[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2013 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 8
Aliens and Nationality
Revised as of January 1, 2013
Containing a codification of documents of general
applicability and future effect
As of January 1, 2013
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Printing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Printing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P R I N T I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[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 799
Finding Aids:
Table of CFR Titles and Chapters........................ 1101
Alphabetical List of Agencies Appearing in the CFR...... 1121
List of CFR Sections Affected........................... 1131
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 8 CFR 1.1 refers to
title 8, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2013), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected]
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Printing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.ofr.gov. For more
information, contact the GPO Customer Contact Center, U.S. Government
Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected]
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Printing Office. It is
available at www.ecfr.gov.
Charles A. Barth,
Director,
Office of the Federal Register.
January 1, 2013.
[[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, 2013.
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......................... 55
205 Revocation of approval of petitions......... 138
207 Admission of refugees....................... 141
208 Procedures for asylum and withholding of
removal................................. 144
209 Adjustment of status of refugees and aliens
granted asylum.......................... 174
210 Special agricultural workers................ 176
211 Documentary requirements: Immigrants;
waivers................................. 187
212 Documentary requirements: Nonimmigrants;
waivers; admission of certain
inadmissible aliens; parole............. 190
213 Admission of aliens on giving bond or cash
deposit................................. 234
213a Affidavits of support on behalf of
immigrants.............................. 234
214 Nonimmigrant classes........................ 248
215 Controls of aliens departing from the United
States.................................. 433
216 Conditional basis of lawful permanent
residence status........................ 439
217 Visa waiver program......................... 448
221 Admission of visitors or students........... 453
223 Reentry permits, refugee travel documents,
and advance parole documents............ 453
231 Arrival and departure manifests............. 455
232 Detention of aliens for physical and mental
examination............................. 457
233 Contracts with transportation lines......... 458
234 Designation of ports of entry for aliens
arriving by civil aircraft.............. 459
235 Inspection of persons applying for admission 461
236 Apprehension and detention of inadmissible
and deportable aliens; removal of aliens
ordered removed......................... 483
237 [Reserved]
238 Expedited removal of aggravated felons...... 494
239 Initiation of removal proceedings........... 497
240 Voluntary departure, suspension of
deportation and special rule
cancellation of removal................. 498
241 Apprehension and detention of aliens ordered
removed................................. 511
[[Page 5]]
242-243 [Reserved]
244 Temporary protected status for nationals of
designated states....................... 538
245 Adjustment of status to that of person
admitted for permanent residence........ 546
245a Adjustment of status to that of persons
admitted for temporary or permanent
resident status under section 245A of
the Immigration and Nationality Act..... 592
246 Rescission of adjustment of status.......... 644
247 Adjustment of status of certain resident
aliens.................................. 645
248 Change of nonimmigrant classification....... 647
249 Creation of records of lawful admission for
permanent residence..................... 651
250 Removal of aliens who have fallen into
distress................................ 651
251 Arrival and departure manifests and lists:
Supporting documents.................... 652
252 Landing of alien crewmen.................... 655
253 Parole of alien crewmen..................... 659
258 Limitations on performance of longshore work
by alien crewmen........................ 661
264 Registration and fingerprinting of aliens in
the United States....................... 664
265 Notices of address.......................... 671
270 Penalties for document fraud................ 671
271 Diligent and reasonable efforts to prevent
the unauthorized entry of aliens by the
owners of railroad lines, international
bridges or toll roads................... 674
273 Carrier responsibilities at foreign ports of
embarkation; reducing, refunding, or
waiving fines under section 273 of the
Act..................................... 674
274 Seizure and forfeiture of conveyances....... 676
274a Control of employment of aliens............. 676
280 Imposition and collection of fines.......... 703
286 Immigration user fee........................ 708
287 Field officers; powers and duties........... 712
289 American Indians born in Canada............. 728
292 Representation and appearances.............. 728
293 Deposit of and interest on cash received to
secure immigration bonds................ 736
299 Immigration forms........................... 737
SUBCHAPTER C--NATIONALITY REGULATIONS
301 Nationals and citizens of the United States
at birth................................ 739
306 Special classes of persons who may be
naturalized: Virgin Islanders........... 739
[[Page 6]]
310 Naturalization authority.................... 740
312 Educational requirements for naturalization. 742
313 Membership in the Communist Party or any
other totalitarian organizations........ 744
315 Persons ineligible to citizenship: Exemption
from military service................... 747
316 General requirements for naturalization..... 748
318 Pending removal proceedings................. 757
319 Special classes of persons who may be
naturalized: Spouses of United States
citizens................................ 758
320 Child born outside the United States and
residing permanently in the United
States; requirements for automatic
acquisition of citizenship.............. 761
322 Child born outside the United States;
requirements for application for
certificate of citizenship.............. 763
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............... 766
325 Nationals but not citizens of the United
States; residence within outlying
possessions............................. 768
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............................ 769
328 Special classes of persons who may be
naturalized: Persons with 1 year of
service in the United States Armed
Forces.................................. 769
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........ 770
330 Special classes of persons who may be
naturalized: Seamen..................... 772
331 Alien enemies; naturalization under
specified conditions and procedures..... 773
332 Naturalization administration............... 773
333 Photographs................................. 774
334 Application for naturalization.............. 775
335 Examination on application for
naturalization.......................... 776
336 Hearings on denials of applications for
naturalization.......................... 780
337 Oath of allegiance.......................... 781
338 Certificate of naturalization............... 785
339 Functions and duties of clerks of court
regarding naturalization proceedings.... 786
340 Revocation of naturalization................ 787
[[Page 7]]
341 Certificates of citizenship................. 787
342 Administrative cancellation of certificates,
documents, or records................... 789
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... 791
343a Naturalization and citizenship papers lost,
mutilated, or destroyed; new certificate
in changed name; certified copy of
repatriation proceedings................ 792
343b Special certificate of naturalization for
recognition by a foreign state.......... 793
343c Certifications from records................. 794
349 Loss of nationality......................... 794
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.................. 794
[[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]
Effective Date Note 1: At 77 FR 75824, Dec. 26, 2012, the list of
ports in Sec. 100.4(a) was amended by removing ``Whitetail, MT'' from
the list of Class A ports of entry under District No. 30--Helena,
Montana, effective Jan. 25, 2013.
Effective Date Note 2: At 77 FR 76352, Dec. 28, 2012, Sec. 100.4
was amended by revising
[[Page 23]]
the fifth sentence of paragraph (a) and, under the heading ``District
No. 15--El Paso, Texas,'', adding the subheading ``Class B'' and adding
``Boquillas, TX'' under the new ``Class B'' subheading, effective Jan.
28, 2013. For the convenience of the user, the added text is set forth
as follows:
Sec. 100.4 Field offices.
(a) * * * Class B means that the port is a designated Port-of-Entry
for aliens who at the time of applying for admission are exempt from
document requirements by Sec. 212.1(c)(5) of this chapter or who are
lawfully in possession of valid Permanent Resident Cards, and
nonimmigrant aliens who are citizens of Canada or Bermuda or nationals
of Mexico and who at the time of applying for admission are lawfully in
possession of all valid documents required for admission as set forth in
Sec. Sec. 212.1(a) and (c) and 235.1(d) and (e) of this chapter and are
admissible without further arrival documentation or immigration
processing. * * *
* * * * *
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, 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
[[Page 24]]
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 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
[[Page 25]]
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 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
[[Page 26]]
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]
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
[[Page 27]]
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
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
[[Page 28]]
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]
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.
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,
1365b; 31 U.S.C. 9701; Pub. L. 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
[[Page 29]]
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 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
[[Page 30]]
this from the relevant government or other authority. The statement must
indicate the reason the record does not exist, and indicate whether
similar records for the time and place are available. However, a
certification from an appropriate foreign government that a document
does not exist is not required where the Department of State's Foreign
Affairs Manual indicates this type of document generally does not exist.
An applicant or petitioner who has not been able to acquire the
necessary document or statement from the relevant foreign authority may
submit evidence that repeated good faith attempts were made to obtain
the required document or statement. However, where USCIS finds that such
documents or statements are generally available, it may require that the
applicant or petitioner submit the required document or statement.
(iii) Evidence provided with a self-petition filed by a spouse or
child of abusive citizen or resident. The USCIS will consider any
credible evidence relevant to a self-petition filed by a qualified
spouse or child of an abusive citizen or lawful permanent resident under
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not
required to, demonstrate that preferred primary or secondary evidence is
unavailable. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
USCIS.
(3) Translations. Any document containing foreign language submitted
to USCIS shall be accompanied by a full 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
[[Page 31]]
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.
(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
[[Page 32]]
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 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
[[Page 33]]
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 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
[[Page 34]]
months of the district director's determination, the investigation has
not been completed, the matter shall be reviewed again by the district
director and, if he/she concludes that more time is needed to complete
the investigation, adjudication may be held in abeyance for up to
another six months. If the investigation is not completed at the end of
that time, the matter shall be referred to the regional commissioner,
who may authorize that adjudication be held in abeyance for another six
months. Thereafter, if the Associate Commissioner, Examinations, with
the concurrence of the Associate Commissioner, Enforcement, determines
it is necessary to continue to withhold adjudication pending completion
of the investigation, he/she shall review that determination every six
months.
(19) Notification 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 Notes: 1. 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.
2. 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) had earlier been 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
[[Page 35]]
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 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.
[[Page 36]]
(x) Decision on appeal. The decision must be in writing. A copy of
the decision must be served on the affected party and the attorney or
representative of record, if any.
(3) Denials and appeals of special agricultural worker and
legalization applications and termination of lawful temporary resident
status under sections 210 and 245A. (i) Whenever an application for
legalization or special agricultural worker status is denied or the
status of a lawful temporary resident is terminated, the alien shall be
given written notice setting forth the specific reasons for the denial
on Form I-692, Notice of Denial. Form I-692 shall also contain advice to
the applicant that he or she may appeal the decision and that such
appeal must be taken within 30 days after service of the notification of
decision accompanied by any additional new evidence, and a supporting
brief if desired. The Form I-692 shall additionally provide a notice to
the alien that if he or she fails to file an appeal from the decision,
the Form I-692 will serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service
on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by Sec.
103.1(f)(2) of this part for review and decision. The decision on the
appeal shall be in writing, and if the appeal is dismissed, shall
include a final notice of ineligibility. A copy of the decision shall be
served upon the applicant and his or her attorney or representative of
record. No further administrative appeal shall lie from this decision,
nor may the application be filed or reopened before an immigration judge
or the Board of Immigration Appeals during exclusion or deportation
proceedings.
(iv) Any appeal which is filed that:
(A) Fails to state the reason for appeal;
(B) Is filed solely on the basis of a denial for failure to file the
application for adjustment of status under section 210 or 245A in a
timely manner; or
(C) Is patently frivolous; will be summarily dismissed. An appeal
received after the thirty (30) day period has tolled will not be
accepted for processing.
(4) Denials and appeal of Replenishment Agricultural Worker
petitions and waivers and termination of lawful temporary resident
status under section 210A. (i) Whenever a petition for Replenishment
Agricultural Worker status, or a request for a waiver incident to such
filing, is denied in accordance with the provisions of part 210a of this
title, the alien shall be given written notice setting forth the
specific reasons for the denial on Form I-692, Notice of Denial. Form I-
692 shall also contain advice to the alien that he or she may appeal the
decision and that such appeal must be taken within thirty (30) days
after service of the notification of decision accompanied by any
additional new evidence, and a supporting brief if desired. The Form I-
692 shall additionally provide a notice to the alien that if he or she
fails to file an appeal from the decision, the Form I-692 shall serve as
a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service
on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by Sec.
103.1(f)(2) of this part for review and decision. The decision on the
appeal shall be in writing, and if the appeal is dismissed, shall
include a final notice of ineligibility. A 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
[[Page 37]]
this title in a timely manner; or is patently frivolous, will be
summarily dismissed. An appeal received after the thirty (30) day period
has tolled will not be accepted for processing.
(b) Oral argument regarding appeal before AAU--(1) Request. If the
affected party desires oral argument, the affected party must explain in
writing specifically why oral argument is necessary. For such a request
to be considered, it must be submitted within the time allowed for
meeting other requirements.
(2) Decision about oral argument. The Service has sole authority to
grant or deny a request for oral argument. Upon approval of a request
for oral argument, the AAU shall set the time, date, place, and
conditions of oral argument.
(c) Service precedent decisions. The Secretary of Homeland Security,
or specific officials of the Department of Homeland Security designated
by the Secretary with the concurrence of the Attorney General, may file
with the Attorney General decisions relating to the administration of
the immigration laws of the United States for publication as precedent
in future proceedings, and upon approval of the Attorney General as to
the lawfulness of such decision, the Director of the Executive Office
for Immigration Review shall cause such decisions to be published in the
same manner as decisions of the Board and the Attorney General. In
addition to Attorney General and Board decisions referred to in Sec.
1003.1(g) of chapter V, designated Service decisions are to serve as
precedents in all proceedings involving the same issue(s). Except as
these decisions may be modified or overruled by later precedent
decisions, they are binding on all Service employees in the
administration of the Act. Precedent decisions must be published and
made available to the public as described in 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.
[[Page 38]]
(b) Certification of denials of special agricultural worker and
legalization applications. The Regional Processing Facility director or
the district director may, in accordance with paragraph (a) of this
section, certify a decision to the Associate Commissioner, Examinations
(Administrative Appeals Unit) (the appellate authority designated in
Sec. 103.1(f)(2)) of this part, when the case involves an unusually
complex or novel question of law or fact.
[52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988; 55
FR 20770, May 21, 1990]
Sec. 103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special
agricultural worker and legalization cases--(1) When filed by affected
party--(i) General. Except where the Board has jurisdiction and as
otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the
affected party files a motion, the official having jurisdiction may, for
proper cause shown, reopen the proceeding or reconsider the prior
decision. Motions to reopen or reconsider are not applicable to
proceedings described in Sec. 274a.9 of this chapter. Any motion to
reconsider an action by the Service filed by an applicant or petitioner
must be filed within 30 days of the decision that the motion seeks to
reconsider. Any motion to reopen a proceeding before the Service filed
by an applicant or petitioner, must be filed within 30 days of the
decision that the motion seeks to reopen, except that failure to file
before this period expires, may be excused in the discretion of the
Service where it is demonstrated that the delay was reasonable and was
beyond the control of the applicant or petitioner.
(ii) Jurisdiction. The official having jurisdiction is the official
who made the latest decision in the proceeding unless the affected party
moves to a new jurisdiction. In that instance, the new official having
jurisdiction is the official over such a proceeding in the new
geographical locations.
(iii) Filing Requirements--A motion shall be submitted on Form I-
290B and may be accompanied by a brief. It must be:
(A) In writing and signed by the affected party or the attorney or
representative of record, if any;
(B) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;
(C) Accompanied by a statement about whether or not the validity of
the unfavorable decision has been or is the subject of any judicial
proceeding and, if so, the court, nature, date, and status or result of
the proceeding;
(D) Addressed to the official having jurisdiction; and
(E) Submitted to the office maintaining the record upon which the
unfavorable decision was made for forwarding to the official having
jurisdiction.
(iv) Effect of motion or subsequent application or petition. Unless
the Service directs otherwise, the filing of a motion to reopen or
reconsider or of a subsequent application or petition does 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
[[Page 39]]
filed, also establish that the decision was incorrect based on the
evidence of record at the time of the initial decision.
(4) Processing motions in proceedings before the Service. A motion
that does not meet applicable requirements shall be dismissed. Where a
motion to reopen is granted, the proceeding shall be reopened. The
notice and any favorable decision may be combined.
(5) Motion by Service officer--(i) Service motion with decision
favorable to affected party. When a Service officer, on his or her own
motion, reopens a Service proceeding or reconsiders a Service decision
in order to make a new decision favorable to the affected party, the
Service officer shall combine the motion and the favorable decision in
one action.
(ii) Service motion with decision that may be unfavorable to
affected party. When a Service officer, on his or her own motion,
reopens a Service proceeding or reconsiders a Service decision, and the
new decision may be unfavorable to the affected party, the officer shall
give the affected party 30 days after service of the motion to submit a
brief. The officer may extend the time period for good cause shown. If
the affected party does not wish to submit a brief, the affected party
may waive the 30-day period.
(6) Appeal to AAU from Service decision made as a result of a
motion. A field office decision made as a result of a motion may be
applied to the AAU only if the original decision was appealable to the
AAU.
(7) Other applicable provisions. The provisions of Sec.
103.3(a)(2)(x) of this part also apply to decisions on motions. The
provisions of Sec. 103.3(b) of this part also apply to requests for
oral argument regarding motions considered by the AAU.
(8) Treating an appeal as a motion. The official who denied an
application or petition may treat the appeal from that decision as a
motion for the purpose of granting the motion.
(b) Motions to reopen or reconsider denials of special agricultural
worker and legalization applications. Upon the filing of an appeal to
the Associate Commissioner, Examinations (Administrative Appeals Unit),
the Director of a Regional Processing Facility or the consular officer
at an Overseas Processing Office may sua sponte reopen any proceeding
under his or her jurisdiction opened under part 210 or 245a of this
chapter and may reconsider any decision rendered in such proceeding. The
new decision must be served on the appellant within 45 days of receipt
of any brief and/or new evidence, or upon expiration of the time allowed
for the submission of a brief. The Associate Commissioner, Examinations,
or the Chief of the Administrative Appeals Unit may sua sponte reopen
any proceeding conducted by that Unit under part 210 or 245a of this
chapter and reconsider 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]
[[Page 40]]
Sec. 103.6 Surety bonds.
(a) Posting of surety bonds--(1) Extension agreements; consent of
surety; collateral security. All surety bonds posted in immigration
cases shall be executed on Form I-352, Immigration Bond, a copy of
which, and any rider attached thereto, shall be furnished the obligor. A
district director is authorized to approve a bond, a formal agreement to
extension of liability of surety, a request for delivery of collateral
security to a duly appointed and undischarged administrator or executor
of the estate of a deceased depositor, and a power of attorney executed
on Form I-312, Designation of Attorney in Fact. All other matters
relating to bonds, including a power of attorney not executed on Form I-
312 and a request for delivery of collateral security to other than the
depositor or his or her approved attorney in fact, shall be forwarded to
the regional director for approval.
(2) Bond riders--(i) General. Bond riders shall be prepared on Form
I-351, Bond Riders, and attached to Form I-352. If a condition to be
included in a bond is not on Form I-351, a rider containing the
condition shall be executed.
(ii) [Reserved]
(b) Acceptable sureties. Either a company holding a certificate from
the Secretary of the Treasury under 6 U.S.C. 6-13 as an acceptable
surety on Federal bonds, or a surety who deposits cash or U.S. bonds or
notes of the class described in 6 U.S.C. 15 and Treasury Department
regulations issued pursuant thereto and which are not redeemable within
1 year from the date they are offered for deposit is an acceptable
surety.
(c) Cancellation--(1) Public charge bonds. A public charge bond
posted for an immigrant shall be cancelled when the alien dies, departs
permanently from the United States or is naturalized, provided the
immigrant did not become a public charge prior to death, departure, or
naturalization. The district director may cancel a public charge bond at
any time if he/she finds that the immigrant is not likely to become a
public charge. A bond may also be cancelled in order to allow
substitution of another bond. A public charge bond shall be cancelled by
the district director upon review following the fifth anniversity of the
admission of the immigrant, provided that the alien has filed Form I-
356, Request for Cancellation of Public Charge Bond, and the district
director finds that the immigrant did not become a public charge prior
to the fifth anniversary. If Form I-356 is not filed, the bond shall
remain in effect until the form is filed and the district director
reviews the evidence supporting the form and renders a decision to
breach or cancel the bond.
(2) Maintenance of status and departure bonds. When the status of a
nonimmigrant who has violated the conditions of his admission has been
adjusted as a result of administrative or legislative action to that of
a permanent resident retroactively to a date prior to the violation, any
outstanding maintenance of status and departure bond shall be canceled.
If an application for adjustment of status is made by a nonimmigrant
while he is in lawful temporary status, the bond shall be canceled if
his status is adjusted to that of a lawful permanent resident or if he
voluntarily departs within any period granted to him. As used in this
paragraph, the term lawful temporary status means that there must not
have been a violation of any of the conditions of the alien's
nonimmigrant classification by acceptance of unauthorized employment or
otherwise during the time he has been accorded such classification, and
that from the date of admission to the date of departure or adjustment
of status he must have had uninterrupted Service approval of his
presence in the United States in the 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
[[Page 41]]
consular officer that the alien is outside the United States and the
nonimmigrant visa issued pursuant to the posting of the bond has been
canceled or has expired.
(3) Substantial performance. Substantial performance of all
conditions imposed by the terms of a bond shall release the obligor from
liability.
(d) Bond schedules--(1) Blanketbonds for departure of visitors and
transits. The amount of bond required for various numbers of
nonimmigrant visitors or transits admitted under bond on Forms I-352
shall be in accordance with the following schedule:
Aliens
1 to 4--$500 each.
5 to 9--$2,500 total bond.
10 to 24--$3,500 total bond.
25 to 49--$5,000 total bond.
50 to 74--$6,000 total bond.
75 to 99--$7,000 total bond.
100 to 124--$8,000 total bond.
125 to 149--$9,000 total bond.
150 to 199--$10,000 total bond.
200 or more--$10,000 plus $50 for each alien over 200.
(2) Blanket bonds for importation of workers classified as
nonimmigrants under section 101(a)(15)(H). The following schedule shall
be employed by district directors when requiring employers or their
agents or representatives to post bond as a condition to importing alien
laborers into the United States from the West Indies, the British Virgin
Islands, or from Canada:
Less than 500 workers--$15 each
500 to 1,000 workers--$10 each
1,000 or more workers--$5 each
A bond shall not be posted for less than $1,000 or for more than $12,000
irrespective of the number of workers involved. Failure to comply with
conditions of the bond will result in the employer's liability in the
amount of $200 as liquidated damages for each alien involved.
(e) Breach of bond. A bond is breached when there has been a
substantial violation of the stipulated conditions. A final
determination that a bond has been breached creates a claim in favor of
the United States which may not be released or discharged by a Service
officer. The district director having custody of the file containing the
immigration bond executed on Form I-352 shall determine whether the bond
shall be declared breached or cancelled, and shall notify the obligor on
Form I-323 or Form I-391 of the decision, and, if declared breached, of
the reasons therefor, and of the right to appeal in accordance with the
provisions of this part.
[31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967; 33
FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23,
1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40 FR
42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June 11,
1984; 60 FR 21974, May 4, 1995; 62 FR 10336, Mar. 6, 1997; 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
[[Page 42]]
``Commissioner of Finance of the Virgin Islands'' and, in the case of
applicants residing in Guam, the remittances shall be made payable to
the ``Treasurer, Guam.'' If an application to the Department of Homeland
Security is submitted from outside the United States, remittance may be
made by bank international money order or foreign draft drawn on a
financial institution in the United States and payable to the Department
of Homeland Security. Remittances to the Board of Immigration Appeals
shall be made payable to the ``United States Department of Justice,'' in
accordance with 8 CFR 1003.8. A charge of $30.00 will be imposed if a
check in payment of a fee or any other matter is not honored by the bank
or financial institution on which it is drawn. A receipt issued by a
Department of Homeland Security officer for any remittance shall not be
binding upon the Department of Homeland Security if the remittance is
found uncollectible. Furthermore, legal and statutory deadlines will not
be deemed to have been met if payment is not made within 10 business
days after notification by the Department of Homeland Security of the
dishonored check.
(b) Amounts of fees. (1) 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
[[Page 43]]
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, 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
[[Page 44]]
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 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
[[Page 45]]
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 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.
[[Page 46]]
(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.
(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:
[[Page 47]]
(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.
(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.
(M) Global Entry. For filing an application for Global Entry--$100.
(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
[[Page 48]]
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 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
[[Page 49]]
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.
(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 Notes: 1.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.
2. 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
[[Page 50]]
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;
(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.
[[Page 51]]
(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 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]
[[Page 52]]
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 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
[[Page 53]]
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; 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
[[Page 54]]
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 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]
[[Page 55]]
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]
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
[[Page 56]]
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 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);
[[Page 57]]
(iii) An unexpired United States passport issued initially for a
full five-year period to the petitioner under the age of eighteen years
as a citizen of the United States (and not merely as a noncitizen
national);
(iv) A statement executed by a United States consular officer
certifying the petitioner to be a United States citizen and the bearer
of a currently valid United States passport;
(v) The petitioner's Certificate of Naturalization or Certificate of
Citizenship;
(vi) Department of State Form FS-240, Report of Birth Abroad of a
Citizen of the United States, relating to the petitioner;
(vii) The petitioner's Form I-551, Permanent Resident Card, or other
proof given by the Service as evidence of lawful permanent residence.
Photocopies of Form I-551 or of a Certificate of Naturalization or
Certificate of Citizenship may be submitted as evidence of status as a
lawfully permanent resident or United States citizen, respectively.
(2) Secondary evidence. If primary evidence is unavailable, the
petitioner must present secondary evidence. Any evidence submitted as
secondary evidence will be evaluated for authenticity and credibility.
Secondary evidence may include, but is not limited to, one or more of
the following documents:
(i) A baptismal certificate with the seal of the church, showing the
date and place of birth in the United States and the date of baptism;
(ii) Affidavits sworn to by persons who were living at the time and
who have personal knowledge of the event to which they attest. The
affidavits must contain the affiant's full name and address, date and
place of birth, relationship to the parties, if any, and complete
details concerning how the affiant acquired knowledge of the event;
(iii) Early school records (preferably from the first school)
showing the date of admission to the school, the child's date and place
of birth, and the name(s) and place(s) of birth of the parent(s);
(iv) Census records showing the name, place of birth, and date of
birth or age of the petitioner; or
(v) If it is determined that it would cause unusual delay or
hardship to obtain documentary proof of birth in the United States, a
United States citizen petitioner who is a member of the Armed Forces of
the United States and who is serving outside the United States may
submit a statement from the appropriate authority of the Armed Forces.
The statement should attest to the fact that the personnel records of
the Armed Forces show that the petitioner was born in the United States
on a certain date.
(3) Evidence submitted with a self-petition. If a self-petitioner
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
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
[[Page 58]]
resident based upon a prior marriage to a United States citizen or alien
lawfully admitted for permanent residence, unless:
(1) The petitioner establishes by clear and convincing evidence that
the marriage through which the petitioner gained permanent residence was
not entered into for the purposes of evading the immigration laws; or
(2) The marriage through which the petitioner obtained permanent
residence was terminated through death.
(B) Documentation. The petitioner should submit documents which
cover the period of the prior marriage. The types of documents which may
establish that the prior marriage was not entered into for the purpose
of evading the immigration laws include, but are not limited to:
(1) Documentation showing joint ownership of property;
(2) A lease showing joint tenancy of a common residence;
(3) Documentation showing commingling of financial resources;
(4) Birth certificate(s) of child(ren) born to the petitioner and
prior spouse;
(5) Affidavits sworn to or affirmed by third parties having personal
knowledge of the bona fides of the prior marital relationship. (Each
affidavit must contain the full name and address, date and place of
birth of the person making the affidavit; his or her relationship, if
any, to the petitioner, beneficiary or prior spouse; and complete
information and details explaining how the person acquired his or her
knowledge of the prior marriage. The affiant may be required to testify
before an immigration officer about the information contained in the
affidavit. Affidavits should be supported, if possible, by one or more
types of documentary evidence listed in this paragraph.); or
(6) Any other documentation which is relevant to establish that the
prior marriage was not entered into in order to evade the immigration
laws of the United States.
(C) The petitioner must establish by clear and convincing evidence
that the prior marriage was not entered into for the purpose of evading
the immigration laws. Failure to meet the ``clear and convincing
evidence'' standard will result in the denial of the petition. Such a
denial shall be without prejudice to 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
[[Page 59]]
I-130. The request must state the reason for seeking the exemption and
must be supported by documentary evidence establishing eligibility for
the exemption.
(B) Evidence to establish eligibility for the bona fide marriage
exemption. The petitioner should submit documents which establish that
the marriage was entered into in good faith and not entered into for the
purpose of procuring the alien's entry as an immigrant. The types of
documents the petitioner may submit include, but are not limited to:
(1) Documentation showing joint ownership of property;
(2) Lease showing joint tenancy of a common residence;
(3) Documentation showing commingling of financial resources;
(4) Birth certificate(s) of child(ren) born to the petitioner and
beneficiary;
(5) Affidavits of third parties having knowledge of the bona fides
of the marital relationship (Such persons may be required to testify
before an immigration officer as to the information contained in the
affidavit. Affidavits must be sworn to or affirmed by people who have
personal knowledge of the marital relationship. Each affidavit must
contain the full name and address, date and place of birth of the person
making the affidavit and his or her relationship to the spouses, if any.
The affidavit must contain complete information and details explaining
how the person acquired his or her knowledge of the marriage. Affidavits
should be supported, if possible, by one or more types of documentary
evidence listed in this paragraph); or
(6) Any other documentation which is relevant to establish that the
marriage was not entered into in order to evade the immigration laws of
the United States.
(C) Decision. Any petition filed during the prohibited period shall
be denied, unless the petitioner establishes eligibility for an
exemption from the general prohibition. The petitioner shall be notified
in writing of the decision of the director.
(D) Denials. The denial of a petition because the marriage took
place during the prohibited period shall be without prejudice to the
filing of a new petition after the beneficiary has resided outside the
United States for the required 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
[[Page 60]]
accepted by the district director when the petitioner or beneficiary
reside(s) in a country where such photographs are unavailable or cost
prohibitive.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. No alien may be classified as an
immediate relative as defined in section 201(b) of the Act unless he or
she is the direct beneficiary of an approved petition for that
classification. Therefore, a child of an alien approved for
classification as an immediate relative spouse is not eligible for
derivative classification and must have a separate petition filed on his
or her behalf. A child accompanying or following to join a principal
alien under section 203(a)(2) of the Act may be included in the
principal alien's second preference visa petition. The child will be
accorded second preference classification and the same priority date as
the principal alien. However, if the child reaches the age of twenty-one
prior to the issuance of a visa to the principal alien parent, a
separate petition will be required. In such a case, the original
priority date will be retained if the subsequent petition is filed by
the same petitioner. Such retention of priority date will be accorded
only to a son or daughter previously eligible as a derivative
beneficiary under a second preference spousal petition.
