[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1997 Edition]
[From the U.S. Government Publishing Office]
Aliens and Nationality
8
[[Page i]]
Revised as of January 1, 1997
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1997
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1997
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 8:
Chapter I--Immigration and Naturalization Service,
Department of Justice................................. 3
Finding Aids:
Table of CFR Titles and Chapters.......................... 631
Alphabetical List of Agencies Appearing in the CFR........ 647
List of CFR Sections Affected............................. 657
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in this volume use title, part
and section number. Thus, 8 CFR 1.1 refers to title 8,
part 1, section 1.
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[[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
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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.
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
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Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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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.
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For a legal interpretation or explanation of any regulation in this
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For inquiries concerning CFR reference assistance, call 202-523-5227
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Richard L. Claypoole,
Director,
Office of the Federal Register.
January 1, 1997.
[[Page vii]]
THIS TITLE
Title 8--Aliens and Nationality is composed of one volume. The
contents of this volume represent all current regulations issued by the
Immigration and Naturalization Service, Department of Justice, as of
January 1, 1997.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page viii]]
[[Page 1]]
TITLE 8--ALIENS AND NATIONALITY
--------------------------------------------------------------------
Part
chapter i--Immigration and Naturalization Service,
Department of Justice..................................... 1
Note: Other regulations issued by the Department of Justice appear in
title 4, chapter II, title 21, chapter II, and title 28, chapters I, III
and V.
[[Page 3]]
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
--------------------------------------------------------------------
Cross Reference: For State Department regulations pertaining to visas
and Nationality and Passports, see 22 CFR, chapter I, subchapters E and
F.
Note: This table shows sections of title 8 of the United States Code
and corresponding sections of the Immigration and Nationality Act and of
parts in subchapters A, B, and C of chapter I of title 8 of the Code of
Federal Regulations. Those sections of title 8 of the United States Code
bearing an asterisk do not have a corresponding part in chapter I of
title 8 of the Code of Federal Regulations.
Sections I. & Sections I. & Sections I. & Sections I. &
Sections 8 USC N. Act and 8 Sections 8 USC N. Act and 8 Sections 8 USC N. Act and 8 Sections 8 USC N. Act and 8
CFR CFR CFR CFR
1101*.......................... 101 1254............. 244 1355*............ 285 1438............. 327
1102*.......................... 102 1255............. 245 1356*............ 286 1439............. 328
1103*.......................... 103 1256............. 246 1357............. 287 1440............. 329
1104*.......................... 104 1257............. 247 1358*............ 288 1441............. 330
1105*.......................... 105 1258............. 248 1359............. 289 1442*............ 331
1105a*......................... 106 1259............. 249 1360*............ 290 1443............. 332
1151*.......................... 201 1260............. 250 1361*............ 291 1444............. 333
1152*.......................... 202 1281............. 251 1362............. 292 1445............. 334
1153*.......................... 203 1282............. 252 1401*............ 301 1446............. 335
1154........................... 204 1283............. 253 1402*............ 302 1447............. 336
1155........................... 205 1284*............ 254 1403*............ 303 1448............. 337
1156*.......................... 206 1285*............ 255 1404*............ 304 1449............. 338
1181........................... 211 1286*............ 256 1405*............ 305 1450............. 339
1182........................... 212 1287*............ 257 1406............. 306 1451............. 340
1183........................... 213 1301*............ 261 1407*............ 307 1452............. 341
1184........................... 214 1302*............ 262 1408*............ 308 1453............. 342
1185........................... 215 1303*............ 263 1409*............ 309 1454............. 343
1201........................... 221 1304............. 264 1421*............ 310 1455............. 344
1202*.......................... 222 1305............. 265 1422*............ 311 1457*............ 346
1203........................... 223 1306*............ 266 1423............. 312 1458*............ 347
1204*.......................... 224 1321*............ 271 1424*............ 313 1459*............ 348
1221........................... 231 1322*............ 272 1425*............ 314 1481............. 349
1222........................... 232 1323*............ 273 1426*............ 315 1482*............ 350
1223........................... 233 1324............. 274 1427............. 316 1483*............ 351
1224........................... 234 1325*............ 275 1428*............ 317 1484*............ 352
1225........................... 235 1326*............ 276 1429............. 318 1485*............ 353
1226........................... 236 1327*............ 277 1430............. 319 1486*............ 354
1227........................... 237 1328*............ 278 1431*............ 320 1487*............ 355
1228........................... 238 1329*............ 279 1432*............ 321 1488*............ 356
1229........................... 239 1330............. 280 1433............. 322 1489*............ 357
1230*.......................... 240 1351*............ 281 1434............. 323 1501*............ 358
1251........................... 241 1352............. 282 1435............. 324 1502*............ 359
1252........................... 242 1353*............ 283 1436*............ 325 1503*............ 360
1253........................... 243 1354*............ 284 1437............. 326
[[Page 4]]
SUBCHAPTER A--GENERAL PROVISIONS
Part Page
1 Definitions................................. 9
2 Authority of the Commissioner............... 10
3 Executive Office for Immigration Review..... 10
SUBCHAPTER B--IMMIGRATION REGULATIONS
100 Statement of organization................... 29
101 Presumption of lawful admission............. 47
103 Powers and duties of service officers;
availability of service records......... 52
109 [Reserved]
204 Immigrant petitions......................... 92
205 Revocation of approval of petitions......... 152
207 Admission of refugees....................... 154
208 Procedures for asylum and withholding of
deportation............................. 156
209 Adjustment of status of refugees and aliens
granted asylum.......................... 170
210 Special agricultural workers................ 172
211 Documentary requirements: Immigrants;
waivers................................. 183
212 Documentary requirements: Nonimmigrants;
waivers; admission of certain
inadmissible aliens; parole............. 186
213 Admission of aliens on giving bond or cash
deposit................................. 213
214 Nonimmigrant classes........................ 214
215 Controls of aliens departing from the United
States.................................. 322
216 Conditional basis of lawful permanent
residence status........................ 327
217 Visa waiver pilot program................... 336
221 Admission of visitors or students........... 340
223 Reentry permits, refugee travel documents,
and advance parole documents............ 341
231 Arrival-departure manifests and lists;
supporting documents.................... 342
232 Detention for examination to determine
mental or physical defects.............. 344
233 [Reserved]
234 Physical and mental examination of arriving
aliens.................................. 344
235 Inspection of persons applying for admission 345
236 Exclusion of aliens......................... 358
237 Deportation of excluded aliens.............. 361
238 Contracts with transportation lines......... 363
[[Page 5]]
239 Special provisions relating to aircraft:
Designation of ports of entry for aliens
arriving by civil aircraft.............. 370
240 Temporary protected status for nationals of
designated states....................... 372
241 Controlled substance violations............. 382
242 Proceedings to determine deportability of
aliens in the United States:
Apprehension, custody, hearing, and
appeal.................................. 382
243 Deportation of aliens in the United States.. 405
244 Suspension of deportation and voluntary
departure............................... 407
245 Adjustment of status to that of person
admitted for permanent residence........ 407
245a Adjustment of status to that of persons
admitted for lawful temporary or
permanent resident status under section
245A of the Immigration and Nationality
Act..................................... 427
246 Rescission of adjustment of status.......... 463
247 Adjustment of status of certain resident
aliens.................................. 466
248 Change of nonimmigrant classification....... 467
249 Creation of records of lawful admission for
permanent residence..................... 470
250 Removal of aliens who have fallen into
distress................................ 471
251 Arrival manifests and lists: Supporting
documents............................... 471
252 Landing of alien crewmen.................... 475
253 Parole of alien crewmen..................... 479
258 Limitations on performance of longshore work
by alien crewmen........................ 481
264 Registration and fingerprinting of aliens in
the United States....................... 484
265 Notices of address.......................... 490
270 Penalties for document fraud................ 491
271 Diligent and reasonable efforts to prevent
the unauthorized entry of aliens by the
owners of railroad lines, international
bridges or toll roads................... 493
274 Seizure and forfeiture of conveyances....... 494
274a Control of employment of aliens............. 502
280 Imposition and collection of fines.......... 523
286 Immigration user fee........................ 527
287 Field officers; powers and duties........... 531
289 American Indians born in Canada............. 544
292 Representation and appearances.............. 545
292a Listing of free legal services programs..... 551
293 Deposit of and interest on cash received to
secure immigration bonds................ 552
[[Page 6]]
299 Immigration forms........................... 553
SUBCHAPTER C--NATIONALITY REGULATIONS
301 Nationals and citizens of the United States
at birth................................ 561
306 Special classes of persons who may be
naturalized: Virgin Islanders........... 561
310 Naturalization authority.................... 562
312 Educational requirements for naturalization. 564
313 Membership in the Communist Party or any
other totalitarian organizations........ 566
315 Persons ineligible to citizenship: Exemption
from military service................... 568
316 General requirements for naturalization..... 570
318 Pending deportation proceedings............. 579
319 Special classes of persons who may be
naturalized: Spouses of United States
citizens................................ 579
322 Special classes of persons who may be
naturalized: Children of citizen parent. 583
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............... 584
325 Nationals but not citizens of the United
States; residence within outlying
possessions............................. 586
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............................ 587
328 Special classes of persons who may be
naturalized: Persons with three years
service in Armed Forces of the United
States.................................. 587
329 Special classes of persons who may be
naturalized: Naturalization based upon
active duty service in the United States
Armed Forces during specified periods of
hostilities............................. 589
330 Special classes of persons who may be
naturalized: Seamen..................... 591
331 Alien enemies; naturalization under
specified conditions and procedures..... 592
332 Naturalization administration............... 592
333 Photographs................................. 594
334 Application for naturalization.............. 595
335 Examination on application for
naturalization.......................... 598
336 Hearings on denials of applications for
naturalization.......................... 604
337 Oath of allegiance.......................... 606
[[Page 7]]
338 Certificate of naturalization............... 610
339 Functions and duties of clerks of court
regarding naturalization proceedings.... 612
340 Revocation of naturalization................ 614
341 Certificates of citizenship................. 616
342 Administrative cancellation of certificates,
documents, or records................... 619
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... 621
343a Naturalization and citizenship papers lost,
mutilated, or destroyed; new certificate
in changed name; certified copy of
repatriation proceedings................ 622
343b Special certificate of naturalization for
recognition by a foreign state.......... 623
343c Certifications from records................. 624
349 Loss of nationality......................... 624
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.................. 624
499 Nationality forms........................... 627
[[Page 9]]
SUBCHAPTER A--GENERAL PROVISIONS
PART 1--DEFINITIONS--Table of Contents
Authority: 66 Stat. 173; 8 U.S.C. 1101; 28 U.S.C. 509, 510; 5 U.S.C.
301.
Sec. 1.1 Definitions.
As used in this chapter:
(a) The terms defined in section 101 of the Immigration and
Nationality Act (66 Stat. 163) shall have the meanings ascribed to them
in that section and as supplemented, explained, and further defined in
this chapter.
(b) The term Act means the Immigration and Nationality Act, as
amended.
(c) The term Service means the Immigration and Naturalization
Service.
(d) The term Commissioner means the Commissioner of Immigration and
Naturalization.
(e) The term Board means the Board of Immigration Appeals.
(f) The term attorney means any person who is a member in good
standing of the bar of the highest court of any State, possession,
territory, Commonwealth, or the District of Columbia, and is not under
any order of any court suspending, enjoining, restraining, disbarring,
or otherwise restricting him in the practice of law.
(g) Unless the context otherwise requires, the term case means any
proceeding arising under any immigration or naturalization law,
Executive order, or Presidential proclamation, or preparation for or
incident to such proceeding, including preliminary steps by any private
person or corporation preliminary to the filing of the application or
petition by which any proceeding under the jurisdiction of the Service
or the Board is initiated.
(h) The term day when computing the period of time for taking any
action provided in this chapter including the taking of an appeal, shall
include Saturdays, Sundays, and legal holidays, except that when the
last day of the period so computed falls on a Saturday, Sunday or a
legal holiday, the period shall run until the end of the next day which
is not a Saturday, Sunday, nor a legal holiday.
(i) The term practice means the act or acts of any person appearing
in any case, either in person or through the preparation or filing of
any brief or other document, paper, application, or petition on behalf
of another person or client before or with the Service, or any officer
of the Service, or the Board.
(j) The term representative refers to a person who is entitled to
represent others as provided in Secs. 292.1(a) (2), (3), (4), (5), (6),
and 292.1(b) of this chapter.
(k) The term preparation, constituting practice, means the study of
the facts of a case and the applicable laws, coupled with the giving of
advice and auxiliary activities, including the incidental preparation of
papers, but does not include the lawful functions of a notary public or
service consisting solely of assistance in the completion of blank
spaces on printed Service forms by one whose remuneration, if any, is
nominal and who does not hold himself out as qualified in legal matters
or in immigration and naturalization procedure.
(l) The term immigration judge means special inquiry officer and may
be used interchangeably with the term special inquiry officer wherever
it appears in this chapter.
(m) The term representation before the Board and the Service
includes practice and preparation as defined in paragraphs (i) and (k)
of this section.
(n) The term Executive Office means Executive Office for Immigration
Review.
(o) The term director means either district director or regional
service center director, unless otherwise specified.
(p) The term lawfully admitted for permanent residence means the
status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance with the
immigration laws, such status not having changed. Such status terminates
upon entry of a final
[[Page 10]]
administrative order of exclusion or deportation.
[23 FR 9115, Nov. 26, 1958, as amended at 30 FR 14772, Nov. 30, 1965; 34
FR 12213, July 24, 1969; 38 FR 8590, Apr. 4, 1973; 40 FR 23271, May 29,
1975; 48 FR 8039, Feb. 25, 1983, 52 FR 2936, Jan. 29, 1987; 53 FR 30016,
Aug. 10, 1988; 61 FR 18904, Apr. 29, 1996]
PART 2--AUTHORITY OF THE COMMISSIONER--Table of Contents
Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; 8 U.S.C. 1103.
Sec. 2.1 Authority of the Commissioner.
Without divesting the Attorney General of any of his powers,
privileges, or duties under the immigration and naturalization laws, and
except as to the Executive Office, the Board, the Office of the Chief
Special Inquiry Officer, and Special Inquiry Officers, there is
delegated to the Commissioner the authority of the Attorney General to
direct the administration of the Service and to enforce the Act and all
other laws relating to the immigration and naturalization of aliens. The
Commissioner may issue regulations as deemed necessary or appropriate
for the exercise of any authority delegated to him by the Attorney
General, and may redelegate any such authority to any other officer or
employee of the Service.
[48 FR 8039, Feb. 25, 1983]
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
Sec.
3.0 Executive Office for Immigration Review.
Subpart A--Board of Immigration Appeals
3.1 General authorities.
3.2 Reopening or reconsideration.
3.3 Notice of appeal.
3.4 Withdrawal of appeal.
3.5 Forwarding of record on appeal.
3.6 Stay of execution of decision.
3.7 Notice of certification.
3.8 Fees.
Subpart B--Office of the Chief Immigration Judge
3.9 Chief Immigration Judge.
3.10 Immigration Judges.
3.11 Administrative control offices.
Subpart C--Rules of Procedure for Immigration Judge Proceedings
3.12 Scope of rules.
3.13 Definitions.
3.14 Jurisdiction and commencement of proceedings
3.15 Contents of the order to show cause and notification of change of
address.
3.16 Representation.
3.17 Appearances.
3.18 Scheduling of cases.
3.19 Custody/bond.
3.20 Change of venue.
3.21 Pre-hearing conferences and statement.
3.22 Interpreters.
3.23 Motions.
3.24 Fees pertaining to matters within the jurisdiction of the
Immigration Judge.
3.25 Waiver of presence of the parties.
3.26 In absentia hearings.
3.27 Public access to hearings.
3.28 Recording equipment.
3.29 Continuances.
3.30 Additional charges in deportation hearings.
3.31 Filing documents and applications.
3.32 Service and size of documents.
3.33 Translation of documents.
3.34 Testimony.
3.35 Depositions.
3.36 Record of proceeding.
3.37 Decisions.
3.38 Appeals.
3.39 Finality of decision.
3.40 Local operating procedures.
3.41 Evidence of criminal conviction.
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362; 28
U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-
1953 Comp., p. 1002.
Editorial Note: Nomenclature changes to part 3 appear at 52 FR 2941,
Jan. 29, 1987.
Sec. 3.0 Executive Office for Immigration Review.
(a) Organization. The Executive Office for Immigration Review shall
be headed by a Director, who shall be responsible for the general
supervision of the Board of Immigration Appeals and the Office of the
Chief Immigration Judge in the execution of their duties in accordance
with 8 CFR part 3. The Director may redelegate the authority delegated
to him by the Attorney General to the Chairman of the Board of
Immigration Appeals or the Chief Immigration Judge. The Director shall
be assisted in the performance of his duties by an Executive Assistant.
[[Page 11]]
(b) Citizenship Requirement for Employment. (1) An application to
work at the Executive Office for Immigration Review (EOIR or Agency),
either as an employee or as a volunteer, must include a signed
affirmation from the applicant that he or she is a citizen of the United
States of America. Upon the Agency's request, the applicant must
document United States citizenship.
(2) The Director of EOIR may, by explicit written determination and
to the extent permitted by law, authorize the appointment of an alien to
an Agency position when necessary to accomplish the work of EOIR.
[48 FR 8039, Feb. 25, 1983, as amended at 60 FR 29468, June 5, 1995]
Subpart A--Board of Immigration Appeals
Sec. 3.1 General authorities.
(a)(1) Organization. There shall be in the Department of Justice a
Board of Immigration Appeals, subject to the general supervision of the
Director, Executive Office for Immigration Review. The Board shall
consist of a Chairman and fourteen other members. The Board Members
shall exercise their independent judgment and discretion in the cases
coming before the Board. A majority of the permanent Board Members shall
constitute a quorum of the Board sitting en banc. A vacancy, or the
absence or unavailability of a Board Member, shall not impair the right
of the remaining members to exercise all the powers of the Board. The
Director may in his discretion designate Immigration Judges to act as
temporary, additional Board Members for whatever time the Director deems
necessary. The Chairman may divide the Board into three-member panels
and designate a presiding member of each panel. The Chairman may from
time to time make changes in the composition of such panels and of
presiding members. Each panel shall be empowered to review cases by
majority vote. A majority of the number of Board Members authorized to
constitute a panel shall constitute a quorum for such panel. Each panel
may exercise the appropriate authority of the Board as set out in part 3
that is necessary for the adjudication of cases before it. In the case
of an unopposed motion or a motion to withdraw an appeal pending before
the Board, a single Board Member or the Chief Attorney Examiner may
exercise the appropriate authority of the Board as set out in part 3
that is necessary for the adjudication of such motions before it. The
permanent Board may, by majority vote on its own motion or by direction
of the Chairman, consider any case en banc or reconsider en banc any
case decided by a panel. By majority vote of the permanent Board,
decisions of the Board shall be designated to serve as precedents
pursuant to paragraph (g) of this section. There shall also be attached
to the Board such number of attorneys and other employees as the Deputy
Attorney General, upon recommendation of the Director, shall from time
to time direct.
(2) Chairman. The Chairman shall direct, supervise, and establish
internal operating procedures and policies of the Board. He shall
designate a member of the Board to act as Chairman in his absence or
unavailability. The Chairman shall be assisted in the performance of his
duties by a Chief Attorney Examiner, who shall be directly responsible
to the Chairman. The Chief Attorney Examiner shall serve as an Alternate
Board Member when, in the absence or unavailability of a Board Member or
Members or for other good cause, his participation is deemed necessary
by the Chairman. Once designated, his participation in a case shall
continue to its normal conclusion.
(3) Board Members. Board Members shall perform the quasi-judicial
function of adjudicating cases coming before the Board.
(b) Appellate jurisdiction. Appeals shall lie to the Board of
Immigration Appeals from the following:
(1) Decisions of Immigration Judges in exclusion cases, as provided
in part 236 of this chapter.
(2) Decisions of Immigration Judges in deportation cases, as
provided in part 242 of this chapter, except that no appeal shall lie
from an order of deportation entered in absentia. No appeal shall lie
from an order of an Immigration Judge under Sec. 244.1 of this chapter
[[Page 12]]
granting voluntary departure within a period of at least 30 days, if the
sole ground of appeal is that a greater period of departure time should
have been fixed.
(3) Decisions of immigration judges on applications for the exercise
of the discretionary authority contained in section 212(c) of the Act as
provided in part 212 of this chapter.
(4) Decisions involving administrative fines and penalties,
including mitigation thereof, as provided in part 280 of this chapter.
(5) Decisions on petitions filed in accordance with section 204 of
the act (except petitions to accord preference classifications under
section 203(a)(3) or section 203(a)(6) of the act, or a petition on
behalf of a child described in section 101(b)(1)(F) of the act), and
decisions on requests for revalidation and decisions revoking the
approval of such petitions, in accordance with section 205 of the act,
as provided in parts 204 and 205, respectively, of this chapter.
(6) Decisions on applications for the exercise of the discretionary
authority contained in section 212(d)(3) of the act as provided in part
212 of this chapter.
(7) Determinations relating to bond, parole, or detention of an
alien as provided in part 242 of this chapter.
(8) Decisions of Immigration Judges in rescission of adjustment of
status cases, as provided in part 246 of this chapter.
(9) Decisions of Asylum Officers of the Service on applications for
asylum or withholding of deportation filed by alien crewman or
stowaways, as provided in Sec. 253.1(f)(4) of this chapter.
(10) Decisions of Immigration Judges relating to Temporary Protected
Status as provided in part 240 of this chapter.
(c) Jurisdiction by certification. The Commissioner, or any other
duly authorized officer of the Service, any Immigration Judge, or the
Board may in any case arising under paragraph (b) of this section
certify such case to the Board. The Board in its discretion may review
any such case by certification without regard to the provisions of
Sec. 3.7 if it determines that the parties have already been given a
fair opportunity to make representations before the Board regarding the
case, including the opportunity request oral argument and to submit a
brief.
(d) Powers of the Board--(1) Generally. Subject to any specific
limitation prescribed by this chapter, in considering and determining
cases before it as provided in this part the Board shall exercise such
discretion and authority conferred upon the Attorney General by law as
is appropriate and necessary for the disposition of the case.
(1-a) Summary dismissal of appeals. (i) Standards. The Board may
summarily dismiss any appeal or portion of any appeal in any case in
which:
(A) The party concerned fails to specify the reasons for the appeal
on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document
filed therewith;
(B) The only reason for the appeal specified by the party concerned
involves a finding of fact or a conclusion of law that was conceded by
that party at a prior proceeding;
(C) The appeal is from an order that granted the party concerned the
relief that had been requested;
(D) The Board is satisfied, from a review of the record, that the
appeal is filed for an improper purpose, such as to cause unnecessary
delay, or that the appeal lacks an arguable basis in law or fact unless
the Board determines that it is supported by a good faith argument for
extension, modification or reversal of existing law.
(E) The party concerned indicates on Form EOIR-26 or Form EOIR-29
that he or she will file a brief or statement in support of the appeal
and, thereafter, does not file such brief or statement, or reasonably
explain his or her failure to do so, within the time set for filing; or
(F) The appeal fails to meet essential statutory or regulatory
requirements or is expressly excluded by statute or regulation.
(ii) Disciplinary consequences. The filing by an attorney or
representative accredited under Sec. 292.2(d) of this chapter of an
appeal which is summarily dismissed under paragraph (d)(1-a)(i) of this
section may constitute frivolous behavior under Sec. 292.3(a)(15) of
this chapter. Summary dismissal of an appeal under paragraph (d)(1-a)(i)
of this section does not limit the other
[[Page 13]]
grounds and procedures for disciplinary action against attorneys or
representatives.
(2) Finality of decision. The decision of the Board shall be final
except in those cases reviewed by the Attorney General in accordance
with paragraph (h) of this section. The Board may return a case to the
Service or Immigration Judge for such further action as may be
appropriate, without entering a final decision on the merits of the
case.
(3) Rules of practices: Discipline of attorneys and representatives.
The Board shall have authority, with the approval of the Director, EOIR,
to prescribe rules governing proceedings before it. It shall also
determine whether any organization desiring representation is of a kind
described in Sec. 1.1(j) of this chapter, and shall regulate the conduct
of attorneys, representatives of organizations, and others who appear in
a representative capacity before the Board or the Service or any special
Inquiry Officer.
(e) Oral argument. When an appeal has been taken, request for oral
argument if desired shall be included in the Notice of Appeal. Oral
argument shall be heard at the discretion of the Board at such date and
time as the Board shall fix. The Service may be represented before the
Board by an officer of the Service designated by the Service.
(f) Service of Board decisions. The decision of the Board shall be
in writing and copies thereof shall be transmitted by the Board to the
Service and a copy shall be served upon the alien or party affected as
provided in part 292 of this chapter.
(g) Decisions of the Board as precedents. Except as they may be
modified or overruled by the Board or the Attorney General, decisions of
the Board shall be binding on all officers and employees of the Service
or Immigration Judges in the administration of the Act, and selected
decisions designated by the Board shall serve as precedents in all
proceedings involving the same issue or issues.
(h) Referral of cases to the Attorney General. (1) The Board shall
refer to the Attorney General for review of its decision all cases
which:
(i) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be
referred to the Attorney General for review.
(iii) The Commissioner requests be referred to the Attorney General
for review.
(2) In any case in which the Attorney General reviews the decision
of the Board, the decision of the Attorney General shall be stated in
writing and shall be transmitted to the Board for transmittal and
service as provided in paragraph (f) of this section.
[23 FR 9117, Nov. 26, 1958, as amended at 27 FR 96, Jan. 5, 1962; 27 FR
10789, Nov. 6, 1962; 30 FR 14772, Nov. 30, 1965; 36 FR 316, Jan. 9,
1971; 40 FR 37207, Aug. 26, 1975; 44 FR 67960, Nov. 28, 1979; 47 FR
16772, Apr. 20, 1982; 48 FR 8039, Feb. 25, 1983; 52 FR 2943, Jan. 29,
1987; 52 FR 24981, July 2, 1987; 55 FR 30680, July 27, 1990; 56 FR 624,
Jan. 7, 1991; 57 FR 11570, Apr. 6, 1992; 59 FR 1899, Jan. 13, 1994; 60
FR 29469, June 5, 1995; 60 FR 57313, Nov. 15, 1995; 61 FR 18904, Apr.
29, 1996; 61 FR 59305, Nov. 22, 1996]
Sec. 3.2 Reopening or reconsideration.
(a) General. The Board may at any time reopen or reconsider on its
own motion any case in which it has rendered a decision. A request to
reopen or reconsider any case in which a decision has been made by the
Board, which request is made by the Service, or by the party affected by
the decision, must be in the form of a written motion to the Board. The
decision to grant or deny a motion to reopen or reconsider is within the
discretion of the Board, subject to the restrictions of this section.
The Board has discretion to deny a motion to reopen even if the party
moving has made out a prima facie case for relief.
(b) Motion to reconsider. (1) A motion to reconsider shall state the
reasons for the motion by specifying the errors of fact or law in the
prior Board decision and shall be supported by pertinent authority. A
motion to reconsider a decision rendered by an Immigration Judge or
Service officer that is pending when an appeal is filed with the Board,
or that is filed subsequent to the filing with the Board of an appeal
from the decision sought to be reconsidered, may be deemed a motion to
remand the decision for further proceedings before the Immigration Judge
or the Service officer from whose decision the appeal was taken. Such
motion may be consolidated with, and considered by the
[[Page 14]]
Board in connection with the appeal to the Board.
(2) A motion to reconsider a decision must be filed with the Board
within 30 days after the mailing of the Board decision or on or before
July 31, 1996, whichever is later. A party may file only one motion to
reconsider any given decision and may not seek reconsideration of a
decision denying a previous motion to reconsider.
(c) Motion to reopen. (1) A motion to reopen proceedings shall state
the new facts that will be proven at a hearing to be held if the motion
is granted and shall be supported by affidavits or other evidentiary
material. A motion to reopen proceedings for the purpose of submitting
an application for relief must be accompanied by the appropriate
application for relief and all supporting documentation. A motion to
reopen proceedings shall not be granted unless it appears to the Board
that evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing; nor
shall any motion to reopen for the purpose of affording the alien an
opportunity to apply for any form of discretionary relief be granted if
it appears that the alien's right to apply for such relief was fully
explained to him or her and an opportunity to apply therefore was
afforded at the former hearing, unless the relief is sought on the basis
of circumstances that have arisen subsequent to the hearing. Subject to
the other requirements and restrictions of this section, and
notwithstanding the provisions in Sec. 1.1(p) of this chapter, a motion
to reopen proceedings for consideration or further consideration of an
application for relief under section 212(c) of the Act (8 U.S.C.
1182(c)) may be granted if the alien demonstrates that he or she was
statutorily eligible for such relief prior to the entry of the
administratively final order of deportation.
(2) Except as provided in paragraph (c)(3) of this section, a party
may file only one motion to reopen proceedings (whether before the Board
or the Immigration Judge) and that motion must be filed not later than
90 days after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened, or on or before
September 30, 1996, whichever is later.
(3) The time and numerical limitations set forth in paragraph (c)(2)
of this section shall not apply to a motion to reopen proceedings:
(i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii);
(ii) To apply or reapply for asylum, or withholding of deportation,
based on changed circumstances arising in the country of nationality or
in the country to which deportation has been ordered, if such evidence
is material and was not available and could not have been discovered or
presented at the former hearing; or
(iii) Agreed upon by all parties and jointly filed. Notwithstanding
such agreement, the parties may contest the issues in a reopened
proceeding.
(4) A motion to reopen a decision rendered by an Immigration Judge
or Service officer that is pending when an appeal is filed, or that is
filed while an appeal is pending before the Board, may be deemed a
motion to remand for further proceedings before the Immigration Judge or
the Service officer from whose decision the appeal was taken. Such
motion may be consolidated with, and considered by the Board in
connection with, the appeal to the Board.
(d) Departure or deportation. A motion to reopen or a motion to
reconsider shall not be made by or on behalf of a person who is the
subject of deportation or exclusion proceedings subsequent to his or her
departure from the United States. Any departure from the United States,
including the deportation of a person who is the subject of deportation
or exclusion proceedings, occurring after the filing of a motion to
reopen or a motion to reconsider, shall constitute a withdrawal of such
motion.
(e) Judicial proceedings. Motions to reopen or reconsider shall
state whether the validity of the deportation or exclusion order has
been or is the subject of any judicial proceeding and, if so, the nature
and date thereof, the court in which such proceeding took place or is
pending, and its result or status. In any case in which a deportation or
exclusion order is in effect, any motion to reopen or reconsider such
order shall
[[Page 15]]
include a statement by or on behalf of the moving party declaring
whether the subject of the order is also the subject of any pending
criminal proceeding under section 242(e) of the Act (8 U.S.C. 1252(e)),
and, if so, the current status of that proceeding. If a motion to reopen
or reconsider seeks discretionary relief, the motion shall include a
statement by or on behalf of the moving party declaring whether the
alien for whose relief the motion is being filed is subject to any
pending criminal prosecution and, if so, the nature and current status
of that prosecution.
(f) Stay of deportation. Except where a motion is filed pursuant to
the provisions of Sec. 3.23(b)(4)(iii), the filing of a motion to reopen
or a motion to reconsider shall not stay the execution of any decision
made in the case. Execution of such decision shall proceed unless a stay
of execution is specifically granted by the Board, the Immigration
Judge, or an authorized officer of the Service.
(g) Filing procedures--(1) English language, entry of appearance,
and proof of service requirements. A motion and any submission made in
conjunction with a motion must be in English or accompanied by a
certified English translation. If the moving party, other than the
Service, is represented, a Notice of Entry of Appearance as Attorney or
Representative Before the Board (Form EOIR-27) must be filed with the
motion. In all cases, the motion shall include proof of service on the
opposing party of the motion and all attachments.
(2) Distribution of motion papers. (i) A motion to reopen or motion
to reconsider a decision of the Board pertaining to proceedings before
an Immigration Judge shall be filed directly with the Board. Such motion
must be accompanied by a check, money order, or fee waiver request in
satisfaction of the fee requirements of Sec. 3.8. The record of
proceeding pertaining to such a motion shall be forwarded to the Board
upon the request or order of the Board.
(ii) A motion to reopen or a motion to reconsider a decision of the
Board pertaining to a matter initially adjudicated by an officer of the
Service shall be filed with the officer of the Service having
administrative control over the record of proceeding.
(iii) If the motion is made by the Service in proceedings in which
the Service has administrative control over the record of proceedings,
the record of proceedings in the case and the motion shall be filed
directly with the Board. If such motion is filed directly with an office
of the Service, the entire record of proceeding shall be forwarded to
the Board by the Service officer promptly upon receipt of the briefs of
the parties, or upon expiration of the time allowed for the submission
of such briefs.
(3) Briefs and response. The moving party may file a brief if it is
included with the motion. If the motion is filed directly with the Board
pursuant to paragraph (g)(2)(i) of this section, the opposing party
shall have 13 days from the date of service of the motion to file a
brief in opposition to the motion directly with the Board. If the motion
is filed with an office of the Service pursuant to paragraph (g)(2)(ii)
of this section, the opposing party shall have 13 days from the date of
filing of the motion to file a brief in opposition to the motion
directly with the office of the Service. In all cases, briefs and any
other filings made in conjunction with a motion shall include proof of
service on the opposing party. The Board, in its discretion, may extend
the time within which such brief is to be submitted and may authorize
the filing of a brief directly with the Board. A motion shall be deemed
unopposed unless a timely response is made. The Board may, in its
discretion, consider a brief filed out of time.
(h) Oral argument. A request for oral argument, if desired, shall be
incorporated in the motion to reopen or reconsider. The Board, in its
discretion, may grant or deny requests for oral argument.
(i) Ruling on motion. Rulings upon motions to reopen or motions to
reconsider shall be by written order. If the order directs a reopening
and further proceedings are necessary, the record shall be returned to
the Immigration Court or the officer of the Service having
administrative control over the place where the reopened proceedings are
to be conducted. If the motion to
[[Page 16]]
reconsider is granted, the decision upon such reconsideration shall
affirm, modify, or reverse the original decision made in the case.
[61 FR 18904, Apr. 29, 1996; 61 FR 32924, June 26, 1996]
Sec. 3.3 Notice of appeal.
(a) Filing--(1) Appeal from decision of an Immigration Judge. A
party affected by a decision who is entitled under this chapter to
appeal to the Board from a decision of an Immigration Judge shall be
given notice of his or her right to appeal. An appeal from a decision of
an Immigration Judge shall be taken by filing a Notice of Appeal to the
Board of Immigration Appeals of Decision of Immigration Judge (Form
EOIR-26) directly with the Board, within the time specified in the
governing sections of this chapter. The appealing parties are only those
parties who are covered by the decision of an Immigration Judge and who
are specifically named on the Notice of Appeal. The appeal must be
accompanied by a check, money order, or fee waiver request in
satisfaction of the fee requirements of Sec. 3.8. If the respondent/
applicant is represented, a Notice of Entry of Appearance as Attorney or
Representative Before the Board (Form EOIR-27) must be filed with the
Notice of Appeal. The appeal must reflect proof of service of a copy of
the appeal and all attachments on the opposing party. The appeal and all
attachments must be in English or accompanied by a certified English
translation. An appeal is not properly filed unless it is received at
the Board, along with all required documents, fees or fee waiver
requests, and proof of service, within the time specified in the
governing sections of this chapter. A notice of appeal may not be filed
by any party who has waived appeal pursuant to Sec. 3.39.
(2) Appeal from decision of a Service officer. A party affected by a
decision who is entitled under this chapter to appeal to the Board from
a decision of a Service officer shall be given notice of his or her
right to appeal. An appeal from a decision of a Service officer shall be
taken by filing a Notice of Appeal to the Board of Immigration Appeals
of Decision of District Director (Form EOIR-29) directly with the office
of the Service having administrative control over the record of
proceeding within the time specified in the governing sections of this
chapter. The appeal must be accompanied by a check, money order, or fee
waiver request in satisfaction of the fee requirements of Sec. 3.8 and,
if the appellant is represented, a Notice of Entry of Appearance as
Attorney or Representative Before the Board (Form EOIR-27). The appeal
and all attachments must be in English or accompanied by a certified
English translation. An appeal is not properly filed until its receipt
at the appropriate office of the Service, together with all required
documents and fees, and the fee provisions of Sec. 3.8 are satisfied.
(b) Statement of the basis of appeal. The party taking the appeal
must identify the reasons for the appeal in the Notice of Appeal (Form
EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to
avoid summary dismissal pursuant to Sec. 3.1(d)(1-a)(i). The statement
must specifically identify the findings of fact, the conclusions of law,
or both, that are being challenged. If a question of law is presented,
supporting authority must be cited. If the dispute is over the findings
of fact, the specific facts contested must be identified. Where the
appeal concerns discretionary relief, the appellant must state whether
the alleged error relates to statutory grounds of eligibility or to the
exercise of discretion and must identify the specific factual and legal
finding or findings that are being challenged. The appellant must also
indicate in the Notice of Appeal (Form EOIR-26 or Form EOIR-29) whether
he or she desires oral argument before the Board and whether he or she
will be filing a separate written brief or statement in support of the
appeal.
(c) Briefs--(1) Appeal from decision of an Immigration Judge. Briefs
in support of or in opposition to an appeal from a decision of an
Immigration Judge shall be filed directly with the Board. In those cases
that are transcribed, the briefing schedule shall be set by the Board
after the transcript is available. An appellant shall be provided 30
days in which to file a brief, unless a shorter period is specified by
the Board. The appellee shall have the same period of
[[Page 17]]
time in which to file a reply brief that was initially granted to the
appellant to file his or her brief. The time to file a reply brief
commences from the date upon which the appellant's brief was due, as
originally set or extended by the Board. The Board, upon written motion,
may extend the period for filing a brief or a reply brief for up to 90
days for good cause shown. In its discretion, the Board may consider a
brief that has been filed out of time. All briefs, filings, and motions
filed in conjunction with an appeal shall include proof of service on
the opposing party.
(2) Appeal from decision of a Service officer. Briefs in support of
or in opposition to an appeal from a decision of a Service officer shall
be filed directly with the office of the Service having administrative
control over the file in accordance with a briefing schedule set by that
office. The alien shall be provided 30 days in which to file a brief,
unless a shorter period is specified by the Service officer from whose
decision the appeal is taken. The Service shall have the same period of
time in which to file a reply brief that was initially granted to the
alien to file his or her brief. The time to file a reply brief commences
from the date upon which the alien's brief was due, as originally set or
extended. Upon written request of the alien, the Service officer from
whose decision the appeal is taken or the Board may extend the period
for filing a brief for good cause shown. The Board may authorize the
filing of briefs directly with the Board. In its discretion, the Board
may consider a brief that has been filed out of time. All briefs and
other documents filed in conjunction with an appeal, unless filed by an
alien directly with a Service office, shall include proof of service on
the opposing party.
(d) Effect of certification. The certification of a case, as
provided in this part, shall not relieve the party affected from
compliance with the provisions of this section in the event that he or
she is entitled and desires to appeal from an initial decision, nor
shall it serve to extend the time specified in the applicable parts of
this chapter for the taking of an appeal.
(e) Effect of departure from the United States. Departure from the
United States of a person who is the subject of deportation proceedings,
prior to the taking of an appeal from a decision in his or her case,
shall constitute a waiver of his or her right to appeal.
[61 FR 18906, Apr. 29, 1996]
Sec. 3.4 Withdrawal of appeal.
In any case in which an appeal has been taken, the party taking the
appeal may file a written withdrawal thereof with the office at which
the notice of appeal was filed. If the record in the case has not been
forwarded to the Board on appeal in accordance with Sec. 3.5, the
decision made in the case shall be final to the same extent as if no
appeal had been taken. If the record has been forwarded on appeal, the
withdrawal of the appeal shall be forwarded to the Board and, if no
decision in the case has been made on the appeal, the record shall be
returned and the initial decision shall be final to the same extent as
if no appeal had been taken. If a decision on the appeal has been made
by the Board in the case, further action shall be taken in accordance
therewith. Departure from the United States of a person who is the
subject of deportation proceedings subsequent to the taking of an
appeal, but prior to a decision thereon, shall constitute a withdrawal
of the appeal, and the initial decision in the case shall be final to
the same extent as though no appeal had been taken.
[61 FR 18907, Apr. 29, 1996]
Sec. 3.5 Forwarding of record on appeal.
(a) Appeal from decision of an Immigration Judge. If an appeal is
taken from a decision of an Immigration Judge, the record of proceeding
shall be forwarded to the Board upon the request or the order of the
Board.
(b) Appeal from decision of a Service officer. If an appeal is taken
from a decision of a Service officer, the record of proceeding shall be
forwarded to the Board by the Service officer promptly upon receipt of
the briefs of the parties, or upon expiration of the time allowed for
the submission of such briefs. A Service officer need not forward such
an appeal to the Board, but may reopen and reconsider any decision made
by the officer if the new decision will
[[Page 18]]
grant the benefit that has been requested in the appeal. The new
decision must be served on the appealing party within 45 days of receipt
of any briefs or upon expiration of the time allowed for the submission
of any briefs. If the new decision is not served within these time
limits or the appealing party does not agree that the new decision
disposes of the matter, the record of proceeding shall be immediately
forwarded to the Board.
[61 FR 18907, Apr. 29, 1996]
Sec. 3.6 Stay of execution of decision.
(a) Except as provided under Sec. 242.2(d) of this chapter and
paragraph (b) of this section, the decision in any proceeding under this
chapter from which an appeal to the Board may be taken shall not be
executed during the time allowed for the filing of an appeal unless a
waiver of the right to appeal is filed, nor shall such decision be
executed while an appeal is pending or while a case is before the Board
by way of certification.
(b) The provisions of paragraph (a) of this section shall not apply
to an order of an Immigration Judge under Sec. 3.23 or Sec. 242.22 of
this chapter denying a motion to reopen or reconsider or to stay
deportation, except where such order expressly grants a stay or where
the motion was filed pursuant to the provisions of Sec. 3.23(b)(4)(iii).
The Board may, in its discretion, stay deportation while an appeal is
pending from any such order if no stay has been granted by the
Immigration Judge or a Service officer.
[61 FR 18907, Apr. 29, 1996; 61 FR 21065, May 9, 1996]
Sec. 3.7 Notice of certification.
Whenever, in accordance with the provisions of Sec. 3.1(c), a case
is certified to the Board, the alien or other party affected shall be
given notice of certification. An Immigration Judge or Service officer
may certify a case only after an initial decision has been made and
before an appeal has been taken. If it is known at the time the initial
decision is rendered that the case will be certified, the notice of
certification shall be included in such decision and no further notice
of certification shall be required. If it is not known until after the
initial decision is rendered that the case will be certified, the office
of the Service or the Immigration Court having administrative control
over the record of proceeding shall cause a Notice of Certification to
be served upon the parties. In either case, the notice shall inform the
parties that the case is required to be certified to the Board and that
they have the right to make representations before the Board, including
the making of a request for oral argument and the submission of a brief.
If either party desires to submit a brief, it shall be submitted to the
office of the Service or the Immigration Court having administrative
control over the record of proceeding for transmittal to the Board
within the time prescribed in Sec. 3.3(c). The case shall be certified
and forwarded to the Board by the office of the Service or Immigration
Court having administrative jurisdiction over the case upon receipt of
the brief, or upon the expiration of the time within which the brief may
be submitted, or upon receipt of a written waiver of the right to submit
a brief. The Board in its discretion may elect to accept for review or
not accept for review any such certified case. If the Board declines to
accept a certified case for review, the underlying decision shall become
final on the date the Board declined to accept the case.
[61 FR 18907, Apr. 29, 1996]
Sec. 3.8 Fees.
(a) Appeal from decision of an Immigration Judge or motion within
the jurisdiction of the Board. Except as provided in paragraph (c) of
this section or when filed by an officer of the Service, a Notice of
Appeal to the Board of Immigration Appeals of Decision of Immigration
Judge (Form EOIR-26) filed pursuant to Sec. 3.3(a), or a motion related
to Immigration Judge proceedings that is within the jurisdiction of the
Board and is filed directly with the Board pursuant to Sec. 3.2(g),
shall be accompanied by the fee specified in applicable provisions of
Sec. 103.7(b)(1) of this chapter. Fees shall be paid by check or money
order payable to the ``United States Department of Justice.''
Remittances must be drawn on a bank or other institution located in the
United
[[Page 19]]
States and be payable in United States currency. A remittance shall not
satisfy the fee requirements of this section if the remittance is found
uncollectible.
(b) Appeal from decision of a Service officer or motion within the
jurisdiction of the Board. Except as provided in paragraph (c) of this
section, a Notice of Appeal to the Board of Immigration Appeals of
Decision of District Director (Form EOIR-29), or a motion related to
such a case filed under this part by any person other than an officer of
the Service, filed directly with the Service shall be accompanied by the
appropriate fee specified, and remitted in accordance with the
provisions of Sec. 103.7 of this chapter.
(c) Waiver of fees. The Board may, in its discretion, authorize the
prosecution of any appeal or any motion over which the Board has
jurisdiction without payment of the required fee. In any case in which
an alien or other party affected is unable to pay the fee fixed for an
appeal or motion, he or she shall file with the Notice of Appeal (Form
EOIR-26 or Form EOIR-29) or motion, an Appeal Fee Waiver Request, (Form
EOIR-26A). If the request does not establish the inability to pay the
required fee, the appeal or motion will not be deemed properly filed.
[61 FR 18907, Apr. 29, 1996]
Subpart B--Office of the Chief Immigration Judge
Sec. 3.9 Chief Immigration Judge.
The Chief Immigration Judge shall be reponsible for the general
supervision, direction and scheduling of the Immigration Judges in the
conduct of the various programs assigned to them. This shall include:
(a) Establishment of operational policies;
(b) Evaluation of the performance of Immigration Judge offices,
making appropriate reports and inspections and taking corrective action
where indicated.
[48 FR 8040, Feb. 25, 1983]
Sec. 3.10 Immigration Judges.
Immigration Judges shall exercise the powers and duties in this
chapter regarding the conduct of exclusion and deportation hearings and
such other proceedings which the Attorney General may assign them to
conduct.
[48 FR 8040, Feb. 25, 1983]
Sec. 3.11 Administrative control offices.
Certain Immigration Judge offices are administrative control
offices. These offices create and maintain Record of Proceedings for
assigned geographical areas. All documents and correspondence pertaining
to a Record of Proceeding shall be filed with the Immigration Court
having administrative control over that Record of Proceeding and shall
not be filed with any other Immigration Court. A list of administrative
control offices with their assigned geographical areas will be made
available to the public at any Immigration Court.
[52 FR 2942, Jan. 29, 1987, as amended at 60 FR 34090, June 30, 1995]
Subpart C--Rules of Procedure for Immigration Judge Proceedings
Source: 52 FR 2936, Jan. 29, 1987, unless otherwise noted.
Sec. 3.12 Scope of rules.
These rules are promulgated to assist in the expeditious, fair, and
proper resolution of matters coming before Immigration Judges. Except
where specifically stated, these rules apply to all matters before
Immigration Judges, including, but not limited to, deportation,
exclusion, bond, rescission, departure control proceedings, and
disciplinary proceedings under 8 CFR 292.3.
[57 FR 11571, Apr. 6, 1992]
Sec. 3.13 Definitions.
As used in this subpart:
Administrative Control means custodial responsibility for the Record
of Proceeding as specified in 8 CFR 3.11.
