[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2012 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 8

Aliens and Nationality

                         Revised as of January 1, 2012

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2012
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            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                                    797
  Finding Aids:
      Table of CFR Titles and Chapters........................    1111
      Alphabetical List of Agencies Appearing in the CFR......    1131
      List of CFR Sections Affected...........................    1141

[[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 
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evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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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 
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    (c) The incorporating document is drafted and submitted for 
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that volume.

[[Page vii]]

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2012.







[[Page ix]]



                               THIS TITLE

    Title 8--Aliens and Nationality is composed of one volume. This 
volume contains chapter I--Department of Homeland Security and chapter 
V--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, 2012.

    For this volume, Susannah C. Hurley was Chief Editor. 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................................          12

[[Page 4]]

3               Executive Office for Immigration Review.....          12
                  SUBCHAPTER B--IMMIGRATION REGULATIONS
100             Statement of organization...................          13
101             Presumption of lawful admission.............          23
103             Immigration benefits; biometric 
                    requirements; availability of records...          28
109             [Reserved]

204             Immigrant petitions.........................          54
205             Revocation of approval of petitions.........         138
207             Admission of refugees.......................         140
208             Procedures for asylum and withholding of 
                    removal.................................         144
209             Adjustment of status of refugees and aliens 
                    granted asylum..........................         173
210             Special agricultural workers................         175
211             Documentary requirements: Immigrants; 
                    waivers.................................         186
212             Documentary requirements: Nonimmigrants; 
                    waivers; admission of certain 
                    inadmissible aliens; parole.............         189
213             Admission of aliens on giving bond or cash 
                    deposit.................................         233
213a            Affidavits of support on behalf of 
                    immigrants..............................         233
214             Nonimmigrant classes........................         247
215             Controls of aliens departing from the United 
                    States..................................         432
216             Conditional basis of lawful permanent 
                    residence status........................         438
217             Visa waiver program.........................         447
221             Admission of visitors or students...........         452
223             Reentry permits, refugee travel documents, 
                    and advance parole documents............         452
231             Arrival and departure manifests.............         454
232             Detention of aliens for physical and mental 
                    examination.............................         455
233             Contracts with transportation lines.........         457
234             Designation of ports of entry for aliens 
                    arriving by civil aircraft..............         458
235             Inspection of persons applying for admission         460
236             Apprehension and detention of inadmissible 
                    and deportable aliens; removal of aliens 
                    ordered removed.........................         479
237             [Reserved]

238             Expedited removal of aggravated felons......         490
239             Initiation of removal proceedings...........         493
240             Voluntary departure, suspension of 
                    deportation and special rule 
                    cancellation of removal.................         494
241             Apprehension and detention of aliens ordered 
                    removed.................................         507

[[Page 5]]

242-243         [Reserved]

244             Temporary protected status for nationals of 
                    designated states.......................         534
245             Adjustment of status to that of person 
                    admitted for permanent residence........         542
245a            Adjustment of status to that of persons 
                    admitted for temporary or permanent 
                    resident status under section 245A of 
                    the Immigration and Nationality Act.....         588
246             Rescission of adjustment of status..........         640
247             Adjustment of status of certain resident 
                    aliens..................................         641
248             Change of nonimmigrant classification.......         643
249             Creation of records of lawful admission for 
                    permanent residence.....................         647
250             Removal of aliens who have fallen into 
                    distress................................         647
251             Arrival and departure manifests and lists: 
                    Supporting documents....................         648
252             Landing of alien crewmen....................         651
253             Parole of alien crewmen.....................         655
258             Limitations on performance of longshore work 
                    by alien crewmen........................         657
264             Registration and fingerprinting of aliens in 
                    the United States.......................         660
265             Notices of address..........................         667
270             Penalties for document fraud................         667
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.....................................         670
274             Seizure and forfeiture of conveyances.......         672
274a            Control of employment of aliens.............         672
280             Imposition and collection of fines..........         699
286             Immigration user fee........................         705
287             Field officers; powers and duties...........         710
289             American Indians born in Canada.............         725
292             Representation and appearances..............         725
293             Deposit of and interest on cash received to 
                    secure immigration bonds................         733
299             Immigration forms...........................         734
                  SUBCHAPTER C--NATIONALITY REGULATIONS
301             Nationals and citizens of the United States 
                    at birth................................         737
306             Special classes of persons who may be 
                    naturalized: Virgin Islanders...........         737

[[Page 6]]

310             Naturalization authority....................         738
312             Educational requirements for naturalization.         740
313             Membership in the Communist Party or any 
                    other totalitarian organizations........         742
315             Persons ineligible to citizenship: Exemption 
                    from military service...................         745
316             General requirements for naturalization.....         746
318             Pending removal proceedings.................         755
319             Special classes of persons who may be 
                    naturalized: Spouses of United States 
                    citizens................................         756
320             Child born outside the United States and 
                    residing permanently in the United 
                    States; requirements for automatic 
                    acquisition of citizenship..............         759
322             Child born outside the United States; 
                    requirements for application for 
                    certificate of citizenship..............         761
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...............         764
325             Nationals but not citizens of the United 
                    States; residence within outlying 
                    possessions.............................         766
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............................         767
328             Special classes of persons who may be 
                    naturalized: Persons with 1 year of 
                    service in the United States Armed 
                    Forces..................................         767
329             Special classes of persons who may be 
                    naturalized: Persons with active duty or 
                    certain ready reserve service in the 
                    United States Armed Forces during 
                    specified periods of hostilities........         768
330             Special classes of persons who may be 
                    naturalized: Seamen.....................         770
331             Alien enemies; naturalization under 
                    specified conditions and procedures.....         771
332             Naturalization administration...............         771
333             Photographs.................................         772
334             Application for naturalization..............         773
335             Examination on application for 
                    naturalization..........................         774
336             Hearings on denials of applications for 
                    naturalization..........................         778
337             Oath of allegiance..........................         779
338             Certificate of naturalization...............         783
339             Functions and duties of clerks of court 
                    regarding naturalization proceedings....         784
340             Revocation of naturalization................         785

[[Page 7]]

341             Certificates of citizenship.................         785
342             Administrative cancellation of certificates, 
                    documents, or records...................         787
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...         789
343a            Naturalization and citizenship papers lost, 
                    mutilated, or destroyed; new certificate 
                    in changed name; certified copy of 
                    repatriation proceedings................         790
343b            Special certificate of naturalization for 
                    recognition by a foreign state..........         791
343c            Certifications from records.................         792
349             Loss of nationality.........................         792
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..................         792

[[Page 9]]



                     SUBCHAPTER A_GENERAL PROVISIONS



PART 1_DEFINITIONS--Table of Contents



Sec.
1.1 Applicability.
1.2 Definitions.
1.3 Lawfully present aliens for purposes of applying for Social Security 
          benefits.

    Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Pub. L. 107-
296, 116 Stat. 2135; 6 U.S.C. 1 et seq.

    Source: 76 FR 53778, Aug. 29, 2011, unless otherwise noted.



Sec. 1.1  Applicability.

    This part further defines some of the terms already described in 
section 101 and other sections of the Immigration and Nationality Act 
(66 Stat. 163), as amended, and such other enactments as pertain to 
immigration and nationality. These terms are used consistently by 
components within the Department of Homeland Security including U.S. 
Customs and Border Protection, U.S. Immigration and Customs Enforcement, 
and U.S. Citizenship and Immigration Services.



Sec. 1.2  Definitions.

    As used in this chapter I, the term:
    Act or INA means the Immigration and Nationality Act, as amended.
    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 applies 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.
    Application means benefit request.
    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.
    Attorney means any person who is eligible to practice law in, and is 
a member in good standing of the bar of, the highest court of any State, 
possession, territory, or Commonwealth of the United States, or of the 
District of Columbia, and is not under any order suspending, enjoining, 
restraining, disbarring, or otherwise restricting him or her in the 
practice of law.
    Benefit request means any application, petition, motion, appeal, or 
other request relating to an immigration or naturalization benefit, 
whether such request is filed on a paper form or submitted in an 
electronic format, provided such request is submitted in a manner 
prescribed by DHS for such purpose.
    Board means the Board of Immigration Appeals within the Executive 
Office for Immigration Review, Department of Justice, as defined in 8 
CFR 1001.1(e).
    Case, unless the context otherwise requires, 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.
    CBP means U.S. Customs and Border Protection.
    Commissioner means the Commissioner of the Immigration and 
Naturalization Service prior to March 1,

[[Page 10]]

2003. Unless otherwise specified, references after that date mean the 
Director of U.S. Citizenship and Immigration Services, the Commissioner 
of U.S. Customs and Border Protection, and the Director of U.S. 
Immigration and Customs Enforcement, as appropriate in the context in 
which the term appears.
    Day, when computing the period of time for taking any action 
provided in this chapter I including the taking of an appeal, shall 
include Saturdays, Sundays, and legal holidays, except that when the 
last day of the period 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, or a legal holiday.
    Department or DHS, unless otherwise noted, means the Department of 
Homeland Security.
    Director or district director prior to March 1, 2003, means 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: asylum office director; director, field operations; district 
director for interior enforcement; district director for services; field 
office director; service center director; or special agent in charge. 
The terms also mean such other official, including an official in an 
acting capacity, within U.S. Citizenship and Immigration Services, U.S. 
Customs and Border Protection, U.S. Immigration and Customs Enforcement, 
or other component of the Department of Homeland Security who is 
delegated the function or authority above for a particular geographic 
district, region, or area.
    EOIR means the Executive Office for Immigration Review within the 
Department of Justice.
    Executed or execute means fully completed.
    Form when used in connection with a benefit or other request to be 
filed with DHS to request an immigration benefit, means a device for the 
collection of information in a standard format that may be submitted in 
paper format or in an electronic format as prescribed by USCIS on its 
official Internet Web site. The term Form followed by an immigration 
form number includes an approved electronic equivalent of such form as 
may be prescribed by the appropriate component on its official Internet 
Web site.
    Form instructions means instructions on how to complete and where to 
file a benefit request, supporting evidence or fees, or any other 
required or preferred document or instrument with a DHS immigration 
component. Form instructions prescribed by USCIS or other DHS 
immigration components on their official Internet Web sites will be 
considered the currently applicable version, notwithstanding paper or 
other versions that may be in circulation, and may be issued through 
non-form guidance such as appendices, exhibits, guidebooks, or manuals.
    ICE means U.S. Immigration and Customs Enforcement.
    Immigration judge means an immigration judge as defined in 8 CFR 
1001.1(l).
    Immigration officer means the following employees of the Department 
of Homeland Security, including senior or supervisory officers of such 
employees, designated as immigration officers authorized to exercise the 
powers and duties of such officer as specified by the Act and this 
chapter I: aircraft pilot, airplane pilot, asylum officer, refugee corps 
officer, Border Patrol agent, contact representative, deportation 
officer, detention enforcement officer, detention officer, fingerprint 
specialist, forensic document analyst, general attorney (except with 
respect to CBP, only to the extent that the attorney is performing any 
immigration function), helicopter pilot, immigration agent 
(investigations), immigration enforcement agent, immigration information 
officer, immigration inspector, immigration officer, immigration 
services officer, investigator, intelligence agent, intelligence 
officer, investigative assistant, special agent, 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 8 CFR 
2.1.
    Lawfully admitted for permanent residence means the status of having 
been

[[Page 11]]

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.
    Petition. See Benefit request.
    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 DHS.
    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 DHS forms, by one whose remuneration, if any, is nominal and who 
does not hold himself or herself out as qualified in legal matters or in 
immigration and naturalization procedure.
    Representation before DHS includes practice and preparation as 
defined in this section.
    Representative refers to a person who is entitled to represent 
others as provided in 8 CFR 292.1(a)(2) through (6) and 8 CFR 292.1(b).
    Respondent means an alien 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 8 CFR 242.1 (1997) as it existed prior to 
April 1, 1997.
    Secretary, unless otherwise noted, means the Secretary of Homeland 
Security.
    Service means U.S. Citizenship and Immigration Services, U.S. 
Customs and Border Protection, and/or U.S. Immigration and Customs 
Enforcement, as appropriate in the context in which the term appears.
    Service counsel means any immigration officer assigned to represent 
the Service in any proceeding before an immigration judge or the Board 
of Immigration Appeals.
    Transition program effective date as used with respect to extending 
the immigration laws to the Commonwealth of the Northern Mariana Islands 
means November 28, 2009.
    USCIS means U.S. Citizenship and Immigration Services.



Sec. 1.3  Lawfully present aliens for purposes of applying for Social Security 

benefits.

    (a) Definition of the term an ``alien who is lawfully present in the 
United States.'' For the purposes of 8 U.S.C. 1611(b)(2) only, an 
``alien who is lawfully present in the United States'' means:
    (1) A qualified alien as defined in 8 U.S.C. 1641(b);
    (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 removal 
proceedings under section 240 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 DHS has decided for 
humanitarian or other public policy reasons not to initiate removal 
proceedings or enforce departure:
    (i) Aliens currently in temporary resident status pursuant to 
section 210 or 245A of the Act;
    (ii) Aliens currently under Temporary Protected Status (TPS) 
pursuant to section 244 of the Act;
    (iii) Cuban-Haitian entrants, as defined in section 202(b) of 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;
    (vii) Aliens who are the spouse or child of a United States citizen 
whose visa petition has been approved and

[[Page 12]]

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 a Notice to Appear and non-enforcement of 
deportation, exclusion, or removal orders. An alien may not be deemed to 
be lawfully present solely on the basis of DHS's decision not to, or 
failure to:
    (1) Issue a Notice to Appear; or
    (2) Enforce an outstanding order of deportation, exclusion or 
removal.



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 [Reserved]
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 [Reserved]

    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 components have been delegated authority under the 
Immigration and Nationality Act to administer and enforce certain 
provisions of the Immigration and Nationality Act and all other laws 
relating to immigration: U.S. Customs and Border Protection (CBP), U.S. 
Immigration and Customs Enforcement (ICE), and U.S. Citizenship and 
Immigration Services (USCIS).

[74 FR 26936, June 5, 2009]



Sec. 100.2  [Reserved]



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 CBP, 
ICE or USCIS or any person desiring to make a submittal or request in 
connection with such a matter, should communicate either orally or in 
writing, with either CBP, ICE or USCIS as appropriate. 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 CBP, ICE or USCIS or the regulations implementing those 
laws, follow the instructions on the form as to preparation and place of 
submission. Individuals can seek service or assistance from CBP, ICE or 
USCIS by visiting the CBP, ICE or USCIS Web site or calling CBP, ICE or 
USCIS.

[74 FR 26936, June 5, 2009]



Sec. 100.4  Field offices.

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

[[Page 14]]

                                 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
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

[[Page 15]]

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

                  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

[[Page 16]]

                                 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 of Apra Harbor, Guam).
Honolulu, HI, Seaport (including all port facilities on the island of 
Oahu).
Rota, the Commonwealth of the Northern Mariana Islands.
Saipan, the Commonwealth of the Northern Mariana Islands.
Tinian, the Commonwealth of the Northern Mariana Islands.

                                 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

                    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

[[Page 17]]

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)

                 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

[[Page 18]]

                    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
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

    (b) 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

[[Page 19]]

                 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

                  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

[[Page 20]]

               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.
Rota, the Commonwealth of the Northern Mariana Islands.
Saipan, the Commonwealth of the Northern Mariana Islands.
Tinian, the Commonwealth of the Northern Mariana Islands.

                    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

                       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

[[Page 21]]

                    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

    (c) 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

[[Page 22]]

                  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
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


[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; 74 FR 2833, Jan. 16, 2009; 74 FR 26936, June 5, 2009]



Sec. 100.5  Regulations.

    The regulations of the Department of Homeland Security, 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,

[[Page 23]]

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.

[32 FR 9616, July 4, 1967, as amended at 74 FR 26936, June 5, 2009]



Sec. 100.6  [Reserved]



PART 101_PRESUMPTION OF LAWFUL ADMISSION--Table of Contents



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

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



Sec. 101.1  Presumption of lawful admission.

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

[[Page 24]]

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

[[Page 25]]

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

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



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

other errors.

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

[[Page 26]]



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 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

[[Page 27]]

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.
    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]

[[Page 28]]



PART 103_IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; AVAILABILITY OF 

RECORDS--Table of Contents



          Subpart A_ Applying for Benefits, Surety Bonds, Fees

Sec.
103.1 [Reserved]
103.2 Submission and adjudication of benefit requests.
103.3 Denials, appeals, and precedent decisions.
103.4 Certifications.
103.5 Reopening or reconsideration.
103.6 Surety bonds.
103.7 Fees.
103.8 Service of decisions and other notices.
103.9 Request for further action on an approved benefit request.
103.10 Precedent decisions.

                    Subpart B_Biometric Requirements

103.16 Collection, use and storage of biometric information.
103.17 Biometric service fee.
Sec. Sec. 103.20-103.36 [Reserved]

Subpart C--[Reserved]

                    Subpart D_Availability of Records

103.38 Genealogy Program.
103.39 Historical Records.
103.40 Genealogical research requests.
103.41 Genealogy request fees.
103.42 Rules relating to the Freedom of Information Act (FOIA) and the 
          Privacy Act.

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 
31 U.S.C. 9701; 48 U.S.C. 1806; 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.



           Subpart A_Applying for Benefits, Surety Bonds, Fees



Sec. 103.1  [Reserved]



Sec. 103.2  Submission and adjudication of benefit requests.

    (a) Filing. (1) Preparation and submission. Every benefit request or 
other document submitted to DHS must be executed and filed in accordance 
with the form instructions, notwithstanding any provision of 8 CFR 
chapter 1 to the contrary, and such instructions are incorporated into 
the regulations requiring its submission. Each benefit request or other 
document must be filed with fee(s) as required by regulation. Benefit 
requests which require a person to submit biometric information must 
also be filed with the biometric service fee in 8 CFR 103.7(b)(1), for 
each individual who is required to provide biometrics. Filing fees and 
biometric service fees are non-refundable and, except as otherwise 
provided in this chapter I, must be paid when the benefit request is 
filed.
    (2) Signature. An applicant or petitioner must sign his or her 
benefit request. 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 benefit request, the 
applicant or petitioner, or parent or guardian certifies under penalty 
of perjury that the benefit request, 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 
benefit request that is being filed with the USCIS is one that is either 
handwritten or, for benefit requests 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. 1.2 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 benefit 
request 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 benefit request 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

[[Page 29]]

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. All benefit requests must be filed in accordance 
with the form instructions.
    (7) Receipt date. (i) Benefit requests submitted. A benefit request 
which is not signed and submitted with the correct fee(s) will be 
rejected. A benefit request that is not executed may be rejected. Except 
as provided in 8 CFR parts 204, 245, or 245a, a benefit request will be 
considered received by USCIS as of the actual date of receipt at the 
location designated for filing such benefit request whether 
electronically or in paper format. The receipt date shall be recorded 
upon receipt by USCIS.
    (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 
benefit request is pending and these charges are not paid within 14 
days, the benefit request shall be rejected as improperly filed. If the 
benefit request was already approved, and these charges are not paid, 
the approval shall be automatically revoked because it was improperly 
field. If the benefit request 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 benefit 
request. Any fee and service charges collected as the result of 
collection activities or legal action on the prior benefit request shall 
be used to cover the cost of the previous rejection, revocation, or 
other action.
    (iii) Rejected benefit requests. A benefit request which is rejected 
will not retain a filing date. There is no appeal from such rejection.
    (b) Evidence and processing. (1) Demonstrating eligibility. An 
applicant or petitioner must establish that he or she is eligible for 
the requested benefit at the time of filing the benefit request and must 
continue to be eligible through adjudication. Each benefit request must 
be properly completed and filed with all initial evidence required by 
applicable regulations and other USCIS instructions. Any evidence 
submitted in connection with a benefit request is incorporated into and 
considered part of the request.
    (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

[[Page 30]]

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 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) Supporting documents. Original or photocopied documents which 
are required to support any benefit request must be submitted in 
accordance with the form instructions.
    (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 benefit request. 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 
in accordance with instructions provided by USCIS.
    (6) Withdrawal. An applicant or petitioner may withdraw an benefit 
request 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 benefit 
request which are in addition to, or in substitution for, those 
originally made, shall be filed in the same manner as the original 
benefit request, 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 benefit 
request establishes eligibility, USCIS will approve the benefit request, 
except that in any case in which the applicable statute or regulation 
makes the approval of a benefit request a matter entrusted to USCIS 
discretion, USCIS will approve the benefit request 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 benefit request will be denied 
on that basis.
    (ii) Initial evidence. If all required initial evidence is not 
submitted with the benefit request or does not demonstrate eligibility, 
USCIS in its discretion may deny the benefit request 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 benefit request 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 benefit 
request 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 31]]

    (iv) Process. A request for evidence or notice of intent to deny 
will be communicated by regular or electronic mail 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 benefit request 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 benefit request.
    (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 benefit request 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 benefit request held in suspense for the submission 
of requested initial evidence, except that the applicant or beneficiary 
will normally be allowed to remain while an benefit request 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 benefit request 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 
benefit request. 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 benefit request 
shall be denied where evidence submitted in response to a request for 
evidence does not establish filing eligibility at the time the benefit 
request was filed. An benefit request shall be denied where any benefit 
request upon

[[Page 32]]

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 
benefit request 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 
benefit request 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 benefit request. Failure to appear for required 
fingerprinting or for a required interview, or to give required 
testimony, shall result in the denial of the related benefit request.
    (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 benefit request with a 
new fee. However, the priority or processing date of a withdrawn or 
abandoned benefit request 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 benefit request shall otherwise be material to the new benefit 
request.
    (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. 12356 (47 FR 14874; April 
6, 1982) as requiring protection from unauthorized disclosure in the 
interest of national

[[Page 33]]

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, or other 
registration receipt forms (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 benefit request, 
and that the disclosure of information to the applicant or petitioner in 
connection with the adjudication of the benefit request 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 benefit request should be held in abeyance for six months or until 
the investigation is completed, whichever comes sooner. If, after six 
months of the district director's determination, the investigation has 
not been completed, the matter shall be reviewed again by the district 
director and, if he/she concludes that more time is needed to complete 
the investigation, adjudication may be held in abeyance for up to 
another six months. If the investigation is not completed at the end of 
that time, the matter shall be referred to the regional commissioner, 
who may authorize that adjudication be held in abeyance for another six 
months. Thereafter, if the Associate Commissioner, Examinations, with 
the concurrence of the Associate Commissioner, Enforcement, determines 
it is necessary to continue to withhold adjudication pending completion 
of the investigation, he/she shall review that determination every six 
months.

[[Page 34]]

    (19) Notification of decision. The Service will notify applicants, 
petitioners, and their representatives as defined in 8 CFR part 1 in 
writing of a decision made on a benefit request. Documents issued based 
on the approval of a request for benefits will be sent to the applicant 
or petitioner.
    (c)-(d) [Reserved]

[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 at www.fdsys.gov.

    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 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 must submit 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 must submit the complete appeal including any 
supporting brief as indicated in the applicable form instructions 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

[[Page 35]]

as a motion to reopen or reconsider and take favorable action. However, 
that official is not precluded from reopening a proceeding or 
reconsidering a decision on his or her own motion under Sec. 
103.5(a)(5)(i) of this part in order to make a new decision favorable to 
the affected party after 45 days of receipt of the appeal.
    (iv) Forwarding appeal to AAU. If the reviewing official will not be 
taking favorable action or decides favorable action is not warranted, 
that official shall promptly forward the appeal and the related record 
of proceeding to the AAU in Washington, DC.
    (v) Improperly filed appeal--(A) Appeal filed by person or entity 
not entitled to file it--(1) Rejection without refund of filing fee. An 
appeal filed by a person or entity not entitled to file it must be 
rejected as improperly filed. In such a case, any filing fee the Service 
has accepted will not be refunded.
    (2) Appeal by attorney or representative without proper Form G-28--
(i) General. If an appeal is filed by an attorney or representative 
without a properly executed Notice of Entry of Appearance as Attorney or 
Representative (Form G-28) entitling that person to file the appeal, the 
appeal is considered improperly filed. In such a case, any filing fee 
the Service has accepted will not be refunded regardless of the action 
taken.
    (ii) When favorable action warranted. If the reviewing official 
decides favorable action is warranted with respect to an otherwise 
properly filed appeal, that official shall ask the attorney or 
representative to submit Form G-28 to the official's office within 15 
days of the request. If Form G-28 is not submitted within the time 
allowed, the official may, on his or her own motion, under Sec. 
103.5(a)(5)(i) of this part, make a new decision favorable to the 
affected party without notifying the attorney or representative.
    (iii) When favorable action not warranted. If the reviewing official 
decides favorable action is not warranted with respect to an otherwise 
properly filed appeal, that official shall ask the attorney or 
representative to submit Form G-28 directly to the AAU. The official 
shall also forward the appeal and the relating record of proceeding to 
the AAU. The appeal may be considered properly filed as of its original 
filing date if the attorney or representative submits a properly 
executed Form G-28 entitling that person to file the appeal.
    (B) Untimely appeal--(1) Rejection without refund of filing fee. An 
appeal which is not filed within the time allowed must be rejected as 
improperly filed. In such a case, any filing fee the Service has 
accepted will not be refunded.
    (2) Untimely appeal treated as motion. If an untimely appeal meets 
the requirements of a motion to reopen as described in Sec. 103.5(a)(2) 
of this part or a motion to reconsider as described in Sec. 103.5(a)(3) 
of this part, the appeal must be treated as a motion, and a decision 
must be made on the merits of the case.
    (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

[[Page 36]]

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

[[Page 37]]

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 8 CFR 103.10(e).

[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; 76 FR 53781, Aug. 29, 2011]



Sec. 103.4  Certifications.

    (a) Certification of other than special agricultural worker and 
legalization cases--(1) General. The Commissioner or the Commissioner's 
delegate may direct that any case or class of cases be certified to 
another Service official for decision. In addition, regional 
commissioners, regional service center directors, district directors, 
officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City, 
Mexico), and 37 (Rome, Italy), and the Director, National Fines Office, 
may certify their decisions to the appropriate appellate authority (as 
designated in this chapter) when the case involves an unusually complex 
or novel issue of law or fact.
    (2) Notice to affected party. When a case is certified to a Service 
officer, the official certifying the case shall notify the affected 
party using a Notice of Certification (Form I-290C). The affected party 
may submit a brief to the officer to whom the case is certified within 
30 days after service of the notice. If the affected party does not wish 
to submit a brief, the affected party may waive the 30-day period.
    (3) Favorable action. The Service officer to whom a case is 
certified may suspend the 30-day period for submission of a brief if 
that officer takes action favorable to the affected party.
    (4) Initial decision. A case within the appellate jurisdiction of 
the Associate Commissioner, Examinations, or for which there is no 
appeal procedure may be certified only after an initial decision is 
made.
    (5) Certification to AAU. A case described in paragraph (a)(4) of 
this section may be certified to the AAU.
    (6) Appeal to Board. In a case within the Board's appellate 
jurisdiction, an unfavorable decision of the Service official to whom 
the case is certified (whether made initially or upon review) is the 
decision which may be appealed to the Board under Sec. 3.1(b) of this 
chapter.
    (7) Other applicable provisions. The provisions of Sec. 
103.3(a)(2)(x) of this part also apply to decisions on certified cases. 
The provisions of Sec. 103.3(b) of this part also apply to requests for 
oral argument regarding certified cases considered by the AAU.
    (b) Certification of denials of special agricultural worker and 
legalization applications. The Regional Processing Facility director or 
the district director may, in accordance with paragraph (a) of this 
section, certify a decision to the Associate Commissioner, Examinations 
(Administrative Appeals Unit) (the appellate authority designated in 
Sec. 103.1(f)(2)) of this part, when the case involves an unusually 
complex or novel question of law or fact.

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



Sec. 103.5  Reopening or reconsideration.

    (a) Motions to reopen or reconsider in other than special 
agricultural worker and legalization cases--(1) When filed by affected 
party--(i) General. Except where the Board has jurisdiction and as 
otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the 
affected party files a motion, the official having jurisdiction may, for 
proper cause

[[Page 38]]

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 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

[[Page 39]]

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

[27 FR 7562, Aug. 1, 1962, as amended at 30 FR 12772, Oct. 7, 1965; 32 
FR 271, Jan. 11, 1967; 52 FR 16193, May 1, 1987; 54 FR 29881, July 17, 
1989; 55 FR 20770, 20775, May 21, 1990; 55 FR 25931, June 25, 1990; 56 
FR 41782, Aug. 23, 1991; 59 FR 1463, Jan. 11, 1994; 61 FR 18909, Apr. 
29, 1996; 62 FR 10336, Mar. 6, 1997; 70 FR 50957, Aug. 29, 2005]



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.

[[Page 40]]

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

[[Page 41]]

200 or more--$10,000 plus $50 for each alien over 200.