(b) Petition by widow or widower of a United States citizen--(1)
Eligibility. A widow or widower of a United States citizen may file a
petition and be classified as an immediate relative under section 201(b)
of the Act if:
(i) He or she had been married for at least two years to a United
States citizen.
(Note: The United States citizen is not required to have had the
status of United States citizen for the entire two year period, but must
have been a United States citizen at the time of death.)
(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
[[Page 61]]
information and details explaining how knowledge of the event was
acquired.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
widow or widower is in the United States and is eligible for adjustment
of status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the widow or widower
will be notified of the reasons for the denial and of the right to
appeal in accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A child of an alien widow or widower
classified as an immediate relative is eligible for derivative
classification as an immediate relative. Such a child may be included in
the principal alien's immediate relative visa petition, and may
accompany or follow to join the principal alien to the United States.
Derivative benefits do not extend to an unmarried or married son or
daughter of an alien widow or widower.
(c) Self-petition by spouse of abusive citizen or lawful permanent
resident--(1) Eligibility--(i) Basic eligibility requirements. A spouse
may file a self-petition under section 204(a)(1)(A)(iii) or
204(a)(1)(B)(ii) of the Act for his or her classification as an
immediate relative or as a preference immigrant if he or she:
(A) Is the spouse of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident spouse;
(E) Has been battered by, or has been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident during the
marriage; or is that parent of a child who has been battered by, or has
been the subject of extreme cruelty perpetrated by, the citizen or
lawful permanent resident during the marriage;
(F) Is a person of good moral character;
(G) Is a person whose deportation would result in extreme hardship
to himself, herself, or his or her child; and
(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
[[Page 62]]
any forceful detention, which results or threatens to result in physical
or mental injury. Psychological or sexual abuse or exploitation,
including rape, molestation, incest (if the victim is a minor), or
forced prostitution shall be considered acts of violence. Other abusive
actions may also be acts of violence under certain circumstances,
including acts that, in and of themselves, may not initially appear
violent but that are a part of an overall pattern of violence. The
qualifying abuse must have been committed by the citizen or lawful
permanent resident spouse, must have been perpetrated against the self-
petitioner or the self-petitioner's child, and must have taken place
during the self-petitioner's marriage to the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act would
not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the commission
of the offense or offenses in a court of law. A self-petitioner will
also be found to lack good moral character, unless he or she establishes
extenuating circumstances, if he or she willfully failed or refused to
support dependents; or committed unlawful acts that adversely reflect
upon his or her moral character, or was convicted or imprisoned for such
acts, although the acts do not require an automatic finding of lack of
good moral character. A self-petitioner's claim of good moral character
will be evaluated on a case-by-case basis, taking into account the
provisions of section 101(f) of the Act and the standards of the average
citizen in the community. If the results of record checks conducted
prior to the issuance of an immigrant visa or approval of an application
for adjustment of status disclose that the self-petitioner is no 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,
[[Page 63]]
of both the self-petitioner and the abuser. If the self-petition is
based on a claim that the self-petitioner's child was battered or
subjected to extreme cruelty committed by the citizen or lawful
permanent resident spouse, the self-petition should also be accompanied
by the child's birth certificate or other evidence showing the
relationship between the self-petitioner and the abused child.
(iii) Residence. One or more documents may be submitted showing that
the self-petitioner and the abuser have resided together in the United
States. One or more documents may also be submitted showing that the
self-petitioner is residing in the United States when the self-petition
is filed. Employment records, utility receipts, school records, hospital
or medical records, birth certificates of children born in the United
States, deeds, mortgages, rental records, insurance policies, affidavits
or any other type of relevant credible evidence of residency may be
submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or have taken other legal steps to end the
abuse are strongly encouraged to submit copies of the relating legal
documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. Other forms of credible
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to establish a pattern of abuse and
violence and to support a claim that qualifying abuse also occurred.
(v) Good moral character. Primary evidence of the self-petitioner's
good moral character is the self-petitioner's affidavit. The affidavit
should be accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in the United
States in which the self-petitioner has resided for six or more months
during the 3-year period immediately preceding the filing of the self-
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.
[[Page 64]]
(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 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
[[Page 65]]
proof of legal termination of the parents' prior marriages, if any,
issued by civil authorities must accompany the petition. If the father's
name has been legally changed, evidence of the name change must also
accompany the petition.
(ii) Primary evidence for a legitimated child or son or daughter. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If the
legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided--while the
child was under eighteen years of age--in the country or state under
whose laws the child has been legitimated. Primary evidence of the
relationship should consist of the beneficiary's birth certificate and
the parents' marriage certificate or other evidence of legitimation
issued by civil authorities.
(iii) Primary evidence for an illegitimate child or son or daughter.
If a petition is submitted by the mother, the child's birth certificate,
issued by civil authorities and showing the mother's name, must
accompany the petition. If the mother's name on the birth certificate is
different from her name as reflected in the petition, evidence of the
name change must also be submitted. If the petition is submitted by the
purported father of a child or son or daughter born out of wedlock, the
father must show that he is the natural father and that a bona fide
parent-child 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.
[[Page 66]]
(v) Secondary evidence. When it is established that primary evidence
is not available, secondary evidence may be accepted. To determine the
availability of primary documents, the Service will refer to the
Department of State's Foreign Affairs Manual (FAM). When the FAM shows
that primary documents are generally available in the country at issue
but the petitioner claims that his or her document is unavailable, a
letter from the appropriate registrar stating that the document is not
available will be required before the Service will accept secondary
evidence. Secondary evidence will be evaluated for its authenticity and
credibility. Secondary evidence may take the form of historical
evidence; such evidence must have been issued contemporaneously with the
event which it documents any may include, but is not limited to, medical
records, school records, and religious documents. Affidavits may also by
accepted. When affidavits are submitted, they must be sworn to by
persons who were born at the time of and who have personal knowledge of
the event to which they attest. Any affidavit must contain the affiant's
full name and address, date and place of birth, relationship to the
party, if any, and complete details concerning how the affiant acquired
knowledge of the event.
(vi) Blood tests. The director may require that a specific Blood
Group Antigen Test be conducted of the beneficiary and the beneficiary's
father and mother. In general, blood tests will be required only after
other forms of evidence have proven inconclusive. If the specific Blood
Group Antigen Test is also found not to be conclusive and the director
determines that additional evidence is needed, a Human Leucocyte Antigen
(HLA) test may be requested. Tests will be conducted, at the expense of
the petitioner or beneficiary, by the United States Public Health
Service physician who is authorized overseas or 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
[[Page 67]]
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 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;
[[Page 68]]
(E) Has been battered by, or has been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident parent while
residing with that parent;
(F) Is a person of good moral character; and
(G) Is a person whose deportation would result in extreme hardship
to himself or herself.
(ii) Parent-child relationship to the abuser. The self-petitioning
child must be unmarried, less than 21 years of age, and otherwise
qualify as the abuser's child under the definition of child contained in
section 101(b)(1) of the Act when the petition is filed and when it is
approved. Termination of the abuser's parental rights or a change in
legal custody does not alter the self-petitioning relationship provided
the child meets the requirements of section 101(b)(1) of the Act.
(iii) Citizenship or immigration status of the abuser. The abusive
parent must be a citizen of the United States or a lawful permanent
resident of the United States when the petition is filed and when it is
approved. Changes in the abuser's citizenship or lawful permanent
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an
abusive lawful permanent resident will not be automatically upgraded to
immediate relative status. The self-petitioning child would not be
precluded, however, from filing a new self-petition for immediate
relative classification after the abuser's naturalization, provided the
self-petitioning child continues to meet the self-petitioning
requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was battered by or was the subject of extreme cruelty''
includes, but is not limited to, being the victim of any act or
threatened act of violence, including any forceful detention, which
results or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in
and of themselves, may not initially appear violent but are a part of an
overall pattern of violence. The qualifying abuse must have been
committed by the citizen or lawful permanent resident parent, must have
been perpetrated against the self-petitioner, and must have taken place
while the self-petitioner was residing with the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable 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
[[Page 69]]
the community. If the results of record checks conducted prior to the
issuance of an immigrant visa or approval of an application for
adjustment of status disclose that the self-petitioner is no longer a
person of good moral character or that he or she has not been a person
of good moral character in the past, a pending self-petition will be
denied or the approval of a self-petition will be revoked.
(viii) Extreme hardship. The Service will consider all credible
evidence of extreme hardship submitted with a self-petition, including
evidence of hardship arising from circumstances surrounding the abuse.
The extreme hardship claim will be evaluated on a case-by-case basis
after a review of the evidence in the case. Self-petitioners are
encouraged to cite and document all applicable factors, since there is
no guarantee that a particular reason or reasons will result in a
finding that deportation would cause extreme hardship. Hardship to
persons other than the self-petitioner cannot be considered in
determining whether a self-petitioning child's deportation would cause
extreme hardship.
(2) Evidence for a child's self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible.
The Service will consider, however, any credible evidence relevant to
the petition. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
the Service.
(ii) Relationship. A self-petition filed by a child must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident abuser.
It must also be accompanied by evidence of the relationship. Primary
evidence of the relationship between:
(A) The self-petitioning child and an abusive biological mother is
the self-petitioner's birth certificate issued by civil authorities;
(B) A self-petitioning child who was born in wedlock and an abusive
biological father is the child's birth certificate issued by civil
authorities, the marriage certificate of the child's parents, and
evidence of legal termination of all prior marriages, if any;
(C) A legitimated self-petitioning child and an abusive biological
father is the child's birth certificate issued by civil authorities, and
evidence of the child's legitimation;
(D) A self-petitioning child who was born out of wedlock and an
abusive biological father is the child's birth certificate issued by
civil authorities showing the father's name, and evidence that a bona
fide parent-child relationship has been established between the child
and the parent;
(E) A self-petitioning stepchild and an abusive stepparent is the
child's birth certificate issued by civil authorities, the marriage
certificate of the child's parent and the stepparent showing marriage
before the stepchild reached 18 years of age, and evidence of legal
termination of all prior marriages of either parent, if any; and
(F) An adopted self-petitioning child and an abusive adoptive parent
is an adoption decree showing that the adoption took place before the
child reached 16 years of age, and evidence that the child has been
residing with and in the legal custody of the abusive adoptive parent
for at least 2 years.
(iii) Residence. One or more documents may be submitted showing that
the self-petitioner and the abuser have resided together in the United
States. One or more documents may also be 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
[[Page 70]]
relevant, as may a combination of documents such as a photograph of the
visibly injured self-petitioner supported by affidavits. Other types of
credible relevant evidence will also be considered. Documentary proof of
non-qualifying abuse may only be used to establish a pattern of abuse
and violence and to support a claim that qualifying abuse also occurred.
(v) Good moral character. Primary evidence of the self-petitioner's
good moral character is the self-petitioner's affidavit. The affidavit
should be accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in the United
States in which the self-petitioner has resided for six or more months
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during
this time should submit a police clearance, criminal background check,
or similar report issued by the appropriate authority in the foreign
country in which he or she resided for six or more months during the 3-
year period immediately preceding the filing of the self-petition. If
police clearances, criminal background checks, or similar reports are
not available for some or all locations, the self-petitioner may include
an explanation and submit other evidence with his or her affidavit. The
Service will consider other credible evidence of good moral character,
such as affidavits from responsible persons who can knowledgeably attest
to the self-petitioner's good moral character. A child who is less than
14 years of age is presumed to be a person of good moral character and
is not required to submit affidavits of good moral character, police
clearances, criminal background checks, or other evidence of good moral
character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, medical reports, protection orders and other court
documents, police reports, and other relevant credible evidence.
(3) Decision on and disposition of the petition--(i) Petition
approved. If the self-petitioning child will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) 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;
[[Page 71]]
(B) Shall not be construed to make a determination of the
credibility or probative value of any evidence submitted along with that
petition; and,
(C) Shall not relieve the self-petitioner of his or her burden of
complying with all of the evidentiary requirements of paragraph (e)(2)
of this section.
(f) Petition for a parent--(1) Eligibility. Only a United States
citizen who is twenty-one years of age or older may file a petition on
behalf of a parent for classification under section 201(b) of the Act.
(2) Evidence to support a petition for a parent. In addition to
evidence of United States citizenship as listed in Sec. 204.1(g) of
this part, the petitioner must also provide evidence of the claimed
relationship.
(i) Primary evidence if petitioner is a legitimate son or daughter.
If a petition is submitted on behalf of the mother, the birth
certificate of the petitioner showing the mother's name must accompany
the petition. If the mother's name on the birth certificate is different
from her name as reflected in the petition, evidence of the name change
must also be submitted. If a petition is submitted on behalf of the
father, the birth certificate of the petitioner, a marriage certificate
of the parents, and proof of legal termination of the parents' prior
marriages, if any, issued by civil authorities must accompany the
petition. If the father's name on the birth certificate has been legally
changed, evidence of the name change must also accompany the petition.
(ii) Primary evidence if petitioner is a legitimated son or
daughter. A child can be legitimated through the marriage of his or her
natural parents, by the laws of the country or state of the child's
residence or domicile, or by the laws of the country or state of the
father's residence or domicile. If the legitimation is based on the
natural parent's marriage, such marriage must have taken place while the
child was under the age of eighteen. If the legitimation is based on the
laws of the country or state of the child's residence or domicile, the
law must have taken effect before the child's eighteenth birthday. If
the legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided--while the
child was under eighteen years of age--in the country or state under
whose laws the child has been legitimated. Primary evidence of the
relationship should consist of petitioner's birth certificate and the
parents' marriage certificate or other evidence of legitimation issued
by civil authorities.
(iii) Primary evidence if the petitioner is an illegitimate son or
daughter. If a petition is submitted on behalf of the mother, the
petitioner's birth certificate, issued by civil authorities and showing
the mother's name, must accompany the petition. If the mother's name on
the birth certificate is different from her name as reflected in the
petition, evidence of the name change must also be submitted. If the
petition is submitted on behalf of the purported father of the
petitioner, the petitioner must show that the beneficiary is his or her
natural father and 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
[[Page 72]]
events in question. Such evidence may include, but is not limited to:
money order receipts or cancelled checks showing the father's financial
support of the beneficiary; the father's income tax returns; the
father's medical or insurance records which include the petitioner as a
dependent; school records for the petitioner; correspondence between the
parties; or notarized affidavits of friends, neighbors, school
officials, or other associates knowledgeable as to the relationship.
(iv) Primary evidence if petitioner is an adopted son or daughter. A
petition may be submitted for an adoptive parent by a United States
citizen who is twenty-one years of age or older if the adoption took
place before the petitioner's sixteenth birthday and if the two year
legal custody and residence requirements have been met. A copy of the
adoption decree, issued by the civil authorities, must accompany the
petition.
(A) Legal custody means the assumption of responsibility for a minor
by an adult under the laws of the state and under the order or approval
of a court of law or other appropriate government entity. This provision
requires that a legal process involving the courts or other recognized
government entity take place. If the adopting parent was granted legal
custody by the court or recognized governmental entity prior to the
adoption, that period may be counted toward fulfillment of the two-year
legal custody requirement. However, if custody was not granted prior to
the adoption, the adoption decree shall be deemed to mark the
commencement of legal custody. An informal custodial or guardianship
document, such as a sworn affidavit signed before a notary public, is
insufficient for this purpose.
(B) Evidence must also be submitted to show that the beneficiary
resided with the petitioner for at least two years. Generally, such
documentation must establish that the petitioner and the beneficiary
resided together in a parental relationship. The evidence must clearly
indicate the physical living arrangements of the adopted child, the
adoptive parent(s), and the natural parent(s) for the period of time
during which the adoptive parent claims to have met the residence
requirement.
(C) Legal custody and residence occurring prior to or after the
adoption will satisfy both requirements. Legal custody, like residence,
is accounted for in the aggregate. Therefore, a break in legal custody
or residence will not affect the time already fulfilled. To meet the
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of
the Act, the child must have been under 16 years of age when the
adoption is finalized.
(v) Name change. When the petition is filed by a child for the
child's parent, and the parent's name is not on the child's birth
certificate, evidence of the name change (such as the parent's marriage
certificate, a legal document showing the parent's name change, or other
similar evidence) must accompany the petition. If the petitioner's name
has been legally changed, evidence of the name change must also
accompany the petition.
(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
[[Page 73]]
sibling relationship is claimed through a common mother, the petition
must be supported by a birth certificate of the petitioner and a birth
certificate of the beneficiary showing a common mother. If the mother's
name on one birth certificate is different from her name as reflected on
the other birth certificate or in the petition, evidence of the name
change must also be submitted. If a sibling relationship is claimed
through a common father, the birth certificates of the beneficiary and
petitioner, a marriage certificate of the parents' and proof of legal
termination of the parents, prior marriage(s), if any, issued by civil
authorities must accompany the petition. If the father's name has been
legally changed, evidence of the name change must also accompany the
petition.
(ii) Primary evidence if either or both siblings are legitimated. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If based
on the laws of the country or state of the father's residence or
domicile, the father must have resided--while the child was under
eighteen years of age--in the country or state under whose laws the
child has been legitimated. Primary evidence of the relationship should
consist of the petitioner's birth certificate, the beneficiary's birth
certificate, and the parents' marriage certificate or other evidence of
legitimation issued by civil authorities.
(iii) Primary evidence if either sibling is illegitimate. If one or
both of the siblings is (are) the illegitimate child(ren) of a common
father, the petitioner must show that they are the natural children of
the father and that a bona fide parent-child relationship was
established when the illegitimate child(ren) was (were) unmarried and
under twenty-one years of age. Such a relationship will be deemed to
exist or to have existed where the father demonstrates or has
demonstrated an active concern for the child's support, instruction, and
general welfare. Primary evidence is the petitioner's and beneficiary's
birth certificates, issued by civil authorities and showing the father's
name, and evidence that the siblings have or had a bona fide parent/
child relationship with the natural father. If the father's name has
been legally changed, evidence of the name change must accompany the
petition. Evidence of a parent/child relationship should establish more
than merely a biological relationship. Emotional and/or financial ties
or a genuine concern and interest by the father for the child's support,
instruction, and general welfare must be shown. There should be evidence
that the father and child actually lived together or that the father
held the child out as being his own, that he provided for some or 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.
[[Page 74]]
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A spouse or a child accompanying or
following to join a principal alien beneficiary under this section may
be accorded the same preference and priority date as the principal alien
without the necessity of a separate petition.
(5) Name change. If the name of the petitioner, the beneficiary, or
both has been legally changed, evidence showing the name change (such as
a marriage certificate, a legal document showing the name change, or
other similar evidence) must accompany the petition.
(h) Validity of approved petitions--(1) General. Unless terminated
pursuant to section 203(g) of the Act or revoked pursuant to part 205 of
this chapter, the approval of a petition to classify an alien as a
preference immigrant under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
of section 203 of the Act, or as an immediate relative under section
201(b) of the Act, shall remain valid for the duration of the
relationship to the petitioner and of the petitioner's status as
established in the petition.
(2) Subsequent petition by same petitioner for same beneficiary.
When a visa petition has been approved, and subsequently a new petition
by the same petitioner is approved for the same preference
classification on behalf of the same beneficiary, the latter approval
shall be regarded as a reaffirmation or reinstatement of the validity of
the original petition, except when the original petition has been
terminated pursuant to section 203(g) of the Act or revoked pursuant to
part 205 of this chapter, or when an immigrant visa has been issued to
the beneficiary as a result of the petition approval. A self-petition
filed under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based on the relationship
to an abusive citizen or lawful permanent resident of the United States
will not be regarded as a reaffirmation or reinstatement of a petition
previously filed by the abuser. A self-petitioner who has been the
beneficiary of a visa petition filed by the abuser to accord the self-
petitioner immigrant classification as his or her spouse or child,
however, will be allowed to transfer the visa petition's priority date
to the self-petition. The visa petition's priority date may be assigned
to the self-petition without regard to the current validity of the visa
petition. The burden of proof to establish the existence of and the
filing date of the visa petition lies with the self-petitioner, although
the Service will attempt to verify a claimed filing through a search of
the Service's computerized records or other records deemed appropriate
by the adjudicating officer. A new self-petition filed under section
204(a)(1)(A)(iii), 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.
[[Page 75]]
(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,
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
[[Page 76]]
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 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
[[Page 77]]
in the country of citizenship, the country of the orphan's habitual
residence. This excludes a country to which the orphan travels
temporarily, or to which he or she travels either as a prelude to, or in
conjunction with, his or her adoption and/or immigration to the United
States.
Home study preparer means any party licensed or otherwise authorized
under the law of the State of the orphan's proposed residence to conduct
the research and preparation for a home study, including the required
personal interview(s). This term includes a public agency with authority
under that State's law in adoption matters, public or private adoption
agencies licensed or otherwise authorized by the laws of that State to
place children for adoption, and organizations or individuals licensed
or otherwise authorized to conduct the research and preparation for a
home study, including the required personal interview(s), under the laws
of the State of the orphan's proposed residence. In the case of an
orphan whose adoption has been finalized abroad and whose adoptive
parents reside abroad, the home study preparer includes any party
licensed or otherwise authorized to conduct home studies under the law
of any State of the United States, or any party licensed or otherwise
authorized by the foreign country's adoption authorities to conduct home
studies under the laws of the foreign country.
Incapable of providing proper care means that a sole or surviving
parent is unable to provide for the child's basic needs, consistent with
the local standards of the foreign sending country.
Loss from both parents means the involuntary severance or detachment
of the child from the parents in a permanent manner such as that caused
by a natural disaster, civil unrest, or other calamitous event beyond
the control of the parents, as verified by a competent authority in
accordance with the laws of the foreign sending country.
Orphan petition means Form I-600 (Petition to Classify Orphan as an
Immediate Relative). The petition must be completed in accordance with
the form's instructions and submitted with the required supporting
documentation and, if there is not an advanced processing application
approved within the previous 18 months or pending, the fee as required
in 8 CFR 103.7(b)(1). The petition must be signed in accordance with the
form's instructions by the married petitioner and spouse, or the
unmarried petitioner.
Overseas site means the Department of State immigrant visa-issuing
post having jurisdiction over the orphan's residence, or in foreign
countries in which the Services has an office or offices, the Service
office having jurisdiction over the orphan's residence.
Petition is synonymous with orphan petition.
Petitioner means a married United States citizen of any age, or an
unmarried United States citizen who is at least 24 years old at the time
he or she files the advanced processing application and at least 25
years old at the time he or she files the orphan petition. In the case
of a married couple, both of whom are United States citizens, either
party may be the petitioner.
Prospective adoptive parents means a married United States citizen
of any age and his or her spouse of any age, or an unmarried United
States citizen who is at least 24 years old at the time he or she files
the advanced processing 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
[[Page 78]]
to the child, or if his or her father has, in writing, irrevocably
released the child for emigration and adoption. This definition is not
applicable to children born in countries which make no distinction
between a child born in or out of wedlock, since all such children are
considered to be legitimate. In all cases, a sole parent must be
incapable of providing proper care as that term is defined in this
section.
Surviving parent means the child's living parent when the child's
other parent is dead, and the child has not acquired another parent
within the meaning of section 101(b)(2) of the Act. In all cases, a
surviving parent must be incapable of providing proper care as that term
is defined in this section.
(c) Supporting documentation for an advanced processing application.
The prospective adoptive parents may file an advanced processing
application before an orphan is identified in order to secure the
necessary clearance to file the orphan petition. Any document not in the
English language must be accompanied by a certified English translation.
(1) Required supporting documentation that must accompany the
advanced processing application. The following supporting documentation
must accompany an advanced processing application at the time of filing:
(i) Evidence of the petitioner's United States citizenship as set
forth in Sec. 204.1(g) and, if the petitioner is married and the
married couple is residing in the United States, evidence of the
spouse's United States citizenship or lawful immigration status;
(ii) A copy of the petitioner's marriage certificate to his or her
spouse, if the petitioner is currently married;
(iii) Evidence of legal termination of all previous marriages for
the petitioner and/or spouse, if previously married; and
(iv) Evidence of compliance with preadoption requirements, if any,
of the State of the orphan's proposed residence in cases where it is
known that there will be no adoption abroad, or that both members of the
married prospective adoptive couple or the unmarried prospective
adoptive parent will not personally see the child prior to, or during,
the adoption abroad, and/or that the adoption abroad will not be full
and final. Any preadoption requirements which cannot be met at the time
the advanced processing application is filed because of operation of
State law must be noted and explained when the application is filed.
Preadoption requirements must be met at the time the petition is filed,
except for those which cannot be met until the orphan arrives in the
United States.
(2) Home study. The home study must comply with the requirements
contained in paragraph (e) of this section. If the home study is not
submitted when the advanced processing application is filed, it must be
submitted within one year of the filing date of the advanced processing
application, or the application will be denied pursuant to paragraph
(h)(5) of this section.
(3) After receipt of a properly filed advanced processing
application, 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
[[Page 79]]
petition within the eighteen-month period, the advanced processing
application shall be deemed abandoned pursuant to paragraph (h)(7) of
this section. If the prospective adoptive parents file the orphan
petition after the eighteen-month period, the petition shall be denied
pursuant to paragraph (h)(13) of this section. Prospective adoptive
parents who do not have an advanced processing application approved or
pending may file the application and petition concurrently on one Form
I-600 if they have identified an orphan for adoption. An orphan petition
must be accompanied by full documentation as follows:
(1) Filing an orphan petition after the advanced processing
application has been approved. The following supporting documentation
must accompany an orphan petition filed after approval of the advanced
processing application:
(i) Evidence of approval of the advanced processing application;
(ii) The orphan's birth certificate, or if such a certificate is not
available, an explanation together with other proof of identity and age;
(iii) Evidence that the child is an orphan as appropriate to the
case:
(A) Evidence that the orphan has been abandoned or deserted by,
separated or lost from both parents, or that both parents have
disappeared as those terms are defined in paragraph (b) of this section;
or
(B) The death certificate(s) of the orphan's parent(s), if
applicable;
(C) If the orphan has only a sole or surviving parent, as defined in
paragraph (b) of this section, evidence of this fact and evidence that
the sole or surviving parent is incapable of providing for the orphan's
care and has irrevocably released the orphan for emigration and
adoption; and
(iv) Evidence of adoption abroad or that the prospective adoptive
parents have, or a person or entity working on their behalf has, custody
of the orphan for emigration and adoption in accordance with the laws of
the foreign-sending country:
(A) A legible, certified copy of the adoption decree, if the orphan
has been the subject of a full and final adoption abroad, and evidence
that the unmarried petitioner, or married petitioner and spouse, saw the
orphan prior to or during the adoption proceeding abroad; or
(B) If the orphan is to be adopted in the United States because
there was no adoption abroad, or the unmarried petitioner, or married
petitioner and spouse, did not personally see the orphan prior to or
during the adoption proceeding abroad, and/or the adoption abroad was
not full and final:
(1) Evidence that the prospective adoptive parents have, or a person
or entity working on their behalf has, secured custody of the orphan in
accordance with the laws of the foreign-sending country;
(2) An irrevocable release of the orphan for emigration and adoption
from the person, organization, or competent authority which had the
immediately previous legal custody or control over the orphan if the
adoption was not full and final under the laws of the foreign-sending
country;
(3) Evidence of compliance with all preadoption requirements, if
any, of the State of the orphan's proposed residence. (Any such
requirements that cannot be complied with prior to the orphan's arrival
in the United States because of State law must be noted and explained);
and
(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:
[[Page 80]]
(i) A photocopy of the fee receipt relating to the advanced
processing application, or if not available, other evidence that the
advanced processing application has been filed, such as a statement
including the date when the application was filed;
(ii) The home study, if not already submitted; and
(iii) The supporting documentation for an orphan petition required
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of
this section.
(3) Filing an orphan petition concurrently with the advanced
processing application. A petition filed concurrently with the advanced
processing application must be submitted on Form I-600, completed and
signed in accordance with the form's instructions. (Under this
concurrent procedure, Form I-600 serves as both the Forms I-600A and I-
600, and the prospective adoptive parents should not file a separate
Form I-600A). The following supporting documentation must accompany a
petition filed concurrently with the application under this provision:
(i) The supporting documentation for an advanced processing
application required in paragraph (c) of this section; and
(ii) The supporting documentation for an orphan petition required in
paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this
section.
(e) Home study requirements. For immigration purposes, a home study
is a process for screening and preparing prospective adoptive parents
who are interested in adopting an orphan from another country. The home
study should be tailored to the particular situation of the prospective
adoptive parents: for example, a family which previously has adopted
children will require different preparation than a family that has no
adopted children. If there are any additional adult members of the
prospective adoptive parents' household, the home study must address
this fact. The home study preparer must interview any additional adult
member of the prospective adoptive parents' household and assess him or
her in light of the requirements of paragraphs (e)(1), (e)(2)(i), (iii),
(iv), and (v) of this section. A home study must be conducted by a home
study preparer, as defined in paragraph (b) of this section. The home
study, or the most recent update to the home study, must not be more
than six months old at the time the home study is submitted to the
Service. Only one copy of the home study must be submitted to the
Service. Ordinarily, a home study (or a home study and update as
discussed above) will not have to be updated after it has been submitted
to the Service unless there is a significant change in the household of
the prospective adoptive parents such as a change in residence, marital
status, criminal history, financial resources, and/or the addition of
one or more children or other dependents to the family prior to the
orphan's immigration into the United States. In addition to meeting any
State, professional, or agency requirements, a home study must include
the following:
(1) Personal interview(s) and home visit(s). The home study preparer
must conduct at least one interview in person, and at least one home
visit, with the prospective adoptive couple or the unmarried prospective
adoptive parent. Each additional adult member of the prospective
adoptive parents' household must also be interviewed in person at least
once. The home study report must state the number of such interviews and
visits, and must specify any other contacts with the prospective
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
[[Page 81]]
physician, psychiatrist, clinical psychologist, or clinical social
worker for an evaluation. Some problems may not necessarily disqualify
applicants. For example, certain physical limitations may indicate which
categories of children may be most appropriately placed with certain
prospective adoptive parents. Certain mental and emotional health
problems may be successfully treated. The home study must include the
home study preparer's assessment of any such potential problem areas, a
copy of any outside evaluation(s), and the home study preparer's
recommended restrictions, if any, on the characteristics of the child to
be placed in the home. Additionally, the home study preparer must apply
the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(ii) Assessment of the finances of the prospective adoptive parents.
