time period imposed on USCIS processing 
will start over from the date of receipt of the required initial 
evidence or request for fingerprint or interview rescheduling. If USCIS 
requests that the applicant or petitioner submit additional evidence or 
respond to other than a request for initial evidence, any time 
limitation imposed on USCIS for processing will be suspended as of the 
date of request. It will resume at the same point where it stopped when 
USCIS receives the requested evidence or response, or a request for a 
decision based on the evidence.
    (ii) Effect on interim benefits. Interim benefits will not be 
granted based on an application or petition held in suspense for the 
submission of requested initial evidence, except that the applicant or 
beneficiary will normally be allowed to remain while an application or 
petition to extend or obtain status while in the United States is 
pending. The USCIS 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) Responding to a request for evidence or notice of intent to 
deny. In response to a request for evidence or a notice of intent to 
deny, and within the period afforded for a response, the applicant or 
petitioner may: submit a complete response containing all requested 
information at any time within the period afforded; submit a partial 
response and ask for a decision based on the record; or withdraw the 
application or petition. All requested materials must be submitted 
together at one time, along with the original USCIS request for evidence 
or notice of intent to deny. Submission of only some of the requested 
evidence will be considered a request for a decision 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 evidence does not establish filing eligibility at the time 
the application or petition was filed. An application or petition shall 
be denied where

[[Page 41]]

any application or petition upon which it was based was filed 
subsequently.
    (13) Effect of failure to respond to a request for evidence or a 
notice of intent to deny or to appear for interview or biometrics 
capture--(i) Failure to submit evidence or respond to a notice of intent 
to deny. If the petitioner or applicant fails to respond to a request 
for evidence or to a notice of intent to deny by the required date, the 
application or petition may be summarily denied as abandoned, denied 
based on the record, or denied for both reasons. If other requested 
material necessary to the processing and approval of a case, such as 
photographs, are not submitted by the required date, the application may 
be summarily denied as abandoned.
    (ii) Failure to appear for biometrics capture, interview or other 
required in-person process. Except as provided in 8 CFR 335.6, if USCIS 
requires an individual to appear for biometrics capture, an interview, 
or other required in-person process but the person does not appear, the 
application or petition shall be considered abandoned and denied unless 
by the appointment time USCIS has received a change of address or 
rescheduling request that the agency concludes warrants excusing the 
failure to appear.
    (14) Effect of request for decision. Where an applicant or 
petitioner does not submit all requested additional evidence and 
requests a decision based on the evidence already submitted, a decision 
shall be issued based on the record. Failure to submit requested 
evidence which precludes a material line of inquiry shall be grounds for 
denying the application or petition. Failure to appear for required 
fingerprinting or for a required interview, or to give required 
testimony, shall result in the denial of the related application or 
petition.
    (15) Effect of withdrawal or denial due to abandonment. The USCIS 
acknowledgement of a withdrawal may not be appealed. A denial due to 
abandonment may not be appealed, but an applicant or petitioner may file 
a motion to reopen under Sec. 103.5. Withdrawal or denial due to 
abandonment does not preclude the filing of a new application or 
petition with a new fee. However, the priority or processing date of a 
withdrawn or abandoned application or petition may not be applied to a 
later application petition. Withdrawal or denial due to abandonment 
shall not itself affect the new proceeding; but the facts and 
circumstances surrounding the prior application or petition shall 
otherwise be material to the new application or petition.
    (16) Inspection of evidence. An applicant or petitioner shall be 
permitted to inspect the record of proceeding which constitutes the 
basis for the decision, except as provided in the following paragraphs.
    (i) Derogatory information unknown to petitioner or applicant. If 
the decision will be adverse to the applicant or petitioner and is based 
on derogatory information considered by the Service and of which the 
applicant or petitioner is unaware, he/she shall be advised of this fact 
and offered an opportunity to rebut the information and present 
information in his/her own behalf before the decision is rendered, 
except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this 
section. Any explanation, rebuttal, or information presented by or in 
behalf of the applicant or petitioner shall be included in the record of 
proceeding.
    (ii) Determination of statutory eligibility. A determination of 
statutory eligibility shall be based only on information contained in 
the record of proceeding which is disclosed to the applicant or 
petitioner, except as provided in paragraph (b)(16)(iv) of this section.
    (iii) Discretionary determination. Where an application may be 
granted or denied in the exercise of discretion, the decision to 
exercise discretion favorably or unfavorably may be based in whole or in 
part on classified information not contained in the record and not made 
available to the applicant, provided the USCIS Director or his or her 
designee has determined that such information is relevant and is 
classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) 
as requiring protection from unauthorized disclosure in the interest of 
national security.
    (iv) Classified information. An applicant or petitioner shall not be 
provided any information contained in the record or outside the record 
which is classified under Executive Order No.

[[Page 42]]

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 USCIS Director or his or her designee 
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 USCIS Director's or his or her designee'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 permanent resident status--(i) Department 
records. The status of an applicant or petitioner who claims that he or 
she is a permanent resident of the United States or was formerly a 
permanent resident of the United States will be verified from official 
Department records. These records include alien and other files, arrival 
manifests, arrival records, Department index cards, Immigrant 
Identification Cards, Certificates of Registry, Declarations of 
Intention issued after July 1, 1929, Permanent Resident Cards (Form I-
551), Alien Registration Receipt Cards (Form I-151), other registration 
receipt forms (Forms AR-3, AR-3a, and AR-103, provided that such forms 
were issued or endorsed to show admission for permanent residence), 
passports, and reentry permits. An official record of a Department index 
card must bear a designated immigrant visa symbol and must have been 
prepared by an authorized official of the Department 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 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 will be 
regarded as establishing lawful admission for permanent residence.
    (ii) Assisting self-petitioners who are spousal-abuse victims. If a 
self-petitioner filing a petition 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, 
USCIS will attempt to electronically verify the abuser's citizenship or 
immigration status from information contained in the Department's 
automated or computerized records. Other Department records may also be 
reviewed at the discretion of the adjudicating officer. If USCIS 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

[[Page 43]]

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)-(d)[Reserved]
    (e) Fingerprinting--(1) General. USCIS regulations in this chapter, 
including the instructions to benefit applications and petitions, 
require certain applicants, petitioners, beneficiaries, sponsors, and 
other individuals to be fingerprinted on Form FD-258, Applicant Card, 
for the purpose of conducting criminal background checks. On and after 
December 3, 1997, USCIS will accept Form FD-258, Applicant Card, only if 
prepared by a USCIS office, a registered State or local law enforcement 
agency designated by a cooperative agreement with USCIS to provide 
fingerprinting services (DLEA), a United States consular office at 
United States embassies and consulates, or a United States military 
installation abroad.
    (2) Fingerprinting individuals residing in the United States. 
Beginning on December 3, 1997, for naturalization applications, and on 
March 29, 1998, for all other applications and petitions, applications 
and petitions for immigration benefits shall be filed as prescribed in 
this chapter, without completed Form FD-258, Applicant Card. After the 
filing of an application or petion, USCIS will issue a notice to all 
individuals who require fingerprinting and who are residing in the 
United States, as defined in section 101(a)(38) of the Act, and request 
their appearance for fingerprinting at a USCIS office or other location 
designated by USCIS, to complete Form FD-258, Applicant Card, as 
prescribed in paragraph (b)(9) of this section.
    (3) Fingerprinting individuals residing abroad. Individuals who 
require fingerprinting and whose place of residence is outside of the 
United States, must submit a properly completed Form FD-258, Applicant 
Card, at the time of filing the application or petition for immigration 
benefits. In the case of individuals who reside abroad, a properly 
completed Form FD-258, Applicant Card, is one prepared by USCIS, a 
United States consular office at a United States embassy or consulate or 
a United States military installation abroad. If an individual who 
requires fingerprinting and is residing abroad fails to submit a 
properly completed Form FD-258, Applicant Card, at the time of filing an 
application or petition, USCIS will issue a notice to the individual 
requesting submission of a properly completed Form FD-258, Applicant 
Card. The applicant or petitioner will also be notified of the request 
for submission of a properly completed Form FD-258, Applicant Card. 
Failure to submit a properly completed Form FD-258, Applicant Card, in 
response to such a request within the time allotted in the notice will 
result in denial of the application or petition for failure to submit a 
properly completed Form FD-258, Applicant Card. There is no appeal from 
denial of an application or petition for failure to submit a properly 
completed Form FD-258, Applicant Card. A motion to re-open an 
application or petition denied for failure to submit a properly 
completed Form FD-258, Applicant Card, will be granted only on proof 
that:
    (i) A properly completed Form FD-258, Applicant Card, was submitted 
at the time of filing the application or petition;
    (ii) A properly completed Form FD-258, Applicant Card, was submitted 
in response to the notice within the time allotted in the notice; or
    (iii) The notice was sent to an address other than the address on 
the application or petition, or the notice of representation, or that 
the applicant or petitioner notified USCIS, in writing, of a change of 
address or change of representation subsequent to filing and

[[Page 44]]

before the notice was sent and USCIS notice was not sent to the new 
address.
    (4) Submission of service fee for fingerprinting--(i) General. The 
USCIS will charge a fee, as prescribed in Sec. 103.7(b)(1), for 
fingerprinting at a USCIS office or a registered State or local law 
enforcement agency designated by a cooperative agreement with the USCIS 
to provide fingerprinting services. Applications and petitions for 
immigration benefits shall be submitted with the service fee for 
fingerprinting for all individuals who require fingerprinting and who 
reside in the United States at the time of filing the application or 
petition.
    (ii) Exemptions--(A) Individual residing abroad. Individuals who 
require fingerprinting and who reside outside of the United States at 
the time of filing an application or petition for immigration benefits 
are exempt from the requirement to submit the service fee for 
fingerprinting with the application or petition for immigration 
benefits.
    (B) Asylum applicants. Asylum applicants are exempt from the 
requirement to submit the service fee for fingerprinting with the 
application for asylum.
    (iii) Insufficient service fee for fingerprinting; incorrect fees. 
Applications and petitions for immigration benefits received by USCIS 
without the correct service fee for fingerprinting will not be rejected 
as improperly filed, pursuant to paragraph (a)(7)(i) of this section. 
However, the application or petition will not continue processing and 
USCIS will not issue a notice requesting appearance for fingerprinting 
to the individuals who require fingerprinting until the correct service 
fee for fingerprinting has been submitted. The USCIS will notify the 
remitter of the filing fee for the application or petition of the 
additional amount required for the fingerprinting service fee and 
request submission of the correct fee. The USCIS will also notify the 
applicant or petitioner, and, when appropriate, the applicant or 
petitioner's representative, as defined in paragraph (a)(3) of this 
section, of the deficiency. Failure to submit the correct fee for 
fingerprinting in response to a notice of deficiency within the time 
allotted in the notice will result in denial of the application or 
petition for failure to submit the correct service fee for 
fingerprinting. There is no appeal from the denial of an application or 
petition for failure to submit the correct service fee for 
fingerprinting. A motion to re-open an application or petition denied 
for failure to submit the correct service fee for fingerprinting will be 
granted only on proof that:
    (A) The correct service fee for fingerprinting was submitted at the 
time of filing the application or petition;
    (B) The correct service fee for fingerprinting was submitted in 
response to the notice of deficiency within the time allotted in the 
notice; or
    (C) The notice of deficiency was sent to an address other than the 
address on the application or petition, or the notice of representation, 
or that the applicant or petitioner notified USCIS, in writing, of a 
change of address or change of representation subsequent to filing and 
before the notice of deficiency was sent and USCIS notice of deficiency 
was not sent to the new address.
    (iv) Non-payment of service fee for fingerprinting. If a check or 
other financial instrument used to pay a service fee for fingerprinting 
is subsequently returned as not payable, the remitter shall be notified 
and requested to pay the correct service fee for fingerprinting and any 
associated service charges within 14 calendar days. The USCIS will also 
notify the applicant or petitioner and, when appropriate, the applicant 
or petitioner's representative as defined in paragraph (a)(3) of this 
section, of the non-payment and request to pay. If the correct service 
fee for fingerprinting and associated service charges are not paid 
within 14 calendar days, the application or petition will be denied for 
failure to submit the correct service fee for fingerprinting.
    (f) Requests for Premium Processing Service--(1) Filing information. 
A petitioner or applicant requesting Premium Processing Service shall 
submit Form I-907 with the appropriate fee to the Director of the 
service center having jurisdiction over the application or petition. 
Premium Processing Service

[[Page 45]]

guarantees 15 calendar day processing of certain employment-based 
petitions and applications. The 15 calendar day processing period begins 
when USCIS receives Form I-907, with the fee, at the designated address 
contained in the instructions to the form. USCIS will refund the fee for 
Premium Processing Service, but continue to process the case, unless 
within 15 calendar days of receiving the application or petition and 
Form I-907, USCIS issues and serves on the petitioner or applicant an 
approval notice, a denial notice, a notice of intent to deny, a request 
for evidence, or opens an investigation relating to the application or 
petition for fraud or misrepresentation.
    (2) Applications and petitions eligible for Premium Processing 
Service. USCIS will designate and terminate petitions and applications 
and classifications within such petitions and applications as eligible 
for Premium Processing Service by publication of notices in the Federal 
Register. USCIS will announce by its Web site at http://www.uscis.gov 
the dates upon which the availability of Premium Processing Service 
begins and ends for a designated petition or application and any 
designated classifications within a designated petition or application, 
and applicable conditions of availability.
    (3) Fees for Premium Processing Services. The fee for Premium 
Processing Service may not be waived. The fee for Premium Processing 
Service is in addition to all other filing fees for the application or 
petition as provided for in Sec. 103.7. A separate remittance must be 
submitted for the filing fee for Form I-907. If USCIS fails to process a 
petition or application with the 15 calendar day period, the fee for 
Premium Processing Services will be automatically refunded to the 
petitioner or applicant, and USCIS will continue to process the 
application/petition on the premium processing track.
    (4) Temporary termination of Premium Processing Service. The USCIS 
may designate as eligible for Premium Processing Service certain 
petitions or applications filed on behalf of nonimmigrant aliens that 
are subject to annual numerical limitations. In order to ensure 
equitable access to these limited visa programs, USCIS may temporarily 
terminate the availability of Premium Processing Service for certain 
petitions or applications. The USCIS will announce a temporary 
termination by publication of a notice in the Federal Register. Upon 
temporary termination of a classification the petition or application 
will not be rejected. Instead, the petition or application will be moved 
into the pool of normal processing cases and only the Form I-907 will be 
rejected and the Fee for Form I-907 will be returned to the applicant or 
petitioner.

[29 FR 11956, Aug. 21, 1964]

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

    Editorial Note: At 72 FR 19106, Apr. 17, 2007, Sec. 103.2 (d)(2) 
was amended by revising the terms ``the Service'' or ``Service'' to read 
``USCIS''; however, the amendment could not be incorporated because 
paragraph (d)(2) was removed and reserved.



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 
Sec. Sec. 103.4 and

[[Page 46]]

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 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

[[Page 47]]

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 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.

[[Page 48]]

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. The Secretary of Homeland Security, 
or specific officials of the Department of Homeland Security designated 
by the Secretary with the concurrence of the Attorney General, may file 
with the Attorney General decisions relating to the administration of 
the immigration laws of the United States for publication as precedent 
in future proceedings, and upon approval of the Attorney General as to 
the lawfulness of such decision, the Director of the Executive Office 
for Immigration Review shall cause such decisions to be published in the 
same manner as decisions of the Board and the Attorney General. In 
addition to Attorney General and Board decisions referred to in Sec. 
1003.1(g) of chapter V, designated Service decisions are to serve as 
precedents in all proceedings involving the same issue(s). Except as 
these decisions may be modified or overruled by later precedent 
decisions, they are binding on all Service employees in the 
administration of the Act. Precedent decisions must be published and 
made available to the public as described in Sec. 103.9(a) of this 
part.

[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 
FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 
1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55 
FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, Feb. 28, 
2003]



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.

[[Page 49]]

    (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.
    (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-
290B 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

[[Page 50]]

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 
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

[[Page 51]]

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; 70 FR 50957, Aug. 29, 2005]



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.
    (3) Personal service involving notices of intention to fine. In 
addition to any of the methods of personal service listed in paragraph 
(a)(2) of this section, personal service of Form I-79, Notice of 
Intention to Fine, may also consist of delivery of the Form I-79 by a 
commercial delivery service at the carrier's address on file with the 
National Fines Office, the address listed on the Form I-849, Record for 
Notice of Intent to Fine, or to the office of the attorney or agent 
representing the carrier, provided that such a commercial delivery 
service requires the addressee or other responsible party accepting the 
package to sign for the package upon receipt.
    (b) Effect of service by mail. Whenever a person has the right or is 
required to do some act within a prescribed period after the service of 
a notice upon him and the notice is served by mail, 3 days shall be 
added to the prescribed period. Service by mail is complete upon 
mailing.
    (c) When personal service required--(1) Generally. In any proceeding 
which is initiated by the Service, with proposed adverse effect, service 
of the initiating notice and of notice of any decision by a Service 
officer shall be accomplished by personal service, except as provided in 
section 239 of the Act.
    (2) Persons confined, minors, and incompetents--(i) Persons 
confined. If a person is confined in a penal or mental institution or 
hospital and is competent to understand the nature of the proceedings 
initiated against him, service shall be made both upon him and upon the 
person in charge of the

[[Page 52]]

institution or the hospital. If the confined person is not competent to 
understand, service shall be made only on the person in charge of the 
institution or hospital in which he is confined, such service being 
deemed service on the confined person.
    (ii) Incompetents and minors. In case of mental incompetency, 
whether or not confined in an institution, and in the case of a minor 
under 14 years of age, service shall be made upon the person with whom 
the incompetent or the minor resides; whenever possible, service shall 
also be made on the near relative, guardian, committee, or friend.
    (d) When personal service not required. Service of other types of 
papers in proceedings described in paragraph (c) of this section, and 
service of any type of papers in any other proceedings, may be 
accomplished either by routine service or by personal service.

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



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

    (a) General. An application for further action on an approved 
application or petition must be filed on Form I-824 by the applicant or 
petitioner who filed the original application or petition. It must be 
filed with the fee required in Sec. 103.7 and the initial evidence 
required on the application form. Form I-824 may accompany the original 
application or petition, or may be filed after the approval of the 
original application or petition.
    (b) Requested actions. A person whose application was approved may, 
during its validity period, apply for a duplicate approval notice or any 
other action specifically provided for on the form. A petitioner whose 
petition was approved may, during the validity of the petition, request 
that the Service:
    (1) Issue a duplicate approval notice;
    (2) Notify another consulate of the approved petition;
    (3) Notify a consulate of the person's adjustment of status for the 
purpose of visa issuance to dependents; or
    (4) Take any other action specifically provided for on the form.
    (c) Processing. The application shall be approved if the Service 
determines the applicant has fully demonstrated eligibility for the 
requested action. There is no appeal from the denial of an application 
filed on Form I-824.

[59 FR 1463, Jan. 11, 1994]



Sec. 103.6  Surety bonds.

    (a) Posting of surety bonds--(1) Extension agreements; consent of 
surety; collateral security. All surety bonds posted in immigration 
cases shall be executed on Form I-352, Immigration Bond, a copy of 
which, and any rider attached thereto, shall be furnished the obligor. A 
district director is authorized to approve a bond, a formal agreement to 
extension of liability of surety, a request for delivery of collateral 
security to a duly appointed and undischarged administrator or executor 
of the estate of a deceased depositor, and a power of attorney executed 
on Form I-312, Designation of Attorney in Fact. All other matters 
relating to bonds, including a power of attorney not executed on Form I-
312 and a request for delivery of collateral security to other than the 
depositor or his or her approved attorney in fact, shall be forwarded to 
the regional director for approval.
    (2) Bond riders--(i) General. Bond riders shall be prepared on Form 
I-351, Bond Riders, and attached to Form I-352. If a condition to be 
included in a bond is not on Form I-351, a rider containing the 
condition shall be executed.
    (ii) [Reserved]
    (b) Acceptable sureties. Either a company holding a certificate from 
the Secretary of the Treasury under 6 U.S.C. 6-13 as an acceptable 
surety on Federal bonds, or a surety who deposits cash or U.S. bonds or 
notes of the class described in 6 U.S.C. 15 and Treasury Department 
regulations issued pursuant thereto and which are not redeemable within 
1 year from the date they are offered for deposit is an acceptable 
surety.
    (c) Cancellation--(1) Public charge bonds. A public charge bond 
posted for an immigrant shall be cancelled when the alien dies, departs 
permanently from the United States or is naturalized, provided the 
immigrant did not become a public charge prior to death,

[[Page 53]]

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


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.

[[Page 54]]

    (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 shall be submitted with any formal 
application or petition prescribed in this chapter in the amount 
prescribed by law or regulation. Except for fees remitted directly to 
the Board of Immigration Appeals pursuant to the provisions of 8 CFR 
1003.8, or as the Attorney General otherwise may provide by regulation, 
any fee relating to any Department of Justice Executive Office for 
Immigration Review proceeding shall be paid to, and accepted by, any 
BCIS office authorized to accept fees. The immigration court does not 
collect fees. Payment of any fee under this section does not constitute 
filing of the document with the Board of Immigration Appeals or with the 
Immigration Court. The Department of Homeland Security shall return to 
the payer, at the time of payment, a receipt for any fee paid. The BCIS 
shall also return to the payer any documents, submitted with the fee, 
relating to any Immigration Court proceeding.
    (2) 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 
Department of Homeland Security shall be made payable to the 
``Department of Homeland Security'' 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 an 
application to the Department of Homeland Security 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 Department of Homeland Security. 
Remittances to the Board of Immigration Appeals shall be made payable to 
the ``United States Department of Justice,'' in accordance with 8 CFR 
1003.8. A charge of $30.00 will be imposed if a check in payment of a 
fee or any other matter is not honored by the bank or financial 
institution on which it is drawn. A receipt issued by a Department of 
Homeland Security officer for any remittance shall not be binding upon 
the Department of Homeland Security if the remittance is found 
uncollectible. Furthermore, 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 Department of Homeland Security of the 
dishonored check.
    (b) Amounts of fees. (1) The following fees and charges are 
prescribed:

For certification of true copies, each--$2.00
For attestation under seal--$2.00
For capturing biometric information (Biometric Fee). A service fee of 
$80 will be charged for any individual who is required to have biometric 
information captured in connection with an application or petition for 
certain immigration and naturalization benefits (other than asylum), and 
whose residence is in the United States; provided that: Extension for 
intercountry adoptions: If applicable, no biometric service fee is 
charged when a written request for an extension of the approval period 
is received by USCIS prior to the expiration date of approval indicated 
on the Form I-171H if a Form I-600 has not yet been submitted in 
connection with an approved Form I-600A. This extension without fee is 
limited to

[[Page 55]]

one occasion. If the approval extension expires prior to submission of 
an associated Form I-600, then a complete application and fee must be 
submitted for a subsequent application.
DCL System Costs Fee. For use of a Dedicated Commuter Lane (DCL) located 
at specific Ports of Entry of the United States by an approved 
participant in a designated vehicle--$80.00, with the maximum amount of 
$160.00 payable by a family (husband, wife, and minor children under 18 
years-of-age). Payable following approval of the application but before 
use of the DCL by each participant. This fee is non-refundable, but may 
be waived by the district director. If a participant wishes to enroll 
more than one vehicle for use in the PORTPASS system, he or she will be 
assessed with an additional fee of--$42 for each additional vehicle 
enrolled.
Form I-17. For filing a petition for school approval or 
recertification--$580 plus $350 per additional campus listed on Form I-
17B.
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 a Permanent Resident Card (Form 
I-551) in lieu of an obsolete card or in lieu of one lost, mutilated, or 
destroyed, or for a change in name--$290.
Form I-94. For issuance of Arrival/Departure Record at a land border 
Port-of-Entry--$6.00.
Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/Departure 
Form at a land border Port-of-Entry under section 217 of the Act--$6.00.
Form I-102. For filing a petition for an application (Form I-102) for 
Arrival/Departure Record (Form I-94) or Crewman's Landing Permit (Form 
I-95), in lieu of one lost, mutilated, or destroyed--$320.
Form I-129. For filing a petition for a nonimmigrant worker--$320.
Form I-129F. For filing a petition to classify a nonimmigrant as a 
fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--$455; 
no fee for a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the 
beneficiary of an immigrant petition filed by a United States citizen on 
Form I-130.
Form I-130. For filing a petition to classify status of an alien 
relative for issuance of an immigrant visa under section 204(a) of the 
Act--$355.
Form I-131. For filing an application for travel document--$305.
Form I-140. For filing a petition to classify preference status of an 
alien on the basis of profession or occupation under section 204(a) of 
the Act--$475.
Form I-191. For filing an application for discretionary relief under 
section 212(c) of the Act--$545.
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--$545.
Form I-193. For filing an application for waiver of passport and/or 
visa--$545.
Form I-212. For filing an application for permission to reapply for an 
excluded, deported or removed alien, an alien who has fallen into 
distress, an alien who has been removed as an alien enemy, or an alien 
who has been removed at government expense in lieu of deportation--$545.
Form I-246. For filing application for stay of deportation under part 
243 of this chapter--$155.00
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--$585 (the fee 
will be the same when an appeal is taken from the denial of a petition 
with one or multiple beneficiaries, provided that they are all covered 
by the same petition, and therefore, the same decision). Motions. For 
filing a motion to reopen or reconsider any DHS decision in any type of 
proceeding over which the Executive Office for Immigration Review does 
not have jurisdiction. This fee shall be charged whenever a motion is 
filed to reopen or reconsider a single decision, whether it applies to 
one or multiple beneficiaries--$585.
Form I-360. For filing a petition for an Amerasian, Widow(er), or 
Special Immigrant--$375, except there is no fee for a petition seeking 
classification as: An Amerasian; a self-petitioning battered or abused 
spouse, parent, or child of a United States citizen or lawful permanent 
resident; or a Special Immigrant--Juvenile.
Form I-485. For filing an application for permanent resident status or 
creation of a record of lawful permanent residence--$930 for an 
applicant fourteen years of age or older; $600 for an applicant under 
the age of fourteen years when submitted concurrently for adjudication 
with the Form I-485 of a parent and the applicant is seeking to adjust 
status as a derivative of the parent, based on a relationship to the 
same individual who provides the basis for the parent's adjustment of 
status, or under the same legal authority as the parent; no fee for an 
applicant filing as a refugee under section 209(a) of the Act; provided 
that no additional fee will be charged for a request for travel document 
(advance parole) or employment authorization filed by an applicant who 
has paid the Form I-485 application fee, regardless of whether the Form

[[Page 56]]

I-131 or Form I-765 is required to be filed by such applicant to receive 
these benefits.
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-526. For filing a petition for an alien entrepreneur--$1,435.
Form I-539. For filing an application to extend or change nonimmigrant 
status--$300.
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 an orphan as an immediate 
relative for issuance of an 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.)--$670.
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.)--$670. No fee is charged if Form I-600 has not 
yet been submitted in connection with an approved Form I-600A if a 
written request from the applicant for an extension of the approval has 
been received by USCIS prior to the expiration date of approval 
indicated on the Form I-171H. This extension will require an update of 
the applicant's home study and a determination from USCIS that proper 
care will be provided to an adopted orphan. A no fee extension is 
limited to one occasion. If the Form I-600A approval extension expires 
prior to submission of an associated Form I-600, then a complete 
application and fee must be submitted for any subsequent application.
Form I-601. For filing an application for waiver of ground of 
inadmissibility 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 sections 212(h) and (i).)--$545.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$545.
Form I-687. For filing an application for status as a temporary resident 
under section 245A(a) of the Act. A fee of $710 for each application is 
required at the time of filing with the Department of Homeland Security.
Form I-690. For filing an application for waiver of a ground of 
inadmissibility 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 section 210A of the Act--$185.
Form I-694. For appealing the denial of an applications under sections 
210 or 245A of the Act, or a petition under section 210A of the Act--
$545.
Form I-695. For filing an application for replacement of temporary 
resident card (Form I-688)--$130.
Form I-698. For filing an application for adjustment from temporary 
resident status to that of lawful permanent resident under section 
245A(b)(1) of the Act. For applicants filing within thirty-one months 
from the date of adjustment to temporary resident status, a fee of 
$1,370 for each application is required at the time of filing with the 
Department of Homeland Security. 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 $1,410 is 
required. The adjustment date is the date of filing of the application 
for permanent residence or the applicant's eligibility date, whichever 
is later.
Form I-700. For filing application for status as a temporary resident 
under section 210(a)(1) of the Act, as amended--to be remitted in the 
form of a cashier's check, certified bank check or a money order. A fee 
of one hundred and eighty-five dollars ($185.00) for each application or 
fifty dollars ($50.00) for each application for a minor child (under 18 
years of age) is required at the time of filing with the Immigration and 
Naturalization Service. The maximum amount payable by a family (husband, 
wife, and any minor children) shall be four hundred and twenty dollars 
($420.00).
Form I-751. For filing a petition to remove the conditions on residence, 
based on marriage--$465.
Form I-765. For filing an application for employment authorization 
pursuant to 8 CFR 274a.13--$340.
Form I-800. For filing a petition to classify a Convention adoptee as an 
immediate relative.

--No fee for the first Form I-800 filed for a child on the basis of an 
approved Form I-800A, filed during the approval period.
--If more than one Form I-800 is filed during the approval period for 
different children, the fee is $670 for the second and each subsequent 
Form I-800 submitted.
--If the children are already siblings before the proposed adoption, 
however, only one filing fee of $670 is required, regardless of the 
sequence of submission of the Form I-800.


[[Page 57]]


Form I-800A. For filing an application for determination of suitability 
to adopt a child from a Convention country--$670.
    For filing a Form I-800A, Supplement 3, Request for Action on 
Approved Form I-800A--$340, except that this filing fee is not charged 
if no Form I-800 has been filed based on the approval of the Form I-
800A, and Form I-800A Supplement 3 is filed in order to obtain a first 
extension of the approval of the Form I-800A. * * *
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--$440.
Form I-821. For filing an initial application for Temporary Protected 
Status under section 244 of the Act as amended by section 308(a)(7) of 
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
as amended by the Immigration Act of 1990, to be remitted in the form of 
a cashier's check, certified bank check, or money order. The exact 
amount of the fee, not to exceed fifty dollars ($50.00), will be 
determined at the time a foreign state is designated for Temporary 
Protected Status.
Form I-823. For application to a PORTPASS program under section 286 of 
the Act--$25.00, with the maximum amount of $50.00 payable by a family 
(husband, wife, and minor children under 18 years of age). The 
application fee may be waived by the district director. If fingerprints 
are required, the inspector will inform the applicant of the current 
Federal Bureau of Investigation fee for conducting fingerprint checks 
prior to accepting the application fee. Both the application fee (if not 
waived) and the fingerprint fee must be paid to the Immigration and 
Naturalization Service before the application will be processed. The 
fingerprint fee may not be waived. For replacement of PORTPASS 
documentation during the participation period--$25.00.
Form I-824. For filing for action on an approved application or 
petition--$340.
Form I-829. For filing a petition by entrepreneur to remove conditions--
$2,850.
Form I-881. For filing an application for suspension of deportation or 
special rule cancellation of removal (pursuant to section 203 of Public 
Law 105-100):

--$275 for adjudication by the Department of Homeland Security, except 
that the maximum amount payable by family members (related as husband, 
wife, unmarried child under 21, unmarried son, or unmarried daughter) 
who submit applications at the same time shall be $550.
--$155 for adjudication by the Immigration Court (a single fee of $155 
will be charged whenever applications are filed by two or more aliens in 
the same proceedings). The $155 fee is not required if the Form I-881 is 
referred to the Immigration Court by the Department of Homeland 
Security.

Form I-901. For remittance of the SEVIS fee levied on certain F, J, and 
M nonimmigrant aliens--$100. For remittance of the SEVIS fee levied for 
J-1 au pairs, camp counselors, and participants in a summer work/travel 
program--$35.
Form I-905. Application for authorization to issue certification for 
health care workers--$230.
Form I-907. For filing a request for Premium Processing Service for 
certain employment based applications and petitions-$1,000. The fee for 
Premium Processing Service may not be waived.
Form N-300. For filing an application for declaration of intention--
$235.
Form N-336. For filing a request for hearing on a decision in 
naturalization proceedings under section 336 of the Act--$605.
Form N-400. For filing an application for naturalization (other than 
such application filed on or after October 1, 2004, by an applicant who 
meets the requirements of sections 328 or 329 of the Act with respect to 
military service, for which no fee is charged)--$595.
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 benefits under section 316(b) 
or 317 of the Act--$305.
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(c) 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(b) of the Act--$380.

[[Page 58]]

Form N-600. For filing an application for a certificate of citizenship 
under section 309(c) or section 341 of the Act--$460, for applications 
filed on behalf of a biological child and $420 for applications filed on 
behalf of an adopted child.
Form N-600K. For filing an application for citizenship and issuance of 
certificate under section 322 of the Act--$460, for an application filed 
on behalf of a biological child and $420 for an application filed on 
behalf of an adopted child.
Form N-644. For filing an application for posthumous citizenship--$80.
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 Square, 
Cambridge, MA 02142.
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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 
Homeland Security at 6 CFR 5.11.
    (3) The fees prescribed in paragraph (b)(1) of this section shall be 
adjusted annually on or after October 1, 2005, by publication of an 
inflation adjustment. The inflation adjustment will be announced by 
notice in the Federal Register, and the adjustment shall be a composite 
of the Federal civilian pay raise assumption and non-pay inflation 
factor for that fiscal year issued by the Office of Management and 
Budget for agency use in implementing OMB Circular A-76, weighted by pay 
and non-pay proportions of total funding for that fiscal year. If 
Congress enacts a different Federal civilian pay raise percentage than 
the percentage issued by OMB for Circular A-76, the Department of 
Homeland Security may adjust the fees, during the current year or a 
following year to reflect the enacted level. The prescribed fee or 
charge shall be the amount prescribed in paragraph (b)(1) of this 
section, plus the latest inflation adjustment, rounded to the nearest $5 
increment.
    (4) For the schedule of fees relating to proceedings before the 
immigration judges and the Board of Immigration Appeals, see 8 CFR 
1103.7.
    (c) Waiver of fees. (1) Except as otherwise provided in this 
paragraph (c), any of the fees prescribed in paragraph (b) of this 
section relating to applications, petitions, appeals, motions, or 
requests may be waived by the Department of Homeland Security in any 
case under its 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 application, 
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 Department 
of Homeland Security having jurisdiction to render a decision on the 
application, petition, appeal, motion, or request may, in his or her 
discretion, grant the waiver of fee. Fees for ``Passenger Travel Reports 
via Sea and Air'' and for special statistical tabulations may not be 
waived. The payment of the additional sum prescribed by section 245(i) 
of the Act when applying for adjustment of status under section 245 of 
the Act may not be waived. The fee for Form I-907, Request for Premium 
Processing Services, may not be waived. For provisions relating to the 
authority of the immigration judges or the Board to waive fees 
prescribed in paragraph (b) of this section in cases under their 
jurisdiction, see 8 CFR 1003.24 and 1003.8.
    (2) Fees under the Freedom of Information Act, as amended, may be 
waived or reduced where the Department of Homeland Security 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

[[Page 59]]

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 BCIS 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 BCIS representative on or before the date the fee is 
required to be paid, a notice prepared on BCIS letterhead and signed by 
the officer granting the waiver, that the fee has been waived pursuant 
to this paragraph.
    (4) Fees for applications for Temporary Protected Status may be 
waived pursuant to 8 CFR 244.20.
    (5) No fee relating to any application, petition, appeal, motion, or 
request made to United States Citizenship and Immigration Services may 
be waived under paragraph (c)(1) of this section except for the 
following: Biometrics; Form I-90; Form I-485 (only in the case of an 
alien in lawful nonimmigrant status under sections 101(a)(15)(T) or (U) 
of the Act; an applicant under section 209(b) of the Act; an approved 
self-petitioning battered or abused spouse, parent, or child of a United 
States citizen or lawful permanent resident; or an alien to whom section 
212(a)(4) of the Act does not apply with respect to adjustment of 
status); Form I-751; Form I-765; Form I-817; Form N-300; Form N-336; 
Form N-400; Form N-470; Form N-565; Form N-600; Form N-600K; and Form I-
290B and motions filed with United States Citizenship and Immigration 
Services relating to the specified forms in this paragraph (c).
    (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, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



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

[[Page 60]]

under the Act accompanied by a statement of reasons. Orders made by 
check marks, stamps, or brief endorsements which are not supported by a 
reasoned explanation, or those incorporating preprinted language on 
Service forms are not decisions.
    (c) The term records includes records of proceedings, documents, 
reports, and other papers maintained by the Service.
    (d) The term record of proceeding is the official history of any 
hearing, examination, or proceeding before the Service, and in addition 
to the application, petition or other initiating document, includes the 
transcript of hearing or interview, exhibits, and any other evidence 
relied upon in the adjudication; papers filed in connection with the 
proceedings, including motions and briefs; the Service officer's 
determination; notice of appeal or certification; the Board or other 
appellate determination; motions to reconsider or reopen; and documents 
submitted in support of appeals, certifications, or motions.

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



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

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

[[Page 61]]

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

[[Page 62]]

record will be available. The notification shall also advise the 
requester of any applicable fees under 28 CFR 16.10. The Service shall 
have fulfilled its duty to grant access whenever it provides a copy of 
the record, or, at its discretion, makes the original record or a copy 
available for in-person review in response to an express request for 
such review. In-person review is discretionary and shall not be granted 
when doing so would unreasonably disrupt the normal operations of a 
Service office.
    (2) Form of denial. A reply denying a written request for a record 
in whole or in part shall be in writing, signed by one of the officials 
specified in paragraph (b)(1) of this section. The reply shall include a 
reference to the specific exemption under the Freedom of Information Act 
authorizing withholding of the records. The notice of denial shall 
contain a brief explanation of how the exemption applies to the record 
withheld and, if the deciding official considers it appropriate, a 
statement of why the exempt record is being withheld. The notice of 
denial shall include a statement of the right of appeal to the Attorney 
General under 28 CFR 16.8, and that judicial review will thereafter be 
available in the district in which the requester resides or has a 
principle place of business, or the district in which the agency records 
are situated, or the District of Columbia.
    (3) Right of appeal. When a request for records has been denied in 
whole or in part, the requester may, within 30 days of its receipt, 
appeal the denial to the Assistant Attorney General, Office of Legal 
Policy, (Attention: Office of Information and Privacy), Department of 
Justice, Washington, DC 20530. Both the envelope and letter must be 
clearly marked: ``FREEDOM OF INFORMATION APPEAL'' or ``INFORMATION 
APPEAL.''
    (e) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a 
requester automatically agrees to pay fees up to $25.00 by filing a 
Freedom of Information Act request unless a waiver or reduction of fees 
is sought. Accordingly, all letters of acknowledgment must 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(b)(3);
    (4) An alien who belongs to one of the following classes of aliens 
permitted to remain in the United States because the Attorney General 
has decided for humanitarian or other public policy reasons not to 
initiate deportation or exclusion proceedings or enforce departure:
    (i) Aliens currently in temporary resident status pursuant to 
section 210 or 245A of the Act;
    (ii) Aliens currently under Temporary Protected Status (TPS) 
pursuant to section 244 of the Act;

[[Page 63]]

    (iii) Cuban-Haitian entrants, as defined in section 202(b) Pub. L. 
99-603, as amended;
    (iv) Family Unity beneficiaries pursuant to section 301 of Pub. L. 
101-649, as amended;
    (v) Aliens currently under Deferred Enforced Departure (DED) 
pursuant to a decision made by the President;
    (vi) Aliens currently in deferred action status pursuant to Service 
Operations Instructions at OI 242.1(a)(22);
    (vii) Aliens who are the spouse or child of a United States citizen 
whose visa petition has been approved and who have a pending application 
for adjustment of status;
    (5) Applicants for asylum under section 208(a) of the Act and 
applicants for withholding of removal under section 241(b)(3) of the Act 
or under the Convention Against Torture who have been granted employment 
authorization, and such applicants under the age of 14 who have had an 
application pending for at least 180 days.
    (b) Non-issuance of an Order to Show Cause and non-enforcement of 
deportation and exclusion orders. An alien may not be deemed to be 
lawfully present solely on the basis of the Service's decision not to, 
or failure to, issue an Order to Show Cause or solely on the basis of 
the Service's decision not to, or failure to, enforce an outstanding 
order of deportation or exclusion.

[61 FR 47041, Sept. 6, 1996, as amended at 63 FR 63595, Nov. 16, 1998; 
64 FR 8487, Feb. 19, 1999; 65 FR 82255, Dec. 28, 2000]



Sec. 103.20  Purpose and scope.

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

[[Page 64]]

    (1) An individual seeking access to records about himself in person 
shall establish his identity by the presentation of a single document 
bearing a photograph (such as a passport, Permanent Resident Card or 
identification badge) or by the presentation of two items of 
identification which do not bear a photograph but do bear both a name 
and address (such as a driver's license, or credit card).
    (2) Individuals seeking access to records about themselves by mail 
shall establish their identify by submitting a notarized signature along 
with their address, date of birth, place of birth, and alien or employee 
identification number if applicable. Form DOJ 361, Certification of 
Identity, may be obtained from any Service office and used to obtain the 
notarized signature needed to verify identity.
    (c) Verification of guardianship. The parent or guardian of a child 
or of a person judicially determined to be incompetent and seeking to 
act on behalf of such child or incompetent, shall, in addition to 
establishing his own identity, establish the identity of the child or 
other person he represents as required in paragraph (b) of this section, 
and establish his own parentage or guardianship of the subject of the 
record by furnishing either a copy of a birth certificate showing 
parentage or a court order establishing the guardianship.
    (d) Accompanying persons. An individual seeking to review records 
pertaining to himself may be accompanied by another individual of his 
own choosing. Both the individual seeking access and the individual 
accompanying him shall be required to sign the required form indicating 
that the Service is authorized to discuss the contents of the subject 
record in the presence of both individuals.
    (e) Specification of records sought. Requests for access to records, 
either in person or by mail, shall describe the nature of the records 
sought, the approximate dates covered by the record, the system in which 
it is thought to be included as described in the ``Notice of Systems of 
Records'' published in the Federal Register, and the identity of the 
individual or office of the Service having custody of the system of 
records. In addition, the published ``Notice of Systems of Records'' for 
individual systems may include further requirements of specification, 
where necessary, to retrieve the individual record from the system.
    (f) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a 
requester automatically agrees to pay fees up to $25.00 by filing a 
Privacy Act request unless a waiver or reduction of fees is sought. 
Accordingly, all letters of acknowledgement must confirm the requester's 
obligation to pay.

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



Sec. 103.22  Records exempt in whole or in part.

    (a) When individuals request records about themselves which are 
exempt from access pursuant to the Privacy Act exemptions in 5 U.S.C. 
552a(d)(5), (j) or (k), their requests shall also be considered under 
the Freedom of Information Act, 5 U.S.C. 552, and, unless the records 
are exempt under both Acts, the request shall be granted. If exemptions 
under both Acts permit the denial of the records sought and there is 
good reason to invoke the exemptions, the individual shall be provided a 
denial of his/her request in writing with the governing exemptions 
cited. If the disclosure of the existence of a criminal law enforcement 
proceeding record could itself interfere with a pending law enforcement 
proceeding of which there is reason to believe the subject is unaware, 
the Service may, during only such time as the circumstance continues, 
treat the records as not subject to the requirements of 5 U.S.C. 552.
    (b) Individual requests for access to records which have been 
exempted from access pursuant to 5 U.S.C. 552a(k) shall be processed as 
follows:
    (1) A request for information classified by the Service under 
Executive Order 12356 on National Security Information requires the 
Service to review the information to determine whether it continues to 
warrant classification under the criteria of the Executive Order. 
Information which no longer

[[Page 65]]

warrants classification shall be declassified and made available to the 
individual, if not otherwise exempt. If the information continues to 
warrant classification, the individual shall be advised that the 
information sought is classified; that it has been reviewed and 
continues to warrant classification; and that it has been exempted from 
access under 5 U.S.C. 552a(k)(1). Information which has been exempted 
under 5 U.S.C. 552a(j) and which is also classified, shall be reviewed 
as required by this paragraph but the response to the individual shall 
be in the form prescribed by paragraph (a) of this section.
    (2) Requests for information which has been exempted from disclosure 
pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the manner 
provided in paragraph (a) of this section unless a review of the 
information indicates that the information has been used or is being 
used to deny the individual any right, privilege or benefit for which he 
is eligible or to which he would otherwise be entitled under Federal 
law. In that event, the individual shall be advised of the existence of 
the record and shall be provided the information except to the extent it 
would identify a confidential source. If and only if information 
identifying a confidential source can be deleted or the pertinent parts 
of the record summarized in a manner which protects the identity of the 
confidential source, the document with deletions made or the summary 
shall be furnished to the requester.
    (3) Information compiled as part of an employee background 
investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5) 
shall be made available to an individual upon request except to the 
extent that it identifies a confidential source. If and only if 
information identifying a confidential source can be deleted or the 
pertinent parts of the record summarized in a manner which protects the 
identity of the confidential source, the document with deletions made or 
the summary shall be furnished to the requester.
    (4) Testing or examination material which has been exempted pursuant 
to 5 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

[[Page 66]]

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

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



Sec. 103.25  Notice of access decisions; time limits.

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

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



Sec. 103.26  Fees for copies of records.

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

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



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.

[[Page 67]]

    (e) Statements of disagreement. Statements of disagreement may be 
furnished by the individual in the manner prescribed in 28 CFR 16.50.
    (f) Notices of correction or disagreement. When a record has been 
corrected, the responsible official as specified in Sec. 103.10(a) of 
this part shall, within thirty working days thereof, advise all prior 
recipients of the record whose identity can be determined pursuant to 
the accounting required by the Privacy Act or any other accounting 
previously made, of the correction. Any dissemination of a record after 
the filing of a statement of disagreement shall be accompanied by a copy 
of that statement. Any statement of the Service giving reasons for 
refusing to correct shall be included in the file.

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



Sec. 103.29  Records not subject to correction.

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



Sec. 103.30  Accounting for disclosures.

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

[[Page 68]]

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]



Sec. 103.37  Precedent decisions.

    (a) Proceedings before the immigration judges, the Board of 
Immigration Appeals and the Attorney General are governed by part 1003 
of 8 CFR chapter V.
    (b)-(f) [Reserved]
    (g) Decisions as precedents. Except as Board decisions may be 
modified or overruled by the Board or the Attorney General, decisions of 
the Board, and decisions of the Attorney General, shall be binding on 
all officers and employees of the Department of Homeland Security or 
immigration judges in the administration of the immigration laws of the 
United States. By majority vote of the permanent Board members, selected 
decisions of the Board rendered by a three-member panel or by the Board 
en banc may be designated to serve as precedents in all proceedings 
involving the same issue or issues. Selected decisions designated by the 
Board, decisions of the Attorney General, and decisions of the Secretary 
of Homeland Security to the extent authorized in paragraph (i) of this 
section, shall serve as precedents in all proceedings involving the same 
issue or issues.
    (h) Referral of cases to the Attorney General. (1) The Board shall 
refer to the Attorney General for review of its decision all cases 
which:
    (i) The Attorney General directs the Board to refer to him.
    (ii) The Chairman or a majority of the Board believes should be 
referred to the Attorney General for review.
    (iii) The Secretary of Homeland Security, or specific officials of 
the Department of Homeland Security designated by the Secretary with the 
concurrence of the Attorney General, refers to the Attorney General for 
review.
    (2) In any case the Attorney General decides, the Attorney General's 
decision shall be stated in writing and shall be transmitted to the 
Board or Secretary, as appropriate, for transmittal and service as 
provided in paragraph (f) of this section.
    (i) Publication of Secretary's precedent decisions. The Secretary of 
Homeland Security, or specific officials of the Department of Homeland 
Security designated by the Secretary with the concurrence of the 
Attorney General, may file with the Attorney General Service precedent 
decisions as set forth in Sec. 103.3(c).

[68 FR 9832, Feb. 28, 2003]

                           PART 109 [RESERVED]



PART 204_IMMIGRANT PETITIONS--Table of Contents




                   Subpart A_Immigrant Visa Petitions

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

[[Page 69]]

204.2 Petitions for relatives, widows and widowers, and abused spouses 
          and children.
204.3 Orphan cases under section 101(b)(1)(F) of the Act (non-Convention 
          cases).
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).
204.12 How can second-preference immigrant physicians be granted a 
          national interest waiver based on service in a medically 
          underserved area or VA facility?
204.13 How can the International Broadcasting Bureau of the United 
          States Broadcasting Board of Governors petition for a fourth 
          preference special immigrant broadcaster?

Subpart B [Reserved]

         Subpart C_Intercountry Adoption of a Convention Adoptee

204.300 Scope of this subpart.
204.301 Definitions.
204.302 Role of service providers.
204.303 Determination of habitual residence.
204.304 Improper inducement prohibited.
204.305 State preadoption requirements.
204.306 Classification as an immediate relative based on Convention 
          adoption.
204.307 Who may file a Form I-800A or Form I-800.
204.308 Where to file Form I-800A or Form I-800.
204.309 Factors requiring denial of a Form I-800A or Form I-800.
204.310 Filing requirements for Form I-800A.
204.311 Convention adoption home study requirements.
204.312 Adjudication of the Form I-800A.
204.313 Filing and adjudication of the Form I-800.
204.314 Appeal.