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

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


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

[31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967; 33 
FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23, 
1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40 FR 
42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June 11, 
1984; 60 FR 21974, May 4, 1995; 62 FR 10336, Mar. 6, 1997; 76 FR 53781, 
Aug. 29, 2011]



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 
USCIS 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 USCIS 
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

[[Page 42]]

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) Prescribed fees and charges. (i) USCIS 
fees. A request for immigration benefits submitted to USCIS must include 
the required fee as prescribed under this section. The fees prescribed 
in this section are associated with the benefit, the adjudication, and 
the type of request and not solely determined by the form number listed 
below. The term ``form'' as defined in 8 CFR part 1, may include a 
USCIS-approved electronic equivalent of such form as USCIS may prescribe 
on its official Web site at http//www.uscis.gov.
    (A) Certification of true copies: $2.00 per copy.
    (B) Attestation under seal: $2.00 each.
    (C) Biometric services (Biometric Fee). For capturing, storing, or 
using biometrics (Biometric Fee). A service fee of $85 will be charged 
of any individual who is required to have biometrics captured, stored, 
or used in connection with an application or petition for certain 
immigration and naturalization benefits (other than asylum), whose 
application fee does not already include the charge for biometric 
services. No biometric services fee is charged when:
    (1) A written request for an extension of the approval period is 
received by USCIS prior to the expiration date of approval of an 
Application for Advance Processing of Orphan Petition, if a Petition to 
Classify Orphan as an Immediate Relative has not yet been submitted in 
connection with an approved Application for Advance Processing of Orphan 
Petition. This extension without fee is limited to one occasion. If the 
approval extension expires prior to submission of an associated Petition 
to Classify Orphan as an Immediate Relative, then a complete application 
and fee must be submitted for a subsequent application.
    (2) The application or petition fee for the associated benefit 
request has been waived under paragraph (c) of this section; or
    (3) The associated benefit request is an Application for Posthumous 
Citizenship (Form N-644); Refugee/Asylee Relative Petition (Form I-730); 
Application for T Nonimmigrant Status (Form I-914); Petition for U 
Nonimmigrant Status (Form I-918); Application for Naturalization (Form 
N-400) by an applicant who meets the requirements of sections 328 or 329 
of the Act with respect to military service under paragraph 
(b)(1)(i)(WW) of this section; Application to Register Permanent 
Residence or Adjust Status (Form I-485) from an asylee under paragraph 
(b)(1)(i)(U) of this section; Application To Adjust Status under Section 
245(i) of the Act (Supplement A to Form I-485) from an unmarried child 
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 who 
is qualified for and has applied for voluntary departure under the 
family unity program from an asylee under paragraph (b)(1)(i)(V) of this 
section; or a Petition for Amerasian, Widow(er), or Special Immigrant 
(Form I-360) meeting the requirements of paragraphs (b)(1)(i)(T)(1), 
(2), (3) or (4) of this section.
    (D) Immigrant visa DHS domestic processing fees. For DHS domestic 
processing and issuance of required documents after an immigrant visa is 
issued by the Department of State: $165.
    (E) Request for a search of indices to historical records to be used 
in genealogical research (Form G-1041): $20. The search fee is not 
refundable.
    (F) Request for a copy of historical records to be used in 
genealogical research (Form G-1041A): $20 for each file copy from 
microfilm, or $35 for each file copy from a textual record. In some 
cases, the researcher may be unable to determine the fee, because the 
researcher will have a file number obtained from a source other than 
USCIS and therefore not know the format of the file (microfilm or hard 
copy). In this case, if USCIS locates the file and it is a textual file, 
USCIS will notify the researcher to remit the additional $15. USCIS will 
refund the records request fee only when it is unable to locate the file 
previously identified in response to the index search request.
    (G) Application to Replace Permanent Resident Card (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,

[[Page 43]]

or destroyed, or for a change in name: $365.
    (H) Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document (Form I-102). For filing a petition for an 
application for Arrival/Departure Record (Form I-94) or Crewman's 
Landing Permit (Form I-95), in lieu of one lost, mutilated, or 
destroyed: $330.
    (I) Petition for a Nonimmigrant Worker (Form I-129). For filing a 
petition for a nonimmigrant worker: $325.
    (J) Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form 
I-129CW). For an employer to petition on behalf of one or more 
beneficiaries: $325 plus a supplemental CNMI education funding fee of 
$150 per beneficiary per year. The CNMI education funding fee cannot be 
waived.
    (K) Petition for Alien Fianc[eacute](e) (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: $340; there is 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 a Petition for 
Alien Relative (Form I-130).
    (L) Petition for Alien Relative (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: $420.
    (M) Application for Travel Document (Form I-131). For filing an 
application for travel document:
    (1) $135 for a Refugee Travel Document for an adult age 16 or older.
    (2) $105 for a Refugee Travel Document for a child under the age of 
16.
    (3) $360 for advance parole and any other travel document.
    (4) No fee if filed in conjunction with a pending or concurrently 
filed Application to Register Permanent Residence or Adjust Status (Form 
I-485) when that application was filed with a fee on or after July 30, 
2007.
    (N) Immigrant Petition for Alien Worker (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: $580.
    (O) Application for Advance Permission to Return to Unrelinquished 
Domicile (Form I-191). For filing an application for discretionary 
relief under section 212(c) of the Act: $585.
    (P) Application for Advance Permission to Enter as a Nonimmigrant 
(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: $585.
    (Q) Application for Waiver for Passport and/or Visa (Form I-193). 
For filing an application for waiver of passport and/or visa: $585.
    (R) Application for Permission to Reapply for Admission into the 
United States After Deportation or Removal (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: $585.
    (S) Notice of Appeal or Motion (Form I-290B). For appealing a 
decision under the immigration laws in any type of proceeding over which 
the Board of Immigration Appeals does not have appellate jurisdiction: 
$630. The fee will be the same for appeal of a denial of a benefit 
request with one or multiple beneficiaries. There is no fee for an 
appeal or motion associated with a denial of a petition for a special 
immigrant visa from an Iraqi or Afghan national who worked for or on 
behalf of the U.S. Government in Iraq or Afghanistan.
    (T) Petition for Amerasian, Widow(er), or Special Immigrant (Form I-
360). For filing a petition for an Amerasian, Widow(er), or Special 
Immigrant: $405. The following requests are exempt from this fee:
    (1) A petition seeking classification as an Amerasian;
    (2) A self-petitioning battered or abused spouse, parent, or child 
of a United States citizen or lawful permanent resident;
    (3) A Special Immigrant Juvenile; or
    (4) An Iraqi or Afghan national who worked for, or on behalf of the 
U.S. Government in Iraq or Afghanistan.
    (U) Application to Register Permanent Residence or Adjust Status 
(Form I-485). For filing an application for permanent

[[Page 44]]

resident status or creation of a record of lawful permanent residence:
    (1) $985 for an applicant 14 years of age or older; or
    (2) $635 for an applicant under the age of 14 years when it is:
    (i) Submitted concurrently for adjudication with the Form I-485 of a 
parent;
    (ii) The applicant is seeking to adjust status as a derivative of 
his or her parent; and
    (iii) The child's application is based on a relationship to the same 
individual who is the basis for the child's parent's adjustment of 
status, or under the same legal authority as the parent.
    (3) There is no fee if an applicant is filing as a refugee under 
section 209(a) of the Act.
    (V) Application to Adjust Status under section 245(i) of the Act 
(Supplement A to Form I-485). Supplement A to Form I-485 for persons 
seeking to adjust status under the provisions of section 245(i) of the 
Act: $1,000. There is no fee when the applicant is an unmarried child 
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 who 
is qualified for and has applied for voluntary departure under the 
family unity program.
    (W) Immigrant Petition by Alien Entrepreneur (Form I-526). For 
filing a petition for an alien entrepreneur: $1,500.
    (X) Application To Extend/Change Nonimmigrant Status (Form I-539). 
For filing an application to extend or change nonimmigrant status: $290.
    (Y) Petition to Classify Orphan as an Immediate Relative (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. Only one fee is required when more than one petition is submitted 
by the same petitioner on behalf of orphans who are brothers or sisters: 
$720.
    (Z) Application for Advance Processing of Orphan Petition (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.): $720. No fee is charged if Form I-600 has not 
yet been submitted in connection with an approved Form I-600A subject to 
the following conditions:
    (1) The applicant requests an extension of the approval in writing 
and the request is received by USCIS prior to the expiration date of 
approval.
    (2) The applicant's home study is updated and USCIS determines that 
proper care will be provided to an adopted orphan.
    (3) 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.
    (AA) Application for Waiver of Ground of Inadmissibility (Form I-
601). For filing an application for waiver of grounds of 
inadmissibility: $585.
    (BB) Application for Waiver of the Foreign Residence Requirement 
(under Section 212(e) of the Act) (Form I-612). For filing an 
application for waiver of the foreign residence requirement under 
section 212(e) of the Act: $585.
    (CC) Application for Status as a Temporary Resident under Section 
245A of the Act (Form I-687). For filing an application for status as a 
temporary resident under section 245A(a) of the Act: $1,130.
    (DD) Application for Waiver of Grounds of Inadmissibility under 
Sections 245A or 210 of the Act (Form I-690). For filing an application 
for waiver of a ground of inadmissibility under section 212(a) of the 
Act in conjunction with the application under sections 210 or 245A of 
the Act, or a petition under section 210A of the Act: $200.
    (EE) Notice of Appeal of Decision under Sections 245A or 210 of the 
Act (or a petition under section 210A of the Act) (Form I-694). For 
appealing the denial of an application under sections 210 or 245A of the 
Act, or a petition under section 210A of the Act: $755.
    (FF) Application to Adjust Status from Temporary to Permanent 
Resident (Under Section 245A of Public Law 99-603) (Form I-698). For 
filing an application to adjust status from temporary to permanent 
resident (under section 245A of Public Law 99-603): $1020. The 
adjustment date is the date of filing of the application for permanent 
residence or

[[Page 45]]

the applicant's eligibility date, whichever is later.
    (GG) Petition to Remove the Conditions of Residence based on 
marriage (Form I-751). For filing a petition to remove the conditions on 
residence based on marriage: $505.
    (HH) Application for Employment Authorization (Form I-765): $380; no 
fee if filed in conjunction with a pending or concurrently filed 
Application to Register Permanent Residence or Adjust Status (Form I-
485) when that request was filed with a fee on or after July 30, 2007.
    (II) Petition to Classify Convention Adoptee as an Immediate 
Relative (Form I-800).
    (1) There is no fee for the first Form I-800 filed for a child on 
the basis of an approved Application for Determination of Suitability to 
Adopt a Child from a Convention Country (Form I-800A) during the 
approval period.
    (2) If more than one Form I-800 is filed during the approval period 
for different children, the fee is $720 for the second and each 
subsequent petition submitted.
    (3) If the children are already siblings before the proposed 
adoption, however, only one filing fee of $720 is required, regardless 
of the sequence of submission of the immigration benefit.
    (JJ) Application for Determination of Suitability to Adopt a Child 
from a Convention Country (Form I-800A). For filing an application for 
determination of suitability to adopt a child from a Convention country: 
$720.
    (KK) Request for Action on Approved Application for Determination of 
Suitability to Adopt a Child from a Convention Country (Form I-800A, 
Supplement 3). This filing fee is not charged if Form I-800 has not 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: $360.
    (LL) Application for Family Unity Benefits (Form I-817). For filing 
an application for voluntary departure under the Family Unity Program: 
$435.
    (MM) Application for Temporary Protected Status (Form I-821). For 
first time applicants: $50. This $50 application fee does not apply to 
re-registration.
    (NN) Application for Action on an Approved Application or Petition 
(Form I-824). For filing for action on an approved application or 
petition: $405.
    (OO) Petition by Entrepreneur to Remove Conditions (Form I-829). For 
filing a petition by entrepreneur to remove conditions: $3,750.
    (PP) Application for Suspension of Deportation or Special Rule 
Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100) 
(Form I-881):
    (1) $285 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 $570.
    (2) $165 for adjudication by the Immigration Court (a single fee of 
$165 will be charged whenever applications are filed by two or more 
aliens in the same proceedings).
    (3) The $165 fee is not required if the Form I-881 is referred to 
the Immigration Court by the Department of Homeland Security.
    (QQ) Application for Authorization to Issue Certification for Health 
Care Workers (Form I-905): $230.
    (RR) Request for Premium Processing Service (Form I-907). The fee 
must be paid in addition to, and in a separate remittance from, other 
filing fees. The request for premium processing fee will be adjusted 
annually by notice in the Federal Register based on inflation according 
to the Consumer Price Index (CPI). The fee to request premium 
processing: $1,225. The fee for Premium Processing Service may not be 
waived.
    (SS) Civil Surgeon Designation. For filing an application for civil 
surgeon designation: $615. There is no fee for an application from a 
medical officer in the U.S. Armed Forces or civilian physician employed 
by the U.S. government who examines members and veterans of the armed 
forces and their dependents at a military, Department of Veterans 
Affairs, or U.S. Government facility in the United States.
    (TT) Application for Regional Center under the Immigrant Investor 
Pilot Program (Form I-924). For filing an application for regional 
center under the Immigrant Investor Pilot Program: $6,230.

[[Page 46]]

    (UU) Petition for Qualifying Family Member of a U-1 Nonimmigrant 
(Form I-929). For U-1 principal applicant to submit for each qualifying 
family member who plans to seek an immigrant visa or adjustment of U 
status: $215.
    (VV) Application to File Declaration of Intention (Form N-300). For 
filing an application for declaration of intention to become a U.S. 
citizen: $250.
    (WW) Request for a Hearing on a Decision in Naturalization 
Proceedings (under section 336 of the Act) (Form N-336). For filing a 
request for hearing on a decision in naturalization proceedings under 
section 336 of the Act: $650. There is no fee if filed on or after 
October 1, 2004, by an applicant who has filed an Application for 
Naturalization under sections 328 or 329 of the Act with respect to 
military service and whose application has been denied.
    (XX) Application for Naturalization (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.
    (YY) Application to Preserve Residence for Naturalization Purposes 
(Form N-470). For filing an application for benefits under section 
316(b) or 317 of the Act: $330.
    (ZZ) Application for Replacement Naturalization/Citizenship Document 
(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: $345. There is no fee when this application 
is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a 
certificate that contains an error.
    (AAA) Application for Certificate of Citizenship (Form N-600). For 
filing an application for a certificate of citizenship under section 
309(c) or section 341 of the Act for applications filed on behalf of a 
biological child: $600. For applications filed on behalf of an adopted 
child: $550. There is no fee for any application filed by a member or 
veteran of any branch of the United States Armed Forces.
    (BBB) Application for Citizenship and Issuance of Certificate under 
section 322 of the Act (Form N-600K). For filing an application for 
citizenship and issuance of certificate under section 322 of the Act: 
$600, for an application filed on behalf of a biological child, and $550 
for an application filed on behalf of an adopted child.
    (CCC) American Competitiveness and Workforce Improvement Act (ACWIA) 
fee. $1500 or $750 for filing certain H-1B petitions as described in 8 
CFR 214.2(h)(19) and USCIS form instructions.
    (DDD) Fraud detection and prevention fee. $500 for filing certain H-
1B and L petitions, and $150 for H-2B petitions as described in 8 CFR 
214.2(h)(19).
    (EEE) Public Law 111-230 fee. Petitioners who are required to submit 
the Fraud Detection and Prevention Fee described in paragraph 
(b)(1)(i)(DDD) of this section are also required to submit an additional 
$2000 for an H-1B petition or an additional $2250 for an L-1 petition 
if:
    (1) The petitioner employs 50 or more persons in the United States;
    (2) More than 50 percent of those employees are in H-1B or L-1 
status; and
    (3) The petition is filed prior to the expiration of section 402 of 
Public Law 111-230.
    (ii) Other DHS immigration fees. The following fees are applicable 
to one or more of the immigration components of DHS:
    (A) 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 DHS. 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.

[[Page 47]]

    (B) Form I-17. For filing a petition for school certification: 
$1,700, plus a site visit fee of $655 for each location listed on the 
form.
    (C) 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, and parents of either husband or wife) shall be $32.00.
    (D) Form I-94. For issuance of Arrival/Departure Record at a land 
border port-of-entry: $6.00.
    (E) 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.
    (F) Form I-246. For filing application for stay of deportation under 
8 CFR part 243: $155.00.
    (G) 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 CBP before the 
application will be processed. The fingerprint fee may not be waived. 
For replacement of PORTPASS documentation during the participation 
period: $25.00.
    (H) Form I-901. For remittance of the I-901 SEVIS fee for F and M 
students: $200. For remittance of the I-901 SEVIS fee for certain J 
exchange visitors: $180. For remittance of the I-901 SEVIS fee for J-1 
au pairs, camp counselors, and participants in a summer work/travel 
program: $35. There is no I-901 SEVIS fee remittance obligation for J 
exchange visitors in federally-funded programs with a program identifier 
designation prefix that begins with G-1, G-2, G-3 or G-7.
    (I) Special statistical tabulations--a charge will be made to cover 
the cost of the work involved: DHS Cost.
    (J) Set of monthly, semiannual, or annual tables entitled 
``Passenger Travel Reports via Sea and Air'': $7.00. Available from DHS, 
then the 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.
    (K) 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.
    (L) Request for authorization for parole of an alien into the United 
States: $65.00.
    (2) Fees for copies of records. 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) Adjustment to fees. The fees prescribed in paragraph (b)(1)(i) 
of this section may be adjusted annually by publication of an inflation 
adjustment. The inflation adjustment will be announced by a publication 
of a notice in the Federal Register. 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)(i) of this 
section, plus the latest inflation adjustment, rounded to the nearest $5 
increment.
    (4) Fees for immigration court and Board of Immigration Appeals. 
Fees for proceedings before immigration judges and the Board of 
Immigration Appeals are provided in 8 CFR 1103.7.
    (c) Waiver of fees. (1) Eligibility for a fee waiver. Discretionary 
waiver of the

[[Page 48]]

fees provided in paragraph (b)(1)(i) of this section are limited as 
follows:
    (i) The party requesting the benefit is unable to pay the prescribed 
fee.
    (ii) A waiver based on inability to pay is consistent with the 
status or benefit sought including requests that require demonstration 
of the applicant's ability to support himself or herself, or individuals 
who seek immigration status based on a substantial financial investment.
    (2) Requesting a fee waiver. To request a fee waiver, a person 
requesting an immigration benefit must submit a written request for 
permission to have their request processed without payment of a fee with 
their benefit request. The request must state the person's belief that 
he or she is entitled to or deserving of the benefit requested, the 
reasons for his or her inability to pay, and evidence to support the 
reasons indicated. There is no appeal of the denial of a fee waiver 
request.
    (3) USCIS fees that may be waived. No fee relating to any 
application, petition, appeal, motion, or request made to U.S. 
Citizenship and Immigration Services may be waived except for the 
following:
    (i) Biometric Fee,
    (ii) Application to Replace Permanent Resident Card,
    (iii) A Petition for a CNMI-Only Nonimmigrant Transitional Worker, 
or an Application to Extend/Change Nonimmigrant Status only in the case 
of an alien applying for CW-2 nonimmigrant status,
    (iv) Application for Travel Document when filed to request 
humanitarian parole,
    (v) Application for Advance Permission to Return to Unrelinquished 
Domicile,
    (vi) Notice of Appeal or Motion, when there is no fee for the 
underlying application or petition or that fee may be waived,
    (vii) Petition to Remove the Conditions of Residence based on 
marriage (Form I-751),
    (viii) Application for Employment Authorization,
    (ix) Application for Family Unity Benefits,
    (x) Application for Temporary Protected Status,
    (xi) Application for Suspension of Deportation or Special Rule 
Cancellation of Removal (pursuant to section 203 of Pub. L. 105-110),
    (xii) Application to File Declaration of Intention, Request for a 
Hearing on a Decision in Naturalization Proceedings (under section 336 
of the INA),
    (xiii) Application for Naturalization,
    (xiv) Application to Preserve Residence for Naturalization Purposes,
    (xv) Application for Replacement Naturalization/Citizenship 
Document,
    (xvi) Application for Certificate of Citizenship,
    (xvii) Application for Citizenship and Issuance of Certificate under 
section 322 of this Act,
    (xviii) Any fees associated with the filing of any benefit request 
by a VAWA self-petitioner or under sections 101(a)(15)(T) (T visas), 
101(a)(15)(U) (U visas), 106 (battered spouses of A, G, E-3, or H 
nonimmigrants), 240A(b)(2) (battered spouse or child of a lawful 
permanent resident or U.S. citizen), and 244(a)(3) (Temporary Protected 
Status), of the Act (as in effect on March 31, 1997); and
    (xix) Petition for Nonimmigrant Worker (Form I-129) or Application 
to Extend/Change Nonimmigrant Status (Form I-539), only in the case of 
an alien applying for E-2 CNMI Investor nonimmigrant status under 8 CFR 
214.2(e)(23).
    (4) The following fees may be waived only for an alien for which a 
determination of their likelihood of becoming a public charge under 
section 212(a)(4) of the Act is not required at the time of an 
application for admission or adjustment of status.:
    (i) Application for Advance Permission to Enter as Nonimmigrant;
    (ii) Application for Waiver for Passport and/or Visa;
    (iii) Application to Register Permanent Residence or Adjust Status;
    (iv) Application for Waiver of Grounds of Inadmissibility.
    (5) Immigration Court fees. The 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 can be 
found at 8 CFR 1003.8 and 1003.24.

[[Page 49]]

    (6) Fees under the Freedom of Information Act (FOIA). FOIA fees may 
be waived or reduced if DHS determines that such action would be in the 
public interest because furnishing the information can be considered as 
primarily benefiting the general public.
    (d) Exceptions and exemptions. The Director of USCIS may approve and 
suspend exemptions from any fee required by paragraph (b)(1)(i) of this 
section or provide that the fee may be waived for a case or specific 
class of cases that is not otherwise provided in this section, if the 
Director determines that such action would be in the public interest and 
the action is consistent with other applicable law. This discretionary 
authority will not be delegated to any official other than the USCIS 
Deputy Director.
    (e) Premium processing service. A person submitting a request to 
USCIS may request 15 calendar day processing of certain employment-based 
immigration benefit requests.
    (1) Submitting a request for premium processing. A request for 
premium processing must be submitted on the form prescribed by USCIS, 
including the required fee, and submitted to the address specified on 
the form instructions.
    (2) 15-day limitation. The 15 calendar day processing period begins 
when USCIS receives the request for premium processing accompanied by an 
eligible employment-based immigration benefit request.
    (i) If USCIS cannot reach a final decision on a request for which 
premium processing was requested, as evidenced by an approval notice, 
denial notice, a notice of intent to deny, or a request for evidence, 
USCIS will refund the premium processing service fee, but continue to 
process the case.
    (ii) USCIS may retain the premium processing fee and not reach a 
conclusion on the request within 15 days, and not notify the person who 
filed the request, if USCIS opens an investigation for fraud or 
misrepresentation relating to the benefit request.
    (3) Requests eligible for premium processing.
    (i) USCIS will designate the categories of employment-related 
benefit requests that are eligible for premium processing.
    (ii) USCIS will announce by its official Internet Web site, 
currently http://www.uscis.gov, those requests for which premium 
processing may be requested, the dates upon which such availability 
commences and ends, and any conditions that may apply.
    (f) Authority to certify records. The Director of USCIS, or such 
officials as he or she may designate, may certify records when 
authorized under 5 U.S.C. 552 or any other law to provide such 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 at www.fdsys.gov.

    Editorial Note: At 73 FR 55698, Sept. 26, 2008, Sec. 103.7 was 
amended by revising Form I-290B. However the amendment could not be 
incorporated because the text of the newly revised form was not 
provided.



Sec. 103.8  Service of decisions and other notices.

    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) Types of service--(1) Routine service. (i) Routine service 
consists of mailing the notice by ordinary mail addressed to the 
affected party and his or her attorney or representative of record at 
his or her last known address, or
    (ii) If so requested by a party, advising the party of such notice 
by electronic mail and posting the decision to the party's USCIS 
account.
    (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;

[[Page 50]]

    (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; or
    (v) If so requested by a party, advising the party by electronic 
mail and posting the decision to the party's USCIS account.
    (3) Personal service involving notices of intention to fine. In 
addition to any of the methods of personal service listed in paragraph 
(a)(2) of this section, personal service of Form I-79, Notice of 
Intention to Fine, may also consist of delivery of the Form I-79 by a 
commercial delivery service at the carrier's address on file with the 
National Fines Office, the address listed on the Form I-849, Record for 
Notice of Intent to Fine, or to the office of the attorney or agent 
representing the carrier, provided that such a commercial delivery 
service requires the addressee or other responsible party accepting the 
package to sign for the package upon receipt.
    (b) Effect of service by mail. Whenever a person has the right or is 
required to do some act within a prescribed period after the service of 
a notice upon him and the notice is served by mail, 3 days shall be 
added to the prescribed period. Service by mail is complete upon 
mailing.
    (c) When personal service required--(1) Generally. In any proceeding 
which is initiated by the Service, with proposed adverse effect, service 
of the initiating notice and of notice of any decision by a Service 
officer shall be accomplished by personal service, except as provided in 
section 239 of the Act.
    (2) Persons confined, minors, and incompetents--(i) Persons 
confined. If a person is confined in a penal or mental institution or 
hospital and is competent to understand the nature of the proceedings 
initiated against him, service shall be made both upon him and upon the 
person in charge of the institution or the hospital. If the confined 
person is not competent to understand, service shall be made only on the 
person in charge of the institution or hospital in which he is confined, 
such service being deemed service on the confined person.
    (ii) Incompetents and minors. In case of mental incompetency, 
whether or not confined in an institution, and in the case of a minor 
under 14 years of age, service shall be made upon the person with whom 
the incompetent or the minor resides; whenever possible, service shall 
also be made on the near relative, guardian, committee, or friend.
    (d) When personal service not required. Service of other types of 
papers in proceedings described in paragraph (c) of this section, and 
service of any type of papers in any other proceedings, may be 
accomplished either by routine service or by personal service.

[37 FR 11470, June 8, 1972, as amended at 39 FR 23247, June 27, 1974; 62 
FR 10336, Mar. 6, 1997; 64 FR 17944, Apr. 13, 1999. Redesignated and 
amended at 76 FR 53781, Aug. 29, 2011]



Sec. 103.9  Request for further action on an approved benefit request.

    (a) Filing a request. A person may request further action on an 
approved benefit request as prescribed by the form instructions. 
Requests for further action may be submitted with the original benefit 
request or following the approval of such benefit.
    (b) Processing. The request will be approved if the requester has 
demonstrated eligibility for the requested action. There is no appeal 
from the denial of such request.

[Redesignated and amended at 76 FR 53781, Aug. 29, 2011]



Sec. 103.10  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) 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

[[Page 51]]

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.
    (c) 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 (c) of this section or 8 CFR 1003.1(h)(2).
    (d) 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).
    (e) Precedent decisions. Bound volumes of designated precedent 
decisions, entitled ``Administrative Decisions under Immigration and 
Nationality Laws of the United States,'' may be purchased from the 
Superintendent of Documents, U.S. Government Printing Office. Prior to 
publication in volume form, current precedent decisions are available 
from the Department of Justice, Executive Office for Immigration 
Review's Virtual Law Library at: http://www.justice.gov/eoir/vll/
libindex.html.
    (f) [Reserved]

[68 FR 9832, Feb. 28, 2003. Redesignated and amended at 76 FR 53781, 
Aug. 29, 2011]



                    Subpart B_Biometric Requirements



Sec. 103.16  Collection, use and storage of biometric information.

    (a) Use of biometric information. Any individual may be required to 
submit biometric information if the regulations or form instructions 
require such information or if requested in accordance with 8 CFR 
103.2(b)(9). DHS may collect and store for present or future use, by 
electronic or other means, the biometric information submitted by an 
individual. DHS may use this biometric information to conduct background 
and security checks, adjudicate immigration and naturalization benefits, 
and perform other functions related to administering and enforcing the 
immigration and naturalization laws.
    (b) Individuals residing abroad. An individual who is required to 
provide biometric information and who is residing outside of the United 
States must report to a DHS-designated location to have his or her 
biometric information collected, whether by electronic or non-electronic 
means.

[76 FR 53782, Aug. 29, 2011]



Sec. 103.17  Biometric service fee.

    (a) Required fees. DHS will charge a fee, as prescribed in 8 CFR 
103.7(b)(1), for collecting biometric information at a DHS office, other 
designated collection site overseas, or a registered State or local law 
enforcement agency designated by a cooperative agreement with DHS to 
provide biometric collection services, to conduct required law 
enforcement checks, and to maintain this biometric information for reuse 
to support other benefit requests. Requests for benefits must be 
submitted with the biometric service fee for all individuals who are 
required to submit biometric information and a biometric services fee 
and who reside in the United States at the time of filing for the 
benefit.
    (b) Non-payment of biometric service fee. (1) If a benefit request 
is received by DHS without the correct biometric service fee, DHS will 
notify the applicant, petitioner, and, when appropriate, the applicant 
or petitioner's representative, of the deficiency, and

[[Page 52]]

no further action will be taken on the benefit request until payment is 
received. Failure to submit the correct biometric service fee in 
response to a notice of deficiency within the time allotted in the 
notice will result in denial of the benefit request. There is no appeal 
from the denial of a benefit request for failure to submit the correct 
biometric service fee. A motion to reopen a benefit request denied for 
failure to submit the correct biometric service fee will be granted only 
on proof that:
    (i) The correct biometric service fee was submitted at the time of 
filing the benefit request;
    (ii) The correct biometric service fee was submitted in response to 
the notice of deficiency within the time allotted in the notice; or
    (iii) The notice of deficiency was sent to an address other than the 
address on the benefit request or the notice of representation, or the 
applicant or petitioner notified DHS, in writing, of a change of address 
or change of representation subsequent to filing and before the notice 
of deficiency was sent and the DHS notice of deficiency was not sent to 
the new address.
    (2) If the reason for the deficiency in the biometric service fee is 
that a check or financial instrument used to pay the biometric service 
fee is returned as not payable, the remitter must be allowed 14 calendar 
days to pay the fee and any associated service charges. If the fee and 
charges are not paid within 14 calendar days, the benefit request will 
be denied.

[76 FR 53782, Aug. 29, 2011]



Sec. Sec. 103.20-103.36  [Reserved]

Subpart C--[Reserved]



                    Subpart D_Availability of Records



Sec. 103.38  Genealogy Program.

    (a) Purpose. The Department of Homeland Security, U.S. Citizenship 
and Immigration Services Genealogy Program is a fee-for-service program 
designed to provide genealogical and historical records and reference 
services to genealogists, historians, and others seeking documents 
maintained within the historical record systems.
    (b) Scope and limitations. Sections 103.38 through 103.41 comprise 
the regulations of the Genealogy Program. These regulations apply only 
to searches for and retrieval of records from the file series described 
as historical records in 8 CFR 103.39. These regulations set forth the 
procedures by which individuals may request searches for historical 
records and, if responsive records are located, obtain copies of those 
records.