The financial assessment must include a description of the income,
financial resources, debts, and expenses of the prospective adoptive
parents. A statement concerning the evidence that was considered to
verify the source and amount of income and financial resources must be
included. Any income designated for the support of one or more children
in the care and custody of the prospective adoptive parents, such as
funds for foster care, or any income designated for the support of
another member of the household must not be counted towards the
financial resources available for the support of a prospective orphan.
The Service will not routinely require a detailed financial statement or
supporting financial documents. However, should the need arise, the
Service reserves the right to ask for such detailed documentation.
(iii) History of abuse and/or violence--(A) Screening for abuse and
violence--1) Checking available child abuse registries. The home study
preparer must ensure that a check of each prospective adoptive parent
and each adult member of the prospective adoptive parents' household has
been made with available child abuse registries and must include in the
home study the results of the checks including, if applicable, a report
that no record was found to exist. Depending on the access allowed by
the state of proposed residence of the orphan, the home study preparer
must take one of the following courses of action:
(i) If the home study preparer is allowed access to information from
the child abuse registries, he or she shall make the appropriate checks
for each of the prospective adoptive parents and for each adult member
of the prospective adoptive parents' household;
(ii) If the State requires the home study preparer to secure
permission from each of the prospective adoptive parents and for each
adult member of the prospective adoptive parents' household before
gaining access to information in such registries, the home study
preparer must secure such permission from those individuals, and make
the appropriate checks;
(iii) If the State will only release information directly to each of
the prospective adoptive parents and directly to the adult member of the
prospective adoptive parents' household, those individuals must secure
such information and provide it to the home study preparer. The home
study preparer must include the results of these checks in the home
study;
(iv) If the State will not release information to either the home
study preparer or the prospective adoptive parents and the adult members
of the prospective adoptive parents' household, 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)
[[Page 82]]
any history of abuse and/or violence as set forth in paragraph
(e)(2)(iii)(A) of this section, or if, in the absence of such
disclosure, the home study preparer becomes aware of any of the
foregoing, the home study report must contain an evaluation of the
suitability of the home for adoptive placement of an orphan in light of
this history. This evaluation must include information concerning all
arrests or convictions or history of substance abuse, sexual or child
abuse, and/or domestic violence and the date of each occurrence. A
certified copy of the documentation showing the final disposition of
each incident, which resulted in arrest, indictment, conviction, and/or
any other judicial or administrative action, must accompany the home
study. Additionally, the prospective adoptive parent must submit a
signed statement giving details including mitigating circumstances, if
any, about each incident. The home study preparer must apply the
requirements of this paragraph to each adult member of the prospective
adoptive parents' household.
(C) Evidence of rehabilitation. If a prospective adoptive parent has
a history of substance abuse, sexual or child abuse, and/or domestic
violence, the home study preparer may, nevertheless, make a favorable
finding if the prospective adoptive parent has demonstrated appropriate
rehabilitation. In such a case, a discussion of such rehabilitation
which demonstrates that the prospective adoptive parent is and will be
able to provide proper care for the orphan must be included in the home
study. Evidence of rehabilitation may include an evaluation of the
seriousness of the arrest(s), conviction(s), or history of abuse, the
number of such incidents, the length of time since the last incident,
and any type of counseling or rehabilitation programs which have been
successfully completed. Evidence of rehabilitation may also be provided
by an appropriate licensed professional, such as a psychiatrist,
clinical psychologist, or clinical social worker. The home study report
must include all facts and circumstances which the home study preparer
has considered, as well as the preparer's reasons for a favorable
decision regarding the prospective adoptive parent. Additionally, if any
adult member of the prospective adoptive parents' household has a
history of substance abuse, sexual or child abuse, and/or domestic
violence, the home study preparer must apply the requirements of this
paragraph to that adult member of the prospective adoptive parents'
household.
(D) Failure to disclose or cooperate. Failure to disclose an arrest,
conviction, or history of substance abuse, sexual or child abuse, and/or
domestic violence by the prospective adoptive parents or an adult member
of the prospective adoptive parents' household to the home study
preparer and to the Service, may result in the denial of the advanced
processing application or, if applicable, the application and orphan
petition, pursuant to paragraph (h)(4) of this section. Failure by the
prospective adoptive parents or an adult member of the prospective
adoptive parents' household to cooperate in having available child abuse
registries in accordance with paragraphs (e)(2)(iii)(A)(1) and
(e)(2)(iii)(A)(1)(i) through (e)(2)(iii)(A)(1)(iii) of this section will
result in the denial of the advanced processing application or, if
applicable, the application and orphan petition, pursuant to paragraph
(h)(4) of this section.
(iv) Previous rejection for adoption or prior unfavorable home
study. The home 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.
[[Page 83]]
(v) Criminal history. The prospective adoptive parents and the adult
members of the prospective adoptive parents' household are expected to
disclose to the home study preparer and the Service any history of
arrest and/or conviction early in the advanced processing procedure.
Failure to do so may result in denial pursuant to paragraph (h)(4) of
this section or in delays. Early disclosure provides the prospective
adoptive parents with the best opportunity to gather and present
evidence, and it gives the home study preparer and the Service the
opportunity to properly evaluate the criminal record in light of such
evidence. When such information is not presented early in the process,
it comes to light when the fingerprint checks are received by the
Service. By that time, the prospective adoptive parents are usually well
into preadoption proceedings of identifying a child and may even have
firm travel plans. At times, the travel plans have to be rescheduled
while the issues raised by the criminal record are addressed. It is in
the best interests of all parties to have any criminal records disclosed
and resolved early in the process.
(3) Living accommodations. The home study must include a detailed
description of the living accommodations where the prospective adoptive
parents currently reside. If the prospective adoptive parents are
planning to move, the home study must include a description of the
living accommodations where the child will reside with the prospective
adoptive parents, if known. If the prospective adoptive parents are
residing abroad at the time of the home study, the home study must
include a description of the living accommodations where the child will
reside in the United States with the prospective adoptive parents, if
known. Each description must include an assessment of the suitability of
accommodations for a child and a determination whether such space meets
applicable State requirements, if any.
(4) Handicapped or special needs orphan. A home study conducted in
conjunction with the proposed adoption of a special needs or handicapped
orphan must contain a discussion of the prospective adoptive parents'
preparation, willingness, and ability to provide proper care for such an
orphan.
(5) Summary of the counseling given and plans for post-placement
counseling. The home study must include a summary of the counseling
given to prepare the prospective adoptive parents for an international
adoption and any plans for post-placement counseling. Such preadoption
counseling must include a discussion of the processing, expenses,
difficulties, and delays associated with international adoptions.
(6) Specific approval of the prospective adoptive parents for
adoption. If the home study preparer's findings are favorable, the home
study must contain his or her specific approval of the prospective
adoptive parents for adoption and a discussion of the reasons for such
approval. The home study must include the number of orphans which the
prospective adoptive parents may adopt. The home study must state
whether there are any specific restrictions to the adoption such as
nationality, age, or gender of the orphan. If the home study preparer
has approved the prospective parents for a handicapped or special needs
adoption, this fact must be clearly stated.
(7) Home study preparer's certification and statement of authority
to conduct home studies. The home study must include a statement in
which the home study preparer certifies that he or she is licensed or
otherwise authorized by 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.
[[Page 84]]
(8) Review of home study. If the prospective adoptive parents reside
in a State which requires the State to review the home study, such a
review must occur and be documented before the home study is submitted
to the Service. If the prospective adoptive parents reside abroad, an
appropriate public or private adoption agency licensed, or otherwise
authorized, by any State of the United States to place children for
adoption, must review and favorably recommend the home study before it
is submitted to the Service.
(9) Home study updates and amendments--(i) Updates. If the home
study is more than six months old at the time it would be submitted to
the Service, the prospective adoptive parents must ensure that it is
updated by a home study preparer before it is submitted to the Service.
Each update must include screening in accordance with paragraphs
(e)(2)(iii) (A) and (B) of this section.
(ii) Amendments. If there have been any significant changes, such as
a change in the residence of the prospective adoptive parents, marital
status, criminal history, financial resources, and/or the addition of
one or more children or other dependents to the family, the prospective
adoptive parents must ensure that the home study is amended by a home
study preparer to reflect any such changes. If the orphan's proposed
State of residence has changed, the home study amendment must contain a
recommendation in accordance with paragraph (e)(8) of this section, if
required by State law. Any preadoption requirements of the new State
must be complied with in the case of an orphan coming to the United
States to be adopted.
(10) ``Grandfather'' provision for home study. A home study properly
completed in conformance with the regulations in force prior to
September 30, 1994, shall be considered acceptable if submitted to the
Service within 90 days of September 30, 1994. Any such home study
accepted under this ``grandfather'' provision must include screening in
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.
Additionally, any such home study submitted under this ``grandfather''
provision which is more than six months old at the time of its
submission must be amended or updated pursuant to the requirements of
paragraph (e)(9) of this section.
(f) State preadoption requirements--(1) General. Many States have
preadoption requirements which, under the Act, must be complied with in
every case in which a child is coming to such a State as an orphan to be
adopted in the United States.
(2) Child coming to be adopted in the United States. An orphan is
coming to be adopted in the United States if he or she will not be or
has not been adopted abroad, or if the unmarried petitioner or both the
married petitioner and spouse did not or will not personally see the
orphan prior to or during the adoption proceeding abroad, and/or if the
adoption abroad will not be, or was not, full and final. If the
prospective adoptive parents reside in a State with preadoption
requirements and they plan to have the child come to the United States
for adoption, they must submit evidence of compliance with the State's
preadoption requirements to the Service. Any preadoption requirements
which by operation of State law cannot be met before filing the advanced
processing application must be noted. Such requirements must be met
prior to filing the petition, except for those which cannot be met by
operation of State law until the orphan is physically in the United
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
[[Page 85]]
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 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
[[Page 86]]
processing application or, if applicable, the application and orphan
petition filed concurrently. Any new application and/or petition filed
within a year of such denial will also be denied.
(5) Advanced processing denied for failure to submit home study. If
the home study is not submitted within one year of the filing date of
the advanced processing application, the application shall be denied.
This action shall be without prejudice to a new filing at any time with
fee.
(6) Advanced processing application otherwise denied. If the
director finds that the prospective adoptive parents have otherwise
failed to establish eligibility, the applicable provisions of 8 CFR part
103 regarding a letter of intent to deny, if appropriate, and denial and
notification of appeal rights shall govern.
(7) Advanced processing application deemed abandoned for failure to
file orphan petition within eighteen months of application's approval
date. If an orphan petition is not properly filed within eighteen months
of the approval date of the advanced processing application, the
application shall be deemed abandoned. Supporting documentation shall be
returned to the prospective adoptive parents, except for documentation
submitted by a third party which shall be returned to the third party,
and documentation relating to the fingerprint checks. The director shall
dispose of documentation relating to fingerprint checks in accordance
with current policy. Such abandonment shall be without prejudice to a
new filing at any time with fee.
(8) Orphan petition approved by a stateside Service office. If the
orphan petition is approved by a stateside Service office, the
prospective adoptive parents shall be advised in writing, telegraphic
notification shall be sent to the immigrant visa-issuing post pursuant
to paragraph (j)(3) of this section, and the petition and supporting
documents shall be forwarded to the Department of State.
(9) Orphan petition approved by an overseas Service office. If the
orphan petition is approved by an overseas Service office located in the
country of the orphan's residence, the prospective adoptive parents
shall be advised in writing, and the petition and supporting documents
shall be forwarded to the immigrant visa-issuing post having
jurisdiction for immigrant visa processing.
(10) Orphan petition approved at an immigrant visa-issuing post. If
the orphan petition is approved at an immigrant visa-issuing post, the
post shall initiate immigrant visa processing.
(11) Orphan petition found to be ``not readily approvable'' by a
consular officer. If the consular officer adjudicating the orphan
petition finds that it is ``not readily approvable,'' he or she shall
notify the prospective adoptive parents in his or her consular district
and forward the petition, the supporting documents, the findings of the
I-604 investigation conducted pursuant to paragraph (k)(1) of this
section, and any other relating documentation to the overseas Service
office having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
(12) Orphan petition denied: petitioner fails to establish that the
child is an orphan. If the director finds that the petitioner has failed
to establish that the child is an orphan who is eligible for the
benefits sought, the applicable provisions of 8 CFR part 103 regarding a
letter of intent to deny and notification of appeal rights shall govern.
(13) Orphan petition denied: petitioner files orphan petition more
than eighteen months after the approval of the advanced processing
application. If the petitioner files the orphan petition more than
eighteen months after the approval date of the advanced processing
application, the petition shall be denied. This action shall be without
prejudice to a new filing at any time with fee.
(14) Revocation. The approval of an advanced processing application
or an orphan petition shall be automatically revoked in accordance with
Sec. 205.1 of this chapter, if an applicable reason exists. The
approval of an advanced processing application or an orphan petition
shall be revoked if the director becomes aware of information that would
have resulted in denial had it been known at the time of adjudication.
Such a revocation or any other revocation on notice shall be made in
accordance with Sec. 205.2 of this chapter.
[[Page 87]]
(i) Child-buying as a ground for denial. An orphan petition must be
denied under this section if the prospective adoptive parents or
adoptive parent(s), or a person or entity working on their behalf, have
given or will given money or other consideration either directly or
indirectly to the child's parent(s), agent(s), other individual(s), or
entity as payment for the child or as an inducement to release the
child. Nothing in this paragraph shall be regarded as precluding
reasonable payment for necessary activities such as administrative,
court, legal, translation, and/or medical services related to the
adoption proceedings.
(j) Telegraphic notifications--(1) Telegraphic notification of
approval of advanced processing application. Unless conditions preclude
normal telegraphic transmissions, whenever an advanced processing
application is approved in the United States, the director shall send
telegraphic notification of the approval to the overseas site if a
prospective adoptive parent advises the director that the petitioner
intends to travel abroad and file the orphan petition abroad.
(2) Requesting a change in visa-issuing posts. If a prospective
adoptive parent is in the United States, he or she may request the
director to transfer notification of the approved advanced processing
application to another visa-issuing post. Such a request shall be made
on Form I-824 (Application for Action on an Approved Application or
Petition) with the appropriate fee. The director shall send a Visas 37
telegram to both the previously and the newly designated posts. The
following shall be inserted after the last numbered standard entry.
``To: [insert name of previously designated visa-issuing post or
overseas Service office]. Pursuant to the petitioner's request, the
Visas 37 cable previously sent to your post/office in this matter is
hereby invalidated. The approval is being transferred to the other post/
office addressed in this telegram. Please forward the approved advanced
processing application to that destination.'' Prior to sending such a
telegram, the director must ensure that the change in posts does not
alter any conditions of the approval.
(3) Telegraphic notification of approval of an orphan petition.
Unless conditions preclude normal telegraphic transmissions, whenever a
petition is approved by a stateside Service office, the director shall
send telegraphic notification of the approval to the immigrant visa-
issuing post.
(k) Other considerations--(1) I-604 investigations. An I-604
investigation must be completed in every orphan case. The investigation
must be completed by a consular officer except when the petition is
properly filed at a Service office overseas, in which case it must be
completed by a Service officer. An I-604 investigation shall be
completed before a petition is adjudicated abroad. When a petition is
adjudicated by a stateside Service office, the I-604 investigation is
normally completed after the case has been forwarded to visa-issuing
post abroad. However, in a case where the director of a stateside
Service office adjudicating the petition has articulable concerns that
can only be resolved through the I-604 investigation, he or she shall
request the investigation prior to adjudication. In any case in which
there are significant differences between the facts presented in the
approved advanced processing application and/or orphan petition and the
facts uncovered by the I-604 investigation, the overseas site may
consult directly with the appropriate Service office. In any instance
where an I-604 investigation reveals negative information sufficient to
sustain a denial or revocation, the investigation report, supporting
documentation, and petition shall be forwarded to the appropriate
Service office for action. Depending on the circumstances surrounding
the case, the I-604 investigation shall include, but shall not
necessarily be limited to, document checks, telephonic checks,
interview(s) with the natural parent(s), and/or a field investigation.
(2) Authority of consular officers. An American consular officer is
authorized to approve an orphan petition if the Service has made a
favorable determination on the related advanced processing application,
and the petitioner, who has traveled abroad to a country with no Service
office in order to locate or adopt an orphan, has properly
[[Page 88]]
filed the petition, and the petition is approvable. A consular officer,
however, shall refer any petition which is ``not clearly approvable''
for a decision by the Service office having jurisdiction pursuant to
Sec. 100.4(b) of this chapter. The consular officer's adjudication
includes all aspects of eligibility for classification as an orphan
under section 101(b)(1)(F) of the Act other than the issue of the
ability of the prospective adoptive parents to furnish proper care to
the orphan. However, if the consular officer has a well-founded and
substantive reason to believe that the advanced processing approval was
obtained on the basis of fraud or misrepresentation, or has knowledge of
a change in material fact subsequent to the approval of the advanced
processing application, he or she shall consult with the Service office
having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
(3) Child in the United States. A child who is in parole status and
who has not been adopted in the United States is eligible for the
benefits of an orphan petition when all the requirements of sections
101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in
the United States either illegally or as a nonimmigrant, however, is
ineligible for the benefits of an orphan petition.
(4) Liaison. Each director shall develop and maintain liaison with
State Government adoption authorities having jurisdiction within his or
her jurisdiction, including the administrator(s) of the Interstate
Compact on the Placement of Children, and with other parties with
interest in international adoptions. Such parties include, but are not
necessarily limited to, adoption agencies, organizations representing
adoption agencies, organizations representing adoptive parents, and
adoption attorneys.
[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994, as amended at 63
FR 12986, Mar. 17, 1998; 68 FR 46926, Aug. 7, 2003; 72 FR 56853, Oct. 4,
2007; 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.
[[Page 89]]
(e) One-stage processing. If all documentary evidence required in
paragraph (f)(1) of this section is available when the petition is
initially filed, the petitioner may submit it at that time. In that
case, the director shall consider all evidence without using the two-
stage processing procedure set out in paragraph (d) of this section.
(f) Evidence to support a petition for an Amerasian child of a
United States citizen--(1) Two-stage processing of petition--(i)
Preliminary processing. (A) A petition filed by or on behalf of an
Amerasian under this section must be accompanied by evidence that the
beneficiary was born in Korea, Vietnam, Laos, Kampuchea, or Thailand
after December 31, 1950, and before October 22, 1982. If the beneficiary
was born in Vietnam, the beneficiary's ID card must be submitted, if
available. If it is not available, the petitioner must submit an
affidavit explaining why the beneficiary's ID card is not available.
Evidence that the beneficiary was fathered by a United States citizen
must also be presented. The putative father must have been a United
States citizen at the time of the beneficiary's birth or at the time of
the father's death, if his death occurred prior to the beneficiary's
birth. It is not required that the name of the father be given. Such
evidence may include, but need not be limited to:
(1) The beneficiary's birth and baptismal certificates or other
religious documents;
(2) Local civil records;
(3) Affidavits from knowledgeable witnesses;
(4) Letters or evidence of financial support from the beneficiary's
putative father;
(5) Photographs of the beneficiary's putative father, especially
with the beneficiary; and
(6) Evidence of the putative father's United States citizenship.
(B) The beneficiary's photograph must be submitted.
(C) The beneficiary's marriage certificate, if married, and evidence
of the termination of any previous marriages, if applicable, is
required.
(D) If the beneficiary is under eighteen years of age, a written
irrevocable release for emigration must be received from the
beneficiary's mother or legal guardian. The mother or legal guardian
must authorize the placing agency or agencies to make decisions
necessary for the child's immediate care until the sponsor receives
custody. Interim costs are the responsibility of the sponsor. The mother
or legal guardian must show an understanding of the effects of the
release and state before signing the release whether any money was paid
or any coercion was used. The signature of the mother or legal guardian
must be authenticated by the local registrar, the court of minors, or a
United States immigration or consular officer. The release must include
the mother's or legal guardian's full name, date and place of birth, and
current or permanent address.
(ii) Final processing. (A) If the director notifies the petitioner
that all preliminary processing has been completed in a satisfactory
manner, the petitioner must then submit Form I-361, Affidavit of
Financial Support and Intent to Petition for Legal Custody for Public
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with
the documentary evidence of the sponsor's financial ability required by
that form. If the beneficiary is under eighteen years of age, the
sponsor must agree to petition the court having jurisdiction, within
thirty days of the beneficiary's arrival in the United States, for legal
custody under the laws of the state where the beneficiary will reside
until the beneficiary is eighteen years of age. The term ``legal
custody'' as used in this section means the assumption of responsibility
for a minor by an adult under the laws of the state in a court of law.
The sponsor must be a United States citizen or lawful permanent resident
who is twenty-one years of age or older and who is of good moral
character.
(B) Other documents necessary to support the petition are:
(1) Evidence of the age of the beneficiary's sponsor;
(2) Evidence of United States citizenship or lawful permanent
residence of the sponsor as provided in Sec. 204.1(f); and
(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
[[Page 90]]
actively involved, with recent experience, in the intercountry placement
of children has arranged the beneficiary's placement in the United
States. Evidence must also be provided that the sponsor with whom the
beneficiary is being placed is able to accept the beneficiary for care
in the sponsor's home under the laws of the state of the beneficiary's
intended residence. The evidence must demonstrate the agency's
capability, including financial capability, to arrange the placement as
described in paragraph (f)(1) of this section, either directly or
through cooperative agreement with other suitable provider(s) of
service.
(iii) Arrangements for placement of beneficiary under eighteen years
of age. (A) If the beneficiary is under eighteen years of age, the
petitioner must submit evidence of the placement arrangement required
under paragraph (f)(1) of this section. A favorable home study of the
sponsor is necessary and must be conducted by an agency in the United
States legally authorized to conduct that study. If the sponsor resides
outside the United States, a home study of the sponsor must be conducted
by an agency legally authorized to conduct home studies in the state of
the sponsor's and beneficiary's intended residence in the United States
and must be submitted with a favorable recommendation by the agency.
(B) A plan from the agency to provide follow-up services, including
mediation and counselling, is required to ensure that the sponsor and
the beneficiary have satisfactorily adjusted to the placement and to
determine whether the terms of the sponsorship are being observed. A
report from the agency concerning the placement, including information
regarding any family separation or dislocation abroad that results from
the placement, must also be submitted. In addition, the agency must
submit to the Director, Outreach Program, Immigration and Naturalization
Service, Washington, DC, within 90 days of each occurrence, reports of
any breakdowns in sponsorship that occur, and reports of the steps taken
to remedy these breakdowns. The petitioner must also submit a statement
from the agency:
(1) Indicating that, before signing the sponsorship agreement, the
sponsor has been provided a report covering pre-placement screening and
evaluation, including a health evaluation, of the beneficiary;
(2) Describing the agency's orientation of both the sponsor and the
beneficiary on the legal and cultural aspects of the placement;
(3) Describing the initial facilitation of the placement through
introduction, translation, and similar services; and
(4) Describing the contingency plans to place the beneficiary in
another suitable home if the initial placement fails. The new sponsor
must execute and submit a Form I-361 to the Service office having
jurisdiction over the beneficiary's residence in the United States. The
original sponsor nonetheless retains financial responsibility for the
beneficiary under the terms of the guarantee of financial support and
intent to petition for legal custody which that sponsor executed, unless
that responsibility is assumed by a new sponsor. In the event that the
new sponsor does not comply with the terms of the new guarantee of
financial support and intent to petition for legal custody and if, for
any reason, that guarantee is not enforced, the original sponsor again
becomes financially responsible for the beneficiary.
(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
[[Page 91]]
sponsor, required in paragraph (f)(1) of this section, were submitted
during the preliminary processing and the completed background check of
the sponsor discloses adverse information resulting in a finding that
the sponsor is not of good moral character.
(3) Denial upon completion of final processing. The director may
deny the petition upon completion of final processing if it is
determined that the sponsorship requirements, or one or more of the
other applicable requirements, have not been met.
(4) Denial upon completion of one-stage processing. The director may
deny the petition upon completion of all processing if any of the
applicable requirements in a case being processed under the one-stage
processing described in paragraph (e) of this section are not met.
(h) Classification of Public Law 97-359 Amerasian. If the petition
is approved the beneficiary is classified as follows:
(1) An unmarried beneficiary under the age of twenty-one is
classified as the child of a United States citizen under section 201(b)
of the Act;
(2) An unmarried beneficiary twenty-one years of age or older is
classified as the unmarried son or daughter of a United States citizen
under section 203(a)(1) of the Act; and
(3) A married beneficiary is classified as the married son or
daughter of a United States citizen under section 203(a)(3) of the Act.
(i) Enforcement of affidavit of financial support and intent to
petition for legal custody. A guarantee of financial support and intent
to petition for legal custody on Form I-361 may be enforced against the
alien's sponsor in a civil suit brought by the Attorney General in the
United States District Court for the district in which the sponsor
resides, except that the sponsor's estate is not liable under the
guarantee if the sponsor dies or is adjudicated as bankrupt under title
11, United States Code. After admission to the United States, if the
beneficiary of a petition requires enforcement of the guarantee of
financial support and intent to petition for legal custody executed by
the beneficiary's sponsor, the beneficiary may file Form I-363 with
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
[[Page 92]]
of Labor. The priority date of any petition filed for classification
under section 203(b) of the Act which is accompanied by an application
for Schedule A designation or with evidence that the alien's occupation
is a shortage occupation within the Department of Labor's Labor Market
Information Pilot Program shall be the date the completed, signed
petition (including all initial evidence and the correct fee) is
properly filed with the Service. The priority date of a petition filed
for classification as a special immigrant under section 203(b)(4) of the
Act shall be the date the completed, signed petition (including all
initial evidence and the correct fee) is properly filed with the
Service. The priority date of an alien who filed for classification as a
special immigrant prior to October 1, 1991, and who is the beneficiary
of an approved I-360 petition after October 1, 1991, shall be the date
the alien applied for an immigrant visa or adjustment of status. In the
case of a special immigrant alien who applied for adjustment before
October 1, 1991, Form I-360 may be accepted and adjudicated at a Service
District Office or sub-office.
(e) Retention of section 203(b) (1), (2), or (3) priority date. A
petition approved on behalf of an alien under sections 203(b) (1), (2),
or (3) of the Act accords the alien the priority date of the approved
petition for any subsequently filed petition for any classification
under sections 203(b) (1), (2), or (3) of the Act for which the alien
may qualify. In the event that the alien is the beneficiary of multiple
petitions under sections 203(b) (1), (2), or (3) of the Act, the alien
shall be entitled to the earliest priority date. A petition revoked
under sections 204(e) or 205 of the Act will not confer a priority date,
nor will any priority date be established as a result of a denied
petition. A priority date is not transferable to another alien.
(f) Maintaining the priority date of a third or sixth preference
petition filed prior to October 1, 1991. Any petition filed before
October 1, 1991, and approved on any date, to accord status under
section 203(a)(3) or 203(a)(6) of the Act, as in effect before October
1, 1991, shall be deemed a petition approved to accord status under
section 203(b)(2) or within the appropriate classification under section
203(b)(3), respectively, of the Act as in effect on or after October 1,
1991, provided that the alien applies for an immigrant visa or
adjustment of status within the two years following notification that an
immigrant visa is immediately available for his or her use.
(g) Initial evidence--(1) General. Specific requirements for initial
supporting documents for the various employment-based immigrant
classifications are set forth in this section. In general, ordinary
legible photocopies of such documents (except for labor certifications
from the Department of Labor) will be acceptable for initial filing and
approval. However, at the discretion of the director, original documents
may be required in individual cases. Evidence relating to qualifying
experience or training shall be in the form of letter(s) from current or
former employer(s) or trainer(s) and shall include the name, address,
and title of the writer, and a specific description of the duties
performed by the alien or of the training received. If such evidence is
unavailable, other documentation relating to the alien's experience or
training will be considered.
(2) Ability of prospective employer to pay wage. Any petition filed
by or for an employment-based immigrant which requires an offer of
employment must be accompanied by evidence that the prospective United
States employer has the ability to pay the proffered wage. The
petitioner must demonstrate 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.
[[Page 93]]
(h) Aliens with extraordinary ability. (1) An alien, or any person
on behalf of the alien, may file an I-140 visa petition for
classification under section 203(b)(1)(A) of the Act as an alien of
extraordinary ability in the sciences, arts, education, business, or
athletics.
(2) Definition. As used in this section:
Extraordinary ability means a level of expertise indicating that the
individual is one of that small percentage who have risen to the very
top of the field of endeavor.
(3) Initial evidence. A petition for an alien of extraordinary
ability must be accompanied by evidence that the alien has sustained
national or international acclaim and that his or her achievements have
been recognized in the field of expertise. Such evidence shall include
evidence of a one-time achievement (that is, a major, international
recognized award), or at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;
(ii) Documentation of the alien's membership in associations in the
field for which classification is sought, which require outstanding
achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major
trade publications or other major media, relating to the alien's work in
the field for which classification is sought. Such evidence shall
include the title, date, and author of the material, and any necessary
translation;
(iv) Evidence of the alien's participation, either individually or
on a panel, as a judge of the work of others in the same or an allied
field of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly,
artistic, athletic, or business-related contributions of major
significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the
field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at
artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or
critical role for organizations or establishments that have a
distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other
significantly high remuneration for services, in relation to others in
the field; or
(x) Evidence of commercial successes in the performing arts, as
shown by box office receipts or record, cassette, compact disk, or video
sales.