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



                   Subpart A_Immigrant Visa Petitions



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 U.S. citizen seeking to have USCIS accord immediate relative 
status to a child based on the citizen's adoption of the child as an 
orphan, as defined in section 101(b)(1)(F) of the Act, must follow the 
procedures in Sec. 204.3.
    (5) A U.S. citizen seeking to have USCIS accord immediate relative 
status to a child under section 101(b)(1)(G) of the Act on the basis of 
a Convention adoption must:

[[Page 70]]

    (i) File a Form I-800A, Application to Determine Suitability as 
Adoptive Parents for a Convention adoptee; and
    (ii) After USCIS approves the Form I-800A, file a Form I-800, 
Petition to Classify Convention adoptee as Immediate Relative, as 
provided in 8 CFR part 204, subpart C.
    (6) Any person filing a petition under section 204(f) of the Act as, 
or on behalf of, an Amerasian for classification as an immediate 
relative under section 201(b) of the Act or as a preference immigrant 
under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360, 
Petition for Amerasian, Widow, or Special Immigrant. These petitions are 
described in Sec. 204.4.
    (b) Filing fee. Forms I-130 and I-360 must be accompanied by the 
appropriate fee under 8 CFR 103.7(b)(1).
    (c) Filing date. The filing date of a petition shall be the date it 
is properly filed under paragraph (d) of this section and shall 
constitute the priority date.
    (d) Proper filing. A petition shall be considered properly filed if:
    (1) It is signed by the petitioner, and
    (2) A fee has been received by the Service office or United States 
Consular office having jurisdiction.
    (3) If, during normal processing, a delay results from deficiencies 
in the initial filing, the priority date will be established only when 
the petition is properly signed by the petitioner and the fee has been 
collected by the Service. If questions arise concerning the filing of 
the petition which cannot be resolved through a check of the Service fee 
receipting system (FARES) or other fee collection system, then the 
director may consider the date of receipt of the petition to be the 
priority date.
    (e) Jurisdiction--(1) Petitioner or self-petitioner residing in the 
United States. 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

[[Page 71]]

stateside referral, if they deem it necessary. A consular official may 
not accept or approve a self-petition filed by the spouse or child of an 
abusive citizen or lawful permanent resident of the United States under 
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with 
the Service office in the United States having jurisdiction over the 
self-petitioner's place of residence in the United States.
    (f) Supporting documentation. (1) Documentary evidence consists of 
those documents which establish the United States citizenship or lawful 
permanent resident status of the petitioner and the claimed relationship 
of the petitioner to the beneficiary. They must be in the form of 
primary evidence, if available. When it is established that primary 
evidence is not available, secondary evidence may be accepted. To 
determine the availability of primary documents, the Service will refer 
to the Department of State's Foreign Affairs Manual (FAM). When the FAM 
shows that primary documents are generally available in the country of 
issue but the petitioner claims that his or her document is unavailable, 
a letter from the appropriate registrar stating that the document is not 
available will not be required before the Service will accept secondary 
evidence. The Service will consider any credible evidence relevant to a 
self-petition filed by a qualified spouse or child of an abusive citizen 
or lawful permanent resident under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The 
self-petitioner may, but is not required to, demonstrate that preferred 
primary or secondary evidence is unavailable. The determination of what 
evidence is credible and the weight to be given that evidence shall be 
within the sole discretion of the Service.
    (2) Original documents or legible, true copies of original documents 
are acceptable. The Service reserves the right to require submission of 
original documents when deemed necessary. Documents submitted with the 
petition will not be returned to the petitioner, except when originals 
are requested by the Service. If original documents are requested by the 
Service, they will be returned to the petitioner after a decision on the 
petition has been rendered, unless their validity or authenticity is in 
question. When an interview is required, all original documents must be 
presented for examination at the interview.
    (3) Foreign language documents must be accompanied by an English 
translation which has been certified by a competent translator.
    (g) Evidence of petitioner's United States citizenship or lawful 
permanent residence--(1) Primary evidence. A petition must be 
accompanied by one of the following:
    (i) A birth certificate that was issued by a civil authority and 
that establishes the petitioner's birth in the United States;
    (ii) An unexpired United States passport issued initially for a full 
ten-year period to a petitioner over the age of eighteen years as a 
citizen of the United States (and not merely as a noncitizen national);
    (iii) An unexpired United States passport issued initially for a 
full five-year period to the petitioner under the age of eighteen years 
as a citizen of the United States (and not merely as a noncitizen 
national);
    (iv) A statement executed by a United States consular officer 
certifying the petitioner to be a United States citizen and the bearer 
of a currently valid United States passport;
    (v) The petitioner's Certificate of Naturalization or Certificate of 
Citizenship;
    (vi) Department of State Form FS-240, Report of Birth Abroad of a 
Citizen of the United States, relating to the petitioner;
    (vii) The petitioner's Form I-551, Permanent Resident Card, or other 
proof given by the Service as evidence of lawful permanent residence. 
Photocopies of Form I-551 or of a Certificate of Naturalization or 
Certificate of Citizenship may be submitted as evidence of status as a 
lawfully permanent resident or United States citizen, respectively.
    (2) Secondary evidence. If primary evidence is unavailable, the 
petitioner must present secondary evidence. Any

[[Page 72]]

evidence submitted as secondary evidence will be evaluated for 
authenticity and credibility. Secondary evidence may include, but is not 
limited to, one or more of the following documents:
    (i) A baptismal certificate with the seal of the church, showing the 
date and place of birth in the United States and the date of baptism;
    (ii) Affidavits sworn to by persons who were living at the time and 
who have personal knowledge of the event to which they attest. The 
affidavits must contain the affiant's full name and address, date and 
place of birth, relationship to the parties, if any, and complete 
details concerning how the affiant acquired knowledge of the event;
    (iii) Early school records (preferably from the first school) 
showing the date of admission to the school, the child's date and place 
of birth, and the name(s) and place(s) of birth of the parent(s);
    (iv) Census records showing the name, place of birth, and date of 
birth or age of the petitioner; or
    (v) If it is determined that it would cause unusual delay or 
hardship to obtain documentary proof of birth in the United States, a 
United States citizen petitioner who is a member of the Armed Forces of 
the United States and who is serving outside the United States may 
submit a statement from the appropriate authority of the Armed Forces. 
The statement should attest to the fact that the personnel records of 
the Armed Forces show that the petitioner was born in the United States 
on a certain date.
    (3) Evidence submitted with a self-petition. If a self-petitioner 
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 
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.

[57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993; 
61 FR 13072, 13073, Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998; 72 FR 
19106, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007]



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

[[Page 73]]

the affidavit; his or her relationship, if any, to the petitioner, 
beneficiary or prior spouse; and complete information and details 
explaining how the person acquired his or her knowledge of the prior 
marriage. The affiant may be required to testify before an immigration 
officer about the information contained in the affidavit. Affidavits 
should be supported, if possible, by one or more types of documentary 
evidence listed in this paragraph.); or
    (6) Any other documentation which is relevant to establish that the 
prior marriage was not entered into in order to evade the immigration 
laws of the United States.
    (C) The petitioner must establish by clear and convincing evidence 
that the prior marriage was not entered into for the purpose of evading 
the immigration laws. Failure to meet the ``clear and convincing 
evidence'' standard will result in the denial of the petition. Such a 
denial shall be without prejudice to 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

[[Page 74]]

to the spouses, if any. The affidavit must contain complete information 
and details explaining how the person acquired his or her knowledge of 
the marriage. Affidavits should be supported, if possible, by one or 
more types of documentary evidence listed in this paragraph); or
    (6) Any other documentation which is relevant to establish that the 
marriage was not entered into in order to evade the immigration laws of 
the United States.
    (C) Decision. Any petition filed during the prohibited period shall 
be denied, unless the petitioner establishes eligibility for an 
exemption from the general prohibition. The petitioner shall be notified 
in writing of the decision of the director.
    (D) Denials. The denial of a petition because the marriage took 
place during the prohibited period shall be without prejudice to the 
filing of a new petition after the beneficiary has resided outside the 
United States for the required 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

[[Page 75]]

child will be accorded second preference classification and the same 
priority date as the principal alien. However, if the child reaches the 
age of twenty-one prior to the issuance of a visa to the principal alien 
parent, a separate petition will be required. In such a case, the 
original priority date will be retained if the subsequent petition is 
filed by the same petitioner. Such retention of priority date will be 
accorded only to a son or daughter previously eligible as a derivative 
beneficiary under a second preference spousal petition.
    (b) Petition by widow or widower of a United States citizen--(1) 
Eligibility. A widow or widower of a United States citizen may file a 
petition and be classified as an immediate relative under section 201(b) 
of the Act if:
    (i) He or she had been married for at least two years to a United 
States citizen.

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

    (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

[[Page 76]]

204(a)(1)(B)(ii) of the Act for his or her classification as an 
immediate relative or as a preference immigrant if he or she:
    (A) Is the spouse of a citizen or lawful permanent resident of the 
United States;
    (B) Is eligible for immigrant classification under section 
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
    (C) Is residing in the United States;
    (D) Has resided in the United States with the citizen or lawful 
permanent resident spouse;
    (E) Has been battered by, or has been the subject of extreme cruelty 
perpetrated by, the citizen or lawful permanent resident during the 
marriage; or is that parent of a child who has been battered by, or has 
been the subject of extreme cruelty perpetrated by, the citizen or 
lawful permanent resident during the marriage;
    (F) Is a person of good moral character;
    (G) Is a person whose deportation would result in extreme hardship 
to himself, herself, or his or her child; and
    (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

[[Page 77]]

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 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,

[[Page 78]]

and other social service agency personnel. Persons who have obtained an 
order of protection against the abuser or have taken other legal steps 
to end the abuse are strongly encouraged to submit copies of the 
relating legal documents. Evidence that the abuse victim sought safe-
haven in a battered women's shelter or similar refuge may be relevant, 
as may a combination of documents such as a photograph of the visibly 
injured self-petitioner supported by affidavits. Other forms of credible 
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to establish a pattern of abuse and 
violence and to support a claim that qualifying abuse also occurred.
    (v) Good moral character. Primary evidence of the self-petitioner's 
good moral character is the self-petitioner's affidavit. The affidavit 
should be accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in the United 
States in which the self-petitioner has resided for six or more months 
during the 3-year period immediately preceding the filing of the self-
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) 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

[[Page 79]]

document showing name change, or other similar evidence) must accompany 
the self-petition.
    (6) Prima facie determination. (i) Upon receipt of a self-petition 
under paragraph (c)(1) of this section, the Service shall make a 
determination as to whether the petition and the supporting 
documentation establish a ``prima facie case'' for purposes of 8 U.S.C. 
1641, as amended by section 501 of Public Law 104-208.
    (ii) For purposes of paragraph (c)(6)(i) of this section, a prima 
facie case is established only if the petitioner submits 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.

[[Page 80]]

    (iii) Primary evidence for an illegitimate child or son or daughter. 
If a petition is submitted by the mother, the child's birth certificate, 
issued by civil authorities and showing the mother's name, must 
accompany the petition. If the mother's name on the birth certificate is 
different from her name as reflected in the petition, evidence of the 
name change must also be submitted. If the petition is submitted by the 
purported father of a child or son or daughter born out of wedlock, the 
father must show that he is the natural father and that a bona fide 
parent-child 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.

[[Page 81]]

    (vi) Blood tests. The director may require that a specific Blood 
Group Antigen Test be conducted of the beneficiary and the beneficiary's 
father and mother. In general, blood tests will be required only after 
other forms of evidence have proven inconclusive. If the specific Blood 
Group Antigen Test is also found not to be conclusive and the director 
determines that additional evidence is needed, a Human Leucocyte Antigen 
(HLA) test may be requested. Tests will be conducted, at the expense of 
the petitioner or beneficiary, by the United States Public Health 
Service physician who is authorized overseas or 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.
    (D) On or after the Convention effective date, as defined in 8 CFR 
part 204.301, a United States citizen who is habitually resident in the 
United States, as determined under 8 CFR 204.303, may not file a Form I-
130 under this section on behalf of child who was habitually resident in 
a Convention country, as determined under 8 CFR 204.303, unless the 
adoption was completed before the Convention effective

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date. In the case of any adoption occurring on or after the Convention 
effective date, a Form I-130 may be filed and approved only if the 
United States citizen petitioner was not habitually resident in the 
United States at the time of the adoption.
    (E) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS 
will deem a United States citizen, 8 CFR 204.303 notwithstanding, to 
have been habitually resident outside the United States, if the citizen 
satisfies the 2-year joint residence and custody requirements by 
residing with the child outside the United States.
    (F) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS 
will not approve a Form I-130 under section 101(b)(1)(E) of the Act on 
behalf of an alien child who is present in the United States based on an 
adoption that is entered on or after the Convention effective date, but 
whose habitual residence immediately before the child's arrival in the 
United States was in a Convention country. However, the U.S. citizen 
seeking the child's adoption may file a Form I-800A and Form I-800 under 
8 CFR part 204, subpart C.
    (3) Decision on and disposition of petition. The approved petition 
will be forwarded to the Department of State's Processing Center. If the 
beneficiary is in the United States and is eligible for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the petition is denied, the petitioner will 
be notified of the reasons for the denial and of the right to appeal in 
accordance with the provisions of 8 CFR 3.3.
    (4) Derivative beneficiaries. A spouse or child accompanying or 
following to join a principal alien as used in this section may be 
accorded the same preference and priority date as the principal alien 
without the necessity of a separate petition. However, a child of an 
alien who is approved for classification as an immediate relative is not 
eligible for derivative classification and must have a separate petition 
approved on his or her behalf.
    (5) Name change. When the petitioner's name does not appear on the 
child's birth certificate, evidence of the name change (such as the 
petitioner's marriage certificate, legal document 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

[[Page 83]]

not be precluded, however, from filing a new self-petition for immediate 
relative classification after the abuser's naturalization, provided the 
self-petitioning child continues to meet the self-petitioning 
requirements.
    (iv) Eligibility for immigrant classification. A self-petitioner is 
required to comply with the provisions of section 204(c) of the Act, 
section 204(g) of the Act, and section 204(a)(2) of the Act.
    (v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition 
is filed. The self-petitioner is not required to be living with the 
abuser when the petition is filed, but he or she must have resided with 
the abuser in the United States in the past.
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was battered by or was the subject of extreme cruelty'' 
includes, but is not limited to, being the victim of any act or 
threatened act of violence, including any forceful detention, which 
results or threatens to result in physical or mental injury. 
Psychological or sexual abuse or exploitation, including rape, 
molestation, incest (if the victim is a minor), or forced prostitution 
shall be considered acts of violence. Other abusive actions may also be 
acts of violence under certain circumstances, including acts that, in 
and of themselves, may not initially appear violent but are a part of an 
overall pattern of violence. The qualifying abuse must have been 
committed by the citizen or lawful permanent resident parent, must have 
been perpetrated against the self-petitioner, and must have taken place 
while the self-petitioner was residing with the abuser.
    (vii) Good moral character. A self-petitioner will be found to lack 
good moral character if he or she is a person described in section 
101(f) of the Act. Extenuating circumstances may be taken into account 
if the person has not been convicted of an offense or offenses but 
admits to the commission of an act or acts that could show a lack of 
good moral character under section 101(f) of the Act. A person who was 
subjected to abuse in the form of forced prostitution or who can 
establish that he or she was forced to engage in other behavior that 
could render the person excludable 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

[[Page 84]]

and the weight to be given that evidence shall be within the sole 
discretion of the Service.
    (ii) Relationship. A self-petition filed by a child must be 
accompanied by evidence of citizenship of the United States citizen or 
proof of the immigration status of the lawful permanent resident abuser. 
It must also be accompanied by evidence of the relationship. Primary 
evidence of the relationship between:
    (A) The self-petitioning child and an abusive biological mother is 
the self-petitioner's birth certificate issued by civil authorities;
    (B) A self-petitioning child who was born in wedlock and an abusive 
biological father is the child's birth certificate issued by civil 
authorities, the marriage certificate of the child's parents, and 
evidence of legal termination of all prior marriages, if any;
    (C) A legitimated self-petitioning child and an abusive biological 
father is the child's birth certificate issued by civil authorities, and 
evidence of the child's legitimation;
    (D) A self-petitioning child who was born out of wedlock and an 
abusive biological father is the child's birth certificate issued by 
civil authorities showing the father's name, and evidence that a bona 
fide parent-child relationship has been established between the child 
and the parent;
    (E) A self-petitioning stepchild and an abusive stepparent is the 
child's birth certificate issued by civil authorities, the marriage 
certificate of the child's parent and the stepparent showing marriage 
before the stepchild reached 18 years of age, and evidence of legal 
termination of all prior marriages of either parent, if any; and
    (F) An adopted self-petitioning child and an abusive adoptive parent 
is an adoption decree showing that the adoption took place before the 
child reached 16 years of age, and evidence that the child has been 
residing with and in the legal custody of the abusive adoptive parent 
for at least 2 years.
    (iii) Residence. One or more documents may be submitted showing that 
the self-petitioner and the abuser have resided together in the United 
States. One or more documents may also be 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

[[Page 85]]

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) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial and 
of the right to appeal the decision.
    (4) Derivative beneficiaries. A child of a self-petitioning child is 
not eligible for derivative classification and must have a petition 
filed on his or her behalf if seeking immigrant classification.
    (5) Name change. If the self-petitioner's current name is different 
than the name shown on the documents, evidence of the name change (such 
as the petitioner's marriage certificate, legal document showing the 
name change, or other similar evidence) must accompany the self-
petition.
    (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.

[[Page 86]]

    (ii) Primary evidence if petitioner is a legitimated son or 
daughter. A child can be legitimated through the marriage of his or her 
natural parents, by the laws of the country or state of the child's 
residence or domicile, or by the laws of the country or state of the 
father's residence or domicile. If the legitimation is based on the 
natural parent's marriage, such marriage must have taken place while the 
child was under the age of eighteen. If the legitimation is based on the 
laws of the country or state of the child's residence or domicile, the 
law must have taken effect before the child's eighteenth birthday. If 
the legitimation is based on the laws of the country or state of the 
father's residence or domicile, the father must have resided--while the 
child was under eighteen years of age--in the country or state under 
whose laws the child has been legitimated. Primary evidence of the 
relationship should consist of petitioner's birth certificate and the 
parents' marriage certificate or other evidence of legitimation issued 
by civil authorities.
    (iii) Primary evidence if the petitioner is an illegitimate son or 
daughter. If a petition is submitted on behalf of the mother, the 
petitioner's birth certificate, issued by civil authorities and showing 
the mother's name, must accompany the petition. If the mother's name on 
the birth certificate is different from her name as reflected in the 
petition, evidence of the name change must also be submitted. If the 
petition is submitted on behalf of the purported father of the 
petitioner, the petitioner must show that the beneficiary is his or her 
natural father and 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

[[Page 87]]

shall be deemed to mark the commencement of legal custody. An informal 
custodial or guardianship document, such as a sworn affidavit signed 
before a notary public, is insufficient for this purpose.
    (B) Evidence must also be submitted to show that the beneficiary 
resided with the petitioner for at least two years. Generally, such 
documentation must establish that the petitioner and the beneficiary 
resided together in a parental relationship. The evidence must clearly 
indicate the physical living arrangements of the adopted child, the 
adoptive parent(s), and the natural parent(s) for the period of time 
during which the adoptive parent claims to have met the residence 
requirement.
    (C) Legal custody and residence occurring prior to or after the 
adoption will satisfy both requirements. Legal custody, like residence, 
is accounted for in the aggregate. Therefore, a break in legal custody 
or residence will not affect the time already fulfilled. To meet the 
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of 
the Act, the child must have been under 16 years of age when the 
adoption is finalized.
    (v) Name change. When the petition is filed by a child for the 
child's parent, and the parent's name is not on the child's birth 
certificate, evidence of the name change (such as the parent's marriage 
certificate, a legal document showing the parent's name change, or other 
similar evidence) must accompany the petition. If the petitioner's name 
has been legally changed, evidence of the name change must also 
accompany the petition.
    (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

[[Page 88]]

child has been legitimated. Primary evidence of the relationship should 
consist of the petitioner's birth certificate, the beneficiary's birth 
certificate, and the parents' marriage certificate or other evidence of 
legitimation issued by civil authorities.
    (iii) Primary evidence if either sibling is illegitimate. If one or 
both of the siblings is (are) the illegitimate child(ren) of a common 
father, the petitioner must show that they are the natural children of 
the father and that a bona fide parent-child relationship was 
established when the illegitimate child(ren) was (were) unmarried and 
under twenty-one years of age. Such a relationship will be deemed to 
exist or to have existed where the father demonstrates or has 
demonstrated an active concern for the child's support, instruction, and 
general welfare. Primary evidence is the petitioner's and beneficiary's 
birth certificates, issued by civil authorities and showing the father's 
name, and evidence that the siblings have or had a bona fide parent/
child relationship with the natural father. If the father's name has 
been legally changed, evidence of the name change must accompany the 
petition. Evidence of a parent/child relationship should establish more 
than merely a biological relationship. Emotional and/or financial ties 
or a genuine concern and interest by the father for the child's support, 
instruction, and general welfare must be shown. There should be evidence 
that the father and child actually lived together or that the father 
held the child out as being his own, that he provided for some or 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

[[Page 89]]

petition has been approved, and subsequently a new petition by the same 
petitioner is approved for the same preference classification on behalf 
of the same beneficiary, the latter approval shall be regarded as a 
reaffirmation or reinstatement of the validity of the original petition, 
except when the original petition has been terminated pursuant to 
section 203(g) of the Act or revoked pursuant to part 205 of this 
chapter, or when an immigrant visa has been issued to the beneficiary as 
a result of the petition approval. A self-petition filed under section 
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) 
of the Act based on the relationship to an abusive citizen or lawful 
permanent resident of the United States will not be regarded as a 
reaffirmation or reinstatement of a petition previously filed by the 
abuser. A self-petitioner who has been the beneficiary of a visa 
petition filed by the abuser to accord the self-petitioner immigrant 
classification as his or her spouse or child, however, will be allowed 
to transfer the visa petition's priority date to the self-petition. The 
visa petition's priority date may be assigned to the self-petition 
without regard to the current validity of the visa petition. The burden 
of proof to establish the existence of and the filing date of the visa 
petition lies with the self-petitioner, although the Service will 
attempt to verify a claimed filing through a search of the Service's 
computerized records or other records deemed appropriate by the 
adjudicating officer. A new self-petition filed under section 
204(a)(1)(A)(iii), 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.
    (iv) A currently valid visa petition previously approved to classify 
the beneficiary as an immediate relative as the spouse of a United 
States citizen must be regarded, upon the death of the petitioner, as 
having been approved as a Form I-360, Petition for Amerasian, Widow(er) 
or Special Immigrant for classification under paragraph (b) of this 
section, if, on the date of the petitioner's death, the beneficiary 
satisfies the requirements of paragraph (b)(1) of this section. If the 
petitioner dies before the petition is approved, but, on the date of the 
petitioner's death, the beneficiary satisfies the requirements of 
paragraph (b)(1) of this section, then the petition shall be adjudicated 
as if it had been filed as a Form I-360, Petition for Amerasian,

[[Page 90]]

Widow(er) or Special Immigrant under paragraph (b) of this section.
    (2) By the beneficiary's attainment of the age of twenty-one years. 
A currently valid petition classifying the child of a United States 
citizen as an immediate relative under section 201(b) of the Act shall 
be regarded as having been approved for preference status under section 
203(a)(1) of the Act as of the beneficiary's twenty-first birthday. The 
beneficiary's priority date is the same as the date the petition for 
section 201(b) classification was filed.
    (3) By the petitioner's naturalization. Effective upon the date of 
naturalization of a petitioner who had been lawfully admitted for 
permanent residence, a currently valid petition according preference 
status under section 203(a)(2) of the Act to the petitioner's spouse and 
unmarried children under twenty-one years of age shall be regarded as 
having been approved for immediate relative status under section 201(b) 
of the Act. Similarly, a currently valid petition according preference 
status under section 203(a)(2) of the Act for the unmarried son or 
daughter over twenty-one years of age shall be regarded as having been 
approved under section 203(a)(1) of the Act. In any case of conversion 
to classification under section 203(a)(1) of the Act, the beneficiary's 
priority date is the same as the date the petition for classification 
under section 203(a)(2) of the Act was properly filed. A self-petition 
filed under section 204(a)(1)(B)(ii) or 204(a)(1)(B)(iii) of the Act 
based on the relationship to an abusive lawful permanent resident of the 
United States for classification under section 203(a)(2) of the Act will 
not be affected by the abuser's naturalization and will not be 
automatically converted to a petition for immediate relative 
classification.

[57 FR 41057, Sept. 9, 1992, as amended at 60 FR 34090, June 30, 1995; 
60 FR 38948, July 31, 1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62 
FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13, 1997; 71 FR 35749, June 
21, 2006; 72 FR 19107, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007]



Sec. 204.3  Orphan cases under section 101(b)(1)(F) of the Act 
(non-Convention cases).

    (a) This section addresses the immigration classification of alien 
orphans as provided for in section 101(b)(1)(F) of the Act.
    (1) Except as provided in paragraph (a)(2) of this section, 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 
U.S. citizen if:
    (i) The U.S. citizen seeking the child's immigration can document 
that the citizen (and his or her spouse, if any) are capable of 
providing, and will provide, proper care for an alien orphan; and
    (ii) The child is an orphan under section 101(b)(1)(F) of the Act.


A U.S. citizen may submit the documentation necessary for each of these 
determinations separately or at one time, depending on when the orphan 
is identified.
    (2) Form I-600A or Form I-600 may not be filed under this section on 
or after the Convention effective date, as defined in 8 CFR 204.301, on 
behalf of a child who is habitually resident in a Convention country, as 
defined in 8 CFR 204.301. On or after the Convention effective date, 
USCIS may approve a Form I-600 on behalf of a child who is habitually 
resident in a Convention country only if the Form I-600A or Form I-600 
was filed before the Convention effective date.
    (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

[[Page 91]]

abandonment unless the third party (such as a governmental agency, a 
court of competent jurisdiction, an adoption agency, or an orphanage) is 
authorized under the child welfare laws of the foreign-sending country 
to act in such a capacity. A child who is placed temporarily in an 
orphanage shall not be considered to be abandoned if the parents express 
an intention to retrieve the child, are contributing or attempting to 
contribute to the support of the child, or otherwise exhibit ongoing 
parental interest in the child. A child who has been given 
unconditionally to an orphanage shall be considered to be abandoned.
    Adult member of the prospective adoptive parents' household means an 
individual, other than a prospective adoptive parent, over the age of 18 
whose principal or only residence is the home of the prospective 
adoptive parents. This definition excludes any child of the prospective 
adoptive parents, whose principal or only residence is the home of the 
prospective adoptive parents, who reaches his or her eighteenth birthday 
after the prospective adoptive parents have filed the advanced 
processing application (or the advanced processing application 
concurrently with the orphan petition) unless the director has an 
articulable and substantive reason for requiring an evaluation by a home 
study preparer and/or fingerprint check.
    Advanced processing application means Form I-600A (Application for 
Advanced Processing of Orphan Petition) completed in accordance with the 
form's instructions and submitted with the required supporting 
documentation and the fee as required in 8 CFR 103.7(b)(1). The 
application must be signed in accordance with the form's instructions by 
the married petitioner and spouse, or by the unmarried petitioner.
    Application is synonymous with advanced processing application.
    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

[[Page 92]]

basic needs, consistent with the local standards of the foreign sending 
country.
    Loss from both parents means the involuntary severance or detachment 
of the child from the parents in a permanent manner such as that caused 
by a natural disaster, civil unrest, or other calamitous event beyond 
the control of the parents, as verified by a competent authority in 
accordance with the laws of the foreign sending country.
    Orphan petition means Form I-600 (Petition to Classify Orphan as an 
Immediate Relative). The petition must be completed in accordance with 
the form's instructions and submitted with the required supporting 
documentation and, if there is not an advanced processing application 
approved within the previous 18 months or pending, the fee as required 
in 8 CFR 103.7(b)(1). The petition must be signed in accordance with the 
form's instructions by the married petitioner and spouse, or the 
unmarried petitioner.
    Overseas site means the Department of State immigrant visa-issuing 
post having jurisdiction over the orphan's residence, or in foreign 
countries in which the Services has an office or offices, the Service 
office having jurisdiction over the orphan's residence.
    Petition is synonymous with orphan petition.
    Petitioner means a married United States citizen of any age, or an 
unmarried United States citizen who is at least 24 years old at the time 
he or she files the advanced processing application and at least 25 
years old at the time he or she files the orphan petition. In the case 
of a married couple, both of whom are United States citizens, either 
party may be the petitioner.
    Prospective adoptive parents means a married United States citizen 
of any age and his or her spouse of any age, or an unmarried United 
States citizen who is at least 24 years old at the time he or she files 
the advanced processing 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

[[Page 93]]

the spouse's United States citizenship or lawful immigration status;
    (ii) A copy of the petitioner's marriage certificate to his or her 
spouse, if the petitioner is currently married;
    (iii) Evidence of legal termination of all previous marriages for 
the petitioner and/or spouse, if previously married; and
    (iv) Evidence of compliance with preadoption requirements, if any, 
of the State of the orphan's proposed residence in cases where it is 
known that there will be no adoption abroad, or that both members of the 
married prospective adoptive couple or the unmarried prospective 
adoptive parent will not personally see the child prior to, or during, 
the adoption abroad, and/or that the adoption abroad will not be full 
and final. Any preadoption requirements which cannot be met at the time 
the advanced processing application is filed because of operation of 
State law must be noted and explained when the application is filed. 
Preadoption requirements must be met at the time the petition is filed, 
except for those which cannot be met until the orphan arrives in the 
United States.
    (2) Home study. The home study must comply with the requirements 
contained in paragraph (e) of this section. If the home study is not 
submitted when the advanced processing application is filed, it must be 
submitted within one year of the filing date of the advanced processing 
application, or the application will be denied pursuant to paragraph 
(h)(5) of this section.
    (3) After receipt of a properly filed advanced processing 
application, the Service will fingerprint each member of the married 
prospective adoptive couple or the unmarried prospective adoptive 
parent, as prescribed in Sec. 103.2(e) of this chapter. The Service 
will also fingerprint each additional adult member of the prospective 
adoptive parents' household, as prescribed in Sec. 103.2(e) of this 
chapter. The Service may waive the requirement that each additional 
adult member of the prospective adoptive parents' household be 
fingerprinted when it determines that such adult is physically unable to 
be fingerprinted because of age or medical condition.
    (d) Supporting documentation for a petition for an identified 
orphan. Any document not in the English language must be accompanied by 
a certified English translation. If an orphan has been identified for 
adoption and the advanced processing application is pending, the 
prospective adoptive parents may file the orphan petition at the Service 
office where the application is pending. The prospective adoptive 
parents who have an approved advanced processing application must file 
an orphan petition and all supporting documents within eighteen months 
of the date of the approval of the advanced processing application. If 
the prospective adoptive parents fail to file the orphan petition within 
the eighteen-month period, the advanced processing application shall be 
deemed abandoned pursuant to paragraph (h)(7) of this section. If the 
prospective adoptive parents file the orphan petition after the 
eighteen-month period, the petition shall be denied pursuant to 
paragraph (h)(13) of this section. Prospective adoptive parents who do 
not have an advanced processing application approved or pending may file 
the application and petition concurrently on one Form I-600 if they have 
identified an orphan for adoption. An orphan petition must be 
accompanied by full documentation as follows:
    (1) Filing an orphan petition after the advanced processing 
application has been approved. The following supporting documentation 
must accompany an orphan petition filed after approval of the advanced 
processing application:
    (i) Evidence of approval of the advanced processing application;
    (ii) The orphan's birth certificate, or if such a certificate is not 
available, an explanation together with other proof of identity and age;
    (iii) Evidence that the child is an orphan as appropriate to the 
case:
    (A) Evidence that the orphan has been abandoned or deserted by, 
separated or lost from both parents, or that both parents have 
disappeared as those terms are defined in paragraph (b) of this section; 
or
    (B) The death certificate(s) of the orphan's parent(s), if 
applicable;

[[Page 94]]

    (C) If the orphan has only a sole or surviving parent, as defined in 
paragraph (b) of this section, evidence of this fact and evidence that 
the sole or surviving parent is incapable of providing for the orphan's 
care and has irrevocably released the orphan for emigration and 
adoption; and
    (iv) Evidence of adoption abroad or that the prospective adoptive 
parents have, or a person or entity working on their behalf has, custody 
of the orphan for emigration and adoption in accordance with the laws of 
the foreign-sending country:
    (A) A legible, certified copy of the adoption decree, if the orphan 
has been the subject of a full and final adoption abroad, and evidence 
that the unmarried petitioner, or married petitioner and spouse, saw the 
orphan prior to or during the adoption proceeding abroad; or
    (B) If the orphan is to be adopted in the United States because 
there was no adoption abroad, or the unmarried petitioner, or married 
petitioner and spouse, did not personally see the orphan prior to or 
during the adoption proceeding abroad, and/or the adoption abroad was 
not full and final:
    (1) Evidence that the prospective adoptive parents have, or a person 
or entity working on their behalf has, secured custody of the orphan in 
accordance with the laws of the foreign-sending country;
    (2) An irrevocable release of the orphan for emigration and adoption 
from the person, organization, or competent authority which had the 
immediately previous legal custody or control over the orphan if the 
adoption was not full and final under the laws of the foreign-sending 
country;
    (3) Evidence of compliance with all preadoption requirements, if 
any, of the State of the orphan's proposed residence. (Any such 
requirements that cannot be complied with prior to the orphan's arrival 
in the United States because of State law must be noted and explained); 
and
    (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

[[Page 95]]

should be tailored to the particular situation of the prospective 
adoptive parents: for example, a family which previously has adopted 
children will require different preparation than a family that has no 
adopted children. If there are any additional adult members of the 
prospective adoptive parents' household, the home study must address 
this fact. The home study preparer must interview any additional adult 
member of the prospective adoptive parents' household and assess him or 
her in light of the requirements of paragraphs (e)(1), (e)(2)(i), (iii), 
(iv), and (v) of this section. A home study must be conducted by a home 
study preparer, as defined in paragraph (b) of this section. The home 
study, or the most recent update to the home study, must not be more 
than six months old at the time the home study is submitted to the 
Service. Only one copy of the home study must be submitted to the 
Service. Ordinarily, a home study (or a home study and update as 
discussed above) will not have to be updated after it has been submitted 
to the Service unless there is a significant change in the household of 
the prospective adoptive parents such as a change in residence, marital 
status, criminal history, financial resources, and/or the addition of 
one or more children or other dependents to the family prior to the 
orphan's immigration into the United States. In addition to meeting any 
State, professional, or agency requirements, a home study must include 
the following:
    (1) Personal interview(s) and home visit(s). The home study preparer 
must conduct at least one interview in person, and at least one home 
visit, with the prospective adoptive couple or the unmarried prospective 
adoptive parent. Each additional adult member of the prospective 
adoptive parents' household must also be interviewed in person at least 
once. The home study report must state the number of such interviews and 
visits, and must specify any other contacts with the prospective 
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

[[Page 96]]

a detailed financial statement or supporting financial documents. 
However, should the need arise, the Service reserves the right to ask 
for such detailed documentation.
    (iii) History of abuse and/or violence--(A) Screening for abuse and 
violence--1) Checking available child abuse registries. The home study 
preparer must ensure that a check of each prospective adoptive parent 
and each adult member of the prospective adoptive parents' household has 
been made with available child abuse registries and must include in the 
home study the results of the checks including, if applicable, a report 
that no record was found to exist. Depending on the access allowed by 
the state of proposed residence of the orphan, the home study preparer 
must take one of the following courses of action:
    (i) If the home study preparer is allowed access to information from 
the child abuse registries, he or she shall make the appropriate checks 
for each of the prospective adoptive parents and for each adult member 
of the prospective adoptive parents' household;
    (ii) If the State requires the home study preparer to secure 
permission from each of the prospective adoptive parents and for each 
adult member of the prospective adoptive parents' household before 
gaining access to information in such registries, the home study 
preparer must secure such permission from those individuals, and make 
the appropriate checks;
    (iii) If the State will only release information directly to each of 
the prospective adoptive parents and directly to the adult member of the 
prospective adoptive parents' household, those individuals must secure 
such information and provide it to the home study preparer. The home 
study preparer must include the results of these checks in the home 
study;
    (iv) If the State will not release information to either the home 
study preparer or the prospective adoptive parents and the adult members 
of the prospective adoptive parents' household, 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

[[Page 97]]

home study. Evidence of rehabilitation may include an evaluation of the 
seriousness of the arrest(s), conviction(s), or history of abuse, the 
number of such incidents, the length of time since the last incident, 
and any type of counseling or rehabilitation programs which have been 
successfully completed. Evidence of rehabilitation may also be provided 
by an appropriate licensed professional, such as a psychiatrist, 
clinical psychologist, or clinical social worker. The home study report 
must include all facts and circumstances which the home study preparer 
has considered, as well as the preparer's reasons for a favorable 
decision regarding the prospective adoptive parent. Additionally, if any 
adult member of the prospective adoptive parents' household has a 
history of substance abuse, sexual or child abuse, and/or domestic 
violence, the home study preparer must apply the requirements of this 
paragraph to that adult member of the prospective adoptive parents' 
household.
    (D) Failure to disclose or cooperate. Failure to disclose an arrest, 
conviction, or history of substance abuse, sexual or child abuse, and/or 
domestic violence by the prospective adoptive parents or an adult member 
of the prospective adoptive parents' household to the home study 
preparer and to the Service, may result in the denial of the advanced 
processing application or, if applicable, the application and orphan 
petition, pursuant to paragraph (h)(4) of this section. Failure by the 
prospective adoptive parents or an adult member of the prospective 
adoptive parents' household to cooperate in having available child abuse 
registries in accordance with paragraphs (e)(2)(iii)(A)(1) and 
(e)(2)(iii)(A)(1)(i) through (e)(2)(iii)(A)(1)(iii) of this section will 
result in the denial of the advanced processing application or, if 
applicable, the application and orphan petition, pursuant to paragraph 
(h)(4) of this section.
    (iv) Previous rejection for adoption or prior unfavorable home 
study. The home 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

[[Page 98]]

residing abroad at the time of the home study, the home study must 
include a description of the living accommodations where the child will 
reside in the United States with the prospective adoptive parents, if 
known. Each description must include an assessment of the suitability of 
accommodations for a child and a determination whether such space meets 
applicable State requirements, if any.
    (4) Handicapped or special needs orphan. A home study conducted in 
conjunction with the proposed adoption of a special needs or handicapped 
orphan must contain a discussion of the prospective adoptive parents' 
preparation, willingness, and ability to provide proper care for such an 
orphan.
    (5) Summary of the counseling given and plans for post-placement 
counseling. The home study must include a summary of the counseling 
given to prepare the prospective adoptive parents for an international 
adoption and any plans for post-placement counseling. Such preadoption 
counseling must include a discussion of the processing, expenses, 
difficulties, and delays associated with international adoptions.
    (6) Specific approval of the prospective adoptive parents for 
adoption. If the home study preparer's findings are favorable, the home 
study must contain his or her specific approval of the prospective 
adoptive parents for adoption and a discussion of the reasons for such 
approval. The home study must include the number of orphans which the 
prospective adoptive parents may adopt. The home study must state 
whether there are any specific restrictions to the adoption such as 
nationality, age, or gender of the orphan. If the home study preparer 
has approved the prospective parents for a handicapped or special needs 
adoption, this fact must be clearly stated.
    (7) Home study preparer's certification and statement of authority 
to conduct home studies. The home study must include a statement in 
which the home study preparer certifies that he or she is licensed or 
otherwise authorized by 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

[[Page 99]]

complied with in the case of an orphan coming to the United States to be 
adopted.
    (10) ``Grandfather'' provision for home study. A home study properly 
completed in conformance with the regulations in force prior to 
September 30, 1994, shall be considered acceptable if submitted to the 
Service within 90 days of September 30, 1994. Any such home study 
accepted under this ``grandfather'' provision must include screening in 
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section. 
Additionally, any such home study submitted under this ``grandfather'' 
provision which is more than six months old at the time of its 
submission must be amended or updated pursuant to the requirements of 
paragraph (e)(9) of this section.
    (f) State preadoption requirements--(1) General. Many States have 
preadoption requirements which, under the Act, must be complied with in 
every case in which a child is coming to such a State as an orphan to be 
adopted in the United States.
    (2) Child coming to be adopted in the United States. An orphan is 
coming to be adopted in the United States if he or she will not be or 
has not been adopted abroad, or if the unmarried petitioner or both the 
married petitioner and spouse did not or will not personally see the 
orphan prior to or during the adoption proceeding abroad, and/or if the 
adoption abroad will not be, or was not, full and final. If the 
prospective adoptive parents reside in a State with preadoption 
requirements and they plan to have the child come to the United States 
for adoption, they must submit evidence of compliance with the State's 
preadoption requirements to the Service. Any preadoption requirements 
which by operation of State law cannot be met before filing the advanced 
processing application must be noted. Such requirements must be met 
prior to filing the petition, except for those which cannot be met by 
operation of State law until the orphan is physically in the United 
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.

[[Page 100]]

    (2) Where to file an orphan petition when the advanced processing 
application has been approved. An orphan petition must be filed with the 
appropriate Service office or immigrant visa-issuing post of the 
Department of State as follows:
    (i) Prospective adoptive parents residing in the United States who 
do not travel abroad to locate and/or adopt an orphan. If the 
prospective adoptive parents reside in the United States and do not 
travel abroad to locate and/or adopt an orphan, the petition must be 
filed with the Service office having jurisdiction over the place of 
residence of the prospective adoptive parents.
    (ii) Prospective adoptive parents residing in the United States, 
with one or both members of the prospective adoptive couple, or the 
unmarried prospective adoptive parent, traveling abroad to locate and/or 
adopt an orphan. If the prospective adoptive parents reside in the 
United States, and one or both members of the prospective adoptive 
couple, or the unmarried prospective adoptive parent, travel abroad to 
locate and/or adopt an orphan, the petition may be filed with the 
stateside Service office having jurisdiction over the place of residence 
of the prospective adoptive parents in the United States or at the 
overseas site. The petitioner may file the orphan petition at the 
overseas site only while he or she is physically present within the 
jurisdiction of the overseas site. If only one member of a married 
couple, which includes an alien, travels abroad to file the petition, it 
must be the United States citizen who travels abroad so that the 
overseas site will have jurisdiction over the petition.
    (iii) Prospective adoptive parents residing outside the United 
States. Prospective adoptive parents residing outside of the United 
States may file the petition with the overseas site, or with the 
stateside Service office having jurisdiction over the proposed place of 
residence of the prospective adoptive parents in the United States.
    (3) Where to file an orphan petition when the advanced processing 
application 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. (i) 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 18 months from its approval 
date, unless the approval period is extended as provided in paragraph 
(h)(3)(ii) of this section. During this time, the prospective adoptive 
parents may file an orphan petition for one orphan without fee. If 
approved in

[[Page 101]]

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.
    (ii) If the BCIS Director, or an officer designated by the BCIS 
Director, determines that the ability of a prospective adoptive parent 
to timely file a Form I-600 has been adversely affected by the outbreak 
of Severe Acute Respiratory Syndrome (SARS) in a foreign country, such 
Director or designated officer may extend the validity period of the 
approval of the Form I-600A, either in an individual case or for a class 
of cases. An extension of the validity of the Form I-600A may be subject 
to such conditions as the BCIS Director, or officer designated by the 
BCIS Director may establish.
    (4) Advanced processing application denied for failure to disclose 
history of abuse and/or violence, or for failure to disclose a criminal 
history, or for failure to cooperate in checking child abuse registries. 
Failure to disclose an arrest, conviction, or history of substance 
abuse, sexual or child abuse, and/or domestic violence, or a criminal 
history to the home study preparer and to the Service in accordance with 
paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of this section may 
result in the denial of the advanced processing application, or if 
applicable, the application and orphan petition filed concurrently. 
Failure by the prospective adoptive parents or an adult member of the 
prospective adoptive parents' household to cooperate in having available 
child abuse registries checked in accordance with paragraphs 
(e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) through 
(e)(2)(iii)(A)(1)(iii) of this section will result in the denial of the 
advanced processing application or, if applicable, the application and 
orphan petition filed concurrently. Any new application and/or petition 
filed within a year of such denial will also be denied.
    (5) Advanced processing denied for failure to submit home study. If 
the home study is not submitted within one year of the filing date of 
the advanced processing application, the application shall be denied. 
This action shall be without prejudice to a new filing at any time with 
fee.
    (6) Advanced processing application otherwise denied. If the 
director finds that the prospective adoptive parents have otherwise 
failed to establish eligibility, the applicable provisions of 8 CFR part 
103 regarding a letter of intent to deny, if appropriate, and denial 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.

[[Page 102]]

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

[[Page 103]]

the director shall send telegraphic notification of the approval to the 
immigrant visa-issuing post.
    (k) Other considerations--(1) I-604 investigations. An I-604 
investigation must be completed in every orphan case. The investigation 
must be completed by a consular officer except when the petition is 
properly filed at a Service office overseas, in which case it must be 
completed by a Service officer. An I-604 investigation shall be 
completed before a petition is adjudicated abroad. When a petition is 
adjudicated by a stateside Service office, the I-604 investigation is 
normally completed after the case has been forwarded to visa-issuing 
post abroad. However, in a case where the director of a stateside 
Service office adjudicating the petition has articulable concerns that 
can only be resolved through the I-604 investigation, he or she shall 
request the investigation prior to adjudication. In any case in which 
there are significant differences between the facts presented in the 
approved advanced processing application and/or orphan petition and the 
facts uncovered by the I-604 investigation, the overseas site may 
consult directly with the appropriate Service office. In any instance 
where an I-604 investigation reveals negative information sufficient to 
sustain a denial or revocation, the investigation report, supporting 
documentation, and petition shall be forwarded to the appropriate 
Service office for action. Depending on the circumstances surrounding 
the case, the I-604 investigation shall include, but shall not 
necessarily be limited to, document checks, telephonic checks, 
interview(s) with the natural parent(s), and/or a field investigation.
    (2) Authority of consular officers. An American consular officer is 
authorized to approve an orphan petition if the Service has made a 
favorable determination on the related advanced processing application, 
and the petitioner, who has traveled abroad to a country with no Service 
office in order to locate or adopt an orphan, has properly filed the 
petition, and the petition is approvable. A consular officer, however, 
shall refer any petition which is ``not clearly approvable'' for a 
decision by the Service office having jurisdiction pursuant to Sec. 
100.4(b) of this chapter. The consular officer's adjudication includes 
all aspects of eligibility for classification as an orphan under section 
101(b)(1)(F) of the Act other than the issue of the ability of the 
prospective adoptive parents to furnish proper care to the orphan. 
However, if the consular officer has a well-founded and substantive 
reason to believe that the advanced processing approval was obtained on 
the basis of fraud or misrepresentation, or has knowledge of a change in 
material fact subsequent to the approval of the advanced processing 
application, he or she shall consult with the Service office having 
jurisdiction pursuant to Sec. 100.4(b) of this chapter.
    (3) Child in the United States. A child who is in parole status and 
who has not been adopted in the United States is eligible for the 
benefits of an orphan petition when all the requirements of sections 
101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in 
the United States either illegally or as a nonimmigrant, however, is 
ineligible for the benefits of an orphan petition.
    (4) Liaison. Each director shall develop and maintain liaison with 
State Government adoption authorities having jurisdiction within his or 
her jurisdiction, including the administrator(s) of the Interstate 
Compact on the Placement of Children, and with other parties with 
interest in international adoptions. Such parties include, but are not 
necessarily limited to, adoption agencies, organizations representing 
adoption agencies, organizations representing adoptive parents, and 
adoption attorneys.

[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994, as amended at 63 
FR 12986, Mar. 17, 1998; 68 FR 46926, Aug. 7, 2003; 72 FR 56853, Oct. 4, 
2007]



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

[[Page 104]]

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

[[Page 105]]

for the child's immediate care until the sponsor receives custody. 
Interim costs are the responsibility of the sponsor. The mother or legal 
guardian must show an understanding of the effects of the release and 
state before signing the release whether any money was paid or any 
coercion was used. The signature of the mother or legal guardian must be 
authenticated by the local registrar, the court of minors, or a United 
States immigration or consular officer. The release must include the 
mother's or legal guardian's full name, date and place of birth, and 
current or permanent address.
    (ii) Final processing. (A) If the director notifies the petitioner 
that all preliminary processing has been completed in a satisfactory 
manner, the petitioner must then submit Form I-361, Affidavit of 
Financial Support and Intent to Petition for Legal Custody for Public 
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with 
the documentary evidence of the sponsor's financial ability required by 
that form. If the beneficiary is under eighteen years of age, the 
sponsor must agree to petition the court having jurisdiction, within 
thirty days of the beneficiary's arrival in the United States, for legal 
custody under the laws of the state where the beneficiary will reside 
until the beneficiary is eighteen years of age. The term ``legal 
custody'' as used in this section means the assumption of responsibility 
for a minor by an adult under the laws of the state in a court of law. 
The sponsor must be a United States citizen or lawful permanent resident 
who is twenty-one years of age or older and who is of good moral 
character.
    (B) Other documents necessary to support the petition are:
    (1) Evidence of the age of the beneficiary's sponsor;
    (2) Evidence of United States citizenship or lawful permanent 
residence of the sponsor as provided in Sec. 204.1(f); and
    (C) If the beneficiary is under eighteen years of age, evidence that 
a public, private, or state agency licensed in the United States to 
place children and actively involved, with recent experience, in the 
intercountry placement of children has arranged the beneficiary's 
placement in the United States. Evidence must also be provided that the 
sponsor with whom the beneficiary is being placed is able to accept the 
beneficiary for care in the sponsor's home under the laws of the state 
of the beneficiary's intended residence. The evidence must demonstrate 
the agency's capability, including financial capability, to arrange the 
placement as described in paragraph (f)(1) of this section, either 
directly or through cooperative agreement with other suitable 
provider(s) of service.
    (iii) Arrangements for placement of beneficiary under eighteen years 
of age. (A) If the beneficiary is under eighteen 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,

[[Page 106]]

including a health evaluation, of the beneficiary;
    (2) Describing the agency's orientation of both the sponsor and the 
beneficiary on the legal and cultural aspects of the placement;
    (3) Describing the initial facilitation of the placement through 
introduction, translation, and similar services; and
    (4) Describing the contingency plans to place the beneficiary in 
another suitable home if the initial placement fails. The new sponsor 
must execute and submit a Form I-361 to the Service office having 
jurisdiction over the beneficiary's residence in the United States. The 
original sponsor nonetheless retains financial responsibility for the 
beneficiary under the terms of the guarantee of financial support and 
intent to petition for legal custody which that sponsor executed, unless 
that responsibility is assumed by a new sponsor. In the event that the 
new sponsor does not comply with the terms of the new guarantee of 
financial support and intent to petition for legal custody and if, for 
any reason, that guarantee is not enforced, the original sponsor again 
becomes financially responsible for the beneficiary.
    (2) One-stage processing of petition. If the petitioner chooses to 
have the petition processed under the one-stage processing procedure 
described in paragraph (e) of this section, the petitioner must submit 
all evidence required by paragraph (f)(1) of this section.
    (g) Decision--(1) General. The director shall notify the petitioner 
of the decision and, if the petition is denied, of the reasons for the 
denial. If the petition is denied, the petitioner may appeal the 
decision under part 103 of this chapter.
    (2) Denial upon completion of preliminary processing. The director 
may deny the petition upon completion of the preliminary processing 
under paragraph (d) of this section for:
    (i) Failure to establish that there is reason to believe the alien 
was fathered by a United States citizen; or
    (ii) Failure to meet the sponsorship requirements if the 
fingerprints of the sponsor, required in paragraph (f)(1) of this 
section, were submitted during the preliminary processing and the 
completed background check of the sponsor discloses adverse information 
resulting in a finding that the sponsor is not of good moral character.
    (3) Denial upon completion of final processing. The director may 
deny the petition upon completion of final processing if it is 
determined that the sponsorship requirements, or one or more of the 
other applicable requirements, have not been met.
    (4) Denial upon completion of one-stage processing. The director may 
deny the petition upon completion of all processing if any of the 
applicable requirements in a case being processed under the one-stage 
processing described in 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)

[[Page 107]]

having legal custody of the beneficiary, or a legal guardian acting on 
the alien's behalf, may file Form I-363.