[73 FR 28030, May 15, 2008]



Sec. 103.39  Historical Records.

    Historical Records are files, forms, and documents now located 
within the following records series:
    (a) Naturalization Certificate Files (C-Files), from September 27, 
1906 to April 1, 1956. Copies of records relating to all U.S. 
naturalizations in Federal, State, county, or municipal courts, overseas 
military naturalizations, replacement of old law naturalization 
certificates, and the issuance of Certificates of Citizenship in 
derivative, repatriation, and resumption cases. The majority of C-Files 
exist only on microfilm. Standard C-Files generally contain at least one 
application form (Declaration of Intention and/or Petition for 
Naturalization, or other application) and a duplicate certificate of 
naturalization or certificate of citizenship. Many files contain 
additional documents, including correspondence, affidavits, or other 
records. Only C-Files dating from 1929 onward include photographs.
    (b) Microfilmed Alien Registration Forms, from August 1, 1940 to 
March 31, 1944. Microfilmed copies of 5.5 million Alien Registration 
Forms (Form AR-2) completed by all aliens age 14 and older, residing in 
or entering the United States between August 1, 1940 and March 31, 1944. 
The two-page form called for the following information: Name; name at 
arrival; other names used; street address; post-office address; date of 
birth; place of birth; citizenship; sex; marital status; race; height; 
weight; hair and eye color; date, place, vessel, and class of admission 
of last arrival in United States; date of first arrival in United 
States; number of years in United States;

[[Page 53]]

usual occupation; present occupation; name, address, and business of 
present employer; membership in clubs, organizations, or societies; 
dates and nature of military or naval service; whether citizenship 
papers filed, and if so date, place, and court for declaration or 
petition; number of relatives living in the United States; arrest 
record, including date, place, and disposition of each arrest; whether 
or not affiliated with a foreign government; signature; and fingerprint.
    (c) Visa Files, from July 1, 1924 to March 31, 1944. Original 
arrival records of immigrants admitted for permanent residence under 
provisions of the Immigration Act of 1924. Visa forms contain all 
information normally found on a ship passenger list of the period, as 
well as the immigrant's places of residence for 5 years prior to 
emigration, names of both the immigrant's parents, and other data. In 
most cases, birth records or affidavits are attached to the visa, and in 
some cases, marriage, military, or police records may also be attached 
to the visa.
    (d) Registry Files, from March 2, 1929 to March 31, 1944. Original 
records documenting the creation of immigrant arrival records for 
persons who entered the United States prior to July 1, 1924, and for 
whom no arrival record could later be found. Most files also include 
documents supporting the immigrant's claims regarding arrival and 
residence (e.g., proofs of residence, receipts, and employment records).
    (e) Alien-Files numbered below 8 million (A8000000), and documents 
therein dated prior to May 1, 1951. Individual alien case files (A-
files) became the official file for all immigration records created or 
consolidated after April 1, 1944. The United States issued A-numbers 
ranging up to approximately 6 million to aliens and immigrants who were 
within or entered the United States between 1940 and 1945. The United 
States entered the 6 million and 7 million series of A-numbers between 
circa 1944 and May 1, 1951. Any documents dated after May 1, 1951, 
though found in an A-File numbered below 8 million, will remain subject 
to FOIA/PA restrictions.

[73 FR 28030, May 15, 2008]



Sec. 103.40  Genealogical Research Requests.

    (a) Nature of requests. Genealogy requests are requests for searches 
and/or copies of historical records relating to a deceased person, 
usually for genealogy and family history research purposes.
    (b) Manner of requesting genealogical searches and records. Requests 
must be submitted on Form G-1041, Genealogy Index Search Request, or 
Form G-1041A, Genealogy Records Request, and mailed to the address 
listed on the form. Beginning on August 13, 2008, USCIS will accept 
requests electronically through its Web site at http://www.USCIS.gov. A 
separate request on Form G-1041 must be submitted for each individual 
searched, and that form will call for the name, aliases, and all 
alternate spellings relating to the one individual immigrant. Form G-
1041A may be submitted to request one or more separate records relating 
to separate individuals.
    (c) Information required to perform index search. As required on 
Form G-1041, all requests for index searches to identify records of 
individual immigrants must include the immigrant's full name (including 
variant spellings of the name and/or aliases, if any), date of birth, 
and place of birth. The date of birth must be at least as specific as a 
year, and the place of birth must be at least as specific as a country 
(preferably the country name as it existed at the time of the 
immigrant's immigration or naturalization). Additional information about 
the immigrant's date of arrival in the United States, residence at time 
of naturalization, name of spouse, and names of children may be required 
to ensure a successful search.
    (d) Information required to retrieve records. As required on Form G-
1041A, requests for copies of historical records or files must identify 
the record by number or other specific data used by the Genealogy 
Program Office to retrieve the record. C-Files must be identified by a 
naturalization certificate number. Forms AR-2 and A-Files numbered below 
8 million must be identified by Alien Registration Number. Visa Files 
must be identified by the Visa File Number. Registry Files must

[[Page 54]]

be identified by the Registry File Number (for example, R-12345).
    (e) Information required for release of records. Subjects will be 
presumed deceased if their birth dates are more than 100 years prior to 
the date of the request. In other cases, the subject is presumed to be 
living until the requestor establishes to the satisfaction of the 
Genealogy Program Office that the subject is deceased. As required on 
Form G-1041A, primary or secondary documentary evidence of the subject's 
death will be required (including but not limited to death records, 
published obituaries or eulogies, published death notices, church or 
bible records, photographs of gravestones, and/or copies of official 
documents relating to payment of death benefits). All documentary 
evidence must be attached to Form G-1041A or submitted in accordance 
with instructions provided on Form G-1041A.
    (f) Processing of index search requests. This service is designed 
for customers who are unsure whether USCIS has any record of their 
ancestor, or who suspect a record exists but cannot identify that record 
by number. Each request for index search services will generate a search 
of the indices to determine the existence of responsive historical 
records. If no record is found, USCIS will notify the customer 
accordingly. If records are found, USCIS will provide the customer with 
the search results, including the type of record found and the file 
number or other information identifying the record. The customer can use 
this information to request a copy of the record(s).
    (g) Processing of record copy requests. This service is designed for 
customers who can identify a specific record or file to be retrieved, 
copied, reviewed, and released. Customers may identify one or more files 
in a single request. However, separate fees will apply to each file 
requested. Upon receipt of requests identifying specific records by 
number or other identifying information, USCIS will retrieve, review, 
duplicate, and then mail the record(s) to the requester. It is possible 
that USCIS will find a record that contains data that is not releasable 
to the customer. An example would be names and birth dates of persons 
who might be living. The FOIA/PA only permits release of this type of 
information when the affected individual submits a release authorization 
to USCIS. Therefore, the Genealogy Program Office will contact and 
inform the customer of this requirement. The customer will have the 
opportunity to submit the release authorization. The customer can also 
agree to the transfer of the document request to the FOIA/PA program for 
treatment as a FOIA/PA request as described in 6 CFR Part 5. Document 
retrieval charges will apply in all cases where documents are retrieved.

[73 FR 28031, May 15, 2008]



Sec. 103.41  Genealogy request fees.

    (a) Genealogy search fee. See 8 CFR 103.7(b)(1).
    (b) Genealogy records fees. See 8 CFR 103.7(b)(1).
    (c) Manner of submission. The application and fee must be submitted 
in accordance with form instructions.

[73 FR 28031, May 15, 2008, as amended at 76 FR 53782, Aug. 29, 2011]



Sec. 103.42  Rules relating to the Freedom of Information Act (FOIA) and the 

Privacy Act.

    Immigration-related regulations relating to FOIA and the Privacy Act 
are located in 6 CFR part 5.

[76 FR 53782, Aug. 29, 2011]

                           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.
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 [Reserved]

[[Page 55]]

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 [Reserved]
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, 1184, 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:
    (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

[[Page 56]]

Special Immigrant. These petitions are described in Sec. 204.4.
    (b) Proper filing. A petition for alien relative and a petition for 
Amerasian, widow(er), or special immigrant must be filed on the form 
prescribed by USCIS in accordance with the form instructions, and will 
be considered properly filed when the petition is filed in accordance 
with 8 CFR 103.2. The filing date of a petition is the date it is 
properly filed and received by USCIS. That date will constitute the 
priority date.
    (c)-(e) [Reserved].
    (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 57]]

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; 74 FR 26936, June 5, 
2009; 76 FR 28305, May 17, 2011]



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

[[Page 58]]

and place of birth of the person making the affidavit; his or her 
relationship, if any, to the petitioner, beneficiary or prior spouse; 
and complete information and details explaining how the person acquired 
his or her knowledge of the prior marriage. The affiant may be required 
to testify before an immigration officer about the information contained 
in the affidavit. Affidavits should be supported, if possible, by one or 
more types of documentary evidence listed in this paragraph.); or
    (6) Any other documentation which is relevant to establish that the 
prior marriage was not entered into in order to evade the immigration 
laws of the United States.
    (C) The petitioner must establish by clear and convincing evidence 
that the prior marriage was not entered into for the purpose of evading 
the immigration laws. Failure to meet the ``clear and convincing 
evidence'' standard will result in the denial of the petition. Such a 
denial shall be without prejudice to 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 59]]

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 60]]

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 61]]

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 62]]

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 63]]

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 64]]

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 65]]

    (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 66]]

    (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

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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 69]]

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 70]]

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 71]]

    (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 72]]

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 73]]

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 74]]

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 75]]

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 76]]

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 77]]

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 78]]

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, USCIS will fingerprint each member of the married 
prospective adoptive couple or the unmarried prospective adoptive 
parent, as prescribed in 8 CFR 103.16. USCIS will also fingerprint each 
additional adult member of the prospective adoptive parents' household, 
as prescribed in 8 CFR 103.16. USCIS 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;
    (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

[[Page 79]]

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 80]]

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 81]]

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 82]]

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 83]]

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 84]]

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. Form I-600, Petition to Classify Orphan as an 
Immediate Relative, and Form I-600A, Application for Advanced Processing 
of Orphan Petition, must be filed in accordance with the instructions on 
the form.
    (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

[[Page 85]]

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 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 USCIS Director, or an officer designated by the USCIS 
Director, determines that the ability of a prospective adoptive parent 
to timely file a petition 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 advance processing request, either in an individual case 
or for a class of cases. An extension of the validity of the advance 
processing request may be subject to such conditions as the USCIS 
Director, or officer designated by the USCIS 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

[[Page 86]]

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

[[Page 87]]

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

[[Page 88]]

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; 74 FR 26936, June 5, 2009; 76 FR 53782, Aug. 29, 2011]



Sec. 204.4  Amerasian child of a United States citizen.

    (a) Eligibility. An alien is eligible for benefits under Public Law 
97-359 as the Amerasian child or son or daughter of a United States 
citizen if there is reason to believe that the alien was born in Korea, 
Vietnam, Laos, Kampuchea, or Thailand after December 31, 1950, and 
before October 22, 1982, and was fathered by a United States citizen. 
Such an alien is eligible for classification under sections 201(b), 
203(a)(1), or 203(a)(3) of the Act as the Amerasian child or son or 
daughter of a United States citizen, pursuant to section 204(f) of the 
Act.
    (b) Filing petition. Any alien claiming to be eligible for benefits 
as an Amerasian under Public Law 97-359, or any person on the alien's 
behalf, may file a petition, Form I-360, Petition for Amerasian, Widow, 
or Special Immigrant. Any person filing the petition must either be 
eighteen years of age or older or be an emancipated minor. In addition, 
a corporation incorporated in the United States may file the petition on 
the alien's behalf.
    (c) Jurisdiction. The petition must be filed in accordance with the 
instructions on the form.
    (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 8 CFR 103.16. 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, 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:

[[Page 89]]

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

[[Page 90]]

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

[[Page 91]]

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 
USCIS. If the beneficiary is under eighteen years of age, any agency or 
individual (other than the sponsor) having legal custody of the 
beneficiary, or a legal guardian acting on the alien's behalf, may file 
Form I-363.

[57 FR 41066, Sept. 9, 1992, as amended at 63 FR 12986, Mar. 17, 1998; 
74 FR 26936, June 5, 2009; 76 FR 53782, Aug. 29, 2011]



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 in accordance 
with the instructions on the form.
    (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

[[Page 92]]

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

[[Page 93]]

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

[[Page 94]]

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

[[Page 95]]

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

[[Page 96]]

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

[[Page 97]]

I-140 for classification of an alien under section 203(b)(3) as a 
skilled worker, professional, or other (unskilled) worker.
    (2) Definitions. As used in this part:
    Other worker means a qualified alien who is capable, at the time of 
petitioning for this classification, of performing unskilled labor 
(requiring less than two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not 
available in the United States.
    Professional means a qualified alien who holds at least a United 
States baccalaureate degree or a foreign equivalent degree and who is a 
member of the professions.
    Skilled worker means an alien who is capable, at the time of 
petitioning for this classification, of performing skilled labor 
(requiring at least two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not 
available in the United States. Relevant post-secondary education may be 
considered as training for the purposes of this provision.
    (3) Initial evidence--(i) Labor certification or evidence that alien 
qualifies for Labor Market Information Pilot Program. Every petition 
under this classification must be accompanied by an individual labor 
certification from the Department of Labor, by an application for 
Schedule A designation, or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is a shortage 
occupation with the Labor Market Pilot Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The 
job offer portion of an individual labor certification, Schedule A 
application, or Pilot Program application for a professional must 
demonstrate that the job requires the minimum of a baccalaureate degree.
    (ii) Other documentation--(A) General. Any requirements of training 
or experience for skilled workers, professionals, or other workers must 
be supported by letters from trainers or employers giving the name, 
address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien.
    (B) Skilled workers. If the petition is for a skilled worker, the 
petition must be accompanied by evidence that the alien meets the 
educational, training or experience, and any other requirements of the 
individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience.
    (C) Professionals. If the petition is for a professional, the 
petition must be accompanied by evidence that the alien holds a United 
States baccalaureate degree or a foreign equivalent degree and by 
evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or 
university record showing the date the baccalaureate degree was awarded 
and the area of concentration of study. To show that the alien is a 
member of the professions, the petitioner must submit evidence showing 
that the minimum of a baccalaureate degree is required for entry into 
the occupation.
    (D) Other workers. If the petition is for an unskilled (other) 
worker, it must be accompanied by evidence that the alien meets any 
educational, training and experience, and other requirements of the 
labor certification.
    (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. This paragraph governs classification of an 
alien as a special immigrant religious worker as defined in section 
101(a)(27)(C) of the

[[Page 98]]

Act and under section 203(b)(4) of the Act. To be eligible for 
classification as a special immigrant religious worker, the alien 
(either abroad or in the United States) must:
    (1) For at least the two years immediately preceding the filing of 
the petition have been a member of a religious denomination that has a 
bona fide non-profit religious organization in the United States.
    (2) Be coming to the United States to work in a full time (average 
of at least 35 hours per week) compensated position in one of the 
following occupations as they are defined in paragraph (m)(5) of this 
section:
    (i) Solely in the vocation of a minister of that religious 
denomination;
    (ii) A religious vocation either in a professional or 
nonprofessional capacity; or
    (iii) A religious occupation either in a professional or 
nonprofessional capacity.
    (3) Be coming to work for a bona fide non-profit religious 
organization in the United States, or a bona fide organization which is 
affiliated with the religious denomination in the United States.
    (4) Have been working in one of the positions described in paragraph 
(m)(2) of this section, either abroad or in lawful immigration status in 
the United States, and after the age of 14 years continuously for at 
least the two-year period immediately preceding the filing of the 
petition. The prior religious work need not correspond precisely to the 
type of work to be performed. A break in the continuity of the work 
during the preceding two years will not affect eligibility so long as:
    (i) The alien was still employed as a religious worker;
    (ii) The break did not exceed two years; and
    (iii) The nature of the break was for further religious training or 
for sabbatical that did not involve unauthorized work in the United 
States. However, the alien must have been a member of the petitioner's 
denomination throughout the two years of qualifying employment.
    (5) Definitions. As used in paragraph (m) of this section, the term:
    Bona fide non-profit religious organization in the United States 
means a religious organization exempt from taxation as described in 
section 501(c)(3) of the Internal Revenue Code of 1986, subsequent 
amendment or equivalent sections of prior enactments of the Internal 
Revenue Code, and possessing a currently valid determination letter from 
the IRS confirming such exemption.
    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, subsequent 
amendment or equivalent sections of prior enactments of the Internal 
Revenue Code and possessing a currently valid determination letter from 
the IRS confirming such exemption.
    Denominational membership means membership during at least the two-
year period immediately preceding the filing date of the petition, in 
the same type of religious denomination as the United States religious 
organization where the alien will work.
    Minister means an individual who:
    (A) Is fully authorized by a religious denomination, and fully 
trained according to the denomination's standards, to conduct such 
religious worship and perform other duties usually performed by 
authorized members of the clergy of that denomination;
    (B) Is not a lay preacher or a person not authorized to perform 
duties usually performed by clergy;
    (C) Performs activities with a rational relationship to the 
religious calling of the minister; and
    (D) Works solely as a minister in the United States, which may 
include administrative duties incidental to the duties of a minister.
    Petition means USCIS Form I-360, Petition for Amerasian, Widow(er), 
or Special Immigrant, a successor form, or other form as may be 
prescribed by USCIS, along with a supplement containing attestations 
required by this section, the fee specified in 8 CFR 103.7(b)(1), and 
supporting evidence filed as provided by this part.
    Religious denomination means a religious group or community of 
believers

[[Page 99]]

that is governed or administered under a common type of ecclesiastical 
government and includes one or more of the following:
    (A) A recognized common creed or statement of faith shared among the 
denomination's members;
    (B) A common form of worship;
    (C) A common formal code of doctrine and discipline;
    (D) Common religious services and ceremonies;
    (E) Common established places of religious worship or religious 
congregations; or
    (F) Comparable indicia of a bona fide religious denomination.
    Religious occupation means an occupation that meets all of the 
following requirements:
    (A) The duties must primarily relate to a traditional religious 
function and be recognized as a religious occupation within the 
denomination.
    (B) The duties must be primarily related to, and must clearly 
involve, inculcating or carrying out the religious creed and beliefs of 
the denomination.
    (C) The duties do not include positions that are primarily 
administrative or support such as janitors, maintenance workers, 
clerical employees, fund raisers, persons solely involved in the 
solicitation of donations, or similar positions, although limited 
administrative duties that are only incidental to religious functions 
are permissible.
    (D) Religious study or training for religious work does not 
constitute a religious occupation, but a religious worker may pursue 
study or training incident to status.
    Religious vocation means a formal lifetime commitment, through vows, 
investitures, ceremonies, or similar indicia, to a religious way of 
life. The religious denomination must have a class of individuals whose 
lives are dedicated to religious practices and functions, as 
distinguished from the secular members of the religion. Examples of 
individuals practicing religious vocations include nuns, monks, and 
religious brothers and sisters.
    Religious worker means an individual engaged in and, according to 
the denomination's standards, qualified for a religious occupation or 
vocation, whether or not in a professional capacity, or as a minister.
    Tax-exempt organization means an organization that has received a 
determination letter from the IRS establishing that it, or a group that 
it belongs to, is exempt from taxation in accordance with sections 
501(c)(3) of the Internal Revenue Code of 1986 or subsequent amendments 
or equivalent sections of prior enactments of the Internal Revenue Code.
    (6) Filing requirements. A petition must be filed as provided in the 
petition form instructions either by the alien or by his or her 
prospective United States employer. After the date stated in section 
101(a)(27)(C) of the Act, immigration or adjustment of status on the 
basis of this section is limited solely to ministers.
    (7) Attestation. An authorized official of the prospective employer 
of an alien seeking religious worker status must complete, sign and date 
an attestation prescribed by USCIS and submit it along with the 
petition. If the alien is a self-petitioner and is also an authorized 
official of the prospective employer, the self-petitioner may sign the 
attestation. The prospective employer must specifically attest to all of 
the following:
    (i) That the prospective employer is a bona fide non-profit 
religious organization or a bona fide organization which is affiliated 
with the religious denomination and is exempt from taxation;
    (ii) The number of members of the prospective employer's 
organization;
    (iii) The number of employees who work at the same location where 
the beneficiary will be employed and a summary of the type of 
responsibilities of those employees. USCIS may request a list of all 
employees, their titles, and a brief description of their duties at its 
discretion;
    (iv) The number of aliens holding special immigrant or nonimmigrant 
religious worker status currently employed or employed within the past 
five years by the prospective employer's organization;
    (v) The number of special immigrant religious worker and 
nonimmigrant religious worker petitions and applications filed by or on 
behalf of any aliens

[[Page 100]]

for employment by the prospective employer in the past five years;
    (vi) The title of the position offered to the alien, the complete 
package of salaried or non-salaried compensation being offered, and a 
detailed description of the alien's proposed daily duties;
    (vii) That the alien will be employed at least 35 hours per week;
    (viii) The specific location(s) of the proposed employment;
    (ix) That the alien has worked as a religious worker for the two 
years immediately preceding the filing of the application and is 
otherwise qualified for the position offered;
    (x) That the alien has been a member of the denomination for at 
least two years immediately preceding the filing of the application;
    (xi) That the alien will not be engaged in secular employment, and 
any salaried or non-salaried compensation for the work will be paid to 
the alien by the attesting employer; and
    (xii) That the prospective employer has the ability and intention to 
compensate the alien at a level at which the alien and accompanying 
family members will not become public charges, and that funds to pay the 
alien's compensation do not include any monies obtained from the alien, 
excluding reasonable donations or tithing to the religious organization.
    (8) Evidence relating to the petitioning organization. A petition 
shall include the following initial evidence relating to the petitioning 
organization:
    (i) A currently valid determination letter from the Internal Revenue 
Service (IRS) establishing that the organization is a tax-exempt 
organization; or
    (ii) For a religious organization that is recognized as tax-exempt 
under a group tax-exemption, a currently valid determination letter from 
the IRS establishing that the group is tax-exempt; or
    (iii) For a bona fide organization that is affiliated with the 
religious denomination, if the organization was granted tax-exempt 
status under section 501(c)(3) of the Internal Revenue Code of 1986, or 
subsequent amendment or equivalent sections of prior enactments of the 
Internal Revenue Code, as something other than a religious organization:
    (A) A currently valid determination letter from the IRS establishing 
that the organization is a tax-exempt organization;
    (B) Documentation that establishes the religious nature and purpose 
of the organization, such as a copy of the organizing instrument of the 
organization that specifies the purposes of the organization;
    (C) Organizational literature, such as books, articles, brochures, 
calendars, flyers and other literature describing the religious purpose 
and nature of the activities of the organization; and
    (D) A religious denomination certification. The religious 
organization must complete, sign and date a religious denomination 
certification certifying that the petitioning organization is affiliated 
with the religious denomination. The certification is to be submitted by 
the petitioner along with the petition.
    (9) Evidence relating to the qualifications of a minister. If the 
alien is a minister, the petitioner must submit the following:
    (i) A copy of the alien's certificate of ordination or similar 
documents reflecting acceptance of the alien's qualifications as a 
minister in the religious denomination; and
    (ii) Documents reflecting acceptance of the alien's qualifications 
as a minister in the religious denomination, as well as evidence that 
the alien has completed any course of prescribed theological education 
at an accredited theological institution normally required or recognized 
by that religious denomination, including transcripts, curriculum, and 
documentation that establishes that the theological institution is 
accredited by the denomination, or
    (iii) For denominations that do not require a prescribed theological 
education, evidence of:
    (A) The denomination's requirements for ordination to minister;
    (B) The duties allowed to be performed by virtue of ordination;
    (C) The denomination's levels of ordination, if any; and

[[Page 101]]

    (D) The alien's completion of the denomination's requirements for 
ordination.
    (10) Evidence relating to compensation. Initial evidence must 
include verifiable evidence of how the petitioner intends to compensate 
the alien. Such compensation may include salaried or non-salaried 
compensation. This evidence may include past evidence of compensation 
for similar positions; budgets showing monies set aside for salaries, 
leases, etc.; verifiable documentation that room and board will be 
provided; or other evidence acceptable to USCIS. If IRS documentation, 
such as IRS Form W-2 or certified tax returns, is available, it must be 
provided. If IRS documentation is not available, an explanation for its 
absence must be provided, along with comparable, verifiable 
documentation.
    (11) Evidence relating to the alien's prior employment. Qualifying 
prior experience during the two years immediately preceding the petition 
or preceding any acceptable break in the continuity of the religious 
work, must have occurred after the age of 14, and if acquired in the 
United States, must have been authorized under United States immigration 
law. If the alien was employed in the United States during the two years 
immediately preceding the filing of the application and:
    (i) Received salaried compensation, the petitioner must submit IRS 
documentation that the alien received a salary, such as an IRS Form W-2 
or certified copies of income tax returns.
    (ii) Received non-salaried compensation, the petitioner must submit 
IRS documentation of the non-salaried compensation if available.
    (iii) Received no salary but provided for his or her own support, 
and provided support for any dependents, the petitioner must show how 
support was maintained by submitting with the petition additional 
documents such as audited financial statements, financial institution 
records, brokerage account statements, trust documents signed by an 
attorney, or other verifiable evidence acceptable to USCIS.
    If the alien was employed outside the United States during such two 
years, the petitioner must submit comparable evidence of the religious 
work.
    (12) Inspections, evaluations, verifications, and compliance 
reviews. The supporting evidence submitted may be verified by USCIS 
through any means determined appropriate by USCIS, up to and including 
an on-site inspection of the petitioning organization. The inspection 
may include a tour of the organization's facilities, an interview with 
the organization's officials, a review of selected organization records 
relating to compliance with immigration laws and regulations, and an 
interview with any other individuals or review of any other records that 
the USCIS considers pertinent to the integrity of the organization. An 
inspection may include the organization headquarters, satellite 
locations, or the work locations planned for the applicable employee. If 
USCIS decides to conduct a pre-approval inspection, satisfactory 
completion of such inspection will be a condition for approval of any 
petition.
    (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.

[[Page 102]]

    (o) Denial of petitions under section 204 of the Act based on a 
finding by the Department of Labor. Upon debarment by the Department of 
Labor pursuant to 20 CFR 655.31, USCIS may deny any employment-based 
immigrant petition filed by that petitioner for a period of at least 1 
year but not more than 5 years. The time period of such bar to petition 
approval shall be based on the severity of the violation or violations. 
The decision to deny petitions, the time period for the bar to 
petitions, and the reasons for the time period will be explained in a 
written notice to the petitioner.

[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; 73 FR 72291, Nov. 26, 2008; 73 FR 
78127, Dec. 19, 2008; 74 FR 26936, June 5, 2009]



Sec. 204.6  Petitions for employment creation aliens.

    (a) General. A petition to classify an alien under section 203(b)(5) 
of the Act must be filed on Form I-526, Immigrant Petition by Alien 
Entrepreneur. The petition must be accompanied by the appropriate fee. 
Before a petition is considered properly filed, the petition must be 
signed by the petitioner, and the initial supporting documentation 
required by this section must be attached. Legible photocopies of 
supporting documents will ordinarily be acceptable for initial filing 
and approval. However, at the discretion of the director, original 
documents may be required.
    (b) [Reserved]
    (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

[[Page 103]]

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

[[Page 104]]

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

[[Page 105]]

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

[[Page 106]]

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

[[Page 107]]

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) [Reserved]
    (m) Immigrant Investor Pilot Program--(1) Scope. The Immigrant 
Investor Pilot Program is established solely pursuant to the provisions 
of section 610 of the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriation Act, and subject to all 
conditions and restrictions stipulated in that section. Except as 
provided herein, aliens seeking to obtain immigration benefits under 
this paragraph continue to be subject to all conditions and restrictions 
set forth in section 203(b)(5) of the Act and this section.
    (2) Number of immigrant visas allocated. The annual allocation of 
the visas available under the Immigrant Investor Pilot Program is set at 
300 for each of the five fiscal years commencing on October 1, 1993.
    (3) Requirements for regional centers. Each regional center wishing 
to participate in the Immigrant Investor Pilot Program shall submit a 
proposal to the Assistant Commissioner for Adjudications, which:
    (i) Clearly describes how the regional center focuses on a 
geographical region of the United States, and how it will promote 
economic growth through increased export sales, improved regional 
productivity, job creation, and increased domestic capital investment;
    (ii) Provides in verifiable detail how jobs will be created 
indirectly through increased exports;
    (iii) Provides a detailed statement regarding the amount and source 
of capital which has been committed to the regional center, as well as a 
description of the promotional efforts taken and planned by the sponsors 
of the regional center;
    (iv) Contains a detailed prediction regarding the manner in which 
the regional center will have a positive impact on the regional or 
national economy in general as reflected by such factors as increased 
household earnings, greater demand for business services, utilities, 
maintenance and repair, and construction both within and without the 
regional center; and
    (v) Is supported by economically or statistically valid forecasting 
tools, including, but not limited to, feasibility studies, analyses of 
foreign and domestic markets for the goods or services to be exported, 
and/or multiplier tables.
    (4) Submission of proposals to participate in the Immigrant Investor 
Pilot Program. On August 24, 1993, the Service will accept proposals 
from regional centers seeking approval to participate in the Immigrant 
Investor Pilot Program. Regional centers that have been approved by the 
Assistant Commissioner for Adjudications will be eligible to participate 
in the Immigrant Investor Pilot Program.
    (5) Decision to participate in the Immigrant Investor Pilot Program. 
The Assistant Commissioner for Adjudications shall notify the regional 
center of his or her decision on the request for approval to participate 
in the Immigrant 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, a regional center must provide USCIS with 
updated information to demonstrate the regional center is continuing to 
promote economic growth, improved regional productivity, job creation, 
or increased domestic capital investment in the approved geographic 
area. Such information must be submitted to USCIS on an annual basis, on 
a cumulative basis, and/or as otherwise requested by USCIS, using a form 
designated for this purpose. USCIS will issue a notice of intent to 
terminate the participation of a regional center in the pilot program if 
a regional center fails to submit the required information or upon a 
determination that the regional center no longer serves the purpose of 
promoting economic growth, including increased export sales, improved 
regional

[[Page 108]]

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 30 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 USCIS 
determines that the regional center's participation in the Pilot Program 
should be terminated, USCIS shall notify the regional center of the 
decision and of the reasons for termination. As provided in 8 CFR 103.3, 
the regional center may appeal the decision to USCIS within 30 days 
after the service of notice.
    (7) Requirements for alien entrepreneurs. An alien seeking an 
immigrant visa as an alien entrepreneur under the Immigrant Investor 
Pilot Program must demonstrate that his or her qualifying investment is 
within a regional center approved pursuant to paragraph (m)(4) of this 
section and that such investment will create jobs indirectly through 
revenues generated from increased exports resulting from the new 
commercial enterprise.
    (i) Exports. For purposes of paragraph (m) of this section, the term 
``exports'' means services or goods which are produced directly or 
indirectly through revenues generated from a new commercial enterprise 
and which are transported out of the United States;
    (ii) Indirect job creation. To show that 10 or more jobs are 
actually created indirectly by the business, reasonable methodologies 
may be used. Such methodologies may include multiplier tables, 
feasibility studies, analyses of foreign and domestic markets for the 
goods or services to be exported, and other economically or 
statistically valid forecasting devices which indicate the likelihood 
that the business will result in increased employment.
    (8) Time for submission of petitions for classification as an alien 
entrepreneur under the Immigrant Investor Pilot Program. Commencing on 
October 1, 1993, petitions will be accepted for filing and adjudicated 
in accordance with the provisions of this section if the alien 
entrepreneur has invested or is actively in the process of investing 
within a regional center which has been approved by the Service for 
participation in the Pilot Program.
    (9) Effect of termination of approval of regional center to 
participate in the Immigrant Investor Pilot Program. Upon termination of 
approval of a regional center to participate in the Immigrant Investor 
Pilot Program, the director shall send a formal written notice to any 
alien within the regional center who has been granted lawful permanent 
residence on a conditional basis under the Pilot Program, and who has 
not yet removed the conditional basis of such lawful permanent 
residence, of the termination of the alien's permanent resident status, 
unless the alien can establish continued eligibility for alien 
entrepreneur classification under section 203(b)(5) of the Act.