Charging document means the written instrument which initiates a
proceeding before an Immigration Judge including an Order to Show Cause,
a Notice to Applicant for Admission Detained for Hearing before
Immigration Judge, and a Notice of Intention to Rescind and Request for
hearing by Alien.
[[Page 20]]
Filing means the actual receipt of a document by the appropriate
Immigration Court.
Service means physically presenting or mailing a document to the
appropriate party or parties; however, if the document to be served is
the Order to Show Cause or the Notice of Deportation Hearing, such
document shall be served in person to the alien, or by certified mail to
the alien or the alien's attorney.
[57 FR 11571, Apr. 6, 1992, as amended at 59 FR 1899, Jan. 13, 1994; 60
FR 34089, June 30, 1995]
Sec. 3.14 Jurisdiction and commencement of proceedings.
(a) Jurisdiction vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the Immigration Court
by the Service, except for bond proceedings as provided in 8 CFR 3.19
and 8 CFR 242.2(b). When a charging document is filed, a certificate of
service that indicates the Immigration Court in which the charging
document is filed must be served upon the opposing party pursuant to 8
CFR 3.32.
(b) When an Immigration Judge has jurisdiction over an underlying
proceeding, sole jurisdiction over applications for asylum shall lie
with the Immigration Judge.
[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995]
Sec. 3.15 Contents of the order to show cause and notification of change of address.
(a) In the Order to Show Cause, the Service shall provide the
following administrative information to the Executive Office for
Immigration Review. Omission of any of these items shall not provide the
alien with any substantive or procedural rights:
(1) The alien's names and any known aliases;
(2) The alien's address;
(3) The alien's registration number, with any lead alien
registration number with which the alien is associated;
(4) The alien's alleged nationality and citizenship;
(5) The language that the alien understands;
(b) The Order to Show Cause must also include the following
information:
(1) The nature of the proceedings against the alien;
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions
alleged to have been violated;
(5) Notice that the alien may be represented, at no cost to the
government, by counsel or other representative authorized to appear
pursuant to 8 CFR 292.1;
(6) The address of the Immigration Court where the Service will file
the Order to Show Cause; and
(7) A statement that the alien must advise the Immigration Court
having administrative control over the Record of Proceeding of his or
her current address and telephone number and a statement that failure to
provide such information may result in an in absentia hearing in
accordance with Sec. 3.26.
(c) Address and telephone number. (1) If the alien's address is not
provided on the Order to Show Cause, or if the address on the Order is
incorrect, the alien must provide to the Immigration Court where the
Order to Show Cause has been filed, within five days of service of the
Order, a written notice of an address and telephone number at which the
alien can be contacted, on Form EOIR-33, change of address form.
(2) Within five working days of any change of address, the alien
must provide written notice of the change of address on Form EOIR-33,
change of address form to the Immigration Court where the Order to Show
Cause has been filed, or if venue has been changed, to the Immigration
Court to which venue has been changed.
(3) The information required by paragraphs (c)(1) and (c)(2) of this
section shall include, where applicable, the alien's name, alien
registration number, the old address and telephone number, the new
address and telephone number, and the effective date of change.
[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995]
[[Page 21]]
Sec. 3.16 Representation.
(a) The government may be represented in proceedings before an
Immigration Judge.
(b) The respondent/applicant may be represented in proceedings
before an Immigration Judge by an attorney or other representative of
his or her choice in accordance with 8 CFR part 292, at no expense to
the government.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]
Sec. 3.17 Appearances.
(a) In any proceeding before an Immigration Judge in which the
respondent/applicant is represented, the attorney or representative
shall file a Notice of Appearance on the appropriate EOIR form with the
Immigration Court and shall serve a copy of the Notice of Appearance on
the Service as required by 8 CFR 3.32(a). Such Notice of Appearance must
be filed and served even if a separate Notice of Appearance(s) has
previously been filed with the Service for appearance(s) before the
Service.
(b) Withdrawal or substitution of an attorney or representative may
be permitted by an Immigration Judge during proceedings only upon oral
or written motion submitted without fee.
[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995]
Sec. 3.18 Scheduling of cases.
All cases shall be scheduled by the Immigration Court. The
Immigration Court shall be responsible for providing notice of the time,
place, and date of the hearing to the government and respondent/
applicant.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992,
as amended at 60 FR 34089, June 30, 1995]
Sec. 3.19 Custody/bond.
(a) Custody and bond determinations made by the service pursuant to
part 242 of this chapter may be reviewed by an Immigration Judge
pursuant to part 242 of this chapter.
(b) Application for an initial bond redetermination by a respondent,
or his or her attorney or representative, may be made orally, in
writing, or, at the discretion of the Immigration Judge, by telephone.
(c) Applications for the exercise of authority to review bond
determinations shall be made to one of the following offices, in the
designated order:
(1) If the respondent is detained, to the Immigration Court having
jurisdiction over the place of detention;
(2) To the Immigration Court having administrative control over the
case; or
(3) To the Office of the Chief Immigration Judge for designation of
an appropriate Immigration Court.
(d) Consideration by the Immigration Judge of an application or
request of a respondent regarding custody or bond under this section
shall be separate and apart from, and shall form no part of, any
deportation hearing or proceeding. The determination of the Immigration
Judge as to custody status or bond may be based upon any information
that is available to the Immigration Judge or that is presented to him
or her by the alien or the Service.
(e) After an initial bond redetermination, a request for a
subsequent bond redetermination shall be made in writing and shall be
considered only upon a showing that the alien's circumstances have
changed materially since the prior bond redetermination.
(f) The determination of an Immigration Judge with respect to
custody status or bond redetermination shall be entered on the
appropriate form at the time such decision is made and the parties shall
be informed orally or in writing of the reasons for the decision. An
appeal from the determination by an Immigration Judge may be taken to
the Board of Immigration Appeals pursuant to Sec. 3.38.
(g) While any proceeding is pending before the Executive Office for
Immigration Review, the Service shall immediately advise the Immigration
Court having administrative control over the Record of Proceeding of a
change in the respondent/applicant's custody location or of release from
Service custody, or subsequent taking into Service custody, of a
respondent/applicant. This notification shall be in writing and shall
state the effective date of the change in custody location or status,
and the respondent/applicant's current fixed street address, including
zip code.
[[Page 22]]
(h) An alien in deportation proceedings who has been convicted of an
aggravated felony shall not be released from custody on bond or other
conditions. Nevertheless, an alien who has been lawfully admitted to the
United States and who establishes to the satisfaction of the Immigration
Judge that the alien is not a threat to the community and that the alien
is likely to appear at any scheduled hearings, may be released on bond
or other conditions designed to guarantee such appearance.
[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995]
Sec. 3.20 Change of venue.
(a) Venue shall lie at the Immigration Court where the charging
document is filed pursuant to 8 CFR 3.14.
(b) The Immigration Judge, for good cause, may change venue only
upon motion by one of the parties, after the charging document has been
filed with the Immigration Court. The Immigration Judge may grant a
change of venue only after the other party has been given notice and an
opportunity to respond to the motion to change venue.
(c) No change of venue shall be granted without identification of a
fixed street address, including city, state and ZIP code, where the
respondent/applicant may be reached for further hearing notification.
[57 FR 11572, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995]
Sec. 3.21 Pre-hearing conferences and statement.
(a) Pre-hearing conferences may be scheduled at the discretion of
the Immigration Judge. The conference may be held to narrow issues, to
obtain stipulations between the parties, to exchange information
voluntarily, and otherwise to simplify and organize the proceeding.
(b) The Immigration Judge may order any party to file a pre-hearing
statement of position that may include, but is not limited to: A
statement of facts to which both parties have stipulated, together with
a statement that the parties have communicated in good faith to
stipulate to the fullest extent possible; a list of proposed witnesses
and what they will establish; a list of exhibits, copies of exhibits to
be introduced, and a statement of the reason for their introduction; the
estimated time required to present the case; and, a statement of
unresolved issues involved in the proceedings.
(c) If submission of a pre-hearing statement is ordered under
paragraph (b) of this section, an Immigration Judge also may require
both parties, in writing prior to the hearing, to make any evidentiary
objections regarding matters contained in the pre-hearing statement. If
objections in writing are required but not received by the date for
receipt set by the Immigration Judge, admission of all evidence
described in the pre-hearing statement shall be deemed unopposed.
[57 FR 11572, Apr. 6, 1992]
Sec. 3.22 Interpreters.
Any person acting as an interpreter in a hearing shall swear or
affirm to interpret and translate accurately, unless the interpreter is
an employee of the United States Government, in which event no such oath
or affirmation shall be required.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]
Sec. 3.23 Motions.
(a) Pre-decision motions. Unless otherwise permitted by the
Immigration Judge, motions submitted prior to the final order of an
Immigration Judge shall be in writing and shall state, with
particularity the grounds therefore, the relief sought, and the
jurisdiction. The Immigration Judge may set and extend time limits for
the making of motions and replies thereto. A motion shall be deemed
unopposed unless timely response is made.
(b) Reopening/Reconsideration. (1) The Immigration Judge may upon
his or her own motion, or upon motion of the trial attorney or the
alien, reopen or reconsider any case in which he or she has made a
decision, unless jurisdiction in the case is vested in the Board of
Immigration Appeals under part 3 of this chapter. If the Immigration
Judge is unavailable or unable to adjudicate
[[Page 23]]
the motion to reopen, the Chief Immigration Judge or his delegate shall
reassign such motion to another Immigration Judge. Motions to reopen or
reconsider a decision of the Immigration Judge must filed with the
Immigration Court having administrative control over the record of
proceeding. Such motions shall comply with applicable provisions of 8
CFR 208.4, 208.19, and 242.22. The Immigration Judge may set and extend
time limits for replies to motions to reopen or reconsider. A motion
shall be deemed unopposed unless timely response is made. A motion to
reconsider shall state the reasons for the motion and shall be supported
by pertinent authority. Any motion to reopen for the purpose of acting
on an application for relief must be accompanied by the appropriate
application for relief and all supporting documents.
(2) Upon request by an alien in conjunction with a motion to reopen
or a motion to reconsider, the Immigration Judge may stay the execution
of a final order of deportation or exclusion. The filing of a motion to
reopen pursuant to the provisions of paragraph (b)(4)(iii) of this
section shall stay the deportation of the alien pending decision on the
motion and the adjudication of any properly filed administrative appeal.
(3) A motion to reconsider must be filed within 30 days after the
date on which the decision for which reconsideration is being sought was
rendered, or on or before July 31, 1996, whichever is later. A party may
file only one motion to reconsider any given decision and may not seek
reconsideration of a decision denying a previous motion to reconsider.
(4) A motion to reopen will not be granted unless the Immigration
Judge is satisfied that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the
hearing. A motion to reopen will not be granted for the purpose of
providing the alien an opportunity to apply for any form of
discretionary relief if the alien's rights to make such application were
fully explained to him or her by the Immigration Judge and he or she was
afforded an opportunity to apply at the hearing, unless the relief is
sought on the basis of circumstances that have arisen subsequent to the
hearing. Subject to the other requirements and restrictions of this
section, and notwithstanding the provisions in 1.1(p) of this chapter, a
motion to reopen proceedings for consideration or further consideration
of an application for relief under section 212(c) of the Act (8 U.S.C.
1182(c)) may be granted if the alien demonstrates that he or she was
statutorily eligible for such relief prior to the entry of the
administratively final order of deportation.
(i) Except as provided in paragraph (b)(4)(ii) of this section, a
party may file only one motion to reopen proceedings (whether before the
Board or the Immigration Judge) and that motion must be filed not later
than 90 after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened, or on or before
September 30, 1996, whichever is later.
(ii) The time and numerical limitations set forth in paragraph
(b)(4)(i) of this section shall not apply to a motion to reopen filed
pursuant to the provisions of paragraph (b)(4)(iii) of this section, or
to a motion to reopen proceedings to apply or reapply for asylum or for
withholding of deportation based on changed circumstances, which arise
subsequent to the conclusion of proceedings, in the country of
nationality or in the country to which deportation has been ordered, or
to a motion to reopen agreed upon by all parties and jointly filed.
(iii) A motion to reopen deportation proceedings to rescind an order
of deportation entered in absentia must be filed:
(A) Within 180 days after the date of the order of deportation. The
motion must demonstrate that the failure to appear was because of
exceptional circumstances beyond the control of the alien (e.g., serious
illness of the alien or death of an immediate relative of the alien, but
not including less compelling circumstances); or
(B) At any time if the alien demonstrates that the alien did not
receive notice in accordance with subsection 242B(a)(2) of the Act (8
U.S.C. 1252b(a)(2)) and notice was required pursuant to such subsection;
or the alien demonstrates that the alien was
[[Page 24]]
in federal or state custody and did not appear through no fault of the
alien.
(iv) A motion to reopen exclusion hearings on the basis that the
Immigration Judge improperly entered an order of exclusion in absentia
must be supported by evidence that the alien had reasonable cause for
his failure to appear.
[52 FR 2936, Jan. 29, 1987, as amended at 55 FR 30680, July 27, 1990.
Redesignated at 57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089,
June 30, 1995; 61 FR 18908, Apr. 29, 1996; 61 FR 19976, May 3, 1996; 61
FR 21228, May 9, 1996]
Sec. 3.24 Fees pertaining to matters within the jurisdiction of the Immigration Judge.
Unless waived by the Immigration Judge, any fee pertaining to a
matter within the jurisdiction of the Immigration Judge shall be
remitted in accordance with the provisions of Sec. 103.7 of this
chapter. Any such fee may be waived by the Immigration Judge upon a
showing that the respondent/applicant is incapable of paying the fees
because of indigency. A properly executed affidavit or unsworn
declaration made pursuant to 28 U.S.C. 1746 by the respondent/applicant
must accompany the request for waiver of fees and shall substantiate the
indigency of the respondent/application.
[61 FR 18908, Apr. 29, 1996]
Sec. 3.25 Waiver of presence of the parties.
(a) Good cause shown. The Immigration Judge may, for good cause,
waive the presence of a respondent/applicant at the hearing when the
alien is represented or when the alien is a minor child at least one of
whose parents or whose legal guardian is present. In addition, in
absentia hearings may be held pursuant to sections 1252(b) and 1252b(c)
of title 8, United States Code with or without representation.
(b) Stipulated request for order; waiver of hearing. Notwithstanding
any other provision of this chapter, upon the written request of the
respondent/applicant and upon concurrence of the government, the
Immigration Judge may conduct hearings in the absence of the parties and
enter an order of deportation or exclusion on the written record if the
Immigration Judge determines, upon a review of the charging document,
stipulation document, and supporting documents, if any, that a
represented respondent/applicant voluntarily, knowingly, and
intelligently entered into a stipulated request for an order of
deportation or exclusion. The stipulation document shall include:
(1) An admission that all factual allegations contained in the
charging document are true and correct as written;
(2) A concession of deportability or excludability as charged;
(3) A statement that the respondent/applicant makes no application
for relief from deportation or exclusion, including, but not limited to,
voluntary departure, asylum, adjustment of status, registry, de novo
review of a termination of conditional resident status, de novo review
of a denial or revocation of temporary protected status, relief under 8
U.S.C. 1182(c), suspension of deportation, or any other possible relief
under the Act;
(4) A designation of a country for deportation under 8 U.S.C.
1253(a);
(5) A concession to the introduction of the written statements of
the respondent/applicant as an exhibit to the record or proceedings;
(6) A statement that the attorney/representative has explained the
consequences of the stipulated request to the respondent/applicant and
that the respondent/applicant enters the request voluntarily, knowingly
and intelligently;
(7) A statement that the respondent/applicant will accept a written
order for his or her deportation or exclusion as a final disposition of
the proceedings; and
(8) A waiver of appeal of the written order of deportation or
exclusion.
The stipulated request and required waivers shall be signed on behalf of
the government and by both the respondent/applicant and his or her
attorney or other representative qualified under part 292 of this
chapter. The attorney or other representative shall file a Notice of
Appearance in accordance with Sec. 3.16(b) of this part.
(c) Telephonic or video electronic media hearing. An Immigration
Judge may conduct hearings via video electronic media or by telephonic
media in any proceeding under 8 U.S.C. 1226, 1252, or
[[Page 25]]
1256, except that contested full evidentiary hearings on the merits may
be conducted by telephonic media only with the consent of the alien.
[60 FR 26353, May 17, 1995]
Sec. 3.26 In absentia hearings.
(a) In any exclusion proceeding before an Immigration Judge in which
the applicant fails to appear, the Immigration Judge shall conduct an in
absentia hearing if the Immigration Judge is satisfied that notice of
the time and place of the proceeding was provided to the applicant on
the record at a prior hearing or by written notice to the applicant or
to the applicant's counsel of record on the charging document or at the
most recent address in the Record of Proceeding.
(b) In any deportation proceeding before an Immigration Judge in
which the respondent fails to appear, the Immigration Judge shall order
the respondent deported in absentia if: (1) The Service establishes by
clear, unequivocal and convincing evidence that the respondent is
deportable; and (2) the Immigration Judge is satisfied that written
notice of the time and place of the proceedings and written notice of
the consequences of failure to appear, as set forth in section 242B(c)
of the Act (8 U.S.C. 1252b(c)), were provided to the respondent in
person or were provided to the respondent or the respondent's counsel of
record, if any, by certified mail.
(c) Written notice to the respondent at the most recent address
contained in the Record of Proceeding shall be considered sufficient for
purposes of this section. If the respondent fails to provide his or her
address as required under Sec. 3.15(c), no written notice shall be
required for an Immigration Judge to proceed with an in absentia
hearing. This subsection shall not apply in the event that the
Immigration Judge waives the appearance of an alien under Sec. 3.25.
[59 FR 1899, Jan. 13, 1994]
Sec. 3.27 Public access to hearings.
All hearings, other than exclusion hearings, shall be open to the
public except that:
(a) Depending upon physical facilities, the Immigration Judge may
place reasonable limitations upon the number in attendance at any one
time with priority being given to the press over the general public;
(b) For the purpose of protecting witnesses, parties, or the public
interest, the Immigration Judge may limit attendance or hold a closed
hearing.
(c) In a proceeding before an Immigration Judge pursuant to section
216(c)(4) of the Act concerning an abused alien spouse or an abused
child, the Record of Proceeding and the hearing shall be closed to the
public, unless the abused alien spouse or abused child agrees that the
hearing and the Record of Proceeding shall be open to the public. In the
case of an abused child, the Immigration Judge may decide if the hearing
and Record of Proceeding shall be open.
[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571,
11572, Apr. 6, 1992]
Sec. 3.28 Recording equipment.
The only recording equipment permitted in the proceeding will be the
equipment used by the Immigration Judge to create the official record.
No other photographic, video, electronic, or similar recording device
will be permitted to record any part of the proceeding.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]
Sec. 3.29 Continuances.
The Immigration Judge may grant a motion for continuance for good
cause shown.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]
Sec. 3.30 Additional charges in deportation hearings.
At any time during the proceeding, additional or substituted charges
of deportability and/or factual allegations may be lodged by the Service
in writing. The respondent shall be served with a copy of these
additional charges and allegations and may be given a reasonable
continuance to respond thereto.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]
[[Page 26]]
Sec. 3.31 Filing documents and applications.
(a) All documents and applications that are to be considered in a
proceeding before an Immigration Judge must be filed with the
Immigration Court having administrative control over the Record of
Proceeding.
(b) Except as provided in 8 CFR 242.17(e), all documents or
applications requiring the payment of a fee must be accompanied by a fee
receipt from the Service or by an application for a waiver of fees
pursuant to 8 CFR 3.24. Except as provided in Sec. 3.8(a) and (c), any
fee relating to Immigration Judge proceedings shall be paid to, and
accepted by, any Service office authorized to accept fees for other
purposes pursuant to Sec. 103.7(a) of this chapter.
(c) The Immigration Judge may set and extend time limits for the
filing of applications and related documents and responses thereto, if
any. If an application or document is not filed within the time set by
the Immigration Judge, the opportunity to file that application or
document shall be deemed waived.
[57 FR 11572, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 61
FR 18908, Apr. 29, 1996; 61 FR 19976, May 3, 1996; 61 FR 21228, May 9,
1996; 61 FR 46374, Sept. 3, 1996]
Sec. 3.32 Service and size of documents.
(a) Except in in absentia hearings, a copy of all documents
(including proposed exhibits or applications) filed with or presented to
the Immigration Judge shall be simultaneously served by the presenting
party on the opposing party or parties. Such service shall be in person
or by first class mail to the most recent address contained in the
Record of Proceeding. A certification showing service on the opposing
party or parties on a date certain shall accompany any filing with the
Immigration Judge unless service is made on the record during the
hearing. Any documents or applications not containing such certification
will not be considered by the Immigration Judge unless service is made
on the record during a hearing.
(b) Unless otherwise permitted by the Immigration Judge, all written
material presented to Immigration Judges including offers of evidence,
correspondence, briefs, memoranda, or other documents must be submitted
on 8\1/2\" x 11" size paper. The Immigration Judge may require that
exhibits and other written material presented be indexed, paginated, and
that a table of contents be provided.
[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571,
11572, Apr. 6, 1992]
Sec. 3.33 Translation of documents.
Any foreign language document offered by a party in a proceeding
shall be accompanied by an English language translation and a
certification signed by the translator that must be printed legibly or
typed. Such certification must include a statement that the translator
is competent to translate the document, and that the translation is true
and accurate to the best of the translator's abilities.
[59 FR 1900, Jan. 13, 1994]
Sec. 3.34 Testimony.
Testimony of witnesses appearing at the hearing shall be under oath
or affirmation.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]
Sec. 3.35 Depositions.
(a) If an Immigration Judge is satisfied that a witness is not
reasonably available at the place of hearing and that said witness'
testimony or other evidence is essential, the Immigration Judge may
order the taking of deposition either at his or her own instance or upon
application of a party.
(b) Such order shall designate the official by whom the deposition
shall be taken, may prescribe and limit the content, scope, or manner of
taking the deposition, and may direct the production of documentary
evidence. The Immigration Judge may also issue a subpoena in the event
of the refusal or willful failure of a witness within the United States
to appear, give testimony, or produce documentary evidence after due
notice.
(c) The witness and all parties shall be notified as to the time and
place of the deposition by the official designated to conduct the
deposition.
[[Page 27]]
(d) Testimony shall be given under oath or affirmation and shall be
recorded verbatim.
(e) The official presiding at the taking of the deposition shall
note but not rule upon objections, and shall not comment on the
admissibility of evidence or on the credibility and demeanor of the
witness.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]
Sec. 3.36 Record of proceeding.
The Immigration Court shall create and control the Record of
Proceeding.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992,
as amended at 60 FR 34089, June 30, 1995]
Sec. 3.37 Decisions.
(a) A decision of the Immigration Judge may be rendered orally or in
writing. If the decision is oral, it shall be stated by the Immigration
Judge in the presence of the parties and a memorandum summarizing the
oral decision shall be served on the parties. If the decision is in
writing, it shall be served on the parties by first class mail to the
most recent address contained in the Record of Proceeding or by personal
service.
(b) A written copy of the decision will not be sent to an alien who
has failed to provide a written record of an address.
[57 FR 11573, Apr. 6, 1992, as amended at 59 FR 1900, Jan. 13, 1994]
Sec. 3.38 Appeals.
(a) Decisions of Immigration Judges may be appealed to the Board of
Immigration Appeals as authorized by 8 CFR 3.1(b).
(b) The Notice of Appeal to the Board of Immigration Appeals of
Decision of Immigration Judge (Form EOIR-26) shall be filed directly
with the Board of Immigration Appeals within 30 calendar days after the
stating of an Immigration Judge's oral decision or the mailing of an
Immigration Judge's written decision. If the final date for filing falls
on a Saturday, Sunday, or legal holiday, this appeal time shall be
extended to the next business day. A Notice of Appeal (Form EOIR-26) may
not be filed by any party who has waived appeal.
(c) The date of filing of the Notice of Appeal (Form EOIR-26) shall
be the date the Notice is received by the Board.
(d) A Notice of Appeal (Form EOIR-26) must be accompanied by the
appropriate fee or by an Appeal Fee Waiver Request (Form EOIR-26A). If
the fee is not paid or the Appeal Fee Waiver Request (Form EOIR-26A) is
not filed within the specified time period indicated in paragraph(b) of
this section, the appeal will not be deemed properly filed and the
decision of the Immigration Judge shall be final to the same extent as
though no appeal had been taken.
(e) Within five working days of any change of address, an alien must
provide written notice of the change of address on Form EOIR-33 to the
Board. Where a party is represented, the representative should also
provide to the Board written notice of any change in the
representative's business mailing address.
(f) Briefs may be filed by both parties pursuant to 8 CFR 3.3(c).
(g) In any proceeding before the Board wherein the respondent/
applicant is represented, the attorney or representative shall file a
notice of appearance on the appropriate form. Withdrawal or substitution
of an attorney or representative may be permitted by the Board during
proceedings only upon written motion submitted without fee.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992,
as amended at 60 FR 34089, June 30, 1995; 61 FR 18908, Apr. 29, 1996]
Sec. 3.39 Finality of decision.
Except when certified to the Board, the decision of the Immigration
Judge becomes final upon waiver of appeal or upon expiration of the time
to appeal if no appeal is taken whichever occurs first.
[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571,
11573, Apr. 6, 1992]
[[Page 28]]
Sec. 3.40 Local operating procedures.
An Immigration Court having administrative control over Records of
Proceedings may establish local operating procedures, provided that:
(a) Such operating procedure(s) shall not be inconsistent with any
provision of this chapter;
(b) A majority of the judges of the local Immigration Court shall
concur in writing therein; and
(c) The Chief Immigration Judge has approved the proposed operating
procedure(s) in writing.
[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992,
as amended at 60 FR 34090, June 30, 1995]
Sec. 3.41 Evidence of criminal conviction.
In any proceeding before an Immigration Judge,
(a) Any of the following documents or records shall be admissible as
evidence in proving a criminal conviction:
(1) A record of judgment and conviction;
(2) A record of plea, verdict and sentence;
(3) A docket entry from court records that indicates the existence
of a conviction;
(4) Minutes of a court proceeding or a transcript of a hearing that
indicates the existence of a conviction;
(5) An abstract of a record of conviction prepared by the court in
which the conviction was entered, or by a state official associated with
the state's repository of criminal justice records, that indicates the
following: The charge or section of law violated, the disposition of the
case, the existence and date of conviction, and the sentence;
(6) Any document or record prepared by, or under the direction of,
the court in which the conviction was entered that indicates the
existence of a conviction.
(b) Any document or record of the types specified in paragraph (a)
of this section may be submitted if it complies with the requirement of
Sec. 287.6(a) of this chapter, or a copy of any such document or record
may be submitted if it is attested in writing by an immigration officer
to be a true and correct copy of the original.
(c) Any record of conviction or abstract that has been submitted by
electronic means to the Service from a state or court shall be
admissible as evidence to prove a criminal conviction if it:
(1) Is certified by a state official associated with the state's
repository of criminal justice records as an official record from its
repository or by a court official from the court in which conviction was
entered as an official record from its repository. Such certification
may be by means of a computer-generated signature and statement of
authenticity; and,
(2) Is certified in writing by a Service official as having been
received electronically from the state's record repository or the
court's record repository.
(d) Any other evidence that reasonably indicates the existence of a
criminal conviction may be admissible as evidence thereof.
[58 FR 38953, July 21, 1993]
[[Page 29]]
SUBCHAPTER B--IMMIGRATION REGULATIONS
PART 100--STATEMENT OF ORGANIZATION--Table of Contents
Sec.
100.1 Introduction.
100.2 Organization and functions.
100.3 Places where, and methods whereby, information may be secured or
submittals or requests made.
100.4 Field Offices.
100.5 Regulations.
100.6 Rule making.
100.7 OMB control numbers assigned to information collections.
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Source: 32 FR 9616, July 4, 1967, unless otherwise noted.
Sec. 100.1 Introduction.
The following sections describe the organization of the Immigration
and Naturalization Service, including statements of delegations of final
authority, indicate the established places at which, and methods
whereby, the public may secure information, direct attention to the
regulations relating to the general course and method by which its
functions are channeled and determined, and to display OMB control
numbers assigned to the information collection requirements of the
Service. Part 103 of this chapter sets forth the procedures governing
the availability of Service opinions, orders, and records.
[48 FR 37201, Aug. 17, 1983]
Sec. 100.2 Organization and functions.
(a) Office of the Commissioner. The Attorney General has delegated
to the Commissioner, the principal officer of the Immigration and
Naturalization Service, authority to administer and enforce the
Immigration and Nationality Act and all other laws relating to
immigration, naturalization, and nationality as prescribed and limited
by 28 CFR 0.105.
(1) Office of the General Counsel. Headed by the General Counsel,
the office provides legal advice to the Commissioner, the Deputy
Commissioner, and staff; prepares legislative reports; assists in
litigation; prepares briefs and other legal memoranda when necessary;
directs the activities of the regional counsel; oversees the
professional activities of all Service attorneys assigned to field
offices; and, makes recommendations on all personnel matters involving
Service attorneys.
(2) Office of Congressional Relations. Headed by the Director of
Congressional Relations, the office is responsible for establishing and
maintaining effective liaison with the Congress, Department of Justice,
and other agencies on such matters as bills, mark-ups, hearings, and
Congressional inquiries.
(3) Office of Public Affairs. Headed by the Director of Public
Affairs, the office is responsible for establishing and maintaining
public affairs policy, serving as liaison with various constituent
communities (intergovernmental, public, news organization, etc.) to
communicate Service initiatives, such as naturalization and employer
education, and producing public information products.
(4) Office of Internal Audit. Headed by the Director of Internal
Audit, the office promotes economy, efficiency, and effectiveness within
the Service by managing the Service's systems for resolving alleged
mismanagement and misconduct by Service employees; reviewing and
evaluating the efficiency and effectiveness of Service operations and
programs; collecting and analyzing data to identify patterns of
deficiencies or other weaknesses warranting investigative or audit
follow-up; making recommendations on disciplinary policies and
procedures of the Service; overseeing Service systems to eliminate
fraud, waste, and abuse in the workplace; and acting as the Service's
liaison with outside audit/inspection agencies. These duties are
executed in coordination with other components of the Service and other
Department of Justice components.
(b) Office of the Deputy Commissioner. Headed by the Deputy
Commissioner, the office is authorized to exercise all
[[Page 30]]
power and authority of the Commissioner unless any such power or
authority is required by law to be exercised by the Commissioner
personally. The Deputy Commissioner advises and assists the Commissioner
in formulating and implementing Service policies and programs, and
provides supervision and direction to all organizational units of the
Service. The Deputy Commissioner also performs such other duties as may
be assigned from time-to-time by the Commissioner. In addition, the
Deputy Commissioner supervises the four Executive Associate
Commissioners for Programs, Field Operations, Policy and Planning, and
Management.
(c) Office of the Executive Associate Commissioner for Programs--(1)
General. (i) Headed by the Executive Associate Commissioner for
Programs, the office is responsible for policy development and review as
well as integration of the Service's enforcement and examinations
programs. This office has primary responsibility for the planning,
oversight, and advancement of programs engaged in interpretation of the
immigration and nationality laws and the development of regulations to
assist in activities, including:
(A) The granting of benefits and privileges to those qualified to
receive them;
(B) Withholding of benefits from those ineligible;
(C) Control of the borders and prevention of illegal entry into the
United States;
(D) Detection, apprehension, detention, and removal of illegal
aliens; and
(E) Enforcement of employer sanctions and other provisions of
immigration-related law.
(ii) In addition to overseeing enforcement and examination policy
matters, the Office of Programs is also responsible for immigration
records. The Executive Associate Commissioner for Programs promulgates
policy, provides direction and supervises the activities of the Offices
of Enforcement and Examinations.
(2) Office of Enforcement. Headed by the Associate Commissioner for
Enforcement, the office is responsible for the planning, oversight, and
advancement of enforcement programs engaged in interpretation of the
immigration and nationality laws, and the development of Service
policies to assist enforcement activities. The Associate Commissioner
for Enforcement directly supervises the Headquarters:
(i) Border Patrol Division;
(ii) Investigations Division;
(iii) Detention and Deportation Division;
(iv) Intelligence Division; and
(v) Asset Forfeiture Office.
(3) Office of Examinations. Headed by the Associate Commissioner for
Examinations, the office is responsible for the planning, oversight, and
advancement of examinations programs engaged in interpretation of the
immigration and nationality laws, and the development of Service
policies to assist examinations activities. The Office of Examinations
is also responsible for all district and service center records and all
records operations, except records policy. The Associate Commissioner
for Examinations directly supervises the Headquarters:
(i) Adjudications and Nationality Division;
(ii) Inspections Division;
(iii) Service Center Operations Division;
(iv) Records Division; and
(v) Administrative Appeals Office.
(d) Office of the Executive Associate Commissioner for Field
Operations--(1) General. (i) Headed by the Executive Associate
Commissioner for Field Operations, the office is responsible for
implementing policies related to the Service's field operations. This
office has primary responsibility for oversight and coordination of all
field operations relating to the administration of immigration law,
including:
(A) The granting of benefits and privileges to those qualified to
receive them;
(B) Withholding of benefits from those ineligible;
(C) Control of the borders and prevention of illegal entry into the
United States;
(D) Detection, apprehension, detention, and removal of illegal
aliens;
(E) Enforcement of employer sanctions and other provisions of
immigration-related law; and
(F) Refugee processing, adjudication of relative applications/
petitions filed
[[Page 31]]
by citizens and legal permanent residents, and overseas deterrence of
alien smuggling and fraud activities.
(ii) The Executive Associate Commissioner for Field Operations
provides direction to, and supervision of, the three Regional Directors
(Eastern, Central, and Western), and the Director, International
Affairs.
(2) Offices of the Regional Directors. (i) General. Headed by
regional directors, these offices are responsible for directing all
aspects of the Service's field operations within their assigned
geographic areas of activity. The regional directors provide general
guidance and supervision to:
(A) Service districts within their regions; and
(B) Border Patrol sectors within their regions.
(ii) Service districts. Headed by district directors, who may be
assisted by deputy district directors, these offices are responsible for
the administration and enforcement of the Act and all other laws
relating to immigration and naturalization within their assigned
geographic areas of activity, unless any such power and authority is
either required to be exercised by higher authority or has been
exclusively delegated to another immigration official or class of
immigration officer. District directors are subject to the general
supervision and direction of their respective regional director, except
that district directors outside of the United States are subject to the
general supervision and direction of the Director for International
Affairs.
(iii) Border Patrol Sectors. Headed by chief patrol agents who may
be assisted by deputy chief patrol agents, these offices are responsible
for the enforcement of the Act and all other laws relating to
immigration and naturalization within their assigned geographic areas of
activity, unless any such power and authority is required to be
exercised by higher authority or has been exclusively delegated to
another immigration official or class of immigration officer. Chief
patrol agents are subject to the general supervision and direction of
their respective regional director.
(3) Office of International Affairs. Headed by a Director of
International Affairs, the office is responsible for ensuring that the
foreign affairs mission of the Service reflects a full partnership
between the Service, the Executive Branch agencies, and the Congress,
the administration of U.S. immigration law on foreign soil, and the U.S.
domestic asylum program. The Director for International Affairs provides
general guidance and supervision to:
(i) Foreign districts;
(ii) Asylum Division; and
(iii) Refugee and Parole Division.
(e) Office of the Executive Associate Commissioner for Policy and
Planning. Headed by the Executive Associate Commissioner for Policy and
Planning, the office is responsible for directing and coordinating
Servicewide policy and planning activities, and conducting analysis of
these as well as other issues which cross program lines or have national
implications.
(f) Office of the Executive Associate Commissioner for Management--
(1) General. Headed by the Executive Associate Commissioner for
Management, the office is responsible for planning, developing,
directing, coordinating, and reporting on Service management programs
and activities. The Executive Associate Commissioner for Management
promulgates Servicewide administrative policies and coordinates all
financial, human resource, administrative, and information resources
management functions. The Executive Associate Commissioner for
Management provides direction to, and supervision of, the:
(i) Office of Security;
(ii) Office of Equal Employment Opportunity;
(iii) Office of Human Resources and Administration;
(iv) Office of Finance;
(v) Office of Information Resources Management;
(vi) Office of Files and Forms Management; and
(vii) Administrative Centers.
(2) Office of Security. Headed by the Director of Security, the
office is responsible for all security programs of the Service,
including those related to personnel, physical, information and
documents, automated data processing, telecommunications, and emergency
preparedness planning.
[[Page 32]]
(3) Office of Equal Employment Opportunity. Headed by the Director
of Equal Employment Opportunity, the office is responsible for
developing, planning, directing, managing, and coordinating equal
employment opportunity programs and evaluating programs relating to the
civil rights of all employees and applicants to ensure compliance with
the law. This office also coordinates the affirmative employment and
discrimination complaints programs of the Service and those of the
Department of Justice as they apply to the Service.
(4) Office of Human Resources and Administration. Headed by the
Associate Commissioner for Human Resources and Administration, the
office is responsible for planning, developing, directing, managing, and
coordinating the personnel, career development, contracting, facilities,
and administrative support programs of the Service. The Associate
Commissioner for Human Resources and Administration directly supervises
the:
(i) Human Resources and Development Division; and
(ii) Administration Division.
(5) Office of Finance. Headed by the Associate Commissioner for
Finance, the office is responsible for planning, developing, directing,
managing, coordinating, and reporting on, the budget, accounting, and
resource management programs of the Service. The Associate Commissioner
for Finance directly supervises the:
(i) Budget Division; and
(ii) Financial Management Division.
(6) Office of Information Resources Management. Headed by the
Associate Commissioner for Information Resources Management, the office
is responsible for planning, developing, directing, managing,
coordinating, and reporting on Service information management programs
and activities including automated data processing, telecommunications,
and radio communications. The Associate Commissioner for Information
Resources Management directly supervises the:
(i) Data Systems Division; and
(ii) Systems Integration Division.
(7) Office of Files and Forms Management. Headed by the Director of
Files and Forms Management, the office is responsible for the
administration of records policy, and correspondence files. The Director
of Files and Forms Management directly supervises the:
(i) National Records Center;
(ii) National Forms Center;
(iii) Systematic Alien Verification Entitlement (SAVE) Program; and
(iv) Centralized Freedom of Information Act and Privacy Act (FOIA/
PA) program.
(8) Office of the Administrative Center. Headed by directors, these
offices are responsible for administrative servicing, monitoring, and
liaison functions within their respective geographic boundaries. The
directors direct and supervise regional staff who administer human
resources, administrative, information systems, security, and financial
functions.
[59 FR 60068, Nov. 22, 1994]
Sec. 100.3 Places where, and methods whereby, information may be secured or submittals or requests made.
Any person desiring information relative to a matter handled by the
Immigration and Naturalization Service, or any person desiring to make a
submittal or request in connection with such a matter should communicate
either orally or in writing with a district headquarters office or
suboffice of the Service. If the office receiving the communication does
not have jurisdiction to handle the matter, the communication, if
written, will be forwarded to the proper office of the Service or, if
oral, the person will be advised how to proceed. When the submittal or
request consists of a formal application for one of the documents,
privileges, or other benefits provided for in the laws administered by
the Service or the regulations implementing those laws, the instructions
on the form as to preparation and place of submission should be
followed. In such cases, the provisions of this chapter dealing with the
particular type of application may be consulted for regulatory
provisions.
Sec. 100.4 Field Offices.
The territory within which officials of the Immigration and
Naturalization
[[Page 33]]
Service are located is divided into regions, districts, suboffices, and
border patrol sectors as follows:
(a) Regional Offices. The Eastern Regional Office, located in
Burlington, Vermont, has jurisdiction over districts 2, 3, 4, 5, 6, 7,
8, 21, 22, 24, 25, 26, 27, and 28; border patrol sectors 1, 2, 3, 4, 5,
20, and 21. The Central Regional Office, located in Dallas, Texas, has
jurisdiction over districts 9, 10, 11, 14, 15, 19, 20, 29, 30, 38, and
40; border patrol sectors 6, 7, 15, 16, 17, 18, and 19. The Western
Regional Office, located in Laguna Niguel, California, has jurisdiction
over districts 12, 13, 16, 17, 18, 31, 32, and 39; and border patrol
sectors 8, 9, 10, 11, 12, 13, and 14.
(b) District Offices. The following districts, which are designated
by numbers, have fixed headquarters and are divided as follows:
(1) [Reserved]
(2) Boston, Massachusetts. The district office in Boston,
Massachusetts, has jurisdiction over the States of Connecticut, New
Hampshire (except the Port-of-Entry at Pittsburg, New Hampshire),
Massachusetts, and Rhode Island.
(3) New York City, New York. The district office in New York City,
New York, has jurisdiction over the following counties in the State of
New York; Bronx, Dutchess, Kings, Nassau, New York, Orange, Putnam,
Queens, Richmond, Rockland, Suffolk, Sullivan, Ulster, and Westchester;
also, over the United States immigration office located in Hamilton,
Bermuda.
(4) Philadelphia, Pennsylvania. The district office in Philadelphia,
Pennsylvania, has jurisdiction over the States of Pennsylvania,
Delaware, and West Virginia.
(5) Baltimore, Maryland. The district office in Baltimore, Maryland,
has jurisdiction over the State of Maryland, except Andrews Air Force
Base Port-of-Entry.
(6) Miami, Florida. The district office in Miami, Florida, has
jurisdiction over the State of Florida, and the United States
immigration offices located in Freeport and Nassau, Bahamas.
(7) Buffalo, New York. The district office in Buffalo, New York, has
jurisdiction over the State of New York except the part within the
jurisdiction of District No. 3; also, over the United States immigration
office at Toronto, Ontario, Canada; and the office located at Montreal,
Quebec, Canada.
(8) Detroit, Michigan. The district office in Detroit, Michigan, has
jurisdiction over the State of Michigan.
(9) Chicago, Illinois. The district office in Chicago, Illinois, has
jurisdiction over the States of Illinois, Indiana, and Wisconsin.
(10) St. Paul, Minnesota. The district office located in
Bloomington, Minnesota, has jurisdiction over the States of Minnesota,
North Dakota, and South Dakota; also, over the United States immigration
office in the Province of Manitoba, Canada.
(11) Kansas City, Missouri. The district office in Kansas City,
Missouri, has jurisdiction over the States of Kansas and Missouri.
(12) Seattle, Washington. The district office in Seattle,
Washington, has jurisdiction over the State of Washington and over the
following counties in the State of Idaho: Benewah, Bonner, Boundary,
Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce, and Shoshone;
also, over the United States immigration offices located in the Province
of British Columbia, Canada.
(13) San Francisco, California. The district office in San
Francisco, California, has jurisdiction over the following counties in
the State of California: Alameda, Alpine, Amador, Butte, Calaveras,
Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt,
Inyo, Kern, Kings, Lake, Lassen, Madera, Marin, Mariposa, Mendocino,
Merced, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento,
San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa
Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter,
Tehama, Trinity, Tulare, Tuolumne, Yolo, and Yuba.
(14) San Antonio, Texas. The district office in San Antonio, Texas,
has jurisdiction over the following counties in the State of Texas:
Aransas, Atascosa, Bandera, Bastrop, Bee, Bell, Bexar, Blanco, Brazos,
Brown, Burleson, Burnet, Caldwell, Calhoun, Coke, Coleman, Comal,
Concho, Coryell, Crockett, De Witt, Dimmitt, Duval, Edwards, Falls,
Fayette, Frio, Gillespie,
[[Page 34]]
Glasscock, Goliad, Gonzales, Guadalupe, Hays, Irion, Jackson, Jim Hogg,
Jim Wells, Karnes, Kendall, Kerr, Kimble, Kinney, Lampasas, La Salle,
Lavaca, Lee, Live Oak, Llano, McCulloch, McLennan, McMullen, Mason,
Maverick, Medina, Menard, Milam, Mills, Nueces, Reagan, Real, Refugio,
Robertson, Runnels, San Patricio, San Saba, Schleicher, Sterling,
Sutton, Tom Green, Travis, Uvalde, Val Verde, Victoria, Webb,
Williamson, Wilson, Zapata, Zavala.
(15) El Paso, Texas. The district office in El Paso, Texas, has
jurisdiction over the State of New Mexico, and the following counties in
Texas: Brewster, Crane, Culberson, Ector, El Paso, Hudspeth, Jeff Davis,
Loving, Midland, Pecos, Presidio, Reeves, Terrell, Upton, Ward, and
Winkler.
(16) Los Angeles, California. The district office in Los Angeles,
California, has jurisdiction over the following counties in the State of
California: Los Angeles, Orange, Riverside, San Bernardino, San Luis
Obispo, Santa Barbara, and Ventura.
(17) Honolulu, Hawaii. The district office in Honolulu, Hawaii, has
jurisdiction over the State of Hawaii, the Territory of Guam, and the
Commonwealth of the Northern Mariana Islands.
(18) Phoenix, Arizona. The district office in Phoenix, Arizona, has
jurisdiction over the States of Arizona and Nevada.
(19) Denver, Colorado. The district office in Denver, Colorado, has
jurisdiction over the States of Colorado, Utah, and Wyoming.
(20) Dallas, Texas. The district office in Dallas, Texas, has
jurisdiction over the State of Oklahoma, and the following counties in
the State of Texas: Anderson, Andrews, Archer, Armstrong, Bailey,
Baylor, Borden, Bosque, Bowie, Briscoe, Callahan, Camp, Carson, Cass,
Castro, Cherokee, Childress, Clay, Cochran, Collingsworth, Comanche,
Cooke, Cottle, Crosby, Dallam, Dallas, Dawson, Deaf Smith, Delta,
Denton, Dickens, Donley, Eastland, Ellis, Erath, Fannin, Fisher, Floyd,
Foard, Franklin, Freestone, Gaines, Garza, Gray, Grayson, Gregg, Hale,
Hall, Hamilton, Hansford, Hardeman, Harison, Hartley, Haskett, Hemphill,
Henderson, Hill, Hockley, Hood, Hopkins, Houston, Howard, Hunt,
Hutchinson, Jack, Johnson, Jones, Kaufman, Kent, King, Knox, Lamar,
Lamb, Leon, Limestone, Lipscomb, Lubbock, Lynn, Marion, Martin,
Mitchell, Montague, Moore, Morris, Motley, Navarro, Nolan, Ochiltree,
Oldham, Palo Pinto, Panola, Parker, Parmer, Potter, Rains, Ranall, Red
River, Roberts, Rockwall, Rusk, Scurry, Shackelford, Sherman, Smith,
Somervell, Stephens, Stonewall, Swisher, Tarrant, Taylor, Terry,
Throckmorton, Titus, Upshur, Van Zandt, Wheeler, Wichita, Willbarger,
Wise, Wood, Yoakum, and Young.
(21) Newark, New Jersey. The district office in Newark, New Jersey,
has jurisdiction over the State of New Jersey.
(22) Portland, Maine. The district office in Portland, Maine, has
jurisdiction over the States of Maine, Vermont, and the Port-of-Entry at
Pittsburg, New Hampshire.
(23) [Reserved]
(24) Cleveland, Ohio. The district office in Cleveland, Ohio, has
jurisdiction over the State of Ohio.
(25) Washington, DC. The district office located in Arlington,
Virginia, has jurisdiction over the District of Columbia, the State of
Virginia, and the Port-of-Entry at Andrews Air Force Base, Maryland.
(26) Atlanta, Georgia. The district office of Atlanta, Georgia, has
jurisdiction over the States of Georgia, North Carolina, South Carolina,
and Alabama.