(4) If the above standards do not readily apply to the beneficiary's
occupation, the petitioner may submit comparable evidence to establish
the beneficiary's eligibility.
(5) No offer of employment required. Neither an offer for employment
in the United States nor a labor certification is required for this
classification; however, the petition must be accompanied by clear
evidence that the alien is coming to the United States to continue work
in the area of expertise. Such evidence may include letter(s) from
prospective employer(s), evidence of prearranged commitments such as
contracts, or a statement from the beneficiary detailing plans on how he
or she intends to continue his or her work in the United States.
(i) Outstanding professors and researchers. (1) Any United States
employer desiring and intending to employ a professor or researcher who
is outstanding in an academic field under section 203(b)(1)(B) of the
Act may file an I-140 visa petition for such classification.
(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
[[Page 94]]
shall consist of at least two of the following:
(A) Documentation of the alien's receipt of major prizes or awards
for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the
academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by
others about the alien's work in the academic field. Such material shall
include the title, date, and author of the material, and any necessary
translation;
(D) Evidence of the alien's participation, either individually or on
a panel, as the judge of the work of others in the same or an allied
academic field;
(E) Evidence of the alien's original scientific or scholarly
research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or
articles (in scholarly journals with international circulation) in the
academic field;
(ii) Evidence that the alien has at least three years of experience
in teaching and/or research in the academic field. Experience in
teaching or research while working on an advanced degree will only be
acceptable if the alien has acquired the degree, and if the teaching
duties were such that he or she had full responsibility for the class
taught or if the research conducted toward the degree has been
recognized within the academic field as outstanding. Evidence of
teaching and/or research experience shall be in the form of letter(s)
from current or former employer(s) and shall include the name, address,
and title of the writer, and a specific description of the duties
performed by the alien; and
(iii) An offer of employment from a prospective United States
employer. A labor certification is not required for this classification.
The offer of employment shall be in the form of a letter from:
(A) A United States university or institution of higher learning
offering the alien a tenured or tenure-track teaching position in the
alien's academic field;
(B) A United States university or institution of higher learning
offering the alien a permanent research position in the alien's academic
field; or
(C) A department, division, or institute of a private employer
offering the alien a permanent research position in the alien's academic
field. The department, division, or institute must demonstrate that it
employs at least three persons full-time in research positions, and that
it has achieved documented accomplishments in an academic field.
(j) Certain multinational executives and managers. (1) A United
States employer may file a petition on Form I-140 for classification of
an alien under section 203(b)(1)(C) of the Act as a multinational
executive or manager.
(2) Definitions. As used in this section:
Affiliate means:
(A) One of two subsidiaries both of which are owned and controlled
by the same parent or individual;
(B) One of two legal entities owned and controlled by the same group
of individuals, each individual owning and controlling approximately the
same share or proportion of each entity; or
(C) In the case of a partnership that is organized in the United
States to provide accounting services, along with managerial and/or
consulting services, and markets its accounting services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that is
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:
[[Page 95]]
(A) Directs the management of the organization or a major component
or function of the organization;
(B) Establishes the goals and policies of the organization,
component, or function;
(C) Exercises wide latitude in discretionary decisionmaking; and
(D) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
Managerial capacity means an assignment within an organization in
which the employee primarily:
(A) Manages the organization, or a department, subdivision,
function, or component of the organization;
(B) Supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an essential function
within the organization, or a department or subdivision of the
organization;
(C) If another employee or other employees are directly supervised,
has the authority to hire and fire or recommend those as well as other
personnel actions (such as promotion and leave authorization), or, if no
other employee is directly supervised, functions at a senior level
within the organizational hierarchy or with respect to the function
managed; and
(D) Exercises direction over the day-to-day operations of the
activity or function for which the employee has authority.
Multinational means that the qualifying entity, or its affiliate, or
subsidiary, conducts business in two or more countries, one of which is
the United States.
Subsidiary means a firm, corporation, or other legal entity of which
a parent owns, directly or indirectly, more than half of the entity and
controls the entity; or owns, directly or indirectly, half of the entity
and controls the entity; or owns, directly or indirectly, 50 percent of
a 50-50 joint venture and has equal control and veto power over the
entity; or owns, directly or indirectly, less than half of the entity,
but in fact controls the entity.
(3) Initial evidence--(i) Required evidence. A petition for a
multinational executive or manager must be accompanied by a statement
from an authorized official of the petitioning United States employer
which demonstrates that:
(A) If the alien is outside the United States, in the three years
immediately preceding the filing of the petition the alien has been
employed outside the United States for at least one year in a managerial
or executive capacity by a firm or corporation, or other legal entity,
or by an affiliate or subsidiary of such a firm or corporation or other
legal entity; or
(B) If the alien is already in the United States working for the
same employer or a subsidiary or affiliate of the firm or corporation,
or other legal entity by which the alien was employed overseas, in the
three years preceding entry as a nonimmigrant, the alien was employed by
the entity abroad for at least one year in a managerial or executive
capacity;
(C) The prospective employer in the United States is the same
employer or a subsidiary or affiliate of the firm or corporation or
other legal entity by which the alien was employed overseas; and
(D) The prospective United States employer has been doing business
for at least one year.
(ii) Appropriate additional evidence. In appropriate cases, the
director may request additional evidence.
(4) Determining managerial or exectuve capacities--(i) Supervisors
as managers. A first-line supervisor is not considered to be acting in a
managerial capacity 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.
[[Page 96]]
(5) Offer of employment. No labor certification is required for this
classification; however, the prospective employer in the United States
must furnish a job offer in the form of a statement which indicates that
the alien is to be employed in the United States in a managerial or
executive capacity. Such letter must clearly describe the duties to be
performed by the alien.
(k) Aliens who are members of the professions holding advanced
degrees or aliens of exceptional ability. (1) Any United States employer
may file a petition on Form I-140 for classification of an alien under
section 203(b)(2) of the Act as an alien who is a member of the
professions holding an advanced degree or an alien of exceptional
ability in the sciences, arts, or business. If an alien is claiming
exceptional ability in the sciences, arts, or business and is seeking an
exemption from the requirement of a job offer in the United States
pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone
in the alien's behalf, may be the petitioner.
(2) Definitions. As used in this section: Advanced degree means any
United States academic or professional degree or a foreign equivalent
degree above that of baccalaureate. A United States baccalaureate degree
or a foreign equivalent degree followed by at least five years of
progressive experience in the specialty shall be considered the
equivalent of a master's degree. If a doctoral degree is customarily
required by the specialty, the alien must have a United States doctorate
or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a
degree of expertise significantly above that ordinarily encountered in
the sciences, arts, or business.
Profession means one of the occupations listed in section 101(a)(32)
of the Act, as well as any occupation for which a United States
baccalaureate degree or its foreign equivalent is the minimum
requirement for entry into the occupation.
(3) Initial evidence. The petition must be accompanied by
documentation showing that the alien is a professional holding an
advanced degree or an alien of exceptional ability in the sciences, the
arts, or business.
(i) To show that the alien is a professional holding an advanced
degree, the petition must be accompanied by:
(A) An official academic record showing that the alien has a United
States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United
States baccalaureate degree or a foreign equivalent degree, and evidence
in the form of letters from current or former employer(s) showing that
the alien has at least five years of progressive post-baccalaureate
experience in the specialty.
(ii) To show that the alien is an alien of exceptional ability in
the sciences, arts, or business, the petition must be accompanied by at
least three of the following:
(A) An official academic record showing that the alien has a degree,
diploma, certificate, or similar award from a college, university,
school, or other institution of learning relating to the area of
exceptional ability;
(B) Evidence in the form of letter(s) from current or former
employer(s) showing that the alien has at least ten years of full-time
experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a
particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other
renumeration for services, which demonstrates exceptional ability;
(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
[[Page 97]]
A designation (if applicable), or by documentation to establish that the
alien qualifies for one of the shortage occupations in the Department of
Labor's Labor Market Information Pilot Program. To apply for Schedule A
designation or to establish that the alien's occupation is within the
Labor Market Information Program, a fully executed uncertified Form ETA-
750 in duplicate must accompany the petition. The job offer portion of
the individual labor certification, Schedule A application, or Pilot
Program application must demonstrate that the job requires a
professional holding an advanced degree or the equivalent or an alien of
exceptional ability.
(ii) Exemption from job offer. The director may exempt the
requirement of a job offer, and thus of a labor certification, for
aliens of exceptional ability in the sciences, arts, or business if
exemption would be in the national interest. To apply for the exemption,
the petitioner must submit Form ETA-750B, Statement of Qualifications of
Alien, in duplicate, as well as evidence to support the claim that such
exemption would be in the national interest.
(l) Skilled workers, professionals, and other workers. (1) Any
United States employer may file a petition on Form I-140 for
classification of an alien under section 203(b)(3) as a skilled worker,
professional, or other (unskilled) worker.
(2) Definitions. As used in this part:
Other worker means a qualified alien who is capable, at the time of
petitioning for this classification, of performing unskilled labor
(requiring less than two years training or experience), not of a
temporary or seasonal nature, for which qualified workers are not
available in the United States.
Professional means a qualified alien who holds at least a United
States baccalaureate degree or a foreign equivalent degree and who is a
member of the professions.
Skilled worker means an alien who is capable, at the time of
petitioning for this classification, of performing skilled labor
(requiring at least two years training or experience), not of a
temporary or seasonal nature, for which qualified workers are not
available in the United States. Relevant post-secondary education may be
considered as training for the purposes of this provision.
(3) Initial evidence--(i) Labor certification or evidence that alien
qualifies for Labor Market Information Pilot Program. Every petition
under this classification must be accompanied by an individual labor
certification from the Department of Labor, by an application for
Schedule A designation, or by documentation to establish that the alien
qualifies for one of the shortage occupations in the Department of
Labor's Labor Market Information Pilot Program. To apply for Schedule A
designation or to establish that the alien's occupation is a shortage
occupation with the Labor Market Pilot Program, a fully executed
uncertified Form ETA-750 in duplicate must accompany the petition. The
job offer portion of an individual labor certification, Schedule A
application, or Pilot Program application for a professional must
demonstrate that the job requires the minimum of a baccalaureate degree.
(ii) Other documentation--(A) General. Any requirements of training
or experience for skilled workers, professionals, or other workers must
be supported by letters from trainers or employers giving the name,
address, and title of the trainer or employer, and a description of the
training received or the experience of the alien.
(B) Skilled workers. If the petition is for a skilled worker, the
petition must be accompanied by evidence that the alien meets the
educational, training 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
[[Page 98]]
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 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
[[Page 99]]
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 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
[[Page 100]]
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 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.
[[Page 101]]
(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
(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
[[Page 102]]
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.
(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.
[[Page 103]]
This definition shall not include a noncommercial activity such as
owning and operating a personal residence.
Employee means an individual who provides services or labor for the
new commercial enterprise and who receives wages or other remuneration
directly from the new commercial enterprise. In the case of the
Immigrant Investor Pilot Program, ``employee'' also means an individual
who provides services or labor in a job which has been created
indirectly through investment in the new commercial enterprise. This
definition shall not include independent contractors.
Full-time employment means employment of a qualifying employee by
the new commercial enterprise in a position that requires a minimum of
35 working hours per week. In the case of the Immigrant Investor Pilot
Program, ``full-time employment'' also means employment of a qualifying
employee in a position that has been created indirectly through revenues
generated from increased exports resulting from the Pilot Program that
requires a minimum of 35 working hours per week. A job-sharing
arrangement whereby two or more qualifying employees share a full-time
position shall count as full-time employment provided the hourly
requirement per week is met. This definition shall not include
combinations of part-time positions even if, when combined, such
positions meet the hourly requirement per week.
High employment area means a part of a metropolitan statistical area
that at the time of investment:
(i) Is not a targeted employment area; and
(ii) Is an area with an unemployment rate significantly below the
national average unemployment rates.
Invest means to contribute capital. A contribution of capital in
exchange for a note, bond, convertible debt, obligation, or any other
debt arrangement between the alien entrepreneur and the new commercial
enterprise does not constitute a contribution of capital for the
purposes of this part.
New means established after November 29, 1990.
Qualifying employee means a United States citizen, a lawfully
admitted permanent resident, or other immigrant lawfully authorized to
be employed in the United States including, but not limited to, a
conditional resident, a temporary resident, an asylee, a refugee, or an
alien remaining in the United States under suspension of deportation.
This definition does not include the alien entrepreneur, the alien
entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien.
Regional center means any economic unit, public or private, which is
involved with the promotion of economic growth, including increased
export sales, improved regional productivity, job creation, and
increased domestic capital investment.
Rural area means any area not within either a metropolitan
statistical area (as designated by the Office of Management and Budget)
or the outer boundary of any city or town having a population of 20,000
or more.
Targeted employment area means an area which, at the time of
investment, is a rural area or an area which has experienced
unemployment of at least 150 percent of the national average rate.
Troubled business means a business that has been in existence for at
least two years, has incurred a net loss for accounting purposes
(determined on the basis of generally accepted accounting principles)
during the twelve- or twenty-four month period prior to the priority
date on the alien entrepreneur's Form I-526, and the loss for such
period is at least equal to twenty percent of the troubled business's
net worth prior to such loss. For purposes of determining whether or not
the 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).
[[Page 104]]
(3) High employment area. The amount of capital necessary to make a
qualifying investment in a high employment area within the United
States, as defined in section 203(b)(5)(C)(iii) of the Act, is one
million United States dollars ($1,000,000).
(g) Multiple investors--(1) General. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur by more than one investor,
provided each petitioning investor has invested or is actively in the
process of investing the required amount for the area in which the new
commercial enterprise is principally doing business, and provided each
individual investment results in the creation of at least ten full-time
positions for qualifying employees. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur even though there are several
owners of the enterprise, including persons who are not seeking
classification under section 203(b)(5) of the Act and non-natural
persons, both foreign and domestic, provided that the source(s) of all
capital invested is identified and all invested capital has been derived
by lawful means.
(2) Employment creation allocation. The total number of full-time
positions created for qualifying employees shall be allocated solely to
those alien entrepreneurs who have used the establishment of the new
commercial enterprise as the basis of a petition on Form I-526. No
allocation need be made among persons not seeking classification under
section 203(b)(5) of the Act or among non-natural persons, either
foreign or domestic. The Service shall recognize any reasonable
agreement made among the alien entrepreneurs in regard to the
identification and allocation of such qualifying positions.
(h) Establishment of a new commercial enterprise. The establishment
of a new commercial enterprise may consist of:
(1) The creation of an original business;
(2) The purchase of an existing business and simultaneous or
subsequent restructuring or reorganization such that a new commercial
enterprise results; or
(3) The expansion of an existing business through the investment of
the required amount, so that a substantial change in the net worth or
number of employees results from the investment of capital. Substantial
change means a 40 percent increase either in the net worth, or in the
number of employees, so that the new net worth, or number of employees
amounts to at least 140 percent of the pre-expansion net worth or number
of employees. Establishment of a new commercial enterprise in this
manner does not exempt the petitioner from the requirements of 8 CFR
204.6(j) (2) and (3) relating to the required amount of capital
investment and the creation of full-time employment for ten qualifying
employees. In the case of a capital investment in a troubled business,
employment creation may meet the criteria set forth in 8 CFR
204.6(j)(4)(ii).
(i) State designation of a high unemployment area. The state
government of any state of the United States may designate a particular
geographic or political subdivision located within a metropolitan
statistical area or within a city or town having a population of 20,000
or more within such state as an area of high unemployment (at least 150
percent of the national average rate). Evidence of such designation,
including a description of the boundaries of the geographic or political
subdivision and the method or methods by which the unemployment
statistics were obtained, may be provided to a prospective alien
entrepreneur for submission with Form I-526. Before any 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
[[Page 105]]
10 qualifying employees. In the case of petitions submitted under the
Immigrant Investor Pilot Program, a petition must be accompanied by
evidence that the alien has invested, or is actively in the process of
investing, capital obtained through lawful means within a regional
center designated by the Service in accordance with paragraph (m)(4) of
this section. The petitioner may be required to submit information or
documentation that the Service deems appropriate in addition to that
listed below.
(1) To show that a new commercial enterprise has been established by
the petitioner in the United States, the petition must be accompanied
by:
(i) As applicable, articles of incorporation, certificate of merger
or consolidation, partnership agreement, certificate of limited
partnership, joint venture agreement, business trust agreement, or other
similar organizational document for the new commercial enterprise;
(ii) A certificate evidencing authority to do business in a state or
municipality or, if the form of the business does not require any such
certificate or the State or municipality does not issue such a
certificate, a statement to that effect; or
(iii) Evidence that, as of a date certain after November 29, 1990,
the required amount of capital for the area in which an enterprise is
located has been transferred to an existing business, and that the
investment has resulted in a substantial increase in the net worth or
number of employees of the business to which the capital was
transferred. This evidence must be in the form of stock purchase
agreements, investment agreements, certified financial reports, payroll
records, or any similar instruments, agreements, or documents evidencing
the investment in the commercial enterprise and the resulting
substantial change in the net worth, number of employees.
(2) To show that the petitioner has invested or is actively in the
process of investing the required amount of capital, the petition must
be accompanied by evidence that the petitioner has placed the required
amount of capital at risk for the purpose of generating a return on the
capital placed at risk. Evidence of mere intent to invest, or of
prospective investment arrangements entailing no present commitment,
will not suffice to show that the petitioner is actively in the process
of investing. The alien must show actual commitment of the required
amount of capital. Such evidence may include, but need not be limited
to:
(i) Bank statement(s) showing amount(s) deposited in United States
business account(s) for the enterprise;
(ii) Evidence of assets which have been purchased for use in the
United States enterprise, including invoices, sales receipts, and
purchase contracts containing sufficient information to identify such
assets, their purchase costs, date of purchase, and purchasing entity;
(iii) Evidence of property transferred from abroad for use in the
United States enterprise, including United States Customs Service
commercial entry documents, bills of lading, and transit insurance
policies containing ownership information and sufficient information to
identify the property and to indicate the fair market value of such
property;
(iv) Evidence of monies transferred or committed to be transferred
to the new commercial enterprise in exchange for shares of stock (voting
or nonvoting, common or preferred). Such stock may not include terms
requiring the new commercial enterprise to redeem it at the holder's
request; or
(v) Evidence of any loan or mortgage agreement, promissory note,
security 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
[[Page 106]]
(whether real, personal, or intangible), or any other tax returns of any
kind filed within five years, with any taxing jurisdiction in or outside
the United States by or on behalf of the petitioner;
(iii) Evidence identifying any other source(s) of capital; or
(iv) Certified copies of any judgments or evidence of all pending
governmental civil or criminal actions, governmental administrative
proceedings, and any private civil actions (pending or otherwise)
involving monetary judgments against the petitioner from any court in or
outside the United States within the past fifteen years.
(4) Job creation--(i) General. To show that a new commercial
enterprise will create not fewer than ten (10) full-time positions for
qualifying employees, the petition must be accompanied by:
(A) Documentation consisting of photocopies of relevant tax records,
Form I-9, or other similar documents for ten (10) qualifying employees,
if such employees have already been hired following the establishment of
the new commercial enterprise; or
(B) A copy of a comprehensive business plan showing that, due to the
nature and projected size of the new commercial enterprise, the need for
not fewer than ten (10) qualifying employees will result, including
approximate dates, within the next two years, and when such employees
will be hired.
(ii) Troubled business. To show that a new commercial enterprise
which has been established through a capital investment in a troubled
business meets the statutory employment creation requirement, the
petition must be accompanied by evidence that the number of existing
employees is being or will be maintained at no less than the pre-
investment level for a period of at least two years. Photocopies of tax
records, Forms I-9, or other relevant documents for the qualifying
employees and a comprehensive business plan shall be submitted in
support of the petition.
(iii) Immigrant Investor Pilot Program. To show that the new
commercial enterprise located within a regional center approved for
participation in the Immigrant Investor Pilot Program meets the
statutory employment creation requirement, the petition must be
accompanied by evidence that the investment will create full-time
positions for not fewer than 10 persons either directly or indirectly
through revenues generated from increased exports resulting from the
Pilot Program. Such evidence may be demonstrated by reasonable
methodologies including those set forth in paragraph (m)(3) of this
section.
(5) To show that the petitioner is or will be engaged in the
management of the new commercial enterprise, either through the exercise
of day-to-day managerial control or through policy formulation, as
opposed to maintaining a purely passive role in regard to the
investment, the petition must be accompanied by:
(i) A statement of the position title that the petitioner has or
will have in the new enterprise and a complete description of the
position's duties;
(ii) Evidence that the petitioner is a corporate officer or a member
of the corporate board of directors; or
(iii) If the new enterprise is a partnership, either limited or
general, evidence that the petitioner is engaged in either direct
management or policy making activities. For purposes of this section, if
the petitioner is a limited partner and the limited partnership
agreement provides the petitioner with certain rights, powers, and
duties normally granted to limited partners 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
[[Page 107]]
(ii) In the case of a high unemployment area:
(A) Evidence that the metropolitan statistical area, the specific
county within a metropolitan statistical area, or the county in which a
city or town with a population of 20,000 or more is located, in which
the new commercial enterprise is principally doing business has
experienced an average unemployment rate of 150 percent of the national
average rate; or
(B) A letter from an authorized body of the government of the state
in which the new commercial enterprise is located which certifies that
the geographic or political subdivision of the metropolitan statistical
area or of the city or town with a population of 20,000 or more in which
the enterprise is principally doing business has been designated a high
unemployment area. The letter must meet the requirements of 8 CFR
204.6(i).
(k) Decision. The petitioner will be notified of the decision, and,
if the petition is denied, of the reasons for the denial and of the
petitioner's right of appeal to the Associate Commissioner for
Examinations in accordance with the provisions of part 103 of this
chapter. The decision must specify whether or not the new commercial
enterprise is principally doing business within a targeted employment
area.
(l) [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
[[Page 108]]
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 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]
[[Page 109]]
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.
(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
[[Page 110]]
the special immigrant status of a spouse or child whose status was based
on the special immigrant application of the principal.
(d) Documents which must be submitted in support of the petition.
(1) A petition to classify an immigrant as a special immigrant under
section 101(a)(27)(K) of the Act must be accompanied by the following:
(i) Certified proof of reenlistment (after 6 years of active duty
service), or certification of past active duty status of 12 years,
issued by the authorizing official of the executive department in which
the applicant serves or has served, which certifies that the applicant
has the required honorable active duty service and commitment. The
authorizing official need not be at a level above the ``local command''.
The certification must be submitted with Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant; and
(ii) Birth certificate of the applicant establishing that the
applicant is a national of an independent state which maintains a treaty
or agreement allowing nationals of that state to enlist in the United
States Armed Forces each year.
(2) Any documents submitted in support of the petition must meet the
evidentiary requirements as set forth in 8 CFR part 103.
(3) Submission of an original Form DD-214, Certificate of Release or
Discharge from Active Duty; Form G-325b, Biographic Information; and
Form N-426, Request for Certification of Military or Naval Service, is
not required for approval of a petition for special immigrant status.
(e) Decision. The petitioner will be notified of the director's
decision and, if the petition is denied, of the reasons for the denial.
If the petition is denied, the petitioner will also be notified of the
petitioner's right to appeal the decision to the Associate Commissioner
for Examinations in accordance with 8 CFR part 103.
(f) Revocation under section 205 of the Act. An alien who has been
granted special immigrant classification under section 101(a)(27)(K) of
the Act must meet the qualifications set forth in the Act at the time he
or she is admitted to the United States for lawful permanent residence.
If an Armed Forces special immigrant ceases to be a qualified enlistee
by failing to complete the required active duty service obligation for
reasons other than an honorable discharge prior to entering the United
States with an immigrant visa or approval of an application for
adjustment of status to that of an alien lawfully admitted for permanent
residence, the petition designating his or her classification as a
special immigrant is revoked automatically under the general provisions
of section 205 of the Act. The Service shall obtain a current Form DD-
214, Certificate of Release or Discharge from Active Duty, from the
appropriate executive department for verification of the alien's failure
to maintain eligibility for the classification under section
101(a)(27)(K) of the Act.
[57 FR 33861, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993;
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
[[Page 111]]
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;
(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;
[[Page 112]]
(i) In a geographical area or areas designated by the Secretary of
Health and Human Services (HHS) as a Medically Underserved Area, a
Primary Medical Health Professional Shortage Area, or a Mental Health
Professional Shortage Area, and in a medical speciality that is within
the scope of the Secretary's designation for the geographical area or
areas; or
(ii) At a health care facility under the jurisdiction of the
Secretary of Veterans Affairs (VA); and
(3) A Federal agency or the department of public health of a State,
territory of the United States, or the District of Columbia, has
previously determined that the physician's work in that area or facility
is in the public interest.
(b) Is there a time limit on how long the physician has to complete
the required medical service? (1) If the physician already has
authorization to accept employment (other than as a J-1 exchange alien),
the beneficiary physician must complete the aggregate 5 years of
qualifying full-time clinical practice during the 6-year period
beginning on the date of approval of the Form I-140.
(2) If the physician must obtain authorization to accept employment
before the physician may lawfully begin working, the physician must
complete the aggregate 5 years of qualifying full-time clinical practice
during the 6-year period beginning on the date of the Service issues the
necessary employment authorization document.
(c) Are there special requirements for these physicians? Petitioners
requesting the national interest waiver as described in this section on
behalf of a qualified alien physician, or alien physicians self-
petitioning for second preference classification, must meet all
eligibility requirements found in paragraphs (k)(1) through (k)(3) of
Sec. 204.5. In addition, the petitioner or self-petitioner must submit
the following evidence with Form I-140 to support the request for a
national interest waiver. Physicians planning to divide the practice of
full-time clinical medicine between more than one underserved area must
submit the following evidence for each area of intended practice.
(1)(i) If the physician will be an employee, a full-time employment
contract for the required period of clinical medical practice, or an
employment commitment letter from a VA facility. The contract or letter
must have been issued and dated within 6 months prior to the date the
petition is filed.
(ii) If the physician will establish his or her own practice, the
physician's sworn statement committing to the full-time practice of
clinical medicine for the required period, and describing the steps the
physician has taken or intends to actually take to establish the
practice.
(2) Evidence that the physician will provide full-time clinical
medical service:
(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.
[[Page 113]]
(5) Evidence of the Service-issued waivers, if applicable, of the
requirements of sections 212(e) of the Act, if the alien physician has
been a J-1 nonimmigrant receiving medical training within the United
States.
(d) How will the Service process petitions filed on different
dates?--(1) Petitions filed on or after November 12, 1999. For petitions
filed on or after November 12, 1999, the Service will approve a national
interest waiver provided the petitioner or beneficiary (if self-
petitioning) submits the necessary documentation to satisfy the
requirements of section 203(b)(2)(B)(ii) of the Act and this section,
and the physician is otherwise eligible for classification as a second
preference employment-based immigrant. Nothing in this section relieves
the alien physician from any other requirement other than that of
fulfilling the labor certification process as provided in Sec.
204.5(k)(4).
(2) Petitions pending on November 12, 1999. Section 203(b)(2)(B)(ii)
of the Act applies to all petitions that were pending adjudication as of
November 12, 1999 before a Service Center, before the associate
Commissioner for Examinations, or before a Federal court. Petitioners
whose petitions were pending on November 12, 1999, will not be required
to submit a new petition, but may be required to submit supplemental
evidence noted in paragraph (c) of this section. The requirement that
supplemental evidence be issued and dated within 6 months prior to the
date on which the petition is filed is not applicable to petitions that
were pending as of November 12, 1999. If the case was pending before the
Associate Commissioner for Examinations or a Federal court on November
12, 1999, the petitioner should ask for a remand to the proper Service
Center for consideration of this new evidence.
(3) Petitions denied on or after November 12, 1999. The Service
Center or the Associate Commissioner for Examinations shall reopen any
petition affected by the provision of section 203(b)(2)(B)(ii) of the
Act that the Service denied on or after November 12, 1999, but prior to
the effective date of this rule.
(4) Petitions filed prior to November 1, 1998. For petitions filed
prior to November 1, 1998, and still pending as of November 12, 1999,
the Service will approve a national interest waiver provided the
beneficiary fulfills the evidence requirements of paragraph (c) of this
section. Alien physicians that are beneficiaries of pre-November 1,
1998, petitions are only required to work full-time as a physician
practicing clinical medicine for an aggregate of 3 years, rather than 5
years, not including time served in J-1 nonimmigrant status, prior to
the physician either adjusting status under section 245 of the Act or
receiving a visa issued under section 204(b) of the Act. The physician
must complete the aggregate of 3 years 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
[[Page 114]]
visa petition if the decision became final before November 12, 1999,
without prejudice to the filing of a new visa petition with a national
interest waiver request that comports with section 203(b)(2)(B)(ii) of
the Act.
(e) May physicians file adjustment of status applications? Upon
approval of a second preference employment-based immigrant petition,
Form I-140, and national interest waiver based on a full-time clinical
practice in a shortage area or areas of the United States, an alien
physician may submit Form I-485, Application to Register Permanent
Residence or Adjust Status, to the appropriate Service Center. The
Service will not approve the alien physician's application for
adjustment of status until the alien physician submits evidence
documenting that the alien physician has completed the period of
required service. Specific instructions for alien physicians filing
adjustment applications are found in Sec. 245.18 of this chapter.
(f) May a physician practice clinical medicine in a different
underserved area? Physicians in receipt of an approved Form I-140 with a
national interest waiver based on full-time clinical practice in a
designated shortage area and a pending adjustment of status application
may apply to the Service if the physician is offered new employment to
practice full-time in another underserved area of the United States.