[56 FR 60910, Nov. 29, 1991, as amended at 57 FR 1860, Jan. 16, 1992; 58 
FR 44608, 44609, Aug. 24, 1993; 74 FR 26937, June 5, 2009; 75 FR 58990, 
Sept. 24, 2010; 76 FR 53782, Aug. 29, 2011]



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  [Reserved]



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.

[[Page 109]]

    (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 in accordance with the 
instructions on the form.
    (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, in accordance with the instructions on the form, 
regardless of the status of that spouse or child in the United States. 
The application must be supported by evidence that the principal alien 
has been granted special immigrant status under section 101(a)(27)(K) of 
the Act.
    (3) Revocation of derivative status. The termination of special 
immigrant status for a person who was the principal applicant shall 
result in termination of the special immigrant status of a spouse or 
child whose status was based on the special immigrant application of the 
principal.
    (d) Documents which must be submitted in support of the petition. 
(1) A petition to classify an immigrant as a special immigrant under 
section 101(a)(27)(K) of the Act must be accompanied by the following:
    (i) Certified proof of reenlistment (after 6 years of active duty 
service), or certification of past active duty status of 12 years, 
issued by the authorizing official of the executive department in which 
the applicant serves or has served, which certifies that the applicant 
has the required honorable active duty service and commitment. The 
authorizing official need not be at a level above the ``local command''. 
The certification must be submitted with Form I-360, Petition for 
Amerasian, Widow(er), or Special Immigrant; and
    (ii) Birth certificate of the applicant establishing that the 
applicant is a national of an independent state which maintains a treaty 
or agreement allowing nationals of that state to enlist in the United 
States Armed Forces each year.

[[Page 110]]

    (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; 
74 FR 26937, June 5, 2009]



Sec. 204.10  [Reserved]



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. 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.
    (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;

[[Page 111]]

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

[58 FR 42850, Aug. 12, 1993, as amended at 74 FR 26937, June 5, 2009]



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

[[Page 112]]

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

[[Page 113]]

applies to all petitions that were pending adjudication as of November 
12, 1999 before a Service Center, before the associate Commissioner for 
Examinations, or before a Federal court. Petitioners whose petitions 
were pending on November 12, 1999, will not be required to submit a new 
petition, but may be required to submit supplemental evidence noted in 
paragraph (c) of this section. The requirement that supplemental 
evidence be issued and dated within 6 months prior to the date on which 
the petition is filed is not applicable to petitions that were pending 
as of November 12, 1999. If the case was pending before the Associate 
Commissioner for Examinations or a Federal court on November 12, 1999, 
the petitioner should ask for a remand to the proper Service Center for 
consideration of this new evidence.
    (3) Petitions denied on or after November 12, 1999. The Service 
Center or the Associate Commissioner for Examinations shall reopen any 
petition affected by the provision of section 203(b)(2)(B)(ii) of the 
Act that the Service denied on or after November 12, 1999, but prior to 
the effective date of this rule.
    (4) Petitions filed prior to November 1, 1998. For petitions filed 
prior to November 1, 1998, and still pending as of November 12, 1999, 
the Service will approve a national interest waiver provided the 
beneficiary fulfills the evidence requirements of paragraph (c) of this 
section. Alien physicians that are beneficiaries of pre-November 1, 
1998, petitions are only required to work full-time as a physician 
practicing clinical medicine for an aggregate of 3 years, rather than 5 
years, not including time served in J-1 nonimmigrant status, prior to 
the physician either adjusting status under section 245 of the Act or 
receiving a visa issued under section 204(b) of the Act. The physician 
must complete the aggregate of 3 years of medical service within the 4-
year period beginning on the date of the approval of the petition, if 
the physician already has authorization to accept employment (other than 
as a J-1 exchange alien). If the physician does not already have 
authorization to accept employment, the physician must perform the 
service within the 4-year period beginning the date the Service issues 
the necessary employment authorization document.
    (5) Petitions filed and approved before November 12, 1999. An alien 
physician who obtained approval of a second preference employment-based 
visa petition and a national interest waiver before November 12, 1999, 
is not subject to the service requirements imposed in section 
203(b)(2)(B)(ii) of the Act. If the physician obtained under section 
214(1) of the Act a waiver of the foreign residence requirement imposed 
under section 212(e) of the Act, he or she must comply with the 
requirements of section 214(1) of the Act in order to continue to have 
the benefit of that waiver.
    (6) Petitions denied prior to November 12, 1999. If a prior Service 
decision denying a national interest waiver under section 203(b)(2)(B) 
of the Act became administratively final before November 12, 1999, an 
alien physician who believes that he or she is eligible for the waiver 
under the provisions of section 203(b)(2)(B)(ii) of the Act may file a 
new Form I-140 petition accompanied by the evidence required in 
paragraph (c) of this section. The Service must deny any motion to 
reopen or reconsider a decision denying an immigrant visa petition if 
the decision became final before November 12, 1999, without prejudice to 
the filing of a new visa petition with a national interest waiver 
request that comports with section 203(b)(2)(B)(ii) of the Act.
    (e) May physicians file adjustment of status applications? Upon 
approval of a second preference employment-based immigrant petition, 
Form I-140, and national interest waiver based on a full-time clinical 
practice in a shortage area or areas of the United States, an alien 
physician may submit Form I-485, Application to Register Permanent 
Residence or Adjust Status, to the appropriate Service Center. The 
Service will not approve the alien physician's application for 
adjustment of status 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.

[[Page 114]]

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

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



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

[[Page 115]]

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.
    (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, as amended at 74 FR 26937, June 5, 2009]

Subpart B [Reserved]



         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

[[Page 116]]

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 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

[[Page 117]]

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 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

[[Page 118]]

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 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

[[Page 119]]

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 1.2, 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 (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.

[72 FR 56854, Oct. 4, 2007, as amended at 76 FR 53782, Aug. 29, 2011]



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

[[Page 120]]

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
    (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:

[[Page 121]]

    (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 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

[[Page 122]]

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 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

[[Page 123]]

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 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

[[Page 124]]

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 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

[[Page 125]]

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 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 103.16, 
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.

[72 FR 56854, Oct. 4, 2007, as amended at 76 FR 53782, Aug. 29, 2011]



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

[[Page 126]]

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), 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.

[[Page 127]]

    (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 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

[[Page 128]]

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 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:

[[Page 129]]

    (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 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

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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 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.

[[Page 131]]

    (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.
    (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

[[Page 132]]

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 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.

[[Page 133]]

    (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 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:

[[Page 134]]

    (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 (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

[[Page 135]]

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 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

[[Page 136]]

    (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 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.

[[Page 137]]

    (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 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.

[[Page 138]]



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 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

[[Page 139]]

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

[[Page 140]]

    (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]



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 processing.
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.

[[Page 141]]

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. 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 submitting an application, including biometric 
information, in accordance with the form instructions, as defined in 8 
CFR 1.2.
    (b) Firmly resettled. Any applicant (other than an applicant for 
derivative refugee status under 8 CFR 207.7) who has become firmly 
resettled in a foreign country is not eligible for refugee status under 
this chapter I. A refugee is considered to be ``firmly resettled'' if he 
or she has been offered resident status, citizenship, or some other type 
of permanent resettlement by a country other than the United States and 
has traveled to and entered that country as a consequence of his or her 
flight from persecution. Any applicant who claims not to be firmly 
resettled in a foreign country must establish that the conditions of his 
or 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 right to 
property ownership, travel documentation, education, public welfare, and 
citizenship.
    (c) 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) or 203(b) of the Act, 
and for whom a visa number is now available, shall be advised of such 
eligibility but is not required to apply.

[76 FR 53782, Aug. 29, 2011]



Sec. 207.2  Applicant processing.

    (a) Interview. Each applicant 14 years old or older shall appear in 
person before an immigration officer for inquiry under oath to determine 
his or her eligibility for admission as a refugee.
    (b) Medical examination. Each applicant shall submit to a medical 
examination as required by sections 221(d) and 232(b) of the Act.
    (c) Sponsorship. Each applicant must be sponsored by a responsible 
person or organization. Transportation for the applicant from his or her 
present abode to the place of resettlement in the United States must be 
guaranteed by the sponsor.

[76 FR 53783, Aug. 29, 2011]



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.
    (b) Filing requirements. An applicant may request a waiver by 
submitting an application for a waiver in accordance with the form 
instructions. 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.

[76 FR 53783, Aug. 29, 2011]

[[Page 142]]



Sec. 207.4  Approved application.

    Approval of a refugee application by USCIS outside the United States 
authorizes CBP to admit the applicant conditionally as a refugee upon 
arrival at the port within four months of the date the refugee 
application was approved. There is no appeal from a denial of refugee 
status under this chapter.

[76 FR 53783, Aug. 29, 2011]



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 USCIS 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 Secretary 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.

[76 FR 53783, Aug. 29, 2011]



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 Secretary 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

[[Page 143]]

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 or her spouse and unmarried, minor child(ren) (whether 
the spouse and children are inside or outside the United States) by 
filing a separate Request for Refugee/Asylee Relative in accordance with 
the form instructions for each qualifying family member. The request may 
only be filed by the principal refugee. Family members who derived their 
refugee status are not eligible to request derivative benefits on behalf 
of their spouse and child(ren). A separate Request for Refugee/Asylee 
Relative must be filed for each qualifying family member within two 
years of the refugee's admission to the United States unless USCIS 
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 Request for Refugee/Asylee Relative has been 
approved, provided that the relationship of spouse or child continues to 
exist and approval of the Request for Refugee/Asylee Relative has not 
been subsequently revoked. There is no fee for this benefit request.
    (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.
    (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 Request for 
Refugee/Asylee Relative is approved, USCIS will notify the refugee of 
such approval. 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 Request for 
Refugee/Asylee Relative is approved, USCIS will notify the refugee of 
such approval. USCIS will send the approved request to the Department of 
State for transmission to the U.S. Embassy or Consulate having 
jurisdiction over the area in which the refugee's spouse or child is 
located.
    (3) Benefits. The approval of the Request for Refugee/Asylee 
Relative will 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 Request for Refugee/Asylee Relative 
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. For a derivative inside or arriving in the United States, USCIS 
will issue a document reflecting the derivative's current status as a 
refugee to demonstrate employment authorization, or the derivative may 
apply, under 8 CFR 274a.12(a), for evidence of employment authorization.
    (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, as amended at 76 FR 53783, Aug. 29, 2011; 76 
FR 73436, Nov. 29, 2011]



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

[[Page 144]]

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 will 
be terminated by USCIS if the alien was not a refugee within the meaning 
of section 101(a)(42) of the Act at the time of admission. USCIS will 
notify the alien in writing of its intent to terminate the alien's 
refugee status. The alien will have 30 days from the date notice is 
served upon him or her in accordance with 8 CFR 103.8, 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 I from the 
termination of refugee status by USCIS. Upon termination of refugee 
status, USCIS will process the alien under sections 235, 240, and 241 of 
the Act.

[76 FR 53784, Aug. 29, 2011]



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 DHS.
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. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of 
Public Law 110-229; 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. (1) General. Unless otherwise provided in this 
chapter I, this subpart A 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 I, 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 referred to as ``asylum applications.'' The provisions of this part 
208 shall not affect the finality or validity of any decision made by a 
district director, an immigration judge, or

[[Page 145]]

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 208 
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)(6) and (c)(7) of the Act, and 8 CFR 
parts 103 and 1003, as applicable.
    (2) Commonwealth of the Northern Mariana Islands. The provisions of 
this subpart A shall not apply prior to January 1, 2015, to an alien 
physically present in or arriving in the Commonwealth of the Northern 
Mariana Islands seeking to apply for asylum. No application for asylum 
may be filed prior to January 1, 2015, pursuant to section 208 of the 
Act by an alien physically present in or arriving in the Commonwealth of 
the Northern Mariana Islands. Effective on the transition program 
effective date, the provisions of this subpart A shall apply to aliens 
physically present in or arriving in the CNMI with respect to 
withholding of removal under section 241(b)(3) of the Act and 
withholding and deferral of removal under the Convention Against 
Torture.
    (b) Training of asylum officers. The Associate Director of USCIS 
Refugee, Asylum, and International Operations (RAIO) 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 Associate Director of 
USCIS Refugee, Asylum, and International Operations (RAIO) shall also, 
in cooperation with the Department of State and other appropriate 
sources, compile and disseminate to asylum officers information 
concerning the persecution of persons in other countries on account of 
race, religion, nationality, membership in a particular social group, or 
political opinion, torture of persons in other countries, and other 
information relevant to asylum determinations, and shall maintain a 
documentation center with information on human rights conditions.

[64 FR 8487, Feb. 19, 1999, as amended at 74 FR 55736, Oct. 28, 2009; 76 
FR 53784, Aug. 29, 2011]



Sec. 208.2  Jurisdiction.

    (a) Refugee, Asylum, and International Operations (RAIO) Except as 
provided in paragraph (b) or (c) of this section, RAIO 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. RAIO 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;

[[Page 146]]

    (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 Program under section 217 of the Act, except that if such an 
alien is an applicant for admission to the Commonwealth of the Northern 
Mariana Islands, then he or she shall not be eligible for asylum prior 
to January 1, 2015;
    (iv) An alien who was admitted to the United States pursuant to the 
Visa Waiver Program under section 217 of the Act and has remained longer 
than authorized or has otherwise violated his or her immigration status, 
except that if such an alien was admitted to the Commonwealth of the 
Northern Mariana Islands, then he or she shall not be eligible for 
asylum in the Commonwealth of the Northern Mariana Islands prior to 
January 1, 2015;
    (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);
    (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);
    (vii) An alien who is an applicant for admission to Guam or the 
Commonwealth of the Northern Mariana Islands pursuant to the Guam-CNMI 
Visa Waiver Program under section 212(l) of the Act, except that if such 
an alien is an applicant for admission to the Commonwealth of the 
Northern Mariana Islands, then he or she shall not be eligible for 
asylum prior to January 1, 2015; or
    (viii) An alien who was admitted to Guam or the Commonwealth of the 
Northern Mariana Islands pursuant to the Guam-CNMI Visa Waiver Program 
under section 212(l) of the Act and has remained longer than authorized 
or has otherwise violated his or her immigration status, except that if 
such an alien was admitted to the Commonwealth of the Northern Mariana 
Islands, then he or she shall not be eligible for asylum in the 
Commonwealth of the Northern Mariana Islands prior to January 1, 2015.
    (2) Withholding of removal applications only. After Form I-863, 
Notice of Referral to Immigration Judge, has been filed with the 
Immigration Court, an immigration judge shall have exclusive 
jurisdiction over any application for withholding of removal filed by:
    (i) An alien who is the subject of a reinstated removal order 
pursuant to section 241(a)(5) of the Act; or
    (ii) An alien who has been issued an administrative removal order 
pursuant to section 238 of the Act as an alien convicted of committing 
an aggravated felony.
    (3) Rules of procedure--(i)General. Except as provided in this 
section, proceedings falling under the jurisdiction of the immigration 
judge pursuant to paragraph (c)(1) or (c)(2) of this section shall be 
conducted in accordance with the same rules of procedure as proceedings 
conducted under 8 CFR part 240, subpart A. The scope of review in 
proceedings conducted pursuant to paragraph (c)(1) of this section shall 
be limited to a determination of whether the alien is eligible for 
asylum or withholding or deferral of removal, and whether asylum shall 
be granted in the exercise of discretion. The scope of review in 
proceedings conducted pursuant to paragraph (c)(2) of this section 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

[[Page 147]]

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, as amended at 74 FR 55736, Oct. 28, 2009; 76 
FR 53784, Aug. 29, 2011]



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 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.

[[Page 148]]

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-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. For aliens present in or arriving in the Commonwealth of the 
Northern Mariana Islands, the 1-year period shall be calculated from 
either January 1, 2015, or from the date of the alien's last arrival in 
the United States (including the Commonwealth of the Northern Mariana 
Islands), whichever is later. No period of physical presence

[[Page 149]]

in the Commonwealth of the Northern Mariana Islands prior to January 1, 
2015, shall count toward the 1-year period. After November 28, 2009, any 
travel to the Commonwealth of the Northern Mariana Islands from any 
other State shall not re-start the calculation of the 1-year period.
    (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 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

[[Page 150]]

    (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. Form I-589, Application for Asylum and 
Withholding of Removal, must be filed in accordance with the 
instructions on 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; 74 FR 26937, June 5, 2009; 74 FR 55737, Oct. 28, 2009]



Sec. 208.5  Special duties toward aliens in custody of DHS.

    (a) General. When an alien in the custody of DHS 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, DHS 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 8 CFR 208.30 or a reasonable fear determination 
pursuant to 8 CFR 208.31. Although DHS 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 8 CFR 208.30 or 8 CFR 208.31, DHS 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. Furthermore, except as provided in paragraph (c) 
of this section, an alien physically present in or arriving in the 
Commonwealth of the Northern Mariana Islands shall not be excluded, 
deported, or removed before a decision is rendered on his or her 
application for withholding of removal pursuant to section 241(b)(3) of 
the Act and withholding of removal under the Convention Against Torture. 
No application for asylum may be filed prior to January 1, 2015, under 
section 208 of the Act by an alien physically present in or arriving in 
the Commonwealth of the Northern Mariana Islands.
    (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 in accordance with the instructions on the form. The DHS may 
extend the 10-day filing period for good cause. Once the application has 
been filed, the DHS shall serve Form I-

[[Page 151]]

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.
    (iii) An alien crewmember physically present in or arriving in the 
Commonwealth of the Northern Mariana Islands can request withholding of 
removal pursuant to section 241(b)(3) of the Act and withholding of 
removal under the Convention Against Torture. However, such an alien 
crewmember is not eligible to request asylum pursuant to section 208 of 
the Act prior to January 1, 2015.
    (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 Secretary 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; 74 FR 26937, June 5, 2009; 74 FR 55737, Oct. 28, 
2009; 76 FR 53784, Aug. 29, 2011]



Sec. 208.6  Disclosure to third parties.

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

[[Page 152]]

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 request employment 
authorization 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 USCIS 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.
    (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 USCIS, 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 request employment authorization in accordance with the form 
instructions. USCIS may require that an alien establish that he or she 
has continued to pursue an 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 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

[[Page 153]]

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; 76 
FR 53784, Aug. 29, 2011]



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.
    (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. 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

[[Page 154]]

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; 76 
FR 53784, Aug. 29, 2011]



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

failure to follow requirements for fingerprint processing.

    Failure to appear for a scheduled interview without prior 
authorization may result in dismissal of the application or waiver of 
the right to an interview. Failure to comply with fingerprint processing 
requirements without good cause may result in dismissal of the 
application or waiver of the right to an adjudication by an asylum 
officer. Failure to appear shall be excused if the notice of the 
interview or fingerprint appointment was not mailed to the applicant's 
current address and such address had been provided to the USCIS 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, as amended at 76 FR 53784, Aug. 29, 2011]



Sec. 208.11  Comments from the Department of State.

    (a) U.S. Citizenship and Immigration Services (USCIS) may request, 
at its discretion, specific comments from the Department of State 
regarding individual cases or types of claims under consideration, or 
such other information as USCIS deems appropriate.
    (b) With respect to any asylum application, the Department of State 
may provide, at its discretion, to USCIS:
    (1) Detailed country conditions information relevant to eligibility 
for asylum or withholding of removal;
    (2) 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;
    (3) Information about whether persons who are similarly situated to 
the applicant are persecuted or tortured in the applicant's country of 
nationality or habitual residence and the frequency of such persecution 
or torture; or
    (4) Such other information as it deems relevant.
    (c) Any comments received pursuant to paragraph (b) 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.

[74 FR 15369, Apr. 6, 2009]



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,

[[Page 155]]

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, other USCIS 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; 76 FR 53784, Aug. 29, 2011]



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 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

[[Page 156]]

or unable to return to the country arising out of the severity of the 
past persecution; or
    (B) The applicant has established that there is a reasonable 
possibility that he or she may suffer other serious harm upon removal to 
that country.
    (2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
    (A) The applicant has a fear of persecution in his or her country of 
nationality or, if stateless, in his or her country of last habitual 
residence, on account of race, religion, nationality, membership in a 
particular social group, or political opinion;
    (B) There is a reasonable possibility of suffering such persecution 
if he or she were to return to that country; and
    (C) He or she is unable or unwilling to return to, or avail himself 
or herself of the protection of, that country because of such fear.
    (ii) An applicant does not have a well-founded fear of persecution 
if the applicant could avoid persecution by relocating to another part 
of the applicant's country of nationality or, if stateless, another part 
of the applicant's country of last habitual residence, if under all the 
circumstances it would be reasonable to expect the applicant to do so.
    (iii) In evaluating whether the applicant has sustained the burden 
of proving that he or she has a well-founded fear of persecution, the 
asylum officer or immigration judge shall not require the applicant to 
provide evidence that there is a reasonable possibility he or she would 
be singled out individually for persecution if:
    (A) The applicant establishes that there is a pattern or practice in 
his or her country of nationality or, if stateless, in his or her 
country of last habitual residence, of persecution of a group of persons 
similarly situated to the applicant on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; and
    (B) The applicant establishes his or her own inclusion in, and 
identification with, such group of persons such that his or her fear of 
persecution upon return is reasonable.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of 
this section, adjudicators should consider, but are not limited to 
considering, whether the applicant would face other serious harm in the 
place of suggested relocation; any ongoing civil strife within the 
country; administrative, economic, or judicial infrastructure; 
geographical limitations; and social and cultural constraints, such as 
age, gender, health, and social and familial ties. Those factors may, or 
may not, be relevant, depending on all the circumstances of the case, 
and are not necessarily determinative of whether it would be reasonable 
for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it 
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:

[[Page 157]]

    (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 RAIO, unless otherwise prohibited in Sec. 
208.13(c), an asylum officer may grant, in the exercise of his or her 
discretion, asylum to an applicant who qualifies as a refugee under 
section 101(a)(42) of the Act, and whose identity has been checked 
pursuant to section 208(d)(5)(A)(i) of the Act.
    (c) Denial, referral, or dismissal by an asylum officer. If the 
asylum officer does not grant asylum to an applicant after an interview 
conducted in accordance with Sec. 208.9, or if, as provided in Sec. 
208.10, the applicant is deemed to have waived his or her right to an 
interview or an adjudication by an asylum officer, the asylum officer 
shall deny, refer, or dismiss the application, as follows:
    (1) Inadmissible or deportable aliens. Except as provided in 
paragraph (c)(4) of this section, in the case of an applicant who 
appears to be inadmissible or deportable under section 212(a) or 237(a) 
of the Act, the asylum officer shall refer the application to an 
immigration judge, together with the appropriate charging document, for 
adjudication in removal proceedings (or, where charging documents may 
not be issued, shall dismiss the application).
    (2) Alien in valid status. In the case of an applicant who is 
maintaining valid immigrant, nonimmigrant, or Temporary Protected Status 
at the time the application is decided, the asylum officer shall deny 
the application for asylum.
    (3) Alien with valid parole. If an applicant has been paroled into 
the United States and the parole has not expired or been terminated by 
the Service, the asylum officer shall deny the application for asylum.
    (4) Alien paroled into the United States whose parole has expired or 
is terminated--(i) Alien paroled prior to April 1, 1997, or with advance 
authorization for parole. In the case of an applicant who was paroled 
into the United States prior to April 1, 1997, or who, prior to 
departure from the United States, had received an advance authorization 
for parole, the asylum officer shall refer the application, together 
with the appropriate charging documents, to an immigration judge for 
adjudication in removal proceedings if the parole has expired, the 
Service has terminated parole, or the Service is terminating parole 
through issuance of the charging documents, pursuant to Sec. 
212.5(d)(2)(i) of this chapter.
    (ii) Alien paroled on or after April 1, 1997, without advance 
authorization for parole. In the case of an applicant who is an arriving 
alien or is otherwise subject to removal under Sec. 235.3(b) of this 
chapter, and was paroled into the United States on or after April 1, 
1997, without advance authorization for parole prior to departure from 
the United

[[Page 158]]

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.
    (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; 76 FR 53784, Aug. 29, 
2011]



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

[[Page 159]]

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 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:

[[Page 160]]

    (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.
    (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

[[Page 161]]

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 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

[[Page 162]]

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 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.

[[Page 163]]

    (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 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.

[[Page 164]]

    (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
    (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,

[[Page 165]]

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 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

[[Page 166]]

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 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 benefit request, the asylee may request accompanying or 
following-to-join benefits for his or her spouse or child, by filing for 
each qualifying family member a Request for Refugee/Asylee Relative, 
with supporting evidence, and in accordance with the form instructions, 
regardless of the status of that spouse or child in the United States. A 
separate Request for Refugee/Asylee Relative must be filed by the asylee 
for each qualifying family member within two years of the date in which 
he or she was granted asylum status, unless it is determined by USCIS 
that this period should be extended for humanitarian reasons. Upon 
approval of the Request for Refugee/Asylee Relative, USCIS will notify 
the asylee of such approval. Employment will be authorized incident to 
status. To demonstrate employment authorization, USCIS will issue a 
document reflecting the derivative's current status as an asylee, or the 
derivative may apply, under 8 CFR 274a.12(a), for employment 
authorization. The approval of the Request for Refugee/Asylee Relative 
will 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 Request for Refugee/Asylee Relative will 
cease to confer immigration benefits

[[Page 167]]

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 or 
her spouse or child(ren) by filing a separate Request for Refugee/Asylee 
Relative for each qualifying family member in accordance with the form 
instructions. A separate Request for Refugee/Asylee Relative for each 
qualifying family member must be filed within two years of the date in 
which the asylee was granted asylum, unless USCIS determines that the 
filing period should be extended for humanitarian reasons. When the 
Request for Refugee/Asylee Relative is approved, USCIS will notify the 
asylee of such approval. USCIS also will send the approved request to 
the Department of State for transmission to the U.S. Embassy or 
Consulate having jurisdiction over the area in which the asylee's spouse 
or child is located. The approval of the Request for Refugee/Asylee 
Relative will 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 Request for Refugee/Asylee Relative 
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; 76 FR 53784, Aug. 29, 2011; 76 FR 
73476, Nov. 29, 2011]



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.