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



Sec. 204.5  Petitions for employment-based immigrants.

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

[[Page 108]]

203(b)(2) or within the appropriate classification under section 
203(b)(3), respectively, of the Act as in effect on or after October 1, 
1991, provided that the alien applies for an immigrant visa or 
adjustment of status within the two years following notification that an 
immigrant visa is immediately available for his or her use.
    (g) Initial evidence--(1) General. Specific requirements for initial 
supporting documents for the various employment-based immigrant 
classifications are set forth in this section. In general, ordinary 
legible photocopies of such documents (except for labor certifications 
from the Department of Labor) will be acceptable for initial filing and 
approval. However, at the discretion of the director, original documents 
may be required in individual cases. Evidence relating to qualifying 
experience or training shall be in the form of letter(s) from current or 
former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties 
performed by the alien or of the training received. If such evidence is 
unavailable, other documentation relating to the alien's experience or 
training will be considered.
    (2) Ability of prospective employer to pay wage. Any petition filed 
by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United 
States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date 
is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited 
financial statements. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a 
statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In 
appropriate cases, additional evidence, such as profit/loss statements, 
bank account records, or personnel records, may be submitted by the 
petitioner or requested by the Service.
    (h) Aliens with extraordinary ability. (1) An alien, or any person 
on behalf of the alien, may file an I-140 visa petition for 
classification under section 203(b)(1)(A) of the Act as an alien of 
extraordinary ability in the sciences, arts, education, business, or 
athletics.
    (2) Definition. As used in this section:
    Extraordinary ability means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very 
top of the field of endeavor.
    (3) Initial evidence. A petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien 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;

[[Page 109]]

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

[[Page 110]]

the alien a permanent research position in the alien's academic field; 
or
    (C) A department, division, or institute of a private employer 
offering the alien a permanent research position in the alien's academic 
field. The department, division, or institute must demonstrate that it 
employs at least three persons full-time in research positions, and that 
it has achieved documented accomplishments in an academic field.
    (j) Certain multinational executives and managers. (1) A United 
States employer may file a petition on Form I-140 for classification of 
an alien under section 203(b)(1)(C) of the Act as a multinational 
executive or manager.
    (2) Definitions. As used in this section:
    Affiliate means:
    (A) One of two subsidiaries both of which are owned and controlled 
by the same parent or individual;
    (B) One of two legal entities owned and controlled by the same group 
of individuals, each individual owning and controlling approximately the 
same share or proportion of each entity; or
    (C) In the case of a partnership that is organized in the United 
States to provide accounting services, along with managerial and/or 
consulting services, and markets its accounting services under an 
internationally recognized name under an agreement with a worldwide 
coordinating organization that is owned and controlled by the member 
accounting firms, a partnership (or similar organization) that is 
organized outside the United States to provide accounting' services 
shall be considered to be an affiliate of the United States partnership 
if it markets its accounting services under the same internationally 
recognized name under the agreement with the worldwide coordinating 
organization of which the United States partnership is also a member.
    Doing business means the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (A) Directs the management of the organization or a major component 
or function of the organization;
    (B) Establishes the goals and policies of the organization, 
component, or function;
    (C) Exercises wide latitude in discretionary decisionmaking; and
    (D) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization.
    Managerial capacity means an assignment within an organization in 
which the employee primarily:
    (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

[[Page 111]]

executive or manager must be accompanied by a statement from an 
authorized official of the petitioning United States employer which 
demonstrates that:
    (A) If the alien is outside the United States, in the three years 
immediately preceding the filing of the petition the alien has been 
employed outside the United States for at least one year in a managerial 
or executive capacity by a firm or corporation, or other legal entity, 
or by an affiliate or subsidiary of such a firm or corporation or other 
legal entity; or
    (B) If the alien is already in the United States working for the 
same employer or a subsidiary or affiliate of the firm or corporation, 
or other legal entity by which the alien was employed overseas, in the 
three years preceding entry as a nonimmigrant, the alien was employed by 
the entity abroad for at least one year in a managerial or executive 
capacity;
    (C) The prospective employer in the United States is the same 
employer or a subsidiary or affiliate of the firm or corporation or 
other legal entity by which the alien was employed overseas; and
    (D) The prospective United States employer has been doing business 
for at least one year.
    (ii) Appropriate additional evidence. In appropriate cases, the 
director may request additional evidence.
    (4) Determining managerial or exectuve capacities--(i) Supervisors 
as managers. A first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties 
unless the employees supervised are professional.
    (ii) Staffing levels. If staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive 
capacity, the reasonable needs of the organization, component, or 
function, in light of the overall purpose and stage of development of 
the organization, component, or function, shall be taken into account. 
An individual shall not be considered to be acting in a managerial or 
executive capacity merely on the basis of the number of employees that 
the individual supervises or has supervised or directs or has directed.
    (5) Offer of employment. No labor certification is required for this 
classification; however, the prospective employer in the United States 
must furnish a job offer in the form of a statement which indicates that 
the alien is to be employed in the United States in a managerial or 
executive capacity. Such letter must clearly describe the duties to be 
performed by the alien.
    (k) Aliens who are members of the professions holding advanced 
degrees or aliens of exceptional ability. (1) Any United States employer 
may file a petition on Form I-140 for classification of an alien under 
section 203(b)(2) of the Act as an alien who is a member of the 
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.

[[Page 112]]

    (i) To show that the alien is a professional holding an advanced 
degree, the petition must be accompanied by:
    (A) An official academic record showing that the alien has a United 
States advanced degree or a foreign equivalent degree; or
    (B) An official academic record showing that the alien has a United 
States baccalaureate degree or a foreign equivalent degree, and evidence 
in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate 
experience in the specialty.
    (ii) To show that the alien is an alien of exceptional ability in 
the sciences, arts, or business, the petition must be accompanied by at 
least three of the following:
    (A) An official academic record showing that the alien has a degree, 
diploma, certificate, or similar award from a college, university, 
school, or other institution of learning relating to the area of 
exceptional ability;
    (B) Evidence in the form of letter(s) from current or former 
employer(s) showing that the alien has at least ten years of full-time 
experience in the occupation for which he or she is being sought;
    (C) A license to practice the profession or certification for a 
particular profession or occupation;
    (D) Evidence that the alien has commanded a salary, or other 
renumeration for services, which demonstrates exceptional ability;
    (E) Evidence of membership in professional associations; or
    (F) Evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, 
or professional or business organizations.
    (iii) If the above standards do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence 
to establish the beneficiary's eligibility.
    (4) Labor certification or evidence that alien qualifies for Labor 
Market Information Pilot Program--(i) General. Every petition under this 
classification must be accompanied by an individual labor certification 
from the Department of Labor, by an application for Schedule A 
designation (if applicable), or by documentation to establish that the 
alien qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is within the 
Labor Market Information Program, a fully executed uncertified Form ETA-
750 in duplicate must accompany the petition. The job offer portion of 
the individual labor certification, Schedule A application, or Pilot 
Program application must demonstrate that the job requires a 
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

[[Page 113]]

post-secondary education may be considered as training for the purposes 
of this provision.
    (3) Initial evidence--(i) Labor certification or evidence that alien 
qualifies for Labor Market Information Pilot Program. Every petition 
under this classification must be accompanied by an individual labor 
certification from the Department of Labor, by an application for 
Schedule A designation, or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is a shortage 
occupation with the Labor Market Pilot Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The 
job offer portion of an individual labor certification, Schedule A 
application, or Pilot Program application for a professional must 
demonstrate that the job requires the minimum of a baccalaureate degree.
    (ii) Other documentation--(A) General. Any requirements of training 
or experience for skilled workers, professionals, or other workers must 
be supported by letters from trainers or employers giving the name, 
address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien.
    (B) Skilled workers. If the petition is for a skilled worker, the 
petition must be accompanied by evidence that the alien meets the 
educational, training or experience, and any other requirements of the 
individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience.
    (C) Professionals. If the petition is for a professional, the 
petition must be accompanied by evidence that the alien holds a United 
States baccalaureate degree or a foreign equivalent degree and by 
evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or 
university record showing the date the baccalaureate degree was awarded 
and the area of concentration of study. To show that the alien is a 
member of the professions, the petitioner must submit evidence showing 
that the minimum of a baccalaureate degree is required for entry into 
the occupation.
    (D) Other workers. If the petition is for an unskilled (other) 
worker, it must be accompanied by evidence that the alien meets any 
educational, training and experience, and other requirements of the 
labor certification.
    (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,

[[Page 114]]

professional work, or other work continuously (either abroad or in the 
United States) for at least the two-year period immediately preceding 
the filing of the petition. Professional workers and other workers must 
obtain permanent resident status through immigration or adjustment of 
status on or before September 30, 1997, in order to immigrate under 
section 203(b)(4) of the Act as section 101(a)(27)(C) special immigrant 
religious workers.
    (2) Definitions. As used in this section:
    Bona fide nonprofit religious organization in the United States 
means an organization exempt from taxation as described in section 
501(c)(3) of the Internal Revenue Code of 1986 as it relates to 
religious organizations, or one that has never sought such exemption but 
establishes to the satisfaction of the Service that it would be eligible 
therefor if it had applied for tax exempt status.
    Bona fide organization which is affiliated with the religious 
denomination means an organization which is closely associated with the 
religious denomination and which is exempt from taxation as described in 
section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to 
religious organizations.
    Minister means an individual duly authorized by a recognized 
religious denomination to conduct religious worship and to perform other 
duties usually performed by authorized members of the clergy of that 
religion. In all cases, there must be a reasonable connection between 
the activities performed and the religious calling of the minister. The 
term does not include a lay preacher not authorized to perform such 
duties.
    Professional capacity means an activity in a religious vocation or 
occupation for which the minimum of a United States baccalaureate degree 
or a foreign equivalent degree is required.
    Religious denomination means a religious group or community of 
believers having some form of ecclesiastical government, a creed or 
statement of faith, some form of worship, a formal or informal code of 
doctrine and discipline, religious services and ceremonies, established 
places of religious worship, religious congregations, or comparable 
indicia of a bona fide religious denomination. For the purposes of this 
definition, an inter-denominational religious organization which is 
exempt from taxation pursuant to section 501(c)(3) of the Internal 
Revenue Code of 1986 will be treated as a religious denomination.
    Religious occupation means an activity which relates to a 
traditional religious function. Examples of individuals in religious 
occupations include, but are not limited to, liturgical workers, 
religious instructors, religious counselors, cantors, catechists, 
workers in 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

[[Page 115]]

years of experience in the religious vocation, professional religious 
work, or other religious work; and
    (B) That, if the alien is a minister, he or she has authorization to 
conduct religious worship and to perform other duties usually performed 
by authorized members of the clergy, including a detailed description of 
such authorized duties. In appropriate cases, the certificate of 
ordination or authorization may be requested; or
    (C) That, if the alien is a religious professional, he or she has at 
least a United States baccalaureate or its foreign equivalent required 
for entry into the religious profession. In all professional cases, an 
official academic record showing that the alien has the required degree 
must be submitted; or
    (D) That, if the alien is to work in another religious vocation or 
occupation, he or she is qualified in the religious vocation or 
occupation. Evidence of such qualifications may include, but need not be 
limited to, evidence establishing that the alien is a nun, monk, or 
religious brother, or that the type of work to be done relates to a 
traditional religious function.
    (iii) If the alien is to work in a non-ministerial and non-
professional capacity for a bona fide religious organization which is 
affiliated with the religious denomination, the letter from the 
authorized official must explain how the affiliation exists. A tax-
exempt certificate indicating that the affiliated organization is exempt 
from taxation in accordance with section 501(c)(3) of the Internal 
Revenue Code of 1986 as it relates to religious organizations is 
required in this instance.
    (iv) In appropriate cases, the director may request appropriate 
additional evidence relating to the eligibility under section 203(b)(4) 
of the Act of the religious organization, the alien, or the affiliated 
organization.
    (4) Job offer. The letter from the authorized official of the 
religious organization in the United States must also state how the 
alien will be solely carrying on the vocation of a minister (including 
any terms of payment for services or other remuneration), or how the 
alien will be paid or remunerated if the alien will work in a 
professional religious capacity or in other religious work. The 
documentation should clearly indicate that the alien will not be solely 
dependent on supplemental employment or solicitation of funds for 
support. In doubtful cases, additional evidence such as bank letters, 
recent audits, church membership figures, and/or the number of 
individuals currently receiving compensation may be requested.
    (n) Closing action--(1) Approval. An approved employment-based 
petition will be forwarded to the National Visa Center of the Department 
of State if the beneficiary resides outside of the United States. If the 
Form I-140 petition indicates that the alien has filed or will file an 
application for adjustment to permanent residence in the United States 
(Form I-485) the approved visa petition (Form I-140), will be retained 
by the Service for consideration with the application for permanent 
residence (Form I-485). If a visa is available, and Form I-485 has not 
been filed, the alien will be instructed on the Form I-797, Notice of 
Action, (mailed out upon approval of the Form I-140 petition) to file 
the 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; 67 FR 49563, July 31, 2002]



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

[[Page 116]]

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

[[Page 117]]

the United States including, but not limited to, a conditional resident, 
a temporary resident, an asylee, a refugee, or an alien remaining in the 
United States under suspension of deportation. This definition does not 
include the alien entrepreneur, the alien entrepreneur's spouse, sons, 
or daughters, or any nonimmigrant alien.
    Regional center means any economic unit, public or private, which is 
involved with the promotion of economic growth, including increased 
export sales, improved regional productivity, job creation, and 
increased domestic capital investment.
    Rural area means any area not within either a metropolitan 
statistical area (as designated by the Office of Management and Budget) 
or the outer boundary of any city or town having a population of 20,000 
or more.
    Targeted employment area means an area which, at the time of 
investment, is a rural area or an area which has experienced 
unemployment of at least 150 percent of the national average rate.
    Troubled business means a business that has been in existence for at 
least two years, has incurred a net loss for accounting purposes 
(determined on the basis of generally accepted accounting principles) 
during the twelve- or twenty-four month period prior to the priority 
date on the alien entrepreneur's Form I-526, and the loss for such 
period is at least equal to twenty percent of the troubled business's 
net worth prior to such loss. For purposes of determining whether or not 
the troubled business has been in existence for two years, successors in 
interest to the troubled business will be deemed to have been in 
existence for the same period of time as the business they succeeded.
    (f) Required amounts of capital--(1) General. Unless otherwise 
specified, the amount of capital necessary to make a qualifying 
investment in the United States is one million United States dollars 
($1,000,000).
    (2) Targeted employment area. The amount of capital necessary to 
make a qualifying investment in a targeted employment area within the 
United States is five hundred thousand United States dollars ($500,000).
    (3) High employment area. The amount of capital necessary to make a 
qualifying investment in a high employment area within the United 
States, as defined in section 203(b)(5)(C)(iii) of the Act, is one 
million United States dollars ($1,000,000).
    (g) Multiple investors--(1) General. The establishment of a new 
commercial enterprise may be used as the basis of a petition for 
classification as an alien entrepreneur by more than one investor, 
provided each petitioning investor has invested or is actively in the 
process of investing the required amount for the area in which the new 
commercial enterprise is principally doing 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

[[Page 118]]

    (3) The expansion of an existing business through the investment of 
the required amount, so that a substantial change in the net worth or 
number of employees results from the investment of capital. Substantial 
change means a 40 percent increase either in the net worth, or in the 
number of employees, so that the new net worth, or number of employees 
amounts to at least 140 percent of the pre-expansion net worth or number 
of employees. Establishment of a new commercial enterprise in this 
manner does not exempt the petitioner from the requirements of 8 CFR 
204.6(j) (2) and (3) relating to the required amount of capital 
investment and the creation of full-time employment for ten qualifying 
employees. In the case of a capital investment in a troubled business, 
employment creation may meet the criteria set forth in 8 CFR 
204.6(j)(4)(ii).
    (i) State designation of a high unemployment area. The state 
government of any state of the United States may designate a particular 
geographic or political subdivision located within a metropolitan 
statistical area or within a city or town having a population of 20,000 
or more within such state as an area of high unemployment (at least 150 
percent of the national average rate). Evidence of such designation, 
including a description of the boundaries of the geographic or political 
subdivision and the method or methods by which the unemployment 
statistics were obtained, may be provided to a prospective alien 
entrepreneur for submission with Form I-526. Before any such designation 
is made, an official of the state must notify the Associate Commissioner 
for Examinations of the agency, board, or other appropriate governmental 
body of the state which shall be delegated the authority to certify that 
the geographic or political subdivision is a high unemployment area.
    (j) Initial evidence to accompany petition. A petition submitted for 
classification as an alien entrepreneur must be accompanied by evidence 
that the alien has invested or is actively in the process of investing 
lawfully obtained capital in a new commercial enterprise in the United 
States which will create full-time positions for not fewer than 10 
qualifying employees. In the case of petitions submitted under the 
Immigrant Investor Pilot Program, a petition must be accompanied by 
evidence that the alien has invested, or is actively in the process of 
investing, capital obtained through lawful means within a regional 
center designated by the Service in accordance with paragraph (m)(4) of 
this section. The petitioner may be required to submit information or 
documentation that the Service deems appropriate in addition to that 
listed below.
    (1) To show that a new commercial enterprise has been established by 
the 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.

[[Page 119]]

Evidence of mere intent to invest, or of prospective investment 
arrangements entailing no present commitment, will not suffice to show 
that the petitioner is actively in the process of investing. The alien 
must show actual commitment of the required amount of capital. Such 
evidence may include, but need not be limited to:
    (i) Bank statement(s) showing amount(s) deposited in United States 
business account(s) for the enterprise;
    (ii) Evidence of assets which have been purchased for use in the 
United States enterprise, including invoices, sales receipts, and 
purchase contracts containing sufficient information to identify such 
assets, their purchase costs, date of purchase, and purchasing entity;
    (iii) Evidence of property transferred from abroad for use in the 
United States enterprise, including United States Customs Service 
commercial entry documents, bills of lading, and transit insurance 
policies containing ownership information and sufficient information to 
identify the property and to indicate the fair market value of such 
property;
    (iv) Evidence of monies transferred or committed to be transferred 
to the new commercial enterprise in exchange for shares of stock (voting 
or nonvoting, common or preferred). Such stock may not include terms 
requiring the new commercial enterprise to redeem it at the holder's 
request; or
    (v) Evidence of any loan or mortgage agreement, promissory note, 
security agreement, or other evidence of borrowing which is secured by 
assets of the petitioner, other than those of the new commercial 
enterprise, and for which the petitioner is personally and primarily 
liable.
    (3) To show that the petitioner has invested, or is actively in the 
process of investing, capital obtained through lawful means, the 
petition must be accompanied, as applicable, by:
    (i) Foreign business registration records;
    (ii) Corporate, partnership (or any other entity in any form which 
has filed in any country or subdivision thereof any return described in 
this subpart), and personal tax returns including income, franchise, 
property (whether real, personal, or intangible), or any other tax 
returns of any kind filed within five years, with any taxing 
jurisdiction in or outside the United States by or on behalf of the 
petitioner;
    (iii) Evidence identifying any other source(s) of capital; or
    (iv) Certified copies of any judgments or evidence of all pending 
governmental civil or criminal actions, governmental administrative 
proceedings, and any private civil actions (pending or otherwise) 
involving monetary judgments against the petitioner from any 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

[[Page 120]]

meets the statutory employment creation requirement, the petition must 
be accompanied by evidence that the investment will create full-time 
positions for not fewer than 10 persons either directly or indirectly 
through revenues generated from increased exports resulting from the 
Pilot Program. Such evidence may be demonstrated by reasonable 
methodologies including those set forth in paragraph (m)(3) of this 
section.
    (5) To show that the petitioner is or will be engaged in the 
management of the new commercial enterprise, either through the exercise 
of day-to-day managerial control or through policy formulation, as 
opposed to maintaining a purely passive role in regard to the 
investment, the petition must be accompanied by:
    (i) A statement of the position title that the petitioner has or 
will have in the new enterprise and a complete description of the 
position's duties;
    (ii) Evidence that the petitioner is a corporate officer or a member 
of the corporate board of directors; or
    (iii) If the new enterprise is a partnership, either limited or 
general, evidence that the petitioner is engaged in either direct 
management or policy making activities. For purposes of this section, if 
the petitioner is a limited partner and the limited partnership 
agreement provides the petitioner with certain rights, powers, and 
duties normally granted to limited partners under the Uniform Limited 
Partnership Act, the petitioner will be considered sufficiently engaged 
in the management of the new commercial enterprise.
    (6) If applicable, to show that the new commercial enterprise has 
created or will create employment in a targeted employment area, the 
petition must be accompanied by:
    (i) In the case of a rural area, evidence that the new commercial 
enterprise is principally doing business within a civil jurisdiction not 
located within any standard metropolitan statistical area as designated 
by the Office of Management and Budget, or within any city or town 
having a population of 20,000 or more as based on the most recent 
decennial census of the United States; or
    (ii) In the case of a high unemployment area:
    (A) Evidence that the metropolitan statistical area, the specific 
county within a metropolitan statistical area, or the county in which a 
city or town with a population of 20,000 or more is located, in which 
the new commercial enterprise is principally doing business has 
experienced an average unemployment rate of 150 percent of the national 
average rate; or
    (B) A letter from an authorized body of the government of the state 
in which 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

[[Page 121]]

Agencies Appropriation Act, and subject to all conditions and 
restrictions stipulated in that section. Except as provided herein, 
aliens seeking to obtain immigration benefits under this paragraph 
continue to be subject to all conditions and restrictions set forth in 
section 203(b)(5) of the Act and this section.
    (2) Number of immigrant visas allocated. The annual allocation of 
the visas available under the Immigrant Investor Pilot Program is set at 
300 for each of the five fiscal years commencing on October 1, 1993.
    (3) Requirements for regional centers. Each regional center wishing 
to participate in the Immigrant Investor Pilot Program shall submit a 
proposal to the Assistant Commissioner for Adjudications, which:
    (i) Clearly describes how the regional center focuses on a 
geographical region of the United States, and how it will promote 
economic growth through increased export sales, improved regional 
productivity, job creation, and increased domestic capital investment;
    (ii) Provides in verifiable detail how jobs will be created 
indirectly through increased exports;
    (iii) Provides a detailed statement regarding the amount and source 
of capital which has been committed to the regional center, as well as a 
description of the promotional efforts taken and planned by the sponsors 
of the regional center;
    (iv) Contains a detailed prediction regarding the manner in which 
the regional center will have a positive impact on the regional or 
national economy in general as reflected by such factors as increased 
household earnings, greater demand for business services, utilities, 
maintenance and repair, and construction both within and without the 
regional center; and
    (v) Is supported by economically or statistically valid forecasting 
tools, including, but not limited to, feasibility studies, analyses of 
foreign and domestic markets for the goods or services to be exported, 
and/or multiplier tables.
    (4) Submission of proposals to participate in the Immigrant Investor 
Pilot Program. On August 24, 1993, the Service will accept proposals 
from regional centers seeking approval to participate in the Immigrant 
Investor Pilot Program. Regional centers that have been approved by the 
Assistant Commissioner for Adjudications will be eligible to participate 
in the Immigrant Investor Pilot Program.
    (5) Decision to participate in the Immigrant Investor Pilot Program. 
The Assistant Commissioner for Adjudications shall notify the regional 
center of his or her decision on the request for approval to participate 
in the Immigrant 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

[[Page 122]]

under the Immigrant Investor Pilot Program must demonstrate that his or 
her qualifying investment is within a regional center approved pursuant 
to paragraph (m)(4) of this section and that such investment will create 
jobs indirectly through revenues generated from increased exports 
resulting from the new commercial enterprise.
    (i) Exports. For purposes of paragraph (m) of this section, the term 
``exports'' means services or goods which are produced directly or 
indirectly through revenues generated from a new commercial enterprise 
and which are transported out of the United States;
    (ii) Indirect job creation. To show that 10 or more jobs are 
actually created indirectly by the business, reasonable methodologies 
may be used. Such methodologies may include multiplier tables, 
feasibility studies, analyses of foreign and domestic markets for the 
goods or services to be exported, and other economically or 
statistically valid forecasting devices which indicate the likelihood 
that the business will result in increased employment.
    (8) Time for submission of petitions for classification as an alien 
entrepreneur under the Immigrant Investor Pilot Program. Commencing on 
October 1, 1993, petitions will be accepted for filing and adjudicated 
in accordance with the provisions of this section if the alien 
entrepreneur has invested or is actively in the process of investing 
within a regional center which has been approved by the Service for 
participation in the Pilot Program.
    (9) Effect of termination of approval of regional center to 
participate in the Immigrant Investor Pilot Program. Upon termination of 
approval of a regional center to participate in the Immigrant Investor 
Pilot Program, the director shall send a formal written notice to any 
alien within the regional center who has been granted lawful permanent 
residence on a conditional basis under the Pilot Program, and who has 
not yet removed the conditional basis of such lawful permanent 
residence, of the termination of the alien's permanent resident status, 
unless the alien can establish continued eligibility for alien 
entrepreneur classification under section 203(b)(5) of the Act.

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



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

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

[[Page 123]]

to be an affiliate of the United States partnership if its markets its 
accounting services under the same internationally recognized name under 
the agreement with the worldwide coordinating organization of which the 
United States partnership is also a member.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (i) Directs the management of the organization or a major component 
or function of the organization;
    (ii) Establishes the goals and policies of the organization, 
component, or function;
    (iii) Exercises wide latitude in discretionary decision-making; and
    (iv) Receives only general supervision or direction from higher 
level executives, the board of directors, or stockholders of the 
organization.
    Managerial capacity means an assignment within an organization in 
which the employee primarily:
    (i) Manages the organization, or a department, subdivision, 
function, or component of the organization;
    (ii) Supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential function 
within the organization, or a department or subdivision of the 
organization;
    (iii) Has the authority to hire and fire or recommend those as well 
as other personnel actions (such as promotion and leave authorization) 
if another employee or other employees are directly supervised, or, if 
no other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and
    (iv) Exercises direction over the day-to-day operations of the 
activity or function for which the employee has authority.
    Officer means, with respect to a business entity, the chairman or 
vice-chairman of the board of directors of the entity, the chairman or 
vice-chairman of the executive committee of the board of directors, the 
president, any vice-president, any assistant vice-president, any senior 
trust officer, the secretary, any assistant secretary, the treasurer, 
any assistant treasurer, any trust officer or associate trust officer, 
the controller, any assistant controller, or any other officer of the 
entity customarily performing functions similar to those performed by 
any of the foregoing officers.
    Parent means a firm, corporation, or other legal entity which has 
subsidiaries.
    Specialized knowledge means, with respect to an organization, that 
an alien has a special knowledge of the organization's product and its 
application in 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:

[[Page 124]]

    (i) Is employed in Hong Kong and has been employed in Hong Kong 
during the 12 previous consecutive months; or
    (ii) Is employed outside of Hong Kong during a temporary absence 
(i.e., of limited duration) from Hong Kong at the request of the 
employer and had been employed in Hong Kong for 12 consecutive months 
prior to such absence(s); and
    (2) Be employed as an officer or supervisor or in a capacity that is 
managerial or executive or involves specialized knowledge, by a 
qualifying business entity. A qualifying business entity is one which:
    (i) Is owned and organized in the United States (or is the 
subsidiary or affiliate of a business owned and organized in the United 
States);
    (ii) Employs at least 100 employees in the United States and at 
least 50 employees outside the United States (not necessarily all in 
Hong Kong); and
    (iii) Has a gross annual income of at least $50,000,000.
    (3) Have an offer of employment in the United States from the United 
States business entity as an officer or supervisor or in a capacity that 
is managerial or executive, or involves specialized knowledge. The offer 
of employment must:
    (i) Be effective from the time of filing the petition through and 
including the time of entry into the United States, and
    (ii) Provide for salary and benefits comparable to the salary and 
benefits provided to others with similar responsibilities and experience 
within the same company.
    (e) Determining managerial or executive capacities--(1) Supervisors 
as managers. A first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties of 
the supervisor's supervisory duties unless the employees supervised are 
professional.
    (2) Staffing levels. If staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive 
capacity, the reasonable needs of the organization, component, or 
function in light of the overall purpose and stage of development of the 
organization, component, or function shall be taken into account. An 
individual shall not be considered to be acting in a managerial or 
executive capacity merely on the basis of the number of employees that 
the individual supervises or has supervised or directs or has directed.
    (f) Evidence to accompany petition. A petition filed on Form I-140 
shall be accompanied by:
    (1) Form ETA-750B, Statement of Qualifications of Alien; and
    (2) A letter from the employer attesting to the information 
contained in paragraph (d) of this section. Since the 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

[[Page 125]]

procedure described in 8 CFR 205.2. Termination of employment shall be 
grounds for automatic revocation; however, a transfer within the same 
company to a different division, section, subsidiary, or affiliate 
(regardless of geographical location) will not be disqualifying.

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



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

the United States for at least 12 years.

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

[[Page 126]]

applicant shall result in termination of the special immigrant status of 
a spouse or child whose status was based on the special immigrant 
application of the principal.
    (d) Documents which must be submitted in support of the petition. 
(1) A petition to classify an immigrant as a special immigrant under 
section 101(a)(27)(K) of the Act must be accompanied by the following:
    (i) Certified proof of reenlistment (after 6 years of active duty 
service), or certification of past active duty status of 12 years, 
issued by the authorizing official of the executive department in which 
the applicant serves or has served, which certifies that the applicant 
has the required honorable active duty service and commitment. The 
authorizing official need not be at a level above the ``local command''. 
The certification must be submitted with Form I-360, Petition for 
Amerasian, Widow(er), or Special Immigrant; and
    (ii) Birth certificate of the applicant establishing that the 
applicant is a national of an independent state which maintains a treaty 
or agreement allowing nationals of that state to enlist in the United 
States Armed Forces each year.
    (2) Any documents submitted in support of the petition must meet the 
evidentiary requirements as set forth in 8 CFR part 103.
    (3) Submission of an original Form DD-214, Certificate of Release or 
Discharge from Active Duty; Form G-325b, Biographic Information; and 
Form N-426, Request for Certification of Military or Naval Service, is 
not required for approval of a petition for special immigrant status.
    (e) Decision. The petitioner will be notified of the director's 
decision and, if the petition is denied, of the reasons for the denial. 
If the petition is denied, the petitioner will also be notified of the 
petitioner's right to appeal the decision to the Associate Commissioner 
for Examinations in accordance with 8 CFR part 103.
    (f) Revocation under section 205 of the Act. An alien who has been 
granted special immigrant classification under section 101(a)(27)(K) of 
the Act must meet the qualifications set forth in the Act at the time he 
or she is admitted to the United States for lawful permanent residence. 
If an Armed Forces special immigrant ceases to be a qualified enlistee 
by failing to complete the required active duty service obligation for 
reasons other than an honorable discharge prior to entering the United 
States with an immigrant visa or approval of an application for 
adjustment 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 or engineer 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. USCIS must approve a 
petition filed on behalf of the alien on or before September 30, 2006, 
or until 950 petitions have been approved on behalf of eligible 
scientists, whichever is earliest.
    (b) Definitions. As used in this section the term:
    Baltic states mean the sovereign nations of Latvia, Lithuania, and 
Estonia.
    Eligible independent states and Baltic scientists means aliens:
    (1) Who are nationals of any of the independent states of the former 
Soviet Union or the Baltic states; and
    (2) Who are scientists or engineers who have expertise in nuclear, 
chemical, biological, or other high-technology field which is clearly 
applicable

[[Page 127]]

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 nuclear, chemical, biological, or 
other high-technology defense projects, as defined by the Secretary of 
Homeland Security, that are clearly applicable to 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.
    (c) Filing requirements--(1) Application form and time limits. A 
petition to classify an alien under section 203(b)(2)(A) of the Act as a 
scientist from 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 by 
anyone on the alien's behalf. Such petition must be properly filed with 
all initial evidence described in paragraph (e) of this section by 
September 30, 2006 or before the limit of 950 visas has been reached, 
whichever is earliest. To clarify that the petition is for a Soviet 
scientist, the petitioner should clearly print the words ``SOVIET 
SCIENTIST'' in Part 2 of Form I-140 and check block ``d'', indicating 
the petition is for a member of the professions holding an advanced 
degree or an alien of exceptional ability.
    (2) 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.
    (d) Priority date. The priority date of any petition filed for this 
classification is the date the completed, signed petition (including all 
initial evidence as defined in paragraph (e) of this section and the 
correct fee) is properly filed with the USCIS.
    (e) Initial evidence. The petition must be accompanied by:
    (1) Evidence that the alien is a national of one of the independent 
states of the former Soviet Union or one of the Baltic States as defined 
in paragraph (b) of this section. Such evidence may include, 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) A letter from the Department of State, Bureau of 
Nonproliferation that verifies that the alien possesses expertise in 
nuclear, chemical, biological, or other high-technology field or who has 
prior or current work experience in high-technology defense projects 
which are clearly applicable to the design, development, or production 
of ballistic missiles, nuclear, biological, chemical, or other high-
technology weapons of mass destruction and endorses the applicant as 
having exceptional ability in one or more of these fields. Such 
endorsement shall establish that the alien possesses exceptional ability 
in the relevant field.
    (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. USCIS 
may consult with other United States Government agencies, such as the 
Departments of Defense and Energy or other relevant agencies with 
expertise in nuclear, chemical, biological, or other high-technology 
defense projects. USCIS may, in its discretion, accept a favorable 
report from such agencies as evidence in addition to the documentation 
prescribed under paragraph (e) of this section.
    (h) Aliens previously granted permanent residence. No alien 
previously granted lawful permanent residence may request or be granted 
classification or any benefits under this provision.
    (i) Decision--(1) Approval. If the petition is approved and the 
beneficiary is outside the United States the applicant will be notified 
of the decision and the petition will be forwarded to the National Visa 
Center. If the beneficiary is in the United States and seeks to apply 
for adjustment of status, the petition will be retained by USCIS.
    (2) Denial. If the petition is denied, the petitioner will be 
advised of the decision and of the right to appeal in accordance with 8 
CFR part 103.

[[Page 128]]

    (j) Rejection. Petitions filed under this provision on or after 
September 30, 2006 or after the limit of 950 visas has been reached will 
be rejected and the fee refunded.

[70 FR 21131, Apr. 25, 2005]



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

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

[[Page 129]]

    (iii) Evidence of a determination made in judicial or administrative 
proceedings by a court or agency recognized by the juvenile court and 
authorized by law to make such decisions, that it would not be in the 
beneficiary's best interest to be returned to the country of nationality 
or last habitual residence of the beneficiary or of his or her parent or 
parents.
    (e) Decision. The petitioner will be notified of the director's 
decision, and, if the petition is denied, of the reasons for the denial. 
If the petition is denied, the petitioner will also be notified of the 
petitioner's right to appeal the decision to the Associate Commissioner, 
Examinations, in accordance with part 103 of this chapter.

[58 FR 42850, Aug. 12, 1993]



Sec. 204.12  How can second-preference immigrant physicians be 
granted a national interest waiver based on service in a medically 

underserved area or VA facility?

    (a) Which physicians qualify? Any alien physician (namely doctors of 
medicine and doctors of osteopathy) for whom an immigrant visa petition 
has been filed pursuant to section 203(b)(2) of the Act shall be granted 
a national interest waiver under section 203(b)(2)(B)(ii) of the Act if 
the physician requests the waiver in accordance with this section and 
establishes that:
    (1) The physician agrees to work full-time (40 hours per week) in a 
clinical practice for an aggregate of 5 years (not including time served 
in J-1 nonimmigrant status); and
    (2) The service is;
    (i) In a geographical area or areas designated by the Secretary of 
Health and Human Services (HHS) as a Medically Underserved Area, a 
Primary Medical Health Professional Shortage Area, or a Mental Health 
Professional Shortage Area, and in a medical speciality that is within 
the scope of the Secretary's designation for the geographical area or 
areas; or
    (ii) At a health care facility under the jurisdiction of the 
Secretary of Veterans Affairs (VA); and
    (3) A Federal agency or the department of public health of a State, 
territory of the United States, or the District of Columbia, has 
previously determined that the physician's work in that area or facility 
is in the public interest.
    (b) Is there a time limit on how long the physician has to complete 
the required medical service? (1) If the physician already has 
authorization to accept employment (other than as a J-1 exchange alien), 
the beneficiary physician must complete the aggregate 5 years of 
qualifying full-time clinical practice during the 6-year period 
beginning on the date of approval of the Form I-140.
    (2) If the physician must obtain authorization to accept employment 
before the physician may lawfully begin working, the physician must 
complete the aggregate 5 years of qualifying full-time clinical practice 
during the 6-year period beginning on the date of the Service issues the 
necessary employment authorization document.
    (c) Are there special requirements for these physicians? Petitioners 
requesting the national interest waiver as described in this section on 
behalf of a qualified alien physician, or alien physicians self-
petitioning for second preference classification, must meet all 
eligibility requirements found in paragraphs (k)(1) through (k)(3) of 
Sec. 204.5. In addition, the petitioner or self-petitioner must submit 
the following evidence with Form I-140 to support the request for a 
national interest waiver. Physicians planning to divide the practice of 
full-time clinical medicine between more than one underserved area must 
submit the following evidence for each area of intended practice.
    (1)(i) If the physician will be an employee, a full-time employment 
contract for the required period of clinical medical practice, or an 
employment commitment letter from a VA facility. The contract or letter 
must have been issued and dated within 6 months prior to the date the 
petition is filed.
    (ii) If the physician will establish his or her own practice, the 
physician's sworn statement committing to the full-time practice of 
clinical medicine for the required period, and describing the steps the 
physician has taken or intends to actually take to establish the 
practice.
    (2) Evidence that the physician will provide full-time clinical 
medical service:

[[Page 130]]

    (i) In a geographical area or areas designated by the Secretary of 
HHS as having a shortage of health care professionals and in a medical 
speciality that is within the scope of the Secretary's designation for 
the geographical area or areas; or
    (ii) In a facility under the jurisdiction of the Secretary of VA.
    (3) A letter (issued and dated within 6 months prior to the date on 
which the petition is filed) from a Federal agency or from the 
department of public health (or equivalent) of a State or territory of 
the United States or the District of Columbia, attesting that the alien 
physician's work is or will be in the public interest.
    (i) An attestation from a Federal agency must reflect the agency's 
knowledge of the alien's qualifications and the agency's background in 
making determinations on matters involving medical affairs so as to 
substantiate the finding that the alien's work is or will be in the 
public interest.
    (ii) An attestation from the public health department of a State, 
territory, or the District of Columbia must reflect that the agency has 
jurisdiction over the place where the alien physician intends to 
practice clinical medicine. If the alien physician intends to practice 
clinical medicine in more than one underserved area, attestations from 
each intended area of practice must be included.
    (4) Evidence that the alien physician meets the admissibility 
requirements established by section 212(a)(5)(B) of the Act.
    (5) Evidence of the Service-issued waivers, if applicable, of the 
requirements of sections 212(e) of the Act, if the alien physician has 
been a J-1 nonimmigrant receiving medical training within the United 
States.
    (d) How will the Service process petitions filed on different 
dates?--(1) Petitions filed on or after November 12, 1999. For petitions 
filed on or after November 12, 1999, the Service will approve a national 
interest waiver provided the petitioner or beneficiary (if self-
petitioning) submits the necessary documentation to satisfy the 
requirements of section 203(b)(2)(B)(ii) of the Act and this section, 
and the physician is otherwise eligible for classification as a second 
preference employment-based immigrant. Nothing in this section relieves 
the alien physician from any other requirement other than that of 
fulfilling the labor certification process as provided in Sec. 
204.5(k)(4).
    (2) Petitions pending on November 12, 1999. Section 203(b)(2)(B)(ii) 
of the Act applies to all petitions that were pending adjudication as of 
November 12, 1999 before a Service Center, before the associate 
Commissioner for Examinations, or before a Federal court. Petitioners 
whose petitions were pending on November 12, 1999, will not be required 
to submit a new petition, but may be required to submit supplemental 
evidence noted in paragraph (c) of this section. The requirement that 
supplemental evidence be issued and dated within 6 months prior to the 
date on which the petition is filed is not applicable to petitions that 
were pending as of November 12, 1999. If the case was pending before the 
Associate Commissioner for Examinations or a Federal court on November 
12, 1999, the petitioner should ask for a remand to the proper Service 
Center for consideration of this new evidence.
    (3) Petitions denied on or after November 12, 1999. The Service 
Center or the Associate Commissioner for Examinations shall reopen any 
petition affected by the provision of section 203(b)(2)(B)(ii) of the 
Act that the Service denied on or after November 12, 1999, but prior to 
the effective date of this rule.
    (4) Petitions filed prior to November 1, 1998. For petitions filed 
prior to November 1, 1998, and still pending as of November 12, 1999, 
the Service will approve a national interest waiver provided the 
beneficiary fulfills the evidence requirements of paragraph (c) of this 
section. Alien physicians that are beneficiaries of pre-November 1, 
1998, petitions are only required to work full-time as a physician 
practicing clinical medicine for an aggregate of 3 years, rather than 5 
years, not including time served in J-1 nonimmigrant status, prior to 
the physician either adjusting status under section 245 of the Act or 
receiving a visa issued under section 204(b) of the Act. The physician 
must complete the aggregate of 3 years

[[Page 131]]

of medical service within the 4-year period beginning on the date of the 
approval of the petition, if the physician already has authorization to 
accept employment (other than as a J-1 exchange alien). If the physician 
does not already have authorization to accept employment, the physician 
must perform the service within the 4-year period beginning the date the 
Service issues the necessary employment authorization document.
    (5) Petitions filed and approved before November 12, 1999. An alien 
physician who obtained approval of a second preference employment-based 
visa petition and a national interest waiver before November 12, 1999, 
is not subject to the service requirements imposed in section 
203(b)(2)(B)(ii) of the Act. If the physician obtained under section 
214(1) of the Act a waiver of the foreign residence requirement imposed 
under section 212(e) of the Act, he or she must comply with the 
requirements of section 214(1) of the Act in order to continue to have 
the benefit of that waiver.
    (6) Petitions denied prior to November 12, 1999. If a prior Service 
decision denying a national interest waiver under section 203(b)(2)(B) 
of the Act became administratively final before November 12, 1999, an 
alien physician who believes that he or she is eligible for the waiver 
under the provisions of section 203(b)(2)(B)(ii) of the Act may file a 
new Form I-140 petition accompanied by the evidence required in 
paragraph (c) of this section. The Service must deny any motion to 
reopen or reconsider a decision denying an immigrant visa petition if 
the decision became final before November 12, 1999, without prejudice to 
the filing of a new visa petition with a national interest waiver 
request that comports with section 203(b)(2)(B)(ii) of the Act.
    (e) May physicians file adjustment of status applications? Upon 
approval of a second preference employment-based immigrant petition, 
Form I-140, and national interest waiver based on a full-time clinical 
practice in a shortage area or areas of the United States, an alien 
physician may submit Form I-485, Application to Register Permanent 
Residence or Adjust Status, to the appropriate Service Center. The 
Service will not approve the alien physician's application for 
adjustment of status until the alien physician submits evidence 
documenting that the alien physician has completed the period of 
required service. Specific instructions for alien physicians filing 
adjustment applications are found in Sec. 245.18 of this chapter.
    (f) May a physician practice clinical medicine in a different 
underserved area? Physicians in receipt of an approved Form I-140 with a 
national interest waiver based on full-time clinical practice in a 
designated shortage area and a pending adjustment of status application 
may apply to the Service if the physician is offered new employment to 
practice full-time in another underserved area of the United States.
    (1) If the physician beneficiary has found a new employer desiring 
to petition the Service on the physician's behalf, the new petitioner 
must submit a new Form I-140 (with fee) with all the evidence required 
in paragraph (c) of this section, including a copy of the approval 
notice from the initial Form I-140. If approved, the new petition will 
be matched with the pending adjustment of status application. The 
beneficiary will retain the priority date from the initial Form I-140. 
The Service will calculate the amount of time the physician was between 
employers so as to adjust the count of the aggregate time served in an 
underserved area. This calculation will be based on the evidence the 
physician submits pursuant to the requirements of Sec. 245.18(d) of 
this chapter. An approved change of practice to another underserved area 
does not constitute a new 6-year period in which the physician must 
complete the aggregate 5 years of service.
    (2) If the physician intends to establish his or her own practice, 
the physician must submit a new Form I-140 (with fee) will all the 
evidence required in paragraph (c) of this section, including the 
special requirement of paragraph (c)(1)(ii) of this section and a copy 
of the approval notice from the initial Form I-140. If approved, the new 
petition will be matched with the pending adjustment of status 
application. The beneficiary will retain the priority date from the 
initial Form I-140. The

[[Page 132]]

Service will calculate the amount of time the physician was between 
practices so as to adjust the count of the aggregate time served in an 
underserved area. This calculation will be based on the evidence the 
physician submits pursuant to the requirements of Sec. 245.18(d) of 
this chapter. An approved change of practice to another underserved area 
does not constitute a new 6-year period in which the physician must 
complete the aggregate 5 years of service.
    (g) Do these provisions have any effect on physicians with foreign 
residence requirements? Because the requirements of section 
203(b)(2)(B)(ii) of the Act are not exactly the same as the requirements 
of section 212(e) or 214(l) of the Act, approval of a national interest 
waiver under section 203(b)(2)(B)(ii) of the Act and this paragraph does 
not relieve the alien physician of any foreign residence requirement 
that the alien physician may have under section 212(e) of the Act.

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



Sec. 204.13  How can the International Broadcasting Bureau of the 
United States Broadcasting Board of Governors petition for a fourth 

preference special immigrant broadcaster?

    (a) Which broadcasters qualify? Under section 203(b)(4) of the Act, 
the International Broadcasting Bureau of the United States Broadcasting 
Board of Governors (BBG), or a grantee of the BBG, may petition for an 
alien (and the alien's accompanying spouse and children) to work as a 
broadcaster for the BBG or a grantee of the BBG in the United States. 
For the purposes of this section, the terms:
    BBG grantee means Radio Free Asia, Inc (RFA) or Radio Free Europe/
Radio Liberty, Inc. (RFE/RL); and
    Broadcaster means a reporter, writer, translator, editor, producer 
or announcer for news broadcasts; hosts for news broadcasts, news 
analysis, editorial and other broadcast features; or a news analysis 
specialist. The term broadcaster does not include individuals performing 
purely technical or support services for the BBG or a BBG grantee.
    (b) Is there a yearly limit on the number of visas available for 
alien broadcasters petitioned by the BBG or a BBG grantee? (1) Under the 
provisions of section 203(b)(4) of the Act, a yearly limit of 100 fourth 
preference special immigrant visas are available to aliens intending to 
work as broadcasters in the United States for the BBG or a BBG grantee. 
These 100 visas are available in any fiscal year beginning on or after 
October 1, 2000.
    (2) The alien broadcaster's accompanying spouse and children are not 
counted towards the 100 special broadcaster visa limit.
    (c) What form should the BBG use to petition for these special alien 
broadcasters? The BBG or a BBG grantee shall use Form I-360, Petition 
for Amerasian, Widow(er), or Special Immigrant, to petition for an alien 
broadcaster. The petition must be submitted with the correct fee noted 
on the form. All BBG petitions for alien broadcasters shall be submitted 
to the Vermont Service Center for processing.
    (d) Will the BBG need to submit supplemental evidence with Form I-
360 for alien broadcasters? (1) All Form I-360 petitions submitted by 
the BBG or a BBG grantee on behalf of an alien for a broadcaster 
position with the BBG or BBG grantee must be accompanied by a signed and 
dated supplemental attestation that contains the following information 
about the prospective alien broadcaster:
    (i) The job title and a full description of the job to be performed; 
and
    (ii) The broadcasting expertise held by the alien, including how 
long the alien has been performing duties that relate to the prospective 
position or a statement as to how the alien possesses the necessary 
skills that make him or her qualified for the broadcasting-related 
position within the BBG or BBG grantee.
    (2) [Reserved]

[66 FR 51821, Oct. 11, 2001]

Subpart B [Reserved]

[[Page 133]]



         Subpart C_Intercountry Adoption of a Convention Adoptee

    Source:  72 FR 56854, Oct. 4, 2007, unless otherwise noted.



Sec. 204.300  Scope of this subpart.

    (a) Convention adoptees. This subpart governs the adjudication of a 
Form I-800A or Form I-800 for a Convention adoptee under section 
101(b)(1)(G) of the Act. The provisions of this subpart enter into force 
on the Convention effective date, as defined in 8 CFR 204.301.
    (b) Orphan cases. On or after the Convention effective date, no Form 
I-600A or I-600 may be filed under section 101(b)(1)(F) of the Act and 8 
CFR 204.3 in relation to the adoption of a child who is habitually 
resident in a Convention country. If a Form I-600A or Form I-600 was 
filed before the Convention effective date, the case will continue to be 
governed by 8 CFR 204.3, as in effect before the Convention effective 
date.
    (c) Adopted children. This subpart does not apply to the immigrant 
visa classification of adopted children, as defined in section 
101(b)(1)(E) of the Act. For the procedures that govern classification 
of adopted children as defined in section 101(b)(1)(E) of the Act, see 8 
CFR 204.2.



Sec. 204.301  Definitions.