(1) If the physician beneficiary has found a new employer desiring
to petition the Service on the physician's behalf, the new petitioner
must submit a new Form I-140 (with fee) with all the evidence required
in paragraph (c) of this section, including a copy of the approval
notice from the initial Form I-140. If approved, the new petition will
be matched with the pending adjustment of status application. The
beneficiary will retain the priority date from the initial Form I-140.
The Service will calculate the amount of time the physician was between
employers so as to adjust the count of the aggregate time served in an
underserved area. This calculation will be based on the evidence the
physician submits pursuant to the requirements of Sec. 245.18(d) of
this chapter. An approved change of practice to another underserved area
does not constitute a new 6-year period in which the physician must
complete the aggregate 5 years of service.
(2) If the physician intends to establish his or her own practice,
the physician must submit a new Form I-140 (with fee) will all the
evidence required in paragraph (c) of this section, including the
special requirement of paragraph (c)(1)(ii) of this section and a copy
of the approval notice from the initial Form I-140. If approved, the new
petition will be matched with the pending adjustment of status
application. The beneficiary will retain the priority date from the
initial Form I-140. The 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
[[Page 115]]
children) to work as a broadcaster for the BBG or a grantee of the BBG
in the United States. For the purposes of this section, the terms:
BBG grantee means Radio Free Asia, Inc (RFA) or Radio Free Europe/
Radio Liberty, Inc. (RFE/RL); and
Broadcaster means a reporter, writer, translator, editor, producer
or announcer for news broadcasts; hosts for news broadcasts, news
analysis, editorial and other broadcast features; or a news analysis
specialist. The term broadcaster does not include individuals performing
purely technical or support services for the BBG or a BBG grantee.
(b) Is there a yearly limit on the number of visas available for
alien broadcasters petitioned by the BBG or a BBG grantee? (1) Under the
provisions of section 203(b)(4) of the Act, a yearly limit of 100 fourth
preference special immigrant visas are available to aliens intending to
work as broadcasters in the United States for the BBG or a BBG grantee.
These 100 visas are available in any fiscal year beginning on or after
October 1, 2000.
(2) The alien broadcaster's accompanying spouse and children are not
counted towards the 100 special broadcaster visa limit.
(c) What form should the BBG use to petition for these special alien
broadcasters? The BBG or a BBG grantee shall use Form I-360, Petition
for Amerasian, Widow(er), or Special Immigrant, to petition for an alien
broadcaster. The petition must be submitted with the correct fee noted
on the form.
(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.
[[Page 116]]
(2) The child's parent must have actually surrendered such rights,
obligations, claims, control, and possession.
(3) That a parent's knowledge that a specific person or persons may
adopt a child does not void an abandonment; however, a purported act of
abandonment cannot be conditioned on the child's adoption by that
specific person or persons.
(4) That if the parent(s) entrusted the child to a third party for
custodial care in anticipation of, or preparation for, adoption, the
third party (such as a governmental agency, a court of competent
jurisdiction, an adoption agency, or an orphanage) must have been
authorized under the Convention country's child welfare laws to act in
such a capacity.
(5) That, if the parent(s) entrusted the child to an orphanage, the
parent(s) did not intend the placement to be merely temporary, with the
intention of retaining the parent-child relationship, but that the child
is abandoned if the parent(s) entrusted the child permanently and
unconditionally to an orphanage.
(6) That, although a written document from the parent(s) is not
necessary to prove abandonment, if any written document signed by the
parent(s) is presented to prove abandonment, the document must specify
whether the parent(s) who signed the document was (were) able to read
and understand the language in which the document is written. If the
parent is not able to read or understand the language in which the
document is written, then the document is not valid unless the document
is accompanied by a declaration, signed by an identified individual,
establishing that that identified individual is competent to translate
the language in the document into a language that the parent understands
and that the individual, on the date and at the place specified in the
declaration, did in fact read and explain the document to the parent in
a language that the parent understands. The declaration must also
indicate the language used to provide this explanation. If the person
who signed the declaration is an officer or employee of the Central
Authority (but not of an agency or entity authorized to perform a
Central Authority function by delegation) or any other governmental
agency, the person must certify the truth of the facts stated in the
declaration. Any other individual who signs a declaration must sign the
declaration under penalty of perjury under United States law.
Adoption means the judicial or administrative act that establishes a
permanent legal parent-child relationship between a minor and an adult
who is 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,
[[Page 117]]
solely for purposes of this Part, an individual who or entity that is
performing a Central Authority function, having been authorized to do so
by the designated Central Authority, in accordance with the Convention
and the law of the Central Authority's country.
Competent authority means a court or governmental agency of a
foreign country that has jurisdiction and authority to make decisions in
matters of child welfare, including adoption.
Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, opened for signature at
The Hague on May 29, 1993.
Convention adoptee means a child habitually resident in a Convention
country who is eligible to immigrate to the United States on the basis
of a Convention adoption.
Convention adoption, except as specified in 8 CFR 204.300(b), means
the adoption, on or after the Convention effective date, of an alien
child habitually resident in a Convention country by a U.S. citizen
habitually resident in the United States, when in connection with the
adoption the child has moved, or will move, from the Convention country
to the United States.
Convention country means a country that is a party to the Convention
and with which the Convention is in force for the United States.
Convention effective date means the date on which the Convention
enters into force for the United States as announced by the Secretary of
State under 22 CFR 96.17.
Custody for purposes of emigration and adoption exists when:
(1) The competent authority of the country of a child's habitual
residence has, by a judicial or administrative act (which may be either
the act granting custody of the child or a separate judicial or
administrative act), expressly authorized the petitioner, or an
individual or entity acting on the petitioner's behalf, to take the
child out of the country of the child's habitual residence and to bring
the child to the United States for adoption in the United States.
(2) If the custody order shows that custody was given to an
individual or entity acting on the petitioner's behalf, the custody
order must indicate that the child is to be adopted in the United States
by the petitioner.
(3) A foreign judicial or administrative act that is called an
adoption but that does not terminate the legal parent-child relationship
between the former parent(s) and the adopted child and does not create
the permanent legal parent-child relationship between the petitioner and
the adopted child will be deemed a grant of custody of 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
[[Page 118]]
other authorization that may be required to conduct adoption home
studies under the law of the jurisdiction in which the home study is
conducted.
Incapable of providing proper care means that, in light of all the
relevant circumstances including but not limited to economic or
financial concerns, extreme poverty, medical, mental, or emotional
difficulties, or long term-incarceration, the child's two living birth
parents are not able to provide for the child's basic needs, consistent
with the local standards of the Convention country.
Irrevocable consent means a document which indicates the place and
date the document was signed by a child's legal custodian, and which
meets the other requirements specified in this definition, in which the
legal custodian freely consents to the termination of the legal
custodian's legal relationship with the child. If the irrevocable
consent is signed by the child's birth mother or any legal custodian
other than the birth father, the irrevocable consent must have been
signed after the child's birth; the birth father may sign an irrevocable
consent before the child's birth if permitted by the law of the child's
habitual residence. This provision does not preclude a birth father from
giving consent to the termination of his legal relationship to the child
before the child's birth, if the birth father is permitted to do so
under the law of the country of the child's habitual residence.
(1) To qualify as an irrevocable consent under this definition, the
document must specify whether the legal custodian is able to read and
understand the language in which the consent is written. If the legal
custodian is not able to read or understand the language in which the
document is written, then the document does not qualify as an
irrevocable consent unless the document is accompanied by a declaration,
signed, by an identified individual, establishing that that identified
individual is competent to translate the language in the irrevocable
consent into a language that the parent understands, and that the
individual, on the date and at the place specified in the declaration,
did in fact read and explain the consent to the legal custodian in a
language that the legal custodian understands. The declaration must also
indicate the language used to provide this explanation. If the person
who signed the declaration is an officer or employee of the Central
Authority (but not of an agency or entity authorized to perform a
Central Authority function by delegation) or any other governmental
agency, the person must certify the truth of the facts stated in the
declaration. Any other individual who signs a declaration must sign the
declaration under 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
[[Page 119]]
a Form I-800 under this subpart C. The petitioner may be an unmarried
U.S. citizen who is at least 25 years old when the Form I-800 is filed,
or a married U.S. citizen of any age and his or her spouse of any age.
Although the singular term ``petitioner'' is used in this subpart, the
term includes both a married U.S. citizen and his or her spouse.
Sole parent means:
(1) The child's mother, when the competent authority has determined
that the child's father has abandoned or deserted the child, or has
disappeared from the child's life; or
(2) The child's father, when the competent authority has determined
that the child's mother has abandoned or deserted the child, or has
disappeared from the child's life; except that
(3) A child's parent is not a sole parent if the child has acquired
another parent within the meaning of section 101(b)(2) of the Act and
this section.
Suitability as adoptive parent(s) means that USCIS is satisfied,
based on the evidence of record, that it is reasonable to conclude that
the applicant is capable of providing, and will provide, proper parental
care to an adopted child.
Surviving parent means the child's living parent when the child's
other parent is dead, and the child has not acquired another parent
within the meaning of section 101(b)(2) of the Act and this section.
Sec. 204.302 Role of service providers.
(a) Who may provide services in Convention adoption cases. Subject
to the limitations in paragraph (b) or (c) of this section, a U.S.
citizen seeking to file a Form I-800A or I-800 may use the services of
any individual or entity authorized to provide services in connection
with adoption, except that the U.S. citizen must use the services of an
accredited agency, temporarily accredited agency, approved person,
supervised provider public domestic authority or exempted provider when
required to do so under 22 CFR part 96.
(b) Unauthorized practice of law prohibited. An adoption agency or
facilitator, including an individual or entity authorized under 22 CFR
part 96 to provide the six specific adoption services identified in 22
CFR 96.2, may not engage in any act that constitutes the legal
representation, as defined in 8 CFR 1.2, 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
[[Page 120]]
(2) Is not domiciled in the United States but establishes by a
preponderance of the evidence that:
(i) The citizen will have established a domicile in the United
States on or before the date of the child's admission to the United
States for permanent residence as a Convention adoptee; or
(ii) The citizen indicates on the Form I-800 that the citizen
intends to bring the child to the United States after adopting the child
abroad, and before the child's 18th birthday, at which time the child
will be eligible for, and will apply for, naturalization under section
322 of the Act and 8 CFR part 322. This option is not available if the
child will be adopted in the United States.
(b) Convention adoptees. A child whose classification is sought as a
Convention adoptee is, generally, deemed for purposes of this subpart C
to be habitually resident in the country of the child's citizenship. If
the child's actual residence is outside the country of the child's
citizenship, the child will be deemed habitually resident in that other
country, rather than in the country of citizenship, if the Central
Authority (or another competent authority of the country in which the
child has his or her actual residence) has determined that the child's
status in that country is sufficiently stable for that country properly
to exercise jurisdiction over the child's adoption or custody. This
determination must be made by the Central Authority itself, or by
another competent authority of the country of the child's habitual
residence, but may not be made by a nongovernmental individual or entity
authorized by delegation to perform Central Authority functions. The
child will not be considered to be habitually resident in any country to
which the child travels temporarily, or to which he or she travels
either as a prelude to, or in conjunction with, his or her adoption and/
or immigration to the United States.
Sec. 204.304 Improper inducement prohibited.
(a) Prohibited payments. Neither the applicant/petitioner, nor any
individual or entity acting on behalf of the applicant/petitioner may,
directly or indirectly, pay, give, offer to pay, or offer to give to any
individual or entity or request, receive, or accept from any individual
or entity, any money (in any amount) or anything of value (whether the
value is great or small), directly or indirectly, to induce or influence
any decision concerning:
(1) The placement of a child for adoption;
(2) The consent of a parent, a legal custodian, individual, or
agency to the adoption of a child;
(3) The relinquishment of a child to a competent authority, or to an
agency or person as defined in 22 CFR 96.2, for the purpose of adoption;
or
(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);
[[Page 121]]
(8) Legal services, court costs, and travel or other administrative
expenses connected with an adoption, including any legal services
performed for a parent who consents to the adoption of a child or
relinquishes the child to an agency; and
(9) Any other service the payment for which the officer finds, on
the basis of the facts of the case, was reasonably necessary.
(c) Department of State requirements. See 22 CFR 96.34, 96.36 and
96.40 for additional regulatory information concerning fees in relation
to Convention adoptions.
Sec. 204.305 State preadoption requirements.
State preadoption requirements must be complied with when a child is
coming into the State as a Convention adoptee to be adopted in the
United States. A qualified Convention adoptee is deemed to be coming to
be adopted in the United States if either of the following factors
exists:
(a) The applicant/petitioner will not complete the child's adoption
abroad; or
(b) In the case of a married applicant/petitioner, the child was
adopted abroad only by one of the spouses, rather than by the spouses
jointly, so that it will be necessary for the other spouse to adopt the
child after the child's admission.
Sec. 204.306 Classification as an immediate relative based on a Convention
adoption.
(a) Unless 8 CFR 204.309 requires the denial of a Form I-800A or
Form I-800, a child is eligible for classification as an immediate
relative, as defined in section 201(b)(2)(A)(i) of the Act, on the basis
of a Convention adoption, if the U.S. citizen who seeks to adopt the
child establishes that:
(1) The United States citizen is (or, if married, the United States
citizen and the United States citizen's spouse are) eligible and
suitable to adopt; and
(2) The child is a Convention adoptee.
(b) A U.S. citizen seeking to have USCIS classify an alien child as
the U.S. citizen's child under section 101(b)(1)(G) of the Act must
complete a two-step process:
(1) First, the U.S. citizen must file a Form I-800A under 8 CFR
204.310;
(2) Then, once USCIS has approved the Form I-800A and a child has
been identified as an alien who may qualify as a Convention adoptee, the
U.S. citizen must file a Form I-800 under 8 CFR 204.313.
Sec. 204.307 Who may file a Form I-800A or Form I-800.
(a) Eligibility to file Form I-800A. Except as provided in paragraph
(c) of this section, the following persons may file a Form I-800A:
(1) An unmarried United States citizen who is at least 24 years old
and 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
[[Page 122]]
in the United States, holds a lawful status under U.S. immigration law;
and
(3) The person has an approved and unexpired Form I-800A.
(c) Exceptions. (1) No applicant may file a Form I-800A, and no
petitioner may file a Form I-800, if:
(i) The applicant filed a prior Form I-800A that USCIS denied under
8 CFR 204.309(a); or
(ii) The applicant filed a prior Form I-600A under 8 CFR 204.3 that
USCIS denied under 8 CFR 204.3(h)(4); or
(iii) The petitioner filed a prior Form I-800 that USCIS denied
under 8 CFR 204.309(b)(3); or
(iv) The petitioner filed a prior Form I-600 under 8 CFR 204.3 that
USCIS denied under 8 CFR 204.3(i).
(2) This bar against filing a subsequent Form I-800A or Form I-800
expires one year after the date on which the decision denying the prior
Form I-800A, I-600A, I-800 or I-600 became administratively final. If
the applicant (for a Form I-800A or I-600A case) or the petitioner (for
a Form I-800 or I-600 case) does not appeal the prior decision, the one-
year period ends one year after the date of the original decision
denying the prior Form I-800A, I-600A, I-800 or I-600. Any Form I-800A,
or Form I-800 filed during this one-year period will be denied. If the
applicant (for a Form I-800A or Form I-600A case) or petitioner (for a
Form I-800 or I-600 case) appeals the prior decision, the bar to filing
a new Form I-800A or I-800 applies while the appeal is pending and ends
one year after the date of an Administrative Appeals Office decision
affirming the denial.
(3) Any facts underlying a prior denial of a Form I-800A, I-800, I-
600A, or I-600 are relevant to the adjudication of any subsequently
filed Form I-800A or Form I-800 that is filed after the expiration of
this one year bar.
Sec. 204.308 Where to file Form I-800A or Form I-800.
(a) Form I-800A. An applicant must file a Form I-800A with the USCIS
office identified in the instructions that accompany Form I-800A.
(b) Form I-800. After a Form I-800A has been approved, a petitioner
may file a Form I-800 on behalf of a Convention adoptee with the
stateside or overseas USCIS office identified in the instructions that
accompany Form I-800. The petitioner may also file the Form I-800 with a
visa-issuing post that would have jurisdiction to adjudicate a visa
application filed by or on behalf of the Convention adoptee, when filing
with the visa-issuing post is permitted by the instructions that
accompany Form I-800.
(c) Final approval of Form I-800. Once a Form I-800 has been
provisionally approved under 8 CFR 204.313(g) and the petitioner has
either adopted or obtained custody of the child for purposes 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:
[[Page 123]]
(1) The applicant or any additional adult member of the household
failed to disclose to the home study preparer or to USCIS, or concealed
or misrepresented, any fact(s) about the applicant or any additional
member of the household concerning the arrest, conviction, or history of
substance abuse, sexual abuse, child abuse, and/or family violence, or
any other criminal history as an offender; the fact that an arrest or
conviction or other criminal history has been expunged, sealed,
pardoned, or the subject of any other amelioration does not relieve the
applicant or additional adult member of the household of the obligation
to disclose the arrest, conviction or other criminal history;
(2) The applicant, or any additional adult member of the household,
failed to cooperate in having available child abuse registries checked
in accordance with 8 CFR 204.311;
(3) The applicant, or any additional adult member of the household,
failed to disclose, as required by 8 CFR 204.311, each and every prior
adoption home study, whether completed or not, including those that did
not favorably recommend for adoption or custodial care, the person(s) to
whom the prior home study related; or
(4) The applicant is barred by 8 CFR 204.307(c) from filing the Form
I-800A.
(b) Form I-800. A USCIS officer must deny a Form I-800 if:
(1) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a
new Form I-800 filed with a new Form I-800A to reflect a change in
marital status, the petitioner completed the adoption of the child, or
acquired legal custody of the child for purposes of emigration and
adoption, before the provisional approval of the Form I-800 under 8 CFR
204.313(g). This restriction will not apply if a competent authority in
the country of the child's habitual residence voids, vacates, annuls, or
terminates the adoption or grant of custody and then, after the
provisional approval of the Form I-800, and after receipt of notice
under article 5(c) of the Convention that the child is, or will be,
authorized to enter and reside permanently in the United States, permits
a new grant of adoption or custody. The prior adoption must be voided,
vacated, annulled or otherwise terminated before the petitioner files a
Form I-800.
(2) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a
new Form I-800 filed with a new Form I-800A to reflect a change in
marital status, the petitioner, or any additional adult member of the
household had met with, or had any other form of contact with, the
child's parents, legal custodian, or other individual or entity who was
responsible for the child's care when the contact occurred, unless the
contact was permitted under this paragraph. An authorized adoption
service 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-
[[Page 124]]
in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather,
stepmother, stepson, stepdaughter, stepbrother, stepsister, half
brother, or half sister of the child's parent(s).
(3) The USCIS officer finds that the petitioner, or any individual
or entity acting on behalf of the petitioner has engaged in any conduct
related to the adoption or immigration of the child that is prohibited
by 8 CFR 204.304, or that the petitioner has concealed or misrepresented
any material facts concerning payments made in relation to the adoption;
(4) The child is present in the United States, unless the
petitioner, after compliance with the requirements of this subpart,
either adopt(s) the child in the Convention country, or else, after
having obtained custody of the child under the law of the Convention
country for purposes of emigration and adoption, adopt(s) the child in
the United States. This subpart does not require the child's actual
return to the Convention country; whether to permit the child's adoption
without the child's return is a matter to be determined by the Central
Authority of the country of the child's habitual residence, but approval
of a Form I-800 does not relieve an alien child of his or her
ineligibility for adjustment of status under section 245 of the Act, if
the child is present in the United States without inspection or is
otherwise ineligible for adjustment of status. If the child is in the
United States but is not eligible for adjustment of status, the Form I-
800 may be provisionally approved only if the child will leave the
United States after the provisional approval and apply for a visa abroad
before the final approval of the Form I-800.
(5) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a
new Form I-800 filed with a new Form I-800A to reflect a change in
marital status, the petitioner files the Form I-800:
(i) Before the approval of a Form I-800A, or
(ii) After the denial of a Form I-800A; or
(iii) After the expiration of the approval of a Form I-800A;
(6) The petitioner is barred by 8 CFR 204.307(c) from filing the
Form I-800.
(c) Notice of intent to deny. Before denying a Form I-800A under
paragraph (a) or a Form I-800 under paragraph (b) of this section, the
USCIS officer will notify the applicant (for a Form I-800A case) or
petitioner (for a Form I-800 case) in writing of the intent to deny the
Form I-800A or Form I-800 and provide 30 days in which to submit
evidence and argument to rebut the claim that this section requires
denial of the Form I-800A or Form I-800.
(d) Rebuttal of intent to deny. If USCIS notifies the applicant that
USCIS intends to deny a Form I-800A under paragraph (a) of this section,
because 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:
[[Page 125]]
(1) Complete Form I-800A, including a Form I-800A Supplement 1 for
each additional adult member of the household, in accordance with the
instructions that accompany the Form I-800A.
(2) Sign the Form I-800A personally. One spouse cannot sign for the
other, even under a power of attorney or similar agency arrangement.
(3) File the Form I-800A with the USCIS office that has jurisdiction
under 8 CFR 204.308(a) to adjudicate the Form I-800A, together with:
(i) The fee specified in 8 CFR 103.7(b)(1) for the filing of Form I-
800A;
(ii) The additional biometrics information collection fee required
under 8 CFR 103.7(b)(1) for the applicant and each additional adult
member of the household;
(iii) Evidence that the applicant is a United States citizen, as set
forth in 8 CFR 204.1(g), or, in the case of a married applicant,
evidence either that both spouses are citizens or, if only one spouse is
a United States citizen, evidence of that person's citizenship and
evidence that the other spouse, if he or she lives in the United States,
is either a non-citizen United States national or an alien who holds a
lawful status under U.S. immigration law.
(iv) A copy of the current marriage certificate, unless the
applicant is not married;
(v) If the applicant has been married previously, a death
certificate or divorce or dissolution decree to establish the legal
termination of all previous marriages, regardless of current marital
status;
(vi) If the applicant is not married, his or her birth certificate,
U.S. passport biographical information page, naturalization or
citizenship certificate, or other evidence, to establish that he or she
is at least 24 years old;
(vii) A written description of the preadoption requirements, if any,
of the State of the child's proposed residence in cases where it is
known that any child the applicant may adopt will be adopted in the
United States, and of the steps that have already been taken or that are
planned to comply with these requirements. The written description must
include a citation to the State statutes and regulations establishing
the requirements. Any preadoption requirements which cannot be met at
the time the Form I-800A is filed because of the operation of State law
must be noted and explained when the Form I-800A is filed.
(viii) A home study that meets the requirements of 8 CFR 204.311 and
that bears the home study preparer's original signature. If the home
study is not included with the Form I-800A, the director of the office
that has jurisdiction to adjudicate the Form I-800A will make a written
request for evidence, directing the applicant to submit the home study.
If the applicant fails to 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]
[[Page 126]]
Sec. 204.311 Convention adoption home study requirements.
(a) Purpose. For immigration purposes, a home study is a process for
screening and preparing an applicant who is interested in adopting a
child from a Convention country.
(b) Preparer. Only an individual or entity defined under 8 CFR
204.301 as a home study preparer for Convention cases may complete a
home study for a Convention adoption. In addition, the individual or
entity must be authorized to complete adoption home studies under the
law of the jurisdiction in which the home study is conducted.
(c) Study requirements. The home study must:
(1) Be tailored to the particular situation of the applicant and to
the specific Convention country in which the applicant intends to seek a
child for adoption. For example, an applicant who has previously adopted
children will require different preparation than an applicant who has no
adopted children. A home study may address the applicant's suitability
to adopt in more than one Convention country, but if the home study does
so, the home study must separately assess the applicant's suitability as
to each specific Convention country.
(2) If there are any additional adult members of the household,
identify each of them by name, alien registration number (if the
individual has one), and date of birth.
(3) Include an interview by the preparer of any additional adult
member of the household and an assessment of him or her in light of the
requirements of this section.
(4) Be no more than 6 months old at the time the home study is
submitted to USCIS.
(5) Include the home study preparer's assessment of any potential
problem areas, a copy of any outside evaluation(s), and the home study
preparer's recommended restrictions, if any, on the characteristics of
the child to be placed in the home. See 8 CFR 204.309(a) for the
consequences of failure to disclose information or cooperate in
completion of a home study.
(6) Include the home study preparer's signature, in accordance with
paragraph (f) of this section.
(7) State the number of interviews and visits, the participants,
date and location of each interview and visit, and the date and location
of any other contacts with the applicant and any additional adult member
of the household.
(8) Summarize the pre-placement preparation and training already
provided to the applicant concerning the issues specified in 22 CFR
96.48(a) and (b), the plans for future preparation and training with
respect to those issues, or with respect to a particular child, as
specified in 22 CFR 96.48(c), 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
[[Page 127]]
placement of a child in light of any applicant's or additional adult
member of the household's history of abuse and/or violence as an
offender, whether this history is disclosed by an applicant or any
additional adult member of the household or is discovered by home study
preparer, regardless of the source of the home study preparer's
discovery. A single incident of sexual abuse, child abuse, or family
violence is sufficient to constitute a ``history'' of abuse and/or
violence.
(14) Contain an evaluation of the suitability of the home for
adoptive placement of a child in light of disclosure by an applicant, or
any additional adult member of the household, of a history of substance
abuse. A person has a history of substance abuse if his or her current
or past use of alcohol, controlled substances, or other substances
impaired or impairs his or her ability to fulfill obligations at work,
school, or home, or creates other social or interpersonal problems that
may adversely affect the applicant's suitability as an adoptive parent.
(15) Include a general description of the information disclosed in
accordance with paragraph (m) of this section concerning the physical,
mental, and emotional health of the applicant and of any additional
adult member of the household.
(16) Identify the agency involved in each prior or terminated home
study in accordance with paragraph (o) of this section, when the prior
home study process began, the date the prior home study was completed,
and whether the prior home study recommended for or against finding the
applicant or additional adult member of the household suitable for
adoption, foster care, or other custodial care of a child. If a prior
home study was terminated without completion, the current home study
must indicate when the prior home study began, the date of termination,
and the reason for the termination.
(d) Duty to disclose. (1) The applicant, and any additional adult
members of the household, each has a duty of candor and must:
(i) Give true and complete information to the home study preparer.
(ii) Disclose any arrest, conviction, or other adverse criminal
history, whether in the United States or abroad, even if the record of
the arrest, conviction or other adverse criminal history has been
expunged, sealed, pardoned, or the subject of any other amelioration. A
person with a criminal history may be able to establish sufficient
rehabilitation.
(iii) Disclose other relevant information, such as physical, mental
or emotional health issues, or behavioral issues, as specified in
paragraph (m) of this section. Such problems may not necessarily
preclude approval of a 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
[[Page 128]]
the signer did not personally conduct the home study, the person who
actually did so must be identified;
(2) The factual statements in the home study are true and correct,
to the best of the signer's knowledge, information and belief; and
(3) The home study preparer has advised the applicant of the duty of
candor under paragraph (d) of this section, specifically including the
on-going duty under paragraph (d)(2) of this section concerning
disclosure of new events or information warranting submission of an
updated or amended home study.
(g) Personal interview(s) and home visit(s). The home study preparer
must:
(1) Conduct at least one interview in person, and at least one home
visit, with the applicant.
(2) Interview, at least once, each additional adult member of the
household, as defined in 8 CFR 204.301. The interview with an additional
adult member of the household should also be in person, unless the home
study preparer determines that interviewing that individual in person is
not reasonably feasible and explains in the home study the reason for
this conclusion.
(3) Provide information on and assess the suitability of the
applicant as the adoptive parent of a Convention adoptee based on the
applicant's background, family and medical history (including physical,
mental and emotional health), social environment, reasons for adoption,
ability to undertake an intercountry adoption, and the characteristics
of the child(ren) for whom they would be qualified to care.
(4) Refer the applicant to an appropriate licensed professional,
such as a physician, psychiatrist, clinical psychologist, clinical
social worker, or professional substance abuse counselor, for an
evaluation and written report, if the home study preparer determines
that there are areas beyond his or her expertise that need to be
addressed. The home study preparer must also make such a referral if
such a referral would be required for a domestic adoption under the law
of the State of the applicant's actual or proposed place of residence in
the United States.
(5) Apply the requirements of this paragraph to each additional
adult member of the household.
(h) Financial considerations. (1) Assessment of the finances of the
applicant must include:
(i) A description of the applicant's income, financial resources,
debts, and expenses.
(ii) A statement concerning the evidence that was considered to
verify the source and amount of income and financial resources.
(2) Any income designated for the support of one or more children in
the applicant's care and custody, such as funds for foster care, or any
income designated for the support of another 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
[[Page 129]]
study preparer must secure such permission from those individuals and
make the appropriate checks;
(3) If the State or foreign country will only release information
directly to an individual to whom the information relates, then the
applicant and the additional adult member of the household must secure
such information and provide it to the home study preparer.
(4) If the State or foreign country will release information neither
to the home study preparer nor to the person to whom the information
relates, or has not done so within 6 months of a written request for the
information, this unavailability of information must be noted in the
home study.
(j) Inquiring about history of abuse or violence as an offender. The
home study preparer must ask each applicant and each additional adult
member of the household whether he or she has a history as an offender,
whether in the United States or abroad, of substance abuse, sexual
abuse, or child abuse, or family violence, even if such history did not
result in an arrest or conviction. This evaluation must include:
(1) The dates of each arrest or conviction or history of substance
abuse, sexual abuse or child abuse, and/or family violence; or,
(2) If not resulting in an arrest, the date or time period (if
occurring over an extended period of time) of each occurrence and
(3) Details including any mitigating circumstances about each
incident.
Each statement must be signed, under penalty of perjury, by the
person to whom the incident relates.
(k) Criminal history. The applicant, and any additional adult
members of the household, must also disclose to the home study preparer
and USCIS any history, whether in the United States or abroad, of any
arrest and/or conviction (other than for minor traffic offenses) in
addition to the information that the person must disclose under
paragraph (j) of this section. If an applicant or an additional adult
member of the household has a criminal record, the officer may still
find that the applicant will be suitable as the adoptive parent of a
Convention adoptee, if there is sufficient evidence of rehabilitation as
described in paragraph (l) of this section.