    (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

[[Page 168]]

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).
    (1) The alien is no longer entitled to withholding of deportation or 
removal because, owing to a fundamental change in circumstances relating 
to the original claim, the alien's life or freedom no longer would be 
threatened on account of race, religion, nationality, membership in a 
particular social group, or political opinion in the country from which 
deportation or removal was withheld.
    (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 8 CFR 1003.2 and 8 CFR 1003.23 for the purpose of 
terminating a grant of asylum, or a withholding of deportation or 
removal. In such a reopened proceeding, USCIS 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 USCIS at any time after the 
alien has been provided a notice of intent to terminate by USCIS. 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; 76 FR 
53785, Aug. 29, 2011]

[[Page 169]]



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 B apply to aliens 
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to 
section 235(b)(1)(B) of the Act, DHS 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 B, 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. Prior to January 1, 2015, an alien present in or arriving in 
the Commonwealth of the Northern Mariana Islands is ineligible to apply 
for asylum and may only establish eligibility for withholding of removal 
pursuant to section 241(b)(3) of the Act or withholding or deferral of 
removal under the Convention Against Torture.
    (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.
    (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

[[Page 170]]

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 section 208 of the Act or for withholding 
of removal under section 241(b)(3) of the Act. However, prior to January 
1, 2015, in the case of an alien physically present in or arriving in 
the Commonwealth of the Northern Mariana Islands, the officer may only 
find a credible fear of persecution if there is a significant 
possibility that the alien can establish eligibility for withholding of 
removal pursuant to 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

[[Page 171]]

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;
    (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,

[[Page 172]]

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 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; 74 
FR 55737, Oct. 28, 2009; 76 FR 53785, Aug. 29, 2011]



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. USCIS 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,

[[Page 173]]

religion, nationality, membership in a particular social group or 
political opinion, or a reasonable possibility that he or she would be 
tortured in the country of removal. For purposes of the screening 
determination, the bars to eligibility for withholding of removal under 
section 241(b)(3)(B) of the Act shall not be considered.
    (d) Authority. Asylum officers conducting screening determinations 
under this section shall have the authority described in Sec. 208.9(c).
    (e) Referral to Immigration Judge. If an asylum officer determines 
that an alien described in this section has a reasonable fear of 
persecution or torture, the officer shall so inform the alien and issue 
a Form I-863, Notice of Referral to the Immigration Judge, for full 
consideration of the request for withholding of removal only. Such cases 
shall be adjudicated by the immigration judge in accordance with the 
provisions of Sec. 208.16. Appeal of the immigration judge's decision 
shall lie to the Board of Immigration Appeals.
    (f) Removal of aliens with no reasonable fear of persecution or 
torture. If the asylum officer determines that the alien has not 
established a reasonable fear of persecution or torture, the asylum 
officer shall inform the alien in writing of the decision and shall 
inquire whether the alien wishes to have an immigration judge review the 
negative decision, using Form I-898, Record of Negative Reasonable Fear 
Finding and Request for Review by Immigration Judge, on which the alien 
shall indicate whether he or she desires such review.
    (g) Review by immigration judge. The asylum officer's negative 
decision regarding reasonable fear shall be subject to review by an 
immigration judge upon the alien's request. If the alien requests such 
review, the asylum officer shall serve him or her with a Form I-863. The 
record of determination, including copies of the Form I-863, the asylum 
officer's notes, the summary of the material facts, and other materials 
upon which the determination was based shall be provided to the 
immigration judge with the negative determination. In the absence of 
exceptional circumstances, such review shall be conducted by the 
immigration judge within 10 days of the filing of the Form I-863 with 
the immigration court. Upon review of the asylum officer's negative 
reasonable fear determination:
    (1) If the immigration judge concurs with the asylum officer's 
determination that the alien does not have a reasonable fear of 
persecution or torture, the case shall be returned to the Service for 
removal of the alien. No appeal shall lie from the immigration judge's 
decision.
    (2) If the immigration judge finds that the alien has a reasonable 
fear of persecution or torture, the alien may submit Form I-589, 
Application for Asylum and Withholding of Removal.
    (i) The immigration judge shall consider only the alien's 
application for withholding of removal under Sec. 208.16 and shall 
determine whether the alien's 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; 76 FR 53785, 
Aug. 29, 2011]



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; 
Title VII of Public Law 110-229; 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.

[[Page 174]]

    (a) Eligibility. (1) Every alien in the United States who is 
classified as a refugee under 8 CFR part 207, whose status has not been 
terminated, is required to apply to USCIS one year after entry in order 
for USCIS to determine his or her admissibility under section 212 of the 
Act, without regard to paragraphs (4), (5), and (7)(A) of section 212(a) 
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 will be notified of the requirement to submit an application for 
permanent residence one year after entry. An application for the 
benefits of section 209(a) of the Act must be submitted along with the 
biometrics required by 8 CFR 103.16 and in accordance with the 
applicable form instructions.
    (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.
    (d) Interview. USCIS 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. USCIS will notify the applicant in writing of the 
decision on his or her application. There is no appeal of a denial, but 
USCIS will notify an applicant of the right to renew the request for 
permanent residence in removal proceedings under section 240 of the Act. 
If the applicant is found to be admissible for permanent residence under 
section 209(a) of the Act, USCIS will approve the application, admit the 
applicant for lawful permanent residence as of the date of the alien's 
arrival in the United States, and issue proof of such status.
    (f) Inadmissible Alien. An applicant who is inadmissible to the 
United States as described in 8 CFR 209.1(a)(1), may, under section 
209(c) of the Act, have the grounds of inadmissibility waived by USCIS 
except for those grounds under sections 212(a)(2)(C) and 212(a)(3)(A), 
(B), (C), or (E) of the Act for humanitarian purposes, to ensure family 
unity, or when it is otherwise in the public interest. An application 
for the waiver may be requested with the application for adjustment, in 
accordance with the form instructions.

[63 FR 30109, June 3, 1998, as amended at 76 FR 53785, Aug. 29, 2011]



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) or 
(a)(3) of this section, the status of any alien who has been granted 
asylum in the United States may be adjusted by USCIS 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.
    (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

[[Page 175]]

circumstances in the foreign state where he or she feared persecution, 
may also have his or her status adjusted by USCIS to that of an alien 
lawfully admitted for permanent residence even if he or she is no longer 
able to demonstrate that he or she continues to be a refugee within the 
meaning of section 10l(a)(42) of the Act, or to be a spouse or child of 
such a refugee or to have been physically present in the United States 
for at least one year after being granted asylum, so long as he or she 
is able to meet the requirements noted in paragraphs (a)(1)(i), (iv), 
and (v) of this section.
    (3) No alien arriving in or physically present in the Commonwealth 
of the Northern Mariana Islands may apply to adjust status under section 
209(b) of the Act in the Commonwealth of the Northern Mariana Islands 
prior to January 1, 2015.

[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; 74 FR 55737, 
Oct. 28, 2009; 76 FR 53785, Aug. 29, 2011]



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

[[Page 176]]

accept and process applications for legalization or special agricultural 
worker status, under the authority of the district directors in whose 
districts such offices are located.
    (j) Man-day. The term man-day means the performance during any day 
of not less than one hour of qualifying agricultural employment for 
wages paid. If employment records relating to an alien applicant show 
only piece rate units completed, then any day in which piece rate work 
was performed shall be counted as a man-day. Work for more than one 
employer in a single day shall be counted as no more than one man-day 
for the purposes of this part.
    (k) Nonfrivolous application. A complete application will be 
determined to be nonfrivolous at the time the applicant appears for an 
interview at a legalization or overseas processing office if it 
contains:
    (1) Evidence or information which shows on its face that the 
applicant is admissible to the United States or, if inadmissible, that 
the applicable grounds of excludability may be waived under the 
provisions of section 210(c)(2)(i) of the Act,
    (2) Evidence or information which shows on its face that the 
applicant performed at least 90 man-days of qualifying employment in 
seasonal agricultural services during the twelve-month period from May 
1, 1985 through May 1, 1986, and
    (3) Documentation which establishes a reasonable inference of the 
performance of the seasonal agricultural services claimed by the 
applicant.
    (l) Overseas processing office. Overseas processing offices are 
offices outside the United States at which applications for adjustment 
to temporary resident status as a special agricultural worker are 
received, processed, referred to the Service for adjudication or denied. 
The Secretary of State has designated for this purpose the United States 
Embassy at Mexico City, and in all other countries the immigrant visa 
issuing of office at which the alien, if an applicant for an immigrant 
visa, would make such application. Consular officers assigned to such 
offices are authorized to recommend approval of an application for 
special agricultural worker status to the Service if the alien 
establishes eligibility for approval and to deny such an application if 
the alien fails to establish eligibility for approval or is found to 
have committed fraud or misrepresented facts in the application process.
    (m) Preliminary application. A preliminary application is defined as 
a fully completed and signed application with fee and photographs which 
contains specific information concerning the performance of qualifying 
employment 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.

[[Page 177]]

    (q) Regional processing facility. Regional Processing Facilities are 
Service offices established in each of the four Service regions to 
adjudicate, under the authority of the Directors of the Regional 
Processing Facilities, applications for adjustment of status under 
sections 210 and 245a of the Act.
    (r) Service. The Immigration and Naturalization Service (INS).
    (s) Special agricultural worker. Any individual granted temporary 
resident status in the Group 1 or Group 2 classification or permanent 
resident status under section 210(a) of the Act.

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



Sec. 210.2  Application for temporary resident status.

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

[[Page 178]]

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

[[Page 179]]

be considered as prospective applicants for the Group 2 classification. 
However, such applicants may later submit a complete application for 
either the Group 1 or Group 2 classification to a legalization office. 
Preliminary applicants are not required to pay the application fee a 
second time when submitting the complete application to a legalization 
office.
    (iii) Conditions of admission. Aliens who present a preliminary 
application shall be admitted to the United States for a period of 
ninety (90) days with authorization to accept employment, if they are 
determined by an immigration officer to be admissible to the United 
States. Such aliens are required, within that ninety-day period, to 
submit evidence of eligibility which meets the provisions of Sec. 210.3 
of this part; to complete Form FD-258 (Fingerprint Card); to obtain a 
report of medical examination in accordance with Sec. 210.2(d) of this 
part; and to submit to a legalization office a complete application as 
defined at Sec. 210.1(c) of this part. The INS may, for good cause, 
extend the ninety-day period and grant further authorization to accept 
employment in the United States if an alien demonstrates he or she was 
unable to perfect an application within the initial period. If an alien 
described in this paragraph fails to submit a complete application to a 
legalization office within ninety days or within such additional period 
as may have been authorized, his or her application may be denied for 
lack of prosecution, without prejudice.
    (iv) Deportation is not stayed for an alien subject to deportation 
and removal under the INA, notwithstanding a claim to eligibility for 
SAW status, unless that alien has filed a nonfrivolous application.
    (d) Medical examination. An applicant under this part must be 
examined at no expense to the government by a designated civil surgeon 
or, in the case of an applicant abroad, by a physician or clinic 
designated to perform medical examinations of immigrant visa applicants. 
The medical report setting forth the findings concerning the mental and 
physical condition of the applicant shall be incorporated into the 
record. Any applicant certified under paragraph (1), (2), (3), (4), or 
(5) of section 212(a) of the Act may appeal to a Board of Medical 
Officers of the U.S. Public Health Service as provided in section 234 of 
the Act and part 235 of this chapter.
    (e) Limitation on access to information and confidentiality. (1) 
Except for consular officials engaged in the processing of applications 
overseas and employees of a qualified designated entity where an 
application is filed with that entity, no person other than a sworn 
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

[[Page 180]]

under this part including an overseas application may be appealed to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) on 
Form I-694. The appeal with the required fee shall be filed with the 
Regional Processing Facility in accordance with the provisions of Sec. 
103.3(a)(2) of this chapter. An applicant for Group 1 status as defined 
in Sec. 210.1(f) of this part who is determined to be ineligible for 
that status may be classified as a temporary resident under Group 2 as 
defined in Sec. 210.1(g) of this part if otherwise eligible for Group 2 
status. In such a case the applicant shall be notified of the decision 
to accord him or her Group 2 status and to deny Group 1 status. He or 
she is entitled to file an appeal in accordance with the provisions of 
Sec. 103.3(a)(2) of this chapter from that portion of the decision 
denying Group 1 status. In the case of an applicant who is represented 
in the application process in accordance with 8 CFR part 292, the 
applicant's representative shall also receive notification of decision 
specified in this section.
    (g) Motions. In accordance with the provisions of Sec. 103.5(b) of 
this chapter, the director of a regional processing facility or a 
consular officer at an overseas processing office may sua sponte reopen 
any proceeding under this part under his or her jurisdiction and reverse 
any adverse decision in such proceeding when appeal is taken under Sec. 
103.3(a)(2) of this part from such adverse decision; the Associate 
Commissioner, Examinations, and the Chief of the Administrative Appeals 
Unit may sua sponte reopen any proceeding conducted by that unit under 
this part and reconsider any decision rendered in such proceeding. The 
decision must be served on the appealing party within forty-five (45) 
days of receipt of any briefs and/or new evidence, or upon expiration of 
the time allowed for the submission of any briefs. Motions to reopen a 
proceeding or reconsider a decision shall not be considered under this 
part.
    (h) Certifications. The regional processing facility director may, 
in accordance with Sec. 103.4 of this chapter, certify a decision to 
the Associate Commissioner, Examinations when the case involves an 
unusually complex or novel question of law or fact. A consular officer 
assigned to an overseas processing office is authorized to certify a 
decision in the same manner and upon the same basis.

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



Sec. 210.3  Eligibility.

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

[[Page 181]]

that the inference drawn from the evidence is not reasonable.
    (2) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. Original documents will be given greater weight than 
copies. To meet his or her burden of proof, an applicant must provide 
evidence of eligibility apart from his or her own testimony. Analysis of 
evidence submitted will include consideration of the fact that work 
performed by minors and spouses is sometimes credited to a principal 
member of a family.
    (3) Verification. Personal testimony by an applicant which is not 
corroborated, in whole or in part, by other credible evidence (including 
testimony of persons other than the applicant) will not serve to meet an 
applicant's burden of proof. All evidence of identity, qualifying 
employment, admissibility, and eligibility submitted by an applicant for 
adjustment of status under this part will be subject to verification by 
the Service. Failure by an applicant to release information protected by 
the Privacy Act or related laws when such information is essential to 
the proper adjudication of an application may result in denial of the 
benefit sought. The Service may solicit from agricultural producers, 
farm labor contractors, collective bargaining organizations and other 
groups or organizations which maintain records of employment, lists of 
workers against which evidence of qualifying employment can be checked. 
If such corroborating evidence is not available and the evidence 
provided is deemed insufficient, the application may be denied.
    (4) Securing SAW employment records. When a SAW applicant alleges 
that an employer or farm labor contractor refuses to provide him or her 
with records relating to his or her employment and the applicant has 
reason to believe such records exist, the Service shall attempt to 
secure such records. However, prior to any attempt by the Service to 
secure the employment records, the following conditions must be met: a 
SAW application (Form I-700) must have been filed; an interview must 
have been conducted; the applicant's testimony must support credibly his 
or her claim; and, the Service must determine that the application 
cannot be approved in the absence of the employer or farm labor 
contractor records. Provided each of these conditions has been met, and 
after unsuccessful attempts by the Service for voluntary compliance, the 
District Directors shall utilize section 235 of the Immigration and 
Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in 
such cases where the employer or farm labor contractor refuses 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.

[[Page 182]]

    (1) Proof of identity. Evidence to establish identity is listed 
below in descending order of preference:
    (i) Passport;
    (ii) Birth certificate;
    (iii) Any national identity document from a foreign country bearing 
a photo and/or fingerprint (e.g., ``cedula'', ``cartilla'', ``carte 
d'identite,'' etc.);
    (iv) Driver's license or similar document issued by a state if it 
contains a photo;
    (v) Baptismal record or marriage certificate;
    (vi) Affidavits, or
    (vii) Such other documentation which may establish the identity of 
the applicant.
    (2) Assumed names--(i) General. In cases where an applicant claims 
to have met any of the eligibility criteria under an assumed name, the 
applicant has the burden of proving that the applicant was in fact the 
person who used that name.
    (ii) Proof of common identity. The most persuasive evidence is a 
document issued in the assumed name which identifies the applicant by 
photograph, fingerprint or detailed physical description. Other evidence 
which will be considered are affidavit(s) by a person or persons other 
than the applicant, made under oath, which identify the affiant by name 
and address and state the affiant's relationship to the applicant and 
the basis of the affiant's knowledge of the applicant's use of the 
assumed name. Affidavits accompanied by a photograph which has been 
identified by the affiant as the individual known to the affiant under 
the assumed name in question will carry greater weight. Other documents 
showing the assumed name may serve to establish the common identity when 
substantiated by corroborating detail.
    (3) Proof of employment. The applicant may establish qualifying 
employment through government employment records, or records maintained 
by agricultural producers, farm labor contractors, collective bargaining 
organizations and other groups or organizations which maintain records 
of employment, or such other evidence as worker identification issued by 
employers or collective bargaining organizations, union membership cards 
or other union records such as dues receipts or records of the 
applicant's involvement or that of his or her immediate family with 
organizations providing services to farmworkers, or work records such as 
pay stubs, piece work receipts, W-2 Forms or certification of the filing 
of Federal income tax returns on IRS Form 6166, or state verification of 
the filing of state income tax returns. Affidavits may be submitted 
under oath, by agricultural producers, foremen, farm labor contractors, 
union officials, fellow employees, or other persons with specific 
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

[[Page 183]]

membership, state the address where applicant resided during the 
membership period, include the seal of the organization impressed on the 
letter, establish how the author knows the applicant, and the origin of 
the information; and additional documents that could show that the 
applicant was in the United States at a specific time, such as: Money 
order receipts for money sent out of the country; passport entries; 
birth certificates of children born in the United States; bank books 
with dated transactions; letters of correspondence between the applicant 
and another person or organization; Social Security card; Selective 
Service card; automobile license receipts, title, vehicle registration, 
etc.; deeds, mortgages, contracts to which applicant has been a party; 
tax receipts; insurance policies, receipts, or letters; and any other 
document that will show that applicant was in the United States at a 
specific time. For Group 2 eligibility, evidence of performance of the 
required 90 man-days of seasonal agricultural services shall constitute 
evidence of qualifying residence.
    (5) Proof of financial responsibility. Generally, the evidence of 
employment submitted under paragraph (c)(3) of this section will serve 
to demonstrate the alien's financial responsibility. If it appears that 
the applicant may be inadmissible under section 212(a)(15) of the Act, 
he or she may be required to submit documentation showing a history of 
employment without reliance on public cash assistance for all periods of 
residence in the United States.
    (d) Ineligible classes. The following classes of aliens are 
ineligible for temporary residence under this part:
    (1) An alien who at any time was a nonimmigrant exchange visitor 
under section 101(a)(15)(J) of the Act who is subject to the two-year 
foreign residence requirement unless the alien has complied with that 
requirement or the requirement has been waived pursuant to the 
provisions of section 212(e) of the Act;
    (2) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived, pursuant to 
section 210(c)(2)(B)(ii) of the Act;
    (3) An alien who has been convicted of a felony, or three or more 
misdemeanors.
    (e) Exclusion grounds--(1) Grounds of exclusion not to be applied. 
Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act 
shall not apply to applicants applying for temporary resident status.
    (2) Waiver of grounds for exclusion. Except as provided in paragraph 
(e)(3) of this section, the Service may waive any other provision of 
section 212(a) of the Act only in the case of individual aliens for 
humanitarian purposes, to 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

[[Page 184]]

clear statutory ineligibility or admitted fraud, such application for a 
waiver may be denied by the district director in whose jurisdiction the 
application is filed; in cases filed at overseas processing offices, 
such application for a waiver may be denied by a consular officer; or, 
in cases returned to a legalization office for reinterview, such 
application may be approved at the discretion of the district director. 
Waiver applications filed at the port of entry under the preliminary 
application standard will be approved or denied by the district director 
having jurisdiction over the port of entry. The applicant shall be 
notified of the decision and, if the application is denied, of the 
reason(s) therefor. The applicant may appeal the decision within 30 days 
after the service of the notice pursuant to the provisions of Sec. 
103.3(a)(2) of this chapter.
    (3) Grounds of exclusion that may not be waived. The following 
provisions of section 212(a) of the Act may not be waived:
    (i) Paragraphs (9) and (10) (criminals);
    (ii) Paragraph (15) (public charge) except as provided in paragraph 
(c)(4) of this section.
    (iii) Paragraph (23) (narcotics) except for a single offense of 
simple possession of thirty grams or less of marijuana.
    (iv) Paragraphs (27), (prejudicial to the public interest), (28), 
(communists), and (29) (subversive);
    (v) Paragraph (33) (Nazi persecution).
    (4) Special Rule for determination of public charge. An applicant 
who has a consistent employment history which shows the ability to 
support himself and his or her family, even though his income may be 
below the poverty level, is not excludable under paragraph (e)(3)(ii) of 
this section. The applicant's employment history need not be continuous 
in that it is uninterrupted. It should be continuous in the sense that 
the applicant shall be regularly attached to the workforce, has an 
income over a substantial period of the applicable time, and has 
demonstrated the capacity to exist on his or her income and maintain his 
or her family without reliance on public cash assistance. This 
regulation is prospective in that the Service shall determine, based on 
the applicant's history, whether he or she is likely to become a public 
charge. Past acceptance of public cash assistance within a history of 
consistent employment will enter into this decision. The weight given in 
considering applicability of the public charge provisions will depend on 
many factors, but the length of time an applicant has received public 
cash assistance will constitute a significant factor.

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



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,

[[Page 185]]

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.
    (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

[[Page 186]]

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]



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 visa or other travel document.
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

[[Page 187]]

crewmember regularly serving on board a vessel or aircraft of United 
States registry seeking readmission after any temporary absence 
connected with his or her duties as a crewman;
    (3) A valid, unexpired Form I-327, Permit to Reenter the United 
States;
    (4) A valid, unexpired Form I-571, Refugee Travel Document, properly 
endorsed to reflect admission as a lawful permanent resident;
    (5) An expired Form I-551, Permanent Resident Card, accompanied by a 
filing receipt issued within the previous 6 months for either a Form I-
751, Petition to Remove the Conditions on Residence, or Form I-829, 
Petition by Entrepreneur to Remove Conditions, if seeking admission or 
readmission after a temporary absence of less than 1 year;
    (6) A Form I-551, whether or not expired, presented by a civilian or 
military employee of the United States Government who was outside the 
United States pursuant to official orders, or by the spouse or child of 
such employee who resided abroad while the employee or serviceperson was 
on overseas duty and who is preceding, accompanying or following to join 
within 4 months the employee, returning to the United States; or
    (7) Form I-551, whether or not expired, or a transportation letter 
issued by an American consular officer, presented by an employee of the 
American University of Beirut, who was so employed immediately preceding 
travel to the United States, returning temporarily to the United States 
before resuming employment with the American University of Beirut, or 
resuming permanent residence in the United States.
    (b) Waivers. (1) A waiver of the visa required in paragraph (a) of 
this section shall be granted without fee or application by the district 
director, upon presentation of the child's birth certificate, to a child 
born subsequent to the issuance of an immigrant visa to his or her 
accompanying parent who applies for admission during the validity of 
such a visa; or a child born during the temporary visit abroad of a 
mother who is a lawful permanent resident alien, or a national, of the 
United States, provided that the child's application for admission to 
the United States is made within 2 years of birth, the child is 
accompanied by the parent who is applying for readmission as a permanent 
resident upon the first return of the parent to the United States after 
the birth of the child, and the accompanying parent is found to be 
admissible to the United States.
    (2) For an alien described in paragraph (b)(1) of this section, 
recordation 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 unexpired immigrant visa, permanent resident card, or reentry permit, 
the alien may file an application for a waiver of this requirement with 
the DHS officer with jurisdiction over the port of entry where the alien 
arrives. To apply for this waiver, the alien must file the designated 
form with the fee prescribed in 8 CFR 103.7(b)(1). If the alien's 
permanent resident card was lost or stolen and the alien has been absent 
for less than one year, rather than the waiver application the alien 
must apply for a replacement card as described in 8 CFR 264.5. In the 
exercise of discretion, the DHS officer who has jurisdiction over the 
port of entry where the alien arrives may waive the alien's lack of an 
immigrant visa, permanent resident card, or reentry permit and admit the 
alien as a returning resident if DHS is satisfied that the alien has 
established good cause for the alien's failure to present an immigrant 
visa, permanent resident card, or reentry permit. Filing a request to 
replace a lost or stolen card 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

[[Page 188]]

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.

[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 39218, July 22, 1998; 63 
FR 70315, Dec. 21, 1998; 74 FR 26937, June 5, 2009; 76 FR 53786, Aug. 
29, 2011]



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 
DHS officer who has jurisdiction over the port of entry where the alien 
arrives. To apply for this waiver, the alien must apply on the form 
specified by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1). In the 
exercise of discretion, the DHS officer with jurisdiction over the port 
of entry, may waive the alien's lack of passport and admit the alien as 
an immigrant, if DHS is satisfied that the alien has established good 
cause for his or her failure to present a passport.

[62 FR 10346, Mar. 6, 1997, as amended at 74 FR 26937, June 5, 2009; 76 
FR 53786, Aug. 29, 2011]



Sec. 211.3  Expiration of immigrant visa or other travel document.

    An immigrant visa, reentry permit, refugee travel document, or a 
permanent resident card 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 a permanent resident card, 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.

[62 FR 10346, Mar. 6, 1997, as amended at 76 FR 53786, Aug. 29, 2011]



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

[[Page 189]]

district director if the district director determines that such alien:
    (1) Was not otherwise inadmissible at the time of entry, or having 
been otherwise inadmissible at the time of entry is with respect thereto 
qualified for an exemption from deportability under section 237(a)(1)(H) 
of the Act; and
    (2) Is not otherwise subject to removal.
    (b) Denial of a waiver by the district director is not appealable 
but shall be without prejudice to renewal of an application and 
reconsideration in proceedings before the immigration judge.



Sec. 211.5  Alien commuters.

    (a) General. An alien lawfully admitted for permanent residence or a 
special agricultural worker lawfully admitted for temporary residence 
under section 210 of the Act may commence or continue to reside in 
foreign contiguous territory and commute as a special immigrant defined 
in section 101(a)(27)(A) of the Act to his or her place of employment in 
the United States. An alien commuter engaged in seasonal work will be 
presumed to have taken up residence in the United States if he or she is 
present in this country for more than 6 months, in the aggregate, during 
any continuous 12-month period. An alien commuter's address report under 
section 265 of the Act must show his or her actual residence address 
even though it is not in the United States.
    (b) Loss of residence status. An alien commuter who has been out of 
regular employment in the United States for a continuous period of 6 
months shall be deemed to have lost residence status, notwithstanding 
temporary entries in the interim for other than employment purposes. An 
exception applies when employment in the United States was interrupted 
for reasons beyond the individual's control other than lack of a job 
opportunity or the commuter can demonstrate that he or she has worked 90 
days in the United States in the aggregate during the 12-month period 
preceding the application for admission into the United States. Upon 
loss of status, the alien's permanent resident card becomes 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 in accordance with 8 CFR 264.5.

[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 70315, Dec. 21, 1998; 76 
FR 53786, Aug. 29, 2011]



PART 212_DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF 

CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents



Sec.
212.0 Definitions.
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.
212.8-212.9 [Reserved]
212.10 Section 212(k) waiver.
212.11 [Reserved{time} 
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.

[[Page 190]]

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.
212.18 Applications for waivers of inadmissibility in connection with an 
          application for adjustment of status by T nonimmigrant status 
          holders.

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 
1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note (section 
7209 of Pub. L. 108-458); 8 CFR part 2.
    Section 212.1(q) also issued under section 702, Public Law 110-229, 
122 Stat. 754, 854.

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



Sec. 212.0  Definitions.

    For purposes of Sec. 212.1 and Sec. 235.1 of this chapter:
    Adjacent islands means Bermuda and the islands located in the 
Caribbean Sea, except Cuba.
    Cruise ship means a passenger vessel over 100 gross tons, carrying 
more than 12 passengers for hire, making a voyage lasting more than 24 
hours any part of which is on the high seas, and for which passengers 
are embarked or disembarked in the United States or its territories.
    Ferry means any vessel operating on a pre-determined fixed schedule 
and route, which is being used solely to provide transportation between 
places that are no more than 300 miles apart and which is being used to 
transport passengers, vehicles, and/or railroad cars.
    Pleasure vessel means a vessel that is used exclusively for 
recreational or personal purposes and not to transport passengers or 
property for hire.
    United States means ``United States'' as defined in section 215(c) 
of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 
1185(c)).
    U.S. citizen means a United States citizen or a U.S. non-citizen 
national.
    United States qualifying tribal entity means a tribe, band, or other 
group of Native Americans formally recognized by the United States 
Government which agrees to meet WHTI document standards.