    The definitions in 22 CFR 96.2 apply to this subpart C. In addition, 
as used in this subpart C, the term:
    Abandonment means:
    (1) That a child's parent has willfully forsaken all parental 
rights, obligations, and claims to the child, as well as all custody of 
the child without intending to transfer, or without transferring, these 
rights to any specific individual(s) or entity.
    (2) The child's parent must have actually surrendered such rights, 
obligations, claims, control, and possession.
    (3) That a parent's knowledge that a specific person or persons may 
adopt a child does not void an abandonment; however, a purported act of 
abandonment cannot be conditioned on the child's adoption by that 
specific person or persons.
    (4) That if the parent(s) entrusted the child to a third party for 
custodial care in anticipation of, or preparation for, adoption, the 
third party (such as a governmental agency, a court of competent 
jurisdiction, an adoption agency, or an orphanage) must have been 
authorized under the Convention country's child welfare laws to act in 
such a capacity.
    (5) That, if the parent(s) entrusted the child to an orphanage, the 
parent(s) did not intend the placement to be merely temporary, with the 
intention of retaining the parent-child relationship, but that the child 
is abandoned if the parent(s) entrusted the child permanently and 
unconditionally to an orphanage.
    (6) That, although a written document from the parent(s) is not 
necessary to prove abandonment, if any written document signed by the 
parent(s) is presented to prove abandonment, the document must specify 
whether the parent(s) who signed the document was (were) able to read 
and understand the language in which the document is written. If the 
parent is not able to read or understand the language in which the 
document is written, then the document is not valid unless the document 
is accompanied by a declaration, signed by an identified individual, 
establishing that that identified individual is competent to translate 
the language in the document into a language that the parent understands 
and that the individual, on the date and at the place specified in the 
declaration, did in fact read and explain the document to the parent in 
a language that the parent understands. The declaration must also 
indicate the language used to provide this explanation. If the person 
who signed the declaration is an officer or employee of the Central 
Authority (but not of an agency or entity authorized to perform a 
Central Authority function by delegation) or any other governmental 
agency, the person must certify the truth of the facts stated in the 
declaration. Any other individual who signs a declaration must sign the 
declaration under penalty of perjury under United States law.
    Adoption means the judicial or administrative act that establishes a 
permanent legal parent-child relationship between a minor and an adult 
who is

[[Page 134]]

not already the minor's legal parent and terminates the legal parent-
child relationship between the adoptive child and any former parent(s).
    Adult member of the household means:
    (1) Any individual other than the applicant, who has the same 
principal residence as the applicant and who had reached his or her 18th 
birthday on or before the date a Form I-800A is filed; or
    (2) Any person who has not yet reached his or her 18th birthday 
before the date a Form I-800A is filed, or who does not actually live at 
the same residence, but whose presence in the residence is relevant to 
the issue of suitability to adopt, if the officer adjudicating the Form 
I-800A concludes, based on the facts of the case, that it is necessary 
to obtain an evaluation of how that person's presence in the home 
affects the determination whether the applicant is suitable as the 
adoptive parent(s) of a Convention adoptee.
    Applicant means the U.S. citizen (and his or her spouse, if any) who 
has filed a Form I-800A under this subpart C. The applicant may be an 
unmarried U.S. citizen who is at least 24 years old when the Form I-800A 
is filed, or a married U.S. citizen of any age and his or her spouse of 
any age. Although the singular term ``applicant'' is used in this 
subpart, the term includes both a married U.S. citizen and his or her 
spouse.
    Birth parent means a ``natural parent'' as used in section 
101(b)(1)(G) of the Act.
    Central Authority means the entity designated as such under Article 
6(1) of the Convention by any Convention country or, in the case of the 
United States, the United States Department of State. Except as 
specified in this Part, ``Central Authority'' also means, solely for 
purposes of this Part, an individual who or entity that is performing a 
Central Authority function, having been authorized to do so by the 
designated Central Authority, in accordance with the Convention and the 
law of the Central Authority's country.
    Competent authority means a court or governmental agency of a 
foreign country that has jurisdiction and authority to make decisions in 
matters of child welfare, including adoption.
    Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, opened for signature at 
The Hague on May 29, 1993.
    Convention adoptee means a child habitually resident in a Convention 
country who is eligible to immigrate to the United States on the basis 
of a Convention adoption.
    Convention adoption, except as specified in 8 CFR 204.300(b), means 
the adoption, on or after the Convention effective date, of an alien 
child habitually resident in a Convention country by a U.S. citizen 
habitually resident in the United States, when in connection with the 
adoption the child has moved, or will move, from the Convention country 
to the United States.
    Convention country means a country that is a party to the Convention 
and with which the Convention is in force for the United States.
    Convention effective date means the date on which the Convention 
enters into force for the United States as announced by the Secretary of 
State under 22 CFR 96.17.
    Custody for purposes of emigration and adoption exists when:
    (1) The competent authority of the country of a child's habitual 
residence has, by a judicial or administrative act (which may be either 
the act granting custody of the child or a separate judicial or 
administrative act), expressly authorized the petitioner, or an 
individual or entity acting on the petitioner's behalf, to take the 
child out of the country of the child's habitual residence and to bring 
the child to the United States for adoption in the United States.
    (2) If the custody order shows that custody was given to an 
individual or entity acting on the petitioner's behalf, the custody 
order must indicate that the child is to be adopted in the United States 
by the petitioner.
    (3) A foreign judicial or administrative act that is called an 
adoption but that does not terminate the legal parent-child relationship 
between the former parent(s) and the adopted child and does not create 
the permanent legal parent-child relationship between the petitioner and 
the adopted child will be deemed a grant of custody of

[[Page 135]]

the child for purposes of this part, but only if the judicial or 
administrative act expressly authorizes the custodian to take the child 
out of the country of the child's habitual residence and to bring the 
child to the United States for adoption in the United States by the 
petitioner.
    Deserted or desertion means that a child's parent has willfully 
forsaken the child and has refused to carry out 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 Convention 
country.
    Disappeared or Disappearance means that a child's parent has 
unaccountably or inexplicably passed out of the child's life so that the 
parent's whereabouts are unknown, there is no reasonable expectation of 
the parent's reappearance, and there has been a reasonable effort to 
locate the parent as determined by a competent authority in accordance 
with the laws of the Convention country. A stepparent who under the 
definition of ``Parent'' in this section is deemed to be a child's legal 
parent, may be found to have disappeared if it is established that the 
stepparent either never knew of the child's existence, or never knew of 
their legal relationship to the child.
    Home study preparer means a person (whether an individual or an 
agency) authorized under 22 CFR part 96 to conduct home studies for 
Convention adoption cases, either as a public domestic authority, an 
accredited agency, a temporarily accredited agency, approved person, 
supervised provider, or exempted provider and who (if not a public 
domestic authority) holds any license or other authorization that may be 
required to conduct adoption home studies under the law of the 
jurisdiction in which the home study is conducted.
    Incapable of providing proper care means that, in light of all the 
relevant circumstances including but not limited to economic or 
financial concerns, extreme poverty, medical, mental, or emotional 
difficulties, or long term-incarceration, the child's two living birth 
parents are not able to provide for the child's basic needs, consistent 
with the local standards of the Convention country.
    Irrevocable consent means a document which indicates the place and 
date the document was signed by a child's legal custodian, and which 
meets the other requirements specified in this definition, in which the 
legal custodian freely consents to the termination of the legal 
custodian's legal relationship with the child. If the irrevocable 
consent is signed by the child's birth mother or any legal custodian 
other than the birth father, the irrevocable consent must have been 
signed after the child's birth; the birth father may sign an irrevocable 
consent before the child's birth if permitted by the law of the child's 
habitual residence. This provision does not preclude a birth father from 
giving consent to the termination of his legal relationship to the child 
before the child's birth, if the birth father is permitted to do so 
under the law of the country of the child's habitual residence.
    (1) To qualify as an irrevocable consent under this definition, the 
document must specify whether the legal custodian is able to read and 
understand the language in which the consent is written. If the legal 
custodian is not able to read or understand the language in which the 
document is written, then the document does not qualify as an 
irrevocable consent unless the document is accompanied by a declaration, 
signed, by an identified individual, establishing that that identified 
individual is competent to translate the language in the irrevocable 
consent into a language that the parent understands, and that the 
individual, on the date and at the place specified in the declaration, 
did in fact read and explain the consent to the legal custodian in a 
language that the legal custodian understands. The declaration must also 
indicate the language used to provide this explanation. If the person 
who signed the declaration is an officer or employee of the Central 
Authority (but not of an agency or entity authorized to perform a 
Central Authority function by delegation) or any other governmental 
agency, the person must certify the truth of the facts stated in the 
declaration. Any other individual who signs a declaration must sign the 
declaration under

[[Page 136]]

penalty of perjury under United States law.
    (2) If more than one individual or entity is the child's legal 
custodian, the consent of each legal custodian may be recorded in one 
document, or in an additional document, but all documents, taken 
together, must show that each legal custodian has given the necessary 
irrevocable consent.
    Legal custodian means the individual who, or entity that, has legal 
custody of a child, as defined in 22 CFR 96.2.
    Officer means a USCIS officer with jurisdiction to adjudicate Form 
I-800A or Form I-800 or a Department of State officer with jurisdiction, 
by delegation from USCIS, to grant either provisional or final approval 
of a Form I-800.
    Parent means any person who is related to a child as described in 
section 101(b)(1)(A), (B), (C), (D), (E), (F), or (G) and section 
101(b)(2) of the Act, except that a stepparent described in section 
101(b)(1)(B) of the Act is not considered a child's parent, solely for 
purposes of classification of the child as a Convention adoptee, if the 
petitioner establishes that, under the law of the Convention country, 
there is no legal parent-child relationship between a stepparent and 
stepchild. This definition includes a stepparent if the stepparent 
adopted the child, or if the stepparent, under the law of the Convention 
country, became the child's legal parent by marrying the other legal 
parent. A stepparent who is a legal parent may consent to the child's 
adoption, or may be found to have abandoned or deserted the child, or to 
have disappeared from the child's life, in the same manner as would 
apply to any other legal parent.
    Petitioner means the U.S. citizen (and his or her spouse, if any) 
who has filed a Form I-800 under this subpart C. The petitioner may be 
an unmarried U.S. citizen who is at least 25 years old when the Form I-
800 is filed, or a married U.S. citizen of any age and his or her spouse 
of any age. Although the singular term ``petitioner'' is used in this 
subpart, the term includes both a married U.S. citizen and his or her 
spouse.
    Sole parent means:
    (1) The child's mother, when the competent authority has determined 
that the child's father has abandoned or deserted the child, or has 
disappeared from the child's life; or
    (2) The child's father, when the competent authority has determined 
that the child's mother has abandoned or deserted the child, or has 
disappeared from the child's life; except that
    (3) A child's parent is not a sole parent if the child has acquired 
another parent within the meaning of section 101(b)(2) of the Act and 
this section.
    Suitability as adoptive parent(s) means that USCIS is satisfied, 
based on the evidence of record, that it is reasonable to conclude that 
the applicant is capable of providing, and will provide, proper parental 
care to an adopted child.
    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 and this section.



Sec. 204.302  Role of service providers.

    (a) Who may provide services in Convention adoption cases. Subject 
to the limitations in paragraph (b) or (c) of this section, a U.S. 
citizen seeking to file a Form I-800A or I-800 may use the services of 
any individual or entity authorized to provide services in connection 
with adoption, except that the U.S. citizen must use the services of an 
accredited agency, temporarily accredited agency, approved person, 
supervised provider public domestic authority or exempted provider when 
required to do so under 22 CFR part 96.
    (b) Unauthorized practice of law prohibited. An adoption agency or 
facilitator, including an individual or entity authorized under 22 CFR 
part 96 to provide the six specific adoption services identified in 22 
CFR 96.2, may not engage in any act that constitutes the legal 
representation, as defined in 8 CFR 1.1(i), (j) and (m), of the 
applicant (for a Form I-800A case) or petitioner (for a Form I-800 case) 
unless authorized to do so as provided in 8 CFR part 292. An individual 
authorized under 8 CFR part 292 to practice before USCIS may provide 
legal services in connection with a Form I-800A or I-800 case, but may 
not provide any of the six specific adoption services identified in 22 
CFR 96.2, unless the individual is authorized to do so under 22 CFR part 
96

[[Page 137]]

(for services provided in the United States) or under the laws of the 
country of the child's habitual residence (for services performed 
outside the United States). The provisions of 8 CFR 292.5 concerning 
sending notices about a case do not apply to an adoption agency or 
facilitator that is not authorized under 8 CFR part 292 to engage in 
representation before USCIS.
    (c) Application of the Privacy Act. Except as permitted by the 
Privacy Act, 5 U.S.C. 552a and the relevant Privacy Act notice 
concerning the routine use of information, USCIS may not disclose or 
give access to any information or record relating to any applicant or 
petitioner who has filed a Form I-800A or Form I-800 to any individual 
or entity other than that person, including but not limited to an 
accredited agency, temporarily accredited agency, approved person, 
public domestic authority, exempted provider, or supervised provider, 
unless the applicant who filed the Form I-800A or the petitioner who 
filed Form I-800 has filed a written consent to disclosure, as provided 
by the Privacy Act, 5 U.S.C. 552a.



Sec. 204.303  Determination of habitual residence.

    (a) U.S. Citizens. For purposes of this subpart, a U.S. citizen who 
is seeking to have an alien classified as the U.S. citizen's child under 
section 101(b)(1)(G) of the Act is deemed to be habitually resident in 
the United States if the individual:
    (1) Has his or her domicile in the United States, even if he or she 
is living temporarily abroad; or
    (2) Is not domiciled in the United States but establishes by a 
preponderance of the evidence that:
    (i) The citizen will have established a domicile in the United 
States on or before the date of the child's admission to the United 
States for permanent residence as a Convention adoptee; or
    (ii) The citizen indicates on the Form I-800 that the citizen 
intends to bring the child to the United States after adopting the child 
abroad, and before the child's 18th birthday, at which time the child 
will be eligible for, and will apply for, naturalization under section 
322 of the Act and 8 CFR part 322. This option is not available if the 
child will be adopted in the United States.
    (b) Convention adoptees. A child whose classification is sought as a 
Convention adoptee is, generally, deemed for purposes of this subpart C 
to be habitually resident in the country of the child's citizenship. If 
the child's actual residence is outside the country of the child's 
citizenship, the child will be deemed habitually resident in that other 
country, rather than in the country of citizenship, if the Central 
Authority (or another competent authority of the country in which the 
child has his or her actual residence) has determined that the child's 
status in that country is sufficiently stable for that country properly 
to exercise jurisdiction over the child's adoption or custody. This 
determination must be made by the Central Authority itself, or by 
another competent authority of the country of the child's habitual 
residence, but may not be made by a nongovernmental individual or entity 
authorized by delegation to perform Central Authority functions. The 
child will not be considered to be habitually resident in any country to 
which the child 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.



Sec. 204.304  Improper inducement prohibited.

    (a) Prohibited payments. Neither the applicant/petitioner, nor any 
individual or entity acting on behalf of the applicant/petitioner may, 
directly or indirectly, pay, give, offer to pay, or offer to give to any 
individual or entity or request, receive, or accept from any individual 
or entity, any money (in any amount) or anything of value (whether the 
value is great or small), directly or indirectly, to induce or influence 
any decision concerning:
    (1) The placement of a child for adoption;
    (2) The consent of a parent, a legal custodian, individual, or 
agency to the adoption of a child;
    (3) The relinquishment of a child to a competent authority, or to an 
agency or person as defined in 22 CFR 96.2, for the purpose of adoption; 
or

[[Page 138]]

    (4) The performance by the child's parent or parents of any act that 
makes the child a Convention adoptee.
    (b) Permissible payments. Paragraph (a) of this section does not 
prohibit an applicant/petitioner, or an individual or entity acting on 
behalf of an applicant/petitioner, from paying the reasonable costs 
incurred for the services designated in this paragraph. A payment is not 
reasonable if it is prohibited under the law of the country in which the 
payment is made or if the amount of the payment is not commensurate with 
the costs for professional and other services in the country in which 
any particular service is provided. The permissible services are:
    (1) The services of an adoption service provider in connection with 
an adoption;
    (2) Expenses incurred in locating a child for adoption;
    (3) Medical, hospital, nursing, pharmaceutical, travel, or other 
similar expenses incurred by a mother or her child in connection with 
the birth or any illness of the child;
    (4) Counseling services for a parent or a child for a reasonable 
time before and after the child's placement for adoption;
    (5) Expenses, in an amount commensurate with the living standards in 
the country of the child's habitual residence, for the care of the birth 
mother while pregnant and immediately following the birth of the child;
    (6) Expenses incurred in obtaining the home study;
    (7) Expenses incurred in obtaining the reports on the child as 
described in 8 CFR 204.313(d)(3) and (4);
    (8) Legal services, court costs, and travel or other administrative 
expenses connected with an adoption, including any legal services 
performed for a parent who consents to the adoption of a child or 
relinquishes the child to an agency; and
    (9) Any other service the payment for which the officer finds, on 
the basis of the facts of the case, was reasonably necessary.
    (c) Department of State requirements. See 22 CFR 96.34, 96.36 and 
96.40 for additional regulatory information concerning fees in relation 
to Convention adoptions.



Sec. 204.305  State preadoption requirements.

    State preadoption requirements must be complied with when a child is 
coming into the State as a Convention adoptee to be adopted in the 
United States. A qualified Convention adoptee is deemed to be coming to 
be adopted in the United States if either of the following factors 
exists:
    (a) The applicant/petitioner will not complete the child's adoption 
abroad; or
    (b) In the case of a married applicant/petitioner, the child was 
adopted abroad only by one of the spouses, rather than by the spouses 
jointly, so that it will be necessary for the other spouse to adopt the 
child after the child's admission.



Sec. 204.306  Classification as an immediate relative based on a 
Convention adoption.

    (a) Unless 8 CFR 204.309 requires the denial of a Form I-800A or 
Form I-800, a child is eligible for classification as an immediate 
relative, as defined in section 201(b)(2)(A)(i) of the Act, on the basis 
of a Convention adoption, if the U.S. citizen who seeks to adopt the 
child establishes that:
    (1) The United States citizen is (or, if married, the United States 
citizen and the United States citizen's spouse are) eligible and 
suitable to adopt; and
    (2) The child is a Convention adoptee.
    (b) A U.S. citizen seeking to have USCIS classify an alien child as 
the U.S. citizen's child under section 101(b)(1)(G) of the Act must 
complete a two-step process:
    (1) First, the U.S. citizen must file a Form I-800A under 8 CFR 
204.310;
    (2) Then, once USCIS has approved the Form I-800A and a child has 
been identified as an alien who may qualify as a Convention adoptee, the 
U.S. citizen must file a Form I-800 under 8 CFR 204.313.



Sec. 204.307  Who may file a Form I-800A or Form I-800.

    (a) Eligibility to file Form I-800A. Except as provided in paragraph 
(c) of this section, the following persons may file a Form I-800A:
    (1) An unmarried United States citizen who is at least 24 years old 
and

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who is habitually resident in the United States, as determined under 8 
CFR 204.303(a); or
    (2) A married United States citizen, who is habitually resident in 
the United States, as determined under 8 CFR 204.303(a), and whose 
spouse will also adopt any child adopted by the citizen based on the 
approval of a Form I-800A; and
    (3) The citizen's spouse must also be either a U.S. citizen, a non-
citizen U.S. national, or an alien who, if living in the United States, 
holds a lawful status under U.S. immigration law. If an alien spouse is 
present in a lawful status other than the status of an alien lawfully 
admitted for permanent residence, such status will be a factor evaluated 
in determining whether the family's situation is sufficiently stable to 
support a finding that the applicant is suitable as the adoptive parents 
of a Convention adoptee.
    (b) Eligibility to file a Form I-800. Except as provided in 
paragraph (c) of this section, the following persons may file a Form I-
800:
    (1) An unmarried United States citizen who is at least 25 years old 
and who is habitually resident in the United States, as determined under 
8 CFR 204.303(a); or
    (2) A married United States citizen, who is habitually resident in 
the United States as determined under 8 CFR 204.303(a), and whose spouse 
will also adopt the child the citizen seeks to adopt. The spouse must be 
either a United States citizen or a non-citizen U.S. national or an 
alien who, if living in the United States, holds a lawful status under 
U.S. immigration law; and
    (3) The person has an approved and unexpired Form I-800A.
    (c) Exceptions. (1) No applicant may file a Form I-800A, and no 
petitioner may file a Form I-800, if:
    (i) The applicant filed a prior Form I-800A that USCIS denied under 
8 CFR 204.309(a); or
    (ii) The applicant filed a prior Form I-600A under 8 CFR 204.3 that 
USCIS denied under 8 CFR 204.3(h)(4); or
    (iii) The petitioner filed a prior Form I-800 that USCIS denied 
under 8 CFR 204.309(b)(3); or
    (iv) The petitioner filed a prior Form I-600 under 8 CFR 204.3 that 
USCIS denied under 8 CFR 204.3(i).
    (2) This bar against filing a subsequent Form I-800A or Form I-800 
expires one year after the date on which the decision denying the prior 
Form I-800A, I-600A, I-800 or I-600 became administratively final. If 
the applicant (for a Form I-800A or I-600A case) or the petitioner (for 
a Form I-800 or I-600 case) does not appeal the prior decision, the one-
year period ends one year after the date of the original decision 
denying the prior Form I-800A, I-600A, I-800 or I-600. Any Form I-800A, 
or Form I-800 filed during this one-year period will be denied. If the 
applicant (for a Form I-800A or Form I-600A case) or petitioner (for a 
Form I-800 or I-600 case) appeals the prior decision, the bar to filing 
a new Form I-800A or I-800 applies while the appeal is pending and ends 
one year after the date of an Administrative Appeals Office decision 
affirming the denial.
    (3) Any facts underlying a prior denial of a Form I-800A, I-800, I-
600A, or I-600 are relevant to the adjudication of any subsequently 
filed Form I-800A or Form I-800 that is filed after the expiration of 
this one year bar.



Sec. 204.308  Where to file Form I-800A or Form I-800.

    (a) Form I-800A. An applicant must file a Form I-800A with the USCIS 
office identified in the instructions that accompany Form I-800A.
    (b) Form I-800. After a Form I-800A has been approved, a petitioner 
may file a Form I-800 on behalf of a Convention adoptee with the 
stateside or overseas USCIS office identified in the instructions that 
accompany Form I-800. The petitioner may also file the Form I-800 with a 
visa-issuing post that would have jurisdiction to adjudicate a visa 
application filed by or on behalf of the Convention adoptee, when filing 
with the visa-issuing post is permitted by the instructions that 
accompany Form I-800.
    (c) Final approval of Form I-800. Once a Form I-800 has been 
provisionally approved under 8 CFR 204.313(g) and the petitioner has 
either adopted or obtained custody of the child for purposes

[[Page 140]]

of emigration and adoption, the Department of State officer with 
jurisdiction to adjudicate the child's application for an immigrant or 
nonimmigrant visa has jurisdiction to grant final approval of the Form 
I-800. The Department of State officer may approve the Form I-800, but 
may not deny it; the Department of State officer must refer any Form I-
800 that is ``not clearly approvable'' for a decision by a USCIS office 
having jurisdiction over Form I-800 cases. If the Department of State 
officer refers the Form I-800 to USCIS because it is ``not clearly 
approvable,'' then USCIS has jurisdiction to approve or deny the Form I-
800. In the case of an alien child who is in the United States and who 
is eligible both under 8 CFR 204.309(b)(4) for approval of a Form I-800 
and under 8 CFR part 245 for adjustment of status, the USCIS office with 
jurisdiction to adjudicate the child's adjustment of status application 
also has jurisdiction to grant final approval of the Form I-800.
    (d) Use of electronic filing. When, and if, USCIS adopts electronic, 
internet-based or other digital means for filing Convention cases, the 
terms ``filing a Form I-800A'' and ``filing a Form I-800'' will include 
an additional option. Rather than filing the Form I-800A or Form I-800 
and accompanying evidence in a paper format, the submission of the same 
required information and accompanying evidence may be filed according to 
the digital filing protocol that USCIS adopts.



Sec. 204.309  Factors requiring denial of a Form I-800A or Form I-800.

    (a) Form I-800A. A USCIS officer must deny a Form I-800A if:
    (1) The applicant or any additional adult member of the household 
failed to disclose to the home study preparer or to USCIS, or concealed 
or misrepresented, any fact(s) about the applicant or any additional 
member of the household concerning the arrest, conviction, or history of 
substance abuse, sexual abuse, child abuse, and/or family violence, or 
any other criminal history as an offender; the fact that an arrest or 
conviction or other criminal history has been expunged, sealed, 
pardoned, or the subject of any other amelioration does not relieve the 
applicant or additional adult member of the household of the obligation 
to disclose the arrest, conviction or other criminal history;
    (2) The applicant, or any additional adult member of the household, 
failed to cooperate in having available child abuse registries checked 
in accordance with 8 CFR 204.311;
    (3) The applicant, or any additional adult member of the household, 
failed to disclose, as required by 8 CFR 204.311, each and every prior 
adoption home study, whether completed or not, including those that did 
not favorably recommend for adoption or custodial care, the person(s) to 
whom the prior home study related; or
    (4) The applicant is barred by 8 CFR 204.307(c) from filing the Form 
I-800A.
    (b) Form I-800. A USCIS officer must deny a Form I-800 if:
    (1) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a 
new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner completed the adoption of the child, or 
acquired legal custody of the child for purposes of emigration and 
adoption, before the provisional approval of the Form I-800 under 8 CFR 
204.313(g). This restriction will not apply if a competent authority in 
the country of the child's habitual residence voids, vacates, annuls, or 
terminates the adoption or grant of custody and then, after the 
provisional approval of the Form I-800, and after receipt of notice 
under article 5(c) of the Convention that the child is, or will be, 
authorized to enter and reside permanently in the United States, permits 
a new grant of adoption or custody. The prior adoption must be voided, 
vacated, annulled or otherwise terminated before the petitioner files a 
Form I-800.
    (2) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a 
new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner, or any additional adult member of the 
household had met with, or had any other form of contact with, the 
child's parents, legal custodian, or other individual or entity who was 
responsible for the child's care when the contact occurred, unless the 
contact was permitted under this paragraph. An authorized adoption 
service

[[Page 141]]

provider's sharing of general information about a possible adoption 
placement is not ``contact'' for purposes of this section. Contact is 
permitted under this paragraph if:
    (i) The first such contact occurred only after USCIS had approved 
the Form I-800A filed by the petitioner, and after the competent 
authority of the Convention country had determined that the child is 
eligible for intercountry adoption and that the required consents to the 
adoption have been given; or
    (ii) The competent authority of the Convention country had permitted 
earlier contact, either in the particular instance or through laws or 
rules of general application, and the contact occurred only in 
compliance with the particular authorization or generally applicable 
laws or rules. If the petitioner first adopted the child without 
complying with the Convention, the competent authority's decision to 
permit the adoption to be vacated, and to allow the petitioner to adopt 
the child again after complying with the Convention, will also 
constitute approval of any prior contact; or
    (iii) The petitioner was already, before the adoption, the father, 
mother, son, daughter, brother, sister, uncle, aunt, first cousin (that 
is, the petitioner, or either spouse, in the case of a married 
petitioner had at least one grandparent in common with the child's 
parent), second cousin (that is, the petitioner, or either spouse, in 
the case of a married petitioner, had at least one great-grandparent in 
common with the child's parent) nephew, niece, husband, former husband, 
wife, former wife, father-in-law, mother-in-law, son-in-law, daughter-
in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, 
stepdaughter, stepbrother, stepsister, half brother, or half sister of 
the child's parent(s).
    (3) The USCIS officer finds that the petitioner, or any individual 
or entity acting on behalf of the petitioner has engaged in any conduct 
related to the adoption or immigration of the child that is prohibited 
by 8 CFR 204.304, or that the petitioner has concealed or misrepresented 
any material facts concerning payments made in relation to the adoption;
    (4) The child is present in the United States, unless the 
petitioner, after compliance with the requirements of this subpart, 
either adopt(s) the child in the Convention country, or else, after 
having obtained custody of the child under the law of the Convention 
country for purposes of emigration and adoption, adopt(s) the child in 
the United States. This subpart does not require the child's actual 
return to the Convention country; whether to permit the child's adoption 
without the child's return is a matter to be determined by the Central 
Authority of the country of the child's habitual residence, but approval 
of a Form I-800 does not relieve an alien child of his or her 
ineligibility for adjustment of status under section 245 of the Act, if 
the child is present in the United States without inspection or is 
otherwise ineligible for adjustment of status. If the child is in the 
United States but is not eligible for adjustment of status, the Form I-
800 may be provisionally approved only if the child will leave the 
United States after the provisional approval and apply for a visa abroad 
before the final approval of the Form I-800.
    (5) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a 
new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner files the Form I-800:
    (i) Before the approval of a Form I-800A, or
    (ii) After the denial of a Form I-800A; or
    (iii) After the expiration of the approval of a Form I-800A;
    (6) The petitioner is barred by 8 CFR 204.307(c) from filing the 
Form I-800.
    (c) Notice of intent to deny. Before denying a Form I-800A under 
paragraph (a) or a Form I-800 under paragraph (b) of this section, the 
USCIS officer will notify the applicant (for a Form I-800A case) or 
petitioner (for a Form I-800 case) in writing of the intent to deny the 
Form I-800A or Form I-800 and provide 30 days in which to submit 
evidence and argument to rebut the claim that this section requires 
denial of the Form I-800A or Form I-800.
    (d) Rebuttal of intent to deny. If USCIS notifies the applicant that 
USCIS intends to deny a Form I-800A under paragraph (a) of this section, 
because

[[Page 142]]

the applicant or any additional adult member(s) of the household failed 
to disclose to the home study preparer or to USCIS, or concealed or 
misrepresented, any fact(s) concerning the arrest, conviction, or 
history of substance abuse, sexual abuse or child abuse, and/or family 
violence, or other criminal history, or failed to cooperate in search of 
child abuse registries, or failed to disclose a prior home study, the 
applicant may rebut the intent to deny only by establishing, by clear 
and convincing evidence that:
    (1) The applicant or additional adult member of the household did, 
in fact, disclose the information; or
    (2) If it was an additional adult member of the household who failed 
to cooperate in the search of child abuse registries, or who failed to 
disclose to the home study preparer or to USCIS, or concealed or 
misrepresented, any fact(s) concerning the arrest, conviction, or 
history of substance abuse, sexual abuse or child abuse, and/or family 
violence, or other criminal history, or failed to disclose a prior home 
study, that that person is no longer a member of the household and that 
that person's conduct is no longer relevant to the suitability of the 
applicant as the adoptive parent of a Convention adoptee.



Sec. 204.310  Filing requirements for Form I-800A.

    (a) Completing and filing the Form. A United States citizen seeking 
to be determined eligible and suitable as the adoptive parent of a 
Convention adoptee must:
    (1) Complete Form I-800A, including a Form I-800A Supplement 1 for 
each additional adult member of the household, in accordance with the 
instructions that accompany the Form I-800A.
    (2) Sign the Form I-800A personally. One spouse cannot sign for the 
other, even under a power of attorney or similar agency arrangement.
    (3) File the Form I-800A with the USCIS office that has jurisdiction 
under 8 CFR 204.308(a) to adjudicate the Form I-800A, together with:
    (i) The fee specified in 8 CFR 103.7(b)(1) for the filing of Form I-
800A;
    (ii) The additional biometrics information collection fee required 
under 8 CFR 103.7(b)(1) for the applicant and each additional adult 
member of the household;
    (iii) Evidence that the applicant is a United States citizen, as set 
forth in 8 CFR 204.1(g), or, in the case of a married applicant, 
evidence either that both spouses are citizens or, if only one spouse is 
a United States citizen, evidence of that person's citizenship and 
evidence that the other spouse, if he or she lives in the United States, 
is either a non-citizen United States national or an alien who holds a 
lawful status under U.S. immigration law.
    (iv) A copy of the current marriage certificate, unless the 
applicant is not married;
    (v) If the applicant has been married previously, a death 
certificate or divorce or dissolution decree to establish the legal 
termination of all previous marriages, regardless of current marital 
status;
    (vi) If the applicant is not married, his or her birth certificate, 
U.S. passport biographical information page, naturalization or 
citizenship certificate, or other evidence, to establish that he or she 
is at least 24 years old;
    (vii) A written description of the preadoption requirements, if any, 
of the State of the child's proposed residence in cases where it is 
known that any child the applicant may adopt will be adopted in the 
United States, and of the steps that have already been taken or that are 
planned to comply with these requirements. The written description must 
include a citation to the State statutes and regulations establishing 
the requirements. Any preadoption requirements which cannot be met at 
the time the Form I-800A is filed because of the operation of State law 
must be noted and explained when the Form I-800A is filed.
    (viii) A home study that meets the requirements of 8 CFR 204.311 and 
that bears the home study preparer's original signature. If the home 
study is not included with the Form I-800A, the director of the office 
that has jurisdiction to adjudicate the Form I-800A will make a written 
request for evidence, directing the applicant to submit the home study. 
If the applicant fails to

[[Page 143]]

submit the home study within the period specified in the request for 
evidence, the director of the office that has jurisdiction to adjudicate 
the Form I-800A will deny the Form I-800A. Denial of a Form I-800A under 
this paragraph for failure to submit a home study is not subject to 
appeal, but the applicant may file a new Form I-800A, accompanied by a 
new filing fee.
    (b) Biometrics. Upon the proper filing of a Form I-800A, USCIS will 
arrange for the collection of biometrics from the applicant and each 
additional adult member of the household, as prescribed in 8 CFR 
103.2(e), but with no upper age limit. It will be necessary to collect 
the biometrics of each of these persons again, if the initial collection 
expires before approval of the Form I-800A. USCIS may waive this 
requirement for any particular individual if USCIS determines that that 
person is physically unable to comply. However, USCIS will require the 
submission of affidavits, police clearances, or other evidence relating 
to whether that person has a criminal history in lieu of collecting the 
person's biometrics.
    (c) Change in marital status. If, while a Form I-800A is pending, an 
unmarried applicant marries, or the marriage of a married applicant 
ends, an amended Form I-800A and amended home study must be filed to 
reflect the change in marital status. No additional filing fee is 
required to file an amended Form I-800A while the original Form I-800A 
is still pending. See 8 CFR 204.312(e)(2) concerning the need to file a 
new Form I-800A if the marital status changes after approval of a Form 
I-800A.



Sec. 204.311  Convention adoption home study requirements.

    (a) Purpose. For immigration purposes, a home study is a process for 
screening and preparing an applicant who is interested in adopting a 
child from a Convention country.
    (b) Preparer. Only an individual or entity defined under 8 CFR 
204.301 as a home study preparer for Convention cases may complete a 
home study for a Convention adoption. In addition, the individual or 
entity must be authorized to complete adoption home studies under the 
law of the jurisdiction in which the home study is conducted.
    (c) Study requirements. The home study must:
    (1) Be tailored to the particular situation of the applicant and to 
the specific Convention country in which the applicant intends to seek a 
child for adoption. For example, an applicant who has previously adopted 
children will require different preparation than an applicant who has no 
adopted children. A home study may address the applicant's suitability 
to adopt in more than one Convention country, but if the home study does 
so, the home study must separately assess the applicant's suitability as 
to each specific Convention country.
    (2) If there are any additional adult members of the household, 
identify each of them by name, alien registration number (if the 
individual has one), and date of birth.
    (3) Include an interview by the preparer of any additional adult 
member of the household and an assessment of him or her in light of the 
requirements of this section.
    (4) Be no more than 6 months old at the time the home study is 
submitted to USCIS.
    (5) Include the home study preparer's assessment of any 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. See 8 CFR 204.309(a) for the 
consequences of failure to disclose information or cooperate in 
completion of a home study.
    (6) Include the home study preparer's signature, in accordance with 
paragraph (f) of this section.
    (7) State the number of interviews and visits, the participants, 
date and location of each interview and visit, and the date and location 
of any other contacts with the applicant and any additional adult member 
of the household.
    (8) Summarize the pre-placement preparation and training already 
provided to the applicant concerning the issues specified in 22 CFR 
96.48(a) and (b), the plans for future preparation and training with 
respect to those issues, or with respect to a particular child, as 
specified in 22 CFR 96.48(c),

[[Page 144]]

and the plans for post-placement monitoring specified in 22 CFR 96.50, 
in the event that the child will be adopted in the United States rather 
than abroad.
    (9) Specify whether the home study preparer made any referrals as 
described in paragraph (g)(4) of this section, and include a copy of the 
report resulting from each referral, the home study preparer's 
assessment of the impact of the report on the suitability of the 
applicant to adopt, and the home study preparer's recommended 
restrictions, if any, on the characteristics of the child to be placed 
in the home.
    (10) Include results of the checks conducted in accordance with 
paragraph (i) of this section including that no record was found to 
exist, that the State or foreign country will not release information to 
the home study preparer or anyone in the household, or that the State or 
foreign country does not have a child abuse registry.
    (11) Include each person's response to the questions regarding abuse 
and violence in accordance with paragraph (j) of this section.
    (12) Include 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 for 
anyone subject to the home study and a written statement submitted with 
the home study giving details, including any mitigating circumstances 
about each arrest, signed, under penalty of perjury, by the person to 
whom the arrest relates.
    (13) Contain an evaluation of the suitability of the home for 
adoptive placement of a child in light of any applicant's or additional 
adult member of the household's history of abuse and/or violence as an 
offender, whether this history is disclosed by an applicant or any 
additional adult member of the household or is discovered by home study 
preparer, regardless of the source of the home study preparer's 
discovery. A single incident of sexual abuse, child abuse, or family 
violence is sufficient to constitute a ``history'' of abuse and/or 
violence.
    (14) Contain an evaluation of the suitability of the home for 
adoptive placement of a child in light of disclosure by an applicant, or 
any additional adult member of the household, of a history of substance 
abuse. A person has a history of substance abuse if his or her current 
or past use of alcohol, controlled substances, or other substances 
impaired or impairs his or her ability to fulfill obligations at work, 
school, or home, or creates other social or interpersonal problems that 
may adversely affect the applicant's suitability as an adoptive parent.
    (15) Include a general description of the information disclosed in 
accordance with paragraph (m) of this section concerning the physical, 
mental, and emotional health of the applicant and of any additional 
adult member of the household.
    (16) Identify the agency involved in each prior or terminated home 
study in accordance with paragraph (o) of this section, when the prior 
home study process began, the date the prior home study was completed, 
and whether the prior home study recommended for or against finding the 
applicant or additional adult member of the household suitable for 
adoption, foster care, or other custodial care of a child. If a prior 
home study was terminated without completion, the current home study 
must indicate when the prior home study began, the date of termination, 
and the reason for the termination.
    (d) Duty to disclose. (1) The applicant, and any additional adult 
members of the household, each has a duty of candor and must:
    (i) Give true and complete information to the home study preparer.
    (ii) Disclose any arrest, conviction, or other adverse criminal 
history, whether in the United States or abroad, even if the record of 
the arrest, conviction or other adverse criminal history has been 
expunged, sealed, pardoned, or the subject of any other amelioration. A 
person with a criminal history may be able to establish sufficient 
rehabilitation.
    (iii) Disclose other relevant information, such as physical, mental 
or emotional health issues, or behavioral issues, as specified in 
paragraph (m) of this section. Such problems may not necessarily 
preclude approval of a

[[Page 145]]

Form I-800A, if, for example, they have been or are being successfully 
treated.
    (2) This duty of candor is an ongoing duty, and continues while the 
Form I-800A is pending, after the Form I-800A is approved, and while any 
subsequent Form I-800 is pending, and until there is a final decision 
admitting the Convention adoptee to the United States with a visa. The 
applicant and any additional adult member of the household must notify 
the home study preparer and USCIS of any new event or information that 
might warrant submission of an amended or updated home study.
    (e) State standards. In addition to the requirements of this 
section, the home study preparer must prepare the home study according 
to the requirements that apply to a domestic adoption in the State of 
the applicant's actual or proposed residence in the United States.
    (f) Home study preparer's signature. The home study preparer (or, if 
the home study is prepared by an entity, the officer or employee who has 
authority to sign the home study for the entity) must personally sign 
the home study, and any updated or amended home study. The home study 
preparer's signature must include a declaration, under penalty of 
perjury under United States law, that:
    (1) The signer personally, and with the professional diligence 
reasonably necessary to protect the best interests of any child whom the 
applicant might adopt, either actually conducted or supervised the home 
study, including personal interview(s), the home visits, and all other 
aspects of the investigation needed to prepare the home study; if the 
signer did not personally conduct the home study, the person who 
actually did so must be identified;
    (2) The factual statements in the home study are true and correct, 
to the best of the signer's knowledge, information and belief; and
    (3) The home study preparer has advised the applicant of the duty of 
candor under paragraph (d) of this section, specifically including the 
on-going duty under paragraph (d)(2) of this section concerning 
disclosure of new events or information warranting submission of an 
updated or amended home study.
    (g) Personal interview(s) and home visit(s). The home study preparer 
must:
    (1) Conduct at least one interview in person, and at least one home 
visit, with the applicant.
    (2) Interview, at least once, each additional adult member of the 
household, as defined in 8 CFR 204.301. The interview with an additional 
adult member of the household should also be in person, unless the home 
study preparer determines that interviewing that individual in person is 
not reasonably feasible and explains in the home study the reason for 
this conclusion.
    (3) Provide information on and assess the suitability of the 
applicant as the adoptive parent of a Convention adoptee based on the 
applicant's background, family and medical history (including physical, 
mental and emotional health), social environment, reasons for adoption, 
ability to undertake an intercountry adoption, and the characteristics 
of the child(ren) for whom they would be qualified to care.
    (4) Refer the applicant to an appropriate licensed professional, 
such as a physician, psychiatrist, clinical psychologist, clinical 
social worker, or professional substance abuse counselor, for an 
evaluation and written report, if the home study preparer determines 
that there are areas beyond his or her expertise that need to be 
addressed. The home study preparer must also make such a referral if 
such a referral would be required for a domestic adoption under the law 
of the State of the applicant's actual or proposed place of residence in 
the United States.
    (5) Apply the requirements of this paragraph to each additional 
adult member of the household.
    (h) Financial considerations. (1) Assessment of the finances of the 
applicant must include:
    (i) A description of the applicant's income, financial resources, 
debts, and expenses.
    (ii) A statement concerning the evidence that was considered to 
verify the source and amount of income and financial resources.
    (2) Any income designated for the support of one or more children in 
the applicant's care and custody, such as funds for foster care, or any 
income designated for the support of another

[[Page 146]]

member of the household, must not be counted towards the financial 
resources available for the support of a prospective adoptive child.
    (3) USCIS will not routinely require a detailed financial statement 
or supporting financial documents. However, should the need arise, USCIS 
reserves the right to ask for such detailed documentation.
    (i) Checking available child abuse registries. The home study 
preparer must ensure that a check of the applicant, and of each 
additional adult member of the household, has been made with available 
child abuse registries in any State or foreign country that the 
applicant, or any additional adult member of the household, has resided 
in since that person's 18th birthday. USCIS may also conduct its own 
check of any child abuse registries to which USCIS has access. Depending 
on the extent of access to a relevant registry allowed by the State or 
foreign law, the home study preparer must take one of the following 
courses of action:
    (1) If the home study preparer is allowed access to information from 
the child abuse registries, he or she must make the appropriate checks 
for the applicant and each additional adult member of the household;
    (2) If the State or foreign country requires the home study preparer 
to secure permission from the applicant and each additional adult member 
of the 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;
    (3) If the State or foreign country will only release information 
directly to an individual to whom the information relates, then the 
applicant and the additional adult member of the household must secure 
such information and provide it to the home study preparer.
    (4) If the State or foreign country will release information neither 
to the home study preparer nor to the person to whom the information 
relates, or has not done so within 6 months of a written request for the 
information, this unavailability of information must be noted in the 
home study.
    (j) Inquiring about history of abuse or violence as an offender. The 
home study preparer must ask each applicant and each additional adult 
member of the household whether he or she has a history as an offender, 
whether in the United States or abroad, of substance abuse, sexual 
abuse, or child abuse, or family violence, even if such history did not 
result in an arrest or conviction. This evaluation must include:
    (1) The dates of each arrest or conviction or history of substance 
abuse, sexual abuse or child abuse, and/or family violence; or,
    (2) If not resulting in an arrest, the date or time period (if 
occurring over an extended period of time) of each occurrence and
    (3) Details including any mitigating circumstances about each 
incident.
    Each statement must be signed, under penalty of perjury, by the 
person to whom the incident relates.
    (k) Criminal history. The applicant, and any additional adult 
members of the household, must also disclose to the home study preparer 
and USCIS any history, whether in the United States or abroad, of any 
arrest and/or conviction (other than for minor traffic offenses) in 
addition to the information that the person must disclose under 
paragraph (j) of this section. If an applicant or an additional adult 
member of the household has a criminal record, the officer may still 
find that the applicant will be suitable as the adoptive parent of a 
Convention adoptee, if there is sufficient evidence of rehabilitation as 
described in paragraph (l) of this section.
    (l) Evidence of rehabilitation. If an applicant, or any additional 
adult member of the household, has a history of substance abuse, sexual 
abuse or child abuse, and/or family violence as an offender, or any 
other criminal history, the home study preparer may, nevertheless, make 
a favorable finding if the applicant has demonstrated that the person 
with this adverse history has achieved appropriate rehabilitation. A 
favorable recommendation cannot be made based on a claim of 
rehabilitation while an applicant or any additional adult member of the 
household is on probation, parole, supervised release, or other similar 
arrangement for any conviction. The home study must

[[Page 147]]

include a discussion of the claimed rehabilitation, which demonstrates 
that the applicant is suitable as the adoptive parent(s) of a Convention 
adoptee. Evidence of rehabilitation may include:
    (1) 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, the offender's acceptance of 
responsibility for his or her conduct, and any type of counseling or 
rehabilitation programs which have been successfully completed, or
    (2) A written opinion from an appropriate licensed professional, 
such as a psychiatrist, clinical psychologist, or clinical social 
worker.
    (m) Assessment with respect to physical, mental and emotional health 
or behavioral issues. The home study must address the current physical, 
mental and emotional health of the applicant, or any additional adult 
member of the household, as well as any history of illness or of any 
mental, emotional, psychological, or behavioral instability if the home 
study preparer determines, in the exercise of reasonable professional 
judgment, that the suitability of the applicant as an adoptive parent 
may be affected adversely by such history. Paragraph (g)(4) of this 
section, regarding referral to professionals, applies to any home study 
involving prior psychiatric care, or issues arising from sexual abuse, 
child abuse, or family violence issues if, in the home study preparer's 
reasonable professional judgment, such referral(s) may be necessary or 
helpful to the proper completion of the home study.
    (n) Prior home study. The home study preparer must ask each 
applicant, and any additional adult member of the household, whether he 
or she previously has had a prior home study completed, or began a home 
study process in relation to an adoption or to any form of foster or 
other custodial care of a child that was not completed, whether or not 
the prior home study related to an intercountry adoption, and must 
include each individual's response to this question in the home study 
report. A copy of any previous home study that did not favorably 
recommend the applicant or additional adult member of the household must 
be attached to any home study submitted with a Form I-800A. If a copy of 
any prior home study that did not favorably recommend the applicant or 
additional adult member of the household is no longer available, the 
current home study must explain why the prior home study is no longer 
available. The home study preparer must evaluate the relevance of any 
prior unfavorable or uncompleted home study to the suitability of the 
applicant as the adoptive parent of a Convention adoptee.
    (o) Living accommodations. The home study must include a detailed 
description of the living accommodations where the applicant currently 
resides. If the applicant is planning to move, the home study must 
include a description of the living accommodations where the child will 
reside with the applicant, if known. If the applicant is 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 applicant, 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.
    (p) Handicapped or special needs child. A home study conducted in 
conjunction with the proposed adoption of a special needs or handicapped 
child must contain a discussion of the preparation, willingness, and 
ability of the applicant to provide proper care for a child with the 
handicap or special needs. This information will be used to evaluate the 
suitability of the applicant as the adoptive parent of a special needs 
or handicapped child. If this information is not included in the home 
study, an updated or amended home study will be necessary if the 
applicant seeks to adopt a handicapped or special needs child.
    (q) Addressing a Convention country's specific requirements. If the 
Central Authority of the Convention country has notified the Secretary 
of State of any specific requirements that must be met in order to adopt 
in the Convention country, the home study must include a full and 
complete statement of all

[[Page 148]]

facts relevant to the applicant's eligibility for adoption in the 
Convention country, in light of those specific requirements.
    (r) Specific approval for adoption. If the home study preparer's 
findings are favorable, the home study must contain his or her specific 
approval of the applicant for adoption of a child from the specific 
Convention country or countries, and a discussion of the reasons for 
such approval. The home study must include the number of children the 
applicant may adopt at the same time. The home study must state whether 
there are any specific restrictions to the adoption based on the age or 
gender, or other characteristics of the child. If the home study 
preparer has approved the applicant for a handicapped or special needs 
adoption, this fact must be clearly stated.
    (s) Home study preparer's authority to conduct home studies. The 
home study must include a statement in which the home study preparer 
certifies that he or she is authorized under 22 CFR part 96 to complete 
home studies for Convention adoption cases. The certification must 
specify the State or country under whose authority the home study 
preparer is licensed or authorized, cite the specific law or regulation 
authorizing the preparer to conduct home studies, and indicate the 
license number, if any, and the expiration date, if any, of this 
authorization or license. The certification must also specify the basis 
under 22 CFR part 96 (public domestic authority, accredited agency, 
temporarily accredited agency, approved person, exempted provider, or 
supervised provider) for his or her authorization to conduct Convention 
adoption home studies.
    (t) Review of home study. (1) If the law of the State in which the 
applicant resides requires the competent authority in the State to 
review the home study, such a review must occur and be documented before 
the home study is submitted to USCIS.
    (2) When the home study is not performed in the first instance by an 
accredited agency or temporarily accredited agency, as defined in 22 CFR 
part 96, then an accredited agency or temporarily accredited agency, as 
defined in 22 CFR part 96, must review and approve the home study as 
specified in 22 CFR 96.47(c) before the home study is submitted to 
USCIS. This requirement for review and approval by an accredited agency 
or temporarily accredited agency does not apply to a home study that was 
actually prepared by a public domestic authority, as defined in 22 CFR 
96.2.
    (u) Home study updates and amendments. (1) A new home study 
amendment or update will be required if there is:
    (i) A significant change in the applicant's household, such as a 
change in residence, marital status, criminal history, financial 
resources; or
    (ii) The addition of one or more children in the applicant's home, 
whether through adoption or foster care, birth, or any other means. Even 
if the original home study provided for the adoption of more than one 
adopted child, the applicant must submit an amended home study 
recommending adoption of an additional child, because the addition of 
the already adopted child(ren) to the applicant's household is a 
significant change in the household that should be assessed before the 
adoption of any additional child(ren);
    (iii) The addition of other dependents or additional adult member(s) 
of the household to the family prior to the prospective child's 
immigration into the United States;
    (iv) A change resulting because the applicant is seeking to adopt a 
handicapped or special needs child, if the home study did not already 
address the applicant's suitability as the adoptive parent of a child 
with the particular handicap or special need;
    (v) A change to a different Convention country. This change requires 
the updated home study to address suitability under the requirements of 
the new Convention country;
    (vi) A lapse of more than 6 months between the date the home study 
is completed and the date it is submitted to USCIS; or
    (vii) A change to the child's proposed State of residence. The 
preadoption requirements of the new State must be complied with in the 
case of a child coming to the United States to be adopted.