(27) San Juan, Puerto Rico. The district office in San Juan, Puerto
Rico, has jurisdiction over the Commonwealth of Puerto Rico, and the
Virgin Islands of the United States and Great Britain.
(28) New Orleans, Louisiana. The district office in New Orleans,
Louisiana, has jurisdiction over the States of Louisiana, Arkansas,
Mississippi, Tennessee, and Kentucky.
(29) Omaha, Nebraska. The district office in Omaha, Nebraska, has
jurisdiction over the States of Iowa and Nebraska.
(30) Helena, Montana. The district office in Helena, Montana, has
jurisdiction over the State of Montana and over the following counties
in the
[[Page 35]]
State of Idaho: Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise,
Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Custer,
Elmore, Franklin, Fremont, Gem, Gooding, Jefferson, Jerome, Lemhi,
Lincoln, Madison, Minidoka, Oneida, Owyhee, Payette, Power, Teton, Twin
Falls, Valley, and Washington; also, over the United States immigration
offices located in Calgary and Edmonton, Alberta, Canada.
(31) Portland, Oregon. The district office in Portland, Oregon, has
jurisdiction over the State of Oregon.
(32) Anchorage, Alaska. The district office in Anchorage, Alaska,
has jurisdiction over the State of Alaska.
(33) Bangkok, Thailand. The district office in Bangkok has
jurisdiction over Hong Kong, B.C.C. and adjacent islands, Taiwan, the
Philippines, Australia, New Zealand; all the continental Asia lying to
the east of the western border of Afghanistan and eastern borders of
Pakistan and India; Japan, Korea, Okinawa, and all other countries in
the Pacific area.
(34) [Reserved]
(35) Mexico City, Mexico. The district office in Mexico City has
jurisdiction over Mexico, Central America, South America, Caribbean
Islands, and Santo Domingo, Dominican Republic, except for those
specifically delegated to the districts of Miami, Florida, and San Juan,
Puerto Rico.
(36) [Reserved]
(37) Rome, Italy. The district office in Rome, Italy, has
jurisdiction over Europe; Africa; the countries of Asia lying to the
west and north of the western and northern borders, respectively, of
Afghanistan, People's Republic of China, and Mongolian People's
Republic; plus the countries of India and Pakistan.
(38) Houston, Texas. The district office in Houston, Texas, has
jurisdiction over the following counties in the State of Texas:
Angelina, Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston,
Grimes, Hardin, Harris, Jasper, Jefferson, Liberty, Madison, Matagorda,
Montgomery, Nacogdoches, Newton, Orange, Polk, Sabine, San Augustine,
San Jacinto, Shelby, Trinity, Tyler, Walker, Waller, Washington, and
Wharton.
(39) San Diego, California. The district office in San Diego,
California, has jurisdiction over the following counties in the State of
California: Imperial and San Diego.
(40) Harlingen, Texas. The district office in Harlingen, Texas, has
jurisdiction over the following counties in the State of Texas: Brooks,
Cameron, Hidalgo, Kenedy, Kleberg, Starr, and Willacy.
(c) Suboffices. The following offices, in addition to the facilities
maintained at Class A Ports-of-Entry listed in paragraph (c)(2) of this
section, indicated by asterisk, are designated as suboffices:
(1) Interior locations.
Agana, Guam
Albany, NY
Albuquerque, NM
Charlotte, NC
Charlotte Amalie, St. Thomas, VI
Cincinnati, OH
Fresno, CA
Hartford, CT
Indianapolis, IN
Jacksonville, FL
Las Vegas, NV
Louisville, KY
Memphis, TN
Milwaukee, WI
Norfolk, VA
Oklahoma City, OK
Orlando, FL
Pittsburgh, PA
Providence, RI
Reno, NV
Sacramento, CA
Salt Lake City, UT
San Jose, CA
Spokane, WA
St. Albans, VT
St. Louis, MO
Tampa, FL
Tucson, AZ
(2) Ports-of-Entry for aliens arriving by vessel or by land
transportation. Subject to the limitations prescribed in this paragraph,
the following places are hereby designated as Ports-of-Entry for aliens
arriving by any means of travel other than aircraft. The designation of
such a Port-of-Entry may be withdrawn whenever, in the judgment of the
Commissioner, such action is warranted. The ports are listed according
to location by districts and are designated either Class A, B, or C.
Class A means that the port is a designated Port-of-Entry for all
aliens. Class B means that the port is a designated
[[Page 36]]
Port-of-Entry for aliens who at the time of applying for admission are
lawfully in possession of valid alien registration receipt cards or
valid non-resident aliens' border-crossing identification cards or are
admissible without documents under the documentary waivers contained in
part 212 of this chapter. Class C means that the port is a designated
Port-of-Entry only for aliens who are arriving in the United States as
crewmen as that term is defined in section 101(a)(10) of the Act with
respect to vessels.
District No. 1--[Reserved]
District No. 2--Boston, Massachusetts
Class A
Boston, MA (the port of Boston includes, among others, the port
facilities at Beverly, Braintree, Chelsea, Everett, Hingham, Lynn,
Manchester, Marblehead, Milton, Quincy, Revere, Salem, Saugus, and
Weymouth, MA)
Gloucester, MA
Hartford, CT (the port at Hartford includes, among others, the port
facilities at Bridgeport, Groton, New Haven, and New London, CT)
Providence, RI (the port of Providence includes, among others, the port
facilities at Davisville, Melville, Newport, Portsmouth, Quonset Point,
Saunderstown, Tiverton, and Warwick, RI; and at Fall River, New Bedford,
and Somerset, MA)
Class C
Newburyport, MA
Plymouth, MA
Portsmouth, NH
Provincetown, MA
Sandwich, MA
Woods Hole, MA
District No. 3--New York, New York
Class A
New York, NY (the port of New York includes, among others, the port
facilities at Bronx, Brooklyn, Buchanan, Manhattan, Montauk, Northport,
Port Jefferson, Queens, Riverhead, Poughkeepsie, the Stapleton
Anchorage-Staten Island, Staten Island, Stoney Point, and Yonkers, NY,
as well as the East Side Passenger Terminal in Manhattan)
District No. 4--Philadelphia, Pennsylvania
Class A
Erie Seaport, PA
Philadelphia, PA (the port of Philadelphia includes, among others, the
port facilities at Delaware City, Lewes, New Castle, and Wilmington, DE;
and at Chester, Essington, Fort Mifflin, Marcus Hook, and Morrisville,
PA)
Pittsburgh, PA
District No. 5--Baltimore, Maryland
Class A
Baltimore, MD
Patuxent River, MD
Class C
Piney Point, MD
Salisbury, MD
District No. 6--Miami, Florida
Class A
Boca Grande, FL
Fernandina, FL
Fort Lauderdale/Port Everglades, FL, Seaport
Fort Pierce, FL
*Jacksonville, FL
Key West, FL
Miami Marine Unit, FL
Panama City, FL
Pensacola, FL
Port Canaveral, FL
St. Augustine, FL
St. Petersburg, FL
*Tampa, FL (includes Fort Myers)
West Palm Beach, FL
Class C
Manatee, FL
Port Dania, FL
Port St. Joe, FL
District No. 7--Buffalo, New York
Class A
Albany, NY
Alexandria Bay, NY
Buffalo, NY
Cape Vincent, NY
Champlain, NY
Chateaugay, NY
Ft. Covington, NY
Massena, NY
Mooers, NY
Niagara Falls, NY (the port of Niagara Falls includes, among others, the
port facilities at Lewiston Bridge, Rainbow Bridge, and Whirlpool
Bridge, NY)
Ogdensburg, NY
Peace Bridge, NY
Rochester, NY
Rouses Point, NY
Thousand Islands Bridge, NY
Trout River, NY
[[Page 37]]
Class B
Cannons Corner, NY
Churubusco, NY
Jamison's Line, NY
Class C
Oswego, NY
District No. 8--Detroit, Michigan
Class A
Algonac, MI
Detroit, MI, Detroit and Canada Tunnel
Detroit, MI, Detroit International Bridge (Ambassador Bridge)
Grosse Isle, MI
Isle Royale, MI
Marine City, MI
Port Huron, MI
Sault Ste. Marie, MI
Class B
Alpena, MI
Detour, MI
Grand Rapids, MI
Mackinac Island, MI
Rogers City, MI
Class C
Alpena, MI
Baraga, MI
Bay City, MI
Cheboygan, MI
Detour, MI
Escanaba, MI
Grand Haven, MI
Holland, MI
Houghton, MI
Ludington, MI
Mackinac Island, MI
Manistee, MI
Marquette, MI
Menominee, MI
Monroe, MI
Munising, MI
Muskegon, MI
Pontiac, MI
Port Dolomite, MI
Port Inland, MI
Rogers City (Calcite), MI
Saginaw, MI
South Haven, MI
District No. 9--Chicago, Illinois
Class A
Algoma, WI
Bayfield, WI
Chicago, IL
Green Bay, WI
*Milwaukee, WI
Class C
Ashland, WI
East Chicago, IL
Gary, IN
Kenosha, WI
Manitowoc, WI
Marinette, WI
Michigan City, IN
Racine, WI
Sheboygan, WI
Sturgeon Bay, WI
District No. 10--St. Paul, Minnesota
Class A
Ambrose, ND
Antler, ND
Baudette, MN
Carbury, ND
Duluth, MN (the port of Duluth includes, among others, the port
facilities at Superior, WI)
Dunseith, ND
Ely, MN
Fortuna, ND
Grand Portage, MN
Hannah, ND
Hansboro, ND
International Falls, MN
Lancaster, MN
Maida, ND
Neche, ND
Noonan, ND
Northgate, ND
Noyes, MN
Pembina, ND
Pine Creek, MN
Portal, ND
Ranier, MN
Roseau, MN
Sarles, ND
Sherwood, ND
St. John, ND
Walhalla, ND
Warroad, MN
Westhope, ND
Class B
Crane Lake, MN
Oak Island, MN
Class C
Grand Marais, MN
Silver Bay, MN
Taconite Harbor, MN
Two Harbors, MN
District No. 11--Kansas City, Missouri
Class A
Kansas City, MO
Class B
Wichita, KS
[[Page 38]]
District No. 12--Seattle, Washington
Class A
Aberdeen, WA (the port of Aberdeen includes, among others, the port
facilities at Raymond and South Bend, WA)
Anacortes, WA
Bellingham, WA
Blaine-Pacific Highway, WA
Blaine-Peach Arch, WA
Boundary, WA
Colville, WA
Danville, WA
Eastport, ID
Ferry, WA
Friday Harbor, WA (the port of Friday Harbor includes, among others, the
port facilities at Roche Harbor, WA)
Frontier, WA
Kalama, WA
Laurier, WA
Longview, WA
Lynden, WA
Metaline Falls, WA
Neah Bay, WA
Olympia, WA
Oroville, WA
Point Roberts, WA
Port Angeles, WA
Port Townsend, WA
Porthill, WA
Seattle, WA (the port of Seattle includes, among others, the port
facilities at Bangor, Blake Island, Bremerton, Eagle Harbor, Edmonds,
Everett, Holmes Harbor, Houghton, Kennydale, Keyport, Kingston,
Manchester, Mukilteo, Orchard Point, Point Wells, Port Gamble, Port
Ludlow, Port Orchard, Poulsbo, Shuffleton, and Winslow, WA)
Sumas, WA
Tacoma, WA (the port of Tacoma includes, among others, the port
facilities at Dupont, WA)
Vancouver, WA
Yakima, WA
Class B
Nighthawk, WA
District No. 13--San Francisco, California
Class A
San Francisco, CA (the port of San Francisco includes, among others, the
port facilities at Antioch, Benicia, Martinez, Oakland, Pittsburgh, Port
Chicago Concord Naval Weapon Station, Redwood City, Richmond,
Sacramento, San Pablo Bay, and Stockton, CA)
Class C
Eureka, CA
District No. 14--San Antonio, Texas
Class A
Amistad Dam, TX
Corpus Christi, TX (the port of Corpus Christi includes, among others,
the port facilities at Harbor Island, Ingeleside, and Port Lavaca-Point
Comfort, TX)
Del Rio, TX
Laredo, TX (the port of Laredo includes, among others, the port
facilities at Colombia Bridge, Convent Bridge, and Lincoln-Juarez
Bridge, TX)
Maverick, TX
District No. 15--El Paso, Texas
Class A
Columbus, NM
El Paso, TX (the port of El Paso includes, among others, the port
facilities at Bridge of the Americas, Paso Del Norte Bridge, and Ysleta
Bridge, TX)
Fabens, TX
Fort Hancock, TX
Presidio, TX
Santa Teresa, NM
District No. 16--Los Angeles, California
Class A
Los Angeles, CA (the port of Los Angeles includes, among others, the
port facilities at Long Beach, Ontario, Port Hueneme, San Pedro, and
Ventura, CA)
San Luis Obispo, CA (the port of San Luis Obispo includes, among others,
the port facilities at Avila, Estero Bay, El Capitan, Elwood, Gaviota,
Morro Bay, and Santa Barbara, CA)
District No. 17--Honolulu, Hawaii
Class A
*Agana, Guam, M.I. (including the port facilities at Apra Harbor, Guam)
Honolulu, HI, Seaport (including all port facilities on the Island of
Oahu)
Class C
Hilo, HI
Kahului, HI, Kahului Harbor
Nawiliwilli, HI, Nawiliwilli Harbor
Port Allen, HI, Port Allen Harbor
District No. 18--Phoenix, Arizona
Class A
Douglas, AZ
Lukeville, AZ
Mariposa, AZ
Morley Gate, AZ
Naco, AZ
Nogales, AZ
Sasabe, AZ
San Luis, AZ
[[Page 39]]
District No. 19--Denver, Colorado
Class A
Denver, CO
Grand Junction, CO
Pueblo, CO
Salt Lake City, UT
District No. 20--[Reserved]
District No. 21--Newark, New Jersey
Class A
Camden, NJ (the port of Camden includes, among others, the port
facilities at Artificial Island, Billingsport, Burlington, Cape May,
Deepwater Point, Fisher's Point, Gibbstown, Gloucester City, Paulsboro,
Salem, and Trenton, NJ)
Newark, NJ (the port of Newark includes, among others, the port
facilities at Bayonne, Carteret, Edgewater, Elizabeth, Jersey City,
Leonardo, Linden, Perth Amboy, Port Newark, and Sewaren, NJ)
District No. 22--Portland, Maine
Class A
Alburg, VT
Alburg Springs, VT
Bangor, ME (the port of Bangor includes, among others, the port
facilities at Bar Harbor, Belfast, Brewer, Bucksport Harbor, Prospect
Harbor, Sandypoint, Seal Harbor, Searsport, and South West Harbor, ME)
Beebe Plain, VT
Beecher Falls, VT
Bridgewater, ME
Calais, ME (includes Ferry Point and Milltown Bridges)
Canaan, VT
Coburn Gore, ME
Derby Line, VT
Eastport, ME
East Richford, VT
Fort Fairfield, ME
Fort Kent, ME
Hamlin, ME
Highgate Springs, VT
Houlton, ME
Jackman, ME
Limestone, ME
Lubec, ME
Madawaska, ME
Morses Line, VT
North Troy, VT
Norton, VT
Pittsburgh, NH
Portland, ME
Richford, VT (includes the Pinnacle Port-of-Entry)
* St. Albans, VT
Van Buren, ME
Vanceboro, ME
West Berkshire, VT
Class B
Daaquam, ME
Easton, ME
Eastcourt, ME
Forest City, ME
Monticello, ME
Orient, ME
Robinston, ME
St. Aurelie, ME
St. Pamphile, ME
Class C
Bath, ME
Boothbay Harbor, ME
Kittery, ME
Rockland, ME
Wiscasset, ME
District No. 23--[Reserved]
District No. 24--Cleveland, Ohio
Class A
Cincinnati, OH
Cleveland, OH
Columbus, OH
Put-In-Bay, OH
Sandusky, OH
Toledo, OH
Class C
Ashtabula, OH
Conneaut, OH
Fairport, OH
Huron, OH
Lorain, OH
Marblehead, OH
District No. 25--Washington, DC
Class A
Hopewell, VA
* Norfolk, VA--(the port of Norfolk includes, among others, the port
facilities at Fort Monroe and Newport News, VA)
Richmond, VA
Washington, DC (includes the port facilities at Alexandria, VA)
Yorktown, VA
District No. 26--Atlanta, Georgia
Class A
Charleston, SC (the port of Charleston includes, among others, the port
facilities at Georgetown and Port Royal, SC)
Mobile, AL
Savannah, GA (the port of Savannah includes, among others, the port
facilities at Brunswick and St. Mary's Seaport, GA)
Wilmington, NC (the port of Wilmington includes the port facilities at
Morehead City, NC)
[[Page 40]]
District No. 27--San Juan, Puerto Rico
Class A
Aguadilla, PR
* Charlotte Amalie, St. Thomas, VI
Christiansted, St. Croix, VI
Cruz Bay, St. John, VI
Ensenada, PR
Federiksted, St. Croix, VI
Fajardo, PR
Humacao, PR
Jobos, PR
Mayaguez, PR
Ponce, PR
Red Hook, St. Thomas, VI
Class B
Coral Bay, St. John, VI
District No. 28--New Orleans, Louisiana
Class A
Baton Rouge, LA
Gulfport, MS
Lake Charles, LA
Memphis, TN
Nashville, TN
New Orleans, LA (the port of New Orleans includes, among others, the
port facilities at Avondale, Bell Chasse, Braithwaite, Burnside,
Chalmette, Destrahan, Geismar, Gramercy, Gretna, Harvey, Marrero, Norco,
Port Sulphur, St. Rose, and Westwego, LA)
Class C
Morgan City, LA
Pascagoula, MS
District No. 29--Omaha, Nebraska
Class A
Omaha, NE
Des Moines, IA
District No. 30--Helena, Montana
Class A
Chief Mountain, MT (May-October)
Del Bonita, MT
Morgan, MT
Opheim, MT
Peigan, MT
Raymond, MT
Roosville, MT
Scobey, MT
Sweetgrass, MT
Turner, MT
Whitetail, MT
Wildhorse, MT
Willow Creek, MT
Class B
Goat Haunt, MT
Trail Creek, MT
Whitlash, MT
District No. 31--Portland, Oregon
Class A
Astoria, OR (the port of Astoria includes, among others, the port
facilities at Bradwood, Pacific City, Taft, Tilliamook, (including Bay
City and Garibaldi), Warrenton, Wauna, and Westport, OR)
Coos Bay, OR (the port of Coos Bay includes, among others, the port
facilities at Bandon, Brookings, Depoe Bay, Florence, Frankfort, Gold
Beach, Newport (including Toledo), Port Orford, Reedsport, Waldport, and
Yachats, OR)
Portland, OR (the port of Portland includes, among others, the port
facilities at Beaver, Columbia City, Prescott, Rainier, and St. Helens,
OR)
District No. 32--Anchorage, Alaska
Class A
Alcan, AK
Anchorage, AK (the port of Anchorage includes, among others (for out of
port inspections only), Afognak, Barrow, Cold Bay, Cordova, Homer,
Kodiak, Kotzebue, Nikiski, Seward, Valdez, and Yakutat, AK)
Dalton's Cache, AK
Dutch Harbor, AK
Fairbanks, AK
Gambell, AK
Juneau, AK
Ketchikan, AK
Nome, AK
Poker Creek, AK
Skagway, AK
Class B
Eagle, AK
Hyder, AK
Class C
Valdez, AK
District No. 38--Houston, Texas
Class A
Galveston, TX (the port of Galveston includes, among others, the port
facilities at Freeport, Port Bolivar, and Texas City, TX)
Houston, TX (the port of Houston includes, among others, the port
facilities at Baytown, TX)
Port Arthur, TX (the port of Port Arthur includes, among others, the
port facilities at Beaumont, Orange, and Sabine, TX)
District No. 39--San Diego, California
Class A
Andrade, CA
Calexico, CA
Otay Mesa, CA
San Ysidro, CA
[[Page 41]]
Tecate, CA
District No. 40--Harlingen, Texas
Class A
Brownsville, TX (the port of Brownsville includes, among others, the
port facilities at Brownsville Seaport, Port Isabel, Padre Island and
Harlingen, TX, Ship Channel)
Brownsville, TX, Gateway Bridge and Brownsville/Matamoros Bridge
Falcon Heights, TX
Hidalgo, TX
Los Ebanos, TX
Los Indios, TX
Pharr, TX
Progreso, TX
Rio Grande City, TX
Roma, TX
(3) Ports-of-Entry for aliens arriving by aircraft. In addition to
the following international airports which are hereby designated as
Ports-of-Entry for aliens arriving by aircraft, other places where
permission for certain aircraft to land officially has been given and
places where emergency or forced landings are made under part 239 of
this chapter shall be regarded as designated for the entry of aliens
arriving by such aircraft:
District No. 1--[Reserved]
District No. 2--Boston, Massachusetts
Boston, MA, Logan International Airport
Manchester, NH, Grenier Airport
Portsmouth, NH, Pease Air Force Base
Warwick, RI, T. F. Greene Airport
Windsor Locks, CT, Bradley International Airport
District No. 3--New York City, New York
Newburgh, NY, Stewart International Airport
Queens, NY, LaGuardia Airport
Westchester, NY, Westchester County Airport
District No. 4--Philadelphia, Pennsylvania
Charlestown, WV, Kanahwa Airport
Dover, DE, Dover Air Force Base
Erie, PA, Erie International Airport (USCS)
Harrisburg, PA, Harrisburg International Airport
Philadelphia, PA, Philadelphia International Airport
Pittsburgh, PA, Pittsburgh International Airport
District No. 5--Baltimore, Maryland
Baltimore, MD, Baltimore-Washington International Airport
District No. 6--Miami, Florida
Daytona, FL, Daytona International Airport, FL
Fort Lauderdale, FL, Executive Airport
Fort Lauderdale, FL, Fort Lauderdale-Hollywood Airport
Fort Myers, FL, Southwest Regional International Airport
Freeport, Bahamas, Freeport International Airport
Jacksonville, FL, Jacksonville International Airport
Key West, FL, Key West International Airport
Melbourne, FL, Melbourne International Airport
Miami, FL, Chalks Flying Service Seaplane Base
Miami, FL, Miami International Airport
Nassau, Bahamas, Nassau International Airport
Orlando, FL, Orlando International Airport
Palm Beach, FL, Palm Beach International Airport
Paradise Island, Bahamas, Paradise Island Airport
Sanford, FL, Sanford International Airport
Sarasota, FL, Sarasota Airport
St. Petersburg, FL, St. Petersburg/Clearwater International Airport
Tampa, FL, Tampa International Airport
District No. 7--Buffalo, New York
Albany, NY, Albany County Airport
Buffalo, NY, Buffalo Airport
Massena, NY, Massena Airport
Niagara Falls, NY, Niagara Falls International Airport
Ogdensburg, NY, Ogdensburg Municipal Airport
Rochester, NY, Rochester Airport
Syracuse, NY, Hancock International Airport
Watertown, NY, Watertown Municipal Airport
District No. 8--Detroit, Michigan
Battle Creek, MI, Battle Creek Airport
Chippewa, MI, Chippewa County International Airport
Detroit, MI, Detroit City Airport
Detroit, MI, Detroit Metropolitan Wayne County Airport
Port Huron, MI, St. Clair County International Airport
Sault Ste. Marie, MI, Sault Ste. Marie Airport
District No. 9--Chicago, Illinois
Chicago, IL, Chicago Midway Airport
Chicago, IL, Chicago O'Hare International Airport
Indianapolis, IN, Indianapolis International Airport
Mitchell, WI, Mitchell International Airport
[[Page 42]]
District No. 10--St. Paul, Minnesota
Baudette, MN, Baudette International Airport
Duluth, MN, Duluth International Airport
Duluth, MN, Sky Harbor Airport
Grand Forks, ND, Grand Forks International Airport
International Falls, MN, Falls International Airport
Minneapolis/St. Paul, MN, Minneapolis/St. Paul International Airport
Minot, ND, Minot International Airport
Pembina, ND, Port Pembina Airport
Portal, ND, Portal Airport
Ranier, MN, International Seaplane Base
Warroad, MN, Warroad International Airport
Williston, ND, Sioulin Field (Municipal)
District No. 11--Kansas City, Missouri
Kansas City, MO, Kansas City International Airport
Springfield, MO, Springfield Regional Airport
St. Louis, MO, St. Louis Lambert International Airport
St. Louis, MO, Spirit of St. Louis Airport
District No. 12--Seattle, Washington
Bellingham, WA, Bellingham Airport
Friday Harbor, WA, Friday Harbor
McChord, WA, McChord Air Force Base
Oroville, WA, Dorothy Scott Municipal Airport
Oroville, WA, Dorothy Scott Seaplane Base
Point Roberts, WA, Point Roberts Airport
Port Townsend, WA, Jefferson County International Airport
SEA-TAC, WA, SEA-TAC International Airport
Seattle, WA, Boeing Municipal Air Field
Seattle, WA, Lake Union
Spokane, WA, Felts Field
Spokane, WA, Spokane International Airport
District No. 13--San Francisco, California
Alameda, CA, Alemeda Naval Air Station
Oakland, CA, Oakland International Airport
Sacramento, CA, Beale Air Force Base
San Francisco, CA, San Francisco International Airport
San Jose, CA, San Jose International Airport
Travis, CA, Travis Air Force Base
District No. 14--San Antonio, Texas
Austin, TX, Austin International Airport
Corpus Christi, TX, Corpus Christi Airport
Del Rio, TX, Del Rio International Airport
Laredo, TX, Laredo International Airport
Maverick, TX, Maverick County Airport
San Antonio, TX, San Antonio International Airport
District No. 15--El Paso, Texas
Albuquerque, NM, Albuquerque International Airport
El Paso, TX, International Airport
Presidio, TX, Presidio Airport
Santa Teresa, NM, Santa Teresa Airport
District No. 16--Los Angeles, California
Los Angeles, CA, Los Angeles International Airport
Ontario, CA, Ontario International Airport
District No. 17--Honolulu, Hawaii
Agana, Guam, Guam International Airport Terminal
Honolulu, HI, Honolulu International Airport
Honolulu, HI, Hickam Air Force Base
District No. 18--Phoenix, Arizona
Douglas, AZ, Bisbee-Douglas Airport
Las Vegas, NV, McCarren International Airport
Nogales, AZ, Nogales International Airport
Phoenix, AZ, Phoenix Sky Harbor International Airport
Reno, NV, Reno Carron International Airport
Tucson, AZ, Tucson International Airport
Yuma, AZ, Yuma International Airport
District No. 19--Denver, Colorado
Colorado Springs, CO, Colorado Springs Airport
Denver, CO, Denver International Airport
Salt Lake City, UT, Salt Lake City Airport
District No. 20--Dallas, Texas
Dallas, TX, Dallas-Fort Worth International Airport
Oklahoma City, OK, Oklahoma City Airport (includes Altus and Tinker
AFBs)
District No. 21--Newark, New Jersey
Atlantic City, NJ, Atlantic City International Airport
Lakehurst, NJ, Lakehurst Naval Air Station
Morristown, NJ, Morristown Airport
Newark, NJ, Newark International Airport
Newark, NJ, Signature Airport
Teterboro, NJ, Teterboro Airport
Wrightstown, NJ, McGuire Air Force Base
District No. 22--Portland, Maine
Bangor, ME, Bangor International Airport
Burlington, VT, Burlington International Airport
Caribou, ME, Caribou Municipal Airport
Highgate Springs, VT, Franklin County Regional Airport
Newport, VT, Newport State Airport
[[Page 43]]
District No. 23--[Reserved]
District No. 24--Cleveland, Ohio
Akron, OH, Municipal Airport
Cincinnati, OH, Cincinnati International Airport
Cleveland, OH, Cleveland Hopkins Airport
Columbus, OH, Port Columbus International Airport
Sandusky, OH, Griffing/Sandusky Airport
District No. 25--Washington, D.C.
Camp Springs, MD, Andrews Air Force Base
Chantilly, VA, Washington Dulles International Airport
Winchester, VA, Winchester Airport
District No. 26--Atlanta, Georgia
Atlanta, GA, Atlanta Hartsfield International Airport
Charleston, SC, Charleston International Airport
Charleston, SC, Charleston Air Force Base
Charlotte, NC, Charlotte International Airport
Raleigh, NC, Raleigh-Durham International Airport
Savannah, GA, Savannah International Airport
District No. 27--San Juan, Puerto Rico
San Juan, PR, San Juan International Airport
District No. 28--New Orleans, Louisiana
Louisville, KY, Louisville International Airport
New Orleans, LA, New Orleans International Airport
Memphis, TN, Memphis International Airport
Nashville, TN, Nashville International Airport
District No. 29--Omaha, Nebraska
Des Moines, IA, Des Moines International Airport
Omaha, NE, Eppley International Airport
Omaha, NE, Offutt Air Force Base
District No. 30--Helena, Montana
Billings, MT, Billings Airport
Boise, ID, Boise Airport
Cut Bank, MT, Cut Bank Airport
Glasgow, MT, Glasgow International Airport
Great Falls, MT, Great Falls International Airport
Havre, MT, Havre-Hill County Airport
Helena, MT, Helena Airport
Kalispel, MT, Kalispel Airport
Missoula, MT, Missoula Airport
District No. 31--Portland, Oregon
Medford, OR, Jackson County Airport
Portland, OR, Portland International Airport
District No. 32--Anchorage, Alaska
Anchorage, AK, Anchorage International Airport
Juneau, AK, Juneau Airport (Seaplane Base Only)
Juneau, AK, Juneau Municipal Airport
Ketchikan, AK, Ketchikan Airport
Wrangell, AK, Wrangell Seaplane Base
District No. 38--Houston, Texas
Galveston, TX, Galveston Airport
Houston, TX, Ellington Field
Houston, TX, Hobby Airport
Houston, TX, Houston Intercontinental Airport
District No. 39--San Diego, California
Calexico, CA, Calexico International Airport
San Diego, CA, San Diego International Airport
San Diego, CA, San Diego Municipal Airport (Lindbergh Field)
District No. 40--Harlingen, Texas
Brownsville, TX, Brownsville/South Padre Island International Airport
Harlingen, TX, Valley International Airport
McAllen, TX, McAllen Miller International Airport
(4) Immigration offices in foreign countries:
Athens, Greece
Bangkok, Thailand
Calgary, Alberta, Canada
Ciudad Juarez, Mexico
Dublin, Ireland
Edmonton, Alberta, Canada
Frankfurt, Germany
Freeport, Bahamas
Hamilton, Bermuda
Havana, Cuba
Hong Kong, B.C.C.
Karachi, Pakistan
London, United Kingdom
Manila, Philippines
Mexico City, Mexico
Monterrey, Mexico
Montreal, Quebec, Canada
Moscow, Russia
Nairobi, Kenya
Nassau, Bahamas
New Delhi, India
Oranjestad, Aruba
Ottawa, Ontario, Canada
Rome, Italy
Santo Domingo, Dominican Republic
Seoul, Korea
Shannon, Ireland
Singapore, Republic of Singapore
Tegucigalpa, Honduras
Tijuana, Mexico
Toronto, Ontario, Canada
[[Page 44]]
Vancouver, British Columbia, Canada
Victoria, British Columbia, Canada
Vienna, Austria
Winnipeg, Manitoba, Canada
(d) Border patrol sectors. Border Patrol Sector Headquarters and
Stations are situated at the following locations:
Sector No. 1--Houlton, Maine
Calais, ME
Fort Fairfield, ME
Houlton, ME
Jackman, ME
Rangeley, ME
Van Buren, ME
Sector No. 2--Swanton, Vermont
Beecher Falls, VT
Burke, NY
Champlain, NY
Massena, NY
Newport, VT
Ogdensburg, NY
Richford, VT
Swanton, VT
Sector No. 3--Ramey, Puerto Rico
Ramey, Puerto Rico
Sector No. 4--Buffalo, New York
Buffalo, NY
Fulton, NY
Niagara Falls, NY
Watertown, NY
Sector No. 5--Detroit, Michigan
Detroit, MI
Grand Rapids, MI
Port Huron, MI
Sault Ste. Marie, MI
Trenton, MI
Sector No. 6--Grand Forks, North Dakota
Bottineau, ND
Duluth, MN
Grand Forks, ND
Grand Marais, MN
International Falls, MN
Pembina, ND
Portal, ND
Warroad, MN
Sector No. 7--Havre, Montana
Billings, MT
Havre, MT
Malta, MT
Plentywood, MT
Scobey, MT
Shelby, MT
St. Mary, MT
Sweetgrass, MT
Twin Falls, ID
Sector No. 8--Spokane, Washington
Bonners Ferry, ID
Colville, WA
Eureka, MT
Oroville, WA
Pasco, WA
Spokane, WA
Wenatchee, WA
Whitefish, MT
Sector No. 9--Blaine, Washington
Bellingham, WA
Blaine, WA
Lynden, WA
Port Angeles, WA
Roseburg, OR
Sector No. 10--Livermore, California
Bakersfield, CA
Fresno, CA
Livermore, CA
Oxnard, CA
Sacramento, CA
Salinas, CA
San Luis Obispo, CA
Stockton, CA
Sector No. 11--San Diego, California
Brown Field, CA
Campo, CA (Boulevard, CA)
Chula Vista, CA
El Cajon, CA (San Marcos and Julian, CA)
Imperial Beach, CA
San Clemente, CA
Temecula, CA
Sector No. 12--El Centro, California
Calexico, CA
El Centro, CA
Indio, CA
Riverside, CA
Sector No. 13--Yuma, Arizona
Blythe, CA
Boulder City, NV
Wellton, AZ
Yuma, AZ
Sector No. 14--Tucson, Arizona
Ajo, AZ
Casa Grande, AZ
Douglas, AZ
Naco, AZ
Nogales, AZ
Phoenix, AZ
Sonita, AZ
Tucson, AZ
Willcox, AZ
Sector No. 15--El Paso, Texas
Alamogordo, NM
Albuquerque, NM
Carlsbad, NM
Deming, NM
El Paso, TX
[[Page 45]]
Fabens, TX
Fort Hancock, TX
Las Cruces, NM,
Lordsburg, NM
Truth or Consequences, NM
Ysleta, TX
Sector No. 16--Marfa, Texas
Alpine, TX
Amarillo, TX
Fort Stockton, TX
Lubbock, TX
Marfa, TX
Midland, TX
Pecos, TX
Presidio, TX
Sanderson, TX
Sierra Blanca, TX
Van Horn, TX
Sector No. 17--Del Rio, Texas
Abilene, TX
Brackettville, TX
Carrizo Springs, TX
Comstock, TX
Del Rio, TX
Eagle Pass, TX
Llano, TX
Rocksprings, TX
San Angelo, TX
Uvalde, TX
Sector No. 18--Laredo, Texas
Cotulla, TX
Dallas, TX
Freer, TX
Hebbronville, TX
Laredo North, TX
Laredo South, TX
San Antonio, TX
Zapata, TX
Sector No. 19--McAllen, Texas
Brownsville, TX
Corpus Christi, TX
Falfurrias, TX
Harlingen, TX
Kingsville, TX
McAllen, TX
Mercedes, TX
Port Isabel, TX
Rio Grande City, TX
Sector No. 20--New Orleans, Louisiana
Baton Rouge, LA
Gulfport, MS
Lake Charles, LA
Little Rock, AR
Miami, OK
Mobile, AL
New Orleans, LA
Sector No. 21--Miami, Florida
Jacksonville, FL
Orlando, FL
Pembroke Pines, FL
Tampa, FL
West Palm Beach, FL
(e) Service centers. Service centers are situated at the following
locations:
Texas Service Center, Dallas, Texas
Nebraska Service Center, Lincoln, Nebraska
California Service Center, Laguna Niguel, California
Vermont Service Center, St. Albans, Vermont
(f) Asylum offices--(1) Newark, New Jersey. The Asylum Office in
Lyndhurst has jurisdiction over the State of New York within the
boroughs of Manhattan and the Bronx in the City of New York; the Albany
Suboffice; jurisdiction of the Buffalo District Office; the State of
Pennsylvania, excluding the jurisdiction of the Pittsburgh Suboffice;
and the States of Connecticut, Delaware, Maine, Massachusetts, New
Hampshire, New Jersey, Rhode Island, and Vermont.
(2) New York City, New York. The Asylum Office in New York has
jurisdiction over the State of New York excluding the jurisdiction of
the Albany Suboffice, the Buffalo District Office and the boroughs of
Manhattan and the Bronx.
(3) Arlington, Virginia. The Asylum Office in Arlington has
jurisdiction over the District of Columbia, the western portion of the
State of Pennsylvania currently within the jurisdiction of the
Pittsburgh Suboffice, and the States of Maryland, Virginia, West
Virginia, North Carolina, Georgia, Alabama, and South Carolina.
(4) Miami, Florida. The Asylum Office in Miami has jurisdiction over
the State of Florida, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(5) Houston, Texas. The Asylum Office in Houston has jurisdiction
over the States of Louisiana, Arkansas, Mississippi, Tennessee, Texas,
Oklahoma, New Mexico, Colorado, Utah, and Wyoming.
(6) Chicago, Illinois. The Asylum Office in Chicago has jurisdiction
over the States of Illinois, Indiana, Michigan, Wisconsin, Minnesota,
North Dakota, South Dakota, Kansas, Missouri, Ohio, Iowa, Nebraska,
Montana, Idaho, and Kentucky.
[[Page 46]]
(7) Los Angeles, California. The Asylum Office in Los Angeles has
jurisdiction over the States of Arizona, the southern portion of
California as listed in 8 CFR 100.4(b)(16) and 100.4(b)(39), and that
southern portion of the State of Nevada currently within the
jurisdiction of the Las Vegas Suboffice.
(8) San Francisco, California. The Asylum Office in San Francisco
has jurisdiction over the northern part of California as listed in 8 CFR
100.4(b)(13), the portion of Nevada currently under the jurisdiction of
the Reno Suboffice, and the States of Oregon, Washington, Alaska, and
Hawaii and the Territory of Guam.
[60 FR 57166, Nov. 14, 1995, as amended at 61 FR 25778, May 23, 1996]
Sec. 100.5 Regulations.
The regulations of the Immigration and Naturalization Service,
published as chapter I of title 8 of the Code of Federal Regulations,
contain information which under the provisions of section 552 of title 5
of the United States Code, is required to be published and is subdivided
into subchapter A (General Provisions, parts 1 through 3, inclusive),
subchapter B (Immigration Regulations, parts 100 through 299,
inclusive), and subchapter C (Nationality Regulations, parts 306 through
499, inclusive). Any person desiring information with respect to a
particular procedure (other than rule making) under the Immigration and
Nationality Act should examine the part or section in chapter I of title
8 of the Code of Federal Regulations dealing with such procedures as
well as the section of the Act implemented by such part or section.
Sec. 100.6 Rule making.
Section 103(a) of the Immigration and Nationality Act requires the
Attorney General to establish such regulations as he deems necessary for
carrying out his authority under the provisions of that Act. The
Attorney General has delegated certain rule making authority to the
Commissioner of Immigration and Naturalization. The provisions of the
Federal Register Act (49 Stat. 500; 44 U.S.C. 301-314), as amended, and
of the regulations thereunder (1 CFR--Administrative Committee of the
Federal Register) as well as the provisions of section 553 of title 5 of
the United States Code governing the issuance of regulations are
observed.
Sec. 100.7 OMB control numbers assigned to information collections.
This section collects and displays the control numbers assigned to
information collection requirements of the Immigration and
Naturalization Service by the Office of Management and Budget (OMB)
pursuant to the Paperwork Reduction Act of 1980, Public Law 96-511. The
Service intends that this section comply with the requirements of
section 3507(f) of the Paperwork Reduction Act, which requires that
agencies display a current control number assigned by the Director of
the Office of Management and Budget for each agency information
collection requirement.
------------------------------------------------------------------------
Current OMB
8 CFR part or section where identified and described control No.
------------------------------------------------------------------------
103.2(b)(1)................................................ 1115-0062
103.6...................................................... 1115-0085
103.6(c)................................................... 1115-0046
103.10(a)(2)............................................... 1115-0087
103.10(f).................................................. 1115-0088
204.1(a)................................................... 1115-0054
204.1(b)................................................... 1115-0049
204.1(c)................................................... 1115-0061
Part 207................................................... 1115-0057
207.2...................................................... 1115-0066
207.2(d)................................................... 1115-0056
207.3(b)................................................... 1115-0098
Part 208................................................... 1115-0086
211.1(b)(3)................................................ 1115-0042
211.2...................................................... 1115-0042
212.1(f)................................................... 1115-0042
212.2...................................................... 1115-0106
212.3...................................................... 1115-0032
212.4(b)................................................... 1115-0028
212.4(g)................................................... 1115-0040
212.6...................................................... 1115-0019
212.6...................................................... 1115-0047
212.7...................................................... 1115-0048
212.7(c)................................................... 1115-0059
212.8(b)................................................... 1115-0081
214.1...................................................... 1115-0051
214.1(c)................................................... 1115-0093
214.2(e)................................................... 1115-0023
214.2(f)................................................... 1115-0060
214.2(f)................................................... 1115-0051
214.2(g)................................................... 1115-0090
214.2(h)................................................... 1115-0038
214.2(k)................................................... 1115-0071
214.2(l)................................................... 1115-0038
214.2(m)................................................... 1115-0060
214.2(m)................................................... 1115-0051
214.3...................................................... 1115-0070
214.3(g)................................................... 1115-0051
Part 223................................................... 1115-0005
Part 223a.................................................. 1115-0084
223.1...................................................... 1115-0037
[[Page 47]]
Part 231................................................... 1115-0083
Part 231................................................... 1115-0078
Part 231................................................... 1115-0108
Part 232................................................... 1115-0036
Part 233................................................... 1115-0036
234.2(c)................................................... 1115-0048
Part 235................................................... 1115-0077
235.1(e)................................................... 1115-0065
243.4...................................................... 1115-0055
243.7...................................................... 1115-0043
Part 244................................................... 1115-0025
Part 245................................................... 1115-0053
Part 245................................................... 1115-0066
245.2...................................................... 1115-0089
245.2(a)(2)................................................ 1115-0067
247.11..................................................... 1115-0037
247.12..................................................... 1115-0037
247.13..................................................... 1115-0037
248.3...................................................... 1115-0032
248.3(b)................................................... 1115-0038
248.4...................................................... 1115-0038
Part 249................................................... 1115-0053
Part 249................................................... 1115-0066
Part 250................................................... 1115-0020
Part 251................................................... 1115-0083
Part 251................................................... 1115-0040
Part 252................................................... 1115-0040
252.1(f)................................................... 1115-0073
253.1...................................................... 1115-0029
264.1...................................................... 1115-0004
264.1(c)................................................... 1115-0079
264.1(f)................................................... 1115-0002
265.1...................................................... 1115-0003
292.2...................................................... 1115-0026
316a.21.................................................... 1115-0014
319.11..................................................... 1115-0009
Part 322................................................... 1115-0010
324.11..................................................... 1115-0009
327.1...................................................... 1115-0009
Part 328................................................... 1115-0009
328.3...................................................... 1115-0022
Part 329................................................... 1115-0009
329.2...................................................... 1115-0022
Part 330................................................... 1115-0009
Part 330................................................... 1115-0031
Part 334a.................................................. 1115-0008
334.11..................................................... 1115-0009
334.17..................................................... 1115-0035
335.11..................................................... 1115-0009
336.16a.................................................... 1115-0076
336.16a.................................................... 1115-0052
338.16..................................................... 1115-0030
Part 341................................................... 1115-0018
341.1(b)................................................... 1115-0009
343a.1..................................................... 1115-0015
343b....................................................... 1115-0016
------------------------------------------------------------------------
[48 FR 37201, Aug. 17, 1983]
PART 101--PRESUMPTION OF LAWFUL ADMISSION--Table of Contents
Sec.
101.1 Presumption of lawful admission.
101.2 Presumption of lawful admission; entry under erroneous name or
other errors.
101.3 Creation of record of lawful permanent resident status for person
born under diplomatic status in the United States.
101.4 Registration procedure.
101.5 Special immigrant status for certain G-4 nonimmigrants.
Authority: 8 U.S.C. 1103, 8 CFR part 2.
Sec. 101.1 Presumption of lawful admission.
A member of the following classes shall be presumed to have been
lawfully admitted for permanent residence even though a record of his
admission cannot be found, except as otherwise provided in this section,
unless he abandoned his lawful permanent resident status or subsequently
lost that status by operation of law:
(a) Prior to June 30, 1906. An alien who establishes that he entered
the United States prior to June 30, 1906.
(b) United States land borders. An alien who establishes that, while
a citizen of Canada or Newfoundland, he entered the United States across
the Canadian border prior to October 1, 1906; an alien who establishes
that while a citizen of Mexico he entered the United States across the
Mexican border prior to July 1, 1908; an alien who establishes that,
while a citizen of Mexico, he entered the United States at the port of
Presidio, Texas, prior to October 21, 1918, and an alien for whom a
record of his actual admission to the United States does not exist but
who establishes that he gained admission to the United States prior to
July 1, 1924, pursuant to preexamination at a United States immigration
station in Canada and that a record of such preexamination exists.
(c) Virgin Islands. An alien who establishes that he entered the
Virgin Islands of the United States prior to July 1, 1938, even though a
record of his admission prior to that date exists as a non-immigrant
under the Immigration Act of 1924.
(d) Asiatic barred zone. An alien who establishes that he is of a
race indigenous to, and a native of a country within, the Asiatic zone
defined in section 3 of the Act of February 5, 1917, as amended, that he
was a member of a class of aliens exempted from exclusion by the
provisions of that section, and that he entered the United States prior
to July 1, 1924, provided that a record of his admission exists.
[[Page 48]]
(e) Chinese and Japanese aliens--(1) Prior to July 1, 1924. A
Chinese alien for whom there exists a record of his admission to the
United States prior to July 1, 1924, under the laws and regulations
formerly applicable to Chinese and who establishes that at the time of
his admission he was a merchant, teacher, or student, and his son or
daughter under 21 or wife accompanying or following to join him; a
traveler for curiosity or pleasure and his accompanying son or daughter
under 21 or accompanying wife; a wife of a United States citizen; a
returning laborer; and a person erroneously admitted as a United States
citizen under section 1993 of the Revised Statutes of the United States,
as amended, his father not having resided in the United States prior to
his birth.
(2) On or after July 1, 1924. A Chinese alien for whom there exists
a record of his admission to the United States as a member of one of the
following classes; an alien who establishes that he was readmitted
between July 1, 1924, and December 16, 1943, inclusive, as a returning
Chinese laborer who acquired lawful permanent residence prior to July 1,
1924; a person erroneously admitted between July 1, 1924, and June 6,
1927, inclusive, as a United States citizen under section 1993 of the
Revised Statutes of the United States, as amended, his father not having
resided in the United States prior to his birth; an alien admitted at
any time after June 30, 1924, under section 4 (b) or (d) of the
Immigration Act of 1924; an alien wife of a United States citizen
admitted between June 13, 1930, and December 16, 1943, inclusive, under
section 4(a) of the Immigration Act of 1924; an alien admitted on or
after December 17, 1943, under section 4(f) of the Immigration Act of
1924; an alien admitted on or after December 17, 1943, under section
317(c) of the Nationality Act of 1940, as amended; an alien admitted on
or after December 17, 1943, as a preference or nonpreference quota
immigrant pursuant to section 2 of that act; and a Chinese or Japanese
alien admitted to the United States between July 1, 1924, and December
23, 1952, both dates inclusive, as the wife or minor son or daughter of
a treaty merchant admitted before July 1, 1924, if the husband-father
was lawfully admitted to the United States as a treaty merchant before
July 1, 1924, or, while maintaining another status under which he was
admitted before that date, and his status changed to that of a treaty
merchant or treaty trader after that date, and was maintaining the
changed status at the time his wife or minor son or daughter entered the
United States.