[73 FR 18415, Apr. 3, 2008]



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 
generally not required for Canadian citizens, except those Canadians 
that fall under nonimmigrant visa categories E, K, S, or V as provided 
in paragraphs (h), (l), and (m) of this section and 22 CFR 41.2. A valid 
unexpired passport is required for Canadian citizens arriving in the 
United States, except when meeting one of the following requirements:
    (i) NEXUS Program. A Canadian citizen who is traveling as a 
participant in the NEXUS program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (h), (l), and (m) 
of this section and 22 CFR 41.2, may present a valid unexpired NEXUS 
program card when using a NEXUS Air kiosk or when entering the United 
States from contiguous territory or adjacent islands at a land or sea 
port-of-entry. A Canadian citizen who enters the United States by 
pleasure vessel from Canada under the remote inspection system may 
present a valid unexpired NEXUS program card.
    (ii) FAST Program. A Canadian citizen who is traveling as a 
participant in the FAST program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (h), (l), and (m) 
of this section and 22 CFR 41.2, may present a valid unexpired FAST card 
at a land or sea port-of-entry prior to entering the United States from 
contiguous territory or adjacent islands.
    (iii) SENTRI Program. A Canadian citizen who is traveling as a 
participant in the SENTRI program, and who is not

[[Page 191]]

otherwise required to present a passport and visa as provided in 
paragraphs (h), (l), and (m) of this section and 22 CFR 41.2, may 
present a valid unexpired SENTRI card at a land or sea port-of-entry 
prior to entering the United States from contiguous territory or 
adjacent islands.
    (iv) Canadian Indians. If designated by the Secretary of Homeland 
Security, a Canadian citizen holder of a Indian and Northern Affairs 
Canada (``INAC'') card issued by the Canadian Department of Indian 
Affairs and North Development, Director of Land and Trust Services 
(``LTS'') in conformance with security standards agreed upon by the 
Governments of Canada and the United States, and containing a machine 
readable zone and who is arriving from Canada may present the card prior 
to entering the United States at a land port-of-entry.
    (v) Children. A child who is a Canadian citizen arriving from 
contiguous territory may present for admission to the United States at 
sea or land ports-of-entry certain other documents if the arrival meets 
the requirements described below.
    (A) Children Under Age 16. A Canadian citizen who is under the age 
of 16 is permitted to present an original or a copy of his or her birth 
certificate, a Canadian Citizenship Card, or a Canadian Naturalization 
Certificate when arriving in the United States from contiguous territory 
at land or sea ports-of-entry.
    (B) Groups of Children Under Age 19. A Canadian citizen, under age 
19 who is traveling with a public or private school group, religious 
group, social or cultural organization, or team associated with a youth 
sport organization is permitted to present an original or a copy of his 
or her birth certificate, a Canadian Citizenship Card, or a Canadian 
Naturalization Certificate when arriving in the United States from 
contiguous territory at land or sea ports-of-entry, when the group, 
organization or team is under the supervision of an adult affiliated 
with the organization and when the child has parental or legal guardian 
consent to travel. For purposes of this paragraph, an adult is 
considered to be a person who is age 19 or older. The following 
requirements will apply:
    (1) The group, organization, or team must provide to CBP upon 
crossing the border, on organizational letterhead:
    (i) The name of the group, organization or team, and the name of the 
supervising adult;
    (ii) A trip itinerary, including the stated purpose of the trip, the 
location of the destination, and the length of stay;
    (iii) A list of the children on the trip;
    (iv) For each child, the primary address, primary phone number, date 
of birth, place of birth, and name of a parent or legal guardian.
    (2) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (a)(1)(v)(B)(1) of this section that he 
or she has obtained for each child the consent of at least one parent or 
legal guardian.
    (3) The inspection procedure described in this paragraph is limited 
to members of the group, organization, or team who are under age 19. 
Other members of the group, organization, or team must comply with other 
applicable document and/or inspection requirements found in this part or 
parts 211 or 235 of this subchapter.
    (2) Citizens of the British Overseas Territory of Bermuda. A visa is 
generally not required for Citizens of the British Overseas Territory of 
Bermuda, except those Bermudians that fall under nonimmigrant visa 
categories E, K, S, or V as provided in paragraphs (h), (l), and (m) of 
this section and 22 CFR 41.2. A passport is required for Citizens of the 
British Overseas Territory of Bermuda arriving in the United States.
    (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

[[Page 192]]

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
    (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 applying for admission as a temporary visitor for business or 
pleasure from Mexico at a land port-of-entry, or arriving by pleasure 
vessel or ferry, if the national is in possession of a Form DSP-150, B-
1/B-2 Visa and Border Crossing Card issued by the Department of State, 
containing a machine-readable biometric identifier; or.
    (ii) Is applying for admission from contiguous territory or adjacent 
islands at a land or sea port-of-entry, if the national is a member of 
the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is 
in possession of a Form I-872 American Indian Card.
    (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-

[[Page 193]]

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) Until November 28, 2009, a visa is not 
required of an alien who is a citizen of a country enumerated in 
paragraph (e)(3) of this section who:
    (i) Is classifiable as a vistor for business or pleasure;
    (ii) Is solely entering and staying on Guam for a period not to 
exceed fifteen days;
    (iii) Is in possession of a round-trip nonrefundable and 
nontransferable transportation ticket bearing a confirmed departure date 
not exceeding fifteen days from the date of admission to Guam;
    (iv) Is in possession of a completed and signed Visa Waiver 
Information Form (Form I-736);
    (v) Waives any right to review or appeal the immigration officer's 
determination of admissibility at the port of entry at Guam; and
    (vi) Waives any right to contest any action for deportation, other 
than on the basis of a request for asylum.
    (2) An alien is eligible for the waiver provision if all of the 
eligibility criteria in paragraph (e)(1) of this section have been met 
prior to embarkation and the alien is a citizen of a country that:
    (i) Has a visa refusal rate of 16.9% or less, or a country whose 
visa refusal rate exceeds 16.9% and has an established preinspection or 
preclearance program, pursuant to a bilateral agreement with the United 
States under which its citizens traveling to Guam without a valid United 
States visa are inspected by the Immigration and Naturalization Service 
prior to departure from that country;
    (ii) Is within geographical proximity to Guam, unless the country 
has a substantial volume of nonimmigrant admissions to Guam as 
determined by the Commissioner and extends reciprocal privileges to 
citizens of the United States;
    (iii) Is not designated by the Department of State as being of 
special humanitarian concern; and
    (iv) Poses no threat to the welfare, safety or security of the 
United States, its territories, or commonwealths.

Any potential threats to the welfare, safety, or security of the United 
States, its territories, or commonwealths will be dealt with on a 
country by country basis, and a determination by the Commissioner of the 
Immigration and Naturalization Service that a

[[Page 194]]

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 
as provided by section 245(i) of the Act or as an immediate relative as 
defined in section 201(b) of the Act, to that of a lawful permanent 
resident.
    (ii) Change of nonimmigrant status; or
    (iii) Extension of stay.
    (5) A transportation line bringing any alien to Guam pursuant to 
this section shall:
    (i) Enter into a contract on Form I-760, made by the Commissioner of 
the Immigration and Naturalization Service in behalf of the government;
    (ii) Transport only an alien who is a citizen and in possession of a 
valid passport of a country enumerated in paragraph (e)(3) of this 
section;
    (iii) Transport only an alien in possession of a round-trip, 
nontransferable transportation ticket:
    (A) Bearing a confirmed departure date not exceeding fifteen days 
from the date of admission to Guam,
    (B) Valid for a period of not less than one year,
    (C) Nonrefundable except in the country in which issued or in the 
country of the alien's nationality or residence,
    (D) Issued by a carrier which has entered into an agreement 
described in part (5)(i) of this section, and
    (E) Which the carrier will unconditionally honor when presented for 
return passage; and
    (iv) Transport only an alien in possession of a completed and signed 
Visa Waiver Information Form I-736.
    (f) Direct transits. (1)-(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

[[Page 195]]

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 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) [Reserved]
    (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.''
    (q) Aliens admissible under the Guam-CNMI Visa Waiver Program. (1) 
Eligibility for Program. In accordance with Public Law 110-229, 
beginning November 28, 2009, the Secretary, in consultation with the 
Secretaries of the Departments of Interior and State, may waive

[[Page 196]]

the visa requirement in the case of a nonimmigrant alien who seeks 
admission to Guam or to the Commonwealth of the Northern Mariana Islands 
(CNMI) under the Guam-CNMI Visa Waiver Program. To be admissible under 
the Guam-CNMI Visa Waiver Program, prior to embarking on a carrier for 
travel to Guam or the CNMI, each nonimmigrant alien must:
    (i) Be a national of a country or geographic area listed in 
paragraph (q)(2) of this section;
    (ii) Be classifiable as a visitor for business or pleasure;
    (iii) Be solely entering and staying on Guam or the CNMI for a 
period not to exceed forty-five days;
    (iv) Be in possession of a round trip ticket that is nonrefundable 
and nontransferable and bears a confirmed departure date not exceeding 
forty-five days from the date of admission to Guam or the CNMI. ``Round 
trip ticket'' includes any return trip transportation ticket issued by a 
participating carrier, electronic ticket record, airline employee passes 
indicating return passage, individual vouchers for return passage, group 
vouchers for return passage for charter flights, or military travel 
orders which include military dependents for return to duty stations 
outside the United States on U.S. military flights;
    (v) Be in possession of a completed and signed Guam-CNMI Visa Waiver 
Information Form (CBP Form I-736);
    (vi) Be in possession of a completed and signed I-94, Arrival-
Departure Record (CBP Form I-94);
    (vii) Be in possession of a valid unexpired ICAO compliant, machine 
readable passport issued by a country that meets the eligibility 
requirements of paragraph (q)(2) of this section;
    (viii) Have not previously violated the terms of any prior 
admissions. Prior admissions include those under the Guam-CNMI Visa 
Waiver Program, the prior Guam Visa Waiver Program, the Visa Waiver 
Program as described in section 217(a) of the Act and admissions 
pursuant to any immigrant or nonimmigrant visa;
    (ix) Waive any right to review or appeal an immigration officer's 
determination of admissibility at the port of entry into Guam or the 
CNMI;
    (x) Waive any right to contest any action for deportation or 
removal, other than on the basis of: An application for withholding of 
removal under section 241(b)(3) of the INA; withholding or deferral of 
removal under the regulations implementing Article 3 of the United 
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment; or, an application for asylum if permitted 
under section 208 of the Act; and
    (xi) If a resident of Taiwan, possess a Taiwan National Identity 
Card and a valid Taiwan passport with a valid re-entry permit issued by 
the Taiwan Ministry of Foreign Affairs.
    (2) Program Countries and Geographic Areas. (i) General Eligibility 
Criteria.
    (A) A country or geographic area may not participate in the Guam-
CNMI Visa Waiver Program if the country or geographic area poses a 
threat to the welfare, safety or security of the United States, its 
territories, or commonwealths;
    (B) A country or geographic area may not participate in the Guam-
CNMI Visa Waiver Program if it has been designated a Country of 
Particular Concern under the International Religious Freedom Act of 1998 
by the Department of State, or identified by the Department of State as 
a source country of refugees designated of special humanitarian concern 
to the United States;
    (C) A country or geographic area may not participate in the Guam-
CNMI Visa Waiver Program if that country, not later than three weeks 
after the issuance of a final order of removal, does not accept for 
repatriation any citizen, former citizen, or national of the country 
against whom a final executable order of removal is issued. Nothing in 
this subparagraph creates any duty for the United States or any right 
for any alien with respect to removal or release. Nothing in this 
subparagraph gives rise to any cause of action or claim under this 
paragraph or any other law against any official of the United States or 
of any State to compel the release, removal or reconsideration for 
release or removal of any alien.
    (D) DHS may make a determination regarding a country's eligibility 
based

[[Page 197]]

on other factors including, but not limited to, rate of refusal for 
nonimmigrant visas, rate of overstays, cooperation in information 
exchange with the United States, electronic travel authorizations, and 
any other factors deemed relevant by DHS.
    (ii) Eligible Countries and Geographic Areas. Nationals of the 
following countries are eligible to participate in the Guam-CNMI Visa 
Waiver Program for purposes of admission to both Guam and the CNMI: 
Australia, Brunei, Japan, Malaysia, Nauru, New Zealand, Papua New 
Guinea, Republic of Korea, Singapore, and the United Kingdom. Travelers 
with a connection to one of the following geographic areas--the Hong 
Kong Special Administrative Region (Hong Kong) or Taiwan--may also be 
eligible to participate in the Guam-CNMI Visa Waiver Program for 
purposes of admission to both Guam and the CNMI, see paragraphs 
(q)(2)(ii)(A) and (q)(2)(ii)(B) respectively.
    (A) Hong Kong Special Administrative Region (Hong Kong). To be 
eligible to participate in the program as a result of a connection to 
Hong Kong, the following documentation is required: A Hong Kong Special 
Administrative Region (SAR) passport with a Hong Kong identification 
card; or a British National (Overseas) (BN(O)) passport with a Hong Kong 
identification card.
    (B) Taiwan. To be eligible to participate in the program as a result 
of a connection to Taiwan, one must be a resident of Taiwan who begins 
his or her travel in Taiwan and who travels on direct flights from 
Taiwan to Guam or the CNMI without an intermediate layover or stop, 
except that the flights may stop in a territory of the United States en 
route.
    (iii) Significant Economic Benefit Criteria. If, in addition to the 
considerations enumerated under paragraph (q)(2)(i) of this section, DHS 
determines that the CNMI has received a significant economic benefit 
from the number of visitors for pleasure from particular countries 
during the period of May 8, 2007 through May 8, 2008, those countries 
are eligible to participate in the Guam-CNMI Visa Waiver Program unless 
the Secretary of Homeland Security determines that such country's 
inclusion in the Guam-CNMI Visa Waiver Program would represent a threat 
to the welfare, safety, or security of the United States and its 
territories.
    (iv) Additional Eligible Countries or Geographic Areas Based on 
Significant Economic Benefit. [Reserved]
    (3) Suspension of Program Countries or Geographic Areas. (i) 
Suspension of a country or geographic area from the Guam-CNMI Visa 
Waiver Program may be made on a country-by-country basis for good cause 
including, but not limited to if: The admissions of visitors from a 
country have resulted in an unacceptable number of visitors from a 
country remaining unlawfully in Guam or the CNMI, unlawfully obtaining 
entry to other parts of the United States, or seeking withholding of 
removal or seeking asylum; or that visitors from a country pose a risk 
to law enforcement or security interests, including the enforcement of 
immigration laws of Guam, the CNMI, or the United States.
    (ii) A country or geographic area may be suspended from the Guam-
CNMI Visa Waiver Program if that country or geographic area is 
designated as a Country of Particular Concern under the International 
Religious Freedom Act of 1998 by the Department of State, or identified 
by the Department of State as a source country of refugees designated of 
special humanitarian concern to the United States, pending an evaluation 
and determination by the Secretary.
    (iii) A country or geographic area may be suspended from the Guam-
CNMI Visa Waiver Program by the Secretary of Homeland Security, in 
consultation with the Secretary of the Interior and the Secretary of 
State, based on the evaluation of all factors the Secretary deems 
relevant including, but not limited to, electronic travel authorization, 
procedures for reporting lost and stolen passports, repatriation of 
aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit 
systems and information exchange.
    (4) Admission under this section renders an alien ineligible for:
    (i) Adjustment of status to that of a temporary resident or, except 
as provided by section 245(i) of the Act or as an immediate relative as 
defined in

[[Page 198]]

section 201(b) of the Act, to that of a lawful permanent resident.
    (ii) Change of nonimmigrant status; or
    (iii) Extension of stay.
    (5) Requirements for transportation lines. A transportation line 
bringing any alien to Guam or the CNMI pursuant to this section must:
    (i) Enter into a contract on CBP Form I-760, made by the 
Commissioner of Customs and Border Protection on behalf of the 
government;
    (ii) Transport an alien who is a citizen or national and in 
possession of a valid unexpired ICAO compliant, machine readable 
passport of a country enumerated in paragraph (q)(2) of this section;
    (iii) Transport an alien only if the alien is in possession of a 
round trip ticket as defined in paragraph (q)(1)(iv) of this section 
bearing a confirmed departure date not exceeding forty-five days from 
the date of admission to Guam or the CNMI which the carrier will 
unconditionally honor when presented for return passage. This ticket 
must be:
    (A) Valid for a period of not less than one year,
    (B) Nonrefundable except in the country in which issued or in the 
country of the alien's nationality or residence, and
    (C) Issued by a carrier which has entered into an agreement 
described in paragraph (q)(5) of this section.
    (iv) Transport an alien in possession of a completed and signed 
Guam-CNMI Visa Waiver Information Form (CBP Form I-736), and
    (v) Transport an alien in possession of completed I-94, Arrival-
Departure Record (CBP Form I-94).
    (6) Bonding. The Secretary may require a bond on behalf of an alien 
seeking admission under the Guam-CNMI Visa Waiver Program, in addition 
to the requirements enumerated in this section, when the Secretary deems 
it appropriate. Such bonds may be required of an individual alien or of 
an identified subset of participants.
    (7) Maintenance of status--(i) Satisfactory departure. If an 
emergency prevents an alien admitted under the Guam-CNMI Visa Waiver 
Program, as set forth in this paragraph (q), from departing from Guam or 
the CNMI within his or her period of authorized stay, an immigration 
officer having jurisdiction over the place of the alien's temporary stay 
may, in his or her discretion, grant a period of satisfactory departure 
not to exceed 15 days. If departure is accomplished during that period, 
the alien is to be regarded as having satisfactorily accomplished the 
visit without overstaying the allotted time.
    (8) Inadmissibility and Deportability--(i) Determinations of 
inadmissibility. (A) An alien who applies for admission under the 
provisions of the Guam-CNMI Visa Waiver Program, who is determined by an 
immigration officer to be inadmissible to Guam or the CNMI under one or 
more of the grounds of inadmissibility listed in section 212 of the Act 
(other than for lack of a visa), or who is in possession of and presents 
fraudulent or counterfeit travel documents, will be refused admission 
into Guam or the CNMI and removed. Such refusal and removal shall be 
effected without referral of the alien to an immigration judge for 
further inquiry, examination, or hearing, except that an alien who 
presents himself or herself as an applicant for admission to Guam under 
the Guam-CNMI Visa Waiver Program, who applies for asylum, withholding 
of removal under section 241(b)(3) of the INA or withholding or deferral 
of removal under the regulations implementing Article 3 of the United 
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment must be issued a Form I-863, Notice of Referral 
to Immigration Judge, for a proceeding in accordance with 8 CFR 
208.2(c)(1) and (2). The provisions of 8 CFR subpart 208 subpart A shall 
not apply to an alien present or arriving in the CNMI seeking to apply 
for asylum prior to January 1, 2015. No application for asylum may be 
filed pursuant to section 208 of the Act by an alien present or arriving 
in the CNMI prior to January 1, 2015; however, aliens physically present 
in the CNMI during the transition period who express a fear of 
persecution or torture only may establish eligibility for withholding of 
removal pursuant to INA 241(b)(3) or

[[Page 199]]

pursuant to the regulations implementing Article 3 of the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment.
    (B) The removal of an alien under this section may be deferred if 
the alien is paroled into the custody of a Federal, State, or local law 
enforcement agency for criminal prosecution or punishment. This section 
in no way diminishes the discretionary authority of the Secretary 
enumerated in section 212(d) of the Act.
    (C) Refusal of admission under this paragraph shall not constitute 
removal for purposes of the Act.
    (ii) Determination of deportability. (A) An alien who has been 
admitted to either Guam or the CNMI under the provisions of this section 
who is determined by an immigration officer to be deportable from either 
Guam or the CNMI under one or more of the grounds of deportability 
listed in section 237 of the Act, shall be removed from either Guam or 
the CNMI to his or her country of nationality or last residence. Such 
removal will be determined by DHS authority that has jurisdiction over 
the place where the alien is found, and will be effected without 
referral of the alien to an immigration judge for a determination of 
deportability, except that an alien admitted to Guam under the Guam-CNMI 
Visa Waiver Program who applies for asylum or other form of protection 
from persecution or torture must be issued a Form I-863 for a proceeding 
in accordance with 8 CFR 208.2(c)(1) and (2). The provisions of 8 CFR 
part 208 subpart A shall not apply to an alien present or arriving in 
the CNMI seeking to apply for asylum prior to January 1, 2015. No 
application for asylum may be filed pursuant to section 208 of the INA 
by an alien present or arriving in the CNMI prior to January 1, 2015; 
however, aliens physically present or arriving in the CNMI prior to 
January 1, 2015, may apply for withholding of removal under section 
241(b)(3) of the Act and withholding and deferral of removal under the 
regulations implementing Article 3 of the United Nations Convention 
Against Torture, Inhuman or Degrading Treatment or Punishment.
    (B) Removal by DHS under paragraph (b)(1) of this section is 
equivalent in all respects and has the same consequences as removal 
after proceedings conducted under section 240 of the Act.
    (iii) Removal of inadmissible aliens who arrived by air or sea. 
Removal of an alien from Guam or the CNMI under this section may be 
effected using the return portion of the round trip passage presented by 
the alien at the time of entry to Guam and the CNMI. Such removal shall 
be on the first available means of transportation to the alien's point 
of embarkation to Guam or the CNMI. Nothing in this part absolves the 
carrier of the responsibility to remove any inadmissible or deportable 
alien at carrier expense, as provided in the carrier agreement.

[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 of the printed volume and at www.fdsys.gov.



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.

[[Page 200]]

Any alien who does not satisfactorily present proof of absence from the 
United States for more than five consecutive years, or twenty 
consecutive years in the case of an alien convicted of an aggravated 
felony, to the consular or immigration officer, and any alien who is 
seeking to enter the United States prior to the completion of the 
requisite five- or twenty-year absence, must apply for permission to 
reapply for admission to the United States as provided under this part. 
A temporary stay in the United States under section 212(d)(3) of the Act 
does not interrupt the five or twenty consecutive year absence 
requirement.
    (b) Alien applying to consular officer for nonimmigrant visa or 
nonresident alien border crossing card. (1) An alien who is applying to 
a consular officer for a nonimmigrant visa or a nonresident alien border 
crossing card, must request permission to reapply for admission to the 
United States if five years, or twenty years if the alien's deportation 
was based upon a conviction for an aggravated felony, have not elapsed 
since the date of deportation or removal. This permission shall be 
requested in the manner prescribed through the consular officer, and may 
be granted only in accordance with sections 212(a)(9)(A) and 
212(d)(3)(A) of the Act and 8 CFR 212.4. However, the alien may apply 
for such permission by submitting an application on the form designated 
by USCIS with the fee prescribed in 8 CFR 103.7(b)(1), in accordance 
with the form instructions, 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 application 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 the application on the form designated by USCIS with the 
fee prescribed in 8 CFR 103.7(b)(1), in accordance with the form 
instructions 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 application to the 
designated USCIS office. 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)(2) 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 the waiver request on the form designated by USCIS. 
Except as provided in paragraph (g)(2) of this section, if the applicant 
also requires a waiver under section 212(g), (h), or (i) of the Act, he 
or she must file both waiver requests simultaneously on the forms 
designated by USCIS with the fees prescribed in 8 CFR 103.7(b)(1) and in 
accordance with the form instructions.
    (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 the 
application on the form designated by USCIS. 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 application to the immigration judge for adjudication.
    (f) Applicant for admission at port of entry. An alien may request 
permission at a port of entry to reapply for admission to the United 
States within 5 years of the deportation or removal, or 20 years in the 
case of an alien deported, or removed 2 or more times, or at any time 
after deportation or removal in the case of an alien convicted of an 
aggravated felony. The alien must file the , where required, with the 
DHS officer having jurisdiction over the port of entry.

[[Page 201]]

    (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 apply on the form 
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in 
accordance with the form instructions.
    (2) An alien who is an applicant for parole authorization under 8 
CFR 245.15(t)(2) or 8 CFR 245.13(k)(2) and 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, 
must file the requisite waiver form concurrently with the parole 
request.
    (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 the application 
when seeking admission at a port of entry, the approval of the 
application 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 
the application 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)(9)(A) 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; 74 FR 26937, June 5, 2009; 76 FR 53787, Aug. 
29, 2011]



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 must be submitted on the form designated 
by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance 
with the form instructions. If the application is made in the course of 
proceedings under sections 235, 236, or 242 of the Act, the application 
shall be made to the Immigration Court.
    (b) Filing of application. The application may be filed prior to, at 
the time of, or at any time after the applicant's departure from or 
arrival into the United States. All material facts and/or circumstances 
which the applicant knows or believes apply to the grounds of 
excludability or deportability must be described. The applicant must 
also submit all available documentation relating to such grounds.
    (c) Decision of the District Director. A district director may grant 
or deny an application for advance permission to return to an 
unrelinquished domicile under section 212(c) of the Act, in the exercise 
of discretion, unless otherwise prohibited by paragraph (f) of this 
section. The applicant shall be notified of the decision and, if the 
application is denied, of the reason(s) for denial. No appeal shall lie 
from denial of the application, but the application may be renewed 
before an Immigration Judge as provided in paragraph (e) of this 
section.
    (d) Validity. Once an application is approved, that approval is 
valid indefinitely. However, the approval covers only those specific 
grounds of excludability or deportability that were described in the 
application. An application who failed to describe any other

[[Page 202]]

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.
    (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. An application for advance permission to enter under 
section 212 of the Act shall be denied 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; 74 FR 26938, June 5, 
2009; 76 FR 53787, Aug. 29, 2011]



Sec. 212.4  Applications for the exercise of discretion under section 

212(d)(1) and 212(d)(3).

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

If the alien desires to make multiple entries and the consular officer 
or

[[Page 203]]

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 the form designated by USCIS with the fee prescribed in 8 
CFR 103.7(b)(1), and in accordance with the form instructions. (For 
Department of State procedure when a visa is required, see 22 CFR 41.95 
and paragraph (a) of this section.) If the application is made because 
the applicant may be inadmissible due to present or past membership in 
or affiliation with any Communist or other totalitarian party or 
organization, there shall be attached to the application a written 
statement of the history of the applicant's membership or affiliation, 
including the period of such membership or affiliation, whether the 
applicant held any office in the organization, and whether his 
membership or affiliation was voluntary or involuntary. If the applicant 
alleges that his membership or affiliation was involuntary, the 
statement shall include the basis for that allegation. When the 
application is made because the applicant may be inadmissible due to 
disease, mental or physical defect, or disability of any kind, the 
application shall describe the disease, defect, or disability. If the 
purpose of seeking admission to the United States is for treatment, 
there shall be attached to the application statements in writing to 
establish that satisfactory treatment cannot be obtained outside the 
United States; that arrangements have been completed for treatment, and 
where and from whom treatment will be received; what financial 
arrangements for payment of expenses incurred in connection with the 
treatment have been made, and that a bond will be available if required. 
When the application is made because the applicant may be inadmissible 
due to the conviction of one or more crimes, the designation of each 
crime, the date and place of its commission and of the conviction 
thereof, and the sentence or other judgment of the court shall be stated 
in the application; in such a case the application shall be supplemented 
by the official record of each conviction, and any other documents 
relating to commutation of sentence, parole, probation, or pardon. If 
the application is made at the time of the applicant's arrival to the 
district director at a port of entry, the applicant shall establish that 
he was not aware of the ground of inadmissibility and that it could not 
have been ascertained by the exercise of reasonable diligence, and he 
shall be in 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

[[Page 204]]

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 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

[[Page 205]]

212(d)(3)(A) of the Act specifying the terms and conditions of their 
admission and stay.
    (e) Inadmissibility under section 212(a)(1)(A)(iii). 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)(A)(iii)(I) or (II) of the Act 
due to a mental disorder and associated threatening or harmful behavior, 
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) Inadmissibility under section 212(a)(1) for aliens inadmissible 
due to HIV--(1) General. Pursuant to the authority in section 
212(d)(3)(A)(i) of the Act, any alien who is inadmissible under section 
212(a)(1)(A)(i) of the Act due to infection with the etiologic agent for 
acquired immune deficiency syndrome (HIV infection) may be issued a B-1 
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa by a 
consular officer or the Secretary of State, and be authorized for 
temporary admission into the United States for a period not to exceed 30 
days, subject to authorization of an additional period or periods under 
paragraph (f)(5) of this section, provided that the authorization is 
granted in accordance with paragraphs (f)(2) through (f)(7) of this 
section. Application under this paragraph (f) may not be combined with 
any other waiver of inadmissibility.
    (2) Conditions. An alien who is HIV-positive who applies for a 
nonimmigrant visa before a consular officer may be issued a B-1 
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa and 
admitted to the United States for a period not to exceed 30 days, 
provided that the applicant establishes that:
    (i) The applicant has tested positive for HIV;
    (ii) The applicant is not currently exhibiting symptoms indicative 
of an active, contagious infection associated with acquired immune 
deficiency syndrome;
    (iii) The applicant is aware of, has been counseled on, and 
understands the nature, severity, and the communicability of his or her 
medical condition;
    (iv) The applicant's admission poses a minimal risk of danger to the 
public health in the United States and poses a minimal risk of danger of 
transmission of the infection to any other person in the United States;
    (v) The applicant will have in his or her possession, or will have 
access to, as medically appropriate, an adequate supply of 
antiretroviral drugs for the anticipated stay in the United States and 
possesses sufficient assets, such as insurance that is accepted in the 
United States, to cover any medical care that the applicant may require 
in the event of illness at any time while in the United States;
    (vi) The applicant's admission will not create any cost to the 
United States, or a state or local government, or any agency thereof, 
without the prior written consent of the agency;
    (vii) The applicant is seeking admission solely for activities that 
are consistent with the B-1 (business visitor) or B-2 (visitor for 
pleasure) nonimmigrant classification;
    (viii) The applicant is aware that no single admission to the United 
States will be for a period that exceeds 30 days (subject to paragraph 
(f)(5) of this section);
    (ix) The applicant is otherwise admissible to the United States and 
no other ground of inadmissibility applies;
    (x) The applicant is aware that he or she cannot be admitted under 
section 217 of the Act (Visa Waiver Program);
    (xi) The applicant is aware that any failure to comply with any 
condition of admission set forth under this paragraph (f) will 
thereafter make him or her ineligible for authorization under this 
paragraph; and
    (xii) The applicant, for the purpose of admission pursuant to 
authorization under this paragraph (f), waives any opportunity to apply 
for an extension of nonimmigrant stay (except as provided in paragraph 
(f)(5) of this section), a change of nonimmigrant status, or adjustment 
of status to that of permanent resident.
    (A) Nothing in this paragraph (f) precludes an alien admitted under 
this