[[Page 149]]

    (2) Any updated or amended home study must:
    (i) Meet the requirements of this section;
    (ii) Be accompanied by a copy of the home study that is being 
updated or amended, including all prior updates and amendments;
    (iii) Include a statement from the preparer that he or she has 
reviewed the home study that is being updated or amended and is 
personally and fully aware of its contents; and
    (iv) Address whether the home study preparer recommends approval of 
the proposed adoption and the reasons for the recommendation.
    (3) If submission of an updated or amended home study becomes 
necessary before USCIS adjudicates the Form I-800A, the applicant may 
simply submit the updated or amended home study to the office that has 
jurisdiction over the Form I-800A.
    (4) If it becomes necessary to file an updated or amended home study 
after USCIS has approved the Form I-800A, the applicant must file a Form 
I-800A Supplement 3 with the filing fee specified in 8 CFR 103.7(b)(1) 
and the amended or updated home study. If USCIS determines that the 
amended or updated home study shows that the applicant remains suitable 
as the adoptive parent(s) of a Convention adoptee, USCIS will issue a 
new approval notice that will expire on the same date as the original 
approval. If the applicant also wants to have USCIS extend the approval 
period for the Form I-800A, the applicant must submit the updated or 
amended home study with an extension request under 8 CFR 204.312(e)(3), 
rather than under this paragraph (u) of this section.
    (5) Each update must indicate that the home study preparer has 
updated the screening of the applicant and any additional adult member 
of the household under paragraphs (i) through (l) of this section, and 
must indicate the results of this updated screening.



Sec. 204.312  Adjudication of the Form I-800A.

    (a) USCIS action. The USCIS officer must approve a Form I-800A if 
the officer finds, based on the evidence of record, that the applicant 
is eligible under 8 CFR 204.307(a) to file a Form I-800A and the USCIS 
officer is satisfied that the applicant is suitable as the adoptive 
parent of a child from the specified Convention country. If the 
applicant sought approval for more than one Convention country, the 
decision will specify each country for which the Form I-800A is 
approved, and will also specify whether the Form I-800A is denied with 
respect to any particular Convention country.
    (b) Evaluation of the home study. In determining suitability to 
adopt, the USCIS officer will give considerable weight to the home 
study, but is not bound by it. Even if the home study is favorable, the 
USCIS officer must deny the Form I-800A if, on the basis of the evidence 
of record, the officer finds, for a specific and articulable reason, 
that the applicant has failed to establish that he or she is suitable as 
the adoptive parent of a child from the Convention country. The USCIS 
officer may consult the accredited agency or temporarily accredited 
agency that approved the home study, the home study preparer, the 
applicant, the relevant State or local child welfare agency, or any 
appropriate licensed professional, as needed to clarify issues 
concerning whether the applicant is suitable as the adoptive parent of a 
Convention adoptee. If this consultation yields evidence that is adverse 
to the applicant, the USCIS officer may rely on the evidence only after 
complying with the provisions of 8 CFR 103.2(b)(16) relating to the 
applicant's right to review and rebut adverse information.
    (c) Denial of application. (1) The USCIS officer will deny the Form 
I-800A if the officer finds that the applicant has failed to establish 
that the applicant is:
    (i) Eligible under 8 CFR 204.307(a) to file Form I-800A; or
    (ii) Suitable as the adoptive parent of a child from the Convention 
country.
    (2) Before denying a Form I-800A, the USCIS officer will comply with 
8 CFR 103.2(b)(16), if required to do so under that provision, and may 
issue a request for evidence or a notice of intent to deny under 8 CFR 
103.2(b)(8).
    (3) A denial will be in writing, giving the reason for the denial 
and notifying

[[Page 150]]

the applicant of the right to appeal, if any, as provided in 8 CFR 
204.314.
    (4) It is for the Central Authority of the other Convention country 
to determine how its own adoption requirements, as disclosed in the home 
study under 8 CFR 204.311(q), should be applied in a given case. For 
this reason, the fact that the applicant may be ineligible to adopt in 
the other Convention country under those requirements, will not warrant 
the denial of a Form I-800A, if USCIS finds that the applicant has 
otherwise established eligibility and suitability as the adoptive parent 
of a Convention adoptee.
    (d) Approval notice. (1) If USCIS approves the Form I-800A, USCIS 
will notify the applicant in writing as well as the Department of State. 
The notice of approval will specify:
    (i) The expiration date for the notice of approval, as determined 
under paragraph (e) of this section, and
    (ii) The name(s) and marital status of the applicant; and
    (iii) If the applicant is not married and not yet 25 years old, the 
applicant's date of birth.
    (2) Once USCIS approves the Form I-800A, or extends the validity 
period for a prior approval under paragraph (e) of this section, any 
submission of the home study to the Central Authority of the country of 
the child's habitual residence must consist of the entire and complete 
text of the same home study and of any updates or amendments submitted 
to USCIS.
    (e) Duration or revocation of approval. (1) A notice of approval 
expires 15 months after the date on which USCIS received the FBI 
response on the applicant's, and any additional adult member of the 
household's, biometrics, unless approval is revoked. If USCIS received 
the responses on different days, the 15-month period begins on the 
earliest response date. The notice of approval will specify the 
expiration date. USCIS may extend the validity period for the approval 
of a Form I-800A only as provided in paragraph (e)(3) of this section.
    (2) (i) The approval of a Form I-800A is automatically revoked if 
before the final decision on a Convention adoptee's application for 
admission with an immigrant visa or for adjustment of status:
    (A) The marriage of the applicant terminates; or
    (B) An unmarried applicant marries; or
    (C) In the case of a married applicant, either spouse files with a 
USCIS or Department of State officer a written document withdrawing his 
or her signature on the Form I-800A.
    (ii) This revocation is without prejudice to the filing of a new 
Form I-800A, with fee, accompanied by a new or amended home study, 
reflecting the change in marital status. If a Form I-800 had already 
been filed based on the approval of the prior Form I-800A, a new Form I-
800 must also be filed with the new Form I-800A under this paragraph. 
The new Form I-800 will be adjudicated only if the new Form I-800A is 
approved. The new Form I-800 will not be subject to denial under 8 CFR 
204.309(b)(1) or (2), unless the original Form I-800 would have been 
subject to denial under either of those provisions.
    (3)(i) If the 15-month validity period for a Form I-800A approval is 
about to expire, and the applicant has not filed a Form I-800, the 
applicant may file Form I-800A Supplement 3, with the filing fee under 8 
CFR 103.7(b)(1), if required. The applicant may not file a Form I-800A 
Supplement 3 seeking extension of an approval notice more than 90 days 
before the expiration of the validity period for the Form I-800A 
approval, but must do so on or before the date on which the validity 
period expires. The applicant is not required to pay the Form I-800A 
Supplement 3 filing fee for the first request to extend the approval of 
a Form I-800A. If the applicant files a second or subsequent Form I-800A 
Supplement 3 to obtain a second or subsequent extension, however, the 
applicant must pay the Form I-800A Supplement 3 filing fee, as specified 
in 8 CFR 103.7(b), for the second, or any subsequent, Form I-800A 
Supplement 3 that is filed to obtain a second or subsequent extension. 
Any Form I-800A Supplement 3 that is filed to obtain an extension of the 
approval of a Form I-800A must be accompanied by:
    (A) A statement, signed by the applicant under penalty of perjury, 
detailing any changes to the answers given

[[Page 151]]

to the questions on the original Form I-800A;
    (B) An updated or amended home study as required under 8 CFR 
204.311(u); and
    (C) A photocopy of the Form I-800A approval notice.
    (ii) Upon receipt of the Form I-800A Supplement 3, USCIS will 
arrange for the collection of the biometrics of the applicant and of 
each additional adult member of the applicant's household.
    (iii) If USCIS continues to be satisfied that the applicant remains 
suitable as the adoptive parent of a Convention adoptee, USCIS will 
extend the approval of the Form I-800A to a date not more than 15 months 
after the date on which USCIS received the new biometric responses. If 
new responses are received on different dates, the new 15-month period 
begins on the earliest response date. The new notice of approval will 
specify the new expiration date.
    (iv) There is no limit to the number of extensions that may be 
requested and granted under this section, so long as each request is 
supported by an updated or amended home study that continues to 
recommend approval of the applicant for intercountry adoption and USCIS 
continues to find that the applicant remain suitable as the adoptive 
parent(s) of a Convention adoptee.
    (4) In addition to the automatic revocation provided for in 
paragraph (e)(2) of this section, the approval of a Form I-800A may be 
revoked pursuant to 8 CFR 205.1 or 205.2.



Sec. 204.313  Filing and adjudication of a Form I-800.

    (a) When to file. Once a Form I-800A has been approved and the 
Central Authority has proposed placing a child for adoption by the 
petitioner, the petitioner may file the Form I-800. The petitioner must 
complete the Form I-800 in accordance with the instructions that 
accompany the Form I-800, and must sign the Form I-800 personally. In 
the case of a married petitioner, one spouse cannot sign for the other, 
even under a power of attorney or similar agency arrangement. The 
petitioner may then file the Form I-800 with the stateside or overseas 
USCIS office or the visa issuing post that has jurisdiction under 8 CFR 
204.308(b) to adjudicate the Form I-800, together with the evidence 
specified in this section and the filing fee specified in 8 CFR 
103.7(b)(1), if more than one Form I-800 is filed for children who are 
not siblings.
    (b) What to include on the Form. (1) The petitioner must specify on 
the Form I-800 either that:
    (i) The child will seek an immigrant visa, if the Form I-800 is 
approved, because the child will reside in the United States with the 
petitioner (in the case of a married petitioner, if only one spouse is a 
United States citizen, with that spouse) after the child's admission to 
the United States on the basis of the proposed adoption; or
    (ii) The child will seek a nonimmigrant visa, in order to travel to 
the United States to obtain naturalization under section 322 of the Act, 
because the petitioner intends to complete the adoption abroad and the 
petitioner and the child will continue to reside abroad immediately 
following the adoption, rather than residing in the United States with 
the petitioner. This option is not available if the child will be 
adopted in the United States.
    (2) In applying this paragraph (b), if a petitioner is a United 
States citizen who is domiciled in the United States, but who is posted 
abroad temporarily under official orders as a member of the Uniformed 
Services as defined in 5 U.S.C. 2101, or as a civilian officer or 
employee of the United States Government, the child will be deemed to be 
coming to the United States to reside in the United States with that 
petitioner.
    (c) Filing deadline. (1) The petitioner must file the Form I-800 
before the expiration of the notice of the approval of the Form I-800A 
and before the child's 16th birthday. Paragraphs (c)(2) and (3) of this 
section provide special rules for determining that this requirement has 
been met.
    (2) If the appropriate Central Authority places the child with the 
petitioner for intercountry adoption more than 6 months after the 
child's 15th birthday but before the child's 16th birthday, the 
petitioner must still file the Form I-800 before the child's 16th 
birthday. If the evidence required by paragraph

[[Page 152]]

(d)(3) or (4) of this section is not yet available, instead of that 
evidence, the petitioner may submit a statement from the primary 
provider, signed under penalty of perjury under United States law, 
confirming that the Central Authority has, in fact, made the adoption 
placement on the date specified in the statement. Submission of a Form 
I-800 with this statement will satisfy the statutory requirement that 
the petition must be submitted before the child's 16th birthday, but no 
provisional or final approval of the Form I-800 will be granted until 
the evidence required by paragraph (d)(3) or (4) of this section has 
been submitted. When submitted, the evidence required by paragraph 
(d)(3) and (4) must affirmatively show that the Central Authority did, 
in fact, make the adoption placement decision before the child's 16th 
birthday.
    (3) If the Form I-800A was filed after the child's 15th birthday but 
before the child's 16th birthday, the filing date of the Form I-800A 
will be deemed to be the filing date of the Form I-800, provided the 
Form I-800 is filed not more than 180 days after the initial approval of 
the Form I-800A.
    (d) Required evidence. Except as specified in paragraph (c)(2) of 
this section, the petitioner must submit the following evidence with the 
properly completed Form I-800:
    (1) The Form I-800A approval notice and, if applicable, proof that 
the approval period has been extended under 8 CFR 204.312(e);
    (2) A statement from the primary provider, as defined in 22 CFR 
96.2, signed under penalty of perjury under United States law, 
indicating that all of the pre-placement preparation and training 
provided for in 22 CFR 96.48 has been completed;
    (3) The report required under article 16 of the Convention, 
specifying the child's name and date of birth, the reasons for making 
the adoption placement, and establishing that the competent authority 
has, as required under article 4 of the Convention:
    (i) Established that the child is eligible for adoption;
    (ii) Determined, after having given due consideration to the 
possibility of placing the child for adoption within the Convention 
country, that intercountry adoption is in the child's best interests;
    (iii) Ensured that the legal custodian, after having been counseled 
as required, concerning the effect of the child's adoption on the legal 
custodian's relationship to the child and on the child's legal 
relationship to his or her family of origin, has freely consented in 
writing to the child's adoption, in the required legal form;
    (iv) Ensured that if any individual or entity other than the legal 
custodian must consent to the child's adoption, this individual or 
entity, after having been counseled as required concerning the effect of 
the child's adoption, has freely consented in writing, in the required 
legal form, to the child's adoption;
    (v) Ensured that the child, after having been counseled as 
appropriate concerning the effects of the adoption; has freely consented 
in writing, in the required legal form, to the adoption, if the child is 
of an age that, under the law of the country of the child's habitual 
residence, makes the child's consent necessary, and that consideration 
was given to the child's wishes and opinions; and
    (vi) Ensured that no payment or inducement of any kind has been 
given to obtain the consents necessary for the adoption to be completed.
    (4) The report under paragraph (d)(3) of this section must be 
accompanied by:
    (i) A copy of the child's birth certificate, or secondary evidence 
of the child's age; and
    (ii) A copy of the irrevocable consent(s) signed by the legal 
custodian(s) and any other individual or entity who must consent to the 
child's adoption unless, as permitted under article 16 of the 
Convention, the law of the country of the child's habitual residence 
provides that their identities may not be disclosed, so long as the 
Central Authority of the country of the child's habitual residence 
certifies in its report that the required documents exist and that they 
establish the child's age and availability for adoption;
    (iii) A statement, signed under penalty of perjury by the primary 
provider (or an authorized representative if the

[[Page 153]]

primary provider is an agency or other juridical person), certifying 
that the report is a true, correct, and complete copy of the report 
obtained from the Central Authority of the Convention country;
    (iv) A summary of the information provided to the petitioner under 
22 CFR 96.49(d) and (f) concerning the child's medical and social 
history. This summary, or a separate document, must include:
    (A) A statement concerning whether, from any examination as 
described in 22 CFR 96.49(e) or for any other reason, there is reason to 
believe that the child has any medical condition that makes the child 
inadmissible under section 212(a)(1) of the Act; if the medical 
information that is available at the provisional approval stage is not 
sufficient to assess whether the child may be inadmissible under section 
212(a)(1), the submission of this information may be deferred until the 
petitioner seeks final approval of the Form I-800;
    (B) If both of the child's birth parents were the child's legal 
custodians and signed the irrevocable consent, the factual basis for 
determining that they are incapable of providing proper care for the 
child, as defined in 8 CFR 204.301;
    (C) Information about the circumstances of the other birth parent's 
death, if applicable, supported by a copy of the death certificate, 
unless paragraph (d)(4)(ii) of this section makes it unnecessary to 
provide a copy of the death certificate;
    (D) If a sole birth parent was the legal custodian, the 
circumstances leading to the determination that the other parent 
abandoned or deserted the child, or disappeared from the child's life; 
and
    (E) If the legal custodian was the child's prior adoptive parent(s) 
or any individual or entity other than the child's birth parent(s), the 
circumstances leading to the custodian's acquisition of custody of the 
child and the legal basis of that custody.
    (v) If the child will be adopted in the United States, the primary 
provider's written report, signed under penalty of perjury by the 
primary provider (or an authorized representative if the primary 
provider is an agency or other juridical person) detailing the primary 
adoption service provider's plan for post-placement duties, as specified 
in 22 CFR 96.50; and
    (5) If the child may be inadmissible under any provision of section 
212(a) for which a waiver is available, a properly completed waiver 
application for each such ground; and
    (6) Either a Form I-864W, Intending Immigrant's I-864 Exemption, or 
a Form I-864, Affidavit of Support, as specified in 8 CFR 213a.2.
    (e) Obtaining the home study and supporting evidence. The materials 
from the Form I-800A proceeding will be included in the record of the 
Form I-800 proceeding.
    (f) Investigation. An investigation concerning the alien child's 
status as a Convention adoptee will be completed before the Form I-800 
is adjudicated in any case in which the officer with jurisdiction to 
grant provisional or final approval of the Form I-800 determines, on the 
basis of specific facts, that completing the investigation will aid in 
the provisional or final adjudication of the Form I-800. Depending on 
the circumstances surrounding the case, the investigation may include, 
but is not limited to, document checks, telephone checks, interview(s) 
with the birth or prior adoptive parent(s), a field investigation, and 
any other appropriate investigatory actions. In any case in which there 
are significant differences between the facts presented in the approved 
Form I-800A or Form I-800 and the facts uncovered by the investigation, 
the office conducting the investigation may consult directly with the 
appropriate USCIS office. In any instance where the investigation 
reveals negative information sufficient to sustain a denial of the Form 
I-800 (including a denial of a Form I-800 that had been provisionally 
approved) or the revocation of the final approval of the Form I-800, the 
results of the investigation, including any supporting documentation, 
and the Form I-800 and its supporting documentation will be forwarded to 
the appropriate USCIS office for action. Although USCIS is not precluded 
from denying final approval of a Form I-800 based on the results of an 
investigation under this paragraph, the grant of provisional approval 
under

[[Page 154]]

paragraph (g), and the fact that the Department of State has given the 
notice contemplated by article 5(c) of the Convention, shall constitute 
prima facie evidence that the grant of adoption or custody for purposes 
of adoption will, ordinarily, warrant final approval of the Form I-800. 
The Form I-800 may still be denied, however, if the Secretary of State 
declines to issue the certificate provided for under section 204(d)(2) 
of the Act or if the investigation under this paragraph establishes the 
existence of facts that clearly warrant denial of the petition.
    (g) Provisional approval. (1) The officer will consider the evidence 
described in paragraph (d) of this section and any additional evidence 
acquired as a result of any investigation completed under paragraph (f) 
of this section, to determine whether the preponderance of the evidence 
shows that the child qualifies as a Convention adoptee. Unless 8 CFR 
204.309(b) prohibits approval of the Form I-800, the officer will serve 
the petitioner with a written order provisionally approving the Form I-
800 if the officer determines that the child does qualify for 
classification as a ``child'' under section 101(b)(1)(G), and that the 
proposed adoption or grant of custody will meet the Convention 
requirements.
    (i) The provisional approval will expressly state that the child 
will, upon adoption or acquisition of custody, be eligible for 
classification as a Convention adoptee, adjudicate any waiver 
application and (if any necessary waiver of inadmissibility is granted) 
direct the petitioner to obtain and present the evidence required under 
paragraph (h) of this section in order to obtain final approval of the 
Form I-800.
    (ii) The grant of a waiver of inadmissibility in conjunction with 
the provisional approval of a Form I-800 is conditioned upon the 
issuance of an immigrant or nonimmigrant visa for the child's admission 
to the United States based on the final approval of the same Form I-800. 
If the Form I-800 is finally denied or the immigrant or nonimmigrant 
visa application is denied, the waiver is void.
    (2) If the petitioner filed the Form I-800 with USCIS and the child 
will apply for an immigrant or nonimmigrant visa, then, upon provisional 
approval of the Form I-800, the officer will forward the notice of 
provisional approval, Form I-800, and all supporting evidence to the 
Department of State. If the child will apply for adjustment of status, 
USCIS will retain the record of proceeding.
    (h) Final approval. (1) To obtain final approval of a provisionally 
approved Form I-800, the petitioner must submit to the Department of 
State officer who has jurisdiction of the child's application for an 
immigrant or nonimmigrant visa, or to the USCIS officer who has 
jurisdiction of the child's adjustment of status application, a copy of 
the following document(s):
    (i) If the child is adopted in the Convention country, the adoption 
decree or administrative order from the competent authority in the 
Convention country showing that the petitioner has adopted the child; in 
the case of a married petitioner, the decree or order must show that 
both spouses adopted the child; or
    (ii) If the child will be adopted in the United States:
    (A) The decree or administrative order from the competent authority 
in the Convention country giving custody of the child for purposes of 
emigration and adoption to the petitioner or to an individual or entity 
acting on behalf of the petitioner. In the case of a married petitioner, 
an adoption decree that shows that the child was adopted only by one 
spouse, but not by both, will be deemed to show that the petitioner has 
acquired sufficient custody to bring the child to the United States for 
adoption by the other spouse;
    (B) If not already provided before the provisional approval 
(because, for example, the petitioner thought the child would be adopted 
abroad, but that plan has changed so that the child will now be adopted 
in the United States), a statement from the primary provider, signed 
under penalty of perjury under United States law, summarizing the plan 
under 22 CFR 96.50 for monitoring of the placement until the adoption is 
finalized in the United States;
    (C) If not already provided before the provisional approval 
(because, for example, the petitioner thought the child would be adopted 
abroad, but that plan

[[Page 155]]

has changed so that the child will now be adopted in the United States), 
a written description of the preadoption requirements that apply to 
adoptions in the State of the child's proposed residence and a 
description of when and how, after the child's immigration, the 
petitioner intends to complete the child's adoption. The written 
description must include a citation to the relevant State statutes or 
regulations and specify how the petitioner intends to comply with any 
requirements that can be satisfied only after the child arrives in the 
United States.
    (2) If the Secretary of State, after reviewing the evidence that the 
petitioner provides under paragraph (h)(1)(i) or (ii) of this section, 
issues the certificate required under section 204(d)(2) of the Act, the 
Department of State officer who has jurisdiction over the child's visa 
application has authority, on behalf of USCIS, to grant final approval 
of a Form I-800. In the case of an alien who will apply for adjustment 
of status, the USCIS officer with jurisdiction of the adjustment 
application has authority to grant this final approval upon receiving 
the Secretary of State's certificate under section 204(d)(2) of the Act.
    (i) Denial of Form I-800. (1) A USCIS officer with authority to 
grant provisional or final approval will deny the Form I-800 if the 
officer finds that the child does not qualify as a Convention adoptee, 
or that 8 CFR 204.309(b) of this section requires denial of the Form I-
800. Before denying a Form I-800, the officer will comply with the 
requirements of 8 CFR 103.2(b)(16)), if required to do so under that 
provision, and may issue a request for evidence or a notice of intent to 
deny under 8 CFR 103.2(b)(8).
    (2) The decision will be in writing, specifying the reason(s) for 
the denial and notifying the petitioner of the right to appeal, if any, 
as specified in 8 CFR 204.314.
    (3) If a Department of State officer finds, either at the 
provisional approval stage or the final approval stage, that the Form I-
800 is ``not clearly approvable,'' or that 8 CFR 204.309(b) warrants 
denial of the Form I-800, the Department of State officer will forward 
the Form I-800 and accompanying evidence to the USCIS office with 
jurisdiction over the place of the child's habitual residence for review 
and decision.



Sec. 204.314  Appeal.

    (a) Decisions that may be appealed.
    (1) Except as provided in paragraph (b) of this section:
    (i) An applicant may appeal the denial of a Form I-800A (including 
the denial of a request to extend the prior approval of a Form I-800A) 
and
    (ii) A petitioner may appeal the denial of a Form I-800.
    (2) The provisions of 8 CFR 103.3, concerning how to file an appeal, 
and how USCIS adjudicates an appeal, apply to the appeal of a decision 
under this subpart C.
    (b) Decisions that may not be appealed. There is no appeal from the 
denial of:
    (1) Form I-800A because the Form I-800A was filed during any period 
during which 8 CFR 204.307(c) bars the filing of a Form I-800A; or
    (2) Form I-800A for failure to timely file a home study as required 
by 8 CFR 204.310(a)(3)(viii); or
    (3) Form I-800 that is denied because the Form I-800 was filed 
during any period during which 8 CFR 204.307(c) bars the filing of a 
Form I-800;
    (4) Form I-800 filed either before USCIS approved a Form I-800A or 
after the expiration of the approval of a Form I-800A.



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




Sec.
205.1 Automatic revocation.
205.2 Revocation on notice.

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



Sec. 205.1  Automatic revocation.

    (a) Reasons for automatic revocation. The approval of a petition or 
self-petition made under section 204 of the Act and in accordance with 
part 204 of this chapter is revoked as of the date of approval:
    (1) If the Secretary of State shall terminate the registration of 
the beneficiary pursuant to the provisions of section 203(e) of the Act 
before October

[[Page 156]]

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:
    (1) The petition is deemed under 8 CFR 204.2(i)(1)(iv) to have been 
approved as a Form I-360, Petition for Amerasian, Widow(er) or Special 
Immigrant under 8 CFR 204.2(b); or
    (2) U.S. Citizenship and Immigration Services (USCIS) determines, as 
a matter of discretion exercised for humanitarian reasons in light of 
the facts of a particular case, that it is inappropriate to revoke the 
approval of the petition. USCIS may make this determination only if the 
principal beneficiary of the visa petition asks for reinstatement of the 
approval of the petition and establishes that a person related to the 
principal beneficiary in one of the ways described in section 
213A(f)(5)(B) of the Act is willing and able to file an affidavit of 
support under 8 CFR part 213a as a substitute sponsor.
    (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

[[Page 157]]

for lawful permanent residence in the United States unless the 
petitioner became a United States citizen. The provisions of 8 CFR 
204.2(i)(3) shall apply if the petitioner became a United States 
citizen.
    (ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice 
of withdrawal filed by the petitioner with the officer who approved the 
petition.
    (B) Upon the death of the beneficiary.
    (C) Upon the death or bankruptcy of the sponsor who executed Form I-
361, Affidavit of Financial Support and Intent to Petition for Legal 
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may 
be filed in the beneficiary's behalf with the documentary evidence 
relating to sponsorship and, in the case of a beneficiary under 18 years 
of age, placement. If the new petition is approved, it will be given the 
priority date of the previously approved petition.
    (D) Upon the death or substitution of the petitioner if other than 
the beneficiary or sponsor. However, if the petitioner dies or no longer 
desires or is able to proceed with the petition, and 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, as amended at 71 FR 35749, June 21, 2006]

[[Page 158]]



Sec. 205.2  Revocation on notice.

    (a) General. Any Service officer authorized to approve a petition 
under section 204 of the Act may revoke the approval of that petition 
upon notice to the petitioner on any ground other than those specified 
in Sec. 205.1 when the necessity for the revocation comes to the 
attention of this Service.
    (b) Notice of intent. Revocation of the approval of a petition of 
self-petition under paragraph (a) of this section will be made only on 
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support of 
the petition or self-petition and in opposition to the grounds alleged 
for revocation of the approval.
    (c) Notification of revocation. If, upon reconsideration, the 
approval previously granted is revoked, the director shall provide the 
petitioner or the self-petitioner with a written notification of the 
decision that explains the specific reasons for the revocation. The 
director shall notify the consular officer having jurisdiction over the 
visa application, if applicable, of the revocation of an approval.
    (d) Appeals. The petitioner or self-petitioner may appeal the 
decision to revoke the approval within 15 days after the service of 
notice of the revocation. The appeal must be filed as provided in part 3 
of this chapter, unless the Associate Commissioner for Examinations 
exercises appellate jurisdiction over the revocation under part 103 of 
this chapter. Appeals filed with the Associate Commissioner for 
Examinations must meet the requirements of part 103 of this chapter.

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



PART 207_ADMISSION OF REFUGEES--Table of Contents




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

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

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



Sec. 207.1  Eligibility.

    (a) Filing jurisdiction. Any alien who believes he or she is a 
refugee as defined in section 101(a)(42) of the Act, and is included in 
a refugee group identified in section 207(a) of the Act, may apply for 
admission to the United States by filing an application in accordance 
with Sec. 207.2 with the Service office having jurisdiction over the 
area where the applicant is located. In those areas too distant from a 
Service office, the application may be filed at a designated United 
States consular office.
    (b) Firmly resettled. A refugee is considered to be ``firmly 
resettled'' if he/she has been offered resident status, citizenship, or 
some other type of permanent resettlement by a country other than the 
United States and has travelled to and entered that country as a 
consequence of his/her flight from persecution. Any applicant who has 
become firmly resettled in a foreign country is not eligible for refugee 
status under this chapter.
    (c) Not firmly resettled. Any applicant who claims not to be firmly 
resettled in a foreign country must establish that the conditions of 
his/her residence in that country are so restrictive as to deny 
resettlement. In determining whether or not an applicant is firmly 
resettled in a foreign country, the officer reviewing the matter shall 
consider the conditions under which other residents of the country live: 
(1) Whether permanent or temporary housing is available to the refugee 
in the foreign country; (2) nature of employment available to the 
refugee in the foreign country; and (3) other benefits offered or denied 
to the refugee by the foreign country which are available to other 
residents, such as (i) right to property ownership, (ii) travel 
documentation, (iii) education, (iv) public welfare, and (v) 
citizenship.

[[Page 159]]

    (d) Immediate relatives and special immigrants. Any applicant for 
refugee status who qualifies as an immediate relative or as a special 
immigrant shall not be processed as a refugee unless it is in the public 
interest. The alien shall be advised to obtain an immediate relative or 
special immigrant visa and shall be provided with the proper petition 
forms to send to any prospective petitioners. An applicant who may be 
eligible for classification under sections 203(a)(1), (2), (3), (4), 
(5), (6), or (7) of the Act, and for whom a visa number is now 
available, shall be advised of such eligibility but is not required to 
apply.

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



Sec. 207.2  Applicant processing.

    (a) Forms. Each applicant who seeks admission as a refugee shall 
submit an individual Form I-590 (Registration for Classification as 
Refugee). Additionally, each applicant 14 years old or older must submit 
completed forms G-325C (Biographical Information) and FD-258 (Applicant 
Card).
    (b) Hearing. Each applicant 14 years old or older shall appear in 
person before an immigration officer for inquiry under oath to determine 
his/her eligibility for admission as a refugee.
    (c) Medical examination. Each applicant shall submit to a medical 
examination as required by sections 221(d) and 234 of the Act.
    (d) Sponsorship. Each applicant must be sponsored by a responsible 
person or organization. Transportation for the applicant from his/her 
present abode to the place of resettlement in the United States must be 
guaranteed by the sponsor.

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



Sec. 207.3  Waivers of inadmissibility.

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

[62 FR 10336, Mar. 6, 1997]



Sec. 207.4  Approved application.

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



Sec. 207.5  Waiting lists and priority handling.

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

[[Page 160]]



Sec. 207.6  Control over approved refugee numbers.

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



Sec. 207.7  Derivatives of refugees.

    (a) Eligibility. A spouse, as defined in section 101(a)(35) of the 
Act, and/or child(ren), as defined in section 101(b)(1)(A), (B), (C), 
(D), or (E) of the Act, shall be granted refugee status if accompanying 
or following-to-join the principal alien. An accompanying derivative is 
a spouse or child of a refugee who is in the physical company of the 
principal refugee when he or she is admitted to the United States, or a 
spouse or child of a refugee who is admitted within 4 months following 
the principal refugee's admission. A following-to-join derivative, on 
the other hand, is a spouse or child of a refugee who seeks admission 
more than 4 months after the principal refugee's admission to the United 
States.
    (b) Ineligibility. The following relatives of refugees are 
ineligible for accompanying or following-to-join benefits:
    (1) A spouse or child who has previously been granted asylee or 
refugee status;
    (2) An adopted child, if the adoption took place after the child 
became 16 years old, or if the child has not been in the legal custody 
and living with the parent(s) for at least 2 years;
    (3) A stepchild, if the marriage that created this relationship took 
place after the child became 18 years old;
    (4) A husband or wife if each/both were not physically present at 
the marriage ceremony, and the marriage was not consummated (section 
101(a)(35) of the Act);
    (5) A husband or wife if the U.S. Attorney General has determined 
that such alien has attempted or conspired to enter into a marriage for 
the purpose of evading immigration laws; and
    (6) A parent, sister, brother, grandparent, grandchild, nephew, 
niece, uncle, aunt, cousin or in-law.
    (c) Relationship. The relationship of a spouse and child as defined 
in sections 101(a)(35) and 101(b) (1)(A), (B), (C), (D), or (E), 
respectively, of the Act, must have existed prior to the refugee's 
admission to the United States and must continue to exist at the time of 
filing for accompanying or following-to-join benefits and at the time of 
the spouse or child's subsequent admission to the United States. If the 
refugee proves that the refugee is the parent of a child who was born 
after the refugee's admission as a refugee, but who was in utero on the 
date of the refugee's admission as a refugee, the child shall be 
eligible to accompany or follow-to-join the refugee. The child's mother, 
if not the principal refugee, shall not be eligible to accompany or 
follow-to-join the principal refugee unless the child's mother was the 
principal refugee's spouse on the date of the principal refugee's 
admission as a refugee.
    (d) Filing. A refugee may request accompanying or following-to-join 
benefits for his/her spouse and unmarried, minor child(ren) (whether the 
spouse and children are in or outside the United States) by filing a 
separate Form I-730 Refugee/Asylee Relative Petition, for each 
qualifying family member with the designated Service office. The Form I-
730 may only be filed by the principal refugee. Family members who 
derived their refugee status are not eligible to file the Form I-730 on 
behalf of their spouse and child(ren). A separate Form I-730 must be 
filed for each qualifying family member before February 28, 2000 or 
within 2 years of the refugee's admission to the United States, 
whichever is later, unless the Service determines that the filing period 
should be extended for humanitarian reasons. There is no time limit 
imposed on a family member's travel to the United States once the Form 
I-730 has been approved, provided that the relationship of spouse or 
child continues to exist and approval of the Form I-730 petition has not 
been subsequently revoked. There is no fee for filing this petition.

[[Page 161]]

    (e) Evidence. Documentary evidence consists of those documents which 
establish that the petitioner is a refugee, and evidence of the claimed 
relationship of the petitioner to the beneficiary. The burden of proof 
is on the petitioner to establish by a preponderance of the evidence 
that any person on whose behalf he/she is making a request under this 
section is an eligible spouse or unmarried, minor child. Evidence to 
establish the claimed relationship for a spouse or unmarried, minor 
child as set forth in 8 CFR part 204 must be submitted with the request 
for accompanying or following-to-join benefits. Where possible this will 
consist of the documents specified in Sec. 204.2(a (1)(i)(B), 
(a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter. In addition, 
a recent photograph of each derivative must accompany the Form I-730. 
The photograph must clearly identify the derivative, and will be made 
part of the derivative's immigration record for identification purposes.
    (f) Approvals--(1) Spouse or child in the United States. When a 
spouse or child of a refugee is in the United States and the Form I-730 
is approved, the Service will notify the refugee of such approval on 
Form I-797, Notice of Action. Employment will be authorized incident to 
status.
    (2) Spouse or child outside the United States. When a spouse or 
child of a refugee is outside the United States and the Form I-730 is 
approved, the Service will notify the refugee of such approval on Form 
I-797. The approved Form I-730 will be sent by the Service to the 
Department of State for forwarding to the American Embassy or Consulate 
having jurisdiction over the area in which the refugee's spouse or child 
is located.
    (3) Benefits. The approval of the Form I-730 shall remain valid for 
the duration of the relationship to the refugee and, in the case of a 
child, while the child is under 21 years of age and unmarried, provided 
also that the principal's status has not been revoked. However, the 
approved Form I-730 will cease to confer immigration benefits after it 
has been used by the beneficiary for admission to the United States as a 
derivative of a refugee. To demonstrate employment authorization, the 
Service will issue a Form I-94, Arrival-Departure Record, which also 
reflects the derivative's current status as a refugee, or the derivative 
may apply under Sec. 274a.12(a) of this chapter, using Form I-765, 
Application for Employment Authorization, and a copy of the Form I-797.
    (g) Denials. If the spouse or child of a refugee is found to be 
ineligible for derivative status, a written notice explaining the basis 
for denial shall be forwarded to the principal refugee. There shall be 
no appeal from this decision. However, the denial shall be without 
prejudice to the consideration of a new petition or motion to reopen the 
refugee or asylee relative petition proceeding, if the refugee 
establishes eligibility for the accompanying or following-to-join 
benefits contained in this part.

[63 FR 3795, Jan. 27, 1998]



Sec. 207.8  Physical presence in the United States.

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

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



Sec. 207.9  Termination of refugee status.

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

[[Page 162]]

alien under sections 235, 240, and 241 of the Act.

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



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




               Subpart A_Asylum and Withholding of Removal

Sec.
208.1 General.
208.2 Jurisdiction.
208.3 Form of application.
208.4 Filing the application.
208.5 Special duties toward aliens in custody of the Service.
208.6 Disclosure to third parties.
208.7 Employment authorization.
208.8 Limitations on travel outside the United States.
208.9 Procedure for interview before an asylum officer.
208.10 Failure to appear at an interview before an asylum officer or 
          failure to follow requirements for fingerprint processing.
208.11 Comments from the Department of State.
208.12 Reliance on information compiled by other sources.
208.13 Establishing asylum eligibility.
208.14 Approval, denial, referral, or dismissal of application.
208.15 Definition of ``firm resettlement.''
208.16 Withholding of removal under section 241(b)(3)(B) of the Act and 
          withholding of removal under the Convention Against Torture.
208.17 Deferral of removal under the Convention Against Torture.
208.18 Implementation of the Convention Against Torture.
208.19 Decisions.
208.20 Determining if an asylum application is frivolous.
208.21 Admission of the asylee's spouse and children.
208.22 Effect on exclusion, deportation, and removal proceedings.
208.23 Restoration of status.
208.24 Termination of asylum or withholding of removal or deportation.
208.25-208.29 [Reserved]

                 Subpart B_Credible Fear of Persecution

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

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

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



               Subpart A_Asylum and Withholding of Removal



Sec. 208.1  General.

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

[[Page 163]]

other appropriate sources, compile and disseminate to asylum officers 
information concerning the persecution of persons in other countries on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion, torture of persons in other 
countries, and other information relevant to asylum determinations, and 
shall maintain a documentation center with information on human rights 
conditions.

[64 FR 8487, Feb. 19, 1999]



Sec. 208.2  Jurisdiction

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

[[Page 164]]

convicted of committing an aggravated felony.
    (3) Rules of procedure--(i)General. Except as provided in this 
section, proceedings falling under the jurisdiction of the immigration 
judge pursuant to paragraph (c)(1) or (c)(2) of this section shall be 
conducted in accordance with the same rules of procedure as proceedings 
conducted under 8 CFR part 240, subpart A. The scope of review in 
proceedings conducted pursuant to paragraph (c)(1) of this section shall 
be limited to a determination of whether the alien is eligible for 
asylum or withholding or deferral of removal, and whether asylum shall 
be granted in the exercise of discretion. The scope of review in 
proceedings conducted pursuant to paragraph (c)(2) of this section shall 
be limited to a determination of whether the alien is eligible for 
withholding or deferral of removal. During such proceedings, all parties 
are prohibited from raising or considering any other issues, including 
but not limited to issues of admissibility, deportability, eligibility 
for waivers, and eligibility for any other form of relief.
    (ii) Notice of hearing procedures and in-absentia decisions. The 
alien will be provided with notice of the time and place of the 
proceeding. The request for asylum and withholding of removal submitted 
by an alien who fails to appear for the hearing shall be denied. The 
denial of asylum and withholding of removal for failure to appear may be 
reopened only upon a motion filed with the immigration judge with 
jurisdiction over the case. Only one motion to reopen may be filed, and 
it must be filed within 90 days, unless the alien establishes that he or 
she did not receive notice of the hearing date or was in Federal or 
State custody on the date directed to appear. The motion must include 
documentary evidence, which demonstrates that:
    (A) The alien did not receive the notice;
    (B) The alien was in Federal or State custody and the failure to 
appear was through no fault of the alien; or
    (C) ``Exceptional circumstances,'' as defined in section 240(e)(1) 
of the Act, caused the failure to appear.
    (iii) Relief. The filing of a motion to reopen shall not stay 
removal of the alien unless the immigration judge issues an order 
granting a stay pending disposition of the motion. An alien who fails to 
appear for a proceeding under this section shall not be eligible for 
relief under section 240A, 240B, 245, 248, or 249 of the Act for a 
period of 10 years after the date of the denial, unless the applicant 
can show exceptional circumstances resulted in his or her failure to 
appear.

[65 FR 76130, Dec. 6, 2000]



Sec. 208.3  Form of application.

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

[[Page 165]]

perjury. The applicant's signature establishes a presumption that the 
applicant is aware of the contents of the application. A person other 
than a relative specified in this paragraph who assists the applicant in 
preparing the application also must provide his or her full mailing 
address;
    (3) An asylum application that does not include a response to each 
of the questions contained in the Form I-589, is unsigned, or is 
unaccompanied by the required materials specified in paragraph (a) of 
this section is incomplete. The filing of an incomplete application 
shall not commence the 150-day period after which the applicant may file 
an application for employment authorization in accordance with Sec. 
208.7. An application that is incomplete shall be returned by mail to 
the applicant within 30 days of the receipt of the application by the 
Service. If the Service has not mailed the incomplete application back 
to the applicant within 30 days, it shall be deemed complete. An 
application returned to the applicant as incomplete shall be resubmitted 
by the applicant with the additional information if he or she wishes to 
have the application considered;
    (4) Knowing placement of false information on the application may 
subject the person placing that information on the application to 
criminal penalties under title 18 of the United States Code and to civil 
or criminal penalties under section 274C of the Act; and
    (5) Knowingly filing a frivolous application on or after April 1, 
1997, so long as the applicant has received the notice required by 
section 208(d)(4) of the Act, shall render the applicant permanently 
ineligible for any benefits under the Act pursuant to Sec. 208.20.

[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76131, Dec. 6, 2000]



Sec. 208.4  Filing the application.

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

[[Page 166]]

year period, the mailing date shall be considered the filing date. For 
cases before the Immigration Court in accordance with Sec. 3.13 of this 
chapter, the application is considered to have been filed on the date it 
is received by the Immigration Court. For cases before the Board of 
Immigration Appeals, the application is considered to have been filed on 
the date it is received by the Board. In the case of an application that 
appears to have been filed more than a year after the applicant arrived 
in the United States, the asylum officer, the immigration judge, or the 
Board will determine whether the applicant qualifies for an exception to 
the deadline.
    (3) Prior denial of application. For purposes of section 
208(a)(2)(C) of the Act, an asylum application has not been denied 
unless denied by an immigration judge or the Board of Immigration 
Appeals.
    (4) Changed circumstances. (i) The term ``changed circumstances'' in 
section 208(a)(2)(D) of the Act shall refer to circumstances materially 
affecting the applicant's eligibility for asylum. They may include, but 
are not limited to:
    (A) Changes in conditions in the applicant's country of nationality 
or, if the applicant is stateless, country of last habitual residence;
    (B) Changes in the applicant's circumstances that materially affect 
the applicant's eligibility for asylum, including changes in applicable 
U.S. law and activities the applicant becomes involved in outside the 
country of feared persecution that place the applicant at risk; or
    (C) In the case of an alien who had previously been included as a 
dependent in another alien's pending asylum application, the loss of the 
spousal or parent-child relationship to the principal applicant through 
marriage, divorce, death, or attainment of age 21.
    (ii) The applicant shall file an asylum application within a 
reasonable period given those ``changed circumstances.'' If the 
applicant can establish that he or she did not become aware of the 
changed circumstances until after they occurred, such delayed awareness 
shall be taken into account in determining what constitutes a 
``reasonable period.''
    (5) The term ``extraordinary circumstances'' in section 208(a)(2)(D) 
of the Act shall refer to events or factors directly related to the 
failure to meet the 1-year deadline. Such circumstances may excuse the 
failure to file within the 1-year period as long as the alien filed the 
application within a reasonable period given those circumstances. The 
burden of proof is on the applicant to establish to the satisfaction of 
the asylum officer, the immigration judge, or the Board of Immigration 
Appeals that the circumstances were not intentionally created by the 
alien through his or her own action or inaction, that those 
circumstances were directly related to the alien's failure to file the 
application within the 1-year period, and that the delay was reasonable 
under the circumstances. Those circumstances may include but are not 
limited to:
    (i) Serious illness or mental or physical disability, including any 
effects of persecution or violent harm suffered in the past, during the 
1-year period after arrival;
    (ii) Legal disability (e.g., the applicant was an unaccompanied 
minor or suffered from a mental impairment) during the 1-year period 
after arrival;
    (iii) Ineffective assistance of counsel, provided that:
    (A) The alien files an affidavit setting forth in detail the 
agreement that was entered into with counsel with respect to the actions 
to be taken and what representations counsel did or did not make to the 
respondent in this regard;
    (B) The counsel whose integrity or competence is being impugned has 
been informed of the allegations leveled against him or her and given an 
opportunity to respond; and
    (C) The alien indicates whether a complaint has been filed with 
appropriate disciplinary authorities with respect to any violation of 
counsel's ethical or legal responsibilities, and if not, why not;
    (iv) The applicant maintained Temporary Protected Status, lawful 
immigrant or nonimmigrant status, or was given parole, until a 
reasonable period

[[Page 167]]

before the filing of the asylum application;
    (v) The applicant filed an asylum application prior to the 
expiration of the 1-year deadline, but that application was rejected by 
the Service as not properly filed, was returned to the applicant for 
corrections, and was refiled within a reasonable period thereafter; and
    (vi) The death or serious illness or incapacity of the applicant's 
legal representative or a member of the applicant's immediate family.
    (6) Safe Third Country Agreement. Asylum officers have authority to 
apply section 208(a)(2)(A) of the Act, relating to the determination 
that the alien may be removed to a safe country pursuant to a bilateral 
or multilateral agreement, only as provided in 8 CFR 208.30(e). For 
provisions relating to the authority of immigration judges with respect 
to section 208(a)(2)(A), see 8 CFR 1240.11(g).
    (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. An asylum application shall be filed 
directly with the asylum office having jurisdiction over the matter in 
the case of an alien who:
    (i) Has received the express consent of the asylum office director 
or the Director of Asylum to do so, or
    (ii) Previously was included in a spouse's or parent's pending 
application but is no longer eligible to be included as a derivative. In 
such cases, the derivative should include a cover letter referencing the 
previous application and explaining that he or she is now independently 
filing for asylum.
    (3) With the Immigration Court. Asylum applications shall be filed 
directly with the Immigration Court having jurisdiction over the case in 
the following circumstances:
    (i) During exclusion, deportation, or removal proceedings, with the 
Immigration Court having jurisdiction over the underlying proceeding.
    (ii) After completion of exclusion, deportation, or removal 
proceedings, and in conjunction with a motion to reopen pursuant to 8 
CFR part 3 where applicable, with the Immigration Court having 
jurisdiction over the prior proceeding. Any such motion must reasonably 
explain the failure to request asylum prior to the completion of the 
proceedings.
    (iii) In asylum proceedings pursuant to Sec. 208.2(c)(1) and after 
the Form I-863, Notice of Referral to Immigration Judge, has been served 
on the alien and filed with the Immigration Court having jurisdiction 
over the case.
    (4) With the Board of Immigration Appeals. In conjunction with a 
motion to remand or reopen pursuant to Sec. Sec. 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(c)(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. If the district director 
elects to issue the Form I-863, the district director shall forward such 
asylum application to the appropriate Immigration Court with the Form
    (c) Amending an application after filing. Upon request of the alien 
and as a matter of discretion, the asylum officer or immigration judge 
having jurisdiction may permit an asylum applicant to amend or 
supplement the application, but any delay caused by such request shall 
extend the period within which the applicant may not apply for 
employment authorization in accordance with Sec. 208.7(a).

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 64 
FR 13881, Mar. 23, 1999; 65 FR 76131, Dec. 6, 2000; 69 FR 69488, Nov. 
29, 2004]

[[Page 168]]



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 determination under Sec. 208.30 or a reasonable 
fear determination pursuant to Sec. 208.31. Although the Service does 
not have a duty in the case of an alien who is in custody pending a 
credible fear or reasonable fear determination under either Sec. 208.30 
or Sec. 208.31, the Service may provide the appropriate forms, upon 
request. Where possible, expedited consideration shall be given to 
applications of detained aliens. Except as provided in paragraph (c) of 
this section, such alien shall not be excluded, deported, or removed 
before a decision is rendered on his or her asylum application.
    (b) Certain aliens aboard vessels. (1) If an alien crewmember or 
alien stowaway on board a vessel or other conveyance alleges, claims, or 
otherwise makes known to an immigration inspector or other official 
making an examination on the conveyance that he or she is unable or 
unwilling to return to his or her country of nationality or last 
habitual residence (if not a national of any country) because of 
persecution or a fear of persecution in that country on account of race, 
religion, nationality, membership in a particular social group, or 
political opinion, or if the alien expresses a fear of torture upon 
return to that country, the alien shall be promptly removed from the 
conveyance. If the alien makes such fear known to an official while off 
such conveyance, the alien shall not be returned to the conveyance but 
shall be retained in or transferred to the custody of the Service.
    (i) An alien stowaway will be referred to an asylum officer for a 
credible fear determination under Sec. 208.30.
    (ii) An alien crewmember shall be provided the appropriate 
application forms and information required by section 208(d)(4) of the 
Act and may then have 10 days within which to submit an asylum 
application to the district director having jurisdiction over the port-
of-entry. The district director may extend the 10-day filing period for 
good cause. Once the application has been filed, the district director, 
pursuant to Sec. 208.4(b), shall serve Form I-863 on the alien and 
immediately forward any such application to the appropriate Immigration 
Court with a copy of the Form I-863 being filed with that court.
    (2) Pending adjudication of the application, and, in the case of a 
stowaway the credible fear determination and any review thereof, the 
alien may be detained by the Service or otherwise paroled in accordance 
with Sec. 212.5 of this chapter. However, pending the credible fear 
determination, parole of an alien stowaway may be permitted only when 
the Attorney General determines, in the exercise of discretion, that 
parole is required to meet a medical emergency or is necessary for a 
legitimate law enforcement objective.
    (c) Exception to prohibition on removal. A motion to reopen or an 
order to remand accompanied by an asylum application pursuant to Sec. 
208.4(b)(3)(iii) shall not stay execution of a final exclusion, 
deportation, or removal order unless such stay is specifically granted 
by the Board of Immigration Appeals or the immigration judge having 
jurisdiction over the motion.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76132, Dec. 6, 2000]



Sec. 208.6  Disclosure to third parties.