(f) Citizens of the Philippine Islands--(1) Entry prior to May 1,
1934. An alien who establishes that he entered the United States prior
to May 1, 1934, and that he was on the date of his entry a citizen of
the Philippine Islands, provided that for the purpose of petitioning for
naturalization he shall not be regarded as having been lawfully admitted
for permanent residence unless he was a citizen of the Commonwealth of
the Philippines on July 2, 1946.
(2) Entry between May 1, 1934, and July 3, 1946. An alien who
establishes that he entered Hawaii between May 1, 1934, and July 3,
1946, inclusive, under the provisions of the last sentence of section
8(a)(1) of the Act of March 24, 1934, as amended, that he was a citizen
of the Philippine Islands when he entered, and that a record of such
entry exists.
(g) Temporarily admitted aliens. The following aliens who when
admitted expressed an intention to remain in the United States
temporarily or to pass in transit through the United States, for whom
records of admission exist, but who remained in the United States: An
alien admitted prior to June 3, 1921, except if admitted temporarily
under the 9th proviso to section 3 of the Immigration Act of 1917, or as
an accredited official of a foreign government, his suite, family, or
guest, or as a seaman in pursuit of his calling; an alien admitted under
the Act of May 19, 1921, as amended, who was admissible for permanent
residence under that Act notwithstanding the quota limitation's thereof
and his accompanying wife or unmarried son or daughter under 21 who was
admissible for permanent residence under that Act notwithstanding the
quota limitations thereof; and an alien admitted under the Act of May
19, 1921, as amended, who was charged under that Act to the proper quota
at the time of his admission or subsequently and who remained so
charged.
[[Page 49]]
(h) Citizens of the Trust Territory of the Pacific Islands who
entered Guam prior to December 24, 1952. An alien who establishes that
while a citizen of the Trust Territory of the Pacific Islands he entered
Guam prior to December 24, 1952, by records, such as Service records
subsequent to June 15, 1952, records of the Guamanian Immigration
Service, records of the Navy or Air Force, or records of contractors of
those agencies, and was residing in Guam on December 24, 1952.
(i) Aliens admitted to Guam. An alien who establishes that he was
admitted to Guam prior to December 24, 1952, by records such as Service
records subsequent to June 15, 1952, records of the Guamanian
Immigration Service, records of the Navy or Air Force, or records of
contractors of those agencies; that he was not excludable under the Act
of February 5, 1917, as amended; and that he continued to reside in Guam
until December 24, 1952, and thereafter was not admitted or readmitted
into Guam as a nonimmigrant, provided that the provisions of this
paragraph shall not apply to an alien who was exempted from the contract
laborer provisions of section 3 of the Immigration Act of February 5,
1917, as amended, through the exercise, expressly or impliedly, of the
4th or 9th provisos to section 3 of that act.
(j) Erroneous admission as United States citizens or as children of
citizens. (1) (i) An alien for whom there exists a record of admission
prior to September 11, 1957, as a United States citizen who establishes
that at the time of such admission he was the child of a United States
citizen parent; he was erroneously issued a United States passport or
included in the United States passport of his citizen parent
accompanying him or to whom he was destined; no fraud or
misrepresentation was practiced by him in the issuance of the passport
or in gaining admission; he was otherwise admissible at the time of
entry except for failure to meet visa or passport requirements; and he
has maintained a residence in the United States since the date of
admission, or (ii) an alien who meets all of the foregoing requirements
except that if he were, in fact, a citizen of the United States a
passport would not have been required, or it had been individually
waived, and was erroneously admitted as a United States citizen by a
Service officer. For the purposes of all of the foregoing, the terms
child and parent shall be defined as in section 101(b) of the
Immigration and Nationality Act, as amended.
(2) An alien admitted to the United States before July 1, 1948, in
possession of a section 4(a) 1924 Act nonquota immigration visa issued
in accordance with State Department regulations, including a child of a
United States citizen after he reached the age of 21, in the absence of
fraud or misrepresentation; a member of a naturalized person's family
who was admitted to the United States as a United States citizen or as a
section 4(a) 1924 Act nonquota immigrant on the basis of that
naturalization, unless he knowingly participated in the unlawful
naturalization of the parent or spouse rendered void by cancellation, or
knew at any time prior to his admission to the United States of the
cancellation; and a member of a naturalized person's family who knew at
any time prior to his admission to the United States of the cancellation
of the naturalization of his parent or spouse but was admitted to the
United States as a United States citizen pursuant to a State Department
or Service determination based upon a then prevailing administrative
view, provided the State Department or Service knew of the cancellation.
[23 FR 9119, Nov. 26, 1958, as amended at 24 FR 2583, Apr. 3, 1959; 24
FR 6476, Aug. 12, 1959; 25 FR 581, Jan. 23, 1960; 31 FR 535, Jan. 15,
1966]
Sec. 101.2 Presumption of lawful admission; entry under erroneous name or other errors.
An alien who entered the United States as either an immigrant or
nonimmigrant under any of the following circumstances shall be regarded
as having been lawfully admitted in such status, except as otherwise
provided in this part: An alien otherwise admissible whose entry was
made and recorded under other than his full true and correct name or
whose entry record contains errors in recording sex, names of relatives,
or names of foreign places of
[[Page 50]]
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, charges
d'affaires, counselors, secretaries and attaches of embassies and
legations as well as members of the Delegation of the Commission of the
European Communities. The term also includes individuals with comparable
diplomatic status and immunities who are accredited to the United
Nations or to the Organization of American States, and other individuals
who are also accorded comparable diplomatic status.
(b) Child born subject to the jurisdiction of the United States. A
child born in the United States is born subject to the jurisdiction of
the United States and is a United States citizen if the parent is not a
``foreign diplomatic officer'' as defined in paragraph (a)(2) of this
section. This includes, for example, a child born in the United States
to one of the following foreign government officials or employees:
(1) Employees of foreign diplomatic missions whose names appear in
the State Department list entitled ``Employees of Diplomatic Missions
Not Printed in the Diplomatic List,'' also known as the White List;
employees of foreign diplomatic missions accredited to the United
Nations or the Organization of American States; or foreign diplomats
accredited to other foreign states. The majority of these individuals
enjoy certain diplomatic immunities, but they are not ``foreign
diplomatic officers'' as defined in paragraph (a)(2) of this section.
The immunities, if any, of their family members are derived from the
status of the employees or diplomats.
(2) Foreign government employees with limited or no diplomatic
immunity such as consular officials named on the State Department list
entitled ``Foreign Consular Officers in the United States'' and their
staffs.
(c) Voluntary registration as lawful permanent resident of person
born to foreign diplomat. Since a person born in the United States to a
foreign diplomatic officer is not subject to the jurisdiction of the
United States, his/her registration as a lawful permanent resident of
the United States is voluntary. The provisions of section 262 of the Act
do not apply to such a person unless and until that person ceases to
have the rights, privileges, exemptions, or immunities which may be
claimed by a foreign diplomatic officer.
(d) Retention of lawful permanent residence. To be eligible for
lawful permanent resident status under paragraph (a) of this section, an
alien must establish that he/she has not abandoned his/her residence in
the United States. One of the tests for retention of lawful permanent
resident status is continuous residence, not continuous physical
presence, in the United States. Such a person will not be considered to
have abandoned his/her residence in the
[[Page 51]]
United States solely by having been admitted to the United States in a
nonimmigrant classification under paragraph (15)(A) or (15)(G) of
section 101(a) of the Act after a temporary stay in a foreign country or
countries on one or several occasions.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act,
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
[47 FR 940, Jan. 8, 1982]
Sec. 101.4 Registration procedure.
The procedure for an application for creation of a record of lawful
permanent residence and an Alien Registration Receipt Card, Form I-551,
for a person eligible for presumption of lawful admission for permanent
residence under Sec. 101.1 or Sec. 101.2 or for lawful permanent
residence as a person born in the United States to a foreign diplomatic
officer under Sec. 101.3 is described in Sec. 264.2 of this chapter.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act,
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
[47 FR 941, Jan. 8, 1982]
Sec. 101.5 Special immigrant status for certain G-4 nonimmigrants.
(a) Application. An application for adjustment to special immigrant
status under section 101(a)(27)(I) of the INA shall be made on Form I-
485. The application date of the I-485 shall be the date of acceptance
by the Service as properly filed. If the application date is other than
the fee receipt date it must be noted and initialed by a Service
officer. The date of application for adjustment of status is the closing
date for computing the residence and physical presence requirement. The
applicant must have complied with all requirements as of the date of
application.
(b) Documentation. All documents must be submitted in accordance
with Sec. 103.2(b) of this chapter. The application shall be accompanied
by documentary evidence establishing the aggregate residence and
physical presence required. Documentary evidence may include official
employment verification, records of official or personnel transactions
or recordings of events occurring during the period of claimed residence
and physical presence. Affidavits of credible witnesses may also be
accepted. Persons unable to furnish evidence in their own names may
furnish evidence in the names of parents or other persons with whom they
have been living, if affidavits of the parents or other persons are
submitted attesting to the claimed residence and physical presence. The
claimed family relationship to the principle G-4 international
organization officer or employee must be substantiated by the submission
of verifiable civil documents.
(c) Residence and physical presence requirements. All applicants
applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA
must have resided and been physically present in the United States for a
designated period of time.
For purposes of this section only, an absence from the United States
to conduct official business on behalf of the employing organization, or
approved customary leave shall not be subtracted from the aggregated
period of required residence or physical presence for the current or
former G-4 officer or employee or the accompanying spouse and unmarried
sons or daughters of such officer or employee, provided residence in the
United States is maintained during such absences, and the duty station
of the principle G-4 nonimmigrant continues to be in the United States.
Absence from the United States by the G-4 spouse or unmarried son or
daughter without the principle G-4 shall not be subtracted from the
aggregate period of residence and physical presence if on customary
leave as recognized by the international organization employer. Absence
by the unmarried son or daughter while enrolled in a school outside the
United States will not be counted toward the physical presence
requirement.
(d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i),
and (ii) requires the applicant to accrue the required period of
residence and physical presence in the United States while maintaining
status as a G-4 or N nonimmigrant. Section 101(a)(27)(I)(iii) requires
such time accrued only in G-4 nonimmigrant status.
Maintaining G-4 status for this purpose is defined as maintaining
qualified employment with a ``G'' international
[[Page 52]]
organization or maintaining the qualifying family relationship with the
G-4 international organization officer or employee. Maintaining status
as an N nonimmigrant for this purpose requires the qualifying family
relationship to remain in effect. Unauthorized employment will not
remove an otherwise eligible alien from G-4 status for residence and
physical presence requirements, provided the qualifying G-4 status is
maintained.
[54 FR 5927, Feb. 7, 1989]
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS--Table of Contents
Sec.
103.1 Delegations of authority.
103.2 Applications, petitions, and other documents.
103.3 Denials, appeals, and precedent decisions.
103.4 Certifications.
103.5 Reopening or reconsideration.
103.5a Service of notification, decisions, and other papers by the
Service.
103.5b Application for further action on an approved application or
petition.
103.6 Surety bonds.
103.7 Fees.
103.8 Definitions pertaining to availability of information under the
Freedom of Information Act.
103.9 Availability of decisions and interpretive material under the
Freedom of Information Act.
103.10 Requests for records under the Freedom of Information Act.
103.11 Business information.
103.12 Definition of the term ``lawfully present'' aliens for purposes
of applying for Title II Social Security benefits under Public
Law 104-193.
103.20 Purpose and scope.
103.21 Access by individuals to records maintained about them.
103.22 Records exempt in whole or in part.
103.23 Special access procedures.
103.24 Requests for accounting of record disclosure.
103.25 Notice of access decisions; time limits.
103.26 Fees for copies of records.
103.27 Appeals from denials of access.
103.28 Requests for correction of records.
103.29 Records not subject to correction.
103.30 Accounting for disclosures.
103.31 Notices of subpoenas and emergency disclosures.
103.32 Information forms.
103.33 Contracting record systems.
103.34 Security of records systems.
103.35 Use and collection of Social Security numbers.
103.36 Employee standards of conduct with regard to privacy.
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557,
3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
Source: 40 FR 44481, Sept. 26, 1975, unless otherwise noted.
Sec. 103.1 Delegations of authority.
(a) Deputy Commissioner. Without divesting the Commissioner of any
of the powers, duties, and privileges delegated by the Attorney General,
coextensive authority is delegated to the Deputy Commissioner. The
Deputy Commissioner is delegated responsibility for providing overall
supervision and direction to the four Executive Associate Commissioners
of the Service.
(b) General Counsel--(1) General. Under the direction and
supervision of the Commissioner, the General Counsel is delegated the
authority to carry out the duties of the chief legal officer for the
Service, and is assisted by the deputy general counsel(s) and staff. The
General Counsel advises the Commissioner, the Deputy Commissioner, and
staff on legal matters; prepares legislative reports; and assists in
litigation. The General Counsel is delegated the authority to oversee
the professional activities of all Service attorneys assigned to field
offices and to make recommendations to the Department of Justice on all
personnel matters involving Service attorneys, including attorney
discipline which requires final action or approval by the Deputy
Attorney General or other designated Department of Justice official. The
General Counsel is delegated authority to perform the functions
conferred upon the Commissioner with respect to production or disclosure
of material in Federal and state proceedings as provided in 28 CFR
16.24(a).
(2) Regional Counsel. In addition to other legal activities
performed under the direction and supervision of the General Counsel,
Regional Counsel are delegated authority within their respective
regional areas, concurrent with that of the General Counsel, to perform
the functions conferred upon
[[Page 53]]
the Commissioner with respect to production or disclosure of material in
Federal and state proceedings as provided in 28 CFR 16.24(a).
(c) Director of Congressional Relations. Under the direction and
supervision of the Commissioner, the Director of Congressional Relations
is delegated authority to respond to Congressional inquiries and advise
the Commissioner and staff concerning legislative matters of the
Service.
(d) Director of Public Affairs. Under the direction and supervision
of the Commissioner, the Director of Public Affairs is delegated
authority to direct and coordinate public affairs policy, public
information, news releases, public liaison, and outreach; to advance
public affairs and Service initiatives such as naturalization and
employer education; and to produce information products.
(e) Director of Internal Audit. Under the direction and supervision
of the Commissioner, the Director of the Office of Internal Audit is
delegated authority to plan, direct, and coordinate the Service's
internal audit program and compliance review program; to initiate and to
conduct or direct the conduct of investigations of alleged mismanagement
by Service employees; to initiate and to conduct or direct the conduct
of investigations of alleged misconduct by Service employees, subject to
agreements with the Department's Office of Professional Responsibility
and Office of Inspector General (OIG); to exercise those powers and
authorities necessary to investigate matters which are material and
relevant to the administration of the Service, including the power and
authority to administer oaths and to take and consider evidence; to
collect information concerning the efficiency and effectiveness of
Service operations and programs and Service systems to eliminate fraud,
waste, and abuse in the workplace; and to act as the Service's liaison
with outside audit/inspection agencies.
(f) Executive Associate Commissioner for Programs--(1) General.
Under the direction and supervision of the Deputy Commissioner, the
Executive Associate Commissioner for Programs is delegated authority for
policy development, review and integration of the Service's enforcement
and examinations programs, and for providing general direction to, and
supervision of, the Associate Commissioners for Enforcement and
Examinations.
(2) Associate Commissioner for Enforcement--(i) General. Under the
direction and supervision of the Executive Associate Commissioner for
Programs, the Associate Commissioner for Enforcement is delegated
authority and responsibility for program and policy planning,
development, coordination, evaluation, and staff direction to the Border
Patrol, Investigations, Detention and Deportation, Intelligence, and
Asset Forfeiture programs, and to impose administrative fines,
penalties, and forfeitures under sections 274, 274A and 274C of the Act.
The Associate Commissioner for Enforcement is responsible for providing
general direction and supervision to the:
(A) Assistant Commissioner for Border Patrol;
(B) Assistant Commissioner for Investigations;
(C) Assistant Commissioner for Detention and Deportation;
(D) Assistant Commissioner for Intelligence; and
(E) Director of Asset Forfeiture.
(ii) Director of Asset Forfeiture. Under the direction and
supervision of the Associate Commissioner for Enforcement, the Director
of Asset Forfeiture is delegated the authority to direct and coordinate
the Service program under section 274(b) of the Act which provides for
the seizure and forfeiture of conveyances used in violation of section
274(a) of the Act.
(3) Associate Commissioner for Examinations. (i) General. Under the
direction and supervision of the Executive Associate Commissioner for
Programs, the Associate Commissioner for Examinations is delegated
authority and responsibility for program and policy planning,
development, coordination, evaluation, and staff direction to the
Adjudications and Nationality, Inspections, Administrative Appeals,
Service Center Operations, and Records programs, and to direct and
supervise the:
(A) Assistant Commissioner for Adjudications and Nationality;
[[Page 54]]
(B) Assistant Commissioner for Inspections;
(C) Assistant Commissioner for Service Center Operations;
(D) Assistant Commissioner for Records; and
(E) Director of Administrative Appeals.
(ii) Administrative Fines. The Associate Commissioner for
Examinations is delegated the authority to impose administrative fines
under provisions of the Act in any case which is transmitted to the
National Fines Office by a district director.
(iii) Appellate Authorities. In addition, the Associate Commissioner
for Examinations exercises appellate jurisdiction over decisions on;
(A) Breaching of bonds under Sec. 103.6(e);
(B) Petitions for immigrant visa classification based on employment
or as a special immigrant or entrepreneur under Secs. 204.5 and 204.6 of
this chapter except when the denial of the petition is based upon lack
of a certification by the Secretary of Labor under section 212(a)(5)(A)
of the Act;
(C) Indochinese refugee applications for adjustment of status under
section 103 of the Act of October 28, 1977;
(D) Revoking approval of certain petitions under Sec. 205.2 of this
chapter.;
(E) Applications for permission to reapply for admission to the
United States after deportation or removal under Sec. 212.2 of this
chapter;
(F) Applications for waiver of certain grounds of excludability
under Sec. 212.7(a) of this chapter;
(G) Applications for waiver of the two-year foreign residence
requirement under Sec. 212.7(c) of this chapter;
(H) Petitions for approval of schools under Sec. 214.3 of this
chapter;
(I) Decisions of district directors regarding withdrawal of approval
of schools for attendance by foreign students under Sec. 214.4 of this
chapter;
(J) Petitions for temporary workers or trainees and fiancees or
fiances of U.S. citizens under Secs. 214.2 and 214.6 of this chapter;
(K) Applications for issuance of reentry permits under 8 CFR part
223;
(L) Applications for refugee travel documents under 8 CFR part 223;
(M) Applications for benefits of section 13 of the Act of September
11, 1957, as amended, under Sec. 245.3 of this chapter;
(N) Adjustment of status of certain resident aliens to nonimmigrants
under Sec. 247.12(b) of this chapter;
(O) Applications to preserve residence for naturalization purposes
under Sec. 316a.21(c) of this chapter;
(P) Applications for certificates of citizenship under Sec. 341.6 of
this chapter;
(Q) Administration cancellation of certificates, documents, and
records under Sec. 342.8 of this chapter;
(R) Applications for certificates of naturalization or repatriation
under Sec. 343.1 of this chapter;
(S) Applications for new naturalization or citizenship papers under
Sec. 343a.1(c) of this chapter;
(T) Applications for special certificates of naturalization under
Sec. 343b.11(b) of this chapter;
(U) Applications by organizations to be listed on the Service
listing of free legal services program and removal therefrom under Part
292a of this chapter;
(V) Petitions to classify Amerasians under Public Law 97-359 as the
children of United States citizens;
(W) Revoking approval of certain petitions, as provided in
Secs. 214.2 and 214.6 of this chapter;
(X) Orphan petitions under 8 CFR 204.3;
(Y) Applications for advance process of orphan petitions under 8 CFR
204.3;
(Z) Invalidation of a temporary labor certification issued by the
governor of Guam under Sec. 214.2(h)(3)(v) of this chapter;
(AA) Application for status as temporary or permanent resident under
Secs. 245a.2 or 245a.3 of this chapter;
(BB) Application for status as temporary resident under Sec. 210.2
of this chapter;
(CC) Termination of status as temporary resident under Sec. 210.4 of
this chapter;
(DD) Termination of status as temporary resident under Sec. 245a.2
of this chapter;
(EE) Application for waiver of grounds of excludability under Parts
210, 210a, and 245a of this chapter;
[[Page 55]]
(FF) Application for status of certain Cuban and Haitian nationals
under section 202 of the Immigration Reform and Control Act of 1986;
(GG) A self-petition filed by a spouse or child based on the
relationship to an abusive citizen or lawful permanent resident of the
United States for classification under section 201(b)(2)(A)(i) of the
Act or section 203(a)(2)(A) of the Act;
(HH) Application for Temporary Protected Status under part 240 of
this chapter;
(II) Petitions for special immigrant juveniles under part 204 of
this chapter;
(JJ) Applications for adjustment of status under part 245 of this
title when denied solely because the applicant failed to establish
eligibility for the bona fide marriage exemption contained in section
245(e) of the Act;
(KK) Petition for Armed Forces Special Immigrant under Sec. 204.9 of
this chapter;
(LL) Request for participation as a regional center under
Sec. 204.6(m) of this chapter;
(MM) Termination of participation of regional center under
Sec. 204.6(m) of this chapter; and
(NN) Application for certification for designated fingerprinting
services under Sec. 103.2(e) of this chapter.
(iv) Director of the National Fines Office. Under the direction of
the Assistant Commissioner for Inspections, the Director of the National
Fines Office has program, administrative, and supervisory responsibility
for all personnel assigned to the National Fines Office. The Director of
the National Fines Office is delegated the authority by the Associate
Commissioner for Examinations to impose fines, penalties, and liquidated
damages under sections 214, 231, 233, 237, 238, 239, 243, 251, 252, 253,
254, 255, 256, 257, 258, 271, 272, 273 and 274C of the Act.
(v) Service Center directors. Under the direction and supervision of
the Assistant Commissioner for Service Center Operations, the service
center directors are delegated the authority to control all activities
conducted within their offices and supervisory responsibility for all
personnel assigned to their offices. Center directors are delegated the
authority to grant or deny any application or petition submitted to the
Service, except for matters delegated to asylum officers pursuant to
part 208 and Sec. 253.1(f) of this chapter, or exclusively delegated to
district directors.
(g) Executive Associate Commissioner for Field Operations--(1)
General. Under the direction and supervision of the Deputy Commissioner,
the Executive Associate Commissioner for Field Operations is delegated
authority and responsibility for implementing policies of the Service's
field operations, and for providing general direction to and supervision
of the regional directors and the Director of International Affairs.
(2) Regional directors--(i) General. Under the direction and
supervision of the Executive Associate Commissioner for Field
Operations, the regional directors are delegated authority and
responsibility for the Service's field operations within their
respective geographical areas, and for providing direction to and
supervision of the district directors and chief patrol agents within
their respective regions.
(ii) District directors. (A) District directors of offices located
within the United States are under the direction and supervision of the
regional director. District directors of foreign offices are under the
direction and supervision of the Director of International Affairs.
District directors are delegated authority to control all activities
conducted within their offices and to supervise all personnel, except
Service attorneys, assigned to their offices.
(B) District directors are delegated the authority to grant or deny
any application or petition submitted to the Service, except for matters
delegated to asylum officers pursuant to part 208 and Sec. 253.1(f) of
this chapter, or exclusively delegated to service center directors, to
initiate any authorized proceeding in their respective districts, and to
exercise the authorities under Secs. 242.1(a), 242.2(a) and 242.7 of
this chapter without regard to geographical limitations. District
directors are delegated authority to conduct the proceeding provided for
in Sec. 252.2 of this chapter.
(C) Applications filed for special agricultural worker or
legalization status pursuant to sections 210 and 245a of the
[[Page 56]]
Act, respectively, may be approved by the district director having
jurisdiction of the office where a second interview is required by the
service center, if the alien in the second interview can establish
eligibility for approval. District directors may deny applications for
special agricultural worker or legalization status at offices under
their jurisdiction.
(D) Officers in charge--(1) General. Under the direction and
supervision of the district director, officers in charge are delegated
authority to control all activities conducted within their offices and
to supervise all personnel assigned to their office. Officers in charge
direct inspection activities at ports-of-entry and the authorization of
extensions of nonimmigrant admission periods and of voluntary departure
prior to the commencement of deportation hearings. The Officers in
charge in the places enumerated in Sec. 212.1(i) of this chapter are
delegated the authority to act on requests for waiver of visa and
passport requirements under the provisions of section 212(d)(4)(A) of
the Act.
(2) The offices located in Oranjestaad, Aruba; Calgary, Alberta,
Canada; Edmonton, Alberta, Canada; Freeport, Bahamas; Hamilton, Bermuda;
Nassau, Bahamas; Shannon, Ireland; Toronto, Ontario, Canada; Vancouver,
British Columbia, Canada; Victoria, British Columbia, Canada; Winnipeg,
Manitoba, Canada; Dublin, Ireland; and such other preinspection or
preclearance sites as the Service may establish in the future, are
delegated authority to perform the function of preinspection of
passengers and crews on aircraft and surface vessels, as appropriate,
which are departing directly to the United States mainland.
(3) The Officer in charge of the office in Montreal, Canada, is
authorized to perform preinspection of passengers and crew of aircraft
departing directly to the United States mainland and to authorize or
deny waivers of grounds of excludability under section 212 (h) and (i)
of the Act; also, to approve or deny applications for permission to
reapply for admission to the United States after deportation or removal,
when filed in conjunction with an application for waiver of grounds of
excludability under section 212 (h) or (i) of the Act.
(iii) Chief patrol agents. Under the direction and supervision of a
regional director, chief patrol agents are delegated authority to direct
the Border Patrol activities of the Service within their respective
sectors, including exercising the authority in section 242(b) of the Act
to permit aliens to depart voluntarily from the United States prior to
commencement of a hearing.
(3) Director of International Affairs--(i) General. Under the
direction and supervision of the Executive Associate Commissioner for
Field Operations, the Director of International Affairs is delegated
authority to direct and supervise the foreign office district directors,
to maintain the integrity and efficiency of the Service's international
operations, and to administer programs related to refugee, asylum, and
parole benefits. The Director of International Affairs is also
responsible for the direction and supervision of overseas preinspection
at sites, if any, for which the Commissioner has specifically delegated
inspection authority to the Office of International Affairs. The
Director serves as the principal liaison with foreign governments and
other agencies of the United States in overseas locations.
(ii) Asylum Officers. Asylum officers serve under the supervision
and direction of the Director of International Affairs, and shall be
specially trained as required in Sec. 208.1(b) of this chapter. Asylum
officers are delegated the authority to hear and adjudicate applications
for asylum and for withholding of deportation, as provided under part
208 and Sec. 253.1(f) of this chapter.
(iii) Officer in Charge. The officers in charge of the offices
located at Athens, Greece; Mexico City, Mexico; Ciudad Juarez, Mexico;
Rome, Italy; Frankfurt, Germany; Moscow, Russia; Vienna, Austria;
Tegucigalpa, Honduras; Bangkok, Thailand; Hong Kong, BCC; London,
England; Manila, Philippines; Monterrey, Mexico; Nairobi, Kenya; New
Delhi, India; Seoul, Korea; Singapore, Republic of Singapore; Tijuana,
Mexico; Port-au-Prince, Haiti; Karachi, Pakistan; and such other
overseas suboffices as the Service may establish in
[[Page 57]]
the future, are delegated authority to perform the following functions:
(A) Authorize waivers of grounds of excludability under sections 212
(h) and (i) of the Act;
(B) Adjudicate applications for permission to reapply for admission
to the United States after deportation or removal, if filed by an
applicant for an immigrant visa in conjunction with an application for
waiver of grounds of excludability under section 212 (h) or (i) of the
Act, or if filed by an applicant for a nonimmigrant visa under section
101(a)(15)(K) of the Act;
(C) Approve or deny visa petitions for any relative;
(D) Approve recommendations made by consular officers for waiver of
grounds of excludability in behalf of nonimmigrant visa applicants under
section 212(d)(3) of the Act and concur in proposed waivers by consular
officers of the requirement of visa or passport by a nonimmigrant on the
basis of unforeseen emergency in cases in which the Department of State
had delegated recommending power to the consular officers;
(E) Exercise discretion to grant or deny applications for the
benefits set forth in sections 211 and 212(c) of the Act;
(F) Process Form I-90 applications and deliver duplicate Forms I-
551;
(G) Process Form N-565 applications and deliver certificates issued
thereunder; and
(H) Grant or deny applications of aliens seeking classification as
refugees under section 207 of the Act.
(h) Executive Associate Commissioner for Policy and Planning. Under
the direction and supervision of the Deputy Commissioner, the Executive
Associate Commissioner for Policy and Planning is delegated the
authority to oversee the development and coordination of long-range
planning activities, and policy formulation, codification, and
dissemination within the Agency. The Executive Associate Commissioner is
also responsible for informing and advising the Commissioner and the
Deputy Commissioner on other issues which cross program lines or bear
inter-agency implications. The Executive Associate Commissioner also
serves as liaison with, and representative of, the Service to other
organizations engaged in policy development in matters affecting the
mission of the Service, research and statistics, and the exchange of
statistical, scientific, technological data and research.
(i) Executive Associate Commissioner for Management--(1) General.
Under the direction and supervision of the Deputy Commissioner, the
Executive Associate Commissioner for Management is delegated authority
to plan, direct, and manage all aspects of the administration of the
Service. The delegation includes the authority to develop and promulgate
administrative policies and programs for all financial, human resource,
administrative, and information resource matters of the Service. The
Executive Associate Commissioner for Management is delegated the
authority to settle tort claims of $25,000 or less than 28 U.S.C. 2672,
and to compromise, suspend, or terminate collection of claims of the
United States not exceeding $100,000 (exclusive of interest) under 31
U.S.C. 3711. The Executive Associate Commissioner for Management
supervises the Directors of Security, Equal Employment Opportunity, and
Files and Forms Management, the Associate Commissioner for Human
Resources and Administration, the Associate Commissioner for Finance,
the Associate Commissioner for Information Resources Management, and the
Directors, Administrative Centers.
(2) Director of Security. Under the direction and supervision of the
Executive Associate Commissioner for Management, the Director of the
Office of Security is delegated authority to develop policy, plan,
direct, and coordinate the Service's security program. The Security
program includes the application of safeguards in program areas of
personnel security, physical security, information and document
security, automated data processing and telecommunications security, and
contingency planning related to threat, loss, or other serious emergency
in any of these areas.
(3) Director of Equal Employment Opportunity. Under the direction
and supervision of the Executive Associate
[[Page 58]]
Commissioner for Management, the Director of Equal Employment
Opportunity is delegated authority to develop policies and to implement
and direct the Service's programs relating to equal employment
opportunity for all employees and applicants. The Director is
responsible for the Service's efforts to comply with provisions of the
Civil Rights Act of 1964 and Department of Justice programs and
directives affecting discrimination in employment. The Director
supervises, coordinates, directs, and evaluates the affirmative
employment and discrimination complaint program of the Service.
(4) Director of Files and Forms Management. Under the direction and
supervision of the Executive Associate Commissioner for Management, the
Director of Files and Forms Management is delegated authority to develop
policies, plan, coordinate, evaluate, counsel, and direct the Service's
National Records Center, Forms Center, SAVE Program, centralized FOIA/
PA, records policy, and correspondence files programs.
(5) Associate Commissioner for Human Resources and Administration.
Under the direction and supervision of the Executive Associate
Commissioner for Management, the Associate Commissioner for Human
Resources and Administration is delegated authority to develop policies,
plan, develop, coordinate, evaluate, counsel, and direct the personnel,
career development, contracting, engineering, facility, and
administrative programs of the Service. The Associate Commissioner for
Human Resources and Administration provides direction to, and
supervision of, the:
(i) Assistant Commissioner for Human Resources and Development; and
(ii) Assistant Commissioner for Administration.
(6) Associate Commissioner for Finance. Under the direction and
supervision of the Executive Associate Commissioner for Management, the
Associate Commissioner for Finance is delegated authority to develop
policies, plan, develop, coordinate, evaluate, counsel, and direct the
Service's resource requirements and utilization. The Associate
Commissioner for Finance is responsible for all aspects of financial
management, including budgeting, reporting, internal controls, and
analysis. The Associate Commissioner for Finance is responsible for the
presentation of internal reports to management, the preparation of
external reports and certifications required by statute or regulation,
and the representation of the Service before the Congress, and agencies
of the Executive Branch on matters related to financial activities. The
Associate Commissioner for Finance is also delegated authority to settle
claims of $10,000 or less under 28 U.S.C. 2672 and to compromise,
suspend, or terminate collection of claims of the United States not
exceeding $50,000 (exclusive of interest) under 31 U.S.C. 3711. The
Associate Commissioner for Finance provides direction to, and
supervision of, the:
(i) Associate Commissioner for Budget; and (ii) Assistant
Commissioner for Financial Management.
(7) Associate Commissioner for Information Resources Management.
Under the direction and supervision of the Executive Associate
Commissioner for Management, the Associate Commissioner for Information
Resources Management is delegated authority to develop policies, plan,
develop, coordinate, evaluate, counsel, manage and direct the Service's
Automated Data Processing, Telecommunication, Radio, and Electronic
programs. The Associate Commissioner for Information Resources
Management provides direction to, and supervision of, the:
(i) Assistant Commissioner for Data Systems; and
(ii) Assistant Commissioner for Systems Integration.
(8) Directors of Administrative Centers. Under the direction and
supervision of the Executive Associate Commissioner for Management, the
directors are delegated authority over the human resources,
administrative, information resource, security, and financial activities
of the Service within their respective area of responsibility. They are
also delegated the authority to: (i) Settle tort claims of $10,000 or
less under 28 U.S.C. 2672; and
(ii) Compromise, suspend, or terminate collection of claims of the
United States not exceeding $50,000 (exclusive of interest) under 31
U.S.C. 3711.
[[Page 59]]
(j) Immigration Officer. Any immigration officer, immigration
inspector, immigration examiner, adjudications officers, Border Patrol
agent, aircraft pilot, airplane pilot, helicopter pilot, deportation
officer, detention enforcement officer, detention guard, investigator,
special agent, investigative assistant, intelligence officer,
intelligence agent, general attorney, applications adjudicator, contact
representative, chief legalization officer, supervisory legalization
officer, legalization adjudicator, legalization officer and legalization
assistant, forensic document analyst, fingerprint specialist,
immigration information officer, immigration agent (investigations),
asylum officer, or senior or supervisory officer of such employees is
hereby designated as an immigration officer authorized to exercise the
powers and duties of such officer as specified by the Act and this
chapter.
[59 FR 60070, Nov. 22, 1994, as amended at 61 FR 13072, Mar. 26, 1996;
61 FR 28010, June 4, 1996]
Sec. 103.2 Applications, petitions, and other documents.
(a) Filing. (1) General. Every application, petition, appeal,
motion, request, or other document submitted on the form prescribed by
this chapter shall be executed and filed in accordance with the
instructions on the form, such instructions, which include where an
application or petition should be filed, being hereby incorporated into
the particular section of the regulations requiring its submission. The
form must be filed with the appropriate filing fee required by
Sec. 103.7. Such fees are non-refundable and, except as otherwise
provided in this chapter, must be paid when the application or petition
is filed.
(2) Signature. An applicant or petitioner must sign his or her
application or petition. However, a parent or legal guardian may sign
for a person who is less than 14 years old. A legal guardian may sign
for a mentally incompetent person. By signing the application or
petition, the applicant or petitioner, or parent or guardian certifies
under penalty of perjury that the application or petition, and all
evidence submitted with it, either at the time of filing or thereafter,
is true and correct.
(3) Representation. An applicant or petitioner may be represented by
an attorney in the United States, as defined in Sec. 1.1(f) of this
chapter, by an attorney outside the United States as defined in
Sec. 292.1(a)(6) of this chapter, or by an accredited representative as
defined in Sec. 292.1(a)(4) of this chapter. A beneficiary of a petition
is not a recognized party in such a proceeding. An application or
petition presented in person by someone who is not the applicant or
petitioner, or his or her representative as defined in this paragraph,
shall be treated as if received through the mail, and the person advised
that the applicant or petitioner, and his or her representative, will be
notified of the decision. Where a notice of representation is submitted
that is not properly signed, the application or petition will be
processed as if the notice had not been submitted.
(4) Oath. Any required oath may be administered by an immigration
officer or person generally authorized to administer oaths, including
persons so authorized by Article 136 of the Uniform Code of Military
Justice.
(5) Translation of name. If a document has been executed in an
anglicized version of a name, the native form of the name may also be
required.
(6) Where to file. Except as otherwise provided in this chapter, an
application or petition should be filed with the INS office or Service
Center with jurisdiction over the application or petition and the place
of residence of the applicant or petitioner as indicated in the
instructions with the respective form.
(7) Receipt date. (i) General. An application or petition received
in a Service office shall be stamped to show the time and date of actual
receipt and, unless otherwise specified in part 204 or part 245 of this
chapter, shall be regarded as filed when so stamped, if it is properly
signed and executed and the required fee is attached or a fee waiver is
granted. An application which is not properly signed or is submitted
with the wrong fee shall be rejected as improperly filed. Rejected
applications, and ones in which the check or other financial instrument
is returned as not payable, will not retain a filing date.
[[Page 60]]
An application or petition taken to a local Service office for the
completion of biometric information prior to filing at a Service Center
shall be considered received when physically received at the appropriate
Service Center.
(ii) Non-payment. If a check or other financial instrument used to
pay a filing fee is subsequently returned as not payable, the remitter
shall be notified and requested to immediately pay the filing fee and
associated service charge within 14 days, without extension. If the
application or petition is pending and these charges are not paid, it
shall be rejected as improperly filed. If it was already approved, and
these charges are not paid, it shall be automatically revoked because it
was improperly filed. If it was already denied, revoked, or abandoned,
that decision will not be affected by the non-payment of the filing fee.
A new fee will be required with any new application or petition. Any fee
and service charges collected as the result of collection activities or
legal action on the prior application or petition shall be used to cover
the cost of the previous rejection, revocation, or other action.
(b) Evidence and processing. (1) General. An applicant or petitioner
must establish eligibility for a requested immigration benefit. An
application or petition form must be completed as applicable and filed
with any initial evidence required by regulation or by the instructions
on the form. Any evidence submitted is considered part of the relating
application or petition.
(2) Submitting secondary evidence and affidavits. (i) General. The
non-existence or other unavailability of required evidence creates a
presumption of ineligibility. If a required document, such as a birth or
marriage certificate, does not exist or cannot be obtained, an applicant
or petitioner must demonstrate this and submit secondary evidence, such
as church or school records, pertinent to the facts at issue. If
secondary evidence also does not exist or cannot be obtained, the
applicant or petitioner must demonstrate the unavailability of both the
required document and relevant secondary evidence, and submit two or
more affidavits, sworn to or affirmed by persons who are not parties to
the petition who have direct personal knowledge of the event and
circumstances. Secondary evidence must overcome the unavailability of
primary evidence, and affidavits must overcome the unavailability of
both primary and secondary evidence.
(ii) Demonstrating that a record is not available. Where a record
does not exist, the applicant or petitioner must submit an original
written statement on government letterhead establishing this from the
relevant government or other authority. The statement must indicate the
reason the record does not exist, and indicate whether similar records
for the time and place are available. However, a certification from an
appropriate foreign government that a document does not exist is not
required where the Department of State's Foreign Affairs Manual
indicates this type of document generally does not exist. An applicant
or petitioner who has not been able to acquire the necessary document or
statement from the relevant foreign authority may submit evidence that
repeated good faith attempts were made to obtain the required document
or statement. However, where the Service finds that such documents or
statements are generally available, it may require that the applicant or
petitioner submit the required document or statement.
(iii) Evidence provided with a self-petition filed by a spouse or
child of abusive citizen or resident. The Service will consider any
credible evidence relevant to a self-petition filed by a qualified
spouse or child of an abusive citizen or lawful permanent resident under
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not
required to, demonstrate that preferred primary or secondary evidence is
unavailable. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
the Service.
(3) Translations. Any document containing foreign language submitted
to the Service shall be accompanied by a full English language
translation which the translator has certified as complete and accurate,
and by the translator's certification that he or she
[[Page 61]]
is competent to translate from the foreign language into English.
(4) Submitting copies of documents. Application and petition forms
must be submitted in the original. Forms and documents issued to support
an application or petition, such as labor certifications, Form IAP-66,
medical examinations, affidavits, formal consultations, and other
statements, must be submitted in the original unless previously filed
with the Service. When submission is required, expired Service documents
must be submitted in the original, as must Service documents required to
be annotated to indicate the decision. In all other instances, unless
the relevant regulations or instructions specifically require that an
original document be filed with an application or petition, an ordinary
legible photocopy may be submitted. Original documents submitted when
not required will remain a part of the record, even if the submission
was not required.
(5) Request for an original document. Where a copy of a document is
submitted with an application or petition, the Service may at any time
require that the original document be submitted for review. If the
requested original, other than one issued by the Service, is not
submitted within 12 weeks, the petition or application shall be denied
or revoked. There shall be no appeal from a denial or revocation based
on the failure to submit an original document upon the request of the
Service to substantiate a previously submitted copy. Further, an
applicant or petitioner may not move to reopen or reconsider the
proceeding based on the subsequent availability of the document. An
original document submitted pursuant to a Service request shall be
returned to the petitioner or applicant when no longer required.
(6) Withdrawal. An applicant or petitioner may withdraw an
application or petition at any time until a decision is issued by the
Service or, in the case of an approved petition, until the person is
admitted or granted adjustment or change of status, based on the
petition. However, a withdrawal may not be retracted.
(7) Testimony. The Service may require the taking of testimony, and
may direct any necessary investigation. When a statement is taken from
and signed by a person, he or she shall, upon request, be given a copy
without fee. Any allegations made subsequent to filing an application or
petition which are in addition to, or in substitution for, those
originally made, shall be filed in the same manner as the original
application, petition, or document, and acknowledged under oath thereon.
(8) Request for evidence. If there is evidence of ineligibility in
the record, an application or petition shall be denied on that basis
notwithstanding any lack of required initial evidence. If the
application or petition was pre-screened by the Service prior to filing
and was filed even though the applicant or petitioner was informed that
the required initial evidence was missing, the application or petition
shall be denied for failure to contain the necessary evidence. Except as
otherwise provided in this chapter, in other instances where there is no
evidence of ineligibility, and initial evidence or eligibility
information is missing or the Service finds that the evidence submitted
either does not fully establish eligibility for the requested benefit or
raises underlying questions regarding eligibility, the Service shall
request the missing initial evidence, and may request additional
evidence, including blood tests. In such cases, the applicant or
petitioner shall be given 12 weeks to respond to a request for evidence.
Additional time may not be granted. Within this period the applicant or
petitioner may:
(i) Submit all the requested initial or additional evidence;
(ii) Submit some or none of the requested additional evidence and
ask for a decision based on the record; or
(iii) Withdraw the application or petition.
(9) Request for appearance. An applicant, a petitioner, and/or a
beneficiary may be required to appear for an interview. A petitioner
shall also be notified when an interview notice is mailed or issued to a
beneficiary. The person may appear as requested by the Service or, prior
to the date and time of the interview:
[[Page 62]]
(i) The person to be interviewed may, for good cause, request that
the interview be rescheduled; or
(ii) The applicant or petitioner may withdraw the application or
petition.
(10) Effect of a request for initial or additional evidence or for
interview rescheduling. (i) Effect on processing. The priority date of a
properly filed petition shall not be affected by a request for missing
initial evidence or request for other evidence. If an application or
petition is missing required initial evidence, or an applicant,
petitioner, or beneficiary requests that an interview be rescheduled,
any time period imposed on Service processing will start over from the
date of receipt of the required initial evidence or request for
interview rescheduling. If the Service requests that the applicant or
petitioner submit additional evidence or respond to other than a request
for initial evidence, any time limitation imposed on the Service for
processing will be suspended as of the date of the request. It will
resume at the same point where it stopped when the Service receives the
requested evidence or response, or a request for a decision based on the
evidence submitted.
(ii) Effect on interim benefits. Interim benefits will not be
granted based on an application or petition held in suspense for the
submission of requested initial evidence, except that the applicant or
beneficiary will normally be allowed to remain while an application or
petition to extend or obtain status while in the United States is
pending. The Service may choose to pursue other actions to seek removal
of a person notwithstanding the pending application. Employment
authorization previously accorded based on the same status and
employment as that requested in the current application or petition may
continue uninterrupted as provided in 8 CFR 274a.12(b)(20) during the
suspense period.
(11) Submission of evidence in response to a Service request. All
evidence submitted in response to a Service request must be submitted at
one time. The submission of only some of the requested evidence will be
considered a request for a decision based on the record.
(12) Effect where evidence submitted in response to a request does
not establish eligibility at the time of filing. An application or
petition shall be denied where evidence submitted in response to a
request for initial evidence does not establish filing eligibility at
the time the application or petition was filed. An application or
petition shall be denied where any application or petition upon which it
was based was filed subsequently.
(13) Effect of failure to respond to a request for evidence or
appearance. If all requested initial evidence and requested additional
evidence is not submitted by the required date, the application or
petition shall be considered abandoned and, accordingly, shall be
denied. Except as provided in Sec. 335.6 of this chapter, if a person
requested to appear for an interview does not appear, the Service does
not receive his or her request for rescheduling by the date of the
interview, or the applicant or petitioner has not withdrawn the
application or petition, the application or petition shall be considered
abandoned and, accordingly, shall be denied.
(14) Effect of request for decision. When an applicant or petitioner
does not submit all requested additional evidence and requests a
decision based on the evidence already submitted, a decision shall be
issued based on the record. Failure to submit requested evidence which
precludes a material line of inquiry shall be grounds for denying the
application or petition. Failure to appear for a required interview, or
to give required testimony, shall result in the denial of any related
application or petition.
(15) Effect of withdrawal or denial due to abandonment. The
Service's acknowledgement of a withdrawal may not be appealed. A denial
due to abandonment may not be appealed, but an applicant or petitioner
may file a motion to reopen under Sec. 103.5. Withdrawal or denial due
to abandonment does not preclude the filing of a new application or
petition with a new fee. However, the priority or processing date of a
withdrawn or abandoned application or petition may not be applied to a
later application petition. Withdrawal or denial due to abandonment
shall not itself affect the new proceeding; but the facts and
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circumstances surrounding the prior application or petition shall
otherwise be material to the new application or petition.
(16) Inspection of evidence. An applicant or petitioner shall be
permitted to inspect the record of proceeding which constitutes the
basis for the decision, except as provided in the following paragraphs.
(i) Derogatory information unknown to petitioner or applicant. If
the decision will be adverse to the applicant or petitioner and is based
on derogatory information considered by the Service and of which the
applicant or petitioner is unaware, he/she shall be advised of this fact
and offered an opportunity to rebut the information and present
information in his/her own behalf before the decision is rendered,
except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this
section. Any explanation, rebuttal, or information presented by or in
behalf of the applicant or petitioner shall be included in the record of
proceeding.