[[Page 206]]

paragraph (f) from applying for asylum pursuant to section 208 of the 
Act.
    (B) Any alien admitted under this paragraph (f) who applies for 
adjustment of status under section 209 of the Act after being granted 
asylum must establish his or her eligibility to adjust status under all 
applicable provisions of the Act and 8 CFR part 209. Any applicable 
ground of inadmissibility must be waived by approval of an appropriate 
waiver(s) under section 209(c) of the Act and 8 CFR 209.2(b).
    (C) Nothing within this paragraph (f) constitutes a waiver of 
inadmissibility under section 209 of the Act or 8 CFR part 209.
    (3) Nonimmigrant visa. A nonimmigrant visa issued to the applicant 
for purposes of temporary admission under section 212(d)(3)(A)(i) of the 
Act and this paragraph (f) may not be valid for more than 12 months or 
for more than two applications for admission during the 12-month period. 
The authorized period of stay will be for 30 calendar days calculated 
from the initial admission under this visa.
    (4) Application at U.S. port. If otherwise admissible, a holder of 
the nonimmigrant visa issued under section 212(d)(3)(A)(i) of the Act 
and this paragraph (f) is authorized to apply for admission at a United 
States port of entry at any time during the period of validity of the 
visa in only the B-1 (business visitor) or B-2 (visitor for pleasure) 
nonimmigrant categories.
    (5) Admission limited; satisfactory departure. Notwithstanding any 
other provision of this chapter, no single period of admission under 
section 212(d)(3)(A)(i) of the Act and this paragraph (f) may be 
authorized for more than 30 days; if an emergency prevents a 
nonimmigrant alien admitted under this paragraph (f) from departing from 
the United States within his or her period of authorized stay, the 
director (or other appropriate official) having jurisdiction over the 
place of the alien's temporary stay may, in his or her discretion, grant 
an additional period (or periods) of satisfactory departure, each such 
period not to exceed 30 days. If departure is accomplished during that 
period, the alien is to be regarded as having satisfactorily 
accomplished the visit without overstaying the allotted time.
    (6) Failure to comply. No authorization under section 
212(d)(3)(A)(i) of the Act and this paragraph (f) may be provided to any 
alien who has previously failed to comply with any condition of an 
admission authorized under this paragraph.
    (7) Additional limitations. The Secretary of Homeland Security or 
the Secretary of State may require additional evidence or impose 
additional conditions on granting authorization for temporary admissions 
under this paragraph (f) as international (or other relevant) conditions 
may indicate.
    (8) Option for case-by-case determination. If the applicant does not 
meet the criteria under this paragraph (f), or does not wish to agree to 
the conditions for the streamlined 30-day visa under this paragraph (f), 
the applicant may elect to utilize the process described in either 
paragraph (a) or (b) of this section, as applicable.
    (g) 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.
    (h) 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.
    (i) Revocation. The Deputy Commissioner or the district director may 
at any time revoke a waiver previously authorized under section 
212(d)(3) of

[[Page 207]]

the Act and shall notify the nonimmigrant in writing to that effect.
    (j) 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 for 
nonimmigrant classification described in section 101(a)(15)(S) of the 
Act, USCIS will 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. USCIS may at any time revoke a waiver previously authorized 
under section 212(d)(1) of the Act. In the event USCIS decides to revoke 
a previously authorized waiver for an S nonimmigrant, the Assistant 
Attorney General, Criminal Division, and the relevant LEA shall be 
notified in writing to that effect. The Assistant Attorney General, 
Criminal Division, shall concur in or object to the decision. Unless the 
Assistant Attorney General, Criminal Division, objects within 7 days, he 
or she shall be deemed to have concurred in the decision. In the event 
of an objection by the Assistant Attorney General, Criminal Division, 
the matter will be expeditiously referred to the Deputy Attorney General 
for a final resolution. In no circumstances shall the alien or the 
relevant LEA have a right of appeal from any decision to revoke.
    (2) Grounds of removal. Nothing shall prohibit the Service from 
removing from the United States an alien classified pursuant to section 
101(a)(15)(S) of the Act for conduct committed after the alien has been 
admitted to the United States as an S nonimmigrant, or after the alien's 
change to S classification, or for conduct or a condition undisclosed to 
the Attorney General prior to the alien's admission in, or change to, S 
classification, unless such conduct or condition is waived prior to 
admission and classification. In the event USCIS 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; 73 FR 58030, 
Oct. 6, 2008; 76 FR 53787, Aug. 29, 2011]



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:

[[Page 208]]

    (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 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

[[Page 209]]

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, 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 an appropriate document authorizing travel.
    (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; 76 FR 
53787, Aug. 29, 2011]



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,

[[Page 210]]

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 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

[[Page 211]]

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 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) Filing and adjudication of waivers under sections 212(g), (h), 
or (i) of the Act. (1) Application procedures. Any alien who is 
inadmissible under sections 212(g), (h), or (i) of the Act who is 
eligible for a waiver of such inadmissibility may file on the form 
designated by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1) and in 
accordance with the form instructions. When filed at the consular 
section of an embassy or consulate, the Department of State will forward 
the application to USCIS for a decision after the consular official 
concludes that the alien is otherwise admissible.
    (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. USCIS will provide a written decision and, if denied, 
advise

[[Page 212]]

the applicant of appeal procedures in accordance with 8 CFR 103.3.
    (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 be deportable in deportation proceedings or removable in 
removal proceedings 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) waivers for certain medical conditions. (1) 
Application. Any alien who is inadmissible under section 
212(a)(1)(A)(i), (ii), or (iii) of the Act and who is eligible for a 
waiver under section 212(g) of the Act may file an application as 
described in paragraph (a)(1) of this section. The family member 
specified in section 212(g) of the Act may file the waiver application 
for the applicant if the applicant is incompetent to file the waiver 
personally.
    (2) 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)(A)(iii) of the Act he or his 
sponsoring family member shall submit a waiver request 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.
    (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 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,

[[Page 213]]

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.
    (3) 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 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 the form designated by 
USCIS. 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

[[Page 214]]

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 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.

[[Page 215]]

    (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 
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

[[Page 216]]

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 USCIS 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, 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 the USCIS approval notice 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
    (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

[[Page 217]]

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; 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

[[Page 218]]

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 at www.fdsys.gov.



Sec. Sec. 212.8-212.9  [Reserved]



Sec. 212.10  Section 212(k) waiver.

    Any applicant for admission who is in possession of an immigrant 
visa, and who is inadmissible under section 212(a)(5)(A) or 
212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver 
under section 212(k) of the Act. If the application for waiver is 
denied, the application may be renewed in removal proceedings before an 
immigration judge as provided in 8 CFR part 1240.

[76 FR 53787, Aug. 29, 2011]



Sec. 212.11  [Reserved]



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 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

[[Page 219]]

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

[[Page 220]]

    (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]



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, an application for S nonimmigrant 
status on the form designated for such purposes, 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;

[[Page 221]]

    (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 the completed application to the Assistant Attorney 
General, Criminal Division. Upon the submission to the Assistant 
Attorney General of the completed application for S classification, the 
period of parole will be automatically extended while the request is 
being reviewed. The Assistant Attorney General, Criminal Division, will 
notify the Commissioner of the submission of the application.
    (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

[[Page 222]]

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, as amended at 76 FR 53787, Aug. 29, 2011]



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 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.

[[Page 223]]

    (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 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

[[Page 224]]

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 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.

[[Page 225]]

    (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 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 must apply on the form designated by 
USCIS in accordance with the form instructions. 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. The application must:

[[Page 226]]

    (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 must apply 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 must apply on the form designated by USCIS with the 
fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form 
instructions 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) USCIS will, 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 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.
    (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

[[Page 227]]

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.
    (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

[[Page 228]]

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 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

[[Page 229]]

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 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.

[[Page 230]]

    (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 request for 
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 the request 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.
    (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

[[Page 231]]

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 
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 
been revoked, the DHS will take appropriate action, including, but not 
limited to, revocation of approval of any related petitions, consistent 
with the Act and DHS regulations at 8 CFR 205.2, 8 CFR 
214.2(h)(11)(iii), and 8 CFR 214.6(d)(5)(iii).

[68 FR 43915, July 25, 2003, as amended at 69 FR 43731, July 22, 2004; 
74 FR 26938, June 5, 2009; 76 FR 53788, Aug. 29, 2011; 76 FR 73477, Nov. 
29, 2011]



Sec. 212.16  Applications for exercise of discretion relating to T 

nonimmigrant status.

    (a) Filing the waiver application. An alien applying for the 
exercise of discretion under section 212(d)(13) or (d)(3)(B) of the Act 
(waivers of inadmissibility) in connection with an application for T 
nonimmigrant status shall submit the request on the form designated by 
USCIS, with the appropriate fee in accordance with Sec. 103.7(b)(1) of 
this chapter or an application for a fee waiver, to USCIS with the 
application for status under section 101(a)(15)(T)(i) of the Act.
    (b) Treatment of waiver application. (1) USCIS shall determine 
whether a ground of inadmissibility exists with respect to the alien 
applying for T nonimmigrant status. If a ground of inadmissibility is 
found, USCIS shall determine if it is in the national interest to 
exercise discretion to waive the ground of inadmissibility, except for 
grounds

[[Page 232]]

of inadmissibility based upon sections 212(a)(3), 212(a)(10)(C) and 
212(a)(10)(E) of the Act, which USCIS may not waive. Special 
consideration will be given to the granting of a waiver of a ground of 
inadmissibility where the activities rendering the alien inadmissible 
were caused by or incident to the victimization described under section 
101(a)(15)(T)(i) of the Act.
    (2) In the case of applicants inadmissible on criminal and related 
grounds under section 212(a)(2) of the Act, USCIS will only exercise its 
discretion in exceptional cases unless the criminal activities rendering 
the alien inadmissible were caused by or were incident to the 
victimization described under section 101(a)(15)(T)(i) of the Act.
    (3) An application for waiver of a ground of inadmissibility for T 
nonimmigrant status (other than under section 212(a)(6) of the Act) will 
be granted only in exceptional cases when the ground of inadmissibility 
would prevent or limit the ability of the applicant to adjust to 
permanent resident status after the conclusion of 3 years.
    (4) USCIS shall have sole discretion to grant or deny a waiver, and 
there shall be no appeal of a decision to deny a waiver. However, 
nothing in this paragraph (b) is intended to prevent an applicant from 
re-filing a request for a waiver of a ground of inadmissibility in 
appropriate cases.
    (c) Incident to victimization. When an applicant for status under 
section 101(a)(15)(T) of the Act seeks a waiver of a ground of 
inadmissibility under section 212(d)(13) of the Act on grounds other 
than those described in sections 212(a)(1) and (a)(4) of the Act, the 
applicant must establish that the activities rendering him or her 
inadmissible were caused by, or were incident to, the victimization 
described in section 101(a)(15)(T)(i)(I) of the Act.
    (d) Revocation. The Service may at any time revoke a waiver 
previously authorized under section 212(d) of the Act. Under no 
circumstances shall the alien or any party acting on his or her behalf 
have a right to appeal from a decision to revoke a waiver.

[67 FR 4795, Jan. 31, 2002, as amended at 76 FR 53788, Aug. 29, 2011]



Sec. 212.17  Applications for the exercise of discretion relating to U 

nonimmigrant status.

    (a) Filing the waiver application. An alien applying for a waiver of 
inadmissibility under section 212(d)(3)(B) or (d)(14) of the Act 
(waivers of inadmissibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14), in 
connection with a petition for U nonimmigrant status being filed 
pursuant to 8 CFR 214.14, must submit the waiver request and the 
petition for U nonimmigrant status on the forms designated by USCIS in 
accordance with the form instructions. An alien in U nonimmigrant status 
who is seeking a waiver of section 212(a)(9)(B) of the Act, 8 U.S.C. 
1182(a)(9)(B) (unlawful presence ground of inadmissibility triggered by 
departure from the United States), must file the waiver request prior to 
his or her application for reentry to the United States in accordance 
with the form instructions.
    (b) Treatment of waiver application. (1) USCIS, in its discretion, 
may grant the waiver based on section 212(d)(14) of the Act, 8 U.S.C. 
1182(d)(14), if it determines that it is in the public or national 
interest to exercise discretion to waive the applicable ground(s) of 
inadmissibility. USCIS may not waive a ground of inadmissibility based 
upon section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E). USCIS, in 
its discretion, may grant the waiver based on section 212(d)(3) of the 
Act, 8 U.S.C. 1182(d)(3), except where the ground of inadmissibility 
arises under sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), 
(3)(C), or (3)(E) of the Act, 8 U.S.C. 1182(a)(3)(A)(i)(I), (3)(A)(ii), 
(3)(A)(iii), (3)(C), or (3)(E).
    (2) In the case of applicants inadmissible on criminal or related 
grounds, in exercising its discretion USCIS will consider the number and 
severity of the offenses of which the applicant has been convicted. In 
cases involving violent or dangerous crimes or inadmissibility based on 
the security and related grounds in section 212(a)(3) of the Act, USCIS 
will only exercise favorable discretion in extraordinary circumstances.
    (3) There is no appeal of a decision to deny a waiver. However, 
nothing in this paragraph is intended to prevent an applicant from re-
filing a request

[[Page 233]]

for a waiver of ground of inadmissibility in appropriate cases.
    (c) Revocation. The Secretary of Homeland Security, at any time, may 
revoke a waiver previously authorized under section 212(d) of the Act, 8 
U.S.C. 118(d). Under no circumstances will the alien or any party acting 
on his or her behalf have a right to appeal from a decision to revoke a 
waiver.

[72 FR 53035, Sept. 17, 2007, as amended at 76 FR 53788, Aug. 29, 2011]



Sec. 212.18  Applications for waivers of inadmissibility in connection with an 

application for adjustment of status by T nonimmigrant status holders.

    (a) Filing the waiver application. An alien applying for a waiver of 
inadmissibility under section 245(l)(2) of the Act in connection with an 
application for adjustment of status under 8 CFR 245.23(a) or (b) must 
submit:
    (1) A completed Form I-485 application package;
    (2) The appropriate fee in accordance with 8 CFR 103.7(b)(1) or an 
application for a fee waiver; and, as applicable,
    (3) Form I-601, Application for Waiver of Grounds of Excludability.
    (b) Treatment of waiver application. (1) USCIS may not waive an 
applicant's inadmissibility under sections 212(a)(3), 212(a)(10)(C), or 
212(a)(10)(E) of the Act.
    (2) If an applicant is inadmissible under sections 212(a)(1) or (4) 
of the Act, USCIS may waive such inadmissibility if it determines that 
granting a waiver is in the national interest.
    (3) If any other provision of section 212(a) renders the applicant 
inadmissible, USCIS may grant a waiver of inadmissibility if the 
activities rendering the alien inadmissible were caused by or were 
incident to the victimization and USCIS determines that it is in the 
national interest to waive the applicable ground or grounds of 
inadmissibility.
    (c) Other waivers. Nothing in this section shall be construed as 
limiting an alien's ability to apply for any other waivers of 
inadmissibility for which he or she may be eligible.
    (d) Revocation. The Secretary of Homeland Security may, at any time, 
revoke a waiver previously granted through the procedures described in 8 
CFR 103.5.

[73 FR 75557, Dec. 12, 2008]



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



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



Sec. 213.1  Admission under bond or cash deposit.

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

[29 FR 10579, July 30, 1964, as amended at 32 FR 9626, July 4, 1967; 62 
FR 10349, Mar. 6, 1997]



PART 213a_AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS--Table of Contents



Sec.
213a.1 Definitions.
213a.2 Use of affidavit of support.
213a.3 Change of address.
213a.4 Actions for reimbursement, public notice, and congressional 
          reports.

[[Page 234]]

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

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

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



Sec. 213a.1  Definitions.

    As used in this part, the term:
    Domicile means the place where a sponsor has his or her principal 
residence, as defined in section 101(a)(33) of the Act, with the 
intention to maintain that residence for the foreseeable future.
    Federal poverty line means the level of income equal to the poverty 
guidelines as issued by the Secretary of Health and Human Services in 
accordance with 42 U.S.C. 9902 that is applicable to a household of the 
size involved. For purposes of considering the Form I-864, Affidavit of 
Support Under Section 213A of the Act, the Service and Consular Posts 
will use the most recent income-poverty guidelines published in the 
Federal Register by the Department of Health and Human Services. These 
guidelines are updated annually, and the Service and Consular Posts will 
begin to use updated guidelines on the first day of the second month 
after the date the guidelines are published in the Federal Register.
    Household income means the income used to determine whether the 
sponsor meets the minimum income requirements under sections 
213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act. It includes the 
income of the sponsor, and of the sponsor's spouse and any other person 
included in determining the sponsor's household size, if the spouse or 
other person is at least 18 years old and has signed the form designated 
by USCIS for this purpose, on behalf of the sponsor and intending 
immigrants. The ``household income'' may not, however, include the 
income of an intending immigrant, unless the intending immigrant is 
either the sponsor's spouse or has the same principal residence as the 
sponsor and the preponderance of the evidence shows that the intending 
immigrant's income results from the intending immigrant's lawful 
employment in the United States or from some other lawful source that 
will continue to be available to the intending immigrant after he or she 
acquires permanent resident status. The prospect of employment in the 
United States that has not yet actually begun will not be sufficient to 
meet this requirement.
    Household size means the number obtained by adding the number of 
persons specified in this definition. In calculating household size, no 
individual shall be counted more than once. If the intending immigrant's 
spouse or child is a citizen or already holds the status of an alien 
lawfully admitted for permanent residence, then the sponsor should not 
include that spouse or child in determining the total household size, 
unless the intending immigrant's spouse or child is a dependent of the 
sponsor.
    (1) In all cases, the household size includes the sponsor, the 
sponsor's spouse and all of the sponsor's children, as defined in 
section 101(b)(1) of the Act (other than a stepchild who meets the 
requirements of section 101(b)(1)(B) of the Act, if the stepchild does 
not reside with the sponsor, is not claimed by the sponsor as a 
dependent for tax purposes, and is not seeking to immigrate based on the 
stepparent/stepchild relationship), unless these children have reached 
the age of majority under the law of the place of domicile and the 
sponsor did not claim them as dependents on the sponsor's Federal income 
tax return for the most recent tax year. The following persons must also 
be included in calculating the sponsor's household size: Any other 
persons (whether related to the sponsor or not) whom the sponsor has 
claimed as dependents on the sponsor's Federal income tax return for the 
most recent tax year, even if such persons do not have the same 
principal residence as the sponsor, plus the number of aliens the 
sponsor has sponsored under any other affidavit of support for whom the 
sponsor's support obligation has not terminated, plus the number of 
aliens to be sponsored under the current affidavit of support, even if 
such aliens do not or will not have the same principal residence as the 
sponsor. If a child, as defined in section 101(b)(1) of the Act, or 
spouse of the principal intending immigrant is an alien who does not 
currently reside in the United States and who either is not seeking to 
immigrate

[[Page 235]]

at the same time as, or will not seek to immigrate within six months of 
the principal intending immigrant's immigration, the sponsor may exclude 
that child or spouse in calculating the sponsor's household size.
    (2) If the sponsor chooses to do so, the sponsor may add to the 
number of persons specified in the first part of this definition the 
number of relatives (as defined in this section) of the sponsor who have 
the same principal residence as the sponsor and whose income will be 
relied on to meet the requirements of section 213A of the Act and this 
part.
    Immigration Officer, solely for purposes of this part, includes a 
Consular Officer, as defined by section 101(a)(9) of the Act, as well as 
an Immigration Officer, as defined by Sec. 103.1(j) of this chapter.
    Income means an individual's total income (adjusted gross income for 
those who file IRS Form 1040EZ) for purposes of the individual's U.S. 
Federal income tax liability, including a joint income tax return (e.g., 
line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A, 
or line 4 on the 2004 IRS Form 1040EZ or the corresponding line on any 
future revision of these IRS Forms). Only an individual's Federal income 
tax return--that is, neither a state or territorial income tax return 
nor an income tax return filed with a foreign government--shall be filed 
with an affidavit of support, unless the individual had no duty to file 
a Federal income tax return, and claims that his or her state, 
territorial or foreign taxable income is sufficient to establish the 
sufficiency of the affidavit of support.
    Intending immigrant means any beneficiary of an immigrant visa 
petition filed under section 204 of the Act, including any alien who 
will accompany or follow-to-join the principal beneficiary.
    Joint sponsor means any individual who meets the requirements of 
section 213A(f)(1)(A), (B), (C), and (E) of the Act and 8 CFR 
213a.2(c)(1)(i), and who, as permitted by section 213A(f)(5)(A) of the 
Act, is willing to submit a an affidavit of support and accept joint and 
several liability with the sponsor or substitute sponsor, in any case in 
which the sponsor's or substitute sponsor's household income is not 
sufficient to satisfy the requirements of section 213A of the Act.
    Means-tested public benefit means either a Federal means-tested 
public benefit, which is any public benefit funded in whole or in part 
by funds provided by the Federal Government that the Federal agency 
administering the Federal funds has determined to be a Federal means-
tested public benefit under the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996, Public Law 104-193, or a State 
means-tested public benefit, which is any public benefit for which no 
Federal funds are provided that a State, State agency, or political 
subdivision of a State has determined to be a means-tested public 
benefit. No benefit shall be considered to be a means-tested public 
benefit if it is a benefit described in sections 401(b), 411(b), 422(b) 
or 423(d) of Public Law 104-193.
    Program official means the officer or employee of any Federal, 
State, or local government agency or of any private agency that 
administers any means-tested public benefit program who has authority to 
act on the agency's behalf in seeking reimbursement of means-tested 
public benefits.
    Relative means a husband, wife, father, mother, child, adult son, 
adult daughter, brother, or sister.
    Significant ownership interest means an ownership interest of 5 
percent or more in a for-profit entity that filed an immigrant visa 
petition to accord a prospective employee an immigrant status under 
section 203(b) of the Act.
    Sponsor means an individual who is either required to execute or has 
executed an affidavit of support under this part.
    Sponsored immigrant means any alien who was an intending immigrant, 
once that person has been lawfully admitted for permanent residence, so 
that the affidavit of support filed for that person under this part has 
entered into force.
    Substitute sponsor means an individual who meets the requirements of 
section 213A(f)(1)(A), (B), (C), and (E) of the Act and 8 CFR 
213a.2(c)(1)(i), who is related to the principal intending immigrant in 
one of the ways described in section 213A(f)(5)(B) of the Act, and

[[Page 236]]

who is willing to sign the affidavit of support in place of the now-
deceased person who filed ta relative or fianc[eacute](e) petition that 
provides the basis for the intending immigrant's ability to seek 
permanent residence.

[62 FR 54352, Oct. 20, 1997, as amended at 71 FR 35749, June 21, 2006; 
76 FR 53788, Aug. 29, 2011]



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

    (a) Applicability of section 213a affidavit of support. (1)(i)(A) In 
any case specified in paragraph (a)(2) of this section, an intending 
immigrant is inadmissible as an alien likely to become a public charge, 
unless the qualified sponsor specified in paragraph (b) of this section 
or a substitute sponsor and, if necessary, a joint sponsor, has executed 
on behalf of the intending immigrant an affidavit of support on the 
applicable form designated by USCIS in accordance with the requirements 
of section 213A of the Act and the form instructions. Each reference in 
this section to the affidavit of support or the form is deemed to be a 
reference to all such forms designated by USCIS for use by a sponsor for 
compliance with section 213A of the Act.
    (B) If the intending immigrant claims that, under paragraph 
(a)(2)(ii)(A), (C), or (E) of this section, the intending immigrant is 
exempt from the requirement to file an affidavit of support, the 
intending immigrant must include with his or her application for an 
immigrant visa or adjustment of status an exemption request on the form 
designated by USCIS for this purpose.
    (ii) An affidavit of support is executed when a sponsor signs and 
submits the appropriate forms in accordance with the form instructions 
to USCIS or the Department of State, as appropriate.
    (iii) A separate affidavit of support is required for each principal 
beneficiary.
    (iv) Each immigrant who will accompany the principal intending 
immigrant must be included on the affidavit. See paragraph (f) of this 
section for further information concerning immigrants who intend to 
accompany or follow the principal intending immigrant to the United 
States.
    (v)(A) Except as provided for under paragraph (a)(1)(v)(B) of this 
section, the Department of State consular officer, immigration officer, 
or immigration judge will determine the sufficiency of the affidavit of 
support based on the sponsor's, substitute sponsor's, or joint sponsor's 
reasonably expected household income in the year in which the intending 
immigrant filed the application for an immigrant visa or for adjustment 
of status, and based on the evidence submitted with the affidavit of 
support and the Poverty Guidelines in effect when the intending 
immigrant filed the application for an immigrant visa or adjustment of 
status.
    (B) If more than one year passes between the filing of the affidavit 
of support or required affidavit of support attachment form and the 
hearing, interview, or examination of the intending immigrant concerning 
the intending immigrant's application for an immigrant visa or 
adjustment of status, and the Department of State officer, immigration 
officer or immigration judge determines, in the exercise of discretion, 
that the particular facts of the case make the submission of additional 
evidence necessary to the proper adjudication of the case, then the 
Department of State officer, immigration officer or immigration judge 
may direct the intending immigrant to submit additional evidence. A 
Department of State officer or immigration officer shall make the 
request in writing, and provide the intending immigrant not less than 30 
days to submit the additional evidence. An immigration judge may direct 
the intending immigrant to submit additional evidence and also set the 
deadline for submission of the initial evidence in any manner permitted 
under subpart C of 8 CFR part 1003 and any local rules of the 
Immigration Court. If additional evidence is required under this 
paragraph, an intending immigrant must submit additional evidence 
(including copies or transcripts of any income tax returns for the most 
recent tax year) concerning the income or employment of the sponsor, 
substitute sponsor, joint sponsor, or household member in the year in 
which the Department of State officer, immigration officer, or 
immigration judge makes the request for additional

[[Page 237]]

evidence. In this case, the sufficiency of the affidavit of support and 
any required affidavit of support attachment will be determined based on 
the sponsor's, substitute sponsor's, or joint sponsor's reasonably 
expected household income in the year the Department of State officer, 
immigration officer or immigration judge makes the request for 
additional evidence, and based on the evidence submitted in response to 
the request for additional evidence and on the Poverty Guidelines in 
effect when the request for evidence was issued.
    (2)(i) Except for cases specified in paragraph (a)(2)(ii) of this 
section, paragraph (a)(1) of this section applies to any application for 
an immigrant visa or for adjustment of status filed on or after December 
19, 1997, in which an intending immigrant seeks an immigrant visa, 
admission as an immigrant, or adjustment of status as:
    (A) An immediate relative under section 201(b)(2)(A)(i) of the Act, 
including orphans and any alien admitted as a K nonimmigrant when the 
alien seeks adjustment of status;
    (B) A family-based immigrant under section 203(a) of the Act; or
    (C) An employment-based immigrant under section 203(b) of the Act, 
if a relative (as defined in 8 CFR 213a.1) of the intending immigrant is 
a citizen or an alien lawfully admitted for permanent residence who 
either filed the employment-based immigrant petition or has a 
significant ownership interest in the entity that filed the immigrant 
visa petition on behalf of the intending immigrant. An affidavit of 
support under this section is not required, however, if the relative is 
a brother or sister of the intending immigrant, unless the brother or 
sister is a citizen.
    (ii) Paragraph (a)(1) of this section shall not apply if the 
intending immigrant:
    (A) Filed a visa petition on his or her own behalf pursuant to 
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or 
(iii) of the Act, or who seeks to accompany or follow-to-join an 
immigrant who filed a visa petition on his or his own behalf pursuant to 
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or 
(iii) of the Act;
    (B) Seeks admission as an immigrant on or after December 19, 1997, 
in a category specified in paragraph (a)(2)(i) of this section with an 
immigrant visa issued on the basis of an immigrant visa application 
filed with the Department of State officer before December 19, 1997;
    (C) Establishes, on the basis of the alien's own Social Security 
Administration record or those of his or her spouse or parent(s), that 
he or she has already worked, or under section 213A(a)(3)(B) of the Act, 
can already be credited with, 40 qualifying quarters of coverage as 
defined under title II of the Social Security Act, 42 U.S.C. 401, et 
seq;
    (D) Is a child admitted under section 211(a) of the Act and 8 CFR 
211.1(b)(1); or
    (E) Is the child of a citizen, if the child is not likely to become 
a public charge (other than because of the provision of section 
212(a)(4)(C) of the Act), and the child's lawful admission for permanent 
residence will result automatically in the child's acquisition of 
citizenship under section 320 of the Act, as amended. This exception 
applies to an alien orphan if the citizen parent(s) has (or have) 
legally adopted the alien orphan before the alien orphan's acquisition 
of permanent residence, and if both adoptive parents personally saw and 
observed the alien orphan before or during the foreign adoption 
proceeding. An affidavit of support under this part is still required if 
the citizen parent(s) will adopt the alien orphan in the United States 
only after the alien orphan's acquisition of permanent residence. If the 
citizen parent(s) adopted the alien orphan abroad, but at least one of 
the adoptive parents did not see and observe the alien orphan before or 
during the foreign adoption proceeding, then an affidavit of support 
under this part is still required, unless the citizen parent establishes 
that, under the law of the State of the alien orphan's intended 
residence in the United States, the foreign adoption decree is entitled 
to recognition without the need for a formal administrative or judicial 
proceeding in the State of proposed residence. In the case of a child 
who immigrates as a Convention adoptee, as defined in 8

[[Page 238]]