    (a) Information contained in or pertaining to any asylum 
application, records pertaining to any credible fear determination 
conducted pursuant to Sec. 208.30, and records pertaining to any 
reasonable fear determination conducted pursuant to Sec. 208.31, shall 
not be disclosed without the written consent of the applicant, except as 
permitted by this section or at the discretion of the Attorney General.
    (b) The confidentiality of other records kept by the Service and the 
Executive Office for Immigration Review that indicate that a specific 
alien has applied for asylum, received a credible

[[Page 169]]

fear or reasonable fear interview, or received a credible fear or 
reasonable fear review shall also be protected from disclosure. The 
Service will coordinate with the Department of State to ensure that the 
confidentiality of those records is maintained if they are transmitted 
to Department of State offices in other countries.
    (c) This section shall not apply to any disclosure to:
    (1) Any United States Government official or contractor having a 
need to examine information in connection with:
    (i) The adjudication of asylum applications;
    (ii) The consideration of a request for a credible fear or 
reasonable fear interview, or a credible fear or reasonable fear review;
    (iii) The defense of any legal action arising from the adjudication 
of, or failure to adjudicate, the asylum application, or from a credible 
fear determination or reasonable fear determination under Sec. 208.30 
or Sec. 208.31;
    (iv) The defense of any legal action of which the asylum 
application, credible fear determination, or reasonable fear 
determination is a part; or
    (v) Any United States Government investigation concerning any 
criminal or civil matter; or
    (2) Any Federal, State, or local court in the United States 
considering any legal action:
    (i) Arising from the adjudication of, or failure to adjudicate, the 
asylum application, or from a credible fear or reasonable fear 
determination under Sec. 208.30 or Sec. 208.31; or
    (ii) Arising from the proceedings of which the asylum application, 
credible fear determination, or reasonable fear determination is a part.

[65 FR 76133, Dec. 6, 2000]



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 
Sec. Sec. 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 Sec. Sec. 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 Sec. Sec. 208.3 and 208.4. Any delay requested or caused by the 
applicant shall not be counted as part of these time periods, including 
delays caused by failure without good cause to follow the requirements 
for fingerprint processing. Such time periods shall also be extended by 
the equivalent of the time between issuance of a request for evidence 
pursuant to Sec. 103.2(b)(8) of this chapter and the receipt of the 
applicant's response to such request.

[[Page 170]]

    (3) The provisions of paragraphs (a)(1) and (a)(2) of this section 
apply to applications for asylum filed on or after January 4, 1995.
    (4) Employment authorization pursuant to Sec. 274a.12(c)(8) of this 
chapter may not be granted to an alien who fails to appear for a 
scheduled interview before an asylum officer or a hearing before an 
immigration judge, unless the applicant demonstrates that the failure to 
appear was the result of exceptional circumstances.
    (b) Renewal and termination. Employment authorization shall be 
renewable, in increments to be determined by the Commissioner, for the 
continuous period of time necessary for the asylum officer or 
immigration judge to decide the asylum application and, if necessary, 
for completion of any administrative or judicial review.
    (1) If the asylum application is denied by the asylum officer, the 
employment authorization shall terminate at the expiration of the 
employment authorization document or 60 days after the denial of asylum, 
whichever is longer.
    (2) If the application is denied by the immigration judge, the Board 
of Immigration Appeals, or a Federal court, the employment authorization 
terminates upon the expiration of the employment authorization document, 
unless the applicant has filed an appropriate request for administrative 
or judicial review.
    (c) Supporting evidence for renewal of employment authorization. In 
order for employment authorization to be renewed under this section, the 
alien must provide the Service (in accordance with the instructions on 
or attached to the employment authorization application) with a Form I-
765, the required fee (unless waived in accordance with Sec. 103.7(c) 
of this chapter), and (if applicable) proof that he or she has continued 
to pursue his or her asylum application before an immigration judge or 
sought administrative or judicial review. For purposes of employment 
authorization, pursuit of an asylum application is established by 
presenting to the Service one of the following, depending on the stage 
of the alien's immigration proceedings:
    (1) If the alien's case is pending in proceedings before the 
immigration judge, and the alien wishes to continue to pursue his or her 
asylum application, a copy of any asylum denial, referral notice, or 
charging document placing the alien in such proceedings;
    (2) If the immigration judge has denied asylum, a copy of the 
document issued by the Board of Immigration Appeals to show that a 
timely appeal has been filed from a denial of the asylum application by 
the immigration judge; or
    (3) If the Board of Immigration Appeals has dismissed the alien's 
appeal of a denial of asylum, or sustained an appeal by the Service of a 
grant of asylum, a copy of the petition for judicial review or for 
habeas corpus pursuant to section 242 of the Act, date stamped by the 
appropriate court.
    (d) In order for employment authorization to be renewed before its 
expiration, the application for renewal must be received by the Service 
90 days prior to expiration of the employment authorization.

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



Sec. 208.8  Limitations on travel outside the United States.

    (a) An applicant who leaves the United States without first 
obtaining advance parole under Sec. 212.5(f) 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(f) 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.

[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 82255, Dec. 28, 2000]



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.

[[Page 171]]

    (b) The asylum officer shall conduct the interview in a 
nonadversarial manner and, except at the request of the applicant, 
separate and apart from the general public. The purpose of the interview 
shall be to elicit all relevant and useful information bearing on the 
applicant's eligibility for asylum. At the time of the interview, the 
applicant must provide complete information regarding his or her 
identity, including name, date and place of birth, and nationality, and 
may be required to register this identity electronically or through any 
other means designated by the Attorney General. The applicant may have 
counsel or a representative present, may present witnesses, and may 
submit affidavits of witnesses and other evidence.
    (c) The asylum officer shall have authority to administer oaths, 
verify the identity of the applicant (including through the use of 
electronic means), verify the identity of any interpreter, present and 
receive evidence, and question the applicant and any witnesses.
    (d) Upon completion of the interview, the applicant or the 
applicant's representative shall have an opportunity to make a statement 
or comment on the evidence presented. The asylum officer may, in his or 
her discretion, limit the length of such statement or comment and may 
require its submission in writing. Upon completion of the interview, the 
applicant shall be informed that he or she must appear in person to 
receive and to acknowledge receipt of the decision of the asylum officer 
and any other accompanying material at a time and place designated by 
the asylum officer, except as otherwise provided by the asylum officer. 
An applicant's failure to appear to receive and acknowledge receipt of 
the decision shall be treated as delay caused by the applicant for 
purposes of Sec. 208.7(a)(3) and shall extend the period within which 
the applicant may not apply for employment authorization by the number 
of days until the applicant does appear to receive and acknowledge 
receipt of the decision or until the applicant appears before an 
immigration judge in response to the issuance of a charging document 
under Sec. 208.14(c).
    (e) The asylum officer shall consider evidence submitted by the 
applicant together with his or her asylum application, as well as any 
evidence submitted by the applicant before or at the interview. As a 
matter of discretion, the asylum officer may grant the applicant a brief 
extension of time following an interview during which the applicant may 
submit additional evidence. Any such extension shall extend by an 
equivalent time the periods specified by Sec. 208.7 for the filing and 
adjudication of any employment authorization application.
    (f) The asylum application, all supporting information provided by 
the applicant, any comments submitted by the Department of State or by 
the Service, and any other information specific to the applicant's case 
and considered by the asylum officer shall comprise the record.
    (g) An applicant unable to proceed with the interview in English 
must provide, at no expense to the Service, a competent interpreter 
fluent in both English and the applicant's native language or any other 
language in which the applicant is fluent. The interpreter must be at 
least 18 years of age. Neither the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, nor a representative or employee of the applicant's country of 
nationality, or if stateless, country of last habitual residence, may 
serve as the applicant's interpreter. Failure without good cause to 
comply with this paragraph may be considered a failure to appear for the 
interview for purposes of Sec. 208.10.

[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76133, Dec. 6, 2000]



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

    Failure to appear for a scheduled interview without prior 
authorization may result in dismissal of the application or waiver of 
the right to an interview. Failure to comply with fingerprint processing 
requirements without good cause may result in dismissal of the 
application or waiver of the right to an adjudication by an asylum 
officer. Failure to appear shall be excused

[[Page 172]]

if the notice of the interview or fingerprint appointment was not mailed 
to the applicant's current address and such address had been provided to 
the Office of International Affairs by the applicant prior to the date 
of mailing in accordance with section 265 of the Act and regulations 
promulgated thereunder, unless the asylum officer determines that the 
applicant received reasonable notice of the interview or fingerprinting 
appointment. Failure to appear at the interview or fingerprint 
appointment will be excused if the applicant demonstrates that such 
failure was the result of exceptional circumstances.

[63 FR 12986, Mar. 17, 1998]



Sec. 208.11  Comments from the Department of State.

    (a) The Service shall forward to the Department of State a copy of 
each completed application it receives. At its option, the Department of 
State may provide detailed country conditions information relevant to 
eligibility for asylum or withholding of removal.
    (b) At its option, the Department of State may also provide:
    (1) An assessment of the accuracy of the applicant's assertions 
about conditions in his or her country of nationality or habitual 
residence and his or her particular situation;
    (2) Information about whether persons who are similarly situated to 
the applicant are persecuted or tortured in his or her country of 
nationality or habitual residence and the frequency of such persecution 
or torture; or
    (3) Such other information as it deems relevant.
    (c) Asylum officers and immigration judges may request specific 
comments from the Department of State regarding individual cases or 
types of claims under consideration, or such other information as they 
deem appropriate.
    (d) Any such comments received pursuant to paragraphs (b) and (c) of 
this section shall be made part of the record. Unless the comments are 
classified under the applicable Executive Order, the applicant shall be 
provided an opportunity to review and respond to such comments prior to 
the issuance of any decision to deny the application.

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



Sec. 208.12  Reliance on information compiled by other sources.

    (a) In deciding an asylum application, or in deciding whether the 
alien has a credible fear of persecution or torture pursuant to Sec. 
208.30 of this part, or a reasonable fear of persecution or torture 
pursuant to Sec. 208.31, the asylum officer may rely on material 
provided by the Department of State, the Office of International 
Affairs, other Service offices, or other credible sources, such as 
international organizations, private voluntary agencies, news 
organizations, or academic institutions.
    (b) Nothing in this part shall be construed to entitle the applicant 
to conduct discovery directed toward the records, officers, agents, or 
employees of the Service, the Department of Justice, or the Department 
of State. Persons may continue to seek documents available through a 
Freedom of Information Act (FOIA) request pursuant to 8 CFR part 103.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76133, Dec. 6, 2000]



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) Eligibility. 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 the applicant can establish that he or 
she has suffered persecution in the past in the

[[Page 173]]

applicant's country of nationality or, if stateless, in his or her 
country of last habitual residence, on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion, and is unable or unwilling to return to, or avail himself or 
herself of the protection of, that country owing to such persecution. An 
applicant who has been found to have established such past persecution 
shall also be presumed to have a well-founded fear of persecution on the 
basis of the original claim. That presumption may be rebutted if an 
asylum officer or immigration judge makes one of the findings described 
in paragraph (b)(1)(i) of this section. If the applicant's fear of 
future persecution is unrelated to the past persecution, the applicant 
bears the burden of establishing that the fear is well-founded.
    (i) Discretionary referral or denial. Except as provided in 
paragraph (b)(1)(iii) of this section, an asylum officer shall, in the 
exercise of his or her discretion, refer or deny, or an immigration 
judge, in the exercise of his or her discretion, shall deny the asylum 
application of an alien found to be a refugee on the basis of past 
persecution if any of the following is found by a preponderance of the 
evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant no longer has a well-founded fear of persecution in the 
applicant's country of nationality or, if stateless, in the applicant's 
country of last habitual residence, on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; or
    (B) The applicant could avoid future persecution by relocating to 
another part of the applicant's country of nationality or, if stateless, 
another part of the applicant's country of last habitual residence, and 
under all the circumstances, it would be reasonable to expect the 
applicant to do so.
    (ii) Burden of proof. In cases in which an applicant has 
demonstrated past persecution under paragraph (b)(1) of this section, 
the Service shall bear the burden of establishing by a preponderance of 
the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this 
section.
    (iii) Grant in the absence of well-founded fear of persecution. An 
applicant described in paragraph (b)(1)(i) of this section who is not 
barred from a grant of asylum under paragraph (c) of this section, may 
be granted asylum, in the exercise of the decision-maker's discretion, 
if:
    (A) The applicant has demonstrated compelling reasons for being 
unwilling or unable to return to the country arising out of the severity 
of the past persecution; or
    (B) The applicant has established that there is a reasonable 
possibility that he or she may suffer other serious harm upon removal to 
that country.
    (2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
    (A) The applicant has a fear of persecution in his or her country of 
nationality or, if stateless, in his or her country of last habitual 
residence, on account of race, religion, nationality, membership in a 
particular social group, or political opinion;
    (B) There is a reasonable possibility of suffering such persecution 
if he or she were to return to that country; and
    (C) He or she is unable or unwilling to return to, or avail himself 
or herself of the protection of, that country because of such fear.
    (ii) An applicant does not have a well-founded fear of persecution 
if the applicant could avoid persecution by relocating to another part 
of the applicant's country of nationality or, if stateless, another part 
of the applicant's country of last habitual residence, if under all the 
circumstances it would be reasonable to expect the applicant to do so.
    (iii) In evaluating whether the applicant has sustained the burden 
of proving that he or she has a well-founded fear of persecution, the 
asylum officer or immigration judge shall not require the applicant to 
provide evidence that there is a reasonable possibility he or she would 
be singled out individually for persecution if:
    (A) The applicant establishes that there is a pattern or practice in 
his or her country of nationality or, if stateless, in his or her 
country of last habitual residence, of persecution of a group

[[Page 174]]

of persons similarly situated to the applicant on account of race, 
religion, nationality, membership in a particular social group, or 
political opinion; and
    (B) The applicant establishes his or her own inclusion in, and 
identification with, such group of persons such that his or her fear of 
persecution upon return is reasonable.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of 
this section, adjudicators should consider, but are not limited to 
considering, whether the applicant would face other serious harm in the 
place of suggested relocation; any ongoing civil strife within the 
country; administrative, economic, or judicial infrastructure; 
geographical limitations; and social and cultural constraints, such as 
age, gender, health, and social and familial ties. Those factors may, or 
may not, be relevant, depending on all the circumstances of the case, 
and are not necessarily determinative of whether it would be reasonable 
for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it 
would not be reasonable for him or her to relocate, unless the 
persecution is by a government or is government-sponsored.
    (ii) In cases in which the persecutor is a government or is 
government-sponsored, or the applicant has established persecution in 
the past, it shall be presumed that internal relocation would not be 
reasonable, unless the Service establishes by a preponderance of the 
evidence that, under all the circumstances, it would be reasonable for 
the applicant to relocate.
    (c) Mandatory denials--(1) Applications filed on or after April 1, 
1997. For applications filed on or after April 1, 1997, an applicant 
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the 
Act applies to the applicant. If the applicant is found to be ineligible 
for asylum under either section 208(a)(2) or 208(b)(2) of the Act, the 
applicant shall be considered for eligibility for withholding of removal 
under section 241(b)(3) of the Act. The applicant shall also be 
considered for eligibility for withholding of removal under the 
Convention Against Torture if the applicant requests such consideration 
or if the evidence presented by the alien indicates that the alien may 
be tortured in the country of removal.
    (2) Applications filed before April 1, 1997. (i) An immigration 
judge or asylum officer shall not grant asylum to any applicant who 
filed his or her application before April 1, 1997, if the alien:
    (A) Having been convicted by a final judgment of a particularly 
serious crime in the United States, constitutes a danger to the 
community;
    (B) Has been firmly resettled within the meaning of Sec. 208.15;
    (C) Can reasonably be regarded as a danger to the security of the 
United States;
    (D) Has been convicted of an aggravated felony, as defined in 
section 101(a)(43) of the Act; or
    (E) Ordered, incited, assisted, or otherwise participated in the 
persecution of any person on account of race, religion, nationality, 
membership in a particular social group, or political opinion.
    (ii) If the evidence indicates that one of the above grounds apply 
to the applicant, he or she shall have the burden of proving by a 
preponderance of the evidence that he or she did not so act.
    (F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III) 
of the Act as it existed prior to April 1, 1997, and as amended by the 
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless 
it is determined that there are no reasonable grounds to believe that 
the individual is a danger to the security of the United States.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76133, Dec. 6, 2000]



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

    (a) By an immigration judge. Unless otherwise prohibited in Sec. 
208.13(c), an immigration judge may grant or deny asylum in the exercise 
of discretion to an applicant who qualifies as a refugee under section 
101(a)(42) of the Act.
    (b) Approval by an asylum officer. In any case within the 
jurisdiction of the Office of International Affairs, unless otherwise 
prohibited in Sec. 208.13(c), an

[[Page 175]]

asylum officer may grant, in the exercise of his or her discretion, 
asylum to an applicant who qualifies as a refugee under section 
101(a)(42) of the Act, and whose identity has been checked pursuant to 
section 208(d)(5)(A)(i) of the Act.
    (c) Denial, referral, or dismissal by an asylum officer. If the 
asylum officer does not grant asylum to an applicant after an interview 
conducted in accordance with Sec. 208.9, or if, as provided in Sec. 
208.10, the applicant is deemed to have waived his or her right to an 
interview or an adjudication by an asylum officer, the asylum officer 
shall deny, refer, or dismiss the application, as follows:
    (1) Inadmissible or deportable aliens. Except as provided in 
paragraph (c)(4) of this section, in the case of an applicant who 
appears to be inadmissible or deportable under section 212(a) or 237(a) 
of the Act, the asylum officer shall refer the application to an 
immigration judge, together with the appropriate charging document, for 
adjudication in removal proceedings (or, where charging documents may 
not be issued, shall dismiss the application).
    (2) Alien in valid status. In the case of an applicant who is 
maintaining valid immigrant, nonimmigrant, or Temporary Protected Status 
at the time the application is decided, the asylum officer shall deny 
the application for asylum.
    (3) Alien with valid parole. If an applicant has been paroled into 
the United States and the parole has not expired or been terminated by 
the Service, the asylum officer shall deny the application for asylum.
    (4) Alien paroled into the United States whose parole has expired or 
is terminated--(i) Alien paroled prior to April 1, 1997, or with advance 
authorization for parole. In the case of an applicant who was paroled 
into the United States prior to April 1, 1997, or who, prior to 
departure from the United States, had received an advance authorization 
for parole, the asylum officer shall refer the application, together 
with the appropriate charging documents, to an immigration judge for 
adjudication in removal proceedings if the parole has expired, the 
Service has terminated parole, or the Service is terminating parole 
through issuance of the charging documents, pursuant to Sec. 
212.5(d)(2)(i) of this chapter.
    (ii) Alien paroled on or after April 1, 1997, without advance 
authorization for parole. In the case of an applicant who is an arriving 
alien or is otherwise subject to removal under Sec. 235.3(b) of this 
chapter, and was paroled into the United States on or after April 1, 
1997, without advance authorization for parole prior to departure from 
the United States, the asylum officer will take the following actions, 
if the parole has expired or been terminated:
    (A) Inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act. 
If the applicant appears inadmissible to the United States under section 
212(a)(6)(C) or 212(a)(7) of the Act and the asylum officer does not 
intend to lodge any additional charges of inadmissibility, the asylum 
officer shall proceed in accordance with Sec. 235.3(b) of this chapter. 
If such applicant is found to have a credible fear of persecution or 
torture based on information elicited from the asylum interview, an 
asylum officer may refer the applicant directly to an immigration judge 
in removal proceedings under section 240 of the Act, without conducting 
a separate credible fear interview pursuant to Sec. 208.30. If such 
applicant is not found to have a credible fear based on information 
elicited at the asylum interview, an asylum officer will conduct a 
credible fear interview and the applicant will be subject to the 
credible fear process specified at Sec. 208.30(b).
    (B) Inadmissible on other grounds. In the case of an applicant who 
was paroled into the United States on or after April 1, 1997, and will 
be charged as inadmissible to the United States under provisions of the 
Act other than, or in addition to, sections 212(a)(6)(C) or 212(a)(7), 
the asylum officer shall refer the application to an immigration judge 
for adjudication in removal proceedings.
    (d) 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.
    (e) Duration. If the applicant is granted asylum, the grant will be 
effective for an indefinite period, subject to termination as provided 
in Sec. 208.24.

[[Page 176]]

    (f) Effect of denial of principal's application on separate 
applications by dependents. The denial of an asylum application filed by 
a principal applicant for asylum shall also result in the denial of 
asylum status to any dependents of that principal applicant who are 
included in that same application. Such denial shall not preclude a 
grant of asylum for an otherwise eligible dependent who has filed a 
separate asylum application, nor shall such denial result in an 
otherwise eligible dependent becoming ineligible to apply for asylum due 
to the provisions of section 208(a)(2)(C) of the Act.
    (g) Applicants granted lawful permanent residence status. If an 
asylum applicant is granted adjustment of status to lawful permanent 
resident, the Service may provide written notice to the applicant that 
his or her asylum application will be presumed abandoned and dismissed 
without prejudice, unless the applicant submits a written request within 
30 days of the notice, that the asylum application be adjudicated. If an 
applicant does not respond within 30 days of the date the written notice 
was sent or served, the Service may presume the asylum application 
abandoned and dismiss it without prejudice.

[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 12986, Mar. 17, 1998; 64 
FR 27875, May 21, 1999; 65 FR 76134, Dec. 6, 2000]



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

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

[65 FR 76135, Dec. 6, 2000]



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

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not decide whether the exclusion, deportation, or 
removal of an alien to a country where the alien's life or freedom would 
be threatened must be withheld, except in the case of an alien who is 
otherwise eligible for asylum but is precluded from being granted such 
status due solely to section 207(a)(5) of the Act. In exclusion, 
deportation, or removal proceedings, an immigration judge may adjudicate 
both an asylum claim and a request for withholding of removal whether or 
not asylum is granted.
    (b) Eligibility for withholding of removal under section 241(b)(3) 
of the Act; burden of proof. The burden of proof is on the applicant for 
withholding of removal under section 241(b)(3) of the Act to establish 
that his or her life or freedom would be threatened in the proposed 
country of removal on account of race, religion, nationality, membership 
in a particular social group, or political opinion. The testimony of the 
applicant, if credible, may be sufficient to sustain the burden of proof 
without corroboration. The evidence shall be evaluated as follows:
    (1) Past threat to life or freedom. (i) If the applicant is 
determined to have suffered past persecution in the proposed country of 
removal on account of race, religion, nationality, membership

[[Page 177]]

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

[[Page 178]]

    (c) Eligibility for withholding of removal under the Convention 
Against Torture. (1) For purposes of regulations under Title II of the 
Act, ``Convention Against Torture'' shall refer to the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. 
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture 
contained in Sec. 208.18(a) of this part shall govern all decisions 
made under regulations under Title II of the Act about the applicability 
of Article 3 of the Convention Against Torture.
    (2) The burden of proof is on the applicant for withholding of 
removal under this paragraph to establish that it is more likely than 
not that he or she would be tortured if removed to the proposed country 
of removal. The testimony of the applicant, if credible, may be 
sufficient to sustain the burden of proof without corroboration.
    (3) In assessing whether it is more likely than not that an 
applicant would be tortured in the proposed country of removal, all 
evidence relevant to the possibility of future torture shall be 
considered, including, but not limited to:
    (i) Evidence of past torture inflicted upon the applicant;
    (ii) Evidence that the applicant could relocate to a part of the 
country of removal where he or she is not likely to be tortured;
    (iii) Evidence of gross, flagrant or mass violations of human rights 
within the country of removal, where applicable; and
    (iv) Other relevant information regarding conditions in the country 
of removal.
    (4) In considering an application for withholding of removal under 
the Convention Against Torture, the immigration judge shall first 
determine whether the alien is more likely than not to be tortured in 
the country of removal. If the immigration judge determines that the 
alien is more likely than not to be tortured in the country of removal, 
the alien is entitled to protection under the Convention Against 
Torture. Protection under the Convention Against Torture will be granted 
either in the form of withholding of removal or in the form of deferral 
of removal. An alien entitled to such protection shall be granted 
withholding of removal unless the alien is subject to mandatory denial 
of withholding of removal under paragraphs (d)(2) or (d)(3) of this 
section. If an alien entitled to such protection is subject to mandatory 
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of 
this section, the alien's removal shall be deferred under Sec. 
208.17(a).
    (d) Approval or denial of application--(1) General. Subject to 
paragraphs (d)(2) and (d)(3) of this section, an application for 
withholding of deportation or removal to a country of proposed removal 
shall be granted if the applicant's eligibility for withholding is 
established pursuant to paragraphs (b) or (c) of this section.
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under the Convention Against Torture shall be 
denied if the applicant falls within section 241(b)(3)(B) of the Act or, 
for applications for withholding of deportation adjudicated in 
proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
of the Act as it appeared prior to that date. For purposes of section 
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
appeared prior to April 1, 1997, an alien who has been convicted of a 
particularly serious crime shall be considered to constitute a danger to 
the community. If the evidence indicates the applicability of one or 
more of the grounds for denial of withholding enumerated in the Act, the 
applicant shall have the burden of proving by a preponderance of the 
evidence that such grounds do not apply.
    (3) Exception to the prohibition on withholding of deportation in 
certain cases. Section 243(h)(3) of the Act, as added by section 413 of 
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications 
adjudicated in proceedings commenced before April 1, 1997, and in which 
final

[[Page 179]]

action had not been taken before April 24, 1996. The discretion 
permitted by that section to override section 243(h)(2) of the Act shall 
be exercised only in the case of an applicant convicted of an aggravated 
felony (or felonies) where he or she was sentenced to an aggregate term 
of imprisonment of less than 5 years and the immigration judge 
determines on an individual basis that the crime (or crimes) of which 
the applicant was convicted does not constitute a particularly serious 
crime. Nevertheless, it shall be presumed that an alien convicted of an 
aggravated felony has been convicted of a particularly serious crime. 
Except in the cases specified in this paragraph, the grounds for denial 
of withholding of deportation in section 243(h)(2) of the Act as it 
appeared prior to April 1, 1997, shall be deemed to comply with the 
Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 
6577.
    (e) Reconsideration of discretionary denial of asylum. In the event 
that an applicant is denied asylum solely in the exercise of discretion, 
and the applicant is subsequently granted withholding of deportation or 
removal under this section, thereby effectively precluding admission of 
the applicant's spouse or minor children following to join him or her, 
the denial of asylum shall be reconsidered. Factors to be considered 
will include the reasons for the denial and reasonable alternatives 
available to the applicant such as reunification with his or her spouse 
or minor children in a third country.
    (f) Removal to third country. Nothing in this section or Sec. 
208.17 shall prevent the Service from removing an alien to a third 
country other than the country to which removal has been withheld or 
deferred.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76135, Dec. 6, 2000]



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

    (a) Grant of deferral of removal. An alien who: has been ordered 
removed; has been found under Sec. 208.16(c)(3) to be entitled to 
protection under the Convention Against Torture; and is subject to the 
provisions for mandatory denial of withholding of removal under Sec. 
208.16(d)(2) or (d)(3), shall be granted deferral of removal to the 
country where he or she is more likely than not to be tortured.
    (b) Notice to alien. (1) After an immigration judge orders an alien 
described in paragraph (a) of this section removed, the immigration 
judge shall inform the alien that his or her removal to the country 
where he or she is more likely than not to be tortured shall be deferred 
until such time as the deferral is terminated under this section. The 
immigration judge shall inform the alien that deferral of removal:
    (i) Does not confer upon the alien any lawful or permanent 
immigration status in the United States;
    (ii) Will not necessarily result in the alien being released from 
the custody of the Service if the alien is subject to such custody;
    (iii) Is effective only until terminated; and
    (iv) Is subject to review and termination if the immigration judge 
determines that it is not likely that the alien would be tortured in the 
country to which removal has been deferred, or if the alien requests 
that deferral be terminated.
    (2) The immigration judge shall also inform the alien that removal 
has been deferred only to the country in which it has been determined 
that the alien is likely to be tortured, and that the alien may be 
removed at any time to another country where he or she is not likely to 
be tortured.
    (c) Detention of an alien granted deferral of removal under this 
section. Nothing in this section shall alter the authority of the 
Service to detain an alien whose removal has been deferred under this 
section and who is otherwise subject to detention. In the case of such 
an alien, decisions about the alien's release shall be made according to 
part 241 of this chapter.
    (d) Termination of deferral of removal. (1) At any time while 
deferral of removal is in effect, the INS District Counsel for the 
District with jurisdiction over an alien whose removal has been deferred 
under paragraph (a) of this section may file a motion with the 
Immigration Court having administrative control pursuant to Sec. 3.11 
of this

[[Page 180]]

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

[64 FR 8489, Feb. 19, 1999]



Sec. 208.18  Implementation of the Convention Against Torture.

    (a) Definitions. The definitions in this subsection incorporate the 
definition of torture contained in Article 1 of the Convention Against 
Torture, subject to the reservations, understandings, declarations, and 
provisos contained in the United States Senate resolution of 
ratification of the Convention.
    (1) Torture is defined as any act by which severe pain or suffering, 
whether physical or mental, is intentionally inflicted on a person for 
such purposes as

[[Page 181]]

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

[[Page 182]]

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

[[Page 183]]

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

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



Sec. 208.19  Decisions.

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

[65 FR 76136, Dec. 6, 2000]



Sec. 208.20  Determining if an asylum application is frivolous.

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

[64 FR 8492, Feb. 19, 1999. Redesignated at 65 FR 76136, Dec. 6, 2000]



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

    (a) Eligibility. In accordance with section 208(b)(3) of the Act, a 
spouse, as defined in section 101(a)(35) of the Act, 8 U.S.C. 
1101(a)(35), or child, as defined in section 101(b)(1) of the Act, also 
may be granted asylum if accompanying, or

[[Page 184]]

following to join, the principal alien who was granted asylum, unless it 
is determined that the spouse or child is ineligible for asylum under 
section 208(b)(2)(A)(i), (ii), (iii), (iv) or (v) of the Act for 
applications filed on or after April 1, 1997, or under Sec. 
208.13(c)(2)(i)(A), (C), (D), (E), or (F) for applications filed before 
April 1, 1997.
    (b) Relationship. The relationship of spouse and child as defined in 
sections 101(a)(35) and 101(b)(1) of the Act must have existed at the 
time the principal alien's asylum application was approved and must 
continue to exist at the time of filing for accompanying or following-
to-join benefits and at the time of the spouse or child's subsequent 
admission to the United States. If the asylee proves that the asylee is 
the parent of a child who was born after asylum was granted, but who was 
in utero on the date of the asylum grant, the child shall be eligible to 
accompany or follow-to-join the asylee. The child's mother, if not the 
principal asylee, shall not be eligible to accompany or follow-to-join 
the principal asylee unless the child's mother was the principal 
asylee's spouse on the date the principal asylee was granted asylum.
    (c) Spouse or child in the United States. When a spouse or child of 
an alien granted asylum is in the United States, but was not included in 
the asylee's application, the asylee may request accompanying or 
following-to-join benefits for his/her spouse or child by filing for 
each qualifying family member a separate Form I-730, Refugee/Asylee 
Relative Petition, and supporting evidence, with the designated Service 
office, regardless of the status of that spouse or child in the United 
States. A recent photograph of each derivative must accompany the Form 
I-730. The photograph must clearly identify the derivative, and will be 
made part of the derivative's immigration record for identification 
purposes. Additionally, a separate Form I-730 must be filed by the 
asylee for each qualifying family member before February 28, 2000, or 
within 2 years of the date in which he/she was granted asylum status, 
whichever is later, unless it is determined by the Service that this 
period should be extended for humanitarian reasons. Upon approval of the 
Form I-730, the Service will notify the asylee of such approval on Form 
I-797, Notice of Action. Employment will be authorized incident to 
status. To demonstrate employment authorization, the Service will issue 
a Form I-94, Arrival-Departure Record, which also reflects the 
derivative's current status as an asylee, or the derivative may apply 
under Sec. 274a.12(a) of this chapter, using Form I-765, Application 
for Employment Authorization, and a copy of the Form I-797. The approval 
of the Form I-730 shall remain valid for the duration of the 
relationship to the asylee and, in the case of a child, while the child 
is under 21 years of age and unmarried, provided also that the 
principal's status has not been revoked. However, the approved Form I-
730 will cease to confer immigration benefits after it has been used by 
the beneficiary for admission to the United States as a derivative of an 
asylee.
    (d) Spouse or child outside the United States. When a spouse or 
child of an alien granted asylum is outside the United States, the 
asylee may request accompanying or following-to-join benefits for his/
her spouse or child(ren) by filing a separate Form I-730 for each 
qualifying family member with the designated Service office, setting 
forth the full name, relationship, date and place of birth, and current 
location of each such person. A recent photograph of each derivative 
must accompany the Form I-730. The photograph must clearly identify the 
derivative, and will be made part of the derivative's immigration record 
for identification purposes. A separate Form I-730 for each qualifying 
family member must be filed before February 28, 2000, or within 2 years 
of the date in which the asylee was granted asylum status, whichever is 
later, unless the Service determines that the filing period should be 
extended for humanitarian reasons. When the Form I-730 is approved, the 
Service will notify the asylee of such approval on Form I-797. The 
approved Form I-730 shall be forwarded by the Service to the Department 
of State for delivery to the American Embassy or Consulate having 
jurisdiction over the area in which the asylee's spouse or child is 
located. The approval of the Form I-730

[[Page 185]]

shall remain valid for the duration of the relationship to the asylee 
and, in the case of a child, while the child is under 21 years of age 
and unmarried, provided also that the principal's status has not been 
revoked. However, the approved Form I-730 will cease to confer 
immigration benefits after it has been used by the beneficiary for 
admission to the United States as a derivative of an asylee.
    (e) Denial. If the spouse or child is found to be ineligible for the 
status accorded under section 208(c) of the Act, a written notice 
stating the basis for denial shall be forwarded to the principal alien. 
No appeal shall lie from this decision.
    (f) Burden of proof. To establish the claimed relationship of spouse 
or child as defined in sections 101(a)(35) and 101(b)(1) of the Act, 
evidence must be submitted with the request as set forth in part 204 of 
this chapter. Where possible this will consist of the documents 
specified in Sec. 204.2 (a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), 
and (d)(5) of this chapter. The burden of proof is on the principal 
alien to establish by a preponderance of the evidence that any person on 
whose behalf he or she is making a request under this section is an 
eligible spouse or child.
    (g) Duration. The spouse or child qualifying under section 208(c) of 
the Act shall be granted asylum for an indefinite period unless the 
principal's status is revoked.

[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 3796, Jan. 27, 1998. 
Redesignated at 64 FR 8490, Feb. 19, 1999 and further redesignated and 
amended at 65 FR 76136, Dec. 6, 2000]



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

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

[64 FR 8492, Feb. 19, 1999. Revised at 65 FR 76136, Dec. 6, 2000]



Sec. 208.23  Restoration of status.

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

[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999 
and further redesignated at 65 FR 76136, Dec. 6, 2000]



Sec. 208.24  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 because, owing to a fundamental change in circumstances relating 
to the original claim, the alien's life or freedom no longer would be 
threatened

[[Page 186]]

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

[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999 
and futher redesignated and amended at 65 FR 76136, Dec. 6, 2000]



Sec. Sec. 208.25-208.29  [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

[[Page 187]]

Act, the Service has exclusive jurisdiction to make credible fear 
determinations, and the Executive Office for Immigration Review has 
exclusive jurisdiction to review such determinations. Except as 
otherwise provided in this subpart, paragraphs (b) through (g) of this 
section are the exclusive procedures applicable to credible fear 
interviews, determinations, and reviews under section 235(b)(1)(B) of 
the Act.
    (b) Treatment of dependents. A spouse or child of an alien may be 
included in that alien's credible fear evaluation and determination, if 
such spouse or child:
    (1) Arrived in the United States concurrently with the principal 
alien; and
    (2) Desires to be included in the principal alien's determination. 
However, any alien may have his or her credible fear evaluation and 
determination made separately, if he or she expresses such a desire.
    (c) Authority. Asylum officers conducting credible fear interviews 
shall have the authorities described in Sec. 208.9(c).
    (d) Interview. The asylum officer, as defined in section 
235(b)(1)(E) of the Act, will conduct the interview in a nonadversarial 
manner, separate and apart from the general public. The purpose of the 
interview shall be to elicit all relevant and useful information bearing 
on whether the applicant has a credible fear of persecution or torture, 
and shall conduct the interview as follows:
    (1) If the officer conducting the credible fear interview determines 
that the alien is unable to participate effectively in the interview 
because of illness, fatigue, or other impediments, the officer may 
reschedule the interview.
    (2) At the time of the interview, the asylum officer shall verify 
that the alien has received Form M-444, Information about Credible Fear 
Interview in Expedited Removal Cases. The officer shall also determine 
that the alien has an understanding of the credible fear determination 
process.
    (3) The alien may be required to register his or her identity 
electronically or through any other means designated by the Attorney 
General.
    (4) The alien may consult with a person or persons of the alien's 
choosing prior to the interview or any review thereof, and may present 
other evidence, if available. Such consultation shall be at no expense 
to the Government and shall not unreasonably delay the process. Any 
person or persons with whom the alien chooses to consult may be present 
at the interview and may be permitted, in the discretion of the asylum 
officer, to present a statement at the end of the interview. The asylum 
officer, in his or her discretion, may place reasonable limits on the 
number of persons who may be present at the interview and on the length 
of the statement.
    (5) If the alien is unable to proceed effectively in English, and if 
the asylum officer is unable to proceed competently in a language chosen 
by the alien, the asylum officer shall arrange for the assistance of an 
interpreter in conducting the interview. The interpreter must be at 
least 18 years of age and may not be the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, a representative or employee of the applicant's country of 
nationality, or, if the applicant is stateless, the applicant's country 
of last habitual residence.
    (6) The asylum officer shall create a summary of the material facts 
as stated by the applicant. At the conclusion of the interview, the 
officer shall review the summary with the alien and provide the alien 
with an opportunity to correct any errors therein.
    (e) Determination. (1) The asylum officer shall create a written 
record of his or her determination, including a summary of the material 
facts as stated by the applicant, any additional facts relied on by the 
officer, and the officer's determination of whether, in light of such 
facts, the alien has established a credible fear of persecution or 
torture.
    (2) An alien will be found to have a credible fear of persecution if 
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 officer, the alien can establish 
eligibility for asylum under

[[Page 188]]

section 208 of the Act or for withholding of removal under section 
241(b)(3) of the Act.
    (3) An alien will be found to have a credible fear of torture if the 
alien shows that there is a significant possibility that he or she is 
eligible for withholding of removal or deferral of removal under the 
Convention Against Torture, pursuant to 8 CFR 208.16 or 208.17.
    (4) In determining whether the alien has a credible fear of 
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a 
credible fear of torture, the asylum officer shall consider whether the 
alien's case presents novel or unique issues that merit consideration in 
a full hearing before an immigration judge.
    (5) Except as provided in paragraph (e)(6) of this section, if an 
alien is able to establish a credible fear of persecution or torture but 
appears to be subject to one or more of the mandatory bars to applying 
for, or being granted, asylum contained in section 208(a)(2) and 
208(b)(2) of the Act, or to withholding of removal contained in section 
241(b)(3)(B) of the Act, the Department of Homeland Security shall 
nonetheless place the alien in proceedings under section 240 of the Act 
for full consideration of the alien's claim, if the alien is not a 
stowaway. If the alien is a stowaway, the Department shall place the 
alien in proceedings for consideration of the alien's claim pursuant to 
8 CFR 208.2(c)(3).
    (6) Prior to any determination concerning whether an alien arriving 
in the United States at a U.S.-Canada land border port-of-entry or in 
transit through the U.S. during removal by Canada has a credible fear of 
persecution or torture, the asylum officer shall conduct a threshold 
screening interview to determine whether such an alien is ineligible to 
apply for asylum pursuant to section 208(a)(2)(A) of the Act and subject 
to removal to Canada by operation of the Agreement Between the 
Government of the United States and the Government of Canada For 
Cooperation in the Examination of Refugee Status Claims from Nationals 
of Third Countries (``Agreement''). In conducting this threshold 
screening interview, the asylum officer shall apply all relevant 
interview procedures outlined in paragraph (d) of this section, 
provided, however, that paragraph (d)(2) of this section shall not apply 
to aliens described in this paragraph. The asylum officer shall advise 
the alien of the Agreement's exceptions and question the alien as to 
applicability of any of these exceptions to the alien's case.
    (i) If the asylum officer, with concurrence from a supervisory 
asylum officer, determines that an alien does not qualify for an 
exception under the Agreement during this threshold screening interview, 
the alien is ineligible to apply for asylum in the United States. After 
the asylum officer's documented finding is reviewed by a supervisory 
asylum officer, the alien shall be advised that he or she will be 
removed to Canada in order to pursue his or her claims relating to a 
fear of persecution or torture under Canadian law. Aliens found 
ineligible to apply for asylum under this paragraph shall be removed to 
Canada.
    (ii) If the alien establishes by a preponderance of the evidence 
that he or she qualifies for an exception under the terms of the 
Agreement, the asylum officer shall make a written notation of the basis 
of the exception, and then proceed immediately to a determination 
concerning whether the alien has a credible fear of persecution or 
torture under paragraph (d) of this section.
    (iii) An alien qualifies for an exception to the Agreement if the 
alien is not being removed from Canada in transit through the United 
States and
    (A) Is a citizen of Canada or, not having a country of nationality, 
is a habitual resident of Canada;
    (B) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who has been granted asylum, refugee, or other lawful status in 
the United States, provided, however, that this exception shall not 
apply to an alien whose relative maintains only nonimmigrant visitor 
status, as defined in section 101(a)(15)(B) of the Act, or whose 
relative maintains only visitor status based on admission to the United 
States pursuant to the Visa Waiver Program;

[[Page 189]]

    (C) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who is at least 18 years of age and has an asylum application 
pending before U.S. Citizenship and Immigration Services, the Executive 
Office for Immigration Review, or on appeal in federal court in the 
United States;
    (D) Is unmarried, under 18 years of age, and does not have a parent 
or legal guardian in either Canada or the United States;
    (E) Arrived in the United States with a validly issued visa or other 
valid admission document, other than for transit, issued by the United 
States to the alien, or, being required to hold a visa to enter Canada, 
was not required to obtain a visa to enter the United States; or
    (F) The Director of USCIS, or the Director's designee, determines, 
in the exercise of unreviewable discretion, that it is in the public 
interest to allow the alien to pursue a claim for asylum, withholding of 
removal, or protection under the Convention Against Torture, in the 
United States.
    (iv) As used in 8 CFR 208.30(e)(6)(iii)(B), (C) and (D) only, 
``legal guardian'' means a person currently vested with legal custody of 
such an alien or vested with legal authority to act on the alien's 
behalf, provided that such an alien is both unmarried and less than 18 
years of age, and provided further that any dispute with respect to 
whether an individual is a legal guardian will be resolved on the basis 
of U.S. law.
    (7) An asylum officer's determination shall not become final until 
reviewed by a supervisory asylum officer.
    (f) Procedures for a positive credible fear finding. If an alien, 
other than an alien stowaway, is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-862, Notice to Appear, for full consideration of the 
asylum and withholding of removal claim in proceedings under section 240 
of the Act. If an alien stowaway is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-863, Notice of Referral to Immigration Judge, for full 
consideration of the asylum claim, or the withholding of removal claim, 
in proceedings under Sec. 208.2(c). Parole of the alien may be 
considered only in accordance with section 212(d)(5) of the Act and 
Sec. 212.5 of this chapter.
    (g) Procedures for a negative credible fear finding. (1) If an alien 
is found not to have a credible fear of persecution or torture, the 
asylum officer shall provide the alien with a written notice of decision 
and inquire whether the alien wishes to have an immigration judge review 
the negative decision, using Form I-869, Record of Negative Credible 
Fear Finding and Request for Review by Immigration Judge. The alien 
shall indicate whether he or she desires such review on Form I-869. A 
refusal by the alien to make such indication shall be considered a 
request for review.
    (i) If the alien requests such review, or refuses to either request 
or decline such review, the asylum officer shall arrange for detention 
of the alien and serve him or her with a Form I-863, Notice of Referral 
to Immigration Judge, for review of the credible fear determination in 
accordance with paragraph (f)(2) of this section.
    (ii) If the alien is not a stowaway and does not request a review by 
an immigration judge, the officer shall order the alien removed and 
issue a Form I-860, Notice and Order of Expedited Removal, after review 
by a supervisory asylum officer.
    (iii) If the alien is a stowaway and the alien does not request a 
review by an immigration judge, the asylum officer shall refer the alien 
to the district director for completion of removal proceedings in 
accordance with section 235(a)(2) of the Act.
    (2) Review by immigration judge of a negative credible fear finding.
    (i) Immigration judges will review negative credible fear findings 
as provided in 8 CFR 1208.30(g)(2).
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based

[[Page 190]]

shall be provided to the immigration judge with the negative 
determination.

[65 FR 76136, Dec. 6, 2000, as amended at 69 FR 69488, Nov. 29, 2004]



Sec. 208.31  Reasonable fear of persecution or torture determinations
 involving aliens ordered removed under section 238(b) of the Act and 

aliens whose removal is reinstated under section 241(a)(5) of the Act.

    (a) Jurisdiction. This section shall apply to any alien ordered 
removed under section 238(b) of the Act or whose deportation, exclusion, 
or removal order is reinstated under section 241(a)(5) of the Act who, 
in the course of the administrative removal or reinstatement process, 
expresses a fear of returning to the country of removal. The Service has 
exclusive jurisdiction to make reasonable fear determinations, and EOIR 
has exclusive jurisdiction to review such determinations.
    (b) Initiation of reasonable fear determination process. Upon 
issuance of a Final Administrative Removal Order under Sec. 238.1 of 
this chapter, or notice under Sec. 241.8(b) of this chapter that an 
alien is subject to removal, an alien described in paragraph (a) of this 
section shall be referred to an asylum officer for a reasonable fear 
determination. In the absence of exceptional circumstances, this 
determination will be conducted within 10 days of the referral.
    (c) Interview and procedure. The asylum officer shall conduct the 
interview in a non-adversarial manner, separate and apart from the 
general public. At the time of the interview, the asylum officer shall 
determine that the alien has an understanding of the reasonable fear 
determination process. The alien may be represented by counsel or an 
accredited representative at the interview, at no expense to the 
Government, and may present evidence, if available, relevant to the 
possibility of persecution or torture. The alien's representative may 
present a statement at the end of the interview. The asylum officer, in 
his or her discretion, may place reasonable limits on the number of 
persons who may be present at the interview and the length of the 
statement. If the alien is unable to proceed effectively in English, and 
if the asylum officer is unable to proceed competently in a language 
chosen by the alien, the asylum officer shall arrange for the assistance 
of an interpreter in conducting the interview. The interpreter may not 
be a representative or employee of the applicant's country or 
nationality, or if the applicant is stateless, the applicant's country 
of last habitual residence. The asylum officer shall create a summary of 
the material facts as stated by the applicant. At the conclusion of the 
interview, the officer shall review the summary with the alien and 
provide the alien with an opportunity to correct errors therein. The 
asylum officer shall create a written record of his or her 
determination, including a summary of the material facts as stated by 
the applicant, any additional facts relied on by the officers, and the 
officer's determination of whether, in light of such facts, the alien 
has established a reasonable fear of persecution or torture. The alien 
shall be determined to have a reasonable fear of persecution or torture 
if the alien establishes a reasonable possibility that he or she would 
be persecuted on account of his or her race, religion, nationality, 
membership in a particular social group or political opinion, or a 
reasonable possibility that he or she would be tortured in the country 
of removal. For purposes of the screening determination, the bars to 
eligibility for withholding of removal under section 241(b)(3)(B) of the 
Act shall not be considered.
    (d) Authority. Asylum officers conducting screening determinations 
under this section shall have the authority described in Sec. 208.9(c).
    (e) Referral to Immigration Judge. If an asylum officer determines 
that an alien described in this section has a reasonable fear of 
persecution or torture, the officer shall so inform the alien and issue 
a Form I-863, Notice of Referral to the Immigration Judge, for full 
consideration of the request for withholding of removal only. Such cases 
shall be adjudicated by the immigration judge in accordance with the 
provisions of Sec. 208.16. Appeal of the immigration judge's decision 
shall lie to the Board of Immigration Appeals.

[[Page 191]]

    (f) Removal of aliens with no reasonable fear of persecution or 
torture. If the asylum officer determines that the alien has not 
established a reasonable fear of persecution or torture, the asylum 
officer shall inform the alien in writing of the decision and shall 
inquire whether the alien wishes to have an immigration judge review the 
negative decision, using Form I-898, Record of Negative Reasonable Fear 
Finding and Request for Review by Immigration Judge, on which the alien 
shall indicate whether he or she desires such review.
    (g) Review by immigration judge. The asylum officer's negative 
decision regarding reasonable fear shall be subject to review by an 
immigration judge upon the alien's request. If the alien requests such 
review, the asylum officer shall serve him or her with a Form I-863. The 
record of determination, including copies of the Form I-863, the asylum 
officer's notes, the summary of the material facts, and other materials 
upon which the determination was based shall be provided to the 
immigration judge with the negative determination. In the absence of 
exceptional circumstances, such review shall be conducted by the 
immigration judge within 10 days of the filing of the Form I-863 with 
the immigration court. Upon review of the asylum officer's negative 
reasonable fear determination:
    (1) If the immigration judge concurs with the asylum officer's 
determination that the alien does not have a reasonable fear of 
persecution or torture, the case shall be returned to the Service for 
removal of the alien. No appeal shall lie from the immigration judge's 
decision.
    (2) If the immigration judge finds that the alien has a reasonable 
fear of persecution or torture, the alien may submit Form I-589, 
Application for Asylum and Withholding of Removal.
    (i) The immigration judge shall consider only the alien's 
application for withholding of removal under Sec. 208.16 and shall 
determine whether the alien's removal to the country of removal must be 
withheld or deferred.
    (ii) Appeal of the immigration judge's decision whether removal must 
be withheld or deferred lies to the Board of Immigration Appeals. If the 
alien or the Service appeals the immigration judge's decision, the Board 
shall review only the immigration judge's decision regarding the alien's 
eligibility for withholding or deferral of removal under Sec. 208.16.

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



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




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

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



Sec. 209.1  Adjustment of status of refugees.