(ii) Determination of statutory eligibility. A determination of
statutory eligibility shall be based only on information contained in
the record of proceeding which is disclosed to the applicant or
petitioner, except as provided in paragraph (b)(16)(iv) of this section.
(iii) Discretionary determination. Where an application may be
granted or denied in the exercise of discretion, the decision to
exercise discretion favorably or unfavorably may be based in whole or in
part on classified information not contained in the record and not made
available to the applicant, provided the regional commissioner has
determined that such information is relevant and is classified under
Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring
protection from unauthorized disclosure in the interest of national
security.
(iv) Classified information. An applicant or petitioner shall not be
provided any information contained in the record or outside the record
which is classified under Executive Order No. 12356 (47 FR 14874; April
6, 1982) as requiring protection from unauthorized disclosure in the
interest of national security, unless the classifying authority has
agreed in writing to such disclosure. Whenever he/she believes he/she
can do so consistently with safeguarding both the information and its
source, the regional commissioner should direct that the applicant or
petitioner be given notice of the general nature of the information and
an opportunity to offer opposing evidence. The regional commissioner's
authorization to use such classified information shall be made a part of
the record. A decision based in whole or in part on such classified
information shall state that the information is material to the
decision.
(17) Verifying claimed citizenship or permanent resident status. The
status of an applicant or petitioner who claims that he or she is a
permanent resident of the United States will be verified from official
records of the Service. The term official records, as used herein,
includes Service files, arrival manifests, arrival records, Service
index cards, Immigrant Identification Cards, Certificates of Registry,
Declarations of Intention issued after July 1, 1929, Alien Registration
Receipt Cards Forms AR-3, AR-103, I-151 or I-551), passports, and
reentry permits. To constitute an official record a Service index card
must bear a designated immigrant visa symbol and must have been prepared
by an authorized official of the Service in the course of processing
immigrant admissions or adjustments to permanent resident status. Other
cards, certificates, declarations, permits, and passports must have been
issued or endorsed by the Service to show admission for permanent
residence. Except as otherwise provided in 8 CFR part 101, and in the
absence of countervailing evidence, such official records shall be
regarded as establishing lawful admission for permanent residence. If a
self-petitioner filing under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is
unable to present primary or secondary evidence of the abuser's status,
the Service will attempt to electronically verify the abuser's
citizenship or immigration status from information contained in Service
computerized records. Other Service records may also be reviewed
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at the discretion of the adjudicating officer. If the Service is unable
to identify a record as relating to the abuser, or the record does not
establish the abuser's immigration or citizenship status, the self-
petition will be adjudicated based on the information submitted by the
self-petitioner.
(18) Withholding adjudication. A district director may authorize
withholding adjudication of a visa petition or other application if the
district director determines that an investigation has been undertaken
involving a matter relating to eligibility or the exercise of
discretion, where applicable, in connection with the application or
petition, and that the disclosure of information to the applicant or
petitioner in connection with the adjudication of the application or
petition would prejudice the ongoing investigation. If an investigation
has been undertaken and has not been completed within one year of its
inception, the district director shall review the matter and determine
whether adjudication of the petition or application should be held in
abeyance for six months or until the investigation is completed,
whichever comes sooner. If, after six months of the district director's
determination, the investigation has not been completed, the matter
shall be reviewed again by the district director and, if he/she
concludes that more time is needed to complete the investigation,
adjudication may be held in abeyance for up to another six months. If
the investigation is not completed at the end of that time, the matter
shall be referred to the regional commissioner, who may authorize that
adjudication be held in abeyance for another six months. Thereafter, if
the Associate Commissioner, Examinations, with the concurrence of the
Associate Commissioner, Enforcement, determines it is necessary to
continue to withhold adjudication pending completion of the
investigation, he/she shall review that determination every six months.
(19) Notification. An applicant or petitioner shall be sent a
written decision on his or her application, petition, motion, or appeal.
Where the applicant or petitioner has authorized representation pursuant
to Sec. 103.2(a), that representative shall also be notified. Documents
produced after an approval notice is sent, such as an alien registration
card, shall be mailed directly to the applicant or petitioner.
(c) Filing of applications for adjustment of status under sections
210 and 245A of the Act, as amended. (1) The filing of an application
for temporary resident status under section 245A(a) of the Act must
conform to the provisions of Sec. 245a.2 of this chapter. The filing of
an application for permanent resident status under section 245A(b)(1) of
the Act must conform to the provisions of Sec. 245a.3 of this chapter.
The filing of an application for adjustment of status to that of a
temporary resident under section 210(a) of the Act must conform to the
provisions of Sec. 210.2 of this chapter.
(2) An application for adjustment to temporary or permanent resident
status pursuant to section 245A (a) or (b)(1) or section 210(a) of the
Act may be accepted on behalf of the Attorney General by designated
state, local and community organizations as well as designated voluntary
organizations and persons. Each such application shall contain a
certification signed by both the alien and the preparing member of the
designated organization or entity, that the applicant has approved
transmittal of the application to the Service for adjudication.
(3) An application accepted by any of the designated entities shall
be stamped with an endorsement as to the date of preparation and
authorization for transmittal, and may be brought to the legalization
office with the applicant as an application ready for adjudication.
However, such application shall not be considered as complete until
accepted for adjudication by and until the appropriate fee has been paid
to the Immigration and Naturalization Service.
(d) Filing of petitions for adjustment of status under section 210A
of the Act, as amended. (1) The filing of a petition for temporary
resident status as a Replenishment Agricultural Worker, and waivers
incident to such filing, under section 210A of the Act must conform to
the provisions of part 210a of this title.
(2) A petition for adjustment to temporary resident status pursuant
to section 210A of the Act shall be accepted
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only by the Service, or by personnel employed under contract to the
Service, who are under Service supervision, and are specifically
designated responsibility for the initial processing of petitions and
waivers. Only Service officers may make decisions with respect to the
granting or denial of petitions and waivers filed under section 210A of
the Act and part 210a of this title.
(3) Petitions and waivers filed with the Service pursuant to part
210a of this title shall not be considered as complete until accepted
for adjudication by and until the appropriate fee has been paid to the
Immigration and Naturalization Service.
(e) Fingerprinting. Service regulations require that applicants for
various types of immigration benefits submit their fingerprints with the
applications. To ensure they have access to reputable fingerprinting
services, the fingerprinting of these benefit applicants must be carried
out pursuant to the fingerprinting service provisions established in
this paragraph.
(1) Fingerprinting by the Service. Where feasible, a local Service
office shall provide fingerprinting service to applicants for
immigration benefits. Also, the district director shall consider all
qualified applicants for DFS certification and certify applicants who
meet the regulatory standards to supplement the district's efforts.
Where district Service personnel are providing fingerprinting services,
the district director may end such services when he or she determines
that there are sufficient outside or private fingerprinting services
available at a reasonable fee.
(2) Designated fingerprinting services--(i) Law enforcement
agencies. Federal, state, or local police, or military police, in the
United States are not required to apply for DFS certification. However,
it is essential that any Federal, state, and local police, or military
police, that provide fingerprinting services to applicants for
immigration benefits be familiar with the Service's fingerprinting
regulations and requirements. In order to receive updates on such
regulations and requirements, a policy agency that does provide such
services must register with the Service pursuant to procedures
prescribed by Sec. 103.2(e)(9). Campus police departments having general
arrest powers pursuant to a State statute and meeting training
requirements established by law or ordinance for law enforcement
officers are included within the category of state or local police
departments for purposes of Sec. 103.2(e).
(ii) Other business entities or individuals. Businesses and
individuals who apply and qualify shall, subject to the requirements of
Sec. 103.2(e), be approved by the Service to provide fingerprinting
services.
(3) Transition to use designated fingerprinting services. As of
March 1, 1997, the Service will not accept fingerprint cards for
immigration benefits unless they are taken by:
(i) A DFS accompanied by a completed attestation, Form I-850A,
Attestation by Designated Fingerprinting Services Certified to Take
Fingerprints;
(ii) An intending DFS or organization that has completed and filed
an application for DFS status prior to March 1, 1997, which may, pending
the Service's action upon its application, take fingerprints and
complete the Form I-850A, indicating that its application for DFS status
is pending. This provisional authority for an outside entity shall cease
when its application is denied;
(iii) A recognized law enforcement agency that is registered as a
DFS; or
(iv) Designated Service employees.
(4) Eligibility for DFS. An outside entity applying for DFS status
may be a business, a not-for-profit organization, or an individual.
(i) An individual must establish that he or she is a United States
citizen or lawful permanent resident, and has not been convicted of an
aggravated felony or any crime related to dishonesty or false statements
involving a civil penalty for fraud.
(ii) A business or a not-for-profit organization must establish the
identity of its chief operations officer, who exercises primary and
oversight control over the organization's operations, and its
fingerprinting employees; and the business or a not-for-profit
organization must establish that the chief operations officer and
fingerprinting employees are United States citizens or lawful permanent
resident(s), and that
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its principal officers, directors, or partners meet the standard for
individual applicants.
(iii) A Federal, state, or local law enforcement agency may register
as a designated fingerprinting service. However, a law enforcement
agency is not required to comply with the operating license(s),
identification and training of employees, criminal record history check,
attestation, or application fee provisions in this paragraph.
(5) Criminal history records check. (i) An identification and
criminal history record check is required for each employee or person as
otherwise described in paragraphs (e)(4) (i) and (ii) of this section
who will take fingerprints listed on the application for DFS
certification. The district director shall designate Service personnel
of the district office to obtain and transmit fingerprints to the
Federal Bureau of Investigation (FBI) for such checks. If a DFS needs to
add new or replacement employees to the personnel approved by the
Service, it must file a new application with the district director
having jurisdiction over the DFS's place of business. That new
application must be accompanied by the required fee for the FBI
fingerprint check. The Service will accept fingerprints from an
applicant for DFS certification only it the fingerprints were taken by
designated Service personnel.
(ii) An employee who has been convicted of an aggravated felony or a
crime involving dishonestly or false statement, or who has been
subjected to a civil penalty for fraud, may not be assigned to take
fingerprints unless the DFS can establish to the Service's satisfaction
that the circumstances of the offense are such (because of the person's
youth at the time of the offense, and/or the number of years that have
passed since its commission) that there can be no reasonable doubt as to
the person's reliability in taking fingerprints in conformity with these
rules.
(6) Requirements. Except as provided under paragraph(e)(9) of this
section, an outside entity seeking certification as a DFS must agree
that it will:
(i) Abide by Service regulations governing certification of DFS(s);
(ii) Permit Service personnel and Service contract personnel to make
on-site inspections to ensure compliance with required procedures;
(iii) Ensure that the personnel responsible for taking fingerprints
received training in fingerprinting procedures by the Service or FBI
(exceptions can be made for those who have previously received training
from the FBI or the Service or who can otherwise demonstrate equivalent
training);
(iv) Notify the district director where the application was filed
when the completion of fingerprinting training occurred prior to the
approval of the application, if such training was not completed but was
in progress or had been scheduled at the filing of the application;
(v) Use only FBI or Service-trained employees to train its new
employees on fingerprinting procedures (exceptions can be made for those
who have previously received training from the FBI or the Service) and
to conduct periodic refresher training as needed;
(vi) Make every reasonable effort to take legible and classifiable
fingerprints, using only black ink;
(vii) Retake the applicants' prints free of charge if the DFS
initially fails to take legible and classifiable prints;
(viii) Use only the fingerprint card(s), Form(s) FD-258, or other
Service-designated documents to take fingerprints for immigration
purposes;
(ix) Ensure that the fingerprint card(s) or other Service-designated
fingerprint documents are completed in accordance with the instructions
provided, using FBI prescribed personal descriptor codes;
(x) Ensure that the fingerprint card(s) or other Service-designated
forms are signed by the applicants in their presence and by the
fingerprinter;
(xi) Verify the identification of the person being fingerprinted by
comparing the information on the fingerprint card, Form FD-258, or other
Service-designated forms with the applicant's passport, national ID,
military ID, driver's license or state-issued photo-ID, alien
registration card, or other acceptable Service-issued photo-ID;
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(xii) Complete an attestation on Form I-850A, Attestation by
Designated Fingerprinting Service Certified to Take Fingerprints, and
provide it to the person being fingerprinted;
(xiii) Note (legibly by hand or using a rubber stamp) on the back of
the fingerprint card, Form FD-258, or a Service designated fingerprint
document, the DFS's name and address, certification number, expiration
date, the DFS fingerprinter's ID number and signature, and the date on
which the fingerprints are taken. The DFS fingerprint shall seal the
completed fingerprint card or fingerprint document, and sign or imprint
a stamp with an original signature crossing the sealed area.
(xiv) Charge only reasonable fees for fingerprinting services, and
the current fee status is to be made known to the Service;
(xv) Notify the director having jurisdiction over the applicant's
place of business within 2 working days, on Form I-850 without fee, of
any changes in personnel responsible for taking fingerprints;
(xvi) Request approval for any new personnel to take fingerprints
according to the procedures set forth in paragraphs (e) (4), (5), (6),
(8), and (9) of this section;
(xvii) Notify the Service of any conviction for an aggravated felony
or for a crime involving dishonesty or false statement, or of any civil
penalty for fraud subsequent to the DFS certification of an employee
authorized to take fingerprints; and
(xviii) Maintain facilities which are permanent and accessible to
the public. The use of the terms permanent and accessible to the public
shall not include business or organizational operations in private
homes, vans or automobiles, mobile carts, and removable stands or
portable storefronts.
(7) Attestation. (i) To ensure the integrity of the fingerprint
cards submitted by applicants for benefits, all DFS fingerprinters must
fill out an attestation on Form I-850A each time they take fingerprints
for an immigration benefit applicant. Such attestation mut be signed and
dated by the fingerprinter and show:
(A) The fingerprinter's name and ID number (as assigned by the
Service) and a statement that the requirements of Sec. 103.2(e) have
been met;
(B) The name, address, certification number (as assigned by the
Service), and expiration date of the DFS certification;
(C) That he or she has checked the identity of the person he or she
fingerprinted and has listed the identification number from the
individual's passport, national ID, military ID, driver's license or
state-issued photo-ID, alien registration card, or other acceptable
Service-issued photo-ID; and
(D) That it is signed and dated by the benefit applicant.
(ii) DFS fingerprinters must execute the attestations in duplicate
in the presence of the applicant. The original must be given to the
applicant to be filed with the Service with his or her fingerprint card,
and the copy, which may be a reproduced copy of the original, must be
kept on file at the DFS for at least 3 months for Service inspection.
(8) Application. An outside organization seeking certification as a
DFS, or a DFS seeking approval for personnel change, must submit an
application on Form I-850, Application for Certification for Designated
Fingerprinting Services, to the district director having jurisdiction
over the applicant's place of business. The application must include the
following:
(i) The required fee;
(ii) A copy of all business licenses or permits required for its
operations and if the organization is a not-for-profit entity,
documented evidence of such status;
(iii) The names and signatures of personnel who will take
fingerprints of applicants for immigration benefits;
(iv) A set of fingerprints taken by a Service employee on Form FD-
258 for each employee whose name appears on the application form
pursuant to paragraph (e)(4) of this section, and the required fee (for
each employee) for the FBI criminal history record check;
(v) A statement on Form I-850 indicating the fee, if any, it will
charge for the fingerprinting service; and
(vi) A signed statement on Form I-850 attesting that the DFS will
abide
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by the Service regulation governing fingerprinting and the certification
of designated fingerprinting services.
(9) Registration of police stations or military police agencies. (i)
Federal, state, or local police stations, or military police agencies,
may individually register to take fingerprints of applicants for
immigration benefits by filing a Form I-850, application for
Certification for Designated Fingerprinting Services, completing only
the relevant parts of the form. No fee or fingerprint cards need to be
submitted for their personnel charged with the fingerprinting
responsibility; nor are these personnel required to have additional
training in fingerprinting techniques and procedures. Furthermore, law
enforcement agencies registered to take fingerprints under this
paragraph are not subject to on-site inspections by the Service. The
Service will communicate with these agencies through regular liaison
channels at the local level.
(ii) A police department may request registration on behalf of all
of its subordinate stations on a single application by listing their
precinct numbers and addresses. Once registered, the Service will
include the individual police stations and military police agencies on
the Service's list of DFS organizations. The Service will make available
to these agencies the fingerprinting regulations, related instruction
material or other relevant information when appropriate.
(10) Confidentiality. A DFS is prohibited from releasing
fingerprints taken pursuant to certification, other than to the Service
or to the applicant or as otherwise provided in the Service's
regulations. Law enforcement agencies enumerated under paragraph (e)(9)
of this section are not precluded from using the fingerprints they have
collected for immigration purposes in other law enforcement efforts.
(11) Approval of application. The district director shall consider
all supporting documents submitted and may request additional
documentation as he or she may deem necessary. When the application has
been approved, the district director shall assign a certification number
to the DFS and individual ID numbers to its approved fingerprinters. The
approval will be valid for a period of 3 years and may be renewed in
accordance with paragraph (e)(13) of this section. The district director
shall notify the applicant of the approval and include in the notice of
approval the following items:
(i) Instructions on how to prepare Applicant Fingerprint Cards, Form
FD-258;
(ii) A listing of acceptable Service-issued photo-IDs; and
(iii) A statement detailing the DFS(s) responsibilities and rights,
including the renewal and revocation procedures as provided by
paragraphs (e) (12) and (13) of this section.
(12) Denial of the application. The applicant shall be notified of
the denial of an application, the reasons for the denial, and the right
to appeal to the AAO under 8 CFR part 103.
(13) Renewal. (i) Subject to paragraph (e)(13)(ii) of this section,
a DFS must apply for renewal of its certification at least ninety (90)
days prior to the expiration date to prevent interruption in its ability
to provide fingerprinting services. An application for renewal must be
made on Form I-850 with the required fee and documentation as contained
in paragraph (e)(8) of this section. In considering an application for
renewal, the Service will give appropriate weight to the volume, nature,
and the substance of complaints or issues raised in the past regarding
that particular DFS and or relevant circumstances which are made known
to the Service by the general public, other governmental or private
organizations, or through Service inspections. Also, the Service will
favorably consider the absence of such complaints or issues. Each
renewal shall be valid for 3 years. Failure to apply for renewal will
result in the expiration of the outside entity's DFS status.
(ii) The Service will certify and renew DFS(s) as long as the need
for their service exists. Following the development of an automated
fingerprint information system, the Service will determine if there is a
continued need for the DFS' services and, if so, whether they should
switch to newer technologies, such as acquiring compatible automated
fingerprinting equipment. In either event, the Service shall issue
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a public notification or issue a new rule, as appropriate. Nothing in
this paragraph shall preclude the Service, in its discretion, from
discontinuing the DFS certification program after the initial 3 years or
from requiring, as a condition of continued certification, that the DFS
incorporate automated fingerprinting equipment.
(14) Revocation of certification. The district director shall revoke
an approval of application for DFS status under the following
circumstances:
(i)Automatic revocation. The approval of any application is
automatically revoked if the DFS:
(A) Goes out of business prior to the expiration of the approval; or
(B) Files a written withdrawal of the application.
(ii)Revocation on notice. The Service shall revoke on notice the
certification of a DFS which has violated the regulations governing the
fingerprinting process as established in paragraph (e) of this section.
(A) If the district director finds that a DFS has failed to meet the
required standards, he or she will issue a notice of intent to revoke
detailing reasons for the intended revocation. Within 30 days of the
receipt of the notice, the DFS may submit evidence in rebuttal or
request an inspection following corrective actions. The district
director shall cancel the notice of intent to revoke if he or she is
satisfied with the evidence presented by the DFS or the results of a
reinspection.
(B) For flagrant violations, such as failure to verify the identity
of the persons seeking fingerprinting, the district director may, in his
or her discretion, issue a suspension order and place the DFS on
immediate suspension. During the suspension period, the DFS may not take
fingerprints, and the Service will not accept fingerprints taken by the
suspended DFS. The DFS under suspension may submit a plan for corrective
action to the district director within 30 days and request a
reinspection. If the district director approves the plan, he or she
shall permit the DFS to resume fingerprinting on probation pending the
results of the reinspection and the Service will resume accepting
submitted fingerprints. The district director shall cancel the
suspension order if he or she finds the results of a reinspection
satisfactory.
(C) If the DFS fails to submit evidence of rebuttal or corrective
actions within the 30-day period, or if unsatisfactory conditions
persist at the second inspection, the district director shall notify the
DFS of the revocation decision, detailing the reasons, and of its right
to appeal.
(D) The district director shall consider all timely submitted
evidence and decide whether to revoke the DFS approval. The district
director shall also decide whether any such revocation shall preclude
accepting fingerprints taken by that DFS (or any of its offices or
employees) during some or all of the period of its certification.
(iii) If the Service's investigation uncovers evidence of material
misconduct, the Service may, in addition to revocation, refer the matter
for action pursuant to section 274C of the Act (Penalties for Document
Fraud), or 18 U.S.C. 1001 (false statement), or for other appropriate
enforcement action.
(15) Appeal of revocation of approval. The revocation of approval
may be appealed to the Service's Administrative Appeals Office (AAO).
There is no appeal from an automatic revocation.
(16) List of DFS(s). Each district office shall make available a
list of the DFS(s) it has certified to take fingerprints. Such list
shall contain the name, address, telephone number, if available, and the
fingerprinting fee charge, if any, of each DFS certified in the
district.
(17) Change of address or in fee. A DFS shall notify the Service, on
Form I-850, without an application fees, of any change(s) of address or
change(s) in the fee charged for fingerprinting at least 10 working days
before such a change takes place. The district office shall update its
DFS list, including any fingerprinting fee changes, upon receipt of the
notice of change(s).
(18) False advertising or misrepresentation by a DFS. Designated
fingerprinting services are prohibited form exploiting their DFS status
by creating the impression that they are authorized by the Service to do
more than fingerprinting. DFS(s) are prohibited from using the Service
logo on
[[Page 70]]
their stationery, flyers, or advertisements. When dealing with the
public or advertising for business, a DFS may refer to itself only as
``an INS-Authorized Fingerprinting Service.'' DFS(s) found in violation
of this requirement are subject to suspension or revocation actions
pursuant to Sec. 103.2(e)(14).
[29 FR 11956, Aug. 21, 1964, as amended at 30 FR 14772, Nov. 30, 1965;
32 FR 9622, July 4, 1967; 33 FR 11644, Aug. 16, 1968; 39 FR 43055, Dec.
10, 1974; 44 FR 52169, Sept. 7, 1979; 47 FR 44990, Oct. 13, 1982; 50 FR
11841, Mar. 26, 1985; 52 FR 16192, May 1, 1987; 53 FR 26034, July 11,
1988; 54 FR 29881, July 17, 1989; 56 FR 624, Jan. 7, 1991; 59 FR 1460,
1461, Jan. 11, 1994; 59 FR 33905, July 1, 1994; 61 FR 13072, Mar. 26,
1996; 61 FR 28010, June 4, 1996; 61 FR 57584, Nov. 7, 1996]
Sec. 103.3 Denials, appeals, and precedent decisions.
(a) Denials and appeals--(1) General--(i) Denial of application or
petition. When a Service officer denies an application or petition filed
under Sec. 103.2 of this part, the officer shall explain in writing the
specific reasons for denial. If Form I-292 (a denial form including
notification of the right of appeal) is used to notify the applicant or
petitioner, the duplicate of Form I-292 constitutes the denial order.
(ii) Appealable decisions. Certain unfavorable decisions on
applications, petitions, and other types of cases may be appealed.
Decisions under the appellate jurisdiction of the Board of Immigration
Appeals (Board) are listed in Sec. 3.1(b) of this chapter. Decisions
under the appellate jurisdiction of the Associate Commissioner,
Examinations, are listed in Sec. 103.1(f)(2) of this part.
(iii) Appeal--(A) Jurisdiction. When an unfavorable decision may be
appealed, the official making the decision shall state the appellate
jurisdiction and shall furnish the appropriate appeal form.
(B) Meaning of affected party. For purposes of this section and
Secs. 103.4 and 103.5 of this part, affected party (in addition to the
Service) means the person or entity with legal standing in a proceeding.
It does not include the beneficiary of a visa petition. An affected
party may be represented by an attorney or representative in accordance
with part 292 of this chapter.
(C) Record of proceeding. An appeal and any cross-appeal or briefs
become part of the record of proceeding.
(D) Appeal filed by Service officer in case within jurisdiction of
Board. If an appeal is filed by a Service officer, a copy must be served
on the affected party.
(iv) Function of Administrative Appeals Unit (AAU). The AAU is the
appellate body which considers cases under the appellate jurisdiction of
the Associate Commissioner, Examinations.
(v) Summary dismissal. An officer to whom an appeal is taken shall
summarily dismiss any appeal when the party concerned fails to identify
specifically any erroneous conclusion of law or statement of fact for
the appeal. The filing by an attorney or representative accredited under
8 CFR 292.2(d) of an appeal which is summarily dismissed under this
section may constitute frivolous behavior as defined in 8 CFR
292.3(a)(15). Summary dismissal of an appeal under Sec. 103.3(a)(1)(v)
in no way limits the other grounds and procedures for disciplinary
action against attorneys or representatives provided in 8 CFR 292.2 or
in any other statute or regulation.
(2) AAU appeals in other than special agricultural worker and
legalization cases--(i) Filing appeal. The affected party shall file an
appeal on Form I-290B. Except as otherwise provided in this chapter, the
affected party must pay the fee required by Sec. 103.7 of this part. The
affected party shall file the complete appeal including any supporting
brief with the office where the unfavorable decision was made within 30
days after service of the decision.
(ii) Reviewing official. The official who made the unfavorable
decision being appealed shall review the appeal unless the affected
party moves to a new jurisdiction. In that instance, the official who
has jurisdiction over such a proceeding in that geographic location
shall review it.
(iii) Favorable action instead of forwarding appeal to AAU. The
reviewing official shall decide whether or not favorable action is
warranted. Within 45 days of receipt of the appeal, the reviewing
official may treat the appeal as a motion to reopen or reconsider and
take favorable action. However, that
[[Page 71]]
official is not precluded from reopening a proceeding or reconsidering a
decision on his or her own motion under Sec. 103.5(a)(5)(i) of this part
in order to make a new decision favorable to the affected party after 45
days of receipt of the appeal.
(iv) Forwarding appeal to AAU. If the reviewing official will not be
taking favorable action or decides favorable action is not warranted,
that official shall promptly forward the appeal and the related record
of proceeding to the AAU in Washington, DC.
(v) Improperly filed appeal--(A) Appeal filed by person or entity
not entitled to file it--(1) Rejection without refund of filing fee. An
appeal filed by a person or entity not entitled to file it must be
rejected as improperly filed. In such a case, any filing fee the Service
has accepted will not be refunded.
(2) Appeal by attorney or representative without proper Form G-28--
(i) General. If an appeal is filed by an attorney or representative
without a properly executed Notice of Entry of Appearance as Attorney or
Representative (Form G-28) entitling that person to file the appeal, the
appeal is considered improperly filed. In such a case, any filing fee
the Service has accepted will not be refunded regardless of the action
taken.
(ii) When favorable action warranted. If the reviewing official
decides favorable action is warranted with respect to an otherwise
properly filed appeal, that official shall ask the attorney or
representative to submit Form G-28 to the official's office within 15
days of the request. If Form G-28 is not submitted within the time
allowed, the official may, on his or her own motion, under
Sec. 103.5(a)(5)(i) of this part, make a new decision favorable to the
affected party without notifying the attorney or representative.
(iii) When favorable action not warranted. If the reviewing official
decides favorable action is not warranted with respect to an otherwise
properly filed appeal, that official shall ask the attorney or
representative to submit Form G-28 directly to the AAU. The official
shall also forward the appeal and the relating record of proceeding to
the AAU. The appeal may be considered properly filed as of its original
filing date if the attorney or representative submits a properly
executed Form G-28 entitling that person to file the appeal.
(B) Untimely appeal--(1) Rejection without refund of filing fee. An
appeal which is not filed within the time allowed must be rejected as
improperly filed. In such a case, any filing fee the Service has
accepted will not be refunded.
(2) Untimely appeal treated as motion. If an untimely appeal meets
the requirements of a motion to reopen as described in Sec. 103.5(a)(2)
of this part or a motion to reconsider as described in Sec. 103.5(a)(3)
of this part, the appeal must be treated as a motion, and a decision
must be made on the merits of the case.
(vi) Brief. The affected party may submit a brief with Form I-290B.
(vii) Additional time to submit a brief. The affected party may make
a written request to the AAU for additional time to submit a brief. The
AAU may, for good cause shown, allow the affected party additional time
to submit one.
(viii) Where to submit supporting brief if additional time is
granted. If the AAU grants additional time, the affected party shall
submit the brief directly to the AAU.
(ix) Withdrawal of appeal. The affected party may withdraw the
appeal, in writing, before a decision is made.
(x) Decision on appeal. The decision must be in writing. A copy of
the decision must be served on the affected party and the attorney or
representative of record, if any.
(3) Denials and appeals of special agricultural worker and
legalization applications and termination of lawful temporary resident
status under sections 210 and 245A. (i) Whenever an application for
legalization or special agricultural worker status is denied or the
status of a lawful temporary resident is terminated, the alien shall be
given written notice setting forth the specific reasons for the denial
on Form I-692, Notice of Denial. Form I-692 shall also contain advice to
the applicant that he or she may appeal the decision and that such
appeal must be taken within 30 days after service of the notification of
decision accompanied by any additional new evidence, and a supporting
brief if desired. The Form I-692 shall additionally provide a notice to
the
[[Page 72]]
alien that if he or she fails to file an appeal from the decision, the
Form I-692 will serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service
on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by
Sec. 103.1(f)(2) of this part for review and decision. The decision on
the appeal shall be in writing, and if the appeal is dismissed, shall
include a final notice of ineligibility. A copy of the decision shall be
served upon the applicant and his or her attorney or representative of
record. No further administrative appeal shall lie from this decision,
nor may the application be filed or reopened before an immigration judge
or the Board of Immigration Appeals during exclusion or deportation
proceedings.
(iv) Any appeal which is filed that:
(A) Fails to state the reason for appeal;
(B) Is filed solely on the basis of a denial for failure to file the
application for adjustment of status under section 210 or 245A in a
timely manner; or
(C) Is patently frivolous; will be summarily dismissed. An appeal
received after the thirty (30) day period has tolled will not be
accepted for processing.
(4) Denials and appeal of Replenishment Agricultural Worker
petitions and waivers and termination of lawful temporary resident
status under section 210A. (i) Whenever a petition for Replenishment
Agricultural Worker status, or a request for a waiver incident to such
filing, is denied in accordance with the provisions of part 210a of this
title, the alien shall be given written notice setting forth the
specific reasons for the denial on Form I-692, Notice of Denial. Form I-
692 shall also contain advice to the alien that he or she may appeal the
decision and that such appeal must be taken within thirty (30) days
after service of the notification of decision accompanied by any
additional new evidence, and a supporting brief if desired. The Form I-
692 shall additionally provide a notice to the alien that if he or she
fails to file an appeal from the decision, the Form I-692 shall serve as
a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service
on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by
Sec. 103.1(f)(2) of this part for review and decision. The decision on
the appeal shall be in writing, and if the appeal is dismissed, shall
include a final notice of ineligibility. A copy of the decision shall be
served upon the petitioner and his or her attorney or representative of
record. No further administrative appeal shall lie from this decision,
nor may the petition be filed or reopened before an immigration judge or
the Board of Immigration Appeals during exclusion or deportation
proceedings.
(iv) Any appeal which is filed that: Fails to state the reason for
the appeal; is filed solely on the basis of a denial for failure to file
the petition for adjustment of status under part 210a of this title in a
timely manner; or is patently frivolous, will be summarily dismissed. An
appeal received after the thirty (30) day period has tolled will not be
accepted for processing.
(b) Oral argument regarding appeal before AAU--(1) Request. If the
affected party desires oral argument, the affected party must explain in
writing specifically why oral argument is necessary. For such a request
to be considered, it must be submitted within the time allowed for
meeting other requirements.
(2) Decision about oral argument. The Service has sole authority to
grant or deny a request for oral argument. Upon approval of a request
for oral argument, the AAU shall set the time, date, place, and
conditions of oral argument.
(c) Service precedent decisions. In addition to Attorney General and
Board decisions referred to in Sec. 3.1(g) of this chapter, designated
Service decisions are to serve as precedents in all proceedings
involving the same issue(s).
[[Page 73]]
Except as these decisions may be modified or overruled by later
precedent decisions, they are binding on all Service employees in the
administration of the Act. Precedent decisions must be published and
made available to the public as described in Sec. 103.9(a) of this part.
[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48
FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1,
1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55
FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992]
Sec. 103.4 Certifications.
(a) Certification of other than special agricultural worker and
legalization cases--(1) General. The Commissioner or the Commissioner's
delegate may direct that any case or class of cases be certified to
another Service official for decision. In addition, regional
commissioners, regional service center directors, district directors,
officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City,
Mexico), and 37 (Rome, Italy), and the Director, National Fines Office,
may certify their decisions to the appropriate appellate authority (as
designated in this chapter) when the case involves an unusually complex
or novel issue of law or fact.
(2) Notice to affected party. When a case is certified to a Service
officer, the official certifying the case shall notify the affected
party using a Notice of Certification (Form I-290C). The affected party
may submit a brief to the officer to whom the case is certified within
30 days after service of the notice. If the affected party does not wish
to submit a brief, the affected party may waive the 30-day period.
(3) Favorable action. The Service officer to whom a case is
certified may suspend the 30-day period for submission of a brief if
that officer takes action favorable to the affected party.
(4) Initial decision. A case within the appellate jurisdiction of
the Associate Commissioner, Examinations, or for which there is no
appeal procedure may be certified only after an initial decision is
made.
(5) Certification to AAU. A case described in paragraph (a)(4) of
this section may be certified to the AAU.
(6) Appeal to Board. In a case within the Board's appellate
jurisdiction, an unfavorable decision of the Service official to whom
the case is certified (whether made initially or upon review) is the
decision which may be appealed to the Board under Sec. 3.1(b) of this
chapter.
(7) Other applicable provisions. The provisions of
Sec. 103.3(a)(2)(x) of this part also apply to decisions on certified
cases. The provisions of Sec. 103.3(b) of this part also apply to
requests for oral argument regarding certified cases considered by the
AAU.
(b) Certification of denials of special agricultural worker and
legalization applications. The Regional Processing Facility director or
the district director may, in accordance with paragraph (a) of this
section, certify a decision to the Associate Commissioner, Examinations
(Administrative Appeals Unit) (the appellate authority designated in
Sec. 103.1(f)(2)) of this part, when the case involves an unusually
complex or novel question of law or fact.
[52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988; 55
FR 20770, May 21, 1990]
Sec. 103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special
agricultural worker and legalization cases--(1) When filed by affected
party--(i) General. Except where the Board has jurisdiction and as
otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the
affected party files a motion, the official having jurisdiction may, for
proper cause shown, reopen the proceeding or reconsider the prior
decision. Motions to reopen or reconsider are not applicable to
proceedings described in Sec. 274a.9 of this chapter. Any motion to
reconsider an action by the Service filed by an applicant or petitioner
must be filed within 30 days of the decision that the motion seeks to
reconsider. Any motion to reopen a proceeding before the Service filed
by an applicant or petitioner, must be filed within 30 days of the
decision that the motion seeks to reopen, except that failure to file
before this period expires, may be excused in the discretion of the
Service where it is demonstrated that the delay was reasonable and was
beyond the control of the applicant or petitioner.
[[Page 74]]
(ii) Jurisdiction. The official having jurisdiction is the official
who made the latest decision in the proceeding unless the affected party
moves to a new jurisdiction. In that instance, the new official having
jurisdiction is the official over such a proceeding in the new
geographical locations.
(iii) Filing Requirements--A motion shall be submitted on Form I-
290A, and may be accompanied by a brief. It must be--
(A) In writing and signed by the affected party or the attorney or
representative of record, if any;
(B) In triplicate if addressed to the Board, in duplicate if
addressed to an immigration judge, without any copies if addressed to a
Service officer;
(C) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;
(D) 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;
(E) Addressed to the official having jurisdiction; and
(F) Submitted to the office maintaining the record upon which the
unfavorable decision was made for forwarding to the official having
jurisdiction.
(iv) Effect of motion or subsequent application or petition. Unless
the Service directs otherwise, the filing of a motion to reopen or
reconsider or of a subsequent application or petition does not stay the
execution of any decision in a case or extend a previously set departure
date.
(2) Requirements for motion to reopen. A motion to reopen must state
the new facts to be provided in the reopened proceeding and be supported
by affidavits or other documentary evidence. A motion to reopen an
application or petition denied due to abandonment must be filed with
evidence that the decision was in error because:
(i) The requested evidence was not material to the issue of
eligibility;
(ii) The required initial evidence was submitted with the
application or petition, or the request for initial evidence or
additional information or appearance was complied with during the
allotted period; or
(iii) The request for additional information or appearance was sent
to an address other than that on the application, petition, or notice of
representation, or that the applicant or petitioner advised the Service,
in writing, of a change of address or change of representation
subsequent to filing and before the Service's request was sent, and the
request did not go to the new address.
(3) Requirements for motion to reconsider. A motion to reconsider
must state the reasons for reconsideration and be supported by any
pertinent precedent decisions to establish that the decision was based
on an incorrect application of law or Service policy. A motion to
reconsider a decision on an application or petition must, when filed,
also establish that the decision was incorrect based on the evidence of
record at the time of the initial decision.
(4) Processing motions in proceedings before the Service. A motion
that does not meet applicable requirements shall be dismissed. Where a
motion to reopen is granted, the proceeding shall be reopened. The
notice and any favorable decision may be combined.
(5) Motion by Service officer--
(i) Service motion with decision favorable to affected party. When a
Service officer, on his or her own motion, reopens a Service proceeding
or reconsiders a Service decision in order to make a new decision
favorable to the affected party, the Service officer shall combine the
motion and the favorable decision in one action.
(ii) Service motion with decision that may be unfavorable to
affected party. When a Service officer, on his or her own motion,
reopens a Service proceeding or reconsiders a Service decision, and the
new decision may be unfavorable to the affected party, the officer shall
give the affected party 30 days after service of the motion to submit a
brief. The officer may extend the time period for good cause shown. If
the affected party does not wish to submit a brief, the affected party
may waive the 30-day period.
(iii) Proceeding before Board or immigration judge. When a Service
officer is the moving party in a proceeding before the Board or an
immigration
[[Page 75]]
judge, a copy of the motion must be served on the affected party. The
motion and proof of service must be filed with the official having
jurisdiction. The affected party has 10 days from the date of service to
submit a brief. This time period may be extended as provided in
Secs. 3.8(c) and 3.22(b) of this chapter.
(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]
Sec. 103.5a Service of notification, decisions, and other papers by the Service.
This section states authorized means of service by the Service on
parties and on attorneys and other interested persons of notices,
decisions, and other papers (except warrants and subpoenas) in
administrative proceedings before Service officers as provided in this
chapter.
(a) Definitions--(1) Routine service. Routine service consists of
mailing a copy by ordinary mail addressed to a person at his last known
address.
(2) Personal service. Personal service, which shall be performed by
a Government employee, consists of any of the following, without
priority or preference:
(i) Delivery of a copy personally;
(ii) Delivery of a copy at a person's dwelling house or usual place
of abode by leaving it with some person of suitable age and discretion;
[[Page 76]]
(iii) Delivery of a copy at the office of an attorney or other
person, including a corporation, by leaving it with a person in charge;
(iv) Mailing a copy by certified or registered mail, return receipt
requested, addressed to a person at his last known address.
(b) Effect of service by mail. Whenever a person has the right or is
required to do some act within a prescribed period after the service of
a notice upon him and the notice is served by mail, 3 days shall be
added to the prescribed period. Service by mail is complete upon
mailing.
(c) When personal service required--(1) Generally. In any proceeding
which is initiated by the Service, with proposed adverse effect, service
of the initiating notice and of notice of any decision by a Service
officer shall be accomplished by personal service, except as provided in
Sec. 242.1(c) of this chapter.
(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]
Sec. 103.5b Application for further action on an approved application or petition.
(a) General. An application for further action on an approved
application or petition must be filed on Form I-824 by the applicant or
petitioner who filed the original application or petition. It must be
filed with the fee required in Sec. 103.7 and the initial evidence
required on the application form. Form I-824 may accompany the original
application or petition, or may be filed after the approval of the
original application or petition.
(b) Requested actions. A person whose application was approved may,
during its validity period, apply for a duplicate approval notice or any
other action specifically provided for on the form. A petitioner whose
petition was approved may, during the validity of the petition, request
that the Service:
(1) Issue a duplicate approval notice;
(2) Notify another consulate of the approved petition;
(3) Notify a consulate of the person's adjustment of status for the
purpose of visa issuance to dependents; or
(4) Take any other action specifically provided for on the form.
(c) Processing. The application shall be approved if the Service
determines the applicant has fully demonstrated eligibility for the
requested action. There is no appeal from the denial of an application
filed on Form I-824.
[59 FR 1463, Jan. 11, 1994]
Sec. 103.6 Surety bonds.
(a) Posting of surety bonds--(1) Extension agreements; consent of
surety; collateral security. All surety bonds posted in immigration
cases shall be executed on Form I-352, 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.
All other matters relating to bonds, including a power of attorney not
executed on Form I-312 and a request for delivery of collateral
[[Page 77]]
security to other than the depositor or his approved attorney in fact,
shall be forwarded to the regional commissioner for approval.
(2) Bond riders--(i) General. Bond riders shall be prepared on Form
I-351 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) Condition against unauthorized employment. A condition barring
employment shall be included in an appearance and delivery bond in
connection with a deportation proceeding or bond posted for the release
of an alien in exclusion proceedings, unless the INS determines that
employment is appropriate.
(iii) Factors to be considered. Only those aliens who upon
application under Sec. 274a.12 of this chapter establish compelling
reasons for granting employment authorization may be authorized to
accept employment. Among the factors which may be considered when an
application is made, are the following:
(A) Safeguarding employment opportunities for United States citizens
and lawful permanent resident aliens;
(B) Prior immigration violations by the alien;
(C) Whether there is a reasonable basis for considering
discretionary relief; and
(D) Whether a United States citizen or lawful permanent resident
spouse or children are dependent upon the alien for support, or other
equities exist.
(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
[[Page 78]]
of the Act and part 245 of this chapter. A maintenance of status and
departure bond posted at the request of an American consular officer
abroad in behalf of an alien who did not travel to the United States
shall be canceled upon receipt of notice from an American consular
officer that the alien is outside the United States and the nonimmigrant
visa issued pursuant to the posting of the bond has been canceled or has
expired.
(3) Substantial performance. Substantial performance of all
conditions imposed by the terms of a bond shall release the obligor from
liability.
(d) Bond schedules--(1) Blanketbonds for departure of visitors and
transits. The amount of bond required for various numbers of
nonimmigrant visitors or transits admitted under bond on Forms I-352
shall be in accordance with the following schedule:
Aliens
1 to 4--$500 each.
5 to 9--$2,500 total bond.
10 to 24--$3,500 total bond.
25 to 49--$5,000 total bond.
50 to 74--$6,000 total bond.
75 to 99--$7,000 total bond.
100 to 124--$8,000 total bond.
125 to 149--$9,000 total bond.
150 to 199--$10,000 total bond.
200 or more--$10,000 plus $50 for each alien over 200.
(2) Blanket bonds for importation of workers classified as
nonimmigrants under section 101(a)(15)(H). The following schedule shall
be employed by district directors when requiring employers or their
agents or representatives to post bond as a condition to importing alien
laborers into the United States from the West Indies, the British Virgin
Islands, or from Canada:
Less than 500 workers--$15 each
500 to 1,000 workers--$10 each
1,000 or more workers--$5 each
A bond shall not be posted for less than $1,000 or for more than $12,000
irrespective of the number of workers involved. Failure to comply with
conditions of the bond will result in the employer's liability in the
amount of $200 as liquidated damages for each alien involved.
(e) Breach of bond. A bond is breached when there has been a
substantial violation of the stipulated conditions. A final
determination that a bond has been breached creates a claim in favor of
the United States which may not be released or discharged by a Service
officer. The district director having custody of the file containing the
immigration bond executed on Form I-352 shall determine whether the bond
shall be declared breached or cancelled, and shall notify the obligor on
Form I-323 or Form I-391 of the decision, and, if declared breached, of
the reasons therefor, and of the right to appeal in accordance with the
provisions of this part.
[31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967; 33
FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23,
1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40 FR
42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June 11,
1984; 60 FR 21974, May 4, 1995]
Sec. 103.7 Fees.
(a) Remittances. (1) Fees prescribed within the framework of 31
U.S.C. 483a shall be submitted with any formal application or petition
prescribed in this chapter and shall be in the amount prescribed by law
or regulation. Except for fees remitted directly to the Board pursuant
to the provisions of Sec. 3.8(a) of this chapter, any fee relating to
any Executive Office for Immigration Review proceeding shall be paid to,
and accepted by, any Service office authorized to accept fees. Payment
of any fee under this section does not constitute filing of the document
with the Board or with the Immigration Court. The Service shall return
to the payer, at the time of payment, a receipt for any fee paid. The
Service shall also return to the payer any documents, submitted with the
fee, relating to any Immigration Judge proceeding. A charge of $30.00
will be imposed if a check in payment of a fee is not honored by the
bank on which it is drawn. Remittances must be drawn on a bank or other
institution located in the United States and be payable in United States
currency. Fees in the form of postage stamps shall not be accepted.
Remittances to the Service shall be made payable to the ``Immigration
and Naturalization Service,'' except that in case
[[Page 79]]
of applicants residing in the Virgin Islands of the United States, the
remittances shall be made payable to the ``Commissioner of Finance of
the Virgin Islands'' and, in the case of applicants residing in Guam,
the remittances shall be made payable to the ``Treasurer, Guam.'' If
application to the Service is submitted from outside the United States,
remittance may be made by bank international money order or foreign
draft drawn on a financial institution in the United States and payable
to the Immigration and Naturalization Service in United States currency.
Remittances to the Board shall be made payable to the ``United States
Department of Justice.''
(2) A charge of $30.00 will be imposed if a check in payment of a
fee, fine, penalty, and/or any other matter is not honored by the bank
or financial institution on which it is drawn. A receipt issued by a
Service officer for any such remittance shall not be binding upon the
Service if the remittance is found uncollectible. Furthermore, credit
for meeting legal and statutory deadlines will not be deemed to have
been met if payment is not made within 10 business days after
notification by the Service of the dishonored check.
(b) Amounts of fees--(1) The following fees and charges are
prescribed:
For certification of true copies, each--$2.00
For attestation under seal--$2.00
DCL System Costs Fee. For use of a Dedicated Commuter Lane (DCL)
located at specific Ports of Entry of the United States by an approved
participant in a designated vehicle--$80.00, with the maximum amount of
$160.00 payable by a family (husband, wife, and minor children under 18
years-of-age). Payable following approval of the application but before
use of the DCL by each participant. This fee is non-refundable, but may
be waived by the district director. If a participant wishes to enroll
more than one vehicle for use in the PORTPASS system, he or she will be
assessed with an additional fee of--$42 for each additional vehicle
enrolled.
Form EOIR-40. For filing application for suspension of deportation
under section 244 of the Act--$100.00. (A single fee of $100.00 will be
charged whenever suspension of deportation applications are filed by two
or more aliens in the same proceeding).