(l) Evidence of rehabilitation. If an applicant, or any additional
adult member of the household, has a history of substance abuse, sexual
abuse or child abuse, and/or family violence as an offender, or any
other criminal history, the home study preparer may, nevertheless, make
a favorable finding if the applicant has demonstrated that the person
with this adverse history has achieved appropriate rehabilitation. A
favorable recommendation cannot be made based on a claim of
rehabilitation while an applicant or any additional adult member of the
household is on probation, parole, supervised release, or other similar
arrangement for any conviction. The home study must 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
[[Page 130]]
sexual abuse, child abuse, or family violence issues if, in the home
study preparer's reasonable professional judgment, such referral(s) may
be necessary or helpful to the proper completion of the home study.
(n) Prior home study. The home study preparer must ask each
applicant, and any additional adult member of the household, whether he
or she previously has had a prior home study completed, or began a home
study process in relation to an adoption or to any form of foster or
other custodial care of a child that was not completed, whether or not
the prior home study related to an intercountry adoption, and must
include each individual's response to this question in the home study
report. A copy of any previous home study that did not favorably
recommend the applicant or additional adult member of the household must
be attached to any home study submitted with a Form I-800A. If a copy of
any prior home study that did not favorably recommend the applicant or
additional adult member of the household is no longer available, the
current home study must explain why the prior home study is no longer
available. The home study preparer must evaluate the relevance of any
prior unfavorable or uncompleted home study to the suitability of the
applicant as the adoptive parent of a Convention adoptee.
(o) Living accommodations. The home study must include a detailed
description of the living accommodations where the applicant currently
resides. If the applicant is planning to move, the home study must
include a description of the living accommodations where the child will
reside with the applicant, if known. If the applicant is residing abroad
at the time of the home study, the home study must include a description
of the living accommodations where the child will reside in the United
States with the applicant, if known. Each description must include an
assessment of the suitability of accommodations for a child and a
determination whether such space meets applicable State requirements, if
any.
(p) Handicapped or special needs child. A home study conducted in
conjunction with the proposed adoption of a special needs or handicapped
child must contain a discussion of the preparation, willingness, and
ability of the applicant to provide proper care for a child with the
handicap or special needs. This information will be used to evaluate the
suitability of the applicant as the adoptive parent of a special needs
or handicapped child. If this information is not included in the home
study, an updated or amended home study will be necessary if the
applicant seeks to adopt a handicapped or special needs child.
(q) Addressing a Convention country's specific requirements. If the
Central Authority of the Convention country has notified the Secretary
of State of any specific requirements that must be met in order to adopt
in the Convention country, the home study must include a full and
complete statement of all 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
[[Page 131]]
specify the basis under 22 CFR part 96 (public domestic authority,
accredited agency, temporarily accredited agency, approved person,
exempted provider, or supervised provider) for his or her authorization
to conduct Convention adoption home studies.
(t) Review of home study. (1) If the law of the State in which the
applicant resides requires the competent authority in the State to
review the home study, such a review must occur and be documented before
the home study is submitted to USCIS.
(2) When the home study is not performed in the first instance by an
accredited agency or temporarily accredited agency, as defined in 22 CFR
part 96, then an accredited agency or temporarily accredited agency, as
defined in 22 CFR part 96, must review and approve the home study as
specified in 22 CFR 96.47(c) before the home study is submitted to
USCIS. This requirement for review and approval by an accredited agency
or temporarily accredited agency does not apply to a home study that was
actually prepared by a public domestic authority, as defined in 22 CFR
96.2.
(u) Home study updates and amendments. (1) A new home study
amendment or update will be required if there is:
(i) A significant change in the applicant's household, such as a
change in residence, marital status, criminal history, financial
resources; or
(ii) The addition of one or more children in the applicant's home,
whether through adoption or foster care, birth, or any other means. Even
if the original home study provided for the adoption of more than one
adopted child, the applicant must submit an amended home study
recommending adoption of an additional child, because the addition of
the already adopted child(ren) to the applicant's household is a
significant change in the household that should be assessed before the
adoption of any additional child(ren);
(iii) The addition of other dependents or additional adult member(s)
of the household to the family prior to the prospective child's
immigration into the United States;
(iv) A change resulting because the applicant is seeking to adopt a
handicapped or special needs child, if the home study did not already
address the applicant's suitability as the adoptive parent of a child
with the particular handicap or special need;
(v) A change to a different Convention country. This change requires
the updated home study to address suitability under the requirements of
the new Convention country;
(vi) A lapse of more than 6 months between the date the home study
is completed and the date it is submitted to USCIS; or
(vii) A change to the child's proposed State of residence. The
preadoption requirements of the new State must be complied with in the
case of a child coming to the United States to be adopted.
(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
[[Page 132]]
wants to have USCIS extend the approval period for the Form I-800A, the
applicant must submit the updated or amended home study with an
extension request under 8 CFR 204.312(e)(3), rather than under this
paragraph (u) of this section.
(5) Each update must indicate that the home study preparer has
updated the screening of the applicant and any additional adult member
of the household under paragraphs (i) through (l) of this section, and
must indicate the results of this updated screening.
Sec. 204.312 Adjudication of the Form I-800A.
(a) USCIS action. The USCIS officer must approve a Form I-800A if
the officer finds, based on the evidence of record, that the applicant
is eligible under 8 CFR 204.307(a) to file a Form I-800A and the USCIS
officer is satisfied that the applicant is suitable as the adoptive
parent of a child from the specified Convention country. If the
applicant sought approval for more than one Convention country, the
decision will specify each country for which the Form I-800A is
approved, and will also specify whether the Form I-800A is denied with
respect to any particular Convention country.
(b) Evaluation of the home study. In determining suitability to
adopt, the USCIS officer will give considerable weight to the home
study, but is not bound by it. Even if the home study is favorable, the
USCIS officer must deny the Form I-800A if, on the basis of the evidence
of record, the officer finds, for a specific and articulable reason,
that the applicant has failed to establish that he or she is suitable as
the adoptive parent of a child from the Convention country. The USCIS
officer may consult the accredited agency or temporarily accredited
agency that approved the home study, the home study preparer, the
applicant, the relevant State or local child welfare agency, or any
appropriate licensed professional, as needed to clarify issues
concerning whether the applicant is suitable as the adoptive parent of a
Convention adoptee. If this consultation yields evidence that is adverse
to the applicant, the USCIS officer may rely on the evidence only after
complying with the provisions of 8 CFR 103.2(b)(16) relating to the
applicant's right to review and rebut adverse information.
(c) Denial of application. (1) The USCIS officer will deny the Form
I-800A if the officer finds that the applicant has failed to establish
that the applicant is:
(i) Eligible under 8 CFR 204.307(a) to file Form I-800A; or
(ii) Suitable as the adoptive parent of a child from the Convention
country.
(2) Before denying a Form I-800A, the USCIS officer will comply with
8 CFR 103.2(b)(16), if required to do so under that provision, and may
issue a request for evidence or a notice of intent to deny under 8 CFR
103.2(b)(8).
(3) A denial will be in writing, giving the reason for the denial
and notifying 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.
[[Page 133]]
(e) Duration or revocation of approval. (1) A notice of approval
expires 15 months after the date on which USCIS received the FBI
response on the applicant's, and any additional adult member of the
household's, biometrics, unless approval is revoked. If USCIS received
the responses on different days, the 15-month period begins on the
earliest response date. The notice of approval will specify the
expiration date. USCIS may extend the validity period for the approval
of a Form I-800A only as provided in paragraph (e)(3) of this section.
(2) (i) The approval of a Form I-800A is automatically revoked if
before the final decision on a Convention adoptee's application for
admission with an immigrant visa or for adjustment of status:
(A) The marriage of the applicant terminates; or
(B) An unmarried applicant marries; or
(C) In the case of a married applicant, either spouse files with a
USCIS or Department of State officer a written document withdrawing his
or her signature on the Form I-800A.
(ii) This revocation is without prejudice to the filing of a new
Form I-800A, with fee, accompanied by a new or amended home study,
reflecting the change in marital status. If a Form I-800 had already
been filed based on the approval of the prior Form I-800A, a new Form I-
800 must also be filed with the new Form I-800A under this paragraph.
The new Form I-800 will be adjudicated only if the new Form I-800A is
approved. The new Form I-800 will not be subject to denial under 8 CFR
204.309(b)(1) or (2), unless the original Form I-800 would have been
subject to denial under either of those provisions.
(3)(i) If the 15-month validity period for a Form I-800A approval is
about to expire, and the applicant has not filed a Form I-800, the
applicant may file Form I-800A Supplement 3, with the filing fee under 8
CFR 103.7(b)(1), if required. The applicant may not file a Form I-800A
Supplement 3 seeking extension of an approval notice more than 90 days
before the expiration of the validity period for the Form I-800A
approval, but must do so on or before the date on which the validity
period expires. The applicant is not required to pay the Form I-800A
Supplement 3 filing fee for the first request to extend the approval of
a Form I-800A. If the applicant files a second or subsequent Form I-800A
Supplement 3 to obtain a second or subsequent extension, however, the
applicant must pay the Form I-800A Supplement 3 filing fee, as specified
in 8 CFR 103.7(b), for the second, or any subsequent, Form I-800A
Supplement 3 that is filed to obtain a second or subsequent extension.
Any Form I-800A Supplement 3 that is filed to obtain an extension of the
approval of a Form I-800A must be accompanied by:
(A) A statement, signed by the applicant under penalty of perjury,
detailing any changes to the answers given 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.
[[Page 134]]
Sec. 204.313 Filing and adjudication of a Form I-800.
(a) When to file. Once a Form I-800A has been approved and the
Central Authority has proposed placing a child for adoption by the
petitioner, the petitioner may file the Form I-800. The petitioner must
complete the Form I-800 in accordance with the instructions that
accompany the Form I-800, and must sign the Form I-800 personally. In
the case of a married petitioner, one spouse cannot sign for the other,
even under a power of attorney or similar agency arrangement. The
petitioner may then file the Form I-800 with the stateside or overseas
USCIS office or the visa issuing post that has jurisdiction under 8 CFR
204.308(b) to adjudicate the Form I-800, together with the evidence
specified in this section and the filing fee specified in 8 CFR
103.7(b)(1), if more than one Form I-800 is filed for children who are
not siblings.
(b) What to include on the Form. (1) The petitioner must specify on
the Form I-800 either that:
(i) The child will seek an immigrant visa, if the Form I-800 is
approved, because the child will reside in the United States with the
petitioner (in the case of a married petitioner, if only one spouse is a
United States citizen, with that spouse) after the child's admission to
the United States on the basis of the proposed adoption; or
(ii) The child will seek a nonimmigrant visa, in order to travel to
the United States to obtain naturalization under section 322 of the Act,
because the petitioner intends to complete the adoption abroad and the
petitioner and the child will continue to reside abroad immediately
following the adoption, rather than residing in the United States with
the petitioner. This option is not available if the child will be
adopted in the United States.
(2) In applying this paragraph (b), if a petitioner is a United
States citizen who is domiciled in the United States, but who is posted
abroad temporarily under official orders as a member of the Uniformed
Services as defined in 5 U.S.C. 2101, or as a civilian officer or
employee of the United States Government, the child will be deemed to be
coming to the United States to reside in the United States with that
petitioner.
(c) Filing deadline. (1) The petitioner must file the Form I-800
before the expiration of the notice of the approval of the Form I-800A
and before the child's 16th birthday. Paragraphs (c)(2) and (3) of this
section provide special rules for determining that this requirement has
been met.
(2) If the appropriate Central Authority places the child with the
petitioner for intercountry adoption more than 6 months after the
child's 15th birthday but before the child's 16th birthday, the
petitioner must still file the Form I-800 before the child's 16th
birthday. If the evidence required by paragraph (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);
[[Page 135]]
(2) A statement from the primary provider, as defined in 22 CFR
96.2, signed under penalty of perjury under United States law,
indicating that all of the pre-placement preparation and training
provided for in 22 CFR 96.48 has been completed;
(3) The report required under article 16 of the Convention,
specifying the child's name and date of birth, the reasons for making
the adoption placement, and establishing that the competent authority
has, as required under article 4 of the Convention:
(i) Established that the child is eligible for adoption;
(ii) Determined, after having given due consideration to the
possibility of placing the child for adoption within the Convention
country, that intercountry adoption is in the child's best interests;
(iii) Ensured that the legal custodian, after having been counseled
as required, concerning the effect of the child's adoption on the legal
custodian's relationship to the child and on the child's legal
relationship to his or her family of origin, has freely consented in
writing to the child's adoption, in the required legal form;
(iv) Ensured that if any individual or entity other than the legal
custodian must consent to the child's adoption, this individual or
entity, after having been counseled as required concerning the effect of
the child's adoption, has freely consented in writing, in the required
legal form, to the child's adoption;
(v) Ensured that the child, after having been counseled as
appropriate concerning the effects of the adoption; has freely consented
in writing, in the required legal form, to the adoption, if the child is
of an age that, under the law of the country of the child's habitual
residence, makes the child's consent necessary, and that consideration
was given to the child's wishes and opinions; and
(vi) Ensured that no payment or inducement of any kind has been
given to obtain the consents necessary for the adoption to be completed.
(4) The report under paragraph (d)(3) of this section must be
accompanied by:
(i) A copy of the child's birth certificate, or secondary evidence
of the child's age; and
(ii) A copy of the irrevocable consent(s) signed by the legal
custodian(s) and any other individual or entity who must consent to the
child's adoption unless, as permitted under article 16 of the
Convention, the law of the country of the child's habitual residence
provides that their identities may not be disclosed, so long as the
Central Authority of the country of the child's habitual residence
certifies in its report that the required documents exist and that they
establish the child's age and availability for adoption;
(iii) A statement, signed under penalty of perjury by the primary
provider (or an authorized representative if the 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
[[Page 136]]
makes it unnecessary to provide a copy of the death certificate;
(D) If a sole birth parent was the legal custodian, the
circumstances leading to the determination that the other parent
abandoned or deserted the child, or disappeared from the child's life;
and
(E) If the legal custodian was the child's prior adoptive parent(s)
or any individual or entity other than the child's birth parent(s), the
circumstances leading to the custodian's acquisition of custody of the
child and the legal basis of that custody.
(v) If the child will be adopted in the United States, the primary
provider's written report, signed under penalty of perjury by the
primary provider (or an authorized representative if the primary
provider is an agency or other juridical person) detailing the primary
adoption service provider's plan for post-placement duties, as specified
in 22 CFR 96.50; and
(5) If the child may be inadmissible under any provision of section
212(a) for which a waiver is available, a properly completed waiver
application for each such ground; and
(6) Either a Form I-864W, Intending Immigrant's I-864 Exemption, or
a Form I-864, Affidavit of Support, as specified in 8 CFR 213a.2.
(e) Obtaining the home study and supporting evidence. The materials
from the Form I-800A proceeding will be included in the record of the
Form I-800 proceeding.
(f) Investigation. An investigation concerning the alien child's
status as a Convention adoptee will be completed before the Form I-800
is adjudicated in any case in which the officer with jurisdiction to
grant provisional or final approval of the Form I-800 determines, on the
basis of specific facts, that completing the investigation will aid in
the provisional or final adjudication of the Form I-800. Depending on
the circumstances surrounding the case, the investigation may include,
but is not limited to, document checks, telephone checks, interview(s)
with the birth or prior adoptive parent(s), a field investigation, and
any other appropriate investigatory actions. In any case in which there
are significant differences between the facts presented in the approved
Form I-800A or Form I-800 and the facts uncovered by the investigation,
the office conducting the investigation may consult directly with the
appropriate USCIS office. In any instance where the investigation
reveals negative information sufficient to sustain a denial of the Form
I-800 (including a denial of a Form I-800 that had been provisionally
approved) or the revocation of the final approval of the Form I-800, the
results of the investigation, including any supporting documentation,
and the Form I-800 and its supporting documentation will be forwarded to
the appropriate USCIS office for action. Although USCIS is not precluded
from denying final approval of a Form I-800 based on the results of an
investigation under this paragraph, the grant of provisional approval
under 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
[[Page 137]]
eligible for classification as a Convention adoptee, adjudicate any
waiver application and (if any necessary waiver of inadmissibility is
granted) direct the petitioner to obtain and present the evidence
required under paragraph (h) of this section in order to obtain final
approval of the Form I-800.
(ii) The grant of a waiver of inadmissibility in conjunction with
the provisional approval of a Form I-800 is conditioned upon the
issuance of an immigrant or nonimmigrant visa for the child's admission
to the United States based on the final approval of the same Form I-800.
If the Form I-800 is finally denied or the immigrant or nonimmigrant
visa application is denied, the waiver is void.
(2) If the petitioner filed the Form I-800 with USCIS and the child
will apply for an immigrant or nonimmigrant visa, then, upon provisional
approval of the Form I-800, the officer will forward the notice of
provisional approval, Form I-800, and all supporting evidence to the
Department of State. If the child will apply for adjustment of status,
USCIS will retain the record of proceeding.
(h) Final approval. (1) To obtain final approval of a provisionally
approved Form I-800, the petitioner must submit to the Department of
State officer who has jurisdiction of the child's application for an
immigrant or nonimmigrant visa, or to the USCIS officer who has
jurisdiction of the child's adjustment of status application, a copy of
the following document(s):
(i) If the child is adopted in the Convention country, the adoption
decree or administrative order from the competent authority in the
Convention country showing that the petitioner has adopted the child; in
the case of a married petitioner, the decree or order must show that
both spouses adopted the child; or
(ii) If the child will be adopted in the United States:
(A) The decree or administrative order from the competent authority
in the Convention country giving custody of the child for purposes of
emigration and adoption to the petitioner or to an individual or entity
acting on behalf of the petitioner. In the case of a married petitioner,
an adoption decree that shows that the child was adopted only by one
spouse, but not by both, will be deemed to show that the petitioner has
acquired sufficient custody to bring the child to the United States for
adoption by the other spouse;
(B) If not already provided before the provisional approval
(because, for example, the petitioner thought the child would be adopted
abroad, but that plan has changed so that the child will now be adopted
in the United States), a statement from the primary provider, signed
under penalty of perjury under United States law, summarizing the plan
under 22 CFR 96.50 for monitoring of the placement until the adoption is
finalized in the United States;
(C) If not already provided before the provisional approval
(because, for example, the petitioner thought the child would be adopted
abroad, but that plan 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
[[Page 138]]
adoptee, or that 8 CFR 204.309(b) of this section requires denial of the
Form I-800. Before denying a Form I-800, the officer will comply with
the requirements of 8 CFR 103.2(b)(16)), if required to do so under that
provision, and may issue a request for evidence or a notice of intent to
deny under 8 CFR 103.2(b)(8).
(2) The decision will be in writing, specifying the reason(s) for
the denial and notifying the petitioner of the right to appeal, if any,
as specified in 8 CFR 204.314.
(3) If a Department of State officer finds, either at the
provisional approval stage or the final approval stage, that the Form I-
800 is ``not clearly approvable,'' or that 8 CFR 204.309(b) warrants
denial of the Form I-800, the Department of State officer will forward
the Form I-800 and accompanying evidence to the USCIS office with
jurisdiction over the place of the child's habitual residence for review
and decision.
Sec. 204.314 Appeal.
(a) Decisions that may be appealed. (1) Except as provided in
paragraph (b) of this section:
(i) An applicant may appeal the denial of a Form I-800A (including
the denial of a request to extend the prior approval of a Form I-800A)
and
(ii) A petitioner may appeal the denial of a Form I-800.
(2) The provisions of 8 CFR 103.3, concerning how to file an appeal,
and how USCIS adjudicates an appeal, apply to the appeal of a decision
under this subpart C.
(b) Decisions that may not be appealed. There is no appeal from the
denial of:
(1) Form I-800A because the Form I-800A was filed during any period
during which 8 CFR 204.307(c) bars the filing of a Form I-800A; or
(2) Form I-800A for failure to timely file a home study as required
by 8 CFR 204.310(a)(3)(viii); or
(3) Form I-800 that is denied because the Form I-800 was filed
during any period during which 8 CFR 204.307(c) bars the filing of a
Form I-800;
(4) Form I-800 filed either before USCIS approved a Form I-800A or
after the expiration of the approval of a Form I-800A.
PART 205_REVOCATION OF APPROVAL OF PETITIONS--Table of Contents
Sec.
205.1 Automatic revocation.
205.2 Revocation on notice.
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, and
1186a.
Sec. 205.1 Automatic revocation.
(a) Reasons for automatic revocation. The approval of a petition or
self-petition made under section 204 of the Act and in accordance with
part 204 of this chapter is revoked as of the date of approval:
(1) If the Secretary of State shall terminate the registration of
the beneficiary pursuant to the provisions of section 203(e) of the Act
before October 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.
[[Page 139]]
USCIS may make this determination only if the principal beneficiary of
the visa petition asks for reinstatement of the approval of the petition
and establishes that a person related to the principal beneficiary in
one of the ways described in section 213A(f)(5)(B) of the Act is willing
and able to file an affidavit of support under 8 CFR part 213a as a
substitute sponsor.
(D) Upon the legal termination of the marriage when a citizen or
lawful permanent resident of the United States has petitioned to accord
his or her spouse immediate relative or family-sponsored preference
immigrant classification under section 201(b) or section 203(a)(2) of
the Act. The approval of a spousal self-petition based on the
relationship to an abusive citizen or lawful permanent resident of the
United States filed under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii)
of the Act, however, will not be revoked solely because of the
termination of the marriage to the abuser.
(E) Upon the remarriage of the spouse of an abusive citizen or
lawful permanent resident of the United States when the spouse has self-
petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the
Act for immediate relative classification under section 201(b) of the
Act or for preference classification under section 203(a)(2) of the Act.
(F) Upon a child reaching the age of 21, when he or she has been
accorded immediate relative status under section 201(b) of the Act. A
petition filed on behalf of a child under section 204(a)(1)(A)(i) of the
Act or a self-petition filed by a child of an abusive United States
citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain
valid for the duration of the relationship to accord preference status
under section 203(a)(1) of the Act if the beneficiary remains unmarried,
or to accord preference status under section 203(a)(3) of the Act if he
or she marries.
(G) Upon the marriage of a child, when he or she has been accorded
immediate relative status under section 201(b) of the Act. A petition
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act or
a self-petition filed by a child of an abusive United States citizen
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid
for the duration of the relationship to accord preference status under
section 203(a)(3) of the Act if he or she marries.
(H) Upon the marriage of a person accorded preference status as a
son or daughter of a United States citizen under section 203(a)(1) of
the Act. A petition filed on behalf of the son or daughter, however,
will remain valid for the duration of the relationship to accord
preference status under section 203(a)(3) of the Act.
(I) Upon the marriage of a person accorded status as a son or
daughter of a lawful permanent resident alien under section 203(a)(2) of
the Act.
(J) Upon legal termination of the petitioner's status as an alien
admitted 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.
[[Page 140]]
(E) Upon the beneficiary's reaching the age of 21 when the
beneficiary has been accorded classification under section 201(b) of the
Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(1) of the Act if the beneficiary remains unmarried or
under section 203(a)(3) if the beneficiary marries.
(F) Upon the beneficiary's marriage when the beneficiary has been
accorded classification under section 201(b) or section 203(a)(1) of the
Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(3) of the Act.
(iii) Petitions under section 203(b), other than special immigrant
juvenile petitions. (A) Upon invalidation pursuant to 20 CFR Part 656 of
the labor certification in support of the petition.
(B) Upon the death of the petitioner or beneficiary.
(C) Upon written notice of withdrawal filed by the petitioner, in
employment-based preference cases, with any officer of the Service who
is authorized to grant or deny petitions.
(D) Upon termination of the employer's business in an employment-
based preference case under section 203(b)(1)(B), 203(b)(1)(C),
203(b)(2), or 203(b)(3) of the Act.
(iv) Special immigrant juvenile petitions. Unless the beneficiary
met all of the eligibility requirements as of November 29, 1990, and the
petition requirements as of November 29, 1990, and the petition for
classification as a special immigrant juvenile was filed before June 1,
1994, or unless the change in circumstances resulted from the
beneficiary's adoption or placement in a guardianship situation:
(A) Upon the beneficiary reaching the age of 21;
(B) Upon the marriage of the beneficiary;
(C) Upon the termination of the beneficiary's dependency upon the
juvenile court;
(D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
(E) Upon the determination in administrative or judicial proceedings
that it is in the beneficiary's best interest to be returned to the
country of nationality or last habitual residence of the beneficiary or
of his or her parent or parents.
(b) Notice. When it shall appear to the director that the approval
of a petition has been automatically revoked, he or she shall cause a
notice of such revocation to be sent promptly to the consular office
having jurisdiction over the visa application and a copy of such notice
to be mailed to the petitioner's last known address.
[61 FR 13077, Mar. 26, 1996, as amended at 71 FR 35749, June 21, 2006]
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
[[Page 141]]
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.
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]
[[Page 142]]
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]
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
[[Page 143]]
(6) A parent, sister, brother, grandparent, grandchild, nephew,
niece, uncle, aunt, cousin or in-law.
(c) Relationship. The relationship of a spouse and child as defined
in sections 101(a)(35) and 101(b) (1)(A), (B), (C), (D), or (E),
respectively, of the Act, must have existed prior to the refugee's
admission to the United States and must continue to exist at the time of
filing for accompanying or following-to-join benefits and at the time of
the spouse or child's subsequent admission to the United States. If the
refugee proves that the refugee is the parent of a child who was born
after the refugee's admission as a refugee, but who was in utero on the
date of the refugee's admission as a refugee, the child shall be
eligible to accompany or follow-to-join the refugee. The child's mother,
if not the principal refugee, shall not be eligible to accompany or
follow-to-join the principal refugee unless the child's mother was the
principal refugee's spouse on the date of the principal refugee's
admission as a refugee.
(d) Filing. A refugee may request accompanying or following-to-join
benefits for his 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
[[Page 144]]
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 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.
[[Page 145]]
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 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
[[Page 146]]
prior to April 1, 1997, by alien crewmembers who have remained in the
United States longer than authorized, by applicants for admission under
the Visa Waiver Pilot Program, and by aliens who have been admitted to
the United States under the Visa Waiver Pilot Program. Immigration
judges shall also have the authority to review reasonable fear
determinations referred to the Immigration Court under Sec. 208.31, and
credible fear determinations referred to the Immigration Court under
Sec. 208.30.
(c) Certain aliens not entitled to proceedings under section 240 of
the Act--(1)Asylum applications and withholding of removal applications
only. After Form I-863, Notice of Referral to Immigration Judge, has
been filed with the Immigration Court, an immigration judge shall have
exclusive jurisdiction over any asylum application filed on or after
April 1, 1997, by:
(i) An alien crewmember who:
(A) Is an applicant for a landing permit;
(B) Has been refused permission to land under section 252 of the
Act; or
(C) On or after April 1, 1997, was granted permission to land under
section 252 of the Act, regardless of whether the alien has remained in
the United States longer than authorized;
(ii) An alien stowaway who has been found to have a credible fear of
persecution or torture pursuant to the procedures set forth in subpart B
of this part;
(iii) An alien who is an applicant for admission pursuant to the
Visa Waiver 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
[[Page 147]]
paragraph (c)(1) or (c)(2) of this section shall be conducted in
accordance with the same rules of procedure as proceedings conducted
under 8 CFR part 240, subpart A. The scope of review in proceedings
conducted pursuant to paragraph (c)(1) of this section shall be limited
to a determination of whether the alien is eligible for asylum or
withholding or deferral of removal, and whether asylum shall be granted
in the exercise of discretion. The scope of review in proceedings
conducted pursuant to paragraph (c)(2) of this section shall be limited
to a determination of whether the alien is eligible for withholding or
deferral of removal. During such proceedings, all parties are prohibited
from raising or considering any other issues, including but not limited
to issues of admissibility, deportability, eligibility for waivers, and
eligibility for any other form of relief.
(ii) Notice of hearing procedures and in-absentia decisions. The
alien will be provided with notice of the time and place of the
proceeding. The request for asylum and withholding of removal submitted
by an alien who fails to appear for the hearing shall be denied. The
denial of asylum and withholding of removal for failure to appear may be
reopened only upon a motion filed with the immigration judge with
jurisdiction over the case. Only one motion to reopen may be filed, and
it must be filed within 90 days, unless the alien establishes that he or
she did not receive notice of the hearing date or was in Federal or
State custody on the date directed to appear. The motion must include
documentary evidence, which demonstrates that:
(A) The alien did not receive the notice;
(B) The alien was in Federal or State custody and the failure to
appear was through no fault of the alien; or
(C) ``Exceptional circumstances,'' as defined in section 240(e)(1)
of the Act, caused the failure to appear.
(iii) Relief. The filing of a motion to reopen shall not stay
removal of the alien unless the immigration judge issues an order
granting a stay pending disposition of the motion. An alien who fails to
appear for a proceeding under this section shall not be eligible for
relief under section 240A, 240B, 245, 248, or 249 of the Act for a
period of 10 years after the date of the denial, unless the applicant
can show exceptional circumstances resulted in his or her failure to
appear.
[65 FR 76130, Dec. 6, 2000, 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
[[Page 148]]
perjury. The applicant's signature establishes a presumption that the
applicant is aware of the contents of the application. A person other
than a relative specified in this paragraph who assists the applicant in
preparing the application also must provide his or her full mailing
address;
(3) An asylum application that does not include a response to each
of the questions contained in the Form I-589, is unsigned, or is
unaccompanied by the required materials specified in paragraph (a) of
this section is incomplete. The filing of an incomplete application
shall not commence the 150-day period after which the applicant may file
an application for employment authorization in accordance with Sec.