CFR 204.301, this exception applies if the child was adopted by the 
petitioner in the Convention country. An affidavit of support under this 
part is still required in the case of a child who immigrates as a 
Convention adoptee if the petitioner will adopt the child in the United 
States only after the child's acquisition of permanent residence.
    (b) Affidavit of support sponsors. The following individuals must 
execute an affidavit of support on behalf of the intending immigrant in 
order for the intending immigrant to be found admissible on public 
charge grounds:
    (1) For immediate relatives and family-based immigrants. The person 
who filed a relative, orphan or fianc[eacute](e) petition, the approval 
of which forms the basis of the intending immigrant's eligibility to 
apply for an immigrant visa or adjustment of status as an immediate 
relative or a family-based immigrant, must execute a an affidavit of 
support on behalf of the intending immigrant. If the intending immigrant 
is the beneficiary of more than one approved immigrant visa petition, it 
is the person who filed the petition that is actually the basis for the 
intending immigrant's eligibility to apply for an immigrant visa or 
adjustment of status who must file the an affidavit of support.
    (2) For employment-based immigrants. A relative of an intending 
immigrant seeking an immigrant visa under section 203(b) of the Act must 
file a if the relative either filed the immigrant visa petition on 
behalf of the intending immigrant or owns a significant ownership 
interest in an entity that filed an immigrant visa petition on behalf of 
the intending immigrant, but only if the relative is a citizen or an 
alien lawfully admitted for permanent residence. If the intending 
immigrant is the beneficiary of more than one relative's employment-
based immigrant visa petition, it is the relative who filed the petition 
that is actually the basis for the intending immigrant's eligibility to 
apply for an immigrant visa or adjustment of status who must file the an 
affidavit of support.
    (c) Sponsorship requirements. (1)(i) General. A sponsor must be:
    (A) At least 18 years of age;
    (B) Domiciled in the United States or any territory or possession of 
the United States; and
    (C)(1) A citizen or an alien lawfully admitted for permanent 
residence in the case described in paragraph (a)(2)(i) of this section; 
or
    (2) A citizen or national or an alien lawfully admitted for 
permanent residence if the individual is a substitute sponsor or joint 
sponsor.
    (ii) Determination of domicile. (A) If the sponsor is residing 
abroad, but only temporarily, the sponsor bears the burden of proving, 
by a preponderance of the evidence, that the sponsor's domicile (as that 
term is defined in 8 CFR 213a.1) remains in the United States, provided, 
that a permanent resident who is living abroad temporarily is considered 
to be domiciled in the United States if the permanent resident has 
applied for and obtained the preservation of residence benefit under 
section 316(b) or section 317 of the Act, and provided further, that a 
citizen who is living abroad temporarily is considered to be domiciled 
in the United States if the citizen's employment abroad meets the 
requirements of section 319(b)(1) of the Act.
    (B) If the sponsor is not domiciled in the United States, the 
sponsor can still sign and submit an affidavit of support so long as the 
sponsor satisfies the Department of State officer, immigration officer, 
or immigration judge, by a preponderance of the evidence, that the 
sponsor will establish a domicile in the United States on or before the 
date of the principal intending immigrant's admission or adjustment of 
status. The intending immigrant will be inadmissible under section 
212(a)(4) of the Act, and the immigration officer or immigration judge 
must deny the intending immigrant's application for admission or 
adjustment of status, if the sponsor has not, in fact, established a 
domicile in the United States on or before the date of the decision on 
the principal intending immigrant's application for admission or 
adjustment of status. In the case of a sponsor who comes to the United 
States intending to establish his or her principal residence in the 
United States at the same time as the principal intending immigrant's 
arrival and application for admission at a

[[Page 239]]

port-of-entry, the sponsor shall be deemed to have established a 
domicile in the United States for purposes of this paragraph, unless the 
sponsor is also a permanent resident alien and the sponsor's own 
application for admission is denied and the sponsor leaves the United 
States under a removal order or as a result of the sponsor's withdrawal 
of the application for admission.
    (2) Demonstration of ability to support intending immigrants. In 
order for the intending immigrant to overcome the public charge ground 
of inadmissibility, the sponsor must demonstrate the means to maintain 
the intending immigrant at an annual income of at least 125 percent of 
the Federal poverty line. If the sponsor is on active duty in the Armed 
Forces of the United States (other than active duty for training) and 
the intending immigrant is the sponsor's spouse or child, the sponsor's 
ability to maintain income must equal at least 100 percent of the 
Federal poverty line.
    (i) Proof of income. (A) The sponsor must include with the an 
affidavit of support either a photocopy or an Internal Revenue Service-
issued transcript of his or her complete Federal income tax return for 
the most recent taxable year (counting from the date of the signing, 
rather than the filing, of the an affidavit of support. However, the 
sponsor may, at his or her option, submit tax returns for the three most 
recent years if the sponsor believes that these additional tax returns 
may help in establishing the sponsor's ability to maintain his or her 
income at the applicable threshold set forth in the Poverty Guidelines. 
Along with each transcript or photocopy, the sponsor must also submit as 
initial evidence copies of all schedules filed with each return and (if 
the sponsor submits a photocopy, rather than an IRS transcript of the 
tax return(s)) all Forms W-2 (if the sponsor relies on income from 
employment) and Forms 1099 (if the sponsor relies on income from sources 
documented on Forms 1099) in meeting the income threshold. The sponsor 
may also include as initial evidence: Letter(s) evidencing his or her 
current employment and income, paycheck stub(s) (showing earnings for 
the most recent six months, financial statements, or other evidence of 
the sponsor's anticipated household income for the year in which the 
intending immigrant files the application for an immigrant visa or 
adjustment of status. By executing an affidavit of support, the sponsor 
certifies under penalty of perjury under United States law that the 
evidence of his or her current household income is true and correct and 
that each transcript or photocopy of each income tax return is a true 
and correct transcript or photocopy of the return that the sponsor filed 
with the Internal Revenue Service for that taxable year.
    (B) If the sponsor had no legal duty to file a Federal income tax 
return for the most recent tax year, the sponsor must explain why he or 
she had no legal duty to a file a Federal income tax return for that 
year. If the sponsor claims he or she had no legal duty to file for any 
reason other than the level of the sponsor's income for that year, the 
initial evidence submitted with the an affidavit of support must also 
include any evidence of the amount and source of the income that the 
sponsor claims was exempt from taxation and a copy of the provisions of 
any statute, treaty, or regulation that supports the claim that he or 
she had no duty to file an income tax return with respect to that 
income. If the sponsor had no legal obligation to file a Federal income 
tax return, he or she may submit other evidence of annual income. The 
fact that a sponsor had no duty to file a Federal income tax return does 
not relieve the sponsor of the duty to file an affidavit of support.
    (C)(1) The sponsor's ability to meet the income requirement will be 
determined based on the sponsor's household income. In establishing the 
household income, the sponsor may rely entirely on his or her personal 
income, if it is sufficient to meet the income requirement. The sponsor 
may also rely on the income of the sponsor's spouse and of any other 
person included in determining the sponsor's household size, if the 
spouse or other person is at least 18 years old and has completed and 
signed an affidavit of support attachment. A person does not need to be 
a U.S. citizen, national, or alien lawfully admitted for permanent 
residence in order to

[[Page 240]]

sign an affidavit of support attachment.
    (2) Each individual who signs an affidavit of support attachment 
agrees, in consideration of the sponsor's signing of the an affidavit of 
support, to provide to the sponsor as much financial assistance as may 
be necessary to enable the sponsor to maintain the intending immigrants 
at the annual income level required by section 213A(a)(1)(A) of the Act, 
to be jointly and severally liable for any reimbursement obligation that 
the sponsor may incur, and to submit to the personal jurisdiction of any 
court that has subject matter jurisdiction over a civil suit to enforce 
the contract or the affidavit of support. The sponsor, as a party to the 
contract, may bring suit to enforce the contract. The intending 
immigrants and any Federal, state, or local agency or private entity 
that provides a means-tested public benefit to an intending immigrant 
are third party beneficiaries of the contract between the sponsor and 
the other individual or individuals on whose income the sponsor relies 
and may bring an action to enforce the contract in the same manner as 
third party beneficiaries of other contracts.
    (3) If there is no spouse or child immigrating with the intending 
immigrant, then there will be no need for the intending immigrant to 
sign a Form I-864A, even if the sponsor will rely on the continuing 
income of the intending immigrant to meet the income requirement. If, 
however, the sponsor seeks to rely on an intending immigrant's 
continuing income to establish the sponsor's ability to support the 
intending immigrant's spouse or children, then the intending immigrant 
whose income is to be relied on must sign the .
    (4) If the sponsor relies on the income of any individual who has 
signed an affidavit of support attachment, the sponsor must also include 
with thean affidavit of support and an affidavit of support attachment, 
with respect to the person who signed the an affidavit of support 
attachment, the initial evidence required under paragraph (c)(2)(i)(A) 
of this section. The household member's tax return(s) must be for the 
same tax year as the sponsor's tax return(s). An individual who signs an 
affidavit of support attachment certifies, under penalty of perjury, 
that the submitted transcript or photocopy of the tax return is a true 
and correct transcript or photocopy of the Federal income tax return 
filed with the Internal Revenue Service, and that the information 
concerning that person's employment and income is true and correct.
    (5) If the person who signs the affidavit of support attachment is 
not an intending immigrant, and is any person other than the sponsor's 
spouse or a claimed dependent of the sponsor, the sponsor must also 
attach proof that the person is a relative (as defined in 8 CFR 213a.1) 
of the sponsor and that the affidavit of support attachment signer has 
the same principal residence as the sponsor. If an intending immigrant 
signs an affidavit of support attachment, the sponsor must also provide 
proof that the sponsored immigrant has the same principal residence as 
the sponsor, unless the sponsored immigrant is the sponsor's spouse.
    (D) Effect of failure to file income tax returns. If a sponsor, 
substitute sponsor, joint sponsor, or household member did not file a 
Federal income tax return for the year for which a transcript or 
photocopy must be provided, the affidavit of support or an affidavit of 
support attachment will not be considered sufficient to satisfy the 
requirements of section 213A of the Act, even if the household income 
meets the requirements of section 213A of the Act, unless the sponsor, 
substitute sponsor, joint sponsor, or household member proves, by a 
preponderance of the evidence, that he or she had no duty to file. If 
the sponsor, substitute sponsor, joint sponsor or household member 
cannot prove that he or she had no duty to file, then the affidavit of 
support or an affidavit of support attachment will not be considered 
sufficient to satisfy the requirements of section 213A of the Act until 
the sponsor, substitute sponsor, joint sponsor, or household member 
proves that he or she has satisfied the obligation to file the tax 
return and provides a transcript or copy of the return.
    (ii) Determining the sufficiency of an affidavit of support. The 
sufficiency of

[[Page 241]]

an affidavit of support shall be determined in accordance with this 
paragraph.
    (A) Income. The sponsor must first calculate the total income 
attributable to the sponsor under paragraph (c)(2)(i)(C) of this section 
for the year in which the intending immigrant filed the application for 
an immigrant visa or adjustment of status.
    (B) Number of persons to be supported. The sponsor must then 
determine his or her household size as defined in 8 CFR 213a.1.
    (C) Sufficiency of income. Except as provided in this paragraph, or 
in paragraph (a)(1)(v)(B) of this section, the sponsor's affidavit of 
support shall be considered sufficient to satisfy the requirements of 
section 213A of the Act and this section if the reasonably expected 
household income for the year in which the intending immigrant filed the 
application for an immigrant visa or adjustment of status, calculated 
under paragraph (c)(2)(iii)(A) of this section, would equal at least 125 
percent of the Federal poverty line for the sponsor's household size as 
defined in 8 CFR 213a.1, under the Poverty Guidelines in effect when the 
intending immigrant filed the application for an immigrant visa or for 
adjustment of status, except that the sponsor's income need only equal 
at least 100 percent of the Federal poverty line for the sponsor's 
household size, if the sponsor is on active duty (other than for 
training) in the Armed Forces of the United States and the intending 
immigrant is the sponsor's spouse or child. The sponsor's household 
income for the year in which the intending immigrant filed the 
application for an immigrant visa or adjustment of status shall be given 
the greatest evidentiary weight; any tax return and other information 
relating to the sponsor's financial history will serve as evidence 
tending to show whether the sponsor is likely to be able to maintain his 
or her income in the future. If the projected household income for the 
year in which the intending immigrant filed the application for an 
immigrant visa or adjustment of status meets the applicable income 
threshold, the affidavit of support may be held to be insufficient on 
the basis of the household income but only if, on the basis of specific 
facts, including a material change in employment or income history of 
the sponsor, substitute sponsor, joint sponsor or household member, the 
number of aliens included in affidavit of support that the sponsor has 
signed but that have not yet entered into force in accordance with 
paragraph (e) of this section, or other relevant facts, it is reasonable 
to infer that the sponsor will not be able to maintain his or her 
household income at a level sufficient to meet his or her support 
obligations.
    (iii) Inability to meet income requirement. (A) If the sponsor is 
unable to meet the minimum income requirement in paragraph (c)(2)(iii) 
of this section, the intending immigrant is inadmissible under section 
212(a)(4) of the Act unless:
    (1) The sponsor, the intending immigrant or both, can meet the 
significant assets provision of paragraph (c)(2)(iv)(B) of this section; 
or
    (2) A joint sponsor executes a separate affidavit of support.
    (B) Significant assets. The sponsor may submit evidence of the 
sponsor's ownership of significant assets, such as savings accounts, 
stocks, bonds, certificates of deposit, real estate, or other assets. An 
intending immigrant may submit evidence of the intending immigrant's 
assets as a part of the affidavit of support, even if the intending 
immigrant is not required to sign an affidavit of support attachment. 
The assets of any person who has signed an affidavit of support 
attachment may also be considered in determining whether the assets are 
sufficient to meet this requirement. To qualify as ``significant 
assets'' the combined cash value of all the assets (the total value of 
the assets less any offsetting liabilities) must exceed:
    (1) If the intending immigrant is the spouse or child of a United 
States citizen (and the child has reached his or her 18th birthday), 
three times the difference between the sponsor's household income and 
the Federal poverty line for the sponsor's household size (including all 
immigrants sponsored in any affidavit of support in force or submitted 
under this section);
    (2) If the intending immigrant is an alien orphan who will be 
adopted in the

[[Page 242]]

United States after the alien orphan acquires permanent residence (or in 
whose case the parents will need to seek a formal recognition of a 
foreign adoption under the law of the State of the intending immigrant's 
proposed residence because at least one of the parents did not see the 
child before or during the adoption), and who will, as a result of the 
adoption or formal recognition of the foreign adoption, acquire 
citizenship under section 320 of the Act, the difference between the 
sponsor's household income and the Federal poverty line for the 
sponsor's household size (including all immigrants sponsored in any 
affidavit of support in force or submitted under this section);
    (3) In all other cases, five times the difference between the 
sponsor's household income and the Federal poverty line for the 
sponsor's household size (including all immigrants sponsored in any 
affidavit of support in force or submitted under this section).
    (C) Joint sponsor. A joint sponsor must execute a separate affidavit 
of support on behalf of the intending immigrant(s) and be willing to 
accept joint and several liabilities with the sponsor or substitute 
sponsor. A joint sponsor must meet all the eligibility requirements 
under paragraph (c)(1) of this section, except that the joint sponsor is 
not required to file a visa petition on behalf of the intending 
immigrant. The joint sponsor must demonstrate his or her ability to 
support the intending immigrant in the manner specified in paragraph 
(c)(2) of this section. A joint sponsor's household income must meet or 
exceed the income requirement in paragraph (c)(2)(iii) of this section 
unless the joint sponsor can demonstrate significant assets as provided 
in paragraph (c)(2)(iv)(A) of this section. The joint sponsor's 
household income must equal at least 125 percent of the Poverty 
Guidelines for the joint sponsor's household size, unless the joint 
sponsor is on active duty in the Armed Forces and the intending 
immigrant is the joint sponsor's spouse or child, in which case the 
joint sponsor's household income is sufficient if it equals at least 100 
percent of the Poverty Guidelines for the joint sponsor's household 
size. An intending immigrant may not have more than one joint sponsor, 
but, if the joint sponsor's household income is not sufficient to meet 
the income requirement with respect to the principal intending 
immigrant, any spouse and all the children who, under section 203(d) of 
the Act, seek to accompany the principal intending immigrant, then the 
joint sponsor may specify on the affidavit that it is submitted only on 
behalf of the principal intending immigrant and those accompanying 
family members specifically listed on the affidavit. The remaining 
accompanying family members will then be inadmissible under section 
212(a)(4) of the Act unless a second joint sponsor submits an 
affidavit(s) on behalf of all the remaining family members who seek to 
accompany the principal intending immigrant and who are not included in 
the first joint sponsor's affidavit. There may not be more than two 
joint sponsors for the family group consisting of the principal 
intending immigrant and the accompanying spouse and children.
    (D) Substitute sponsor. In a family-sponsored case, if the visa 
petitioner dies after approval of the visa petition, but the U.S. 
Citizenship and Immigration Services determines, under 8 CFR 
205.1(a)(3)(i)(C), that for humanitarian reasons it would not be 
appropriate to revoke approval of the visa petition, then a substitute 
sponsor, as defined in 8 CFR 213a.1, may sign the an affidavit of 
support. The substitute sponsor must meet all the requirements of this 
section that would have applied to the visa petitioner, had the visa 
petitioner survived and been the sponsor. The substitute sponsor's 
household income must equal at least 125% of the Poverty Guidelines for 
the substitute sponsor's household size, unless the intending immigrant 
is the substitute sponsor's spouse or child and the substitute sponsor 
is on active duty in the Armed Forces (other than active duty for 
training), in which case the substitute sponsor's household income is 
sufficient if it equals at least 100% of the Poverty Guidelines for the 
substitute sponsor's household size. If the substitute sponsor's 
household income is not sufficient to meet the requirements of section 
213A(a)(f)(1)(E) of the Act and paragraph (c)(2) of this section, the

[[Page 243]]

alien will be inadmissible unless a joint sponsor signs an affidavit of 
support.
    (iv) Remaining inadmissibility on public charge grounds. 
Notwithstanding the filing of a sufficient affidavit of support under 
section 213A of the Act and this section, an alien may be found to be 
inadmissible under section 212(a)(4) of the Act if the alien's case 
includes evidence of specific facts that, when considered in light of 
section 212(a)(4)(B) of the Act, support a reasonable inference that the 
alien is likely at any time to become a public charge.
    (v) Verification of employment, income, and assets. The Federal 
Government may pursue verification of any information provided on or 
with an affidavit of support, including information on employment, 
income, or assets, with the employer, financial or other institutions, 
the Internal Revenue Service, or the Social Security Administration. To 
facilitate this verification process, the sponsor, joint sponsor, 
substitute sponsor, or household member must sign and submit any 
necessary waiver form when directed to do so by the immigration officer, 
immigration judge, or Department of State officer who has jurisdiction 
to adjudicate the case to which the affidavit of support or an affidavit 
of support attachment relates. A sponsor's, substitute sponsor's, joint 
sponsor's, or household member's failure or refusal to sign any waiver 
needed to verify the information when directed to do so constitutes a 
withdrawal of the affidavit of support or an affidavit of support 
attachment, so that, in adjudicating the intending immigrant's 
application for an immigrant visa or adjustment of status, the affidavit 
of support or an affidavit of support attachment will be deemed not to 
have been filed.
    (vi) Effect of fraud or material concealment or misrepresentation. 
An affidavit of support or an affidavit of support attachment is 
insufficient to satisfy the requirements of section 213A of the Act and 
this part, and the affidavit of support shall be found insufficient to 
establish that the intending immigrant is not likely to become a public 
charge, if the Department of State officer, immigration officer or 
immigration judge finds that an affidavit of support or an affidavit of 
support attachment is forged, counterfeited, or otherwise falsely 
executed, or if the affidavit of support or an affidavit of support 
attachment conceals or misrepresents facts concerning household size, 
household income, employment history, or any other material fact. Any 
person who knowingly participated in the forgery, counterfeiting, or 
false production of an affidavit of support or an affidavit of support 
attachment, or in any concealment or misrepresentation of any material 
fact, may be subject to a civil penalty under section 274C of the Act, 
to criminal prosecution, or to both, to the extent permitted by law. If 
the person is an alien, the person may also be subject to removal from 
the United States.
    (d) Legal effect of affidavit of support. Execution of an affidavit 
of support under this section creates a contract between the sponsor and 
the U.S. Government for the benefit of the sponsored immigrant, and of 
any Federal, State, or local governmental agency or private entity that 
administers any means-tested public benefits program. The sponsored 
immigrant, or any Federal, State, or local governmental agency or 
private entity that provides any means-tested public benefit to the 
sponsored immigrant after the sponsored immigrant acquires permanent 
resident status, may seek enforcement of the sponsor's obligations 
through an appropriate civil action.
    (e) Commencement and termination of support obligation. (1) With 
respect to any intending immigrant, the support obligation and change of 
address obligation imposed on a sponsor, substitute sponsor, or joint 
sponsor under an affidavit of support, and any household member's 
support obligation under an affidavit of support attachment, all begin 
when the immigration officer or the immigration judge grants the 
intending immigrant's application for admission as an immigrant or for 
adjustment of status on the basis of an application for admission or 
adjustment that included the affidavit of support or an affidavit of 
support attachment. Any person completing and submitting an affidavit of 
support as a joint sponsor or an affidavit of support attachment as a 
household member is

[[Page 244]]

not bound to any obligations under section 213A of the Act if, 
notwithstanding his or her signing of an affidavit of support or an 
affidavit of support attachment, the Department of State officer (in 
deciding an application for an immigrant visa) or the immigration 
officer or immigration judge (in deciding an application for admission 
or adjustment of status) includes in the decision a specific finding 
that the sponsor or substitute sponsor's own household income is 
sufficient to meet the income requirements under section 213A of the 
Act.
    (2)(i) The support obligation and the change of address reporting 
requirement imposed on a sponsor, substitute sponsor and joint sponsor 
under an affidavit of support, and any household member's support 
obligation under an affidavit of support attachment, all terminate by 
operation of law when the sponsored immigrant:
    (A) Becomes a citizen of the United States;
    (B) Has worked, or can be credited with, 40 qualifying quarters of 
coverage under title II of the Social Security Act, 42 U.S.C. 401, et 
seq., provided that the sponsored immigrant is not credited with any 
quarter beginning after December 31, 1996, during which the sponsored 
immigrant receives or received any Federal means-tested public benefit;
    (C) Ceases to hold the status of an alien lawfully admitted for 
permanent residence and departs the United States (if the sponsored 
immigrant has not abandoned permanent resident status, executing the 
form designated by USCIS for recording such action this provision will 
apply only if the sponsored immigrant is found in a removal proceeding 
to have abandoned that status while abroad);
    (D) Obtains in a removal proceeding a new grant of adjustment of 
status as relief from removal (in this case, if the sponsored immigrant 
is still subject to the affidavit of support requirement under this 
part, then any individual(s) who signed an affidavit of support or an 
affidavit of support attachment in relation to the new adjustment 
application will be subject to the obligations of this part, rather than 
those who signed an affidavit of support or an affidavit of support 
attachment in relation to an earlier grant of admission as an immigrant 
or of adjustment of status); or
    (E) Dies.
    (ii) The support obligation under an affidavit of support also 
terminates if the sponsor, substitute sponsor or joint sponsor dies. A 
household member's obligation under an affidavit of support attachment 
terminates when the household member dies. The death of one person who 
had a support obligation under an affidavit of support or an affidavit 
of support attachment does not terminate the support obligation of any 
other sponsor, substitute sponsor, joint sponsor, or household member 
with respect to the same sponsored immigrant.
    (3) The termination of the sponsor's, substitute sponsor's, or joint 
sponsor's obligations under an affidavit of support or of a household 
member's obligations under an affidavit of support attachment does not 
relieve the sponsor, substitute sponsor, joint sponsor, or household 
member (or their respective estates) of any reimbursement obligation 
under section 213A(b) of the Act and this section that accrued before 
the support obligation terminated.
    (f) Withdrawal of affidavit of support and any required attachments 
. (1) In an immigrant visa case, once the sponsor, substitute sponsor, 
joint sponsor, household member, or intending immigrant has presented a 
signed affidavit of support and any required attachments to a Department 
of State officer, the sponsor, substitute sponsor, joint sponsor, or 
household member may disavow his or her agreement to act as sponsor, 
substitute sponsor, joint sponsor, or household member if he or she does 
so in writing and submits the document to the Department of State 
officer before the actual issuance of an immigrant visa to the intending 
immigrant. Once the intending immigrant has obtained an immigrant visa, 
a sponsor, substitute sponsor, joint sponsor, or household member cannot 
disavow his or her agreement to act as a sponsor, joint sponsor, or 
household member unless the person or entity who filed the visa petition 
withdraws the visa petition in writing, as specified in 8 CFR 
205.1(a)(3)(i)(A) or 8 CFR

[[Page 245]]

205.1(a)(3)(iii)(C), and also notifies the Department of State officer 
who issued the visa of the withdrawal of the petition.
    (2) In an adjustment of status case, once the sponsor, substitute 
sponsor, joint sponsor, household member, or intending immigrant has 
presented a signed affidavit of support and any required attachments to 
an immigration officer or immigration judge, the sponsor, substitute 
sponsor, joint sponsor, or household member may disavow his or her 
agreement to act as sponsor, substitute sponsor, joint sponsor, or 
household member only if he or she does so in writing and submits the 
document to the immigration officer or immigration judge before the 
decision on the adjustment application.
    (g) Aliens who accompany or follow-to-join a principal intending 
immigrant. (1) To avoid inadmissibility under section 212(a)(4) of the 
Act, an alien who applies for an immigrant visa, admission, or 
adjustment of status as an alien who is accompanying, as defined in 22 
CFR 40.1, a principal intending immigrant must submit clear and true 
photocopies of any relevant affidavit(s) and attachments filed on behalf 
of the principal intending immigrant.
    (2)(i) To avoid inadmissibility under section 212(a)(4) of the Act, 
an alien who applies for an immigrant visa, admission, or adjustment of 
status as an alien who is following-to-join a principal intending 
immigrant must submit a new affidavit(s) of support, together with all 
documents or other evidence necessary to prove that the new affidavits 
comply with the requirements of section 213A of the Act and 8 CFR part 
213a.
    (ii) When paragraph (g)(2)(i) of this section requires the filing of 
a new affidavit for an alien who seeks to follow-to-join a principal 
sponsored immigrant, the same sponsor who filed the visa petition and 
affidavit of support for the principal sponsored immigrant must file the 
new affidavit on behalf of the alien seeking to follow-to-join. If that 
person has died, then the alien seeking to follow-to-join is 
inadmissible unless a substitute sponsor, as defined by 8 CFR 213a.1, 
signs a new affidavit that meets the requirements of this section. 
Persons other than the person or persons who signed the original joint 
affidavits on behalf of the principal sponsored immigrant may sign a new 
joint affidavit on behalf of an alien who seeks to follow-to-join a 
principal sponsored immigrant.
    (iii) If a joint sponsor is needed in the case of an alien who seeks 
to follow-to-join a principal sponsored immigrant, and the principal 
sponsored immigrant also required a joint sponsor when the principal 
sponsored immigrant immigrated, that same person may, but is not 
required to be, the joint sponsor for the alien who seeks to follow-to-
join the principal sponsored immigrant.

[62 FR 54352, Oct. 20, 1997; 62 FR 60122, Nov. 6, 1997; 62 FR 64048, 
Dec. 3, 1997; 71 FR 35750, June 21, 2006; 72 FR 56867, Oct. 4, 2007; 76 
FR 53788, Aug. 29, 2011; 76 FR 73477, Nov. 29, 2011]



Sec. 213a.3  Change of address.

    (a) Submission of address change. (1) Filing requirements. If the 
address of a sponsor (including a substitute sponsor or joint sponsor) 
changes while the sponsor's support obligation is in effect, the sponsor 
shall file a change of address notice within 30 days, in a manner as 
prescribed by USCIS on its address change form instructions.
    (2) Proof of mailing. USCIS will accept a photocopy of the change of 
address form together with proof of the form's delivery to USCIS as 
evidence that the sponsor has complied with this requirement.
    (3) Electronic notices. USCIS will provide the sponsor with a 
receipt notice for an address change.
    (4) Alien sponsors. If the sponsor is an alien, the sponsor must 
still comply with the requirements of 8 CFR 265.1 to notify USCIS of his 
or her change of address.
    (b) Civil penalty. If the sponsor fails to give notice in accordance 
with paragraph (a) of this section, DHS may impose on the sponsor a 
civil penalty in an amount within the penalty range established in 
section 213A(d)(2)(A) of the Act. Except, if the sponsor, knowing that 
the sponsored immigrant has received any means-tested public benefit, 
fails to give notice in accordance with paragraph (a) of this section, 
DHS may impose on the sponsor a civil penalty in an amount within the 
penalty range established in section 213A(d)(2)(B) of

[[Page 246]]

the Act. The procedure for imposing a civil penalty is established at 8 
CFR part 280.

[76 FR 53789, Aug. 29, 2011]



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

reports.

    (a) Requests for reimbursement; commencement of civil action. (1) By 
agencies. (i) If an agency that provides a means-tested public benefit 
to a sponsored immigrant wants to seek reimbursement from a sponsor, 
household member, or joint sponsor, the program official must arrange 
for service of a written request for reimbursement upon the sponsor, 
household member, or joint sponsor, by personal service, as defined by 8 
CFR 103.8(a)(2), except that the person making personal service need not 
be a Federal Government officer or employee.
    (ii) The request for reimbursement must specify the date the 
sponsor, household member, or joint sponsor's support obligation 
commenced (this is the date the sponsored immigrant became a permanent 
resident), the sponsored immigrant's name, alien registration number, 
address, and date of birth, as well as the types of means-tested public 
benefit(s) that the sponsored immigrant received, the dates the 
sponsored immigrant received the means-tested public benefit(s), and the 
total amount of the means-tested public benefit(s) received.
    (iii) It is not necessary to make a separate request for each type 
of means-tested public benefit, nor for each separate payment. The 
agency may instead aggregate in a single request all benefit payments 
the agency has made as of the date of the request. A state or local 
government may make a single reimbursement request on behalf of all of 
the state or local government agencies that have provided means-tested 
public benefits.
    (iv) So that the sponsor, household member, or joint sponsor may 
verify the accuracy of the request, the request for reimbursement must 
include an itemized statement supporting the claim for reimbursement. 
The request for reimbursement must also include a notification to the 
sponsor, household member, or joint sponsor that the sponsor, household 
member, or joint sponsor must, within 45 days of the date of service, 
respond to the request for reimbursement either by paying the 
reimbursement or by arranging to commence payments pursuant to a payment 
schedule that is agreeable to the program official.
    (v) Prior to filing a lawsuit against a sponsor, household member, 
or joint sponsor to enforce the sponsor, household member, or joint 
sponsor's support obligation under section 213A(b)(2) of the Act, a 
Federal, state, or local governmental agency or a private entity must 
wait 45 days from the date it serves a written request for reimbursement 
in accordance with this section.
    (2) By the sponsored immigrant. Section 213A(b) of the Act does not 
require a sponsored immigrant to request the sponsor or joint sponsor to 
comply with the support obligation, before bringing an action to compel 
compliance.
    (3) Role of USCIS and DHS. Upon the receipt of a duly issued 
subpoena, USCIS may provide a certified copy of an affidavit of support 
that has been filed on behalf of a specific alien fo