Form I-17. For filing an application for school approval, except in the
case of a school or school system owned or operated as a public
educational institution or system by the United States or a state or
political subdivision thereof--$140.
Form I-68. For application for issuance of the Canadian Border Boat
Landing Permit under section 235 of the Act--$16.00. The maximum amount
payable by a family (husband, wife, unmarried children under 21 years of
age, parents of either husband or wife) shall be $32.00.
Form I-90. For filing an application for Alien Registration Receipt
Card (Form I-551) in lieu of an obsolete card or in lieu of one lost,
mutilated or destroyed, or in a changed name--$75.
Form I-94. For issuance of Arrival/Departure Record at a land border
Port-of-Entry--$6.00.
Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/Departure
Form at a land border Port-of-Entry under section 217 of the Act--$6.00.
Form I-102. For filing an application (Form I-102) for Arrival-
Departure Record (Form I-94) or Crewman's Landing (Form I-95), in lieu
of one lost, mutilated, or destroyed--$65.
Form I-129. For filing a petition for a nonimmigrant worker--If a
petition with unnamed beneficiaries, a fee of $75 per petition. If a
petition with named beneficiaries, a base fee of $75 plus: --$10 per
worker if requesting consulate or port-of-entry notification for visa
issuance or admission; --$80 per worker if requesting a change of
status; or --$50 per worker if requesting an extension of stay. If
filing an extension of stay or change of status for one worker,
dependents may be included for a fee of $10 per dependent.
Form I-129F. For filing petition to classify nonimmigrant as fiancee or
fiance under section 214(d) of the Act--$75.00.
Form I-129H. For filing a petition to classify nonimmigrant as
temporary worker or trainee under section 214(c) of the Act--$80.00.
Form I-129L. Petition to employ intracompany transferee--$80.00.
Form I-130. For filing a petition to classify status of alien relative
for issuance of immigrant visa under section 204(a) of the Act--$80.
Form I-131. For filing an application for issuance of reentry permit--
$70.
Form I-140. For filing a petition to classify preference status of an
alien on basis of profession or occupation under section 204(a) of the
Act--$75.
Form I-175. For issuance of Nonresident Alien Canadian Border Crossing
Card (Form I-185)--$30.00.
Form I-190. For issuance of replacement Nonresident Alien Mexican
Border Crossing Card (Form I-586) in lieu of one lost, stolen, or
mutilated--$26.00.
[[Page 80]]
Form I-191. For filing application for discretionary relief under
section 212(c) of the Act--$90.00.
Form I-192. For filing an application for discretionary relief under
section 212(d)(3) of the Act, except, in an emergency case, or where the
approval of the application is in the interest of the United States
Government--$90.
Form I-193. For filing an application for waiver of passport and/or
visa--$95.
Form I-212. For filing an application for permission to reapply for an
excluded or deported alien, an alien who has fallen into distress and
has been removed as an alien enemy, or an alien who has been removed at
Government expense in lieu of deportation--$95.
Form I-246. For filing application for stay of deportation under part
243 of this chapter--$155.00
Form I-290A. For filing appeal from any decision under the immigration
laws in any type of proceedings (except a bond decision) over which the
Board of Immigration Appeals has appellate jurisdiction in accordance
with Sec. 3.1(b) of this chapter. (The fee of $110 will be charged
whenever an appeal is filed by or on behalf of two or more aliens and
the aliens are covered by one decision)--$110.00
Form I-290B. For filing an appeal from any decision under the
immigration laws in any type of proceeding over which the Board of
Immigration Appeals does not have appellate jurisdiction. (The fee of
$50 will be charged whenever an appeal is filed by or on behalf of two
or more aliens and the aliens are covered by one decision)--$110.00
Form I-360. For filing a petition for an Amerasian, Widow(er), or
Special Immigrant--$80, except there is no fee for a petition seeking
classification as an Amerasian.
Form I-444. For issuance of a Mexican Border Visitors Permit issued in
conjunction with presentation of a Mexican Border Crossing Card or
multiple-entry B-1/B-2 nonimmigrant visa to proceed for a period of more
than 72 hours but not more than 30 days and to travel more than 25 miles
from the Mexican border but within the 5-state area of Arizona,
California, Nevada, New Mexico, or Texas--$4.00. The maximum amount
payable by a family (husband, wife, children under 21 years of age, and
parents of either husband or wife) shall be $8.00.
Form I-485. For filing application for permanent resident status or
creation of a record of lawful permanent residence--$130 for an
applicant 14 years of age or older; $100 for an applicant under the age
of 14 years.
Supplment A to Form I-485. Supplement to Form I-485 for persons seeking
to adjust status under the provisions of section 245(i) of the Act--
$650.00, except that payment of this additional sum is not required when
the applicant is an unmarried child who is less than 17 years of age, or
when the applicant is the spouse or the unmarried child less than 21
years of age of a legalized alien and is qualified for and has applied
for voluntary departure under the family unity program.
Form I-485A. For filing application by Cuban refugee for permanent
residence--$120.00 for an applicant 14 years of age or older; $95.00 for
an applicant under the age of 14 years.
Form I-506. For filing application for change of nonimmigrant
classification under section 248 of the Act--$70.00.
Form I-526. For filing a petition for an alien enterpreneur--$155.
Form I-538. For filing application by a nonimmigrant student (F-1) for
an extension of stay, a school transfer or permission to accept or
continue employment or practical training--$70.00.
Form I-539. For filing an application to extend or change nonimmigrant
status--$75 plus $10 per coapplicant.
Form I-570. For filing application for issuance or extension of refugee
travel document--$45.00
Form I-600. For filing a petition to classify orphan as an immediate
relative for issuance of immigrant visa under section 204(a) of the Act.
(When more than one petition is submitted by the same petitioner on
behalf of orphans who are brothers or sisters, only one fee will be
required.)--$155.
Form I-600A. For filing an application for advance processing of orphan
petition. (When more than one petition is submitted by the same
petitioner on behalf of orphans who are brothers or sisters, only one
fee will be required.--$155.
Form I-601. For filing an application for waiver of ground of
excludability under section 212 (h) or (i) of the Act. (Only a single
application and fee shall be required when the alien is applying
simultaneously for a waiver under both those sub-sections.)--$95.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$95.
Form I-687. For filing application for status as a temporary resident
under section 245A (a) of the Immigration and Nationality Act as
amended--to be remitted in the form of a cashier's check, certified bank
check or money order. A fee of one hundred and eighty-five dollars
($185.00) for each application or fifty dollars ($50.00) for each
application for a minor child (under 18 years of age) is required at the
time of filing with the Immigration and Naturalization Service. The
maximum amount payable by a family (husband, wife, and any minor
[[Page 81]]
children) shall be four hundred and twenty dollars ($420.00).
Form I-690. For filing application for waiver for ground of
excludability under section 212(a) of the Act as amended, in conjunction
with the application under sections 210 or 245A of the Act, or a
petition under Sec. 210A. A fee of thirty-five dollars ($35.00) is to be
remitted in the form of a cashier's check, certified bank check or money
order.
Form I-694. For appealing the denial of application under sections 210
or 245A of the Act, or a petition under Sec. 210A. A fee of fifty
dollars ($50.00) is to be remitted in the form of a cashier's check,
certified bank check or money order.
Form I-695. For filing application for replacement of temporary
resident card (Form I-688) to be remitted in the form of a cashier's
check, certified bank check or a money order--$15.00
Form I-698. For filing application for adjustment from temporary
resident status to that of lawful permanent resident under section
245A(b)(1) of the Act, as amended--to be remitted in the form of a
cashier's check, certified bank check or money order. For applicants
filing within thirty-one months from the date of adjustment to temporary
resident status, a fee of eighty dollars ($80.00) for each application
is required at the time of filing with the Immigration and
Naturalization Service. The maximum amount payable by a family (husband,
wife, and any minor children (under 18 years of age living at home))
shall be two hundred and forty dollars--($240.00). For applicants filing
after thirty-one months from the date of approval of temporary resident
status, who file their applications on or after July 9, 1991, a fee of
$120.00 (a maximum of $360.00 per family) is required. The adjustment
date is the date of filing of the application for permanent residence or
the applicant's eligibility date, whichever is later.
Form I-700. For filing application for status as a temporary resident
under section 210(a)(1) of the Act, as amended--to be remitted in the
form of a cashier's check, certified bank check or a money order. A fee
of one hundred and eighty-five dollars ($185.00) for each application or
fifty dollars ($50.00) for each application for a minor child (under 18
years of age) is required at the time of filing with the Immigration and
Naturalization Service. The maximum amount payable by a family (husband,
wife, and any minor children) shall be four hundred and twenty dollars
($420.00).
Form I-751. For filing a petition to remove the conditions on residence
which is based on marriage--$80.
Form I-765. For filing an application for employment authorization
pursuant to 8 CFR 274a.13--$70, unless otherwise noted on the
instructions attached to the application form.
Form I-805. For filing a petition for status as a temporary resident
under Sec. 210A. A fee of one hundred and seventy-five dollars ($175.00)
for each petition, is to be remitted in the form of a cashier's check,
certified bank check or money order at the time of filing with the
Immigration and Naturalization Service.
Form I-807. For filing a request for consideration as a replenishment
agricultural worker (RAW) during an announced period of registration
under 8 CFR 210a.3. A fee of ten dollars ($10.00) is to be remitted in
the form of a cashier's check, certified bank check or money order at
the time of mailing to the Immigration and Naturalization Service.
Form I-817. For filing an application for voluntary departure under the
Family Unity Program--$80. The maximum amount payable by the members of
a family filing their applications concurrently shall be $225.
Form I-821. For filing an initial application for Temporary Protected
Status under section 244A of the Act, as amended by the Immigration Act
of 1990, to be remitted in the form of a cashier's check, certified bank
check, or money order. The exact amount of the fee, not to exceed fifty
dollars ($50.00), will be determined at the time a foreign state is
designated for Temporary Protected Status.
Form I-823. For application to a PORTPASS program under section 286 of
the Act--$25.00, with the maximum amount of $50.00 payable by a family
(husband, wife, and minor children under 18 years of age). The
application fee may be waived by the district director. If fingerprints
are required, the inspector will inform the applicant of the current
Federal Bureau of Investigation fee for conducting fingerprint checks
prior to accepting the application fee. Both the application fee (if not
waived) and the fingerprint fee must be paid to the Immigration and
Naturalization Service before the application will be processed. The
fingerprint fee may not be waived. For replacement of PORTPASS
documentation during the participation period--$25.00.
Form I-824. For filing for action on an approved application or
petition--$30.00.
Form I-829. For filing petition by entrepreneur to remove conditions--
$90.00.
Form I-850. For filing an application for certification as a designated
fingerprinting service--$370 plus $23 for each fingerprint check for
initial certification; $200 for renewal of certification; and $23 for
each fingerprint check for adding or replacing employees. No fee will be
charged to police stations, military police or campus police
[[Page 82]]
agencies registering pursuant to Sec. 103.2(e)(9).
Form N-300. For filing an application for declaration of intention--
$75.
Form N-336. For filing request for hearing on a decision in
naturalization proceedings under section 336 of the Act--$110.00
Form N-400. For filing an application for naturalization--$95. For
filing an application for naturalization under section 405 of the
Immigration Act of 1990, if the applicant will be interviewed in the
Philippines--$120.
Form N-410. For filing motion for amendment of petition for
naturalization when motion is for the convenience of the petitioner--
$50.00
Form N-455. For filing application for transfer of petition for
naturalization under section 335(i) of the Act, except when transfer is
of a petition for naturalization filed under the Act of October 24,
1968, Pub. L. 90-633--$90.00.
Form N-470. For filing an application for section 316(b) or 317 of the
Act benefits--$115.
Form N-565. For filing an application for a certificate of
naturalization or declaration of intention in lieu of a certificate or
declaration alleged to have been lost, mutilated, or destroyed; for a
certificate of citizenship in a changed name under section 343(b) or (d)
of the Act; or for a special certificate of naturalization to obtain
recognition as a citizen of the United States by a foreign state under
section 343(c) of the Act--$65.
Form N-600. For filing an application for certificate of citizenship
under section 309(c) or section 341 of the Act--$100.
Form N-643. For filing an application for a certificate of citizenship
on behalf of an adopted child--$80.
Form N-644. For filing an application for posthumous citizenship--$80.
Motion. For filing a motion to reopen or reconsider any decision under
the immigration laws in any type of proceeding over which the Board of
Immigration Appeals has appellate jurisdiction. No fee shall be charged
for a motion to reopen or reconsider a decision on an application for
relief for which no fee is chargeable. (The fee of $110 shall be charged
whenever an appeal or motion is filed by or on behalf of two or more
aliens and all such aliens are covered by one decision. When a motion to
reopen or reconsider is made concurrently with any application for
relief under the immigration laws for which a fee is chargeable, the fee
of $110 will be charged when the motion is filed and, if the motion is
granted, the requisite fee for filing the application for relief will be
charged and must be paid within the time specified in order to complete
the application.)--$110.
Motion. For filing a motion to reopen or reconsider any decision under
the immigration laws in any type of proceeding over which the Board of
Immigration Appeals does not have appellate jurisdiction. No fee shall
be charged for a motion to reopen or reconsider a decision on an
application for relief for which no fee is chargeable. (The fee of $110
shall be charged whenever an appeal or motion is filed by or on behalf
of two or more aliens and all such aliens are covered by one decision.
When a motion to reopen or reconsider is made concurrently with any
application for relief under the immigration laws for which a fee is
chargeable, the fee of $110 will be charged when the motion is filed
and, if the motion is granted, the requisite fee for filing the
application for relief will be charged and must be paid within the time
specified in order to complete the application.)--$110.
Request. For special statistical tabulations a charge will be made to
cover the cost of the work involved--Cost
Request. For set of monthly, semiannual, or annual tables entitled
``Passenger Travel Reports via Sea and Air'' \1\--$7.00
---------------------------------------------------------------------------
\1\ Available from Immigration & Naturalization Service for years
1975 and before. Later editions are available from the United States
Department of Transportation, contact: United States Department of
Transportation, Transportation Systems Center, Kendall Sqaure,
Cambridge, MA 02142.
---------------------------------------------------------------------------
Request. For classification of a citizen of Canada to be engaged in
business activities at a professional level pursuant to section 214(e)
of the Act (Chapter 16 of the North American Free Trade Agreement)--
$50.00
Request. For requesting authorization for parole of an alien into the
United States--$65.00.
(2) Fees for production or disclosure of records under 5 U.S.C. 552
shall be charged in accordance with the regulations of the Department of
Justice, 28 CFR 16.10.
(c) Waiver of fees. (1) Except as otherwise provided in this
paragraph and in Sec. 3.3(b) of this chapter, any of the fees prescribed
in paragraph (b) of this section relating to applications, petitions,
appeals, motions, or requests may be waived by the Immigration Judge in
any case under his/her jurisdiction in which the alien or other party
affected is able to substantiate that he or she is unable to pay the
prescribed fee. The person seeking a fee waiver must file his or her
affidavit, or unsworn declaration made pursuant to 28 U.S.C. 1746,
asking for permission to prosecute
[[Page 83]]
without payment of fee of the applicant, petition, appeal, motion, or
request, and stating his or her belief that he or she is entitled to or
deserving of the benefit requested and the reasons for his or her
inability to pay. The officer of the Service having jurisdiction to
render a decision on the application, petition, appeal, motion, or
request may, in his discretion, grant the waiver of fee. Fees for
``Passenger Travel Reports via Sea and Air'' and for special statistical
tabulations may not be waived. The payment of the additional sum
prescribed by section 245(i) of the Act when applying for adjustment of
status under section 245 of the Act may not be waived except as directed
in section 245(i) of the Act.
(2) Fees under the Freedom of Information Act, as amended, may be
waived or reduced where the Service determines such action would be in
the public interest because furnishing the information can be considered
as primarily benefiting the general public.
(3) When the prescribed fee is for services to be performed by the
clerk of court under section 344(a) of the Act, the affidavit for waiver
of the fee shall be filed with the district director or officer in
charge of the Service having administrative jurisdiction over the place
in which the court is located at least 7 days prior to the date the fee
is required to be paid. If the waiver is granted, there shall be
delivered to the clerk of court by a Service representative on or before
the date the fee is required to be paid, a notice prepared on Service
letterhead and signed by the officer granting the waiver, that the fee
has been waived pursuant to this paragraph.
(4) Fees for applications for Temporary Protected Status may be
waived pursuant to 8 CFR 240.20.
(d) Authority to certify records. Whenever authorized under 5 U.S.C.
552 or any other law to furnish information from records to persons
entitled thereto, the following officials, or their designees authorized
in writing as specified below, have authority to make certification, as
follows:
(1) The Associate Commissioner, Information Systems, the Assistant
Commissioner, Records Systems Division, the Director, Records Management
Branch, or their designee, authorized in writing to make certification
in their absence--copies of files, documents, and records in the custody
of the Central Office.
(2) A regional commissioner, or district director, or the designee
of either, authorized in writing to make certification in his absence--
copies of files, documents, and records in the custody of his office.
(3) The Immigration and Naturalization Service Program Coordinator,
El Paso Intelligence Center, or the designee, authorized in writing to
make certification in event of the Program Coordinator's absence--copies
of files, documents, and records of the Immigration and Naturalization
Service in the custody of that office.
(4) The Assistant Commissioner, Records Systems Division, the
Director, Records Management Branch, or the Chief, Records Operations
Section, Central Office, or their designee, authorized in writing to
make certification in their absence--the non-existence of an official
Service records.
[38 FR 35296, Dec. 27, 1973]
Editorial Note: For Federal Register citations affecting Sec. 103.7,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Sec. 103.8 Definitions pertaining to availability of information under the Freedom of Information Act.
Sections 103.8, 103.9, and 103.10 of this part comprise the Service
regulations under the Freedom of Information Act, 5 U.S.C. 552. These
regulations supplement those of the Department of Justice, 28 CFR part
16, subpart A. As used in this part the following definitions shall
apply:
(a) The term access means providing a copy of the record requested
or affording the opportunity for an in-person review of the original
record or a copy thereof. The determination to permit an in-person
review is discretionary and will only be made when specifically
requested. Whenever providing in-person access will unreasonably disrupt
the normal operations of an office, the requester may be sent a copy of
the requested records that are nonexempt in lieu of the in-person
review.
[[Page 84]]
(b) The term decision means a final written determination in a
proceeding under the Act accompanied by a statement of reasons. Orders
made by check marks, stamps, or brief endorsements which are not
supported by a reasoned explanation, or those incorporating preprinted
language on Service forms are not decisions.
(c) The term records includes records of proceedings, documents,
reports, and other papers maintained by the Service.
(d) The term record of proceeding is the official history of any
hearing, examination, or proceeding before the Service, and in addition
to the application, petition or other initiating document, includes the
transcript of hearing or interview, exhibits, and any other evidence
relied upon in the adjudication; papers filed in connection with the
proceedings, including motions and briefs; the Service officer's
determination; notice of appeal or certification; the Board or other
appellate determination; motions to reconsider or reopen; and documents
submitted in support of appeals, certifications, or motions.
[32 FR 9623, July 4, 1967, as amended at 40 FR 7236, Feb. 19, 1975; 52
FR 2942, Jan. 29, 1987; 58 FR 31148, June 1, 1993]
Sec. 103.9 Availability of decisions and interpretive material under the Freedom of Information Act.
(a) Precedent decisions. There may be purchased from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, bound volumes of designated precedent decisions
entitled ``Administrative Decisions Under Immigration and Nationality
Laws of the United States,'' each containing a cumulative index. Prior
to publication in volume from current precedent decisions, known as
interim decisions, are obtainable from the Superintendent of Documents
on a single copy or yearly subscription basis. Bound volumes and current
precedent decisions may be read at principal Service offices.
(b) Unpublished decisions. Each district director in the United
States will maintain copies of unpublished Service and Board decisions
relating to proceedings in which the initial decision was made in his
district. Each regional commissioner will maintain copies of unpublished
decisions made by him. The Central Office will maintain copies on a
national basis of unpublished Service decisions.
(c) Deletion of identifying details. To the extent that information
in decisions is exempt from disclosure under the Freedom of Information
Act (5 U.S.C. 552), the deciding officer shall provide for deletion of
identifying details, as appropriate, from copies of decisions made
available to the public.
(d) Statements of policy, interpretations, manuals, instructions to
staff. Statements of policy, interpretations, and those manuals and
instructions to staff (or portions thereof), affecting the public, will
be made available at district offices in the United States and at the
Central Office with an accompanying index of any material which is
issued on or after July 4, 1967.
(e) Public reading rooms. The Central Office and each district
office in the United States will provide a reading room or reading area
where the material described in this section will be made available to
the public. Additional material will be made available in the public
reading rooms, including the immigration and nationality laws, title 8
of the United States Code Annotated, title 8 of the Code of Federal
Regulations--Chapter I, a complete set of the forms listed in parts 299
and 499 of this chapter, and the Department of State Foreign Affairs
Manual, Volume 9--Visas. Fees will not be charged for providing access
to any of these materials, but fees in accordance with Sec. 103.7(b)
will be charged for furnishing copies.
[32 FR 9623, July 4, 1967, as amended at 36 FR 20151, Oct. 16, 1971; 40
FR 7237, Feb. 19, 1975; 48 FR 49652, Oct. 27, 1983]
Sec. 103.10 Requests for records under the Freedom of Information Act.
(a) Place and manner of requesting records--(1) Place. Records
should be requested from the office that maintains the records sought,
if known, or from the Headquarters of the Immigration and Naturalization
Service, 425 I Street, NW., Washington, DC 20536.
[[Page 85]]
Records are maintained in the Headquarters, regional offices, service
centers, district offices and the following suboffices: Agana, Guam;
Albany, NY; Charlotte, NC; Cincinnati, OH; Hartford, CT; Indianapolis,
IN; Las Vegas, NV; Louisville, KY; Memphis, TN; Milwaukee, WI; Norfolk,
VA; Pittsburgh, PA; Providence, RI; Reno, NV; St. Louis, MO; Salt Lake
City, UT; Spokane, WA; and St. Albans, VT. In certain cases, a district
director may designate another Service office as a file control office.
For locations of the Service's regional offices, service centers,
district offices, and sub-offices see 8 CFR 100.4.
(2) Manner of requesting records. All Freedom of Information Act
requests must be in writing. Requests may be submitted in person or by
mail. If a request is made by mail, both the envelope and its contents
must be clearly marked: ``FREEDOM OF INFORMATION REQUEST'' or
``INFORMATION REQUEST.'' Any request for information not marked and
addressed as specified will be so marked by Service personnel as soon as
it is properly identified and shall be forwarded immediately to the
appropriate office designated to control Freedom of Information Act
requests. A request will not be deemed to have been received for
purposes of the time period under 5 U.S.C. 552(a)(6) until the request
has been received by the appropriate office, or would have been received
with the exercise of due diligence by Service personnel. Service Form G-
639, Freedom of Information/Privacy Act Request, may be used for rapid
identification as a Freedom of Information matter and to ensure
expeditous handling; however, a request may be submitted in any written
form. Each request made under this section pertaining to the
availability of a record must describe the record with sufficient
specificity with respect to names, dates, subject matter and location to
permit it to be identified and located. A request for all records
falling within a reasonably specific category shall be regarded as
reasonably described if the description enables the records to be
identified by any process not unreasonably burdensome. If it is
determined that the request does not reasonably describe the records
sought, the response rejecting the request on that ground shall specify
the reason why the request failed to meet requirements and shall extend
to the requester an opportunity to confer with Service personnel to
reformulate the request. Individuals seeking access to records about
themselves by mail shall establish their identity by submitting a
notarized signature along with their address, date of birth, place of
birth, and alien or employee identification number if applicable.
(b) Authority to grant and deny requests--(1) Grant or deny. The
Associate Commissioner for Information Resources Management, regional
administrators, district directors, service center directors, and heads
of suboffices specified in paragraph (a)(1) of this section, or their
designees, may grant or deny requests under exemptions in 5 U.S.C. 552
(b) and (c).
(2) [Reserved]
(3) Authority to state that a record cannot be located or does not
exist. The head of any office specified in paragraph (a)(1) of this
section has authority to notify a requester that a record cannot be
located from the information supplied, or is known to have been
destroyed or otherwise disposed of.
(c) Prompt response--(1) Response within 10 days. Within 10 days
(excluding Saturdays, Sundays, and legal holidays) of the receipt of a
request by the Service (or in the case of an improperly addressed
request, of its receipt by the appropriate office as specified in
paragraph (a) of this section), the authorized Service official shall
either comply with or deny the request unless an extension of time is
requested as required under 28 CFR 16.1(d). A request improperly
addressed will not be deemed to have been received for purposes of 5
U.S.C 552 (a)(6) until it has been or would have been received by the
appropriate office with the exercise of due diligence by Service
personnel.
(2) Treatment of delay as a denial. If no substantive reply is made
at the end of the 10 working day period, and any properly invoked
extension period, requesters may deem their request to be denied and
exercise their right to appeal in accordance with 28 CFR 16.8 and
paragraph (d)(3) of this section.
[[Page 86]]
(d) Disposition of requests--(1) Form of grant. When a requested
record is available, the responsible office shall notify the requester
when and where the record will be available. The notification shall also
advise the requester of any applicable fees under 28 CFR 16.10. The
Service shall have fulfilled its duty to grant access whenever it
provides a copy of the record, or, at its discretion, makes the original
record or a copy available for in-person review in response to an
express request for such review. In-person review is discretionary and
shall not be granted when doing so would unreasonably disrupt the normal
operations of a Service office.
(2) Form of denial. A reply denying a written request for a record
in whole or in part shall be in writing, signed by one of the officials
specified in paragraph (b)(1) of this section. The reply shall include a
reference to the specific exemption under the Freedom of Information Act
authorizing withholding of the records. The notice of denial shall
contain a brief explanation of how the exemption applies to the record
withheld and, if the deciding official considers it appropriate, a
statement of why the exempt record is being withheld. The notice of
denial shall include a statement of the right of appeal to the Attorney
General under 28 CFR 16.8, and that judicial review will thereafter be
available in the district in which the requester resides or has a
principle place of business, or the district in which the agency records
are situated, or the District of Columbia.
(3) Right of appeal. When a request for records has been denied in
whole or in part, the requester may, within 30 days of its receipt,
appeal the denial to the Assistant Attorney General, Office of Legal
Policy, (Attention: Office of Information and Privacy), Department of
Justice, Washington, DC 20530. Both the envelope and letter must be
clearly marked: ``FREEDOM OF INFORMATION APPEAL'' or ``INFORMATION
APPEAL.''
(e) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a
requester automatically agrees to pay fees up to $25.00 by filing a
Freedom of Information Act request unless a waiver or reduction of fees
is sought. Accordingly, all letters of acknowledgment must confirm the
requester's obligation to pay.
[40 FR 7237, Feb. 19, 1975, as amended at 41 FR 34938, Aug. 18, 1976; 42
FR 15408, March 22, 1977; 43 FR 22332, May 25, 1978; 44 FR 23514, Apr.
20, 1979; 48 FR 49652, Oct. 27, 1983; 48 FR 51430, Nov. 9, 1983; 52 FR
2942, Jan. 29, 1987; 58 FR 31148, 31149, June 1, 1993]
Sec. 103.11 Business information.
Business information provided to the Service by a business submitter
shall not be disclosed pursuant to a Freedom of Information Act request
except in accordance with 28 CFR 16.7.
[58 FR 31149, June 1, 1993]
Sec. 103.12 Definition of the term ``lawfully present'' aliens for purposes of applying for Title II Social Security benefits under Public Law 104-193.
(a) Definition of the term an ``alien who is lawfully present in the
United States.'' For the purposes of section 401(b)(2) of Pub. L. 104-
193 only, an ``alien who is lawfully present in the United States''
means:
(1) A qualified alien as defined in section 431(b) of Pub. L. 104-
193;
(2) An alien who has been inspected and admitted to the United
States and who has not violated the terms of the status under which he
or she was admitted or to which he or she has changed after admission;
(3) An alien who has been paroled into the United States pursuant to
section 212(d)(5) of the Act for less than 1 year, except:
(i) Aliens paroled for deferred inspection or pending exclusion
proceedings under 236(a) of the Act; and
(ii) Aliens paroled into the United States for prosecution pursuant
to 8 CFR 212.5(a)(3);
(4) An alien who belongs to one of the following classes of aliens
permitted to remain in the United States because the Attorney General
has decided for humanitarian or other public policy reasons not to
initiate deportation or exclusion proceedings or enforce departure:
(i) Aliens currently in temporary resident status pursuant to
section 210 or 245A of the Act;
[[Page 87]]
(ii) Aliens currently under Temporary Protected Status (TPS)
pursuant to section 244A of the Act;
(iii) Cuban-Haitian entrants, as defined in section 202(b) Pub. L.
99-603, as amended;
(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L.
101-649, as amended;
(v) Aliens currently under Deferred Enforced Departure (DED)
pursuant to a decision made by the President;
(vi) Aliens currently in deferred action status pursuant to Service
Operations Instructions at OI 242.1(a)(22);
(vii) Aliens who are the spouse or child of a United States citizen
whose visa petition has been approved and who have a pending application
for adjustment of status;
(5) Applicants for asylum under section 208(a) of the Act and
applicants for withholding of deportation under section 243(h) of the
Act who have been granted employment authorization, and such applicants
under the age of 14 who have had an application pending for at least 180
days.
(b) Non-issuance of an Order to Show Cause and non-enforcement of
deportation and exclusion orders. An alien may not be deemed to be
lawfully present solely on the basis of the Service's decision not to,
or failure to, issue an Order to Show Cause or solely on the basis of
the Service's decision not to, or failure to, enforce an outstanding
order of deportation or exclusion.
[61 FR 47041, Sept. 6, 1996]
Sec. 103.20 Purpose and scope.
(a) Sections 103.20 through 103.36 comprise the regulations of the
Service implementing the Privacy Act of 1974, Public Law 93-597. The
regulations apply to all records contained in systems of records
maintained by the Service which are identifiable by individual name or
identifier and which are retrieved by individual name or identifier,
except those personnel records governed by regulations of the Office of
Personnel Management. The regulations set forth the procedures by which
individuals may seek access to records pertaining to themselves and
request correction of those records. The regulations also set forth the
requirements applicable to Service employees maintaining, collecting,
using or disseminating such records.
(b) The Associate Commissioner, Information Systems, shall ensure
that the provisions of Secs. 103.20 through 103.36 of this title and 28
CFR 16.40 through 16.58, and any revisions, are brought to the attention
of and made available to:
(1) Each employee at the time of issuance of the regulations and at
the time of any amendments; and
(2) Each new employee at the time of employment.
(c) The Associate Commissioner, Information Systems, shall be
responsible for ensuring that employees of the Service are trained in
the obligations imposed by the Privacy Act of 1974 (5 U.S.C 522a) and by
these regulations.
[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49652, Oct. 27, 1983;
58 FR 31149, June 1, 1993]
Sec. 103.21 Access by individuals to records maintained about them.
(a) Access to available records. An individual who seeks access to
records about himself or herself in a system of records must submit a
written request in person or by mail to the Freedom of Information/
Privacy Act Officer at the location where the records are maintained. If
the location is unknown, the request may be submitted to the nearest
Service office or to the Headquarters FOIA/PA Officer, 425 I Street,
NW., Washington, DC 20536. The outside of the envelope should be marked
``Privacy Act Request.'' A Form G-639, Freedom of Information/Privacy
Act Request may be used for convenience and to facilitate identification
of the record requested. However, a request may be made in any written
form and should clearly identity the record sought by the name and any
other personal identifiers for the individual (such as the alien file
number or Social Security Account Number), date and place of birth, and
type of file in which the record is believed to be located.
(b) Verification of identity. The following standards are applicable
to any individual who requests records concerning himself, unless other
provisions for identity verification are specified in the published
notice pertaining to the particular system of records.
[[Page 88]]
(1) An individual seeking access to records about himself in person
shall establish his identity by the presentation of a single document
bearing a photograph (such as a passport, alien registration receipt
card or identification badge) or by the presentation of two items of
identification which do not bear a photograph but do bear both a name
and address (such as a driver's license, or credit card).
(2) Individuals seeking access to records about themselves by mail
shall establish their identify by submitting a notarized signature along
with their address, date of birth, place of birth, and alien or employee
identification number if applicable. Form DOJ 361, Certification of
Identity, may be obtained from any Service office and used to obtain the
notarized signature needed to verify identity.
(c) Verification of guardianship. The parent or guardian of a child
or of a person judicially determined to be incompetent and seeking to
act on behalf of such child or incompetent, shall, in addition to
establishing his own identity, establish the identity of the child or
other person he represents as required in paragraph (b) of this section,
and establish his own parentage or guardianship of the subject of the
record by furnishing either a copy of a birth certificate showing
parentage or a court order establishing the guardianship.
(d) Accompanying persons. An individual seeking to review records
pertaining to himself may be accompanied by another individual of his
own choosing. Both the individual seeking access and the individual
accompanying him shall be required to sign the required form indicating
that the Service is authorized to discuss the contents of the subject
record in the presence of both individuals.
(e) Specification of records sought. Requests for access to records,
either in person or by mail, shall describe the nature of the records
sought, the approximate dates covered by the record, the system in which
it is thought to be included as described in the ``Notice of Systems of
Records'' published in the Federal Register, and the identity of the
individual or office of the Service having custody of the system of
records. In addition, the published ``Notice of Systems of Records'' for
individual systems may include further requirements of specification,
where necessary, to retrieve the individual record from the system.
(f) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a
requester automatically agrees to pay fees up to $25.00 by filing a
Privacy Act request unless a waiver or reduction of fees is sought.
Accordingly, all letters of acknowledgement must confirm the requester's
obligation to pay.
[40 FR 44481, Sept. 26, 1975; 40 FR 46092, Oct. 6, 1975, as amended at
42 FR 33025, June 29, 1977; 48 FR 49653, Oct. 27, 1983; 58 FR 31149,
June 1, 1993]
Sec. 103.22 Records exempt in whole or in part.
(a) When individuals request records about themselves which are
exempt from access pursuant to the Privacy Act exemptions in 5 U.S.C.
552a(d)(5), (j) or (k), their requests shall also be considered under
the Freedom of Information Act, 5 U.S.C. 552, and, unless the records
are exempt under both Acts, the request shall be granted. If exemptions
under both Acts permit the denial of the records sought and there is
good reason to invoke the exemptions, the individual shall be provided a
denial of his/her request in writing with the governing exemptions
cited. If the disclosure of the existence of a criminal law enforcement
proceeding record could itself interfere with a pending law enforcement
proceeding of which there is reason to believe the subject is unaware,
the Service may, during only such time as the circumstance continues,
treat the records as not subject to the requirements of 5 U.S.C. 552.
(b) Individual requests for access to records which have been
exempted from access pursuant to 5 U.S.C. 552a(k) shall be processed as
follows:
(1) A request for information classified by the Service under
Executive Order 12356 on National Security Information requires the
Service to review the information to determine whether it continues to
warrant classification under the criteria of the Executive Order.
Information which no longer
[[Page 89]]
warrants classification shall be declassified and made available to the
individual, if not otherwise exempt. If the information continues to
warrant classification, the individual shall be advised that the
information sought is classified; that it has been reviewed and
continues to warrant classification; and that it has been exempted from
access under 5 U.S.C. 552a(k)(1). Information which has been exempted
under 5 U.S.C. 552a(j) and which is also classified, shall be reviewed
as required by this paragraph but the response to the individual shall
be in the form prescribed by paragraph (a) of this section.
(2) Requests for information which has been exempted from disclosure
pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the manner
provided in paragraph (a) of this section unless a review of the
information indicates that the information has been used or is being
used to deny the individual any right, privilege or benefit for which he
is eligible or to which he would otherwise be entitled under Federal
law. In that event, the individual shall be advised of the existence of
the record and shall be provided the information except to the extent it
would identify a confidential source. If and only if information
identifying a confidential source can be deleted or the pertinent parts
of the record summarized in a manner which protects the identity of the
confidential source, the document with deletions made or the summary
shall be furnished to the requester.
(3) Information compiled as part of an employee background
investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5)
shall be made available to an individual upon request except to the
extent that it identifies a confidential source. If and only if
information identifying a confidential source can be deleted or the
pertinent parts of the record summarized in a manner which protects the
identity of the confidential source, the document with deletions made or
the summary shall be furnished to the requester.
(4) Testing or examination material which has been exempted pursuant
to 5 U.S.C. 552a(k)(6) shall not be made available to an individual if
disclosure would compromise the objectivity or fairness of the testing
or examination process but shall be made available if no such compromise
possibility exists.
(5) The Service records which are exempted and the reasons for the
exemptions are enumerated in 28 CFR 16.99.
[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983;
58 FR 31149, June, 1, 1993]
Sec. 103.23 Special access procedures.
(a) Records of other agencies. When information sought from a system
of records of the Service includes information from other agencies or
components of the Department of Justice that has been classified under
Executive Order 12356, the request and the requested documents shall be
referred to the appropriate agency or other component for classification
review and processing. Only with the consent of the responsible agency
or component, may the requester be informed of the referral as specified
in section 3.4(f) of E.O. 12356.
(b) Medical records. When an individual requests medical records
concerning himself, which are not otherwise exempt from disclosure, the
responsible official as specified in Sec. 103.10(a) of this part shall,
if deemed necessary, advise the individual that records will be provided
only to a physician designated in writing by the individual. Upon
receipt of the designation, the responsible official as specified in
Sec. 103.10(a) of this part will permit the physician to review the
records or to receive copies of the records by mail, upon proper
verification of identity. The determination of which records should be
made available directly to the individual and which records should not
be disclosed because of possible harm to the individual shall be made by
the physician.
[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983;
58 FR 31149, 31150, June, 1, 1993]
Sec. 103.24 Requests for accounting of record disclosure.
At the time of his request for access or correction or at any other
time, an individual may request an accounting of disclosures made of his
record outside the Department of Justice. Requests for accounting shall
be directed to the appropriate responsible official
[[Page 90]]
as specified in Sec. 103.10(a) of this part listed in the ``Notice of
Systems of Records''. Any available accounting, whether kept in
accordance with the requirements of the Privacy Act or under procedures
established prior to September 27, 1975, shall be made available to the
individual except that an accounting need not be made available if it
relates to: (a) A disclosure with respect to which no accounting need be
kept (see Sec. 103.30(c) of this part); (b) A disclosure made to a law
enforcement agency pursuant to 5 U.S.C. 552a(b)(7); (c) An accounting
which has been exempted from disclosure pursuant to 5 U.S.C. 552a (j) or
(k).
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.25 Notice of access decisions; time limits.
(a) Responsibility for notice. The responsible official as specified
in Sec. 103.10(a) of this part has responsibility for determining
whether access to records is available under the Privacy Act and for
notifying the individual of that determination in accordance with these
regulations. If access is denied because of an exemption, the
responsible person shall notify the individual that he may appeal that
determination to the Deputy Attorney General within thirty working days
of the receipt of the determination.
(b) Time limits for access determinations. The time limits provided
by 28 CFR 16.1(d) shall be applicable to requests for access to
information pursuant to the Privacy Act of 1974.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.26 Fees for copies of records.
The fees charged by the Service under the Privacy Act shall be those
specified in 28 CFR 16.47. Remittances shall be made in accordance with
Sec. 103.7(a) of this part.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.27 Appeals from denials of access.
An individual who has been denied access by the Service to the
records concerning him may appeal that decision in the manner prescribed
in 28 CFR 16.48.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.28 Requests for correction of records.
(a) How made. A request for amendment or correction is made by the
individual concerned, either in person or by mail, by addressing the
written request to the FOIA/PA Officer at the location where the record
is maintained. The requester's identity must be established as provided
in Sec. 103.21 of this part. The request must indicate the particular
record involved, the nature of the correction sought, and the
justification. A request made by mail should be addressed to the FOIA/PA
Officer at the location where the system of records is maintained and
the request and envelope must be clearly marked ``Privacy Correction
Request.'' Where the requester cannot determine the precise location of
the system of records or believes that the same record appears in more
than one system, the request may be addressed to the Headquarters FOIA/
PA Officer, Immigration and Naturalization Service, 425 I Street, NW.,
Washington, DC 20536. That officer will assist the requester in
identifying the location of the records.
(b) Initial determination. Within 10 working days of the receipt of
the request, the appropriate Service official shall advise the requester
that the request has been received. If a correction is to be made, the
requester shall be advised of the right to obtain a copy of the
corrected record upon payment of the standard fee, established in 28 CFR
16.47. If a correction or amendment is refused, in whole or in part, the
requester shall be given the reasons and advised of the right to appeal
to the Assistant Attorney General under 28 CFR 16.50.
(c) Appeals. A refusal, in whole or in part, to amend or correct a
record may be appealed as provided in 28 CFR 16.50.
(d) Appeal determinations. 28 CFR 16.50 provides for appeal
determinations.
(e) Statements of disagreement. Statements of disagreement may be
furnished by the individual in the manner prescribed in 28 CFR 16.50.
[[Page 91]]
(f) Notices of correction or disagreement. When a record has been
corrected, the responsible official as specified in Sec. 103.10(a) of
this part shall, within thirty working days thereof, advise all prior
recipients of the record whose identity can be determined pursuant to
the accounting required by the Privacy Act or any other accounting
previously made, of the correction. Any dissemination of a record after
the filing of a statement of disagreement shall be accompanied by a copy
of that statement. Any statement of the Service giving reasons for
refusing to correct shall be included in the file.
[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983;
48 FR 51431, Nov. 9, 1983; 58 FR 31150, June, 1, 1993]
Sec. 103.29 Records not subject to correction.
The following records are not subject to correction or amendment by
individuals:
(a) Transcripts or written statements made under oath;
(b) Transcripts of Grand Jury Proceedings, judicial or quasi-
judicial proceedings which form the official record of those
proceedings;
(c) Pre-sentence reports comprising the property of the courts but
maintained in Service files; and
(d) Records duly exempted from correction by notice published in the
Federal Register.
Sec. 103.30 Accounting for disclosures.
(a) An accounting of each disclosure of information for which
accounting is required (see Sec. 103.24 of this part) shall be attached
to the relating record. A copy of Form G-658, Record of Information
Disclosure (Privacy Act), or other disclosure document shall be used for
this accounting. The responsible official as specified in Sec. 103.10(a)
of this part shall advise the requester, promptly upon request as
described in Sec. 103.24, of the persons or agencies outside the
Department of Justice to which records concerning the requester have
been disclosed.
(b) Accounting records, at a minimum, shall include the
identification of the particular record disclosed, the name and address
of the person or agency to which disclosed, and the date of the
disclosure. Accounting records shall be maintained for at least 5 years,
or until the record is destroyed or transferred to the Archives,
whichever is later.
(c) Accounting is not required to be kept for disclosures made
within the Department of Justice or disclosures made pursuant to the
Freedom of Information Act.
[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983;
58 FR 31150, June, 1, 1993]
Sec. 103.31 Notices of subpoenas and emergency disclosures.
(a) Subpoenas. When records concerning an individual are subpoenaed
by a Grand Jury, court, or a quasijudicial agency, the official served
with the subpoena shall be responsible for assuring that notice of its
issuance is provided to the individual. Notice shall be provided within
10 days of the service of the subpoena or, in the case of a Grand Jury
subpoena, within 10 days of its becoming a matter of public record.
Notice shall be mailed to the last known address of the individual and
shall contain the following information: The date the subpoena is
returnable, the court in which it is returnable, the name and number of
the case or proceeding, and the nature of the information sought. Notice
of the issuance of subpoenas is not required if the system of records
has been exempted from the notice requirement pursuant to 5 U.S.C.
552a(j), by a Notice of Exemption published in the Federal Register.
(b) Emergency disclosures. If information concerning an individual
has been disclosed to any person under compelling circumstances
affecting health or safety, the individual shall be notified at his last
known address within 10 working days of the disclosure. Notification
shall include the following information: The nature of the information
disclosed, the person or agency to whom it was disclosed, the date of
the disclosure, and the compelling circumstances justifying the
disclosure. Notification shall be given by the officer who made or
authorized the disclosure.
[[Page 92]]
Sec. 103.32 Information forms.
(a) Review of forms. The Service shall be responsible for the review
of forms it uses to collect information from and about individuals.
(b) Scope of review. The Service Forms Control Unit shall review
each form to assure that it complies with the requirements of 28 CFR
16.52.
Sec. 103.33 Contracting record systems.
Any contract by the Service for the operation of a record system
shall be in compliance with 28 CFR 16.55.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.34 Security of records systems.
The security of records systems shall be in accordance with 28 CFR
16.54.
Sec. 103.35 Use and collection of Social Security numbers.
The use and collection of Social Security numbers shall be in
accordance with 28 CFR 16.56.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.36 Employee standards of conduct with regard to privacy.
Service employee standards of conduct with regard to privacy shall
be in compliance with 28 CFR 16.57.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
PART 109--[RESERVED]
PART 204--IMMIGRANT PETITIONS--Table of Contents
Sec.
204.1 General information about immediate relative and family-sponsored
petitions.
204.2 Petitions for relatives, widows and widowers, and abused spouses
and children.
204.3 Orphans.
204.4 Amerasian child of a United States citizen.
204.5 Petitions for employment-based immigrants.
204.6 Petitions for employment creation aliens.
204.7 Preservation of benefits contained in savings clause of
Immigration and Nationality Act Amendments of 1976.
204.8 Petitions for employees of certain United States businesses
operating in Hong Kong.
204.9 Special immigrant status for certain aliens who have served
honorably (or are enlisted to serve) in the Armed Forces of
the United States for at least 12 years.
204.10 Petitions by, or for, certain scientists of the Commonwealth of
Independent States or the Baltic states.
204.11 Special immigrant status for certain aliens declared dependent
on a juvenile court (special immigrant juvenile).
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255;
8 CFR part 2.
Sec. 204.1 General information about immediate relative and family-sponsored petitions.
(a) Types of petitions. Petitions may be filed for an alien's
classification as an immediate relative under section 201(b) of the Act
or as a preference immigrant under section 203(a) of the Act based on a
qualifying relationship to a citizen or lawful permanent resident of the
United States, as follows:
(1) A citizen or lawful permanent resident of the United States
petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act
for a qualifying relative's classification as an immediate relative
under section 201(b) of the Act or as a preference immigrant under
section 203(a) of the Act must file a Form I-130, Petition for Alien
Relative. These petitions are described in Sec. 204.2;
(2) A widow or widower of a United States citizen self-petitioning
under section 204(a)(1)(A)(ii) of the Act as an immediate relative under
section 201(b) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
(3) A spouse or child of an abusive citizen or lawful permanent
resident of the United States self-petitioning under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act for classification as an immediate relative
under section 201(b) of the Act or as a preference immigrant under
section 203(a) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
[[Page 93]]
(4) A citizen of the United States seeking advanced processing of an
orphan petition must file Form I-600A, Application for Advanced
Processing of Orphan Petition. A citizen of the United States
petitioning under section 204(a)(1)(A)(i) of the Act for classification
of an orphan described in section 101(b)(1)(F) of the Act as an
immediate relative under section 201(b) of the Act must file Form I-600,
Petition to Classify Orphan as an Immediate Relative. These applications
and petitions are described in Sec. 204.3; and
(5) Any person filing a petition under section 204(f) of the Act as,
or on behalf of, an Amerasian for classification as an immediate
relative under section 201(b) of the Act or as a preference immigrant
under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360,
Petition for Amerasian, Widow, or Special Immigrant. These petitions are
described in Sec. 204.4.