    The provisions of this section shall provide the sole and exclusive 
procedure for adjustment of status by a refugee admitted under section 
207 of the Act whose application is based on his or her refugee status.
    (a) Eligibility. (1) Every alien in the United States who is 
classified as a refugee under part 207 of this chapter, whose status has 
not been terminated, is required to apply to the Service 1 year after 
entry in order for the Service to determine his or her admissibility 
under section 212 of the Act.
    (2) Every alien processed by the Immigration and Naturalization 
Service abroad and paroled into the United States as a refugee after 
April 1, 1980, and before May 18, 1980, shall be considered as having 
entered the United States as a refugee under section 207(a) of the Act.
    (b) Application. Upon admission to the United States, every refugee 
entrant shall be notified of the requirement to submit an application 
for permanent residence 1 year after entry. An application for the 
benefits of section 209(a) of the Act shall be filed on Form I-485, 
without fee, with the director of the appropriate Service office 
identified in the instructions which accompany the Form I-485. A 
separate application must be filed by each alien. Every applicant who is 
14 years of age or older must submit a completed

[[Page 192]]

Form G-325A (Biographical Information) with the Form I-485 application. 
Following submission of the Form I-485 application, a refugee entrant 
who is 14 years of age or older will be required to execute a Form FD-
258 (Applicant Fingerprint Card) at such time and place as the Service 
will designate.
    (c) Medical examination. A refugee seeking adjustment of status 
under section 209(a) of the Act is not required to repeat the medical 
examination performed under Sec. 207.2(c), unless there were medical 
grounds of inadmissibility applicable at the time of admission. The 
refugee is, however, required to establish compliance with the 
vaccination requirements described under section 212(a)(1)(A)(ii) of the 
Act, by submitting with the adjustment of status application a 
vaccination supplement, completed by a designated civil surgeon in the 
United States.
    (d) Interview. The Service director having jurisdiction over the 
application will determine, on a case-by-case basis, whether an 
interview by an immigration officer is necessary to determine the 
applicant's admissibility for permanent resident status under this part.
    (e) Decision. The director will notify the applicant in writing of 
the decision of his or her application for admission to permanent 
residence. If the applicant is determined to be inadmissible or no 
longer a refugee, the director will deny the application and notify the 
applicant of the reasons for the denial. The director will, in the same 
denial notice, inform the applicant of his or her right to renew the 
request for permanent residence in removal proceedings under section 240 
of the Act. There is no appeal of the denial of an application by the 
director, but such denial will be without prejudice to the alien's right 
to renew the application in removal proceedings under part 240 of this 
chapter. If the applicant is found to be admissible for permanent 
residence under section 209(a) of the Act, the director will approve the 
application and admit the applicant for lawful permanent residence as of 
the date of the alien's arrival in the United States. An alien admitted 
for lawful permanent residence will be issued Form I-551, Alien 
Registration Receipt Card.

[63 FR 30109, June 3, 1998]



Sec. 209.2  Adjustment of status of alien granted asylum.

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

If the application for adjustment filed under this part exceeds the 
refugee numbers available under section 207(a) of the Act for the fiscal 
year, a waiting list will be established on a priority basis by the date 
the application was properly filed.
    (2) An alien, who was granted asylum in the United States prior to 
November 29, 1990 (regardless of whether or not such asylum has been 
terminated under section 208(b) of the Act), and is no longer a refugee 
due to a change in circumstances in the foreign state where he or she 
feared persecution, may also have his or her status adjusted by the 
director to that of an alien lawfully admitted for permanent residence 
even if he or she is no longer able to demonstrate that he or she 
continues to be a refugee within the meaning of section 10l(a)(42) of 
the Act, or to

[[Page 193]]

be a spouse or child of such a refugee or to have been physically 
present in the United States for at least one year after being granted 
asylum, so long as he or she is able to meet the requirements noted in 
paragraphs (a)(1)(i), (iv), and (v) of this section. Such persons are 
exempt from the numerical limitations of section 209(b) of the Act. 
However, the number of aliens who are natives of any foreign state who 
may adjust status pursuant to this paragraph in any fiscal year shall 
not exceed the difference between the per country limitation established 
under section 202(a) of the Act and the number of aliens who are 
chargeable to that foreign state in the fiscal year under section 202 of 
the Act. Aliens who applied for adjustment of status under section 
209(b) of the Act before June 1, 1990, are also exempt from its 
numerical limitation without any restrictions.
    (b) Inadmissible Alien. An applicant who is inadmissible to the 
United States under section 212(a) of the Act, may, under section 209(c) 
of the Act, have the grounds of inadmissibility waived by the director 
(except for those grounds under paragraphs (27), (29), (33), and so much 
of (23) as relates to trafficking in narcotics) for humanitarian 
purposes, to assure family unity, or when it is otherwise in the public 
interest. An application for the waiver may be filed on Form I-602 
(Application by Refugee for Waiver of Grounds of Excludability) with the 
application for adjustment. An applicant for adjustment who has had the 
status of an exchange alien nonimmigrant under section 101(a)(15)(J) of 
the Act, and who is subject to the foreign resident requirement of 
section 212(e) of the Act, shall be eligible for adjustment without 
regard to the foreign residence requirement.
    (c) Application. An application for the benefits of section 209(b) 
of the Act may be filed on Form I-485, with the correct fee, with the 
director of the appropriate Service office identified in the 
instructions to the Form I-485. A separate application must be filed by 
each alien. Every applicant who is 14 years of age or older must submit 
a completed Form G-325A (Biographic Information) with the Form I-485 
application. Following submission of the Form I-485 application, every 
applicant who is 14 years of age or older will be required to execute a 
Form FD-258 (Applicant Fingerprint Card) at such time and place as the 
Service will designate. Except as provided in paragraph (a)(2) of this 
section, the application must also be supported by evidence that the 
applicant has been physically present in the United States for at least 
1 year. If an alien has been placed in deportation or exclusion 
proceedings, the application can be filed and considered only in 
proceedings under section 240 of the Act.
    (d) Medical examination. An alien seeking adjustment of status under 
section 209(b) of the Act 1 year following the grant of asylum under 
section 208 of the Act shall submit the results of a medical examination 
to determine whether any grounds of inadmissibility described under 
section 212(a)(1)(A) of the Act apply. Form I-693, Medical Examination 
of Aliens Seeking Adjustment of Status, and a vaccination supplement to 
determine compliance with the vaccination requirements described under 
section 212(a)(1)(A)(ii) of the Act must be completed by a designed 
civil surgeon in the United States and submitted at the time of 
application for adjustment of status.
    (e) Interview. Each applicant for adjustment of status under this 
part shall be interviewed by an immigration officer. The interview may 
be waived for a child under 14 years of age. The Service director having 
jurisdiction over the application will determine, on a case-by-case 
basis, whether an interview by an immigration officer is necessary to 
determine the applicant's admissibility for permanent resident status 
under this part.
    (f) Decision. The applicant shall be notified of the decision, and 
if the application is denied, of the reasons for denial. No appeal shall 
lie from the denial of an application by the director but such denial 
will be without prejudice to the alien's right to renew the application 
in proceedings under part 240 of this chapter. If the application is 
approved, the director shall record the alien's admission for lawful 
permanent residence as of the date one year before

[[Page 194]]

the date of the approval of the application, but not earlier than the 
date of the approval for asylum in the case of an applicant approved 
under paragraph (a)(2) of this section.

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



PART 210_SPECIAL AGRICULTURAL WORKERS--Table of Contents




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

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

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



Sec. 210.1  Definition of terms used in this part.

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

[[Page 195]]

be nonfrivolous at the time the applicant appears for an interview at a 
legalization or overseas processing office if it contains:
    (1) Evidence or information which shows on its face that the 
applicant is admissible to the United States or, if inadmissible, that 
the applicable grounds of excludability may be waived under the 
provisions of section 210(c)(2)(i) of the Act,
    (2) Evidence or information which shows on its face that the 
applicant performed at least 90 man-days of qualifying employment in 
seasonal agricultural services during the twelve-month period from May 
1, 1985 through May 1, 1986, and
    (3) Documentation which establishes a reasonable inference of the 
performance of the seasonal agricultural services claimed by the 
applicant.
    (l) Overseas processing office. Overseas processing offices are 
offices outside the United States at which applications for adjustment 
to temporary resident status as a special agricultural worker are 
received, processed, referred to the Service for adjudication or denied. 
The Secretary of State has designated for this purpose the United States 
Embassy at Mexico City, and in all other countries the immigrant visa 
issuing of office at which the alien, if an applicant for an immigrant 
visa, would make such application. Consular officers assigned to such 
offices are authorized to recommend approval of an application for 
special agricultural worker status to the Service if the alien 
establishes eligibility for approval and to deny such an application if 
the alien fails to establish eligibility for approval or is found to 
have committed fraud or misrepresented facts in the application process.
    (m) Preliminary application. A preliminary application is defined as 
a fully completed and signed application with fee and photographs which 
contains specific information concerning the performance of qualifying 
employment in the United States, and identifies documentary evidence 
which the applicant intends to submit as proof of such employment. The 
applicant must be otherwise admissible to the United States and must 
establish to the satisfaction of the examining officer during an 
interview that his or her claim to eligibility for special agriculture 
worker status is credible.
    (n) Public cash assistance. Public cash assistance means income or 
needs-based monetary assistance. This includes but is not limited to 
supplemental security income received by the alien or his immediate 
family members through federal, state, or local programs designed to 
meet subsistence levels. It does not include assistance in kind, such as 
food stamps, public housing, or other non-cash benefits, nor does it 
include work-related compensation or certain types of medical assistance 
(Medicare, Medicaid, emergency treatment, services to pregnant women or 
children under 18 years of age, or treatment in the interest of public 
health).
    (o) Qualified designated entity. A qualified designated entity is 
any state, local, church, community, or voluntary agency, farm labor 
organization, association of agricultural employers or individual 
designated by the Service to assist aliens in the preparation of 
applications for Legalization and/or Special Agricultural Worker status.
    (p) Qualifying agricultural employment. Qualifying agricultural 
employment means the performance of ``seasonal agricultural services'' 
described at section 210(h) of the Act as that term is defined in 
regulations by the Secretary of Agriculture at 7 CFR part 1d.
    (q) Regional processing facility. Regional Processing Facilities are 
Service offices established in each of the four Service regions to 
adjudicate, under the authority of the Directors of the Regional 
Processing Facilities, applications for adjustment of status under 
sections 210 and 245a of the Act.
    (r) Service. The Immigration and Naturalization Service (INS).
    (s) Special agricultural worker. Any individual granted temporary 
resident status in the Group 1 or Group 2 classification or permanent 
resident status under section 210(a) of the Act.

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

[[Page 196]]



Sec. 210.2  Application for temporary resident status.

    (a)(1) Application for temporary resident status. An alien 
agricultural worker who believes that he or she is eligible for 
adjustment of status under the provisions of Sec. 210.3 of this part 
may file an application for such adjustment at a qualified designated 
entity, at a legalization office, or at an overseas processing office 
outside the United States. Such application must be filed within the 
application period.
    (2) Application for Group 1 status. An alien who believes that he or 
she qualifies for Group 1 status as defined in Sec. 210.1(f) of this 
part and who desires to apply for that classification must so endorse 
his or her application at the time of filing. Applications not so 
endorsed will be regarded as applications for Group 2 status as defined 
in Sec. 210.1(g) of this part.
    (3) Numerical limitations. The numerical limitations of sections 201 
and 202 of the Act do not apply to the adjustment of aliens to lawful 
temporary or permanent resident status under section 210 of the Act. No 
more than 350,000 aliens may be granted temporary resident status in the 
Group 1 classification. If more than 350,000 aliens are determined to be 
eligible for Group 1 classification, the first 350,000 applicants (in 
chronological order by date the application is filed at a legalization 
or overseas processing office) whose applications are approved for Group 
1 status shall be accorded that classification. Aliens admitted to the 
United States under the transitional admission standard placed in effect 
between July 1, 1987, and November 1, 1987, and under the preliminary 
application standard at Sec. 210.2(c)(4) who claim eligibility for 
Group 1 classification shall be registered as applicants for that 
classification on the date of submission to a legalization office of a 
complete application as defined in Sec. 210.1(c) of this part. Other 
applicants who may be eligible for Group 1 classification shall be 
classified as Group 2 aliens. There is no limitation on the number of 
aliens whose resident status may be adjusted from temporary to permanent 
in Group 2 classification.
    (b) Filing date of application--(1) General. The date the alien 
submits an application to a qualified designated entity, legalization 
office or overseas processing office shall be considered the filing date 
of the application, provided that in the case of an application filed at 
a qualified designated entity the alien has consented to have the entity 
forward the application to a legalization office. Qualified designated 
entities are required to forward completed applications to the 
appropriate legalization office within 60 days after the applicant gives 
consent for such forwarding.
    (2) [Reserved]
    (c) Filing of application--(1) General. The application must be 
filed on Form I-700 at a qualified designated entity, at a legalization 
office, at a designated port of entry, or at an overseas processing 
office within the eighteen-month period beginning on June 1, 1987 and 
ending on November 30, 1988.
    (2) Applications in the United States. (i) The application must be 
filed on Form I-700 with the required fee and, if the applicant is 14 
years or older, the application must be accompanied by a completed Form 
FD-258 (Fingerprint Card).
    (ii) All fees for applications filed in the United States, other 
than those within the provisions of Sec. 210.2(c)(4), must be submitted 
in the exact amount in the form of a money order, cashier's check, or 
bank check made payable to the Immigration and Naturalization Service. 
No personal checks or currency will be accepted. Fees will not be waived 
or refunded under any circumstances.
    (iii) In the case of an application filed at a legalization office, 
including an application received from a qualified designated entity, 
the district director may, at his or her discretion, require filing 
either by mail or in person, or may permit filing in either manner.
    (iv) Each applicant, regardless of age, must appear at the 
appropriate Service legalization office and must be fingerprinted for 
the purpose of issuance of Form I-688A. Each applicant shall be 
interviewed by an immigration officer, except that the interview may be 
waived when it is impractical because of the health of the applicant.
    (3) Filing at overseas processing offices. (i) The application must 
be filed on

[[Page 197]]

Form I-700 and must include a completed State Department Form OF-179 
(Biographic Data for Visa Purposes).
    (ii) Every applicant must appear at the appropriate overseas 
processing office to be interviewed by a consular officer. The overseas 
processing office will inform each applicant of the date and time of the 
interview. At the time of the interview every applicant shall submit the 
required fee.
    (iii) All fees for applications submitted to an overseas processing 
office shall be submitted in United States currency, or in the currency 
of the country in which the overseas processing office is located. Fees 
will not be waived or refunded under any circumstances.
    (iv) An applicant at an overseas processing office whose application 
is recommended for approval shall be provided with an entry document 
attached to the applicant's file. Upon admission to the United States, 
the applicant shall proceed to a legalization office for presentation or 
completion of Form FD-258 (Fingerprint Card), presentation of the 
applicant's file and issuance of the employment authorization Form I-
688A.
    (4) Border processing. The Commissioner will designate specific 
ports of entry located on the southern land border to accept and process 
applications under this part. Ports of entry so designated will process 
preliminary applications as defined at Sec. 210.1(l) under the 
authority of the district directors in whose districts they are located. 
The ports of entry at Calexico, California, Otay Mesa, California, and 
Laredo, Texas have been designated to conduct preliminary application 
processing. Designated ports of entry may be closed or added at the 
discretion of the Commissioner.
    (i) Admission standard. The applicant must present a fully completed 
and signed Form I-700, Application for Temporary Resident Status with 
the required fee and photographs at a designated port of entry. The 
application 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

[[Page 198]]

evidence of eligibility which meets the provisions of Sec. 210.3 of 
this part; to complete Form FD-258 (Fingerprint Card); to obtain a 
report of medical examination in accordance with Sec. 210.2(d) of this 
part; and to submit to a legalization office a complete application as 
defined at Sec. 210.1(c) of this part. The INS may, for good cause, 
extend the ninety-day period and grant further authorization to accept 
employment in the United States if an alien demonstrates he or she was 
unable to perfect an application within the initial period. If an alien 
described in this paragraph fails to submit a complete application to a 
legalization office within ninety days or within such additional period 
as may have been authorized, his or her application may be denied for 
lack of prosecution, without prejudice.
    (iv) Deportation is not stayed for an alien subject to deportation 
and removal under the INA, notwithstanding a claim to eligibility for 
SAW status, unless that alien has filed a nonfrivolous application.
    (d) Medical examination. An applicant under this part must be 
examined at no expense to the government by a designated civil surgeon 
or, in the case of an applicant abroad, by a physician or clinic 
designated to perform medical examinations of immigrant visa applicants. 
The medical report setting forth the findings concerning the mental and 
physical condition of the applicant shall be incorporated into the 
record. Any applicant certified under paragraph (1), (2), (3), (4), or 
(5) of section 212(a) of the Act may appeal to a Board of Medical 
Officers of the U.S. Public Health Service as provided in section 234 of 
the Act and part 235 of this chapter.
    (e) Limitation on access to information and confidentiality. (1) 
Except for consular officials engaged in the processing of applications 
overseas and employees of a qualified designated entity where an 
application is filed with that entity, no person other than a sworn 
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

[[Page 199]]

accordance with the provisions of Sec. 103.3(a)(2) of this chapter from 
that portion of the decision denying Group 1 status. In the case of an 
applicant who is represented in the application process in accordance 
with 8 CFR part 292, the applicant's representative shall also receive 
notification of decision specified in this section.
    (g) Motions. In accordance with the provisions of Sec. 103.5(b) of 
this chapter, the director of a regional processing facility or a 
consular officer at an overseas processing office may sua sponte reopen 
any proceeding under this part under his or her jurisdiction and reverse 
any adverse decision in such proceeding when appeal is taken under Sec. 
103.3(a)(2) of this part from such adverse decision; the Associate 
Commissioner, Examinations, and the Chief of the Administrative Appeals 
Unit may sua sponte reopen any proceeding conducted by that unit under 
this part and reconsider any decision rendered in such proceeding. The 
decision must be served on the appealing party within forty-five (45) 
days of receipt of any briefs and/or new evidence, or upon expiration of 
the time allowed for the submission of any briefs. Motions to reopen a 
proceeding or reconsider a decision shall not be considered under this 
part.
    (h) Certifications. The regional processing facility director may, 
in accordance with Sec. 103.4 of this chapter, certify a decision to 
the Associate Commissioner, Examinations when the case involves an 
unusually complex or novel question of law or fact. A consular officer 
assigned to an overseas processing office is authorized to certify a 
decision in the same manner and upon the same basis.

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



Sec. 210.3  Eligibility.

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

[[Page 200]]

of persons other than the applicant) will not serve to meet an 
applicant's burden of proof. All evidence of identity, qualifying 
employment, admissibility, and eligibility submitted by an applicant for 
adjustment of status under this part will be subject to verification by 
the Service. Failure by an applicant to release information protected by 
the Privacy Act or related laws when such information is essential to 
the proper adjudication of an application may result in denial of the 
benefit sought. The Service may solicit from agricultural producers, 
farm labor contractors, collective bargaining organizations and other 
groups or organizations which maintain records of employment, lists of 
workers against which evidence of qualifying employment can be checked. 
If such corroborating evidence is not available and the evidence 
provided is deemed insufficient, the application may be denied.
    (4) Securing SAW employment records. When a SAW applicant alleges 
that an employer or farm labor contractor refuses to provide him or her 
with records relating to his or her employment and the applicant has 
reason to believe such records exist, the Service shall attempt to 
secure such records. However, prior to any attempt by the Service to 
secure the employment records, the following conditions must be met: a 
SAW application (Form I-700) must have been filed; an interview must 
have been conducted; the applicant's testimony must support credibly his 
or her claim; and, the Service must determine that the application 
cannot be approved in the absence of the employer or farm labor 
contractor records. Provided each of these conditions has been met, and 
after unsuccessful attempts by the Service for voluntary compliance, the 
District Directors shall utilize section 235 of the Immigration and 
Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in 
such cases where the employer or farm labor contractor refuses 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

[[Page 201]]

has the burden of proving that the applicant was in fact the person who 
used that name.
    (ii) Proof of common identity. The most persuasive evidence is a 
document issued in the assumed name which identifies the applicant by 
photograph, fingerprint or detailed physical description. Other evidence 
which will be considered are affidavit(s) by a person or persons other 
than the applicant, made under oath, which identify the affiant by name 
and address and state the affiant's relationship to the applicant and 
the basis of the affiant's knowledge of the applicant's use of the 
assumed name. Affidavits accompanied by a photograph which has been 
identified by the affiant as the individual known to the affiant under 
the assumed name in question will carry greater weight. Other documents 
showing the assumed name may serve to establish the common identity when 
substantiated by corroborating detail.
    (3) Proof of employment. The applicant may establish qualifying 
employment through government employment records, or records maintained 
by agricultural producers, farm labor contractors, collective bargaining 
organizations and other groups or organizations which maintain records 
of employment, or such other evidence as worker identification issued by 
employers or collective bargaining organizations, union membership cards 
or other union records such as dues receipts or records of the 
applicant's involvement or that of his or her immediate family with 
organizations providing services to farmworkers, or work records such as 
pay stubs, piece work receipts, W-2 Forms or certification of the filing 
of Federal income tax returns on IRS Form 6166, or state verification of 
the filing of state income tax returns. Affidavits may be submitted 
under oath, by agricultural producers, foremen, farm labor contractors, 
union officials, fellow employees, or other persons with specific 
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

[[Page 202]]

letters; and any other document that will show that applicant was in the 
United States at a specific time. For Group 2 eligibility, evidence of 
performance of the required 90 man-days of seasonal agricultural 
services shall constitute evidence of qualifying residence.
    (5) Proof of financial responsibility. Generally, the evidence of 
employment submitted under paragraph (c)(3) of this section will serve 
to demonstrate the alien's financial responsibility. If it appears that 
the applicant may be inadmissible under section 212(a)(15) of the Act, 
he or she may be required to submit documentation showing a history of 
employment without reliance on public cash assistance for all periods of 
residence in the United States.
    (d) Ineligible classes. The following classes of aliens are 
ineligible for temporary residence under this part:
    (1) An alien who at any time was a nonimmigrant exchange visitor 
under section 101(a)(15)(J) of the Act who is subject to the two-year 
foreign residence requirement unless the alien has complied with that 
requirement or the requirement has been waived pursuant to the 
provisions of section 212(e) of the Act;
    (2) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived, pursuant to 
section 210(c)(2)(B)(ii) of the Act;
    (3) An alien who has been convicted of a felony, or three or more 
misdemeanors.
    (e) Exclusion grounds--(1) Grounds of exclusion not to be applied. 
Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act 
shall not apply to applicants applying for temporary resident status.
    (2) Waiver of grounds for exclusion. Except as provided in paragraph 
(e)(3) of this section, the Service may waive any other provision of 
section 212(a) of the Act only in the case of individual aliens for 
humanitarian purposes, to 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.

[[Page 203]]

    (3) Grounds of exclusion that may not be waived. The following 
provisions of section 212(a) of the Act may not be waived:
    (i) Paragraphs (9) and (10) (criminals);
    (ii) Paragraph (15) (public charge) except as provided in paragraph 
(c)(4) of this section.
    (iii) Paragraph (23) (narcotics) except for a single offense of 
simple possession of thirty grams or less of marijuana.
    (iv) Paragraphs (27), (prejudicial to the public interest), (28), 
(communists), and (29) (subversive);
    (v) Paragraph (33) (Nazi persecution).
    (4) Special Rule for determination of public charge. An applicant 
who has a consistent employment history which shows the ability to 
support himself and his or her family, even though his income may be 
below the poverty level, is not excludable under paragraph (e)(3)(ii) of 
this section. The applicant's employment history need not be continuous 
in that it is uninterrupted. It should be continuous in the sense that 
the applicant shall be regularly attached to the workforce, has an 
income over a substantial period of the applicable time, and has 
demonstrated the capacity to exist on his or her income and maintain his 
or her family without reliance on public cash assistance. This 
regulation is prospective in that the Service shall determine, based on 
the applicant's history, whether he or she is likely to become a public 
charge. Past acceptance of public cash assistance within a history of 
consistent employment will enter into this decision. The weight given in 
considering applicability of the public charge provisions will depend on 
many factors, but the length of time an applicant has received public 
cash assistance will constitute a significant factor.

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



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(f) of this chapter.

[[Page 204]]

    (3) Employment and travel authorization upon grant of temporary 
resident status. Upon the granting of an application for adjustment to 
temporary resident status, the service center will forward a notice of 
approval to the applicant at his or her last known address and to his or 
her qualified designated entity or representative. The applicant may 
appear at any Service office, and upon surrender of the previously 
issued Employment Authorization Document, will be issued Form I-688, 
Temporary Resident Card. An alien whose status is adjusted to that of a 
lawful temporary resident under section 210 of the Act has the right to 
reside in the United States, to travel abroad (including commuting from 
a residence abroad), and to accept employment in the United States in 
the same manner as aliens lawfully admitted to permanent residence.
    (c) Ineligibility for immigration benefits. An alien whose status is 
adjusted to that of a lawful temporary resident under section 210 of the 
Act is not entitled to submit a petition pursuant to section 203(a)(2) 
of the Act or to any other benefit or consideration accorded under the 
Act to aliens lawfully admitted for permanent residence, except as 
provided in paragraph (b)(3) of this section.
    (d) Termination of temporary resident status--(1) General. The 
temporary resident status of a special agricultural worker is terminated 
automatically and without notice under section 210(a)(3) of the Act upon 
entry of a final order of deportation by an immigration judge based on a 
determination that the alien is deportable under section 241 of the Act.
    (2) The status of an alien lawfully admitted for temporary residence 
under section 210(a)(2) of the Act, may be terminated before the alien 
becomes eligible for adjustment of status under Sec. 210.5 of this 
part, upon the occurrence of any of the following:
    (i) It is determined by a preponderance of the evidence that the 
adjustment to temporary resident status was 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; 65 FR 82255, Dec. 28, 
2000]

[[Page 205]]



Sec. 210.5  Adjustment to permanent resident status.

    (a) Eligibility and date of adjustment to permanent resident status. 
The status of an alien lawfully admitted to the United States for 
temporary residence under section 210(a)(1) of the Act, if the alien has 
otherwise maintained such status as required by the Act, shall be 
adjusted to that of an alien lawfully admitted to the United States for 
permanent residence as of the following dates:
    (1) Group 1. Aliens determined to be eligible for Group 1 
classification, whose adjustment to temporary residence occurred prior 
to November 30, 1988, shall be adjusted to lawful permanent residence as 
of December 1, 1989. Those aliens whose adjustment to temporary 
residence occurred after November 30, 1988 shall be adjusted to lawful 
permanent residence one year from the date of the adjustment to 
temporary residence.
    (2) Group 2. Aliens determined to be eligible for Group 2 
classification whose adjustment to temporary residence occurred prior to 
November 30, 1988, shall be adjusted to lawful permanent residence as of 
December 1, 1990. Those aliens whose adjustment to temporary residence 
occurred after November 30, 1988 shall be adjusted to lawful permanent 
residence two years from the date of the adjustment to temporary 
residence.
    (b) ADIT processing--(1) General. To obtain proof of permanent 
resident status an alien described in paragraph (a) of this section must 
appear at a legalization or Service office designated for this purpose 
for preparation of Form I-551, Permanent Resident Card. Such appearance 
may be prior to the date of adjustment, but only upon invitation by the 
Service. Form I-551 shall be issued subsequent to the date of 
adjustment.
    (2) Upon appearance at a Service office for preparation of Form I-
551, an alien must present proof of identity, suitable ADIT photographs, 
and a fingerprint and signature must be obtained from the alien on Form 
I-89.

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



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




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

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

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



Sec. 211.1  Visas.

    (a) General. Except as provided in paragraph (b)(1) of this section, 
each arriving alien applying for admission (or boarding the vessel or 
aircraft on which he or she arrives) into the United States for lawful 
permanent residence, or as a lawful permanent resident returning to an 
unrelinquished lawful permanent residence in the United States, shall 
present one of the following:
    (1) A valid, unexpired immigrant visa;
    (2) A valid, unexpired Form I-551, Permanent Resident Card, if 
seeking readmission after a temporary absence of less than 1 year, or in 
the case of a crewmember regularly serving on board a vessel or aircraft 
of United States registry seeking readmission after any temporary 
absence connected with his or her duties as a crewman;
    (3) A valid, unexpired Form I-327, Permit to Reenter the United 
States;
    (4) A valid, unexpired Form I-571, Refugee Travel Document, properly 
endorsed to reflect admission as a lawful permanent resident;
    (5) An expired Form I-551, Permanent Resident Card, accompanied by a 
filing receipt issued within the previous 6 months for either a Form I-
751, Petition to Remove the Conditions on Residence, or Form I-829, 
Petition by Entrepreneur to Remove Conditions, if seeking admission or 
readmission after a temporary absence of less than 1 year;

[[Page 206]]

    (6) A Form I-551, whether or not expired, presented by a civilian or 
military employee of the United States Government who was outside the 
United States pursuant to official orders, or by the spouse or child of 
such employee who resided abroad while the employee or serviceperson was 
on overseas duty and who is preceding, accompanying or following to join 
within 4 months the employee, returning to the United States; or
    (7) Form I-551, whether or not expired, or a transportation letter 
issued by an American consular officer, presented by an employee of the 
American University of Beirut, who was so employed immediately preceding 
travel to the United States, returning temporarily to the United States 
before resuming employment with the American University of Beirut, or 
resuming permanent residence in the United States.
    (b) Waivers. (1) A waiver of the visa required in paragraph (a) of 
this section shall be granted without fee or application by the district 
director, upon presentation of the child's birth certificate, to a child 
born subsequent to the issuance of an immigrant visa to his or her 
accompanying parent who applies for admission during the validity of 
such a visa; or a child born during the temporary visit abroad of a 
mother who is a lawful permanent resident alien, or a national, of the 
United States, provided that the child's application for admission to 
the United States is made within 2 years of birth, the child is 
accompanied by the parent who is applying for readmission as a permanent 
resident upon the first return of the parent to the United States after 
the birth of the child, and the accompanying parent is found to be 
admissible to the United States.
    (2) For an alien described in paragraph (b)(1) of this section, 
recordation of the child's entry shall be on Form I-181, Memorandum of 
Creation of Record of Admission for Lawful Permanent Residence. The 
carrier of such alien shall not be liable for a fine pursuant to section 
273 of the Act.
    (3) If an immigrant alien returning to an unrelinquished lawful 
permanent residence in the United States after a temporary absence 
abroad believes that good cause exists for his or her failure to present 
an immigrant visa, Form I-551, or reentry permit, the alien may file an 
application for a waiver of this requirement with the district director 
in charge of the port-of-entry. To apply for this waiver, the alien must 
file Form I-193, Application for Waiver of Passport and/or Visa, with 
the fee prescribed in Sec. 103.7(b)(1) of this chapter, except that if 
the alien's Form I-551 was lost or stolen, the alien shall instead file 
Form I-90, Application to Replace Permanent Resident Card, with the fee 
prescribed in Sec. 103.7(b)(1) of this chapter, provided the temporary 
absence did not exceed 1 year. In the exercise of discretion, the 
district director in charge of the port-of-entry may waive the alien's 
lack of an immigrant visa, Form I-551, or reentry permit and admit the 
alien as a returning resident, if the district director is satisfied 
that the alien has established good cause for the alien's failure to 
present an immigrant visa, Form I-551, or reentry permit. Filing the 
Form I-90 will serve as both application for replacement and as 
application for waiver of passport and visa, without the obligation to 
file a separate waiver application.
    (c) Immigrants having occupational status defined in section 
101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry 
permit, or Form I-551 shall be invalid when presented by an alien who 
has an occupational status under section 101(a)(15) (A), (E), or (G) of 
the Act, unless he or she has previously submitted, or submits at the 
time he or she applies for admission to the United States, the written 
waiver required by section 247(b) of the Act and 8 CFR part 247.
    (d) Returning temporary residents. (1) Form I-688, Temporary 
Resident Card, may be presented in lieu of an immigrant visa by an alien 
whose status has been adjusted to that of a temporary resident under the 
provisions of Sec. 210.1 of this chapter, such status not having 
changed, and who is returning to an unrelinquished residence within one 
year after a temporary absence abroad.
    (2) Form I-688 may be presented in lieu of an immigrant visa by an 
alien whose status has been adjusted to that

[[Page 207]]

of a temporary resident under the provisions of Sec. 245a.2 of this 
chapter, such status not having changed, and who is returning to an 
unrelinquished residence within 30 days after a temporary absence 
abroad, provided that the aggregate of all such absences abroad during 
the temporary residence period has not exceeded 90 days.

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



Sec. 211.2  Passports.

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

[[Page 208]]

for an exemption from deportability under section 237(a)(1)(H) of the 
Act; and
    (2) Is not otherwise subject to removal.
    (b) Denial of a waiver by the district director is not appealable 
but shall be without prejudice to renewal of an application and 
reconsideration in proceedings before the immigration judge.



Sec. 211.5  Alien commuters.

    (a) General. An alien lawfully admitted for permanent residence or a 
special agricultural worker lawfully admitted for temporary residence 
under section 210 of the Act may commence or continue to reside in 
foreign contiguous territory and commute as a special immigrant defined 
in section 101(a)(27)(A) of the Act to his or her place of employment in 
the United States. An alien commuter engaged in seasonal work will be 
presumed to have taken up residence in the United States if he or she is 
present in this country for more than 6 months, in the aggregate, during 
any continuous 12-month period. An alien commuter's address report under 
section 265 of the Act must show his or her actual residence address 
even though it is not in the United States.
    (b) Loss of residence status. An alien commuter who has been out of 
regular employment in the United States for a continuous period of 6 
months shall be deemed to have lost residence status, notwithstanding 
temporary entries in the interim for other than employment purposes. An 
exception applies when employment in the United States was interrupted 
for reasons beyond the individual's control other than lack of a job 
opportunity or the commuter can demonstrate that he or she has worked 90 
days in the United States in the aggregate during the 12-month period 
preceding the application for admission into the United States. Upon 
loss of status, Form I-551 or I-688 shall become invalid and must be 
surrendered to an immigration officer.
    (c) Eligibility for benefits under the immigration and nationality 
laws. Until he or she has taken up residence in the United States, an 
alien commuter cannot satisfy the residence requirements of the 
naturalization laws and cannot qualify for any benefits under the 
immigration laws on his or her own behalf or on behalf of his or her 
relatives other than as specified in paragraph (a) of this section. When 
an alien commuter takes up residence in the United States, he or she 
shall no longer be regarded as a commuter. He or she may facilitate 
proof of having taken up such residence by notifying the Service as soon 
as possible, preferably at the time of his or her first reentry for that 
purpose. Application for issuance of a new Permanent Resident Card to 
show that he or she has taken up residence in the United States shall be 
made on Form I-90.

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



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




Sec.
212.1 Documentary requirements for nonimmigrants.
212.2 Consent to reapply for admission after deportation, removal or 
          departure at Government expense.
212.3 Application for the exercise of discretion under section 212(c).
212.4 Applications for the exercise of discretion under section 
          212(d)(1) and 212(d)(3).
212.5 Parole of aliens into the United States.
212.6 Border crossing identification cards.
212.7 Waiver of certain grounds of inadmissibility.
212.8 Certification requirement of section 212(a)(14).
212.9 Applicability of section 212(a)(32) to certain derivative third 
          and sixth preference and nonpreference immigrants.
212.10 Section 212(k) waiver.
212.11 Controlled substance convictions.
212.12 Parole determinations and revocations respecting Mariel Cubans.
212.13 [Reserved]
212.14 Parole determinations for alien witnesses and informants for whom 
          a law enforcement authority (``LEA'') will request S 
          classification.
212.15 Certificates for foreign health care workers.
212.16 Applications for exercise of discretion relating to T 
          nonimmigrant status.
212.17 Applications for the exercise of discretion relating to U 
          nonimmigrant status.


[[Page 209]]


    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 
1187, 1223, 1225, 1226, 1227; 8 U.S.C. 1185 note (section 7209 of Pub. 
L. 108-458).

    Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted.



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) Citizens of Canada or Bermuda, Bahamian nationals or British 
subjects resident in certain islands--(1) Canadian citizens. A visa is 
not required. A passport is not required for Canadian citizens entering 
the United States from within the Western Hemisphere by land or sea, or 
as participants in the NEXUS Air program at a NEXUS Air kiosk pursuant 
to 8 CFR 235.1(e). A passport is otherwise required for Canadian 
citizens arriving in the United States by aircraft.
    (2) Citizens of the British Overseas Territory of Bermuda. A visa is 
not required. A passport is not required for Citizens of the British 
Overseas Territory of Bermuda entering the United States from within the 
Western Hemisphere by land or sea. A passport is required for Citizens 
of the British Overseas Territory of Bermuda arriving in the United 
States by aircraft.
    (3) Bahamian nationals or British subjects resident in the Bahamas. 
A passport is required. A visa required of such an alien unless, prior 
to or at the time of embarkation for the United States on a vessel or 
aircraft, the alien satisfied the examining U.S. immigration officer at 
the Bahamas, that he or she is clearly and beyond a doubt entitled to 
admission, under section 212(a) of the Immigration and Nationality Act, 
in all other respects.
    (4) British subjects resident in the Cayman Islands or in the Turks 
and Caicos Islands. A passport is required. A visa is required of such 
an alien unless he or she arrives directly from the Cayman Islands or 
the Turks and Caicos Islands and presents a current certificate from the 
Clerk of Court of the Cayman Islands or the Turks and Caicos Islands 
indicating no criminal record.
    (b) Certain Caribbean residents--(1) British, French, and 
Netherlands nationals, and nationals of certain adjacent islands of the 
Caribbean which are independent countries. A visa is not required of a 
British, French, or Netherlands national, or of a national of Barbados, 
Grenada, Jamaica, or Trinidad and Tobago, who has his or her residence 
in British, French, or Netherlands territory located in the adjacent 
islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or 
Trinidad and Tobago, who:
    (i) Is proceeding to the United States as an agricultural worker;
    (ii) Is the beneficiary of a valid, unexpired indefinite 
certification granted by the Department of Labor for employment in the 
Virgin Islands of the United States and is proceeding to the Virgin 
Islands of the United States for such purpose, or
    (iii) Is the spouse or child of an alien described in paragraph 
(b)(1)(i) or (b)(1)(ii) of this section, and is accompanying or 
following to join him or her.
    (2) Nationals of the British Virgin Islands. A visa is not required 
of a national of the British Virgin Islands who has his or her residence 
in the British Virgin Islands, if:
    (i) The alien is seeking admission solely to visit the Virgin 
Islands of the United States; or
    (ii) At the time of embarking on an aircraft at St. Thomas, U.S. 
Virgin Islands, the alien meets each of the following requirements:
    (A) The alien is traveling to any other part of the United States by 
aircraft as a nonimmigrant visitor for business or pleasure (as 
described in section 101(a)(15)(B) of the Act);
    (B) The alien satisfies the examining U.S. Immigration officer at 
the port-of-entry that he or she is clearly and beyond a doubt entitled 
to admission in all other respects; and

[[Page 210]]

    (C) The alien presents a current Certificate of Good Conduct issued 
by the Royal Virgin Islands Police Department indicating that he or she 
has no criminal record.
    (c) Mexican nationals. (1) A visa and a passport are not required of 
a Mexican national who:
    (i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border 
Crossing Card, containing a machine-readable biometric identifier, 
issued by the DOS and is applying for admission as a temporary visitor 
for business or pleasure from a contiguous territory by land or sea.
    (ii) Is a Mexican national 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.
    (2) A visa shall not be required of a Mexican national who:
    (i) Is in possession of a Form DSP-150, with a biometric identifier, 
issued by the DOS, and a passport, and is applying for admission as a 
temporary visitor for business or pleasure from other than contiguous 
territory;
    (ii) Is a crew member employed on an aircraft belonging to a Mexican 
company owned carrier authorized to engage in commercial transportation 
into the United States; or
    (iii) Bears a Mexican diplomatic or official passport and who is a 
military or civilian official of the Federal Government of Mexico 
entering the United States for 6 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 admission into the United States. This 
provision 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.
    (3) A Mexican national who presents a BCC at a POE must present the 
DOS-issued DSP-150 containing a machine-readable biometric identifier. 
The alien will not be permitted to cross the border into the United 
States unless the biometric identifier contained on the card matches the 
appropriate biometric characteristic of the alien.
    (4) Mexican nationals presenting a combination B-1/B-2 nonimmigrant 
visa and border crossing card (or similar stamp in a passport), issued 
by DOS prior to April 1, 1998, that does not contain a machine-readable 
biometric identifier, may be admitted on the basis of the nonimmigrant 
visa only, provided it has not expired and the alien remains admissible. 
A passport is also required.
    (5) 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. 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;

[[Page 211]]

    (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, 
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.
    (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;

[[Page 212]]

    (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)-(2) [Reserved]
    (3) 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 passport valid for the 
amount of time set forth in section 212(a)(7)(B) of the Act, 8 U.S.C. 
1182(a)(7), or a valid biometric border crossing card, issued by the DOS 
on Form DSP-150, 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), (o), or (p) of this section. Upon a 
nonimmigrant's application on Form I-193, ``Application for Waiver of 
Passport and/or Visa,'' a district director may, in the exercise of his 
or her discretion, on a case-by-case basis, waive the documentary 
requirements, if satisfied that the nonimmigrant cannot present the 
required documents because of an unforeseen emergency. The district 
director may at any time revoke a waiver previously authorized pursuant 
to this paragraph and notify the nonimmigrant in writing to that effect.
    (h) Nonimmigrant spouses, fianc[eacute]es, fianc[eacute]s, and 
children of U.S. citizens. Notwithstanding any of the provisions of this 
part, an alien seeking admission as a spouse, fianc[eacute]e, 
fianc[eacute], or child of a U.S. citizen, or as a child of the spouse, 
fian[eacute], or finac[eacute]e of a U.S. citizen, pursuant to section 
101(a)(15)(K) of the Act shall be in possession of an unexpired 
nonimmigrant visa issued by an American consular officer classifying the 
alien under that section, or be inadmissible under section 212(a)(7)(B) 
of the Act.
    (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

[[Page 213]]

that Department for such action, immigration officers shall place an 
appropriate endorsement thereon.
    (l) Treaty traders and investors. Notwithstanding any of the 
provisions of this part, an alien seeking admission as a treaty trader 
or investor under the provisions of Chapter 16 of the North American 
Free Trade Agreement (NAFTA) pursuant to section 101(a)(15)(E) of the 
Act, shall be in possession of a nonimmigrant visa issued by an American 
consular officer classifying the alien under that section.
    (m) Aliens in S classification. Notwithstanding any of the 
provisions of this part, an alien seeking admission pursuant to section 
101(a)(15)(S) of the Act must be in possession of appropriate documents 
issued by a United States consular officer classifying the alien under 
that section.
    (n) Alien in Q-2 classification. Notwithstanding any of the 
provisions of this part, an alien seeking admission as a principal 
according to section 101(a)(15)(Q)(ii) of the Act must be in possession 
of a Certification Letter issued by the Department of State's Program 
Administrator documenting participation in the Irish peace process 
cultural and training programs.
    (o) Alien in T-2 through T-4 classification. Individuals seeking T-2 
through T-4 nonimmigrant status may avail themselves of the provisions 
of paragraph (g) of this section, except that the authority to waive 
documentary requirements resides with the Service Center.


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

    (p) Alien in U-1 through U-5 classification. Individuals seeking U-1 
through U-5 nonimmigrant status may avail themselves of the provisions 
of paragraph (g) of this section, except that the authority to waive 
documentary requirements resides with the director of the USCIS office 
having jurisdiction over the adjudication of Form I-918, ``Petition for 
U Nonimmigrant Status.''

[26 FR 12066, Dec. 16, 1961]

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



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

    (a) Evidence. Any alien who has been deported or removed from the 
United States is inadmissible to the United States unless the alien has 
remained outside of the United States for five consecutive years since 
the date of deportation or removal. If the alien has been convicted of 
an aggravated felony, he or she must remain outside of the United States 
for twenty consecutive years from the deportation date before he or she 
is eligible to re-enter the United States. Any alien who has been 
deported or removed from the United States and is applying for a visa, 
admission to the United States, or adjustment of status, must present 
proof that he or she has remained outside of the United States for the 
time period required for re-entry after deportation or removal. The 
examining consular or immigration officer must be satisfied that since 
the alien's deportation or removal, the alien has remained outside the 
United States for more than five consecutive years, or twenty 
consecutive years in the case of an alien convicted of an aggravated 
felony as defined in section 101(a)(43) of the Act. Any alien who does 
not satisfactorily present proof of absence from the United States for 
more than five consecutive years, or twenty consecutive years in the 
case of an alien convicted of an aggravated felony, to the consular or 
immigration officer, and any alien who is seeking to enter the United 
States prior to the completion of the requisite five- or twenty-year 
absence, must apply for permission to reapply for admission to the 
United States as provided under this part. A temporary stay in the 
United States under section 212(d)(3) of the Act does not interrupt the 
five or twenty consecutive year absence requirement.
    (b) Alien applying to consular officer for nonimmigrant visa or 
nonresident alien border crossing card. (1) An alien who is applying to 
a consular officer

[[Page 214]]

for a nonimmigrant visa or a nonresident alien border crossing card, 
must request permission to reapply for admission to the United States if 
five years, or twenty years if the alien's deportation was based upon a 
conviction for an aggravated felony, have not elapsed since the date of 
deportation or removal. This permission shall be requested in the manner 
prescribed through the consular officer, and may be granted only in 
accordance with sections 212(a)(17) and 212(d)(3)(A) of the Act and 
Sec. 212.4 of this part. However, the alien may apply for such 
permission by submitting Form I-212, Application for Permission to 
Reapply for Admission into the United States after Deportation or 
Removal, to the consular officer if that officer is willing to accept 
the application, and recommends to the district director that the alien 
be permitted to apply.
    (2) The consular officer shall forward the Form I-212 to the 
district director with jurisdiction over the place where the deportation 
or removal proceedings were held.
    (c) Special provisions for an applicant for nonimmigrant visa under 
section 101(a)(15)(K) of the Act. (1) An applicant for a nonimmigrant 
visa under section 101(a)(15)(K) must:
    (i) Be the beneficiary of a valid visa petition approved by the 
Service; and
    (ii) File an application on Form I-212 with the consular officer for 
permission to reapply for admission to the United States after 
deportation or removal.
    (2) The consular officer must forward the Form I-212 to the Service 
office with jurisdiction over the area within which the consular officer 
is located. If the alien is ineligible on grounds which, upon the 
applicant's marriage to the United States citizen petitioner, may be 
waived under section 212 (g), (h), or (i) of the Act, the consular 
officer must also forward a recommendation as to whether the waiver 
should be granted.
    (d) Applicant for immigrant visa. Except as provided in paragraph 
(g)(3) of this section, an applicant for an immigrant visa who is not 
physically present in the United States and who requires permission to 
reapply must file Form I-212 with the district director having 
jurisdiction over the place where the deportation or removal proceedings 
were held. Except as provided in paragraph (g)(3) of this section, if 
the applicant also requires a waiver under section 212 (g), (h), or (i) 
of the Act, Form I-601, Application for Waiver of Grounds of 
Excludability, must be filed simultaneously with the Form I-212 with the 
American consul having jurisdiction over the alien's place of residence. 
The consul must forward these forms to the appropriate Service office 
abroad with jurisdiction over the area within which the consul is 
located.
    (e) Applicant for adjustment of status. An applicant for adjustment 
of status under section 245 of the Act and part 245 of this chapter must 
request permission to reapply for entry in conjunction with his or her 
application for adjustment of status. This request is made by filing an 
application for permission to reapply, Form I-212, with the district 
director having jurisdiction over the place where the alien resides. If 
the application under section 245 of the Act has been initiated, 
renewed, or is pending in a proceeding before an immigration judge, the 
district director must refer the Form I-212 to the immigration judge for 
adjudication.
    (f) Applicant for admission at port of entry. Within five years of 
the deportation or removal, or twenty years in the case of an alien 
convicted of an aggravated felony, an alien may request permission at a 
port of entry to reapply for admission to the United States. The alien 
shall file the Form I-212 with the district director having jurisdiction 
over the port of entry.
    (g) Other applicants. (1) Any applicant for permission to reapply 
for admission under circumstances other than those described in 
paragraphs (b) through (f) of this section must file Form I-212. This 
form is filed with either:
    (i) The district director having jurisdiction over the place where 
the deportation or removal proceedings were held; or
    (ii) The district director who exercised or is exercising 
jurisdiction over the applicant's most recent proceeding.

[[Page 215]]

    (2) If the applicant is physically present in the United States but 
is ineligible to apply for adjustment of status, he or she must file the 
application with the district director having jurisdiction over his or 
her place of residence.
    (3) If an alien who is an applicant for parole authorization under 
Sec. 245.15(t)(2) of this chapter requires consent to reapply for 
admission after deportation, removal, or departure at Government 
expense, or a waiver under section 212(g), 212(h), or 212(i) of the Act, 
he or she may file the requisite Form I-212 or Form I-601 at the 
Nebraska Service Center concurrently with the Form I-131, Application 
for Travel Document. If an alien who is an applicant for parole 
authorization under Sec. 245.13(k)(2) of this chapter requires consent 
to reapply for admission after deportation, removal, or departure at 
Government expense, or a waiver under section 212(g), 212(h), or 212(i) 
of the Act, he or she may file the requisite Form I-212 or Form I-601 at 
the Texas Service Center concurrently with the Form I-131, Application 
for Travel Document.
    (h) Decision. An applicant who has submitted a request for consent 
to reapply for admission after deportation or removal must be notified 
of the decision. If the application is denied, the applicant must be 
notified of the reasons for the denial and of his or her right to appeal 
as provided in part 103 of this chapter. Except in the case of an 
applicant seeking to be granted advance permission to reapply for 
admission prior to his or her departure from the United States, the 
denial of the application shall be without prejudice to the renewal of 
the application in the course of proceedings before an immigration judge 
under section 242 of the Act and this chapter.
    (i) Retroactive approval. (1) If the alien filed Form I-212 when 
seeking admission at a port of entry, the approval of the Form I-212 
shall be retroactive to either:
    (i) The date on which the alien embarked or reembarked at a place 
outside the United States; or
    (ii) The date on which the alien attempted to be admitted from 
foreign contiguous territory.
    (2) If the alien filed Form I-212 in conjunction with an application 
for adjustment of status under section 245 of the Act, the approval of 
Form I-212 shall be retroactive to the date on which the alien embarked 
or reembarked at a place outside the United States.
    (j) Advance approval. An alien whose departure will execute an order 
of deportation shall receive a conditional approval depending upon his 
or her satisfactory departure. However, the grant of permission to 
reapply does not waive inadmissibility under section 212(a) (16) or (17) 
of the Act resulting from exclusion, deportation, or removal proceedings 
which are instituted subsequent to the date permission to reapply is 
granted.