208.7. An application that is incomplete shall be returned by mail to
the applicant within 30 days of the receipt of the application by the
Service. If the Service has not mailed the incomplete application back
to the applicant within 30 days, it shall be deemed complete. An
application returned to the applicant as incomplete shall be resubmitted
by the applicant with the additional information if he or she wishes to
have the application considered;
(4) Knowing placement of false information on the application may
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to civil
or criminal penalties under section 274C of the Act; and
(5) Knowingly filing a frivolous application on or after April 1,
1997, so long as the applicant has received the notice required by
section 208(d)(4) of the Act, shall render the applicant permanently
ineligible for any benefits under the Act pursuant to Sec. 208.20.
[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76131, Dec. 6, 2000]
Sec. 208.4 Filing the application.
Except as prohibited in paragraph (a) of this section, asylum
applications shall be filed in accordance with paragraph (b) of this
section.
(a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits
certain aliens from filing for asylum on or after April 1, 1997, unless
the alien can demonstrate to the satisfaction of the Attorney General
that one of the exceptions in section 208(a)(2)(D) of the Act applies.
Such prohibition applies only to asylum applications under section 208
of the Act and not to applications for withholding of removal under
Sec. 208.16. If an applicant files an asylum application and it appears
that one or more of the prohibitions contained in section 208(a)(2) of
the Act apply, an asylum officer, in an interview, or an immigration
judge, in a hearing, shall review the application and give the applicant
the opportunity to present any relevant and useful information bearing
on any prohibitions on filing to determine if the application should be
rejected. For the purpose of making determinations under section
208(a)(2) of the Act, the following rules shall apply:
(1) Authority. Only an asylum officer, an immigration judge, or the
Board of Immigration Appeals is authorized to make determinations
regarding the prohibitions contained in section 208(a)(2)(B) or (C) of
the Act.
(2) One-year filing deadline. (i) For purposes of section
208(a)(2)(B) of the Act, an applicant has the burden of proving:
(A) By clear and convincing evidence that the application has been
filed within 1 year of the date of the alien's arrival in the United
States, or
(B) To the satisfaction of the asylum officer, the immigration
judge, or the Board that he or she qualifies for an exception to the 1-
year deadline.
(ii) The 1-year period shall be calculated from the date of the
alien's last arrival in the United States or April 1, 1997, whichever is
later. When the last day of the period so computed falls on a Saturday,
Sunday, or legal holiday, the period shall run until the end of the next
day that is not a Saturday, Sunday, or legal holiday. For the purpose of
making determinations under section 208(a)(2)(B) of the Act only, an
application is considered to have been filed on the date it is received
by the Service, pursuant to Sec. 103.2(a)(7) of this chapter. In a case
in which the application has not been received by the Service within 1
year from the applicant's date of entry into the United States, but the
applicant provides clear and convincing documentary evidence of mailing
the application within the 1-
[[Page 149]]
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 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;
[[Page 150]]
(B) The counsel whose integrity or competence is being impugned has
been informed of the allegations leveled against him or her and given an
opportunity to respond; and
(C) The alien indicates whether a complaint has been filed with
appropriate disciplinary authorities with respect to any violation of
counsel's ethical or legal responsibilities, and if not, why not;
(iv) The applicant maintained Temporary Protected Status, lawful
immigrant or nonimmigrant status, or was given parole, until a
reasonable period before the filing of the asylum application;
(v) The applicant filed an asylum application prior to the
expiration of the 1-year deadline, but that application was rejected by
the Service as not properly filed, was returned to the applicant for
corrections, and was refiled within a reasonable period thereafter; and
(vi) The death or serious illness or incapacity of the applicant's
legal representative or a member of the applicant's immediate family.
(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
[[Page 151]]
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-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
[[Page 152]]
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 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.
[[Page 153]]
(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 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.
[[Page 154]]
(d) Upon completion of the interview, the applicant or the
applicant's representative shall have an opportunity to make a statement
or comment on the evidence presented. The asylum officer may, in his or
her discretion, limit the length of such statement or comment and may
require its submission in writing. Upon completion of the interview, the
applicant shall be informed that he or she must appear in person to
receive and to acknowledge receipt of the decision of the asylum officer
and any other accompanying material at a time and place designated by
the asylum officer, except as otherwise provided by the asylum officer.
An applicant's failure to appear to receive and acknowledge receipt of
the decision shall be treated as delay caused by the applicant for
purposes of Sec. 208.7(a)(3) and shall extend the period within which
the applicant may not apply for employment authorization by the number
of days until the applicant does appear to receive and acknowledge
receipt of the decision or until the applicant appears before an
immigration judge in response to the issuance of a charging document
under Sec. 208.14(c).
(e) The asylum officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview. As a
matter of discretion, the asylum officer may grant the applicant a brief
extension of time following an interview during which the applicant may
submit additional evidence. Any such extension shall extend by an
equivalent time the periods specified by Sec. 208.7 for the filing and
adjudication of any employment authorization application.
(f) The asylum application, all supporting information provided by
the applicant, any comments submitted by the Department of State or by
the Service, and any other information specific to the applicant's case
and considered by the asylum officer shall comprise the record.
(g) An applicant unable to proceed with the interview in English
must provide, at no expense to the Service, a competent interpreter
fluent in both English and the applicant's native language or any other
language in which the applicant is fluent. The interpreter must be at
least 18 years of age. Neither the applicant's attorney or
representative of record, a witness testifying on the applicant's
behalf, nor a representative or employee of the applicant's country of
nationality, or if stateless, country of last habitual residence, may
serve as the applicant's interpreter. Failure without good cause to
comply with this paragraph may be considered a failure to appear for the
interview for purposes of Sec. 208.10.
[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76133, Dec. 6, 2000; 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
[[Page 155]]
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, 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,
[[Page 156]]
shall deny the asylum application of an alien found to be a refugee on
the basis of past persecution if any of the following is found by a
preponderance of the evidence:
(A) There has been a fundamental change in circumstances such that
the applicant no longer has a well-founded fear of persecution in the
applicant's country of nationality or, if stateless, in the applicant's
country of last habitual residence, on account of race, religion,
nationality, membership in a particular social group, or political
opinion; or
(B) The applicant could avoid future persecution by relocating to
another part of the applicant's country of nationality or, if stateless,
another part of the applicant's country of last habitual residence, and
under all the circumstances, it would be reasonable to expect the
applicant to do so.
(ii) Burden of proof. In cases in which an applicant has
demonstrated past persecution under paragraph (b)(1) of this section,
the Service shall bear the burden of establishing by a preponderance of
the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this
section.
(iii) Grant in the absence of well-founded fear of persecution. An
applicant described in paragraph (b)(1)(i) of this section who is not
barred from a grant of asylum under paragraph (c) of this section, may
be granted asylum, in the exercise of the decision-maker's discretion,
if:
(A) The applicant has demonstrated compelling reasons for being
unwilling or unable to return to the country arising out of the severity
of the past persecution; or
(B) The applicant has established that there is a reasonable
possibility that he or she may suffer other serious harm upon removal to
that country.
(2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
(A) The applicant has a fear of persecution in his or her country of
nationality or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in a
particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution
if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or avail himself
or herself of the protection of, that country because of such fear.
(ii) An applicant does not have a well-founded fear of persecution
if the applicant could avoid persecution by relocating to another part
of the applicant's country of nationality or, if stateless, another part
of the applicant's country of last habitual residence, if under all the
circumstances it would be reasonable to expect the applicant to do so.
(iii) In evaluating whether the applicant has sustained the burden
of proving that he or she has a well-founded fear of persecution, the
asylum officer or immigration judge shall not require the applicant to
provide evidence that there is a reasonable possibility he or she would
be singled out individually for persecution if:
(A) The applicant establishes that there is a pattern or practice in
his or her country of nationality or, if stateless, in his or her
country of last habitual residence, of persecution of a group of persons
similarly situated to the applicant on account of race, religion,
nationality, membership in a particular social group, or political
opinion; and
(B) The applicant establishes his or her own inclusion in, and
identification with, such group of persons such that his or her fear of
persecution upon return is reasonable.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of
this section, adjudicators should consider, but are not limited to
considering, whether the applicant would face other serious harm in the
place of suggested relocation; any ongoing civil strife within the
country; administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural constraints, such as
age, gender, health, and social and familial ties. Those factors may, or
may not, be relevant, depending on all the circumstances of the case,
and are not necessarily determinative of whether it would be reasonable
for the applicant to relocate.
[[Page 157]]
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing that it
would not be reasonable for him or her to relocate, unless the
persecution is by a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in
the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for
the applicant to relocate.
(c) Mandatory denials--(1) Applications filed on or after April 1,
1997. For applications filed on or after April 1, 1997, an applicant
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the
Act applies to the applicant. If the applicant is found to be ineligible
for asylum under either section 208(a)(2) or 208(b)(2) of the Act, the
applicant shall be considered for eligibility for withholding of removal
under section 241(b)(3) of the Act. The applicant shall also be
considered for eligibility for withholding of removal under the
Convention Against Torture if the applicant requests such consideration
or if the evidence presented by the alien indicates that the alien may
be tortured in the country of removal.
(2) Applications filed before April 1, 1997. (i) An immigration
judge or asylum officer shall not grant asylum to any applicant who
filed his or her application before April 1, 1997, if the alien:
(A) Having been convicted by a final judgment of a particularly
serious crime in the United States, constitutes a danger to the
community;
(B) Has been firmly resettled within the meaning of Sec. 208.15;
(C) Can reasonably be regarded as a danger to the security of the
United States;
(D) Has been convicted of an aggravated felony, as defined in
section 101(a)(43) of the Act; or
(E) Ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion.
(ii) If the evidence indicates that one of the above grounds apply
to the applicant, he or she shall have the burden of proving by a
preponderance of the evidence that he or she did not so act.
(F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III)
of the Act as it existed prior to April 1, 1997, and as amended by the
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless
it is determined that there are no reasonable grounds to believe that
the individual is a danger to the security of the United States.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76133, Dec. 6, 2000]
Sec. 208.14 Approval, denial, referral, or dismissal of application.
(a) By an immigration judge. Unless otherwise prohibited in Sec.
208.13(c), an immigration judge may grant or deny asylum in the exercise
of discretion to an applicant who qualifies as a refugee under section
101(a)(42) of the Act.
(b) Approval by an asylum officer. In any case within the
jurisdiction of the 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,
[[Page 158]]
where charging documents may not be issued, shall dismiss the
application).
(2) Alien in valid status. In the case of an applicant who is
maintaining valid immigrant, nonimmigrant, or Temporary Protected Status
at the time the application is decided, the asylum officer shall deny
the application for asylum.
(3) Alien with valid parole. If an applicant has been paroled into
the United States and the parole has not expired or been terminated by
the Service, the asylum officer shall deny the application for asylum.
(4) Alien paroled into the United States whose parole has expired or
is terminated--(i) Alien paroled prior to April 1, 1997, or with advance
authorization for parole. In the case of an applicant who was paroled
into the United States prior to April 1, 1997, or who, prior to
departure from the United States, had received an advance authorization
for parole, the asylum officer shall refer the application, together
with the appropriate charging documents, to an immigration judge for
adjudication in removal proceedings if the parole has expired, the
Service has terminated parole, or the Service is terminating parole
through issuance of the charging documents, pursuant to Sec.
212.5(d)(2)(i) of this chapter.
(ii) Alien paroled on or after April 1, 1997, without advance
authorization for parole. In the case of an applicant who is an arriving
alien or is otherwise subject to removal under Sec. 235.3(b) of this
chapter, and was paroled into the United States on or after April 1,
1997, without advance authorization for parole prior to departure from
the United States, the asylum officer will take the following actions,
if the parole has expired or been terminated:
(A) Inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act.
If the applicant appears inadmissible to the United States under section
212(a)(6)(C) or 212(a)(7) of the Act and the asylum officer does not
intend to lodge any additional charges of inadmissibility, the asylum
officer shall proceed in accordance with Sec. 235.3(b) of this chapter.
If such applicant is found to have a credible fear of persecution or
torture based on information elicited from the asylum interview, an
asylum officer may refer the applicant directly to an immigration judge
in removal proceedings under section 240 of the Act, without conducting
a separate credible fear interview pursuant to Sec. 208.30. If such
applicant is not found to have a credible fear based on information
elicited at the asylum interview, an asylum officer will conduct a
credible fear interview and the applicant will be subject to the
credible fear process specified at Sec. 208.30(b).
(B) Inadmissible on other grounds. In the case of an applicant who
was paroled into the United States on or after April 1, 1997, and will
be charged as inadmissible to the United States under provisions of the
Act other than, or in addition to, sections 212(a)(6)(C) or 212(a)(7),
the asylum officer shall refer the application to an immigration judge
for adjudication in removal proceedings.
(d) Applicability of Sec. 103.2(b) of this chapter. No application
for asylum or withholding of deportation shall be subject to denial
pursuant to Sec. 103.2(b) of this chapter.
(e) Duration. If the applicant is granted asylum, the grant will be
effective for an indefinite period, subject to termination as provided
in Sec. 208.24.
(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
[[Page 159]]
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 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
[[Page 160]]
Service shall bear the burden of establishing by a preponderance of the
evidence the requirements of paragraphs (b)(1)(i)(A) or (b)(1)(i)(B) of
this section.
(iii) If the applicant's fear of future threat to life or freedom is
unrelated to the past persecution, the applicant bears the burden of
establishing that it is more likely than not that he or she would suffer
such harm.
(2) Future threat to life or freedom. An applicant who has not
suffered past persecution may demonstrate that his or her life or
freedom would be threatened in the future in a country if he or she can
establish that it is more likely than not that he or she would be
persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion upon removal to that
country. Such an applicant cannot demonstrate that his or her life or
freedom would be threatened if the asylum officer or immigration judge
finds that the applicant could avoid a future threat to his or her life
or freedom by relocating to another part of the proposed country of
removal and, under all the circumstances, it would be reasonable to
expect the applicant to do so. In evaluating whether it is more likely
than not that the applicant's life or freedom would be threatened in a
particular country on account of race, religion, nationality, membership
in a particular social group, or political opinion, the asylum officer
or immigration judge shall not require the applicant to provide evidence
that he or she would be singled out individually for such persecution
if:
(i) The applicant establishes that in that country there is a
pattern or practice of persecution of a group of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that it is more likely
than not that his or her life or freedom would be threatened upon return
to that country.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1) and (b)(2) of this section,
adjudicators should consider, among other things, whether the applicant
would face other serious harm in the place of suggested relocation; any
ongoing civil strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, health, and social and
familial ties. These factors may or may not be relevant, depending on
all the circumstances of the case, and are not necessarily determinative
of whether it would be reasonable for the applicant to relocate.
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing that it
would not be reasonable for him or her to relocate, unless the
persecutor is a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in
the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that under all the circumstances it would be reasonable for the
applicant to relocate.
(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
[[Page 161]]
proposed country of removal. The testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof without
corroboration.
(3) In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country of removal, all
evidence relevant to the possibility of future torture shall be
considered, including, but not limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights
within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country
of removal.
(4) In considering an application for withholding of removal under
the Convention Against Torture, the immigration judge shall first
determine whether the alien is more likely than not to be tortured in
the country of removal. If the immigration judge determines that the
alien is more likely than not to be tortured in the country of removal,
the alien is entitled to protection under the Convention Against
Torture. Protection under the Convention Against Torture will be granted
either in the form of withholding of removal or in the form of deferral
of removal. An alien entitled to such protection shall be granted
withholding of removal unless the alien is subject to mandatory denial
of withholding of removal under paragraphs (d)(2) or (d)(3) of this
section. If an alien entitled to such protection is subject to mandatory
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of
this section, the alien's removal shall be deferred under Sec.
208.17(a).
(d) Approval or denial of application--(1) General. Subject to
paragraphs (d)(2) and (d)(3) of this section, an application for
withholding of deportation or removal to a country of proposed removal
shall be granted if the applicant's eligibility for withholding is
established pursuant to paragraphs (b) or (c) of this section.
(2) Mandatory denials. Except as provided in paragraph (d)(3) of
this section, an application for withholding of removal under section
241(b)(3) of the Act or under the Convention Against Torture shall be
denied if the applicant falls within section 241(b)(3)(B) of the Act or,
for applications for withholding of deportation adjudicated in
proceedings commenced prior to April 1, 1997, within section 243(h)(2)
of the Act as it appeared prior to that date. For purposes of section
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it
appeared prior to April 1, 1997, an alien who has been convicted of a
particularly serious crime shall be considered to constitute a danger to
the community. If the evidence indicates the applicability of one or
more of the grounds for denial of withholding enumerated in the Act, the
applicant shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply.
(3) Exception to the prohibition on withholding of deportation in
certain cases. Section 243(h)(3) of the Act, as added by section 413 of
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications
adjudicated in proceedings commenced before April 1, 1997, and in which
final 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
[[Page 162]]
exercise of discretion, and the applicant is subsequently granted
withholding of deportation or removal under this section, thereby
effectively precluding admission of the applicant's spouse or minor
children following to join him or her, the denial of asylum shall be
reconsidered. Factors to be considered will include the reasons for the
denial and reasonable alternatives available to the applicant such as
reunification with his or her spouse or minor children in a third
country.
(f) Removal to third country. Nothing in this section or Sec.
208.17 shall prevent the Service from removing an alien to a third
country other than the country to which removal has been withheld or
deferred.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76135, Dec. 6, 2000]
Sec. 208.17 Deferral of removal under the Convention Against Torture.
(a) Grant of deferral of removal. An alien who: has been ordered
removed; has been found under Sec. 208.16(c)(3) to be entitled to
protection under the Convention Against Torture; and is subject to the
provisions for mandatory denial of withholding of removal under Sec.
208.16(d)(2) or (d)(3), shall be granted deferral of removal to the
country where he or she is more likely than not to be tortured.
(b) Notice to alien. (1) After an immigration judge orders an alien
described in paragraph (a) of this section removed, the immigration
judge shall inform the alien that his or her removal to the country
where he or she is more likely than not to be tortured shall be deferred
until such time as the deferral is terminated under this section. The
immigration judge shall inform the alien that deferral of removal:
(i) Does not confer upon the alien any lawful or permanent
immigration status in the United States;
(ii) Will not necessarily result in the alien being released from
the custody of the Service if the alien is subject to such custody;
(iii) Is effective only until terminated; and
(iv) Is subject to review and termination if the immigration judge
determines that it is not likely that the alien would be tortured in the
country to which removal has been deferred, or if the alien requests
that deferral be terminated.
(2) The immigration judge shall also inform the alien that removal
has been deferred only to the country in which it has been determined
that the alien is likely to be tortured, and that the alien may be
removed at any time to another country where he or she is not likely to
be tortured.
(c) Detention of an alien granted deferral of removal under this
section. Nothing in this section shall alter the authority of the
Service to detain an alien whose removal has been deferred under this
section and who is otherwise subject to detention. In the case of such
an alien, decisions about the alien's release shall be made according to
part 241 of this chapter.
(d) Termination of deferral of removal. (1) At any time while
deferral of removal is in effect, the INS District Counsel for the
District with jurisdiction over an alien whose removal has been deferred
under paragraph (a) of this section may file a motion with the
Immigration Court having administrative control pursuant to Sec. 3.11
of this 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
[[Page 163]]
shall forward a copy of the original application, and any supplemental
information the alien or the Service has submitted, to the Department of
State, together with notice to the Department of State of the time,
place and date of the termination hearing. At its option, the Department
of State may provide comments on the case, according to the provisions
of Sec. 208.11 of this part.
(3) The immigration judge shall conduct a hearing and make a de novo
determination, based on the record of proceeding and initial application
in addition to any new evidence submitted by the Service or the alien,
as to whether the alien is more likely than not to be tortured in the
country to which removal has been deferred. This determination shall be
made under the standards for eligibility set out in Sec. 208.16(c). The
burden is on the alien to establish that it is more likely than not that
he or she would be tortured in the country to which removal has been
deferred.
(4) If the immigration judge determines that the alien is more
likely than not to be tortured in the country to which removal has been
deferred, the order of deferral shall remain in place. If the
immigration judge determines that the alien has not established that he
or she is more likely than not to be tortured in the country to which
removal has been deferred, the deferral of removal shall be terminated
and the alien may be removed to that country. Appeal of the immigration
judge's decision shall lie to the Board.
(e) Termination at the request of the alien. (1) At any time while
deferral of removal is in effect, the alien may make a written request
to the Immigration Court having administrative control pursuant to Sec.
3.11 of this chapter to terminate the deferral order. If satisfied on
the basis of the written submission that the alien's request is knowing
and voluntary, the immigration judge shall terminate the order of
deferral and the alien may be removed.
(2) If necessary the immigration judge may calendar a hearing for
the sole purpose of determining whether the alien's request is knowing
and voluntary. If the immigration judge determines that the alien's
request is knowing and voluntary, the order of deferral shall be
terminated. If the immigration judge determines that the alien's request
is not knowing and voluntary, the alien's request shall not serve as the
basis for terminating the order of deferral.
(f) Termination pursuant to Sec. 208.18(c). At any time while
deferral of removal is in effect, the Attorney General may determine
whether deferral should be terminated based on diplomatic assurances
forwarded by the Secretary of State pursuant to the procedures in Sec.
208.18(c).
[64 FR 8489, Feb. 19, 1999]
Sec. 208.18 Implementation of the Convention Against Torture.
(a) Definitions. The definitions in this subsection incorporate the
definition of torture contained in Article 1 of the Convention Against
Torture, subject to the reservations, understandings, declarations, and
provisos contained in the United States Senate resolution of
ratification of the Convention.
(1) Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
such purposes as 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
[[Page 164]]
purpose of the Convention Against Torture to prohibit torture.
(4) In order to constitute torture, mental pain or suffering must be
prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe
physical pain or suffering;
(ii) The administration or application, or threatened administration
or application, of mind altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind altering substances or other procedures calculated
to disrupt profoundly the sense or personality.
(5) In order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering. An act
that results in unanticipated or unintended severity of pain and
suffering is not torture.
(6) In order to constitute torture an act must be directed against a
person in the offender's custody or physical control.
(7) Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.
(8) Noncompliance with applicable legal procedural standards does
not per se constitute torture.
(b) Applicability of Sec. Sec. 208.16(c) and 208.17(a)--(1) Aliens
in proceedings on or after March 22, 1999. An alien who is in exclusion,
deportation, or removal proceedings on or after March 22, 1999 may apply
for withholding of removal under Sec. 208.16(c), and, if applicable,
may be considered for deferral of removal under Sec. 208.17(a).
(2) Aliens who were ordered removed, or whose removal orders became
final, before March 22, 1999. An alien under a final order of
deportation, exclusion, or removal that became final prior to March 22,
1999 may move to reopen proceedings for the sole purpose of seeking
protection under Sec. 208.16(c). Such motions shall be governed by
Sec. Sec. 3.23 and 3.2 of this chapter, except that the time and
numerical limitations on motions to reopen shall not apply and the alien
shall not be required to demonstrate that the evidence sought to be
offered was unavailable and could not have been discovered or presented
at the former hearing. The motion to reopen shall not be granted unless:
(i) The motion is filed within June 21, 1999; and
(ii) The evidence sought to be offered establishes a prima facie
case that the applicant's removal must be withheld or deferred under
Sec. Sec. 208.16(c) or 208.17(a).
(3) Aliens who, on March 22, 1999, have requests pending with the
Service for protection under Article 3 of the Convention Against
Torture. (i) Except as otherwise provided, after March 22, 1999, the
Service will not:
(A) Consider, under its pre-regulatory administrative policy to
ensure compliance with the Convention Against Torture, whether Article 3
of that Convention prohibits the removal of an alien to a particular
country, or
(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
[[Page 165]]
208.17(a) shall not be subject to the requirements for reopening in
Sec. Sec. 3.2 and 3.23 of this chapter. Such a motion shall be granted
if it is accompanied by a copy of the notice described in paragraph
(b)(3)(ii) or by other convincing evidence that the alien had a request
pending with the Service for protection under Article 3 of the
Convention Against Torture on March 22, 1999. The filing of such a
motion shall extend the stay of removal during the pendency of the
adjudication of this motion.
(B) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 238(b) of the Act
or an exclusion, deportation, or removal order reinstated by the Service
under section 241(a)(5) of the Act that the alien's claim to withholding
of removal under Sec. 208.16(c) or deferral of removal under Sec.
208.17(a) will be considered under Sec. 208.31.
(C) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 235(c) of the Act
that the alien's claim to protection under the Convention Against
Torture will be decided by the Service as provided in Sec. 208.18(d)
and 235.8(b)(4) and will not be considered under the provisions of this
part relating to consideration or review by an immigration judge, the
Board of Immigration Appeals, or an asylum officer.
(4) Aliens whose claims to protection under the Convention Against
Torture were finally decided by the Service prior to March 22, 1999.
Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3)
of this section do not apply to cases in which, prior to March 22, 1999,
the Service has made a final administrative determination about the
applicability of Article 3 of the Convention Against Torture to the case
of an alien who filed a request with the Service for protection under
Article 3. If, prior to March 22, 1999, the Service determined that an
applicant cannot be removed consistent with the Convention Against
Torture, the alien shall be considered to have been granted withholding
of removal under Sec. 208.16(c), unless the alien is subject to
mandatory denial of withholding of removal under Sec. 208.16(d)(2) or
(d)(3), in which case the alien will be considered to have been granted
deferral of removal under 208.17(a). If, prior to March 22, 1999, the
Service determined that an alien can be removed consistent with the
Convention Against Torture, the alien will be considered to have been
finally denied withholding of removal under Sec. 208.16(c) and deferral
of removal under Sec. 208.17(a).
(c) Diplomatic assurances against torture obtained by the Secretary
of State. (1) The Secretary of State may forward to the Attorney General
assurances that the Secretary has obtained from the government of a
specific country that an alien would not be tortured there if the alien
were removed to that country.
(2) If the Secretary of State forwards assurances described in
paragraph (c)(1) of this section to the Attorney General for
consideration by the Attorney General or her delegates under this
paragraph, the Attorney General shall determine, in consultation with
the Secretary of State, whether the assurances are sufficiently reliable
to allow the alien's removal to that country consistent with Article 3
of the Convention Against Torture. The Attorney 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
[[Page 166]]
immigration judge, the Board of Immigration Appeals, or an asylum
officer shall not apply.
(e) Judicial review of claims for protection from removal under
Article 3 of the Convention Against Torture. (1) Pursuant to the
provisions of section 2242(d) of the Foreign Affairs Reform and
Restructuring Act of 1998, there shall be no judicial appeal or review
of any action, decision, or claim raised under the Convention or that
section, except as part of the review of a final order of removal
pursuant to section 242 of the Act; provided however, that any appeal or
petition regarding an action, decision, or claim under the Convention or
under section 2242 of the Foreign Affairs Reform and Restructuring Act
of 1998 shall not be deemed to include or authorize the consideration of
any administrative order or decision, or portion thereof, the appeal or
review of which is restricted or prohibited by the Act.
(2) Except as otherwise expressly provided, nothing in this
paragraph shall be construed to create a private right of action or to
authorize the consideration or issuance of administrative or judicial
relief.
[64 FR 8490, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]
Sec. 208.19 Decisions.
The decision of an asylum officer to grant or to deny asylum or to
refer an asylum application, in accordance with Sec. 208.14(b) or (c),
shall be communicated in writing to the applicant. Pursuant to Sec.
208.9(d), an applicant must appear in person to receive and to
acknowledge receipt of the decision to grant or deny asylum, or to refer
an asylum application unless, in the discretion of the asylum office
director, service by mail is appropriate. A letter communicating denial
of asylum or referral of the application shall state the basis for
denial or referral and include an assessment of the applicant's
credibility.
[65 FR 76136, Dec. 6, 2000]
Sec. 208.20 Determining if an asylum application is frivolous.
For applications filed on or after April 1, 1997, an applicant is
subject to the provisions of section 208(d)(6) of the Act only if a
final order by an immigration judge or the Board of Immigration Appeals
specifically finds that the alien knowingly filed a frivolous asylum
application. For purposes of this section, an asylum application is
frivolous if any of its material elements is deliberately fabricated.
Such finding shall only be made if the immigration judge or the Board is
satisfied that the applicant, during the course of the proceedings, has
had sufficient opportunity to account for any discrepancies or
implausible aspects of the claim. For purposes of this section, a
finding that an alien filed a frivolous asylum application shall not
preclude the alien from seeking withholding of removal.
[64 FR 8492, Feb. 19, 1999. Redesignated at 65 FR 76136, Dec. 6, 2000]
Sec. 208.21 Admission of the asylee's spouse and children.
(a) Eligibility. In accordance with section 208(b)(3) of the Act, a
spouse, as defined in section 101(a)(35) of the Act, 8 U.S.C.
1101(a)(35), or child, as defined in section 101(b)(1) of the Act, also
may be granted asylum if accompanying, or 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
[[Page 167]]
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 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]
[[Page 168]]
Sec. 208.22 Effect on exclusion, deportation, and removal proceedings.
An alien who has been granted asylum may not be deported or removed
unless his or her asylum status is terminated pursuant to Sec. 208.24.
An alien in exclusion, deportation, or removal proceedings who is
granted withholding of removal or deportation, or deferral of removal,
may not be deported or removed to the country to which his or her
deportation or removal is ordered withheld or deferred unless the
withholding order is terminated pursuant to Sec. 208.24 or deferral is
terminated pursuant to Sec. 208.17(d) or (e).
[64 FR 8492, Feb. 19, 1999. Revised at 65 FR 76136, Dec. 6, 2000]
Sec. 208.23 Restoration of status.
An alien who was maintaining his or her nonimmigrant status at the
time of filing an asylum application and has such application denied may
continue in or be restored to that status, if it has not expired.
[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999
and further redesignated at 65 FR 76136, Dec. 6, 2000]
Sec. 208.24 Termination of asylum or withholding of removal or deportation.