(b) Filing fee. Forms I-130 and I-360 must be accompanied by the
appropriate fee under 8 CFR 103.7(b)(1).
(c) Filing date. The filing date of a petition shall be the date it
is properly filed under paragraph (d) of this section and shall
constitute the priority date.
(d) Proper filing. A petition shall be considered properly filed if:
(1) It is signed by the petitioner, and
(2) A fee has been received by the Service office or United States
Consular office having jurisdiction.
(3) If, during normal processing, a delay results from deficiencies
in the initial filing, the priority date will be established only when
the petition is properly signed by the petitioner and the fee has been
collected by the Service. If questions arise concerning the filing of
the petition which cannot be resolved through a check of the Service fee
receipting system (FARES) or other fee collection system, then the
director may consider the date of receipt of the petition to be the
priority date.
(e) Jurisdiction--(1) Petitioner or self-petitioner residing in the
United States. The petition or self-petition must be filed with the
Service office having jurisdiction over the place where the petitioner
or self-petitioner is residing. When the petition or self-petition is
accompanied by an application for adjustment of status, the petition or
self-petition may be filed with the Service office having jurisdiction
over the beneficiary's or self-petitioner's place of residence.
(2) Petitioner residing in certain countries abroad. The Service has
overseas offices located in Vienna, Austria; Frankfurt, Germany; Athens,
Greece; Hong Kong; New Delhi, India; Rome, Italy; Nairobi, Kenya; Seoul,
Korea; Ciudad Juarez, Mexico City, Monterrey, Guadalajara, and Tijuana,
Mexico; Manila, the Philippines; Singapore; Bangkok, Thailand; and
London, the United Kingdom of Great Britain and Northern Ireland. If the
petitioner resides in one of these countries, the petition must be filed
with the Service office located in that country. The beneficiary does
not have to reside in the same jurisdiction as the petitioner for the
Service to accept the petition. The overseas Service officer may accept
and adjudicate a petition filed by a petitioner who does not reside
within the office's jurisdiction when it is established that emergent or
humanitarian reasons for acceptance exist or when it is in the national
interest. An overseas Service officer may not accept or approve a self-
petition filed by the spouse or child of an abusive citizen or lawful
permanent resident of the United States under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act.
These self-petitions must be filed with the Service office in the United
States having jurisdiction over the self-petitioner's place of residence
in the United States.
(3) Jurisdiction assumed by United States consular officer. United
States consular officers assigned to visa-issuing posts abroad, except
those in countries listed in paragraph (e)(2) of this section, are
authorized to accept and approve a relative petition or a petition filed
by a widow or widower if the petitioner resides in the area over which
the post has jurisdiction, regardless of the beneficiary's residence or
physical presence at the time of filing. In emergent or humanitarian
cases and cases in the national interest, the United States consular
officer may accept a petition filed by a petitioner
[[Page 94]]
who does not reside within the consulate's jurisdiction. While consular
officers are authorized to approve petitions, they must refer any
petition which is not clearly approvable to the appropriate Service
office. Consular officers may consult with the appropriate Service
office abroad prior to stateside referral, if they deem it necessary. A
consular official may not accept or approve a self-petition filed by the
spouse or child of an abusive citizen or lawful permanent resident of
the United States under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. These self-petitions
must be filed with the Service office in the United States having
jurisdiction over the self-petitioner's place of residence in the United
States.
(f) Supporting documentation. (1) Documentary evidence consists of
those documents which establish the United States citizenship or lawful
permanent resident status of the petitioner and the claimed relationship
of the petitioner to the beneficiary. They must be in the form of
primary evidence, if available. When it is established that primary
evidence is not available, secondary evidence may be accepted. To
determine the availability of primary documents, the Service will refer
to the Department of State's Foreign Affairs Manual (FAM). When the FAM
shows that primary documents are generally available in the country of
issue but the petitioner claims that his or her document is unavailable,
a letter from the appropriate registrar stating that the document is not
available will not be required before the Service will accept secondary
evidence. The Service will consider any credible evidence relevant to a
self-petition filed by a qualified spouse or child of an abusive citizen
or lawful permanent resident under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The
self-petitioner may, but is not required to, demonstrate that preferred
primary or secondary evidence is unavailable. The determination of what
evidence is credible and the weight to be given that evidence shall be
within the sole discretion of the Service.
(2) Original documents or legible, true copies of original documents
are acceptable. The Service reserves the right to require submission of
original documents when deemed necessary. Documents submitted with the
petition will not be returned to the petitioner, except when originals
are requested by the Service. If original documents are requested by the
Service, they will be returned to the petitioner after a decision on the
petition has been rendered, unless their validity or authenticity is in
question. When an interview is required, all original documents must be
presented for examination at the interview.
(3) Foreign language documents must be accompanied by an English
translation which has been certified by a competent translator.
(g) Evidence of petitioner's United States citizenship or lawful
permanent residence--(1) Primary evidence. A petition must be
accompanied by one of the following:
(i) A birth certificate that was issued by a civil authority and
that establishes the petitioner's birth in the United States;
(ii) An unexpired United States passport issued initially for a full
ten-year period to a petitioner over the age of eighteen years as a
citizen of the United States (and not merely as a noncitizen national);
(iii) An unexpired United States passport issued initially for a
full five-year period to the petitioner under the age of eighteen years
as a citizen of the United States (and not merely as a noncitizen
national);
(iv) A statement executed by a United States consular officer
certifying the petitioner to be a United States citizen and the bearer
of a currently valid United States passport;
(v) The petitioner's Certificate of Naturalization or Certificate of
Citizenship;
(vi) Department of State Form FS-240, Report of Birth Abroad of a
Citizen of the United States, relating to the petitioner;
(vii) The petitioner's Form I-551, Alien Registration Receipt Card,
or other proof given by the Service as evidence of lawful permanent
residence. Photocopies of Form I-551 or of a Certificate of
Naturalization or Certificate
[[Page 95]]
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.
(h) Requests for additional documentation. When the Service
determines that the evidence is not sufficient, an explanation of the
deficiency will be provided and additional evidence will be requested.
The petitioner will be given 60 days to present additional evidence, to
withdraw the petition, to request a decision based on the evidence
submitted, or to request additional time to respond. If the director
determines that the initial 60-day period is insufficient to permit the
presentation of additional documents, the director may provide an
additional 60 days for the submission. The total time shall not exceed
120 days, unless unusual circumstances exist. Failure to respond to a
request for additional evidence will result in a decision based on the
evidence previously submitted.
[57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993;
61 FR 13072, 13073, Mar. 26, 1996]
Sec. 204.2 Petitions for relatives, widows and widowers, and abused spouses and children.
(a) Petition for a spouse--(1) Eligibility. A United States citizen
or alien admitted for lawful permanent residence may file a petition on
behalf of a spouse.
(i) Marriage within five years of petitioner's obtaining lawful
permanent resident status. (A) A visa petition filed on behalf of an
alien by a lawful permanent resident spouse may not be approved if the
marriage occurred within five years of the petitioner being accorded the
status of lawful permanent resident based upon a prior marriage to a
United States citizen or alien lawfully admitted for permanent
residence, unless:
(1) The petitioner establishes by clear and convincing evidence that
the marriage through which the petitioner gained permanent residence was
not
[[Page 96]]
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 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 deportation or
exclusion proceedings, or judicial proceedings relating thereto.
(A) Commencement of proceedings. The period during which the alien
is in deportation or exclusion proceedings, or judicial proceedings
relating thereto, commences:
(1) With the issuance of the Order to Show Cause and Notice of
Hearing (Form I-221) prior to June 20, 1991;
(2) With the filing of an Order to Show Cause and Notice of Hearing
(Form I-221), issued on or after June 20, 1991, with the Immigration
Court; or
(3) With the issuance of the Notice to Applicant for Admission
Detained for Hearing before Immigration Judge (Form I-122).
[[Page 97]]
(B) Termination of proceedings. The period during which the alien is
in deportation or exclusion proceedings, or judicial proceedings
relating thereto, terminates:
(1) When the alien departs from the United States while an order of
deportation is outstanding or before the expiration of the voluntary
departure time granted in connection with an alternate order of
deportation under 8 CFR 243.5;
(2) When the alien departs from the United States pursuant to an
order of exclusion;
(3) When the alien is found not to be excludable or deportable from
the United States;
(4) When the Order to Show Cause is canceled pursuant to 8 CFR
242.7(a);
(5) When proceedings are terminated by the immigration judge or the
Board of Immigration Appeals; or
(6) When a petition for review or an action for habeas corpus is
granted by a Federal Court on judicial review.
(C) Exemptions. This prohibition shall no longer apply if:
(1) The alien is found not to be excludable or deportable from the
United States;
(2) The Order to Show Cause is canceled pursuant to 8 CFR 242.7(a);
(3) Proceedings are terminated by the immigration judge or the Board
of Immigration Appeals;
(4) A petition for review or an action for habeas corpus is granted
by a Federal Court on judicial review;
(5) The alien has resided outside the United States for two or more
years following the marriage; or
(6) The petitioner establishes eligibility for the bona fide
marriage exemption under section 204(g) of the Act by providing clear
and convincing evidence that the marriage was entered into in good faith
and in accordance with the laws of the place where the marriage took
place, was not entered into for the purpose of procuring the alien's
entry as an immigrant, and no fee or other consideration was given
(other than to an attorney for assistance in preparation of a lawful
petition) for the filing of the petition.
(D) Request for exemption. No application or fee is required to
request an exemption. The request must be made in writing and submitted
with the Form I-130. The request must state the reason for seeking the
exemption and must be supported by documentary evidence establishing
eligibility for the exemption.
(E) 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.
(F) 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.
(G) 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
[[Page 98]]
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.
(H) 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.
(I) Priority date. A preference beneficiary shall not be accorded a
priority date within the meaning of section 203(c) of the Act based upon
any relative petition filed during the prohibited period, unless an
exemption contained in this part has been granted. Furthermore, a
preference beneficiary shall not be accorded a priority date prior to
November 29, 1990, based upon the approval of a request for
consideration for the bona fide marriage exemption contained in this
part.
(2) Evidence for petition for a spouse. In addition to evidence of
United States citizenship or lawful permanent residence, the petitioner
must also provide evidence of the claimed relationship. A petition
submitted on behalf of a spouse must be accompanied by a recent ADIT-
style photograph of the petitioner, a recent ADIT-style photograph of
the beneficiary, a certificate of marriage issued by civil authorities,
and proof of the legal termination of all previous marriages of both the
petitioner and the beneficiary. However, non-ADIT-style photographs may
be accepted by the district director when the petitioner or beneficiary
reside(s) in a country where such photographs are unavailable or cost
prohibitive.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. No alien may be classified as an
immediate relative as defined in section 201(b) of the Act unless he or
she is the direct beneficiary of an approved petition for that
classification. Therefore, a child of an alien approved for
classification as an immediate relative spouse is not eligible for
derivative classification and must have a separate petition filed on his
or her behalf. A child accompanying or following to join a principal
alien under section 203(a)(2) of the Act may be included in the
principal alien's second preference visa petition. The child will be
accorded second preference classification and the same priority date as
the principal alien. However, if the child reaches the age of twenty-one
prior to the issuance of a visa to the principal alien parent, a
separate petition will be required. In such a case, the original
priority date will be retained if the subsequent petition is filed by
the same petitioner. Such retention of priority date will be accorded
only to a son or daughter previously eligible as a derivative
beneficiary under a second preference spousal petition.
(b) Petition by widow or widower of a United States citizen--(1)
Eligibility. A widow or widower of a United States citizen may file a
petition and be classified as an immediate relative under section 201(b)
of the Act if:
(i) He or she had been married for at least two years to a United
States citizen.
(Note: The United States citizen is not required to have had the
status of United
[[Page 99]]
States citizen for the entire two year period, but must have been a
United States citizen at the time of death.)
(ii) The petition is filed within two years of the death of the
citizen spouse or before November 29, 1992, if the citizen spouse died
before November 29, 1990;
(iii) The alien petitioner and the citizen spouse were not legally
separated at the time of the citizen's death; and
(iv) The alien spouse has not remarried.
(2) Evidence for petition of widow or widower. If a petition is
submitted by the widow or widower of a deceased United States citizen,
it must be accompanied by evidence of citizenship of the United States
citizen and primary evidence, if available, of the relationship in the
form of a marriage certificate issued by civil authorities, proof of the
termination of all prior marriages of both husband and wife, and the
United States citizen's death certificate issued by civil authorities.
To determine the availability of primary documents, the Service will
refer to the Department of State's Foreign Affairs Manual (FAM). When
the FAM shows that primary documents are generally available in the
country at issue but the petitioner claims that his or her document is
unavailable, a letter from the appropriate registrar stating that the
document is not available will be required before the Service will
accept secondary evidence. Secondary evidence will be evaluated for its
authenticity and credibility. Secondary evidence may include:
(i) Such evidence of the marriage and termination of prior marriages
as religious documents, tribal records, census records, or affidavits;
and
(ii) Such evidence of the United States citizen's death as religious
documents, funeral service records, obituaries, or affidavits.
Affidavits submitted as secondary evidence pursuant to paragraphs
(b)(2)(i) and (b)(2)(ii) of this section must be sworn to or affirmed by
people who have personal knowledge of the event to which they attest.
Each affidavit should contain the full name and address, date and place
of birth of the person making the affidavit and his or her relationship,
if any, to the widow or widower. Any such affidavit must contain
complete information and details explaining how knowledge of the event
was acquired.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
widow or widower is in the United States and is eligible for adjustment
of status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the widow or widower
will be notified of the reasons for the denial and of the right to
appeal in accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A child of an alien widow or widower
classified as an immediate relative is eligible for derivative
classification as an immediate relative. Such a child may be included in
the principal alien's immediate relative visa petition, and may
accompany or follow to join the principal alien to the United States.
Derivative benefits do not extend to an unmarried or married son or
daughter of an alien widow or widower.
(c) Self-petition by spouse of abusive citizen or lawful permanent
resident--(1) Eligibility--(i) Basic eligibility requirements. A spouse
may file a self-petition under section 204(a)(1)(A)(iii) or
204(a)(1)(B)(ii) of the Act for his or her classification as an
immediate relative or as a preference immigrant if he or she:
(A) Is the spouse of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident spouse;
(E) Has been battered by, or has been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident during the
marriage; or is that parent of a child who has 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;
[[Page 100]]
(G) Is a person whose deportation would result in extreme hardship
to himself, herself, or his or her child; and
(H) Entered into the marriage to the citizen or lawful permanent
resident in good faith.
(ii) Legal status of the marriage. The self-petitioning spouse must
be legally married to the abuser when the petition is properly filed
with the Service. A spousal self-petition must be denied if the marriage
to the abuser legally ended through annulment, death, or divorce before
that time. After the self-petition has been properly filed, the legal
termination of the marriage will have no effect on the decision made on
the self-petition. The self-petitioner's remarriage, however, will be a
basis for the denial of a pending self-petition.
(iii) Citizenship or immigration status of the abuser. The abusive
spouse must be a citizen of the United States or a lawful permanent
resident of the United States when the petition is filed and when it is
approved. Changes in the abuser's citizenship or lawful permanent
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an
abusive lawful permanent resident spouse will not be automatically
upgraded to immediate relative status. The self-petitioner would not be
precluded, however, from filing a new self-petition for immediate
relative classification after the abuser's naturalization, provided the
self-petitioner continues to meet the self-petitioning requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was battered by or was the subject of extreme cruelty''
includes, but is not limited to, being the victim of any act or
threatened act of violence, including any forceful detention, which
results or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in
and of themselves, may not initially appear violent but that are a part
of an overall pattern of violence. The qualifying abuse must have been
committed by the citizen or lawful permanent resident spouse, must have
been perpetrated against the self-petitioner or the self-petitioner's
child, and must have taken place during the self-petitioner's marriage
to the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act would
not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the commission
of the offense or offenses in a court of law. A self-petitioner will
also be found to lack good moral character, unless he or she establishes
extenuating circumstances, if he or she willfully failed or refused to
support dependents; or committed unlawful acts that adversely reflect
upon his or her moral character, or was convicted or imprisoned for such
acts, although the acts do not require an automatic finding of 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
[[Page 101]]
of an immigrant visa or approval of an application for adjustment of
status disclose that the self-petitioner is no longer a person of good
moral character or that he or she has not been a person of good moral
character in the past, a pending self-petition will be denied or the
approval of a self-petition will be revoked.
(viii) Extreme hardship. The Service will consider all credible
evidence of extreme hardship submitted with a self-petition, including
evidence of hardship arising from circumstances surrounding the abuse.
The extreme hardship claim will be evaluated on a case-by-case basis
after a review of the evidence in the case. Self-petitioners are
encouraged to cite and document all applicable factors, since there is
no guarantee that a particular reason or reasons will result in a
finding that deportation would cause extreme hardship. Hardship to
persons other than the self-petitioner or the self-petitioner's child
cannot be considered in determining whether a self-petitioning spouse's
deportation would cause extreme hardship.
(ix) Good faith marriage. A spousal self-petition cannot be approved
if the self-petitioner entered into the marriage to the abuser for the
primary purpose of circumventing the immigration laws. A self-petition
will not be denied, however, solely because the spouses are not living
together and the marriage is no longer viable.
(2) Evidence for a spousal self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible.
The Service will consider, however, any credible evidence relevant to
the petition. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
the Service.
(ii) Relationship. A self-petition filed by a spouse must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident abuser.
It must also be accompanied by evidence of the relationship. Primary
evidence of a marital relationship is a marriage certificate issued by
civil authorities, and proof of the termination of all prior marriages,
if any, of both the self-petitioner and the abuser. If the self-petition
is based on a claim that the self-petitioner's child was battered or
subjected to extreme cruelty committed by the citizen or lawful
permanent resident spouse, the self-petition should also be accompanied
by the child's birth certificate or other evidence showing the
relationship between the self-petitioner and the abused child.
(iii) Residence. One or more documents may be submitted showing that
the self-petitioner and the abuser have resided together in the United
States. One or more documents may also be submitted showing that the
self-petitioner is residing in the United States when the self-petition
is filed. Employment records, utility receipts, school records, hospital
or medical records, birth certificates of children born in the United
States, deeds, mortgages, rental records, insurance policies, affidavits
or any other type of relevant credible evidence of residency may be
submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or have taken other legal steps to end the
abuse are strongly encouraged to submit copies of the relating legal
documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. Other forms of credible
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to establish a pattern of abuse and
violence and to support a claim that qualifying abuse also occurred.
(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
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the United States in which the self-petitioner has resided for six or
more months during the 3-year period immediately preceding the filing of
the self-petition. Self-petitioners who lived outside the United States
during this time should submit a police clearance, criminal background
check, or similar report issued by the appropriate authority in each
foreign country in which he or she resided for six or more months during
the 3-year period immediately preceding the filing of the self-petition.
If police clearances, criminal background checks, or similar reports are
not available for some or all locations, the self-petitioner may include
an explanation and submit other evidence with his or her affidavit. The
Service will consider other credible evidence of good moral character,
such as affidavits from responsible persons who can knowledgeably attest
to the self-petitioner's good moral character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, birth certificates of children, medical reports, protection
orders and other court documents, police reports, and other relevant
credible evidence.
(vii) Good faith marriage. Evidence of good faith at the time of
marriage may include, but is not limited to, proof that one spouse has
been listed as the other's spouse on insurance policies, property
leases, income tax forms, or bank accounts; and testimony or other
evidence regarding courtship, wedding ceremony, shared residence and
experiences. Other types of readily available evidence might include the
birth certificates of children born to the abuser and the spouse;
police, medical, or court documents providing information about the
relationship; and affidavits of persons with personal knowledge of the
relationship. All credible relevant evidence will be considered.
(3) Decision on and disposition of the petition--(i) Petition
approved. If the self-petitioning spouse will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) Notice of intent to deny. If the preliminary decision on a
properly filed self-petition is adverse to the self-petitioner, the
self-petitioner will be provided with written notice of this fact and
offered an opportunity to present additional information or arguments
before a final decision is rendered. If the adverse preliminary decision
is based on derogatory information of which the self-petitioner is
unaware, the self-petitioner will also be offered an opportunity to
rebut the derogatory information in accordance with the provisions of 8
CFR 103.2(b)(16).
(iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial and
of the right to appeal the decision.
(4) Derivative beneficiaries. A child accompanying or following-to-
join the self-petitioning spouse may be accorded the same preference and
priority date as the self-petitioner without the necessity of a separate
petition, if the child has not been classified as an immigrant based on
his or her own self-petition. A derivative child who had been included
in a parent's self-petition may later file a self-petition, provided the
child meets the self-petitioning requirements. A child who has been
classified as an immigrant based on a petition filed by the abuser or
another relative may also be derivatively included in a parent's self-
petition. The derivative child must be unmarried, less than 21 years
old, and otherwise qualify as the self-petitioner's child under section
101(b)(1)(F) of the Act until he or she becomes a lawful permanent
resident based on the derivative classification.
(5) Name change. If the self-petitioner's current name is different
than the name shown on the documents, evidence of the name change (such
as the petitioner's marriage certificate, legal document showing name
change, or other similar evidence) must accompany the self-petition.
(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
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file a petition on behalf of an unmarried son or daughter over twenty-
one years of age under section 203(a)(1) or for a married son or
daughter for preference classification under section 203(a)(3) of the
Act. An alien lawfully admitted for permanent residence may file a
petition on behalf of a child or an unmarried son or daughter for
preference classification under section 203(a)(2) of the Act.
(2) Evidence to support petition for child or son or daughter. In
addition to evidence of United States citizenship or lawful permanent
resident, the petitioner must also provide evidence of the claimed
relationship.
(i) Primary evidence for a legitimate child or son or daughter. If a
petition is submitted by the mother, the birth certificate of the child
showing the mother's name must accompany the petition. If the mother's
name on the birth certificate is different from her name on the
petition, evidence of the name change must also be submitted. If a
petition is submitted by the father, the birth certificate of the child,
a marriage certificate of the parents, and proof of legal termination of
the parents' prior marriages, if any, issued by civil authorities must
accompany the petition. If the father's name has been legally changed,
evidence of the name change must also accompany the petition.
(ii) Primary evidence for a legitimated child or son or daughter. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If the
legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided--while the
child was under eighteen years of age--in the country or state under
whose laws the child has been legitimated. Primary evidence of the
relationship should consist of the beneficiary's birth certificate and
the parents' marriage certificate or other evidence of legitimation
issued by civil authorities.
(iii) Primary evidence for an illegitimate child or son or daughter.
If a petition is submitted by the mother, the child's birth certificate,
issued by civil authorities and showing the mother's name, must
accompany the petition. If the mother's name on the birth certificate is
different from her name as reflected in the petition, evidence of the
name change must also be submitted. If the petition is submitted by the
purported father of a child or son or daughter born out of wedlock, the
father must show that he is the natural father and that a bona fide
parent-child 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
[[Page 104]]
of the beneficiary; the father's income tax returns; the father's
medical or insurance records which include the beneficiary as a
dependent; school records for the beneficiary; correspondence between
the parties; or notarized affidavits of friends, neighbors, school
officials, or other associates knowledgeable about the relationship.
(iv) Primary evidence for a stepchild. If a petition is submitted by
a stepparent on behalf of a stepchild or stepson or stepdaughter, the
petition must be supported by the stepchild's or stepson's or
stepdaughter's birth certificate, issued by civil authorities and
showing the name of the beneficiary's parent to whom the petitioner is
married, a marriage certificate issued by civil authorities which shows
that the petitioner and the child's natural parent were married before
the stepchild or stepson or stepdaughter reached the age of eighteen;
and evidence of the termination of any prior marriages of the petitioner
and the natural parent of the stepchild or stepson or stepdaughter.
(v) Secondary evidence. When it is established that primary evidence
is not available, secondary evidence may be accepted. To determine the
availability of primary documents, the Service will refer to the
Department of State's Foreign Affairs Manual (FAM). When the FAM shows
that primary documents are generally available in the country at issue
but the petitioner claims that his or her document is unavailable, a
letter from the appropriate registrar stating that the document is not
available will be required before the Service will accept secondary
evidence. Secondary evidence will be evaluated for its authenticity and
credibility. Secondary evidence may take the form of historical
evidence; such evidence must have been issued contemporaneously with the
event which it documents any may include, but is not limited to, medical
records, school records, and religious documents. Affidavits may also by
accepted. When affidavits are submitted, they must be sworn to by
persons who were born at the time of and who have personal knowledge of
the event to which they attest. Any affidavit must contain the affiant's
full name and address, date and place of birth, relationship to the
party, if any, and complete details concerning how the affiant acquired
knowledge of the event.
(vi) Blood tests. The director may require that a specific Blood
Group Antigen Test be conducted of the beneficiary and the beneficiary's
father and mother. In general, blood tests will be required only after
other forms of evidence have proven inconclusive. If the specific Blood
Group Antigen Test is also found not to be conclusive and the director
determines that additional evidence is needed, a Human Leucocyte Antigen
(HLA) test may be requested. Tests will be conducted, at the expense of
the petitioner or beneficiary, by the United States Public Health
Service physician who is authorized overseas or 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
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counted toward fulfillment of the two-year legal custody requirement.
However, if custody was not granted prior to the adoption, the adoption
decree shall be deemed to mark the commencement of legal custody. An
informal custodial or guardianship document, such as a sworn affidavit
signed before a notary public, is insufficient for this purpose.
(B) Evidence must also be submitted to show that the beneficiary
resided with the petitioner for at least two years. Generally, such
documentation must establish that the petitioner and the beneficiary
resided together in a familial relationship. Evidence of parental
control may include, but is not limited to, evidence that the adoptive
parent owns or maintains the property where the child resides and
provides financial support and day-to-day supervision. The evidence must
clearly indicate the physical living arrangements of the adopted child,
the adoptive parent(s), and the natural parent(s) for the period of time
during which the adoptive parent claims to have met the residence
requirement. When the adopted child continued to reside in the same
household as a natural parent(s) during the period in which the adoptive
parent petitioner seeks to establish his or her compliance with this
requirement, the petitioner has the burden of establishing that he or
she exercised primary parental control during that period of residence.
(C) Legal custody and residence occurring prior to or after the
adoption will satisfy both requirements. Legal custody, like residence,
is accounted for in the aggregate. Therefore, a break in legal custody
or residence will not affect the time already fulfilled. To meet the
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of
the Act, the child must have been under 16 years of age when the
adoption is finalized.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A spouse or child accompanying or
following to join a principal alien as used in this section may be
accorded the same preference and priority date as the principal alien
without the necessity of a separate petition. However, a child of an
alien who is approved for classification as an immediate relative is not
eligible for derivative classification and must have a separate petition
approved on his or her behalf.
(5) Name change. When the petitioner's name does not appear on the
child's birth certificate, evidence of the name change (such as the
petitioner's marriage certificate, legal document showing name change,
or other similar evidence) must accompany the petition. If the
beneficiary's name has been legally changed, evidence of the name change
must also accompany the petition.
(e) Self-petition by child of abusive citizen or lawful permanent
resident--(1) Eligibility. (i) A child may file a self-petition under
section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act if he or she:
(A) Is the child of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident parent;
(E) Has been battered by, or has been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident parent while
residing with that parent;
(F) Is a person of good moral character; and
(G) Is a person whose deportation would result in extreme hardship
to himself or herself.
(ii) Parent-child relationship to the abuser. The self-petitioning
child must be unmarried, less than 21 years of age, and otherwise
qualify as the abuser's child under the definition of child contained in
section 101(b)(1) of the Act when the petition is filed and when it
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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 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
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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 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
[[Page 108]]
the United States in which the self-petitioner has resided for six or
more months during the 3-year period immediately preceding the filing of
the self-petition. Self-petitioners who lived outside the United States
during this time should submit a police clearance, criminal background
check, or similar report issued by the appropriate authority in the
foreign country in which he or she resided for six or more months during
the 3-year period immediately preceding the filing of the self-petition.
If police clearances, criminal background checks, or similar reports are
not available for some or all locations, the self-petitioner may include
an explanation and submit other evidence with his or her affidavit. The
Service will consider other credible evidence of good moral character,
such as affidavits from responsible persons who can knowledgeably attest
to the self-petitioner's good moral character. A child who is less than
14 years of age is presumed to be a person of good moral character and
is not required to submit affidavits of good moral character, police
clearances, criminal background checks, or other evidence of good moral
character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, medical reports, protection orders and other court
documents, police reports, and other relevant credible evidence.
(3) Decision on and disposition of the petition--(i) Petition
approved. If the self-petitioning child will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) Notice of intent to deny. If the preliminary decision on a
properly filed self-petition is adverse to the self-petitioner, the
self-petitioner will be provided with written notice of this fact and
offered an opportunity to present additional information or arguments
before a final decision is rendered. If the adverse preliminary decision
is based on derogatory information of which the self-petitioner is
unaware, the self-petitioner will also be offered an opportunity to
rebut the derogatory information in accordance with the provisions of 8
CFR 103.2(b)(16).
(iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial and
of the right to appeal the decision.
(4) Derivative beneficiaries. A child of a self-petitioning child is
not eligible for derivative classification and must have a petition
filed on his or her behalf if seeking immigrant classification.
(5) Name change. If the self-petitioner's current name is different
than the name shown on the documents, evidence of the name change (such
as the petitioner's marriage certificate, legal document showing the
name change, or other similar evidence) must accompany the self-
petition.
(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
[[Page 109]]
the country or state of the father's residence or domicile. If the
legitimation is based on the natural parent's marriage, such marriage
must have taken place while the child was under the age of eighteen. If
the legitimation is based on the laws of the country or state of the
child's residence or domicile, the law must have taken effect before the
child's eighteenth birthday. If the legitimation is based on the laws of
the country or state of the father's residence or domicile, the father
must have resided--while the child was under eighteen years of age--in
the country or state under whose laws the child has been legitimated.
Primary evidence of the relationship should consist of petitioner's
birth certificate and the parents' marriage certificate or other
evidence of legitimation issued by civil authorities.
(iii) Primary evidence if the petitioner is an illegitimate son or
daughter. If a petition is submitted on behalf of the mother, the
petitioner's birth certificate, issued by civil authorities and showing
the mother's name, must accompany the petition. If the mother's name on
the birth certificate is different from her name as reflected in the
petition, evidence of the name change must also be submitted. If the
petition is submitted on behalf of the purported father of the
petitioner, the petitioner must show that the beneficiary is his or her
natural father and that a bona fide parent-child relationship was
established when the petitioner was unmarried and under twenty-one years
of age. Such a relationship will be deemed to exist or to have existed
where the father demonstrates or has demonstrated an active concern for
the child's support, instruction, and general welfare. Primary evidence
to establish that the beneficiary is the petitioner's natural father is
the petitioner's birth certificate, issued by civil authorities and
showing the father's name. If the father's name has been legally
changed, evidence of the name change must accompany the petition.
Evidence of a parent/child relationship should establish more than
merely a biological relationship. Emotional and/or financial ties or a
genuine concern and interest by the father for the child's support,
instruction, and general welfare must be shown. There should be evidence
that the father and child actually lived together or that the father
held the child out as being his own, that he provided for some or all of
the child's needs, or that in general the father's behavior evidenced a
genuine concern for the child. The most persuasive evidence for
establishing a bona fide parent/child relationship is documentary
evidence which was contemporaneous with the events in question. Such
evidence may include, but is not limited to: money order receipts or
cancelled checks showing the father's financial support of the
beneficiary; the father's income tax returns; the father's medical or
insurance records which include the petitioner as a dependent; school
records for the petitioner; correspondence between the parties; or
notarized affidavits of friends, neighbors, school officials, or other
associates knowledgeable as to the relationship.
(iv) Primary evidence if petitioner is an adopted son or daughter. A
petition may be submitted for an adoptive parent by a United States
citizen who is twenty-one years of age or older if the adoption took
place before the petitioner's sixteenth birthday and if the two year
legal custody and residence requirements have been met. A copy of the
adoption decree, issued by the civil authorities, must accompany the
petition.
(A) Legal custody means the assumption of responsibility for a minor
by an adult under the laws of the state and under the order or approval
of a court of law or other appropriate government entity. This provision
requires that a legal process involving the courts or other recognized
government entity take place. If the adopting parent was granted legal
custody by the court or recognized governmental entity prior to the
adoption, that period may be counted toward fulfillment of the two-year
legal custody requirement. However, if custody was not granted prior to
the adoption, the adoption decree 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.
[[Page 110]]
(B) Evidence must also be submitted to show that the beneficiary
resided with the petitioner for at least two years. Generally, such
documentation must establish that the petitioner and the beneficiary
resided together in a parental relationship. The evidence must clearly
indicate the physical living arrangements of the adopted child, the
adoptive parent(s), and the natural parent(s) for the period of time
during which the adoptive parent claims to have met the residence
requirement.
(C) Legal custody and residence occurring prior to or after the
adoption will satisfy both requirements. Legal custody, like residence,
is accounted for in the aggregate. Therefore, a break in legal custody
or residence will not affect the time already fulfilled. To meet the
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of
the Act, the child must have been under 16 years of age when the
adoption is finalized.
(v) Name change. When the petition is filed by a child for the
child's parent, and the parent's name is not on the child's birth
certificate, evidence of the name change (such as the parent's marriage
certificate, a legal document showing the parent's name change, or other
similar evidence) must accompany the petition. If the petitioner's name
has been legally changed, evidence of the name change must also
accompany the petition.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A child or a spouse of a principal
alien who is approved for classification as an immediate relative is not
eligible for derivative classification and must have a separate petition
approved on his or her behalf.
(g) Petition for a brother or sister--(1) Eligibility. Only a United
States citizen who is twenty-one years of age or older may file a
petition of a brother or sister for classification under section
203(a)(4) of the Act.
(2) Evidence to support a petition for brother or sister. In
addition to evidence of United States citizenship, the petitioner must
also provide evidence of the claimed relationship.
(i) Primary evidence if the siblings share a common mother or are
both legitimate children of a common father. If a sibling relationship
is claimed through a common mother, the petition must be supported by a
birth certificate of the petitioner and a birth certificate of the
beneficiary showing a common mother. If the mother's name on one birth
certificate is different from her name as reflected on the other birth
certificate or in the petition, evidence of the name change must also be
submitted. If a sibling relationship is claimed through a common father,
the birth certificates of the beneficiary and petitioner, a marriage
certificate of the parents' and proof of legal termination of the
parents, prior marriage(s), if any, issued by civil authorities must
accompany the petition. If the father's name has been legally changed,
evidence of the name change must also accompany the petition.
(ii) Primary evidence if either or both siblings are legitimated. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If based
on the laws of the country or state of the father's residence or
domicile, the father must have resided--while the child was under
eighteen years of age--in the country or state under whose laws the
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
[[Page 111]]
or other evidence of legitimation issued by civil authorities.
(iii) Primary evidence if either sibling is illegitimate. If one or
both of the siblings is (are) the illegitimate child(ren) of a common
father, the petitioner must show that they are the natural children of
the father and that a bona fide parent-child relationship was
established when the illegitimate child(ren) was (were) unmarried and
under twenty-one years of age. Such a relationship will be deemed to
exist or to have existed where the father demonstrates or has
demonstrated an active concern for the child's support, instruction, and
general welfare. Primary evidence is the petitioner's and beneficiary's
birth certificates, issued by civil authorities and showing the father's
name, and evidence that the siblings have or had a bona fide parent/
child relationship with the natural father. If the father's name has
been legally changed, evidence of the name change must accompany the
petition. Evidence of a parent/child relationship should establish more
than merely a biological relationship. Emotional and/or financial ties
or a genuine concern and interest by the father for the child's support,
instruction, and general welfare must be shown. There should be evidence
that the father and child actually lived together or that the father
held the child out as being his own, that he provided for some or all of
the child's needs, or that in general the father's behavior evidenced a
genuine concern for the child. The most persuasive evidence for
establishing a bona fide parent/child relationship is documentary
evidence which was contemporaneous with the events in question. Such
evidence may include, but is not limited to: money order receipts or
canceled checks showing the father's financial support of the
beneficiary; the father's income tax returns; the father's medical or
insurance records which include the beneficiary as a dependent; school
records for the beneficiary; correspondence between the parties; or
notarized affidavits of friends, neighbors, school officials, or other
associates knowledgeable about the relationship.
(iv) Primary evidence for stepsiblings. If the petition is submitted
on behalf of a brother or sister having a common father, the
relationship of both the petitioner and the beneficiary to the father
must be established as required in paragraphs (g)(2)(ii) and (g)(2)(iii)
of this section. If the petitioner and beneficiary are stepsiblings
through the marriages of their common father to different mothers, the
marriage certificates of the parents and evidence of the termination of
any prior marriages of the parents must be submitted.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A spouse or a child accompanying or
following to join a principal alien beneficiary under this section may
be accorded the same preference and priority date as the principal alien
without the necessity of a separate petition.
(5) Name change. If the name of the petitioner, the beneficiary, or
both has been legally changed, evidence showing the name change (such as
a marriage certificate, a legal document showing the name change, or
other similar evidence) must accompany the petition.
(h) Validity of approved petitions--(1) General. Unless terminated
pursuant to section 203(g) of the Act or revoked pursuant to part 205 of
this chapter, the approval of a petition to classify an alien as a
preference immigrant under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
of section 203 of the Act, or as an immediate relative under section
201(b) of the Act, shall remain valid for the duration of the
relationship to the petitioner and of the petitioner's status as
established in the petition.
(2) Subsequent petition by same petitioner for same beneficiary.
When a visa 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
[[Page 112]]
reinstatement of the validity of the original petition, except when the
original petition has been terminated pursuant to section 203(g) of the
Act or revoked pursuant to part 205 of this chapter, or when an
immigrant visa has been issued to the beneficiary as a result of the
petition approval. A self-petition filed under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii)
of the Act based on the relationship to an abusive citizen or lawful
permanent resident of the United States will not be regarded as a
reaffirmation or reinstatement of a petition previously filed by the
abuser. A self-petitioner who has been the beneficiary of a visa
petition filed by the abuser to accord the self-petitioner immigrant
classification as his or her spouse or child, however, will be allowed
to transfer the visa petition's priority date to the self-petition. The
visa petition's priority date may be assigned to the self-petition
without regard to the current validity of the visa petition. The burden
of proof to establish the existence of and the filing date of the visa
petition lies with the self-petitioner, although the Service will
attempt to verify a claimed filing through a search of the Service's
computerized records or other records deemed appropriate by the
adjudicating officer. A new self-petition filed under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act will not be regarded as a reaffirmation or
reinstatement of the original self-petition unless the prior and the
subsequent self-petitions are based on the relationship to the same
abusive citizen or lawful permanent resident of the United States.
(i) Automatic conversion of preference classification--(1) By change
in beneficiary's marital status. (i) A currently valid petition
previously approved to classify the beneficiary as the unmarried son or
daughter of a United States citizen under section 203(a)(1) of the Act
shall be regarded as having been approved for preference status under
section 203(a)(3) of the Act as of the date the beneficiary marries. The
beneficiary's priority date is the same as the date the petition for
classification under section 203(a)(1) of the Act was properly filed.
(ii) A currently valid petition previously approved to classify a
child of a United States citizen as an immediate relative under section
201(b) of the Act shall be regarded as having been approved for
preference status under section 203(a)(3) of the Act as of the date the
beneficiary marries. The beneficiary's priority date is the same as the
date the petition for 201(b) classification was properly filed.
(iii) A currently valid petition classifying the married son or
married daughter of a United States citizen for preference status under
section 203(a)(3) of the Act shall, upon legal termination of the
beneficiary's marriage, be regarded as having been approved under
section 203(a)(1) of the Act if the beneficiary is over twenty-one years
of age. The beneficiary's priority date is the same as the date the
petition for classification under section 203(a)(3) of the Act was
properly filed. If the beneficiary is under twenty-one years of age, the
petition shall be regarded as having been approved for classification as
an immediate relative under section 201(b) of the Act as of the date the
petition for classification under section 203(a)(3) of the Act was
properly filed.
(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
[[Page 113]]
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]
Sec. 204.3 Orphans.
(a) General--(1) Background. This section addresses a number of
issues that have arisen in the recent past because of the increased
interest by United States citizens in the adoption of foreign-born
orphans and is based on applicable provisions of the Act. It should be
noted that this section was not drafted in connection with possible
United States ratification and implementation of the Hague Convention on
Protection of Children and Cooperation in Respect of Inter-country
Adoption.
(2) Overview. The processing and adjudication of orphan cases is a
Service priority. A child who meets the definition of orphan contained
in section 101(b)(1)(F) of the Act is eligible for classification as the
immediate relative of a United States citizen. Petitioning for an orphan
involves two distinct determinations. The first determination concerns
the advanced processing application which focuses on the ability of the
prospective adoptive parents to provide a proper home environment and on
their suitability as parents. This determination, based primarily on a
home study and fingerprint checks, is essential for the protection of
the orphan. The second determination concerns the orphan petition which
focuses on whether the child is an orphan under section 101(b)(1)(F) of
the Act. The prospective adoptive parents may submit the documentation
necessary for each of these determinations separately or at one time,
depending on when the orphan is identified. An orphan petition cannot be
approved unless there is a favorable determination on the advanced
processing application. However, a favorable determination on the
advanced processing application does not guarantee that the orphan
petition will be approved. Prospective adoptive parents may consult with
the local Service office on matters relating to an advanced processing
application and/or orphan petition.
(b) Definitions. As used in this section, the term:
Abandonment by both parents means that the parents have willfully
forsaken all parental rights, obligations, and claims to the child, as
well as all control over and possession of the child, without intending
to transfer, or without transferring, these rights to any specific
person(s). Abandonment must include not only the intention to surrender
all parental rights, obligations, and claims to the child, and control
over and possession of the child, but also the actual act of surrending
such rights, obligations, claims, control, and possession. A
relinquishment or release by the parents to the prospective adoptive
parents or for a specific adoption does not constitute abandonment.
Similarly, the relinquishment or release of the child by the parents to
a third party for custodial care in anticipation of, or preparation for,
adoption does not constitute abandonment unless the third party (such as
a governmental agency, a court of competent jurisdiction, an adoption
agency, or an orphanage) is authorized under the child welfare laws of
the foreign-sending country to act in such a capacity. A child who is
placed temporarily in an orphanage shall not be considered to be
abandoned if the parents express an intention to retrieve the child, are
contributing or attempting to contribute to the support of the child, or
otherwise exhibit ongoing parental interest in the child. A
[[Page 114]]
child who has been given unconditionally to an orphanage shall be
considered to be abandoned.
Adult member of the prospective adoptive parents' household means an
individual, other than a prospective adoptive parent, over the age of 18
whose principal or only residence is the home of the prospective
adoptive parents. This definition excludes any child of the prospective
adoptive parents, whose principal or only residence is the home of the
prospective adoptive parents, who reaches his or her eighteenth birthday
after the prospective adoptive parents have filed the advanced
processing application (or the advanced processing application
concurrently with the orphan petition) unless the director has an
articulable and substantive reason for requiring an evaluation by a home
study preparer and/or fingerprint check.
Advanced processing application means Form I-600A (Application for
Advanced Processing of Orphan Petition) completed in accordance with the
form's instructions and submitted with the required supporting
documentation and the fee as required in 8 CFR 103.7(b)(1). The
application must be signed in accordance with the form's instructions by
the married petitioner and spouse, or by the unmarried petitioner.
Application is synonymous with advanced processing application.
Competent authority means a court or governmental agency of a
foreign-sending country having jurisdiction and authority to make
decisions in matters of child welfare, including adoption.
Desertion by both parents means that the parents have willfully
forsaken their child and have refused to carry out their parental rights
and obligations and that, as a result, the child has become a ward of a
competent authority in accordance with the laws of the foreign-sending
country.
Disappearance of both parents means that both parents have
unaccountably or inexplicably passed out of the child's life, their
whereabouts are unknown, there is no reasonable hope of their
reappearance, and there has been a reasonable effort to locate them as
determined by a competent authority in accordance with the laws of the
foreign-sending country.
Foreign-sending country means the country of the orphan's
citizenship, or if he or she is not permanently residing in the country
of citizenship, the country of the orphan's habitual residence. This
excludes a country to which the orphan travels temporarily, or to which
he or she travels either as a prelude to, or in conjunction with, his or
her adoption and/or immigration to the United States.
Home study preparer means any party licensed or otherwise authorized
under the law of the State of the orphan's proposed residence to conduct
the research and preparation for a home study, including the required
personal interview(s). This term includes a public agency with authority
under that State's law in adoption matters, public or private adoption
agencies licensed or otherwise authorized by the laws of that State to
place children for adoption, and organizations or individuals licensed
or otherwise authorized to conduct the research and preparation for a
home study, including the required personal interview(s), under the laws
of the State of the orphan's proposed residence. In the case of an
orphan whose adoption has been finalized abroad and whose adoptive
parents reside abroad, the home study preparer includes any party
licensed or otherwise authorized to conduct home studies under the law
of any State of the United States, or any party licensed or otherwise
authorized by the foreign country's adoption authorities to conduct home
studies under the laws of the foreign country.
Incapable of providing proper care means that a sole or surviving
parent is unable to provide for the child's 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
[[Page 115]]
form's instructions and submitted with the required supporting
documentation and, if there is not an advanced processing application
approved within the previous 18 months or pending, the fee as required
in 8 CFR 103.7(b)(1). The petition must be signed in accordance with the
form's instructions by the married petitioner and spouse, or the
unmarried petitioner.
Overseas site means the Department of State immigrant visa-issuing
post having jurisdiction over the orphan's residence, or in foreign
countries in which the Services has an office or offices, the Service
office having jurisdiction over the orphan's residence.
Petition is synonymous with orphan petition.
Petitioner means a married United States citizen of any age, or an
unmarried United States citizen who is at least 24 years old at the time
he or she files the advanced processing application and at least 25
years old at the time he or she files the orphan petition. In the case
of a married couple, both of whom are United States citizens, either
party may be the petitioner.
Prospective adoptive parents means a married United States citizen
of any age and his or her spouse of any age, or an unmarried United
States citizen who is at least 24 years old at the time he or she files
the advanced processing application and at least 25 years old at the
time he or she files the orphan petition. The spouse of the United
States citizen may be a citizen or an alien. An alien spouse must be in
lawful immigration status if residing in the United States.
Separation from both parents means the involuntary severance of the
child from his or her parents by action of a competent authority for
good cause and in accordance with the laws of the foreign-sending
country. The parents must have been properly notified and granted the
opportunity to contest such action. The termination of all parental
rights and obligations must be permanent and unconditional.
Sole parent means the mother when it is established that the child
is illegitimate and has not acquired a parent within the meaning of
section 101(b)(2) of the Act. An illegitimate child shall be considered
to have a sole parent if his or her father has severed all parental
ties, rights, duties, and obligations to the child, or if his or her
father has, in writing, irrevocably released the child for emigration
and adoption. This definition is not applicable to children born in
countries which make no distinction between a child born in or out of
wedlock, since all such children are considered to be legitimate. In all
cases, a sole parent must be incapable of providing proper care as that
term is defined in this section.
Surviving parent means the child's living parent when the child's
other parent is dead, and the child has not acquired another parent
within the meaning of section 101(b)(2) of the Act. In all cases, a
surviving parent must be incapable of providing proper care as that term
is defined in this section.
(c) Supporting documentation for an advanced processing application.
The prospective adoptive parents may file an advanced processing
application before an orphan is identified in order to secure the
necessary clearance to file the orphan petition. Any document not in the
English language must be accompanied by a certified English translation.