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



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

    (a) Jurisdiction. An application for the exercise of discretion 
under section 212(c) of the Act shall be submitted on Form I-191, 
Application for Advance Permission to Return to Unrelinquished Domicile, 
to:
    (1) The district director having jurisdiction over the area in which 
the applicant's intended or actual place of residence in the United 
States is located; or
    (2) The Immigration Court if the application is made in the course 
of proceedings under sections 235, 236, or 242 of the Act.
    (b) Filing of application. The application may be filed prior to, at 
the time of, or at any time after the applicant's departure from or 
arrival into the United States. All material facts and/or circumstances 
which the applicant knows or believes apply to the grounds of 
excludability or deportability must be described. The applicant must 
also submit all available documentation relating to such grounds.
    (c) Decision of the District Director. A district director may grant 
or deny an application for advance permission to return to an 
unrelinquished domicile under section 212(c) of the Act, in the exercise 
of discretion, unless otherwise

[[Page 216]]

prohibited by paragraph (f) of this section. The applicant shall be 
notified of the decision and, if the application is denied, of the 
reason(s) for denial. No appeal shall lie from denial of the 
application, but the application may be renewed before an Immigration 
Judge as provided in paragraph (e) of this section.
    (d) Validity. Once an application is approved, that approval is 
valid indefinitely. However, the approval covers only those specific 
grounds of excludability or deportability that were described in the 
application. An application who failed to describe any other grounds of 
excludability or deportability, or failed to disclose material facts 
existing at the time of the approval of the application, remains 
excludable or deportable under the previously unidentified grounds. If 
at a later date, the applicant becomes subject to exclusion or 
deportation based upon these previously unidentified grounds or upon new 
ground(s), a new application must be filed with the appropriate district 
director.
    (e) Filing or renewal of applications before an Immigration Judge. 
(1) An application for the exercise of discretion under section 212(c) 
of the Act may be renewed or submitted in proceedings before an 
Immigration Judge under sections 235, 236, or 242 of the Act, and under 
this chapter. Such application shall be adjudicated by the Immigration 
Judge, without regard to whether the applicant previously has made 
application to the district director.
    (2) The Immigration Judge may grant or deny an application for 
advance permission to return to an unrelinquished domicile under section 
212(c) of the Act, in the exercise of discretion, unless otherwise 
prohibited by paragraph (f) of this section.
    (3) An alien otherwise entitled to appeal to the Board of 
Immigration Appeals may appeal the denial by the Immigration Judge of 
this application in accordance with the provisions of Sec. 3.36 of this 
chapter.
    (f) Limitations on discretion to grant an application under section 
212(c) of the Act. A district director or Immigration Judge shall deny 
an application for advance permission to enter under section 212(c) of 
the Act if:
    (1) The alien has not been lawfully admitted for permanent 
residence;
    (2) The alien has not maintained lawful domicile in the United 
States, as either a lawful permanent resident or a lawful temporary 
resident pursuant to section 245A or section 210 of the Act, for at 
least seven consecutive years immediately preceding the filing of the 
application;
    (3) The alien is subject to exclusion from the United States under 
paragraphs (3)(A), (3)(B), (3)(C), or (3)(E) of section 212(a) of the 
Act;
    (4) The alien has been convicted of an aggravated felony, as defined 
by section 101(a)(43) of the Act, and has 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.
    (g) Relief for certain aliens who were in deportation proceedings 
before April 24, 1996. Section 440(d) of Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for 
relief under this section whose deportation proceedings were commenced 
before the Immigration Court before April 24, 1996.

[56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61 
FR 59825, Nov. 25, 1996; 66 FR 6446, Jan. 22, 2001]



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

[[Page 217]]

nor fee shall be required. The recommendation shall specify:
    (i) The reasons for inadmissibility and each section of law under 
which the alien is inadmissible;
    (ii) Each intended date of arrival;
    (iii) The length of each proposed stay in the United States;
    (iv) The purpose of each stay;
    (v) The number of entries which the alien intends to make; and
    (vi) The justification for exercising the authority contained in 
section 212(d)(3) of the Act.

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

[[Page 218]]

record of each conviction, and any other documents relating to 
commutation of sentence, parole, probation, or pardon. If the 
application is made at the time of the applicant's arrival to the 
district director at a port of entry, the applicant shall establish that 
he was not aware of the ground of inadmissibility and that it could not 
have been ascertained by the exercise of reasonable diligence, and he 
shall be in possession of a passport and visa, if required, or have been 
granted a waiver thereof. The applicant shall be notified of the 
decision and if the application is denied of the reasons therefor and of 
his right to appeal to the Board within 15 days after the mailing of the 
notification of decision in accordance with the Provisions of part 3 of 
this chapter. If denied, the denial shall be without prejudice to 
renewal of the application in the course of proceedings before a special 
inquiry officer under sections 235 and 236 of the Act and this chapter. 
When an appeal may not be taken from a decision of a special inquiry 
officer excluding an alien but the alien has applied for the exercise of 
discretion under section 212(d)(3)(B) of the Act, the alien may appeal 
to the Board from a denial of such application in accordance with the 
provisions of Sec. 236.5(b) of this chapter.
    (c) Terms of authorization--(1) General. Except as provided in 
paragraph (c)(2) of this section, each authorization under section 
212(d)(3)(A) or (B) of the Act shall specify:
    (i) Each section of law under which the alien is inadmissible;
    (ii) The intended date of each arrival, unless the applicant is a 
bona fide crewman. However, if the authorization is valid for multiple 
entries rather than for a specified number of entries, this information 
shall be specified only with respect to the initial entry;
    (iii) The length of each stay authorized in the United States, which 
shall not exceed the period justified and shall be subject to 
limitations specified in 8 CFR part 214. However, if the authorization 
is valid for multiple entries rather than for a specified number of 
entries, this information shall be specified only with respect to the 
initial entry;
    (iv) The purpose of each stay;
    (v) The number of entries for which the authorization is valid;
    (vi) Subject to the conditions set forth in paragraph (c)(2) of this 
section, the dates on or between which each application for admission at 
POEs in the United States is valid;
    (vii) The justification for exercising the authority contained in 
section 212(d)(3) of the Act; and
    (viii) That the authorization is subject to revocation at any time.
    (2) Conditions of admission. (i) For aliens issued an authorization 
for temporary admission in accordance with this section, admissions 
pursuant to section 212(d)(3) of the Act shall be subject to the terms 
and conditions set forth in the authorization.
    (ii) The period for which the alien's admission is authorized 
pursuant to this section shall not exceed the period justified, or the 
limitations specified, in 8 CFR part 214 for each class of nonimmigrant, 
whichever is less.
    (3) Validity. (i) Authorizations granted to crew members may be 
valid for a maximum period of 2 years for application for admission at 
U.S. POEs and may be valid for multiple entries.
    (ii) An authorization issued in conjunction with an application for 
a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the DOS 
shall be valid for a period not to exceed the validity of the biometric 
BCC for applications for admission at U.S. POEs and shall be valid for 
multiple entries.
    (iii) A multiple entry authorization for a person other than a crew 
member or applicant for a Form DSP-150 may be made valid for a maximum 
period of 5 years for applications for admission at U.S. POEs.
    (iv) An authorization that was previously issued in conjunction with 
Form I-185, Nonresident Alien Canadian Border Crossing Card, and that is 
noted on the card may remain valid. Although the waiver may remain 
valid, the non-biometric border crossing card portion of this document 
is not valid after that date. This waiver authorization shall cease if 
otherwise revoked or voided.
    (v) A single-entry authorization to apply for admission at a U.S. 
POE shall not be valid for more than 6 months

[[Page 219]]

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

[[Page 220]]

undisclosed to the Attorney General prior to the alien's admission in, 
or change to, S classification, unless such conduct or condition is 
waived prior to admission and classification. In the event the 
Commissioner decides to remove an S nonimmigrant from the United States, 
the Assistant Attorney General, Criminal Division, and the relevant LEA 
shall be notified in writing to that effect. The Assistant Attorney 
General, Criminal Division, shall concur in or object to that decision. 
Unless the Assistant Attorney General, Criminal Division, objects within 
7 days, he or she shall be deemed to have concurred in the decision. In 
the event of an objection by the Assistant Attorney General, Criminal 
Division, the matter will be expeditiously referred to the Deputy 
Attorney General for a final resolution. In no circumstances shall the 
alien or the relevant LEA have a right of appeal from any decision to 
remove.

[29 FR 15252, Nov. 13, 1964, as amended at 30 FR 12330, Sept. 28, 1965; 
31 FR 10413, Aug. 3, 1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb. 
17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470, July 21, 1975; 51 FR 
32295, Sept. 10, 1986; 53 FR 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25, 
1995; 60 FR 52248, Oct. 5, 1995; 67 FR 71448, Dec. 2, 2002]



Sec. 212.5  Parole of aliens into the United States.

    (a) The authority of the Secretary to continue an alien in custody 
or grant parole under section 212(d)(5)(A) of the Act shall be exercised 
by the Assistant Commissioner, Office of Field Operations; Director, 
Detention and Removal; directors of field operations; port directors; 
special agents in charge; deputy special agents in charge; associate 
special agents in charge; assistant special agents in charge; resident 
agents in charge; field office directors; deputy field office directors; 
chief patrol agents; district directors for services; and those other 
officials as may be designated in writing, subject to the parole and 
detention authority of the Secretary or his designees. The Secretary or 
his designees may invoke, in the exercise of discretion, the authority 
under section 212(d)(5)(A) of the Act.
    (b) 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 Director, Detention and Removal; directors of field 
operations; field office directors; deputy field office directors; or 
chief patrol agents shall follow the guidelines set forth in Sec. 
236.3(a) of this chapter and paragraphs (b)(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 those officials identified in paragraph (a) of this 
section.
    (c) In the case of all other arriving aliens, except those detained 
under Sec. 235.3(b) or (c) of this chapter and paragraph (b) of this 
section, those officials listed in paragraph (a) of this section may, 
after review of the individual case, parole into the United States 
temporarily in accordance with section

[[Page 221]]

212(d)(5)(A) of the Act, any alien applicant for admission, under such 
terms and conditions, including those set forth in paragraph (d) 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 (f) 
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.
    (d) Conditions. In any case where an alien is paroled under 
paragraph (b) or (c) of this section, those officials listed in 
paragraph (a) of this section 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. Those officials 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 may be deemed appropriate;
    (2) Community ties such as close relatives with known addresses; and
    (3) Agreement to reasonable conditions (such as periodic reporting 
of whereabouts).
    (e) 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 
(e)(2) of this section except that no written notice shall be required.
    (2)(i) On notice. In cases not covered by paragraph (e)(1) of this 
section, upon accomplishment of the purpose for which parole was 
authorized or when in the opinion of one of the officials listed in 
paragraph (a) of this section, 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 within a reasonable time, the alien shall again be released on 
parole unless in the opinion of the official listed in paragraph (a) of 
this section 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(e)(2)(i) of this chapter.
    (iii) Any alien granted parole into the United States so that he or 
she may transit through the United States in the course of removal from 
Canada shall have his or her parole status terminated upon notice, as 
specified in 8 CFR 212.5(e)(2)(i), if he or she makes known to an 
immigration officer of the United States a fear of persecution or an 
intention to apply for asylum. Upon termination of parole, any such 
alien shall be regarded as an arriving alien,

[[Page 222]]

and processed accordingly by the Department of Homeland Security.
    (f) 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.
    (g) 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 Sec. 212.12.
    (h) Effect of parole of Cuban and Haitian nationals. (1) Except as 
provided in paragraph (h)(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; 65 FR 
80294, Dec. 21, 2000; 65 FR 82255, Dec. 28, 2000; 67 FR 39257, June 7, 
2002; 68 FR 35152, June 12, 2003; 69 FR 69489, Nov. 29, 2004]



Sec. 212.6  Border crossing identification cards.

    (a) Application for Form DSP-150, B-1/B-2 Visa and Border Crossing 
Card, issued by the Department of State. A citizen of Mexico, who seeks 
to travel temporarily to the United States for business or pleasure 
without a visa and passport, must apply to the DOS on Form DS-156, 
Visitor Visa Application, to obtain a Form DSP-150 in accordance with 
the applicable DOS regulations at 22 CFR 41.32 and/or instructions.
    (b) Use--(1) Application for admission with Non-resident Canadian 
Border Crossing Card, Form I-185, containing separate waiver 
authorization; Canadian residents bearing DOS-issued combination B-1/B-2 
visa and border crossing card (or similar stamp in a passport). (i) A 
Canadian citizen or other person sharing common nationality with Canada 
and residing in Canada who presents a Form I-185 that contains a 
separate notation of a waiver authorization issued pursuant to Sec. 
212.4 may be admitted on the basis of the waiver, provided the waiver 
has not expired or otherwise been revoked or voided. Although the waiver 
may remain valid on or after October 1, 2002, the non-biometric border 
crossing card portion of the document is not valid after that date.
    (ii) A Canadian resident who presents a combination B-1/B-2 visa and 
border crossing card (or similar stamp in a passport) issued by the DOS 
prior to April 1, 1998, that does not contain a machine-readable 
biometric identifier, may be admitted on the basis of the nonimmigrant 
visa only, provided it has not expired and the alien remains otherwise 
admissible.
    (2) Application for admission by a national of Mexico--Form DSP-150 
issued by the DOS; DOS-issued combination B-1/B-2 visa and border 
crossing card (or similar stamp in a passport). (i) The rightful holder 
of a Form DSP-150 issued by the DOS may be admitted under Sec. 235.1(f) 
of this chapter if found otherwise admissible and if the biometric 
identifier contained on the card matches the appropriate biometric 
characteristic of the alien.
    (ii) The bearer of a combination B-1/B-2 nonimmigrant visa and 
border crossing card (or similar stamp in a passport) issued by DOS 
prior to April 1, 1998, that does not contain a machine-readable 
biometric identifier, may be admitted on the basis of the nonimmigrant 
visa only, provided it has not expired and the alien remains

[[Page 223]]

otherwise admissible. A passport is also required.
    (iii) Any alien seeking admission as a visitor for business or 
pleasure, must also present a valid passport with his or her border 
crossing card, and shall be issued a Form I-94 if the alien is applying 
for admission from:
    (A) A country other than Mexico or Canada, or
    (B) Canada if the alien has been in a country other than the United 
States or Canada since leaving Mexico.
    (c) Validity. Forms I-185, I-186, and I-586 are invalid on or after 
October 1, 2002. If presented on or after that date, these documents 
will be voided at the POE.
    (d) Voidance for reasons other than expiration of the validity of 
the form--(1) At a POE. (i) In accordance with 22 CFR 41.122, a Form 
DSP-150 or combined B-1/B-2 visitor visa and non-biometric border 
crossing identification card or (a similar stamp in a passport), issued 
by the DOS, may be physically cancelled and voided by a supervisory 
immigration officer at a POE if it is considered void pursuant to 
section 222(g) of the Act when presented at the time of application for 
admission, or as the alien departs the United States. If the card is 
considered void and if the applicant for admission is not otherwise 
subject to expedited removal in accordance with 8 CFR part 235, the 
applicant shall be advised in writing that he or she may request a 
hearing before an immigration judge. The purpose of the hearing shall be 
to determine his/her admissibility in accordance with Sec. 235.6 of 
this chapter. The applicant may be represented at this hearing by an 
attorney of his/her own choice at no expense to the Government. He or 
she shall also be advised of the availability of free legal services 
provided by organizations and attorneys qualified under 8 CFR part 3, 
and organizations recognized under Sec. 292.2 of this chapter located 
in the district where the removal hearing is to be held. If the 
applicant requests a hearing, the Form DSP-150 or combined B-1/B-2 
visitor visa and non-biometric border crossing identification card (or 
similar stamp in a passport), issued by the DOS, shall be held by the 
Service for presentation to the immigration judge.
    (ii) If the applicant chooses not to have a hearing, the Form DSP-
150 or combined B-1/B-2 visitor visa and non-biometric BCC (or similar 
stamp in a passport) issued by the DOS, shall be voided and physically 
cancelled. The alien to whom the card or stamp was issued by the DOS 
shall be notified of the action taken and the reasons for such action by 
means of Form I-275, Withdrawal of Application for Admission/Consular 
Notification, delivered in person or by mailing the Form I-275 to the 
last known address. The DOS shall be notified of the cancellation of the 
biometric Form DSP-150 or combined B-1/B-2 visitor visa and non-
biometric BCC (or similar stamp in a passport) issued by DOS, by means 
of a copy of the original Form I-275. Nothing in this paragraph limits 
the Service's ability to remove an alien pursuant to 8 CFR part 235 
where applicable.
    (2) Within the United States. In accordance with former section 242 
of the Act (before amended by section 306 of the IIRIRA of 1996, Div. C, 
Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996,) or current sections 
235(b), 238, and 240 of the Act, if the holder of a Form DSP-150, or 
other combined B-1/B-2 visa and BCC, or (similar stamp in a passport) 
issued by the DOS, is placed under removal proceedings, no action to 
cancel the card or stamp shall be taken pending the outcome of the 
hearing. If the alien is ordered removed or granted voluntary departure, 
the card or stamp shall be physically cancelled and voided by an 
immigration officer. In the case of an alien holder of a BCC who is 
granted voluntary departure without a hearing, the card shall be 
declared void and physically cancelled by an immigration officer who is 
authorized to issue a Notice to Appear or to grant voluntary departure.
    (3) In Mexico or Canada. Forms I-185, I-186 or I-586 issued by the 
Service and which are now invalid, or a Form DSP-150 or combined B-1/B-2 
visitor visa and non-biometric BCC, or (similar stamp in a passport) 
issued by the DOS may be declared void by United States consular 
officers or United States immigration officers in Mexico or Canada.
    (4) Grounds. Grounds for voidance of a Form I-185, I-186, I-586, a 
DOS-issued

[[Page 224]]

non-biometric BCC, or the biometric Form DSP-150 shall be that the 
holder has violated the immigration laws; that he/she is inadmissible to 
the United States; that he/she has abandoned his/her residence in the 
country upon which the card was granted; or if the BCC is presented for 
admission on or after October 1, 2002, it does not contain a machine-
readable biometric identifier corresponding to the bearer and is invalid 
on or after October 1, 2002.
    (e) Replacement. If a valid Border Crossing Card (Forms I-185, I-
186, or I-586) previously issued by the Service, a non-biometric border 
crossing card issued by the DOS before April 1998, or a Form DSP-150 
issued by the DOS has been lost, stolen, mutilated, or destroyed, the 
person to whom the card was issued may apply for a new card as provided 
for in the DOS regulations found at 22 CFR 41.32 and 22 CFR 41.103.

[67 FR 71448, Dec. 2, 2002 ]



Sec. 212.7  Waiver of certain grounds of inadmissibility.

    (a) General--(1) Filing procedure--(i) Immigrant visa or K 
nonimmigrant visa applicant. An applicant for an immigrant visa or ``K'' 
nonimmigrant visa who is inadmissible and seeks a waiver of 
inadmissibility 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.
    (iii) Parole authorization applicant under Sec. 245.15(t). An 
applicant for parole authorization under Sec. 245.15(t) of this chapter 
who is inadmissible and seeks a waiver under section 212(h) or (i) of 
the Act must file an application on Form I-601 with the Director of the 
Nebraska Service Center considering the Form I-131.
    (iv) Parole authorization applicant under Sec. 245.13(k)(2) of this 
chapter. An applicant for parole authorization under Sec. 245.13(k)(2) 
of this chapter who is inadmissible and seeks a waiver under section 
212(h) or (i) of the Act must file an application on Form I-601 with the 
Director of the Texas Service Center adjudicating the Form I-131.
    (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 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

[[Page 225]]

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;
    (iii) The Service office having jurisdiction over the alien if the 
alien is in the United States;
    (iv) The Nebraska Service Center, if the alien is outside the United 
States and seeking parole authorization under Sec. 245.15(t)(2) of this 
chapter; or
    (v) The Texas Service Center if the alien is outside the United 
States and is seeking parole authorization under Sec. 245.13(k)(2) of 
this chapter.
    (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 226]]

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 227]]

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 228]]

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 229]]

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 Sec. Sec. 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 Sec. Sec. 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 230]]

    (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 231]]

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.
    (d) Criminal grounds of inadmissibility involving violent or 
dangerous crimes. The Attorney General, in general, will not favorably 
exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 
1182(h)(2)) to consent to an application or reapplication for a visa, or 
admission to the United States, or adjustment of status, with respect to 
immigrant aliens who are inadmissible under section 212(a)(2) of the Act 
in cases involving violent or dangerous crimes, except in extraordinary 
circumstances, such as those involving national security or foreign 
policy considerations, or cases in which an alien clearly demonstrates 
that the denial of the application for adjustment of status or an 
immigrant visa or admission as an immigrant would result in exceptional 
and extremely unusual hardship. Moreover, depending on the gravity of 
the alien's underlying criminal offense, a showing of extraordinary 
circumstances might still be insufficient to warrant a favorable 
exercise of discretion under section 212(h)(2) of the Act.

(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]

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



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

[[Page 232]]

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 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. 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

[[Page 233]]

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 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

[[Page 234]]

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 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 Sec. 212.12(b), 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; 
65 FR 80294, Dec. 21, 2000]

[[Page 235]]



Sec. 212.13  [Reserved]



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 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

[[Page 236]]

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 an 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 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]



Sec. 212.15  Certificates for foreign health care workers.

    (a) General certification requirements. (1) Except as provided in 
paragraph (b) or paragraph (d)(1) of this section, any alien who seeks 
admission to the United States as an immigrant or as a nonimmigrant for 
the primary purpose of performing labor in a health care occupation 
listed in paragraph (c) of this section is inadmissible unless the alien 
presents a certificate from a credentialing organization, listed in 
paragraph (e) of this section.
    (2) In the alternative, an eligible alien who seeks to enter the 
United States for the primary purpose of performing labor as a nurse may 
present a certified statement as provided in paragraph (h) of this 
section.
    (3) A certificate or certified statement described in this section 
does not constitute professional authorization to practice in that 
health care occupation.
    (b) Inapplicability of the ground of inadmissibility. This section 
does not apply to:
    (1) Physicians;
    (2) Aliens seeking admission to the United States to perform 
services in a non-clinical health care occupation. A non-clinical care 
occupation is one in

[[Page 237]]

which the alien is not required to perform direct or indirect patient 
care. Occupations which are considered to be non-clinical include, but 
are not limited to, medical teachers, medical researchers, and managers 
of health care facilities;
    (3) Aliens coming to the United States to receive training as an H-3 
nonimmigrant, or receiving training as part of an F or J nonimmigrant 
program.
    (4) The spouse and dependent children of any immigrant or 
nonimmigrant alien;
    (5) Any alien applying for adjustment of status to that of a 
permanent resident under any provision of law other than under section 
245 of the Act, or any alien who is seeking adjustment of status under 
section 245 of the Act on the basis of a relative visa petition approved 
under section 203(a) of the Act, or any alien seeking adjustment of 
status under section 245 of the Act on the basis of an employment-based 
petition approved pursuant to section 203(b) of the Act for employment 
that does not fall under one of the covered health care occupations 
listed in paragraph (c) of this section.
    (c) Covered health care occupations. With the exception of the 
aliens described in paragraph (b) of this section, this paragraph (c) 
applies to any alien seeking admission to the United States to perform 
labor in one of the following health care occupations, regardless of 
where he or she received his or her education or training:
    (1) Licensed Practical Nurses, Licensed Vocational Nurses, and 
Registered Nurses.
    (2) Occupational Therapists.
    (3) Physical Therapists.
    (4) Speech Language Pathologists and Audiologists.
    (5) Medical Technologists (Clinical Laboratory Scientists).
    (6) Physician Assistants.
    (7) Medical Technicians (Clinical Laboratory Technicians)
    (d) Presentation of certificate or certified statements--(1) Aliens 
required to obtain visas. Except as provided in paragraph (n) of this 
section, if 8 CFR 212.1 requires an alien who is described in paragraph 
(a) of this section and who is applying for admission as a nonimmigrant 
seeking to perform labor in a health care occupation as described in 
this section to obtain a nonimmigrant visa, the alien must present a 
certificate or certified statement to a consular officer at the time of 
visa issuance and to the Department of Homeland Security (DHS) at the 
time of admission. The certificate or certified statement must be valid 
at the time of visa issuance and admission at a port-of-entry. An alien 
who has previously presented a foreign health care worker certification 
or certified statement for a particular health care occupation will be 
required to present it again at the time of visa issuance or each 
admission to the United States.
    (2) Aliens not requiring a nonimmigrant visa. Except as provided in 
paragraph (n) of this section, an alien described in paragraph (a) of 
this section who, pursuant to 8 CFR 212.1, is not required to obtain a 
nonimmigrant visa to apply for admission to the United States must 
present a certificate or certified statement as provided in this section 
to an immigration officer at the time of initial application for 
admission to the United States to perform labor in a particular health 
care occupation. An alien who has previously presented a foreign health 
care worker certification or certified statement for a particular health 
care occupation will be required to present it again at the time of each 
application for admission.
    (e) Approved credentialing organizations for health care workers. An 
alien may present a certificate from any credentialing organization 
listed in this paragraph (e) with respect to a particular health care 
field. In addition to paragraphs (e)(1) through (e)(3) of this section, 
the DHS will notify the public of additional credentialing organizations 
through the publication of notices in the Federal Register.
    (1) The Commission on Graduates of Foreign Nursing Schools (CGFNS) 
is authorized to issue certificates under section 212(a)(5)(C) of the 
Act for nurses, physical therapists, occupational therapists, speech-
language pathologists and audiologists, medical technologists (also 
known as clinical

[[Page 238]]

laboratory scientists), medical technicians (also known as clinical 
laboratory technicians), and physician assistants.
    (2) The National Board for Certification in Occupational Therapy 
(NBCOT) is authorized to issue certificates in the field of occupational 
therapy pending final adjudication of its credentialing status under 
this part.
    (3) The Foreign Credentialing Commission on Physical Therapy (FCCPT) 
is authorized to issue certificates in the field of physical therapy 
pending final adjudication of its credentialing status under this part.
    (f) Requirements for issuance of health care certification. (1) 
Prior to issuing a certification to an alien, the organization must 
verify the following:
    (i) That the alien's education, training, license, and experience 
are comparable with that required for an American health care worker of 
the same type;
    (ii) That the alien's education, training, license, and experience 
are authentic and, in the case of a license, unencumbered;
    (iii) That the alien's education, training, license, and experience 
meet all applicable statutory and regulatory requirements for admission 
into the United States. This verification is not binding on the DHS; and
    (iv) Either that the alien has passed a test predicting success on 
the occupation's licensing or certification examination, provided such a 
test is recognized by a majority of states licensing the occupation for 
which the certification is issued, or that the alien has passed the 
occupation's licensing or certification examination.
    (2) A certificate issued under section 212(a)(5)(C) of the Act must 
contain the following:
    (i) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certificate;
    (ii) The date the certificate was issued;
    (iii) The health care occupation for which the certificate was 
issued; and
    (iv) The alien's name, and date and place of birth.
    (g) English language requirements. (1) With the exception of those 
aliens described in paragraph (g)(2) of this section, every alien must 
meet certain English language requirements in order to obtain a 
certificate. The Secretary of HHS has sole authority to set standards 
for these English language requirements, and has determined that an 
alien must have a passing score on one of the three tests listed in 
paragraph (g)(3) of this section before he or she can be granted a 
certificate. HHS will notify The Department of Homeland Security of 
additions or deletions to this list, and The Department of Homeland 
Security will publish such changes in the Federal Register.
    (2) The following aliens are exempt from the English language 
requirements:
    (i) Alien nurses who are presenting a certified statement under 
section 212(r) of the Act; and
    (ii) Aliens who have graduated from a college, university, or 
professional training school located in Australia, Canada (except 
Quebec), Ireland, New Zealand, the United Kingdom, or the United States.
    (3) The following English testing services have been approved by the 
Secretary of HHS:
    (i) Educational Testing Service (ETS).
    (ii) Test of English in International Communication (TOEIC) Service 
International.
    (iii) International English Language Testing System (IELTS).
    (4) Passing English test scores for various occupations.
    (i) Occupational and physical therapists. An alien seeking to 
perform labor in the United States as an occupational or physical 
therapist must obtain the following scores on the English tests 
administered by ETS: Test Of English as a Foreign Language (TOEFL): 
Paper-Based 560, Computer-Based 220; Test of Written English (TWE): 4.5; 
Test of Spoken English (TSE): 50. The certifying organizations shall not 
accept the results of the TOEIC, or the IELTS for the occupation of 
occupational therapy or physical therapy.
    (ii) Registered nurses and other health care workers requiring the 
attainment of a baccalaureate degree. An alien coming to the United 
States to perform labor as a registered nurse (other than a

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nurse presenting a certified statement under section 212(r) of the Act) 
or to perform labor in another health care occupation requiring a 
baccalaureate degree (other than occupational or physical therapy) must 
obtain one of the following combinations of scores to obtain a 
certificate:
    (A) ETS: TOEFL: Paper-Based 540, Computer-Based 207; TWE: 4.0; TSE: 
50;
    (B) TOEIC Service International: TOEIC: 725; plus TWE: 4.0 and TSE: 
50; or
    (C) IELTS: 6.5 overall with a spoken band score of 7.0. This would 
require the Academic module.
    (iii) Occupations requiring less than a baccalaureate degree. An 
alien coming to the United States to perform labor in a health care 
occupation that does not require a baccalaureate degree must obtain one 
of the following combinations of scores to obtain a certificate:
    (A) ETS: TOEFL: Paper-Based 530, Computer-Based 197; TWE: 4.0; TSE: 
50;
    (B) TOEIC Service International: TOEIC: 700; plus TWE 4.0 and TSE: 
50; or
    (C) IELTS: 6.0 overall with a spoken band score of 7.0. This would 
allow either the Academic or the General module.
    (h) Alternative certified statement for certain nurses. (1) CGFNS is 
authorized to issue certified statements under section 212(r) of the Act 
for aliens seeking to enter the United States to perform labor as 
nurses. The DHS will notify the public of new organizations that are 
approved to issue certified statements through notices published in the 
Federal Register.
    (2) An approved credentialing organization may issue a certified 
statement to an alien if each of the following requirements is 
satisfied:
    (i) The alien has a valid and unrestricted license as a nurse in a 
state where the alien intends to be employed and such state verifies 
that the foreign licenses of alien nurses are authentic and 
unencumbered;
    (ii) The alien has passed the National Council Licensure Examination 
for registered nurses (NCLEX-RN);
    (iii) The alien is a graduate of a nursing program in which the 
language of instruction was English;
    (iv) The nursing program was located in Australia, Canada (except 
Quebec), Ireland, New Zealand, South Africa, the United Kingdom, or the 
United States; or in any other country designated by unanimous agreement 
of CGFNS and any equivalent credentialing organizations which have been 
approved for the certification of nurses and which are listed at 
paragraph (e) of this section; and
    (v) The nursing program was in operation on or before November 12, 
1999, or has been approved by unanimous agreement of CGFNS and any 
equivalent credentialing organizations that have been approved for the 
certification of nurses.
    (3) An individual who obtains a certified statement need not comply 
with the certificate requirements of paragraph (f) or the English 
language requirements of paragraph (g) of this section.
    (4) A certified statement issued to a nurse under section 212(r) of 
the Act must contain the following information:
    (i) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certified statement;
    (ii) The date the certified statement was issued; and
    (iii) The alien's name, and date and place of birth.
    (i) Streamlined certification process--(1) Nurses. An alien nurse 
who has graduated from an entry level program accredited by the National 
League for Nursing Accreditation Commission (NLNAC) or the Commission on 
Collegiate Nursing Education (CCNE) is exempt from the educational 
comparability review and English language proficiency testing.
    (2) Occupational Therapists. An alien occupational therapist who has 
graduated from a program accredited by the Accreditation Council for 
Occupational Therapy Education (ACOTE) of the American Occupational 
Therapy Association (AOTA) is exempt from the educational comparability 
review and English language proficiency testing.
    (3) Physical therapists. An alien physical therapist who has 
graduated from

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a program accredited by the Commission on Accreditation in Physical 
Therapy Education (CAPTE) of the American Physical Therapy Association 
(APTA) is exempt from the educational comparability review and English 
language proficiency testing.
    (4) Speech language pathologists and audiologists. An alien speech 
language pathologists and/or audiologist who has graduated from a 
program accredited by the Council on Academic Accreditation in Audiology 
and Speech Language Pathology (CAA) of the American Speech-Language-
Hearing Association (ASHA) is exempt from the educational comparability 
review and English language proficiency testing.
    (j) Application process for credentialing organizations--(1) 
Organizations other than CGFNS. An organization, other than CGFNS, 
seeking to obtain approval to issue certificates to health care workers, 
or certified statements to nurses shall submit Form I-905, Application 
for Authorization to Issue Certification for Health Care Workers, and 
all accompanying required evidence, to the Director, Nebraska Service 
Center, in duplicate with the appropriate fee contained in 8 CFR 
103.7(b)(1). An organization seeking authorization to issue certificates 
or certified statements must agree to submit all evidence required by 
the DHS and, upon request, allow the DHS to review the organization's 
records related to the certification process. As required on Form I-905, 
the application must:
    (i) Clearly describe and identify the organization seeking 
authorization to issue certificates;
    (ii) List the occupations for which the organization desires to 
provide certificates;
    (iii) Describe how the organization substantially meets the 
standards described at paragraph (k) of this section;
    (iv) Describe the organization's expertise, knowledge, and 
experience in the health care occupation(s) for which it desires to 
issue certificates;
    (v) Provide a point of contact;
    (vi) Describe the verification procedure the organization has 
designed in order for the DHS to verify the validity of a certificate; 
and
    (vii) Describe how the organization will process and issue in a 
timely manner the certificates.
    (2) Applications filed by CGFNS. (i) CGFNS shall submit Form I-905 
to the Director, Nebraska Service Center, to ensure that it will be in 
compliance with the regulations governing the issuance and content of 
certificates to nurses, physical therapists, occupational therapists, 
speech-language pathologists and audiologists, medical technologists 
(also known as clinical laboratory scientists), medical technicians 
(also known as clinical laboratory technicians), and physician 
assistants under section 212(a)(5)(C) of the Act, or issuing certified 
statements to nurses under section 212(r) of the Act.
    (ii) Prior to issuing certificates for any other health care 
occupations, CGFNS shall submit Form I-905, Application for 
Authorization to Issue Certification for Health Care Workers, to the 
Director, Nebraska Service Center with the appropriate fee contained in 
8 CFR 103.7(b)(1) for authorization to issue such certificates. The DHS 
will evaluate CGFNS' expertise with respect to the particular health 
care occupation for which authorization to issue certificates is sought, 
in light of CGFNS' statutory designation as a credentialing 
organization.
    (3) Procedure for review of applications by credentialing 
organizations. (i) After receipt of Form I-905, the Director, Nebraska 
Service Center shall, in all cases, forward a copy of the application 
and supporting documents to the Secretary of HHS in order to obtain an 
opinion on the merits of the application. The DHS will not render a 
decision on the request until the Secretary of HHS provides an opinion. 
The DHS shall accord the Secretary of HHS' opinion great weight in 
reaching its decision. The DHS may deny the organization's request 
notwithstanding the favorable recommendation from the Secretary of HHS, 
on grounds unrelated to the credentialing of health care occupations or 
health care services.
    (ii) The DHS will notify the organization of the decision on its 
application in writing and, if the request is denied, of the reasons for 
the denial. Approval of authorization to issue certificates to

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foreign health care workers or certified statements to nurses will be 
made in 5-year increments, subject to the review process described at 
paragraph (l) of this section.
    (iii) If the application is denied, the decision may be appealed 
pursuant to 8 CFR 103.3 to the Associate Commissioner for Examinations.
    (k) Standards for credentialing organizations. The DHS will evaluate 
organizations, including CGFNS, seeking to obtain approval from the DHS 
to issue certificates for health care workers, or certified statements 
for nurses. Any organization meeting the standards set forth in 
paragraph (k)(1) of this section can be eligible for authorization to 
issue certificates. While CGFNS has been specifically listed in the 
statute as an entity authorized to issue certificates, it is not exempt 
from governmental oversight. All organizations will be reviewed, 
including CGFNS, to guarantee that they continue to meet the standards 
required of all certifying organizations, under the following:
    (1) Structure of the organization. (i) The organization shall be 
incorporated as a legal entity.
    (ii)(A) The organization shall be independent of any organization 
that functions as a representative of the occupation or profession in 
question or serves as or is related to a recruitment/placement 
organization.
    (B) The DHS shall not approve an organization that is unable to 
render impartial advice regarding an individual's qualifications 
regarding training, experience, and licensure.
    (C) The organization must also be independent in all decision making 
matters pertaining to evaluations and/or examinations that it develops 
including, but not limited to: policies and procedures; eligibility 
requirements and application processing; standards for granting 
certificates and their renewal; examination content, development, and 
administration; examination cut-off scores, excluding those pertaining 
to English language requirements; grievance and disciplinary processes; 
governing body and committee meeting rules; publications about 
qualifying for a certificate and its renewal; setting fees for 
application and all other services provided as part of the screening 
process; funding, spending, and budget authority related to the 
operation of the certification organization; ability to enter into 
contracts and grant arrangements; ability to demonstrate adequate 
staffing and management resources to conduct the program(s) including 
the authority to approve selection of, evaluate, and initiate dismissal 
of the chief staff member.
    (D) An organization whose fees are based on whether an applicant 
receives a visa may not be approved.
    (iii) The organization shall include the following representation in 
the portion of its organization responsible for overseeing certification 
and, where applicable, examinations:
    (A) Individuals from the same health care discipline as the alien 
health care worker being evaluated who are eligible to practice in the 
United States; and
    (B) At least one voting public member to represent the interests of 
consumers and protect the interests of the public at large. The public 
member shall not be a member of the discipline or derive significant 
income from the discipline, its related organizations, or the 
organization issuing the certificate.
    (iv) The organization must have a balanced representation such that 
the individuals from the same health care discipline, the voting public 
members, and any other appointed individuals have an equal say in 
matters relating to credentialing and/or examinations.
    (v) The organization must select representatives of the discipline 
using one of the following recommended methods, or demonstrate that it 
has a selection process that meets the intent of these methods:
    (A) Be selected directly by members of the discipline eligible to 
practice in the United States;
    (B) Be selected by members of a membership organization representing 
the discipline or by duly elected representatives of a membership 
organization; or
    (C) Be selected by a membership organization representing the 
discipline from a list of acceptable candidates supplied by the 
credentialing body.

[[Page 242]]

    (vi) The organization shall use formal procedures for the selection 
of members of the governing body that prohibit the governing body from 
selecting a majority of its successors. Not-for-profit corporations 
which have difficulty meeting this requirement may provide in their 
applications evidence that the organization is independent, and free of 
material conflicts of interest regarding whether an alien receives a 
visa.
    (vii) The organization shall be separate from the accreditation and 
educational functions of the discipline, except for those entities 
recognized by the Department of Education as having satisfied the 
requirement of independence.
    (viii) The organization shall publish and make available a document 
which clearly defines the responsibilities of the organization and 
outlines any other activities, arrangements, or agreements of the 
organization that are not directly related to the certification of 
health care workers.
    (2) Resources of the organization. (i) The organization shall 
demonstrate that its staff possess the knowledge and skills necessary to 
accurately assess the education, work experience, licensure of health 
care workers, and the equivalence of foreign educational institutions, 
comparable to those of United States-trained health care workers and 
institutions.
    (ii) The organization shall demonstrate the availability of 
financial and material resources to effectively and thoroughly conduct 
regular and ongoing evaluations on an international basis.
    (iii) If the health care field is one for which a majority of the 
states require a predictor test, the organization shall demonstrate the 
ability to conduct examinations in those countries with educational and 
evaluation systems comparable to the majority of states.
    (iv) The organization shall have the resources to publish and make 
available general descriptive materials on the procedures used to 
evaluate and validate credentials, including eligibility requirements, 
determination procedures, examination schedules, locations, fees, 
reporting of results, and disciplinary and grievance procedures.
    (3) Candidate evaluation and testing mechanisms. (i) The 
organization shall publish and make available a comprehensive outline of 
the information, knowledge, or functions covered by the evaluation/
examination process, including information regarding testing for English 
language competency.
    (ii) The organization shall use reliable evaluation/examination 
mechanisms to evaluate individual credentials and competence that is 
objective, fair to all candidates, job related, and based on knowledge 
and skills needed in the discipline.
    (iii) The organization shall conduct ongoing studies to substantiate 
the reliability and validity of the evaluation/examination mechanisms.
    (iv) The organization shall implement a formal policy of periodic 
review of the evaluation/examination mechanism to ensure ongoing 
relevance of the mechanism with respect to knowledge and skills needed 
in the discipline.
    (v) The organization shall use policies and procedures to ensure 
that all aspects of the evaluation/examination procedures, as well as 
the development and administration of any tests, are secure.
    (vi) The organization shall institute procedures to protect against 
falsification of documents and misrepresentation, including a policy to 
request each applicant's transcript(s) and degree(s) directly from the 
educational licensing authorities.
    (vii) The organization shall establish policies and procedures that 
govern the length of time the applicant's records must be kept in their 
original format.
    (viii) The organization shall publish and make available, at least 
annually, a summary of all screening activities for each discipline 
including, at least, the number of applications received, the number of 
applicants evaluated, the number receiving certificates, the number who 
failed, and the number receiving renewals.
    (4) Responsibilities to applicants applying for an initial 
certificate or renewal. (i) The organization shall not discriminate 
among applicants as to age, sex, race, religion, national origin, 
disability, or marital status and shall include a statement of 
nondiscrimination

[[Page 243]]

in announcements of the evaluation/examination procedures and renewal 
certification process.
    (ii) The organization shall provide all applicants with copies of 
formalized application procedures for evaluation/examination and shall 
uniformly follow and enforce such procedures for all applicants. 
Instructions shall include standards regarding English language 
requirements.
    (iii) The organization shall implement a formal policy for the 
periodic review of eligibility criteria and application procedures to 
ensure that they are fair and equitable.
    (iv) Where examinations are used, the organization shall provide 
competently proctored examination sites at least once annually.
    (v) The organization shall report examination results to applicants 
in a uniform and timely fashion.
    (vi) The organization shall provide applicants who failed either the 
evaluation or examination with information on general areas of 
deficiency.
    (vii) The organization shall implement policies and procedures to 
ensure that each applicant's examination results are held confidential 
and delineate the circumstances under which the applicant's 
certification status may be made public.
    (viii) The organization shall have a formal policy for renewing the 
certification if an individual's original certification has expired 
before the individual first seeks admission to the United States or 
applies for adjustment of status. Such procedures shall be restricted to 
updating information on licensure to determine the existence of any 
adverse actions and the need to re-establish English competency.
    (ix) The organization shall publish due process policies and 
procedures for applicants to question eligibility determinations, 
examination or evaluation results, and eligibility status.
    (x) The organization shall provide all qualified applicants with a 
certificate in a timely manner.
    (5) Maintenance of comprehensive and current information. (i) The 
organization shall maintain comprehensive and current information of the 
type necessary to evaluate foreign educational institutions and 
accrediting bodies for purposes of ensuring that the quality of foreign 
educational programs is equivalent to those training the same occupation 
in the United States. The organization shall examine, evaluate, and 
validate the academic and clinical requirements applied to each 
country's accrediting body or bodies, or in countries not having such 
bodies, of the educational institution itself.
    (ii) The organization shall also evaluate the licensing and 
credentialing system(s) of each country or licensing jurisdiction to 
determine which systems are equivalent to that of the majority of the 
licensing jurisdictions in the United States.
    (6) Ability to conduct examinations fairly and impartially. An 
organization undertaking the administration of a predictor examination, 
or a licensing or certification examination shall demonstrate the 
ability to conduct such examination fairly and impartially.
    (7) Criteria for awarding and governing certificate holders. (i) The 
organization shall issue a certificate after the education, experience, 
license, and English language competency have been evaluated and 
determined to be equivalent to their United States counterparts. In 
situations where a United States nationally recognized licensure or 
certification examination, or a test predicting the success on the 
licensure or certification examination, is offered overseas, the 
applicant must pass the examination or the predictor test prior to 
receiving certification. Passage of a test predicting the success on the 
licensure or certification examination may be accepted only if a 
majority of states (and Washington, DC) licensing the profession in 
which the alien intends to work recognize such a test.
    (ii) The organization shall have policies and procedures for the 
revocation of certificates at any time if it is determined that the 
certificate holder was not eligible to receive the certificate at the 
time that it was issued. If the organization revokes an individual's 
certificate, it must notify the DHS, via the Nebraska Service Center, 
and the appropriate state regulatory authority with jurisdiction over 
the individual's health care profession. The organization may not 
reissue a certificate to an

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individual whose certificate has been revoked.
    (8) Criteria for maintaining accreditation. (i) The organization 
shall advise the DHS of any changes in purpose, structure, or activities 
of the organization or its program(s).
    (ii) The organization shall advise the DHS of any major changes in 
the evaluation of credentials and examination techniques, if any, or in 
the scope or objectives of such examinations.
    (iii) The organization shall, upon the request of the DHS, submit to 
the DHS, or any organization designated by the DHS, information 
requested of the organization and its programs for use in investigating 
allegations of non-compliance with standards and for general purposes of 
determining continued approval as an independent credentialing 
organization.
    (iv) The organization shall establish performance outcome measures 
that track the ability of the certificate holders to pass United States 
licensure or certification examinations. The purpose of the process is 
to ensure that certificate holders pass United States licensure or 
certification examinations at the same pass rate as graduates of United 
States programs. Failure to establish such measures, or having a record 
showing an inability of persons granted certificates to pass United 
States licensure examinations at the same rate as graduates of United 
States programs, may result in a ground for termination of approval. 
Information regarding the passage rates of certificate holders shall be 
maintained by the organization and provided to HHS on an annual basis, 
to the DHS as part of the 5-year reauthorization application, and at any 
other time upon request by HHS or the DHS.
    (v) The organization shall be in ongoing compliance with other 
policies specified by the DHS.
    (l) DHS review of the performance of certifying organizations. The 
DHS will review credentialing organizations every 5 years to ensure 
continued compliance with the standards described in this section. Such 
review will occur concurrent with the adjudication of a Form I-905 
requesting reauthorization to issue health care worker certificates. The 
DHS will notify the credentialing organization in writing of the results 
of the review and request for reauthorization. The DHS may conduct a 
review of the approval of any request for authorization to issue 
certificates at any time within the 5-year period of authorization for 
any reason. If at any time the DHS determines that an organization is 
not complying with the terms of its authorization or if other adverse 
information relating to eligibility to issue certificates is developed, 
the DHS may initiate termination proceedings.
    (m) Termination of certifying organizations. (1) If the DHS 
determines that an organization has been convicted, or the directors or 
officers of an authorized credentialing organization have individually 
been convicted of the violation of state or federal laws, or other 
information is developed such that the fitness of the organization to 
continue to issue certificates or certified statements is called into 
question, the DHS shall automatically terminate authorization for that 
organization to issue certificates or certified statements by issuing to 
the organization a notice of termination of authorization to issue 
certificates to foreign health care workers. The notice shall reference 
the specific conviction that is the basis of the automatic termination.
    (2) If the DHS determines that an organization is not complying with 
the terms of its authorization or other adverse information relating to 
eligibility to issue certificates is uncovered during the course of a 
review or otherwise brought to the DHS' attention, or if the DHS 
determines that an organization currently authorized to issue 
certificates or certified statements has not submitted an application or 
provided all information required on Form I-905 within 6 months of July 
25, 2003, the DHS will issue a Notice of Intent to Terminate 
authorization to issue certificates to the credentialing organization. 
The Notice shall set forth reasons for the proposed termination.
    (i) The credentialing organization shall have 30 days from the date 
of the Notice of Intent to Terminate authorization to rebut the 
allegations, or to cure the noncompliance identified in the DHS's notice 
of intent to terminate.

[[Page 245]]

    (ii) DHS will forward to HHS upon receipt any information received 
in response to a Notice of Intent to Terminate an entity's authorization 
to issue certificates. Thirty days after the date of the Notice of 
Intent to Terminate, the DHS shall forward any additional evidence and 
shall request an opinion from HHS regarding whether the organization's 
authorization should be terminated. The DHS shall accord HHS' opinion 
great weight in determining whether the authorization should be 
terminated. After consideration of the rebuttal evidence, if any, and 
consideration of HHS' opinion, the DHS will promptly provide the 
organization with a written decision. If termination of credentialing 
status is made, the written decision shall set forth the reasons for the 
termination.
    (3) An adverse decision may be appealed pursuant to 8 CFR 103.3 to 
the Associate Commissioner for Examinations. Termination of 
credentialing status shall remain in effect until and unless the 
terminated organization reapplies for credentialing status and is 
approved, or its appeal of the termination decision is sustained by the 
Administrative Appeals Office. There is no waiting period for an 
organization to re-apply for credentialing status.
    (n) Transition.--(1) One year waiver. (i) Pursuant to section 
212(d)(3) of the Act (and, for cases described in paragraph (d)(1) of 
this section, upon the recommendation of the Secretary of State), the 
Secretary has determined that until July 26, 2004 (or until July 26, 
2005, in the case of a citizen of Canada or Mexico who, before September 
23, 2003, was employed as a TN or TC nonimmigrant health care worker and 
held a valid license from a U.S. jurisdiction), DHS, subject to the 
conditions in paragraph (n)(2) of this section, may in its discretion 
admit, extend the period of authorized stay, or change the nonimmigrant 
status of an alien described in paragraph (d)(1) or paragraph (d)(2) of 
this section, despite the alien's inadmissibility under section 
212(a)(5)(C) of the Act, provided the alien is not otherwise 
inadmissible.
    (ii) After July 26, 2004 (or, after July 26, 2005, in the case of a 
citizen of Canada or Mexico, who, before September 23, 2003, was 
employed as a TN or TC nonimmigrant health care worker and held a valid 
license from a U.S. jurisdiction), such discretion shall be applied on a 
case-by-case basis.
    (2) Conditions. Until July 26, 2004 (or until July 26, 2005, in the 
case of a citizen of Canada or Mexico, who, before September 23, 2003, 
was employed as a TN or TC nonimmigrant health care worker and held a 
valid license from a U.S. jurisdiction), the temporary admission, 
extension of stay, or change of status of an alien described in 8 CFR 
part 212(d)(1) or (d)(2) of this section that is provided for under this 
paragraph (n) is subject to the following conditions:
    (i) The admission, extension of stay, or change of status may not be 
for a period longer than 1 year from the date of the decision, even if 
the relevant provision of 8 CFR 214.2 would ordinarily permit the 
alien's admission for a longer period;
    (ii) The alien must obtain the certification required by paragraph 
(a) of this section within 1 year of the date of decision to admit the 
alien or to extend the alien's stay or change the alien's status; and,
    (iii) Any subsequent petition or application to extend the period of 
the alien's authorized stay or change the alien's nonimmigrant status 
must include proof that the alien has obtained the certification 
required by paragraph (a) of this section, if the extension or stay or 
change of status is sought for the primary purpose of the alien's 
performing labor in a health care occupation listed in paragraph (c) of 
this section.
    (3) Immigrant aliens. An alien described in paragraph (a) of this 
section, who is coming to the United States as an immigrant or is 
applying for adjustment of status pursuant to section 245 of the Act (8 
U.S.C. 1255), to perform labor in a health care occupation described in 
paragraph (c) of this section, must submit the certificate or certified 
statement as provided in this section at the time of visa issuance or 
adjustment of status.
    (4) Expiration of certificate or certified statement. The 
individual's certification or certified statement must be used for any 
admission into the United States, change of status within the United

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States, or adjustment of status within 5 years of the date that it is 
issued.
    (5) Revocation of certificate or certified statement. When a 
credentialing organization notifies the DHS, via the Nebraska Service 
Center, that an individual's certification or certified statement has