(a) Termination of asylum by USCIS. Except as provided in paragraph
(e) of this section, an asylum officer may terminate a grant of asylum
made under the jurisdiction of USCIS if, following an interview, the
asylum officer determines that:
(1) There is a showing of fraud in the alien's application such that
he or she was not eligible for asylum at the time it was granted;
(2) As to applications filed on or after April 1, 1997, one or more
of the conditions described in section 208(c)(2) of the Act exist; or
(3) As to applications filed before April 1, 1997, the alien no
longer has a well-founded fear of persecution upon return due to a
change of country conditions in the alien's country of nationality or
habitual residence or the alien has committed any act that would have
been grounds for denial of asylum under Sec. 208.13(c)(2).
(b) Termination of withholding of deportation or removal by USCIS.
Except as provided in paragraph (e) of this section, an asylum officer
may terminate a grant of withholding of deportation or removal made
under the jurisdiction of USCIS if the asylum officer determines,
following an interview, that:
(1) The alien is no longer entitled to withholding of deportation or
removal because, owing to a fundamental change in circumstances relating
to the original claim, the alien's life or freedom no longer would be
threatened 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
[[Page 169]]
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]
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
[[Page 170]]
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 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)
[[Page 171]]
and 208(b)(2) of the Act, or to withholding of removal contained in
section 241(b)(3)(B) of the Act, the Department of Homeland Security
shall nonetheless place the alien in proceedings under section 240 of
the Act for full consideration of the alien's claim, if the alien is not
a stowaway. If the alien is a stowaway, the Department shall place the
alien in proceedings for consideration of the alien's claim pursuant to
8 CFR 208.2(c)(3).
(6) Prior to any determination concerning whether an alien arriving
in the United States at a U.S.-Canada land border port-of-entry or in
transit through the U.S. during removal by Canada has a credible fear of
persecution or torture, the asylum officer shall conduct a threshold
screening interview to determine whether such an alien is ineligible to
apply for asylum pursuant to section 208(a)(2)(A) of the Act and subject
to removal to Canada by operation of the Agreement Between the
Government of the United States and the Government of Canada For
Cooperation in the Examination of Refugee Status Claims from Nationals
of Third Countries (``Agreement''). In conducting this threshold
screening interview, the asylum officer shall apply all relevant
interview procedures outlined in paragraph (d) of this section,
provided, however, that paragraph (d)(2) of this section shall not apply
to aliens described in this paragraph. The asylum officer shall advise
the alien of the Agreement's exceptions and question the alien as to
applicability of any of these exceptions to the alien's case.
(i) If the asylum officer, with concurrence from a supervisory
asylum officer, determines that an alien does not qualify for an
exception under the Agreement during this threshold screening interview,
the alien is ineligible to apply for asylum in the United States. After
the asylum officer's documented finding is reviewed by a supervisory
asylum officer, the alien shall be advised that he or she will be
removed to Canada in order to pursue his or her claims relating to a
fear of persecution or torture under Canadian law. Aliens found
ineligible to apply for asylum under this paragraph shall be removed to
Canada.
(ii) If the alien establishes by a preponderance of the evidence
that he or she qualifies for an exception under the terms of the
Agreement, the asylum officer shall make a written notation of the basis
of the exception, and then proceed immediately to a determination
concerning whether the alien has a credible fear of persecution or
torture under paragraph (d) of this section.
(iii) An alien qualifies for an exception to the Agreement if the
alien is not being removed from Canada in transit through the United
States and
(A) Is a citizen of Canada or, not having a country of nationality,
is a habitual resident of Canada;
(B) Has in the United States a spouse, son, daughter, parent, legal
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or
nephew who has been granted asylum, refugee, or other lawful status in
the United States, provided, however, that this exception shall not
apply to an alien whose relative maintains only nonimmigrant visitor
status, as defined in section 101(a)(15)(B) of the Act, or whose
relative maintains only visitor status based on admission to the United
States pursuant to the Visa Waiver Program;
(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,
[[Page 172]]
withholding of removal, or protection under the Convention Against
Torture, in the United States.
(iv) As used in 8 CFR 208.30(e)(6)(iii)(B), (C) and (D) only,
``legal guardian'' means a person currently vested with legal custody of
such an alien or vested with legal authority to act on the alien's
behalf, provided that such an alien is both unmarried and less than 18
years of age, and provided further that any dispute with respect to
whether an individual is a legal guardian will be resolved on the basis
of U.S. law.
(7) An asylum officer's determination shall not become final until
reviewed by a supervisory asylum officer.
(f) Procedures for a positive credible fear finding. If an alien,
other than an alien stowaway, is found to have a credible fear of
persecution or torture, the asylum officer will so inform the alien and
issue a Form I-862, Notice to Appear, for full consideration of the
asylum and withholding of removal claim in proceedings under section 240
of the Act. If an alien stowaway is found to have a credible fear of
persecution or torture, the asylum officer will so inform the alien and
issue a Form I-863, Notice of Referral to Immigration Judge, for full
consideration of the asylum claim, or the withholding of removal claim,
in proceedings under Sec. 208.2(c). Parole of the alien may be
considered only in accordance with section 212(d)(5) of the Act and
Sec. 212.5 of this chapter.
(g) Procedures for a negative credible fear finding. (1) If an alien
is found not to have a credible fear of persecution or torture, the
asylum officer shall provide the alien with a written notice of decision
and inquire whether the alien wishes to have an immigration judge review
the negative decision, using Form I-869, Record of Negative Credible
Fear Finding and Request for Review by Immigration Judge. The alien
shall indicate whether he or she desires such review on Form I-869. A
refusal by the alien to make such indication shall be considered a
request for review.
(i) If the alien requests such review, or refuses to either request
or decline such review, the asylum officer shall arrange for detention
of the alien and serve him or her with a Form I-863, Notice of Referral
to Immigration Judge, for review of the credible fear determination in
accordance with paragraph (f)(2) of this section.
(ii) If the alien is not a stowaway and does not request a review by
an immigration judge, the officer shall order the alien removed and
issue a Form I-860, Notice and Order of Expedited Removal, after review
by a supervisory asylum officer.
(iii) If the alien is a stowaway and the alien does not request a
review by an immigration judge, the asylum officer shall refer the alien
to the district director for completion of removal proceedings in
accordance with section 235(a)(2) of the Act.
(2) Review by immigration judge of a negative credible fear finding.
(i) Immigration judges will review negative credible fear findings
as provided in 8 CFR 1208.30(g)(2).
(ii) The record of the negative credible fear determination,
including copies of the Form I-863, the asylum officer's notes, the
summary of the material facts, and other materials upon which the
determination was based 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
[[Page 173]]
alien is subject to removal, an alien described in paragraph (a) of this
section shall be referred to an asylum officer for a reasonable fear
determination. In the absence of exceptional circumstances, this
determination will be conducted within 10 days of the referral.
(c) Interview and procedure. The asylum officer shall conduct the
interview in a non-adversarial manner, separate and apart from the
general public. At the time of the interview, the asylum officer shall
determine that the alien has an understanding of the reasonable fear
determination process. The alien may be represented by counsel or an
accredited representative at the interview, at no expense to the
Government, and may present evidence, if available, relevant to the
possibility of persecution or torture. The alien's representative may
present a statement at the end of the interview. The asylum officer, in
his or her discretion, may place reasonable limits on the number of
persons who may be present at the interview and the length of the
statement. If the alien is unable to proceed effectively in English, and
if the asylum officer is unable to proceed competently in a language
chosen by the alien, the asylum officer shall arrange for the assistance
of an interpreter in conducting the interview. The interpreter may not
be a representative or employee of the applicant's country or
nationality, or if the applicant is stateless, the applicant's country
of last habitual residence. The asylum officer shall create a summary of
the material facts as stated by the applicant. At the conclusion of the
interview, the officer shall review the summary with the alien and
provide the alien with an opportunity to correct errors therein. The
asylum officer shall create a written record of his or her
determination, including a summary of the material facts as stated by
the applicant, any additional facts relied on by the officers, and the
officer's determination of whether, in light of such facts, the alien
has established a reasonable fear of persecution or torture. The alien
shall be determined to have a reasonable fear of persecution or torture
if the alien establishes a reasonable possibility that he or she would
be persecuted on account of his or her race, religion, nationality,
membership in a particular social group or political opinion, or a
reasonable possibility that he or she would be tortured in the country
of removal. For purposes of the screening determination, the bars to
eligibility for withholding of removal under section 241(b)(3)(B) of the
Act shall not be considered.
(d) Authority. Asylum officers conducting screening determinations
under this section shall have the authority described in Sec. 208.9(c).
(e) Referral to Immigration Judge. If an asylum officer determines
that an alien described in this section has a reasonable fear of
persecution or torture, the officer shall so inform the alien and issue
a Form I-863, Notice of Referral to the Immigration Judge, for full
consideration of the request for withholding of removal only. Such cases
shall be adjudicated by the immigration judge in accordance with the
provisions of Sec. 208.16. Appeal of the immigration judge's decision
shall lie to the Board of Immigration Appeals.
(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
[[Page 174]]
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.
(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.
[[Page 175]]
(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 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.
(b) Inadmissible alien. An applicant who is not admissible to the
United States as described in 8 CFR 209.2(a)(1)(v), 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. An applicant for adjustment under
this part who has had the status of an exchange alien nonimmigrant under
section 101(a)(15)(J) of the Act, and who is subject to the foreign
resident requirement of section 212(e) of the Act, shall be eligible for
adjustment without regard to the foreign residence requirement if
otherwise eligible for adjustment.
(c) Application. An application for the benefits of section 209(b)
of the Act may be filed in accordance with the form instructions. If an
alien has been placed in removal, deportation, or exclusion proceedings,
the application can be filed and considered only in proceedings under
section 240 of the Act.
(d) Medical examination. For an alien seeking adjustment of status
under section 209(b) of the Act, the alien shall submit a medical
examination to determine whether any grounds of inadmissibility
described under section
[[Page 176]]
212(a)(1)(A) of the Act apply. The asylee is also required to establish
compliance with the vaccination requirements described under section
212(a)(1)(A)(ii) of the Act.
(e) 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.
(f) 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 in
removal proceedings under section 240 of the Act. If the application is
approved, USCIS will record the alien's admission for lawful permanent
residence as of the date one year before the date of the approval of the
application, but not earlier than the date of the approval for asylum in
the case of an applicant approved under paragraph (a)(2) of this
section.
[46 FR 45119, Sept. 10, 1981, as amended at 56 FR 26898, June 12, 1991;
57 FR 42883, Sept. 17, 1992; 63 FR 30109, June 3, 1998; 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.
[[Page 177]]
(i) Legalization Office. Legalization offices are local offices of
the Immigration and Naturalization Service which accept and process
applications for legalization or special agricultural worker status,
under the authority of the district directors in whose districts such
offices are located.
(j) Man-day. The term man-day means the performance during any day
of not less than one hour of qualifying agricultural employment for
wages paid. If employment records relating to an alien applicant show
only piece rate units completed, then any day in which piece rate work
was performed shall be counted as a man-day. Work for more than one
employer in a single day shall be counted as no more than one man-day
for the purposes of this part.
(k) Nonfrivolous application. A complete application will be
determined to be nonfrivolous at the time the applicant appears for an
interview at a legalization or overseas processing office if it
contains:
(1) Evidence or information which shows on its face that the
applicant is admissible to the United States or, if inadmissible, that
the applicable grounds of excludability may be waived under the
provisions of section 210(c)(2)(i) of the Act,
(2) Evidence or information which shows on its face that the
applicant performed at least 90 man-days of qualifying employment in
seasonal agricultural services during the twelve-month period from May
1, 1985 through May 1, 1986, and
(3) Documentation which establishes a reasonable inference of the
performance of the seasonal agricultural services claimed by the
applicant.
(l) Overseas processing office. Overseas processing offices are
offices outside the United States at which applications for adjustment
to temporary resident status as a special agricultural worker are
received, processed, referred to the Service for adjudication or denied.
The Secretary of State has designated for this purpose the United States
Embassy at Mexico City, and in all other countries the immigrant visa
issuing of office at which the alien, if an applicant for an immigrant
visa, would make such application. Consular officers assigned to such
offices are authorized to recommend approval of an application for
special agricultural worker status to the Service if the alien
establishes eligibility for approval and to deny such an application if
the alien fails to establish eligibility for approval or is found to
have committed fraud or misrepresented facts in the application process.
(m) Preliminary application. A preliminary application is defined as
a fully completed and signed application with fee and photographs which
contains specific information concerning the performance of qualifying
employment 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
[[Page 178]]
defined in regulations by the Secretary of Agriculture at 7 CFR part 1d.
(q) Regional processing facility. Regional Processing Facilities are
Service offices established in each of the four Service regions to
adjudicate, under the authority of the Directors of the Regional
Processing Facilities, applications for adjustment of status under
sections 210 and 245a of the Act.
(r) Service. The Immigration and Naturalization Service (INS).
(s) Special agricultural worker. Any individual granted temporary
resident status in the Group 1 or Group 2 classification or permanent
resident status under section 210(a) of the Act.
[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989; 63
FR 70315, Dec. 21, 1998]
Sec. 210.2 Application for temporary resident status.
(a)(1) Application for temporary resident status. An alien
agricultural worker who believes that he or she is eligible for
adjustment of status under the provisions of Sec. 210.3 of this part
may file an application for such adjustment at a qualified designated
entity, at a legalization office, or at an overseas processing office
outside the United States. Such application must be filed within the
application period.
(2) Application for Group 1 status. An alien who believes that he or
she qualifies for Group 1 status as defined in Sec. 210.1(f) of this
part and who desires to apply for that classification must so endorse
his or her application at the time of filing. Applications not so
endorsed will be regarded as applications for Group 2 status as defined
in Sec. 210.1(g) of this part.
(3) Numerical limitations. The numerical limitations of sections 201
and 202 of the Act do not apply to the adjustment of aliens to lawful
temporary or permanent resident status under section 210 of the Act. No
more than 350,000 aliens may be granted temporary resident status in the
Group 1 classification. If more than 350,000 aliens are determined to be
eligible for Group 1 classification, the first 350,000 applicants (in
chronological order by date the application is filed at a legalization
or overseas processing office) whose applications are approved for Group
1 status shall be accorded that classification. Aliens admitted to the
United States under the transitional admission standard placed in effect
between July 1, 1987, and November 1, 1987, and under the preliminary
application standard at Sec. 210.2(c)(4) who claim eligibility for
Group 1 classification shall be registered as applicants for that
classification on the date of submission to a legalization office of a
complete application as defined in Sec. 210.1(c) of this part. Other
applicants who may be eligible for Group 1 classification shall be
classified as Group 2 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
[[Page 179]]
waived or refunded under any circumstances.
(iii) In the case of an application filed at a legalization office,
including an application received from a qualified designated entity,
the district director may, at his or her discretion, require filing
either by mail or in person, or may permit filing in either manner.
(iv) Each applicant, regardless of age, must appear at the
appropriate Service legalization office and must be fingerprinted for
the purpose of issuance of Form I-688A. Each applicant shall be
interviewed by an immigration officer, except that the interview may be
waived when it is impractical because of the health of the applicant.
(3) Filing at overseas processing offices. (i) The application must
be filed on Form I-700 and must include a completed State Department
Form OF-179 (Biographic Data for Visa Purposes).
(ii) Every applicant must appear at the appropriate overseas
processing office to be interviewed by a consular officer. The overseas
processing office will inform each applicant of the date and time of the
interview. At the time of the interview every applicant shall submit the
required fee.
(iii) All fees for applications submitted to an overseas processing
office shall be submitted in United States currency, or in the currency
of the country in which the overseas processing office is located. Fees
will not be waived or refunded under any circumstances.
(iv) An applicant at an overseas processing office whose application
is recommended for approval shall be provided with an entry document
attached to the applicant's file. Upon admission to the United States,
the applicant shall proceed to a legalization office for presentation or
completion of Form FD-258 (Fingerprint Card), presentation of the
applicant's file and issuance of the employment authorization Form I-
688A.
(4) Border processing. The Commissioner will designate specific
ports of entry located on the southern land border to accept and process
applications under this part. Ports of entry so designated will process
preliminary applications as defined at Sec. 210.1(l) under the
authority of the district directors in whose districts they are located.
The ports of entry at Calexico, California, Otay Mesa, California, and
Laredo, Texas have been designated to conduct preliminary application
processing. Designated ports of entry may be closed or added at the
discretion of the Commissioner.
(i) Admission standard. The applicant must present a fully completed
and signed Form I-700, Application for Temporary Resident Status with
the required fee and photographs at a designated port of entry. The
application 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
[[Page 180]]
application, the applicant shall be admitted to the United States as an
applicant for special agricultural worker status. All preliminary
applicants shall be considered as prospective applicants for the Group 2
classification. However, such applicants may later submit a complete
application for either the Group 1 or Group 2 classification to a
legalization office. Preliminary applicants are not required to pay the
application fee a second time when submitting the complete application
to a legalization office.
(iii) Conditions of admission. Aliens who present a preliminary
application shall be admitted to the United States for a period of
ninety (90) days with authorization to accept employment, if they are
determined by an immigration officer to be admissible to the United
States. Such aliens are required, within that ninety-day period, to
submit evidence of eligibility which meets the provisions of Sec. 210.3
of this part; to complete Form FD-258 (Fingerprint Card); to obtain a
report of medical examination in accordance with Sec. 210.2(d) of this
part; and to submit to a legalization office a complete application as
defined at Sec. 210.1(c) of this part. The INS may, for good cause,
extend the ninety-day period and grant further authorization to accept
employment in the United States if an alien demonstrates he or she was
unable to perfect an application within the initial period. If an alien
described in this paragraph fails to submit a complete application to a
legalization office within ninety days or within such additional period
as may have been authorized, his or her application may be denied for
lack of prosecution, without prejudice.
(iv) Deportation is not stayed for an alien subject to deportation
and removal under the INA, notwithstanding a claim to eligibility for
SAW status, unless that alien has filed a nonfrivolous application.
(d) Medical examination. An applicant under this part must be
examined at no expense to the government by a designated civil surgeon
or, in the case of an applicant abroad, by a physician or clinic
designated to perform medical examinations of immigrant visa applicants.
The medical report setting forth the findings concerning the mental and
physical condition of the applicant shall be incorporated into the
record. Any applicant certified under paragraph (1), (2), (3), (4), or
(5) of section 212(a) of the Act may appeal to a Board of Medical
Officers of the U.S. Public Health Service as provided in section 234 of
the Act and part 235 of this chapter.
(e) Limitation on access to information and confidentiality. (1)
Except for consular officials engaged in the processing of applications
overseas and employees of a qualified designated entity where an
application is filed with that entity, no person other than a sworn
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.
[[Page 181]]
(f) Decision. The applicant shall be notified in writing of the
decision and, if the application is denied, of the reason(s) therefor.
An adverse decision under this part including an overseas application
may be appealed to the Associate Commissioner, Examinations
(Administrative Appeals Unit) on Form I-694. The appeal with the
required fee shall be filed with the Regional Processing Facility in
accordance with the provisions of Sec. 103.3(a)(2) of this chapter. An
applicant for Group 1 status as defined in Sec. 210.1(f) of this part
who is determined to be ineligible for that status may be classified as
a temporary resident under Group 2 as defined in Sec. 210.1(g) of this
part if otherwise eligible for Group 2 status. In such a case the
applicant shall be notified of the decision to accord him or her Group 2
status and to deny Group 1 status. He or she is entitled to file an
appeal in accordance with the provisions of Sec. 103.3(a)(2) of this
chapter from that portion of the decision denying Group 1 status. In the
case of an applicant who is represented in the application process in
accordance with 8 CFR part 292, the applicant's representative shall
also receive notification of decision specified in this section.
(g) Motions. In accordance with the provisions of Sec. 103.5(b) of
this chapter, the director of a regional processing facility or a
consular officer at an overseas processing office may sua sponte reopen
any proceeding under this part under his or her jurisdiction and reverse
any adverse decision in such proceeding when appeal is taken under Sec.
103.3(a)(2) of this part from such adverse decision; the Associate
Commissioner, Examinations, and the Chief of the Administrative Appeals
Unit may sua sponte reopen any proceeding conducted by that unit under
this part and reconsider any decision rendered in such proceeding. The
decision must be served on the appealing party within forty-five (45)
days of receipt of any briefs and/or new evidence, or upon expiration of
the time allowed for the submission of any briefs. Motions to reopen a
proceeding or reconsider a decision shall not be considered under this
part.
(h) Certifications. The regional processing facility director may,
in accordance with Sec. 103.4 of this chapter, certify a decision to
the Associate Commissioner, Examinations when the case involves an
unusually complex or novel question of law or fact. A consular officer
assigned to an overseas processing office is authorized to certify a
decision in the same manner and upon the same basis.
[53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990; 60
FR 21975, May 4, 1995]
Sec. 210.3 Eligibility.
(a) General. An alien who, during the twelve-month period ending on
May 1, 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
[[Page 182]]
and reasonable inference, the burden then shifts to the Service to
disprove the applicant's evidence by showing that the inference drawn
from the evidence is not reasonable.
(2) Evidence. The sufficiency of all evidence produced by the
applicant will be judged according to its probative value and
credibility. Original documents will be given greater weight than
copies. To meet his or her burden of proof, an applicant must provide
evidence of eligibility apart from his or her own testimony. Analysis of
evidence submitted will include consideration of the fact that work
performed by minors and spouses is sometimes credited to a principal
member of a family.
(3) Verification. Personal testimony by an applicant which is not
corroborated, in whole or in part, by other credible evidence (including
testimony of persons other than the applicant) will not serve to meet an
applicant's burden of proof. All evidence of identity, qualifying
employment, admissibility, and eligibility submitted by an applicant for
adjustment of status under this part will be subject to verification by
the Service. Failure by an applicant to release information protected by
the Privacy Act or related laws when such information is essential to
the proper adjudication of an application may result in denial of the
benefit sought. The Service may solicit from agricultural producers,
farm labor contractors, collective bargaining organizations and other
groups or organizations which maintain records of employment, lists of
workers against which evidence of qualifying employment can be checked.
If such corroborating evidence is not available and the evidence
provided is deemed insufficient, the application may be denied.
(4) Securing SAW employment records. When a SAW applicant alleges
that an employer or farm labor contractor refuses to provide him or her
with records relating to his or her employment and the applicant has
reason to believe such records exist, the Service shall attempt to
secure such records. However, prior to any attempt by the Service to
secure the employment records, the following conditions must be met: a
SAW application (Form I-700) must have been filed; an interview must
have been conducted; the applicant's testimony must support credibly his
or her claim; and, the Service must determine that the application
cannot be approved in the absence of the employer or farm labor
contractor records. Provided each of these conditions has been met, and
after unsuccessful attempts by the Service for voluntary compliance, the
District Directors shall utilize section 235 of the Immigration and
Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in
such cases where the employer or farm labor contractor refuses 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,
[[Page 183]]
even if accompanied by certified copies, may be temporarily retained for
further examination.
(1) Proof of identity. Evidence to establish identity is listed
below in descending order of preference:
(i) Passport;
(ii) Birth certificate;
(iii) Any national identity document from a foreign country bearing
a photo and/or fingerprint (e.g., ``cedula'', ``cartilla'', ``carte
d'identite,'' etc.);
(iv) Driver's license or similar document issued by a state if it
contains a photo;
(v) Baptismal record or marriage certificate;
(vi) Affidavits, or
(vii) Such other documentation which may establish the identity of
the applicant.
(2) Assumed names--(i) General. In cases where an applicant claims
to have met any of the eligibility criteria under an assumed name, the
applicant has the burden of proving that the applicant was in fact the
person who used that name.
(ii) Proof of common identity. The most persuasive evidence is a
document issued in the assumed name which identifies the applicant by
photograph, fingerprint or detailed physical description. Other evidence
which will be considered are affidavit(s) by a person or persons other
than the applicant, made under oath, which identify the affiant by name
and address and state the affiant's relationship to the applicant and
the basis of the affiant's knowledge of the applicant's use of the
assumed name. Affidavits accompanied by a photograph which has been
identified by the affiant as the individual known to the affiant under
the assumed name in question will carry greater weight. Other documents
showing the assumed name may serve to establish the common identity when
substantiated by corroborating detail.
(3) Proof of employment. The applicant may establish qualifying
employment through government employment records, or records maintained
by agricultural producers, farm labor contractors, collective bargaining
organizations and other groups or organizations which maintain records
of employment, or such other evidence as worker identification issued by
employers or collective bargaining organizations, union membership cards
or other union records such as dues receipts or records of the
applicant's involvement or that of his or her immediate family with
organizations providing services to farmworkers, or work records such as
pay stubs, piece work receipts, W-2 Forms or certification of the filing
of Federal income tax returns on IRS Form 6166, or state verification of
the filing of state income tax returns. Affidavits may be submitted
under oath, by agricultural producers, foremen, farm labor contractors,
union officials, fellow employees, or other persons with specific
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
[[Page 184]]
letter which: Identify applicant by name, are signed by an official
(whose title is shown), show inclusive dates of membership, state the
address where applicant resided during the membership period, include
the seal of the organization impressed on the letter, establish how the
author knows the applicant, and the origin of the information; and
additional documents that could show that the applicant was in the
United States at a specific time, such as: Money order receipts for
money sent out of the country; passport entries; birth certificates of
children born in the United States; bank books with dated transactions;
letters of correspondence between the applicant and another person or
organization; Social Security card; Selective Service card; automobile
license receipts, title, vehicle registration, etc.; deeds, mortgages,
contracts to which applicant has been a party; tax receipts; insurance
policies, receipts, or letters; and any other document that will show
that applicant was in the United States at a specific time. For Group 2
eligibility, evidence of performance of the required 90 man-days of
seasonal agricultural services shall constitute evidence of qualifying
residence.
(5) Proof of financial responsibility. Generally, the evidence of
employment submitted under paragraph (c)(3) of this section will serve
to demonstrate the alien's financial responsibility. If it appears that
the applicant may be inadmissible under section 212(a)(15) of the Act,
he or she may be required to submit documentation showing a history of
employment without reliance on public cash assistance for all periods of
residence in the United States.
(d) Ineligible classes. The following classes of aliens are
ineligible for temporary residence under this part:
(1) An alien who at any time was a nonimmigrant exchange visitor
under section 101(a)(15)(J) of the Act who is subject to the two-year
foreign residence requirement unless the alien has complied with that
requirement or the requirement has been waived pursuant to the
provisions of section 212(e) of the Act;
(2) An alien excludable under the provisions of section 212(a) of
the Act whose grounds of excludability may not be waived, pursuant to
section 210(c)(2)(B)(ii) of the Act;
(3) An alien who has been convicted of a felony, or three or more
misdemeanors.
(e) Exclusion grounds--(1) Grounds of exclusion not to be applied.
Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act
shall not apply to applicants applying for temporary resident status.
(2) Waiver of grounds for exclusion. Except as provided in paragraph
(e)(3) of this section, the Service may waive any other provision of
section 212(a) of the Act only in the case of individual aliens for
humanitarian purposes, to 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
[[Page 185]]
application for adjustment of status was filed. However, in cases
involving clear statutory ineligibility or admitted fraud, such
application for a waiver may be denied by the district director in whose
jurisdiction the application is filed; in cases filed at overseas
processing offices, such application for a waiver may be denied by a
consular officer; or, in cases returned to a legalization office for
reinterview, such application may be approved at the discretion of the
district director. Waiver applications filed at the port of entry under
the preliminary application standard will be approved or denied by the
district director having jurisdiction over the port of entry. The
applicant shall be notified of the decision and, if the application is
denied, of the reason(s) therefor. The applicant may appeal the decision
within 30 days after the service of the notice pursuant to the
provisions of Sec. 103.3(a)(2) of this chapter.
(3) Grounds of exclusion that may not be waived. The following
provisions of section 212(a) of the Act may not be waived:
(i) Paragraphs (9) and (10) (criminals);
(ii) Paragraph (15) (public charge) except as provided in paragraph
(c)(4) of this section.
(iii) Paragraph (23) (narcotics) except for a single offense of
simple possession of thirty grams or less of marijuana.
(iv) Paragraphs (27), (prejudicial to the public interest), (28),
(communists), and (29) (subversive);
(v) Paragraph (33) (Nazi persecution).
(4) Special Rule for determination of public charge. An applicant
who has a consistent employment history which shows the ability to
support himself and his or her family, even though his income may be
below the poverty level, is not excludable under paragraph (e)(3)(ii) of
this section. The applicant's employment history need not be continuous
in that it is uninterrupted. It should be continuous in the sense that
the applicant shall be regularly attached to the workforce, has an
income over a substantial period of the applicable time, and has
demonstrated the capacity to exist on his or her income and maintain his
or her family without reliance on public cash assistance. This
regulation is prospective in that the Service shall determine, based on
the applicant's history, whether he or she is likely to become a public
charge. Past acceptance of public cash assistance within a history of
consistent employment will enter into this decision. The weight given in
considering applicability of the public charge provisions will depend on
many factors, but the length of time an applicant has received public
cash assistance will constitute a significant factor.
[53 FR 10064, Mar. 29, 1988, as amended at 53 FR 27335, July 20, 1988;
54 FR 4757, Jan. 31, 1989; 55 FR 12629, Apr. 5, 1990]
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 186]]
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 187]]
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 188]]
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 189]]
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 190]]
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]
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 191]]
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 192]]
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 193]]
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 194]]
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 195]]
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 196]]
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 197]]
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 198]]
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 199]]
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 200]]
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 201]]
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 202]]
(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 203]]
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 204]]
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 205]]
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 206]]
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 207]]
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 208]]
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 209]]
(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 210]]
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 211]]
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 212]]
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 213]]
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 214]]
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 215]]
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 216]]
(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 217]]
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 218]]
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 219]]
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 220]]
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 221]]
(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 222]]
(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 223]]
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 224]]
(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 225]]
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 226]]
(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 227]]
(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 228]]
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 229]]
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 230]]
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 231]]
(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 232]]
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 233]]
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 234]]
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 235]]
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 236]]
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 237]]
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 238]]
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 239]]
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 240]]
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 241]]
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 242]]
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 243]]
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 244]]
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 245]]
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 246]]
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