(1) Required supporting documentation that must accompany the
advanced processing application. The following supporting documentation
must accompany an advanced processing application at the time of filing:
(i) Evidence of the petitioner's United States citizenship as set
forth in Sec. 204.1(g) and, if the petitioner is married and the married
couple is residing in the United States, evidence of the spouse's United
States citizenship or lawful immigration status;
(ii) A copy of the petitioner's marriage certificate to his or her
spouse, if the petitioner is currently married;
(iii) Evidence of legal termination of all previous marriages for
the petitioner and/or spouse, if previously married;
(iv) Two sets of completed and fully-classifiable fingerprint cards
for each member of the married prospective adoptive couple or the
unmarried prospective adoptive parent. The fingerprints must be
submitted on Form FD-258 (Applicant Fingerprint Card) with
[[Page 116]]
the office code of the Service office having jurisdiction over the
petitioner's place of residence preprinted in the box marked ``ORI'';
and
(v) Evidence of compliance with preadoption requirements, if any, of
the State of the orphan's proposed residence in cases where it is known
that there will be no adoption abroad, or that both members of the
married prospective adoptive couple or the unmarried prospective
adoptive parent will not personally see the child prior to, or during,
the adoption abroad, and/or that the adoption abroad will not be full
and final. Any preadoption requirements which cannot be met at the time
the advanced processing application is filed because of operation of
State law must be noted and explained when the application is filed.
Preadoption requirements must be met at the time the petition is filed,
except for those which cannot be met until the orphan arrives in the
United States; and
(vi) Two sets of fingerprint cards which conform to the requirements
in paragraph (c)(1)(iv) of this section for each additional adult member
of the prospective adoptive parents' household. The Service may waive
this requirement when it determines that such an adult is physically
unable to be fingerprinted because of age or medical condition.
(2) Home study. The home study must comply with the requirements
contained in paragraph (e) of this section. If the home study is not
submitted when the advanced processing application is filed, it must be
submitted within one year of the filing date of the advanced processing
application, or the application will be denied pursuant to paragraph
(h)(5) of this section.
(d) Supporting documentation for a petition for an identified
orphan. Any document not in the English language must be accompanied by
a certified English translation. If an orphan has been identified for
adoption and the advanced processing application is pending, the
prospective adoptive parents may file the orphan petition at the Service
office where the application is pending. The prospective adoptive
parents who have an approved advanced processing application must file
an orphan petition and all supporting documents within eighteen months
of the date of the approval of the advanced processing application. If
the prospective adoptive parents fail to file the orphan petition within
the eighteen-month period, the advanced processing application shall be
deemed abandoned pursuant to paragraph (h)(7) of this section. If the
prospective adoptive parents file the orphan petition after the
eighteen-month period, the petition shall be denied pursuant to
paragraph (h)(13) of this section. Prospective adoptive parents who do
not have an advanced processing application approved or pending may file
the application and petition concurrently on one Form I-600 if they have
identified an orphan for adoption. An orphan petition must be
accompanied by full documentation as follows:
(1) Filing an orphan petition after the advanced processing
application has been approved. The following supporting documentation
must accompany an orphan petition filed after approval of the advanced
processing application:
(i) Evidence of approval of the advanced processing application;
(ii) The orphan's birth certificate, or if such a certificate is not
available, an explanation together with other proof of identity and age;
(iii) Evidence that the child is an orphan as appropriate to the
case:
(A) Evidence that the orphan has been abandoned or deserted by,
separated or lost from both parents, or that both parents have
disappeared as those terms are defined in paragraph (b) of this section;
or
(B) The death certificate(s) of the orphan's parent(s), if
applicable;
(C) If the orphan has only a sole or surviving parent, as defined in
paragraph (b) of this section, evidence of this fact and evidence that
the sole or surviving parent is incapable of providing for the orphan's
care and has irrevocably released the orphan for emigration and
adoption; and
(iv) Evidence of adoption abroad or that the prospective adoptive
parents have, or a person or entity working on their behalf has, custody
of the orphan for emigration and adoption in accordance with the laws of
the foreign-sending country:
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(A) A legible, certified copy of the adoption decree, if the orphan
has been the subject of a full and final adoption abroad, and evidence
that the unmarried petitioner, or married petitioner and spouse, saw the
orphan prior to or during the adoption proceeding abroad; or
(B) If the orphan is to be adopted in the United States because
there was no adoption abroad, or the unmarried petitioner, or married
petitioner and spouse, did not personally see the orphan prior to or
during the adoption proceeding abroad, and/or the adoption abroad was
not full and final:
(1) Evidence that the prospective adoptive parents have, or a person
or entity working on their behalf has, secured custody of the orphan in
accordance with the laws of the foreign-sending country;
(2) An irrevocable release of the orphan for emigration and adoption
from the person, organization, or competent authority which had the
immediately previous legal custody or control over the orphan if the
adoption was not full and final under the laws of the foreign-sending
country;
(3) Evidence of compliance with all preadoption requirements, if
any, of the State of the orphan's proposed residence. (Any such
requirements that cannot be complied with prior to the orphan's arrival
in the United States because of State law must be noted and explained);
and
(4) Evidence that the State of the orphan's proposed residence
allows readoption or provides for judicial recognition of the adoption
abroad if there was an adoption abroad which does not meet statutory
requirements pursuant to section 101(b)(1)(F) of the Act, because the
unmarried petitioner, or married petitioner and spouse, did not
personally see the orphan prior to or during the adoption proceeding
abroad, and/or the adoption abroad was not full and final.
(2) Filing an orphan petition while the advanced processing
application is pending. An orphan petition filed while an advanced
processing application is pending must be filed at the Service office
where the application is pending. The following supporting documentation
must accompany an orphan petition filed while the advanced processing
application is pending:
(i) A photocopy of the fee receipt relating to the advanced
processing application, or if not available, other evidence that the
advanced processing application has been filed, such as a statement
including the date when the application was filed;
(ii) The home study, if not already submitted; and
(iii) The supporting documentation for an orphan petition required
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of
this section.
(3) Filing an orphan petition concurrently with the advanced
processing application. A petition filed concurrently with the advanced
processing application must be submitted on Form I-600, completed and
signed in accordance with the form's instructions. (Under this
concurrent procedure, Form I-600 serves as both the Forms I-600A and I-
600, and the prospective adoptive parents should not file a separate
Form I-600A). The following supporting documentation must accompany a
petition filed concurrently with the application under this provision:
(i) The supporting documentation for an advanced processing
application required in paragraph (c) of this section; and
(ii) The supporting documentation for an orphan petition required in
paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this
section.
(e) Home study requirements. For immigration purposes, a home study
is a process for screening and preparing prospective adoptive parents
who are interested in adopting an orphan from another country. The home
study 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
[[Page 118]]
(v) of this section. A home study must be conducted by a home study
preparer, as defined in paragraph (b) of this section. The home study,
or the most recent update to the home study, must not be more than six
months old at the time the home study is submitted to the Service. Only
one copy of the home study must be submitted to the Service. Ordinarily,
a home study (or a home study and update as discussed above) will not
have to be updated after it has been submitted to the Service unless
there is a significant change in the household of the prospective
adoptive parents such as a change in residence, marital status, criminal
history, financial resources, and/or the addition of one or more
children or other dependents to the family prior to the orphan's
immigration into the United States. In addition to meeting any State,
professional, or agency requirements, a home study must include the
following:
(1) Personal interview(s) and home visit(s). The home study preparer
must conduct at least one interview in person, and at least one home
visit, with the prospective adoptive couple or the unmarried prospective
adoptive parent. Each additional adult member of the prospective
adoptive parents' household must also be interviewed in person at least
once. The home study report must state the number of such interviews and
visits, and must specify any other contacts with the prospective
adoptive parents and any adult member of the prospective adoptive
parents' household.
(2) Assessment of the capabilities of the prospective adoptive
parents to properly parent the orphan. The home study must include a
discussion of the following areas:
(i) Assessment of the physical, mental, and emotional capabilities
of the prospective adoptive parents to properly parent the orphan. The
home study preparer must make an initial assessment of how the physical,
mental, and emotional health of the prospective adoptive parents would
affect their ability to properly care for the prospective orphan. If the
home study preparer determines that there are areas beyond his or her
expertise which need to be addressed, he or she shall refer the
prospective adoptive parents to an appropriate licensed professional,
such as a physician, psychiatrist, clinical psychologist, or clinical
social worker for an evaluation. Some problems may not necessarily
disqualify applicants. For example, certain physical limitations may
indicate which categories of children may be most appropriately placed
with certain prospective adoptive parents. Certain mental and emotional
health problems may be successfully treated. The home study must include
the home study preparer's assessment of any such potential problem
areas, a copy of any outside evaluation(s), and the home study
preparer's recommended restrictions, if any, on the characteristics of
the child to be placed in the home. Additionally, the home study
preparer must apply the requirements of this paragraph to each adult
member of the prospective adoptive parents' household.
(ii) Assessment of the finances of the prospective adoptive parents.
The financial assessment must include a description of the income,
financial resources, debts, and expenses of the prospective adoptive
parents. A statement concerning the evidence that was considered to
verify the source and amount of income and financial resources must be
included. Any income designated for the support of one or more children
in the care and custody of the prospective adoptive parents, such as
funds for foster care, or any income designated for the support of
another member of the household must not be counted towards the
financial resources available for the support of a prospective orphan.
The Service will not routinely require 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
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report that no record was found to exist. Depending on the access
allowed by the state of proposed residence of the orphan, the home study
preparer must take one of the following courses of action:
(i) If the home study preparer is allowed access to information from
the child abuse registries, he or she shall make the appropriate checks
for each of the prospective adoptive parents and for each adult member
of the prospective adoptive parents' household;
(ii) If the State requires the home study preparer to secure
permission from each of the prospective adoptive parents and for each
adult member of the prospective adoptive parents' household before
gaining access to information in such registries, the home study
preparer must secure such permission from those individuals, and make
the appropriate checks;
(iii) If the State will only release information directly to each of
the prospective adoptive parents and directly to the adult member of the
prospective adoptive parents' household, those individuals must secure
such information and provide it to the home study preparer. The home
study preparer must include the results of these checks in the home
study;
(iv) If the State will not release information to either the home
study preparer or the prospective adoptive parents and the adult members
of the prospective adoptive parents' household, this must be noted in
the home study; or
(v) If the State does not have a child abuse registry, this must be
noted in the home study.
(2) Inquiring about abuse and violence. The home study preparer must
ask each prospective adoptive parent whether he or she has a history of
substance abuse, sexual or child abuse, or domestic violence, even if it
did not result in an arrest or conviction. The home study preparer must
include each prospective adoptive parent's response to the questions
regarding abuse and violence. Additionally, the home study preparer must
apply the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(B) Information concerning history of abuse and/or violence. If the
petitioner and/or spouse, if married, disclose(s) any history of abuse
and/or violence as set forth in paragraph (e)(2)(iii)(A) of this
section, or if, in the absence of such disclosure, the home study
preparer becomes aware of any of the foregoing, the home study report
must contain an evaluation of the suitability of the home for adoptive
placement of an orphan in light of this history. This evaluation must
include information concerning all arrests or convictions or history of
substance abuse, sexual or child abuse, and/or domestic violence and the
date of each occurrence. A certified copy of the documentation showing
the final disposition of each incident, which resulted in arrest,
indictment, conviction, and/or any other judicial or administrative
action, must accompany the home study. Additionally, the prospective
adoptive parent must submit a signed statement giving details including
mitigating circumstances, if any, about each incident. The home study
preparer must apply the requirements of this paragraph to each adult
member of the prospective adoptive parents' household.
(C) Evidence of rehabilitation. If a prospective adoptive parent has
a history of substance abuse, sexual or child abuse, and/or domestic
violence, the home study preparer may, nevertheless, make a favorable
finding if the prospective adoptive parent has demonstrated appropriate
rehabilitation. In such a case, a discussion of such rehabilitation
which demonstrates that the prospective adoptive parent is and will be
able to provide proper care for the orphan must be included in the 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
[[Page 120]]
considered, as well as the preparer's reasons for a favorable decision
regarding the prospective adoptive parent. Additionally, if any adult
member of the prospective adoptive parents' household has a history of
substance abuse, sexual or child abuse, and/or domestic violence, the
home study preparer must apply the requirements of this paragraph to
that adult member of the prospective adoptive parents' household.
(D) Failure to disclose or cooperate. Failure to disclose an arrest,
conviction, or history of substance abuse, sexual or child abuse, and/or
domestic violence by the prospective adoptive parents or an adult member
of the prospective adoptive parents' household to the home study
preparer and to the Service, may result in the denial of the advanced
processing application or, if applicable, the application and orphan
petition, pursuant to paragraph (h)(4) of this section. Failure by the
prospective adoptive parents or an adult member of the prospective
adoptive parents' household to cooperate in having available child abuse
registries in accordance with paragraphs (e)(2)(iii)(A)(1) and
(e)(2)(iii)(A)(1)(i) through (e)(2)(iii)(A)(1)(iii) of this section will
result in the denial of the advanced processing application or, if
applicable, the application and orphan petition, pursuant to paragraph
(h)(4) of this section.
(iv) Previous rejection for adoption or prior unfavorable home
study. The home study preparer must ask each prospective adoptive parent
whether he or she previously has been rejected as a prospective adoptive
parent or has been the subject of an unfavorable home study, and must
include each prospective adoptive parent's response to this question in
the home study report. If a prospective adoptive parent previously has
been rejected or found to be unsuitable, the reasons for such a finding
must be set forth as well as the reason(s) why he or she is not being
favorably considered as a prospective adoptive parent. A copy of each
previous rejection and/or unfavorable home study must be attached to the
favorable home study. Additionally, the home study preparer must apply
the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(v) Criminal history. The prospective adoptive parents and the adult
members of the prospective adoptive parents' household are expected to
disclose to the home study preparer and the Service any history of
arrest and/or conviction early in the advanced processing procedure.
Failure to do so may result in denial pursuant to paragraph (h)(4) of
this section or in delays. Early disclosure provides the prospective
adoptive parents with the best opportunity to gather and present
evidence, and it gives the home study preparer and the Service the
opportunity to properly evaluate the criminal record in light of such
evidence. When such information is not presented early in the process,
it comes to light when the fingerprint checks are received by the
Service. By that time, the prospective adoptive parents are usually well
into preadoption proceedings of identifying a child and may even have
firm travel plans. At times, the travel plans have to be rescheduled
while the issues raised by the criminal record are addressed. It is in
the best interests of all parties to have any criminal records disclosed
and resolved early in the process.
(3) Living accommodations. The home study must include a detailed
description of the living accommodations where the prospective adoptive
parents currently reside. If the prospective adoptive parents are
planning to move, the home study must include a description of the
living accommodations where the child will reside with the prospective
adoptive parents, if known. If the prospective adoptive parents are
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
[[Page 121]]
must contain a discussion of the prospective adoptive parents'
preparation, willingness, and ability to provide proper care for such an
orphan.
(5) Summary of the counseling given and plans for post-placement
counseling. The home study must include a summary of the counseling
given to prepare the prospective adoptive parents for an international
adoption and any plans for post-placement counseling. Such preadoption
counseling must include a discussion of the processing, expenses,
difficulties, and delays associated with international adoptions.
(6) Specific approval of the prospective adoptive parents for
adoption. If the home study preparer's findings are favorable, the home
study must contain his or her specific approval of the prospective
adoptive parents for adoption and a discussion of the reasons for such
approval. The home study must include the number of orphans which the
prospective adoptive parents may adopt. The home study must state
whether there are any specific restrictions to the adoption such as
nationality, age, or gender of the orphan. If the home study preparer
has approved the prospective parents for a handicapped or special needs
adoption, this fact must be clearly stated.
(7) Home study preparer's certification and statement of authority
to conduct home studies. The home study must include a statement in
which the home study preparer certifies that he or she is licensed or
otherwise authorized by the State of the orphan's proposed residence to
research and prepare home studies. In the case of an orphan whose
adoption was finalized abroad and whose adoptive parents reside abroad,
the home study preparer must certify that he or she is licensed or
otherwise authorized to conduct home studies under the law of any State
of the United States, or authorized by the adoption authorities of the
foreign country to conduct home studies under the laws of the foreign
country. In every case, this statement must cite the State or country
under whose authority the home study preparer is licensed or authorized,
the specific law or regulation authorizing the preparer to conduct home
studies, the license number, if any, and the expiration date, if any, of
this authorization or license.
(8) Review of home study. If the prospective adoptive parents reside
in a State which requires the State to review the home study, such a
review must occur and be documented before the home study is submitted
to the Service. If the prospective adoptive parents reside abroad, an
appropriate public or private adoption agency licensed, or otherwise
authorized, by any State of the United States to place children for
adoption, must review and favorably recommend the home study before it
is submitted to the Service.
(9) Home study updates and amendments--(i) Updates. If the home
study is more than six months old at the time it would be submitted to
the Service, the prospective adoptive parents must ensure that it is
updated by a home study preparer before it is submitted to the Service.
Each update must include screening in accordance with paragraphs
(e)(2)(iii) (A) and (B) of this section.
(ii) Amendments. If there have been any significant changes, such as
a change in the residence of the prospective adoptive parents, marital
status, criminal history, financial resources, and/or the addition of
one or more children or other dependents to the family, the prospective
adoptive parents must ensure that the home study is amended by a home
study preparer to reflect any such changes. If the orphan's proposed
State of residence has changed, the home study amendment must contain a
recommendation in accordance with paragraph (e)(8) of this section, if
required by State law. Any preadoption requirements of the new State
must be 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
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submitted under this ``grandfather'' provision which is more than six
months old at the time of its submission must be amended or updated
pursuant to the requirements of paragraph (e)(9) of this section.
(f) State preadoption requirements--(1) General. Many States have
preadoption requirements which, under the Act, must be complied with in
every case in which a child is coming to such a State as an orphan to be
adopted in the United States.
(2) Child coming to be adopted in the United States. An orphan is
coming to be adopted in the United States if he or she will not be or
has not been adopted abroad, or if the unmarried petitioner or both the
married petitioner and spouse did not or will not personally see the
orphan prior to or during the adoption proceeding abroad, and/or if the
adoption abroad will not be, or was not, full and final. If the
prospective adoptive parents reside in a State with preadoption
requirements and they plan to have the child come to the United States
for adoption, they must submit evidence of compliance with the State's
preadoption requirements to the Service. Any preadoption requirements
which by operation of State law cannot be met before filing the advanced
processing application must be noted. Such requirements must be met
prior to filing the petition, except for those which cannot be met by
operation of State law until the orphan is physically in the United
States. Those requirements which cannot be met until the orphan is
physically present in the United States must be noted.
(3) Special circumstances. If both members of the prospective
adoptive couple or the unmarried prospective adoptive parent intend to
travel abroad to see the child prior to or during the adoption, the Act
permits the application and/or petition, if otherwise approvable, to be
approved without preadoption requirements having been met. However, if
plans change and both members of the prospective adoptive couple or the
unmarried prospective adoptive parent fail to see the child prior to or
during the adoption, then preadoption requirements must be met before
the immigrant visa can be issued, except for those preadoption
requirements that cannot be met until the child is physically in the
United States because of operation of State law.
(4) Evidence of compliance. In every case where compliance with
preadoption requirements is required, the evidence of compliance must be
in accordance with applicable State law, regulation, and procedure.
(g) Where to file--(1) Where to file an advanced processing
application. An advanced processing application must be filed with the
Service as follows:
(i) Prospective adoptive parents residing in the United States. If
the prospective adoptive parents reside in the United States, the
application must be filed with the Service office having jurisdiction
over their place of residence.
(ii) Prospective adoptive parents residing in Canada. If the
prospective adoptive parents reside in Canada, the application must be
filed with the stateside Service office having jurisdiction over the
proposed place of residence of the prospective adoptive parents in the
United States.
(iii) Prospective adoptive parents residing in a foreign country
other than Canada. If the prospective adoptive parents reside outside of
the United States or Canada, the application may be filed with the
overseas Service office having jurisdiction over the current place of
residence pursuant to Sec. 100.4(b) of this chapter, or with the
stateside Service office having jurisdiction over the proposed place of
residence of the prospective adoptive parents in the United States.
(2) Where to file an orphan petition when the advanced processing
application has been approved. An orphan petition must be filed with the
appropriate Service office or immigrant visa-issuing post of the
Department of State as follows:
(i) Prospective adoptive parents residing in the United States who
do not travel abroad to locate and/or adopt an orphan. If the
prospective adoptive parents reside in the United States and do not
travel abroad to locate and/or adopt an orphan, the petition must be
filed with the Service office having jurisdiction over the place of
residence of the prospective adoptive parents.
[[Page 123]]
(ii) Prospective adoptive parents residing in the United States,
with one or both members of the prospective adoptive couple, or the
unmarried prospective adoptive parent, traveling abroad to locate and/or
adopt an orphan. If the prospective adoptive parents reside in the
United States, and one or both members of the prospective adoptive
couple, or the unmarried prospective adoptive parent, travel abroad to
locate and/or adopt an orphan, the petition may be filed with the
stateside Service office having jurisdiction over the place of residence
of the prospective adoptive parents in the United States or at the
overseas site. The petitioner may file the orphan petition at the
overseas site only while he or she is physically present within the
jurisdiction of the overseas site. If only one member of a married
couple, which includes an alien, travels abroad to file the petition, it
must be the United States citizen who travels abroad so that the
overseas site will have jurisdiction over the petition.
(iii) Prospective adoptive parents residing outside the United
States. Prospective adoptive parents residing outside of the United
States may file the petition with the overseas site, or with the
stateside Service office having jurisdiction over the proposed place of
residence of the prospective adoptive parents in the United States.
(3) Where to file an orphan petition when the advanced processing
application is pending. When the advanced processing application is
pending, the petition must be filed at the Service office at which the
application is pending.
(4) Where to file an orphan petition concurrently with the advanced
processing application. When the petition is filed concurrently with the
advanced processing application, it must be filed in accordance with the
instruction for filing an advanced processing application in paragraphs
(g)(1)(i) through (g)(1)(iii) of this section.
(h) Adjudication and decision--(1) ``Grandfather'' provision for
advanced processing application and/or orphan petition. All applications
and petitions filed under prior regulations which are filed before and
are still pending on September 30, 1994, shall be processed and
adjudicated under the prior regulations.
(2) Director's responsibility to make an independent decision in an
advanced processing application. No advanced processing application
shall be approved unless the director is satisfied that proper care will
be provided for the orphan. If the director has reason to believe that a
favorable home study, or update, or both are based on an inadequate or
erroneous evaluation of all the facts, he or she shall attempt to
resolve the issue with the home study preparer, the agency making the
recommendation pursuant to paragraph (e)(8) of this section, if any, and
the prospective adoptive parents. If such consultations are
unsatisfactory, the director may request a review and opinion from the
appropriate State Government authorities.
(3) Advanced processing application approved. If the advanced
processing application is approved, the prospective adoptive parents
shall be advised in writing. The application and supporting documents
shall be forwarded to the overseas site where the orphan resides.
Additionally, if the petitioner advises the director that he or she
intends to travel abroad to file the petition, telegraphic notification
shall be sent overseas as detailed in paragraph (j)(1) of this section.
The approved application shall be valid for eighteen months from its
approval date. During this time, the prospective adoptive parents may
file an orphan petition for one orphan without fee. If approved in the
home study for more than one orphan, the prospective adoptive parents
may file a petition for each of the additional children, to the maximum
number approved. If the orphans are siblings, no additional fee is
required. If the orphans are not siblings, an additional fee is required
for each orphan beyond the first orphan. Approval of an advanced
processing application does not guarantee that the orphan petition will
be approved.
(4) Advanced processing application denied for failure to disclose
history of abuse and/or violence, or for failure to disclose a criminal
history, or for failure to cooperate in checking child abuse registries.
Failure to disclose an arrest, conviction, or history of substance
abuse, sexual or child abuse, and/or domestic violence, or a criminal
history
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to the home study preparer and to the Service in accordance with
paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of this section may
result in the denial of the advanced processing application, or if
applicable, the application and orphan petition filed concurrently.
Failure by the prospective adoptive parents or an adult member of the
prospective adoptive parents' household to cooperate in having available
child abuse registries checked in accordance with paragraphs
(e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) through
(e)(2)(iii)(A)(1)(iii) of this section will result in the denial of the
advanced processing application or, if applicable, the application and
orphan petition filed concurrently. Any new application and/or petition
filed within a year of such denial will also be denied.
(5) Advanced processing denied for failure to submit home study. If
the home study is not submitted within one year of the filing date of
the advanced processing application, the application shall be denied.
This action shall be without prejudice to a new filing at any time with
fee.
(6) Advanced processing application otherwise denied. If the
director finds that the prospective adoptive parents have otherwise
failed to establish eligibility, the applicable provisions of 8 CFR part
103 regarding a letter of intent to deny, if appropriate, and denial and
notification of appeal rights shall govern.
(7) Advanced processing application deemed abandoned for failure to
file orphan petition within eighteen months of application's approval
date. If an orphan petition is not properly filed within eighteen months
of the approval date of the advanced processing application, the
application shall be deemed abandoned. Supporting documentation shall be
returned to the prospective adoptive parents, except for documentation
submitted by a third party which shall be returned to the third party,
and documentation relating to the fingerprint checks. The director shall
dispose of documentation relating to fingerprint checks in accordance
with current policy. Such abandonment shall be without prejudice to a
new filing at any time with fee.
(8) Orphan petition approved by a stateside Service office. If the
orphan petition is approved by a stateside Service office, the
prospective adoptive parents shall be advised in writing, telegraphic
notification shall be sent to the immigrant visa-issuing post pursuant
to paragraph (j)(3) of this section, and the petition and supporting
documents shall be forwarded to the Department of State.
(9) Orphan petition approved by an overseas Service office. If the
orphan petition is approved by an overseas Service office located in the
country of the orphan's residence, the prospective adoptive parents
shall be advised in writing, and the petition and supporting documents
shall be forwarded to the immigrant visa-issuing post having
jurisdiction for immigrant visa processing.
(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
[[Page 125]]
application, the petition shall be denied. This action shall be without
prejudice to a new filing at any time with fee.
(14) Revocation. The approval of an advanced processing application
or an orphan petition shall be automatically revoked in accordance with
Sec. 205.1 of this chapter, if an applicable reason exists. The approval
of an advanced processing application or an orphan petition shall be
revoked if the director becomes aware of information that would have
resulted in denial had it been known at the time of adjudication. Such a
revocation or any other revocation on notice shall be made in accordance
with Sec. 205.2 of this chapter.
(i) Child-buying as a ground for denial. An orphan petition must be
denied under this section if the prospective adoptive parents or
adoptive parent(s), or a person or entity working on their behalf, have
given or will given money or other consideration either directly or
indirectly to the child's parent(s), agent(s), other individual(s), or
entity as payment for the child or as an inducement to release the
child. Nothing in this paragraph shall be regarded as precluding
reasonable payment for necessary activities such as administrative,
court, legal, translation, and/or medical services related to the
adoption proceedings.
(j) Telegraphic notifications--(1) Telegraphic notification of
approval of advanced processing application. Unless conditions preclude
normal telegraphic transmissions, whenever an advanced processing
application is approved in the United States, the director shall send
telegraphic notification of the approval to the overseas site if a
prospective adoptive parent advises the director that the petitioner
intends to travel abroad and file the orphan petition abroad.
(2) Requesting a change in visa-issuing posts. If a prospective
adoptive parent is in the United States, he or she may request the
director to transfer notification of the approved advanced processing
application to another visa-issuing post. Such a request shall be made
on Form I-824 (Application for Action on an Approved Application or
Petition) with the appropriate fee. The director shall send a Visas 37
telegram to both the previously and the newly designated posts. The
following shall be inserted after the last numbered standard entry.
``To: [insert name of previously designated visa-issuing post or
overseas Service office]. Pursuant to the petitioner's request, the
Visas 37 cable previously sent to your post/office in this matter is
hereby invalidated. The approval is being transferred to the other post/
office addressed in this telegram. Please forward the approved advanced
processing application to that destination.'' Prior to sending such a
telegram, the director must ensure that the change in posts does not
alter any conditions of the approval.
(3) Telegraphic notification of approval of an orphan petition.
Unless conditions preclude normal telegraphic transmissions, whenever a
petition is approved by a stateside Service office, 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,
[[Page 126]]
supporting documentation, and petition shall be forwarded to the
appropriate Service office for action. Depending on the circumstances
surrounding the case, the I-604 investigation shall include, but shall
not necessarily be limited to, document checks, telephonic checks,
interview(s) with the natural parent(s), and/or a field investigation.
(2) Authority of consular officers. An American consular officer is
authorized to approve an orphan petition if the Service has made a
favorable determination on the related advanced processing application,
and the petitioner, who has traveled abroad to a country with no Service
office in order to locate or adopt an orphan, has properly filed the
petition, and the petition is approvable. A consular officer, however,
shall refer any petition which is ``not clearly approvable'' for a
decision by the Service office having jurisdiction pursuant to
Sec. 100.4(b) of this chapter. The consular officer's adjudication
includes all aspects of eligibility for classification as an orphan
under section 101(b)(1)(F) of the Act other than the issue of the
ability of the prospective adoptive parents to furnish proper care to
the orphan. However, if the consular officer has a well-founded and
substantive reason to believe that the advanced processing approval was
obtained on the basis of fraud or misrepresentation, or has knowledge of
a change in material fact subsequent to the approval of the advanced
processing application, he or she shall consult with the Service office
having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
(3) Child in the United States. A child who is in parole status and
who has not been adopted in the United States is eligible for the
benefits of an orphan petition when all the requirements of sections
101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in
the United States either illegally or as a nonimmigrant, however, is
ineligible for the benefits of an orphan petition.
(4) Liaison. Each director shall develop and maintain liaison with
State Government adoption authorities having jurisdiction within his or
her jurisdiction, including the administrator(s) of the Interstate
Compact on the Placement of Children, and with other parties with
interest in international adoptions. Such parties include, but are not
necessarily limited to, adoption agencies, organizations representing
adoption agencies, organizations representing adoptive parents, and
adoption attorneys.
[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994]
Sec. 204.4 Amerasian child of a United States citizen.
(a) Eligibility. An alien is eligible for benefits under Public Law
97-359 as the Amerasian child or son or daughter of a United States
citizen if there is reason to believe that the alien was born in Korea,
Vietnam, Laos, Kampuchea, or Thailand after December 31, 1950, and
before October 22, 1982, and was fathered by a United States citizen.
Such an alien is eligible for classification under sections 201(b),
203(a)(1), or 203(a)(3) of the Act as the Amerasian child or son or
daughter of a United States citizen, pursuant to section 204(f) of the
Act.
(b) Filing petition. Any alien claiming to be eligible for benefits
as an Amerasian under Public Law 97-359, or any person on the alien's
behalf, may file a petition, Form I-360, Petition for Amerasian, Widow,
or Special Immigrant. Any person filing the petition must either be
eighteen years of age or older or be an emancipated minor. In addition,
a corporation incorporated in the United States may file the petition on
the alien's behalf.
(c) Jurisdiction. The petition must be filed with the Service office
having jurisdiction over the place of the alien's intended residence in
the United States or with the overseas Service office having
jurisdiction over the alien's residence abroad.
(d) Two-stage processing--(1) Preliminary processing. Upon initial
submission of a petition with the documentary evidence required in
paragraph (f)(1) of this section, the director shall adjudicate the
petition to determine whether there is reason to believe the beneficiary
was fathered by a United States citizen. If the preliminary processing
is completed in a satisfactory manner, the director shall advise the
petitioner to submit the documentary
[[Page 127]]
evidence required in paragraph (f)(1) of this section and the
fingerprints of the sponsor on Form FD-258, if not previously submitted.
The petitioner must submit all required documents within one year of the
date of the request or the petition will be considered to have been
abandoned. To reactivate an abandoned petition, the petitioner must
submit a new petition, Form I-360, without the previously submitted
documentation, to the Service office having jurisdiction over the prior
petition.
(2) Final processing. Upon submission of the documentary evidence
required in paragraph (f)(1) of this section, the director shall
complete the adjudication of the petition.
(e) One-stage processing. If all documentary evidence required in
paragraph (f)(1) of this section is available when the petition is
initially filed, the petitioner may submit it at that time. In that
case, the director shall consider all evidence without using the two-
stage processing procedure set out in paragraph (d) of this section.
(f) Evidence to support a petition for an Amerasian child of a
United States citizen--(1) Two-stage processing of petition--(i)
Preliminary processing. (A) A petition filed by or on behalf of an
Amerasian under this section must be accompanied by evidence that the
beneficiary was born in Korea, Vietnam, Laos, Kampuchea, or Thailand
after December 31, 1950, and before October 22, 1982. If the beneficiary
was born in Vietnam, the beneficiary's ID card must be submitted, if
available. If it is not available, the petitioner must submit an
affidavit explaining why the beneficiary's ID card is not available.
Evidence that the beneficiary was fathered by a United States citizen
must also be presented. The putative father must have been a United
States citizen at the time of the beneficiary's birth or at the time of
the father's death, if his death occurred prior to the beneficiary's
birth. It is not required that the name of the father be given. Such
evidence may include, but need not be limited to:
(1) The beneficiary's birth and baptismal certificates or other
religious documents;
(2) Local civil records;
(3) Affidavits from knowledgeable witnesses;
(4) Letters or evidence of financial support from the beneficiary's
putative father;
(5) Photographs of the beneficiary's putative father, especially
with the beneficiary; and
(6) Evidence of the putative father's United States citizenship.
(B) The beneficiary's photograph must be submitted.
(C) The beneficiary's marriage certificate, if married, and evidence
of the termination of any previous marriages, if applicable, is
required.
(D) If the beneficiary is under eighteen years of age, a written
irrevocable release for emigration must be received from the
beneficiary's mother or legal guardian. The mother or legal guardian
must authorize the placing agency or agencies to make decisions
necessary for the child's immediate care until the sponsor receives
custody. Interim costs are the responsibility of the sponsor. The mother
or legal guardian must show an understanding of the effects of the
release and state before signing the release whether any money was paid
or any coercion was used. The signature of the mother or legal guardian
must be authenticated by the local registrar, the court of minors, or a
United States immigration or consular officer. The release must include
the mother's or legal guardian's full name, date and place of birth, and
current or permanent address.
(ii) Final processing. (A) If the director notifies the petitioner
that all preliminary processing has been completed in a satisfactory
manner, the petitioner must then submit Form I-361, Affidavit of
Financial Support and Intent to Petition for Legal Custody for Public
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with
the documentary evidence of the sponsor's financial ability required by
that form. If the beneficiary is under eighteen years of age, the
sponsor must agree to petition the court having jurisdiction, within
thirty days of the beneficiary's arrival in the United States, for legal
custody under the laws of the state where the beneficiary will reside
until the beneficiary is eighteen years of age. The term ``legal
[[Page 128]]
custody'' as used in this section means the assumption of responsibility
for a minor by an adult under the laws of the state in a court of law.
The sponsor must be a United States citizen or lawful permanent resident
who is twenty-one years of age or older and who is of good moral
character.
(B) Other documents necessary to support the petition are:
(1) Evidence of the age of the beneficiary's sponsor;
(2) Evidence of United States citizenship or lawful permanent
residence of the sponsor as provided in Sec. 204.1(f); and
(C) If the beneficiary is under eighteen years of age, evidence that
a public, private, or state agency licensed in the United States to
place children and actively involved, with recent experience, in the
intercountry placement of children has arranged the beneficiary's
placement in the United States. Evidence must also be provided that the
sponsor with whom the beneficiary is being placed is able to accept the
beneficiary for care in the sponsor's home under the laws of the state
of the beneficiary's intended residence. The evidence must demonstrate
the agency's capability, including financial capability, to arrange the
placement as described in paragraph (f)(1) of this section, either
directly or through cooperative agreement with other suitable
provider(s) of service.
(iii) Arrangements for placement of beneficiary under eighteen years
of age. (A) If the beneficiary is under eighteen years of age, the
petitioner must submit evidence of the placement arrangement required
under paragraph (f)(1) of this section. A favorable home study of the
sponsor is necessary and must be conducted by an agency in the United
States legally authorized to conduct that study. If the sponsor resides
outside the United States, a home study of the sponsor must be conducted
by an agency legally authorized to conduct home studies in the state of
the sponsor's and beneficiary's intended residence in the United States
and must be submitted with a favorable recommendation by the agency.
(B) A plan from the agency to provide follow-up services, including
mediation and counselling, is required to ensure that the sponsor and
the beneficiary have satisfactorily adjusted to the placement and to
determine whether the terms of the sponsorship are being observed. A
report from the agency concerning the placement, including information
regarding any family separation or dislocation abroad that results from
the placement, must also be submitted. In addition, the agency must
submit to the Director, Outreach Program, Immigration and Naturalization
Service, Washington, DC, within 90 days of each occurrence, reports of
any breakdowns in sponsorship that occur, and reports of the steps taken
to remedy these breakdowns. The petitioner must also submit a statement
from the agency:
(1) Indicating that, before signing the sponsorship agreement, the
sponsor has been provided a report covering pre-placement screening and
evaluation, including a health evaluation, of the beneficiary;
(2) Describing the agency's orientation of both the sponsor and the
beneficiary on the legal and cultural aspects of the placement;
(3) Describing the initial facilitation of the placement through
introduction, translation, and similar services; and
(4) Describing the contingency plans to place the beneficiary in
another suitable home if the initial placement fails. The new sponsor
must execute and submit a Form I-361 to the Service office having
jurisdiction over the beneficiary's residence in the United States. The
original sponsor nonetheless retains financial responsibility for the
beneficiary under the terms of the guarantee of financial support and
intent to petition for legal custody which that sponsor executed, unless
that responsibility is assumed by a new sponsor. In the event that the
new sponsor does not comply with the terms of the new guarantee of
financial support and intent to petition for legal custody and if, for
any reason, that guarantee is not enforced, the original sponsor again
becomes financially responsible for the beneficiary.
(iv) Fingerprints of sponsor. The petitioner must submit the
fingerprints of the sponsor on Form FD-258. The petitioner may submit
Form FD-258 at any time during the processing of the petition. The Form
FD-258 must reflect the
[[Page 129]]
originating agency (ORI) number or special office code relating to the
Service office where the petition is filed, if that office has Forms FD-
258 with the relating ORI number.
(2) One-stage processing of petition. If the petitioner chooses to
have the petition processed under the one-stage processing procedure
described in paragraph (e) of this section, the petitioner must submit
all evidence required by paragraph (f)(1) of this section.
(g) Decision--(1) General. The director shall notify the petitioner
of the decision and, if the petition is denied, of the reasons for the
denial. If the petition is denied, the petitioner may appeal the
decision under part 103 of this chapter.
(2) Denial upon completion of preliminary processing. The director
may deny the petition upon completion of the preliminary processing
under paragraph (d) of this section for:
(i) Failure to establish that there is reason to believe the alien
was fathered by a United States citizen; or
(ii) Failure to meet the sponsorship requirements if the
fingerprints of the sponsor, required in paragraph (f)(1) of this
section, were submitted during the preliminary processing and the
completed background check of the sponsor discloses adverse information
resulting in a finding that the sponsor is not of good moral character.
(3) Denial upon completion of final processing. The director may
deny the petition upon completion of final processing if it is
determined that the sponsorship requirements, or one or more of the
other applicable requirements, have not been met.
(4) Denial upon completion of one-stage processing. The director may
deny the petition upon completion of all processing if any of the
applicable requirements in a case being processed under the one-stage
processing described in paragraph (e) of this section are not met.
(h) Classification of Public Law 97-359 Amerasian. If the petition
is approved the beneficiary is classified as follows:
(1) An unmarried beneficiary under the age of twenty-one is
classified as the child of a United States citizen under section 201(b)
of the Act;
(2) An unmarried beneficiary twenty-one years of age or older is
classified as the unmarried son or daughter of a United States citizen
under section 203(a)(1) of the Act; and
(3) A married beneficiary is classified as the married son or
daughter of a United States citizen under section 203(a)(3) of the Act.
(i) Enforcement of affidavit of financial support and intent to
petition for legal custody. A guarantee of financial support and intent
to petition for legal custody on Form I-361 may be enforced against the
alien's sponsor in a civil suit brought by the Attorney General in the
United States District Court for the district in which the sponsor
resides, except that the sponsor's estate is not liable under the
guarantee if the sponsor dies or is adjudicated as bankrupt under title
11, United States Code. After admission to the United States, if the
beneficiary of a petition requires enforcement of the guarantee of
financial support and intent to petition for legal custody executed by
the beneficiary's sponsor, the beneficiary may file Form I-363 with the
Service office having jurisdiction over the beneficiary's residence in
the United States. If the beneficiary is under eighteen years of age,
any agency or individual (other than the sponsor) having legal custody
of the beneficiary, or a legal guardian acting on the alien's behalf,
may file Form I-363.
[57 FR 41066, Sept. 9, 1992]
Sec. 204.5 Petitions for employment-based immigrants.
(a) General. A petition to classify an alien under section
203(b)(1), 203(b)(2), or 203(b)(3) of the Act must be filed on Form I-
140, Petition for Immigrant Worker. A petition to classify an alien
under section 203(b)(4) (as it relates to special immigrants under
section 101(a)(27)(C)) must be filed on kForm I-360, Petition for
Amerasian, Widow, or Special Immigrant. A separate Form I-140 or I-360
must be filed for each beneficiary, accompanied by the applicable fee. A
petition is considered properly filed if it is:
(1) Accepted for processing under the provisions of part 103;
[[Page 130]]
(2) Accompanied by any required individual labor certification,
application for Schedule A designation, or evidence that the alien's
occupation qualifies as a shortage occupation within the Department of
Labor's Labor Market Information Pilot Program; and
(3) Accompanied by any other required supporting documentation.
(b) Jurisdiction. Form I-140 or I-360 must be filed with the Service
Center having jurisdiction over the intended place of employment, unless
specifically designated for local filing by the Associate Commissioner
for Examinations.
(c) Filing petition. Any United States employer desiring and
intending to employ an alien may file a petition for classification of
the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or
203(b)(3) of the Act. An alien, or any person in the alien's behalf, may
file a petition for classification under section 203(b)(1)(A) or
203(b)(4) of the Act (as it relates to special immigrants under section
101(a)(27)(C) of the Act).
(d) Priority date. The priority date of any petition filed for
classification under section 203(b) of the Act which is accompanied by
an individual labor certification from the Department of Labor shall be
the date the request for certification was accepted for processing by
any office within the employment service system of the Department of
Labor. The priority date of any petition filed for classification under
section 203(b) of the Act which is accompanied by an application for
Schedule A designation or with evidence that the alien's occupation is a
shortage occupation within the Department of Labor's Labor Market
Information Pilot Program shall be the date the completed, signed
petition (including all initial evidence and the correct fee) is
properly filed with the Service. The priority date of a petition filed
for classification as a special immigrant under section 203(b)(4) of the
Act shall be the date the completed, signed petition (including all
initial evidence and the correct fee) is properly filed with the
Service. The priority date of an alien who filed for classification as a
special immigrant prior to October 1, 1991, and who is the beneficiary
of an approved I-360 petition after October 1, 1991, shall be the date
the alien applied for an immigrant visa or adjustment of status. In the
case of a special immigrant alien who applied for adjustment before
October 1, 1991, Form I-360 may be accepted and adjudicated at a Service
District Office or sub-office.
(e) Retention of section 203(b) (1), (2), or (3) priority date. A
petition approved on behalf of an alien under sections 203(b) (1), (2),
or (3) of the Act accords the alien the priority date of the approved
petition for any subsequently filed petition for any classification
under sections 203(b) (1), (2), or (3) of the Act for which the alien
may qualify. In the event that the alien is the beneficiary of multiple
petitions under sections 203(b) (1), (2), or (3) of the Act, the alien
shall be entitled to the earliest priority date. A petition revoked
under sections 204(e) or 205 of the Act will not confer a priority date,
nor will any priority date be established as a result of a denied
petition. A priority date is not transferable to another alien.
(f) Maintaining the priority date of a third or sixth preference
petition filed prior to October 1, 1991. Any petition filed before
October 1, 1991, and approved on any date, to accord status under
section 203(a)(3) or 203(a)(6) of the Act, as in effect before October
1, 1991, shall be deemed a petition approved to accord status under
section 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
[[Page 131]]
or training shall be in the form of letter(s) from current or former
employer(s) or trainer(s) and shall include the name, address, and title
of the writer, and a specific description of the duties performed by the
alien or of the training received. If such evidence is unavailable,
other documentation relating to the alien's experience or training will
be considered.
(2) Ability of prospective employer to pay wage. Any petition filed
by or for an employment-based immigrant which requires an offer of
employment must be accompanied by evidence that the prospective United
States employer has the ability to pay the proffered wage. The
petitioner must demonstrate this ability at the time the priority date
is established and continuing until the beneficiary obtains lawful
permanent residence. Evidence of this ability shall be either in the
form of copies of annual reports, federal tax returns, or audited
financial statements. In a case where the prospective United States
employer employs 100 or more workers, the director may accept a
statement from a financial officer of the organization which establishes
the prospective employer's ability to pay the proffered wage. In
appropriate cases, additional evidence, such as profit/loss statements,
bank account records, or personnel records, may be submitted by the
petitioner or requested by the Service.
(h) Aliens with extraordinary ability. (1) An alien, or any person
on behalf of the alien, may file an I-140 visa petition for
classification under section 203(b)(1)(A) of the Act as an alien of
extraordinary ability in the sciences, arts, education, business, or
athletics.
(2) Definition. As used in this section:
Extraordinary ability means a level of expertise indicating that the
individual is one of that small percentage who have risen to the very
top of the field of endeavor.
(3) Initial evidence. A petition for an alien of extraordinary
ability must be accompanied by evidence that the alien has sustained
national or international acclaim and that his or her achievements have
been recognized in the field of expertise. Such evidence shall include
evidence of a one-time achievement (that is, a major, international
recognized award), or at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;
(ii) Documentation of the alien's membership in associations in the
field for which classification is sought, which require outstanding
achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major
trade publications or other major media, relating to the alien's work in
the field for which classification is sought. Such evidence shall
include the title, date, and author of the material, and any necessary
translation;
(iv) Evidence of the alien's participation, either individually or
on a panel, as a judge of the work of others in the same or an allied
field of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly,
artistic, athletic, or business-related contributions of major
significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the
field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at
artistic exhibitions or showcases;
(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
[[Page 132]]
by clear evidence that the alien is coming to the United States to
continue work in the area of expertise. Such evidence may include
letter(s) from prospective employer(s), evidence of prearranged
commitments such as contracts, or a statement from the beneficiary
detailing plans on how he or she intends to continue his or her work in
the United States.
(i) Outstanding professors and researchers. (1) Any United States
employer desiring and intending to employ a professor or researcher who
is outstanding in an academic field under section 203(b)(1)(B) of the
Act may file an I-140 visa petition for such classification.
(2) Definitions. As used in this section:
Academic field means a body of specialized knowledge offered for
study at an accredited United States university or institution of higher
education.
Permanent, in reference to a research position, means either
tenured, tenure-track, or for a term of indefinite or unlimited
duration, and in which the employee will ordinarily have an expectation
of continued employment unless there is good cause for termination.
(3) Initial evidence. A petition for an outstanding professor or
researcher must be accompanied by:
(i) Evidence that the professor or researcher is recognized
internationally as outstanding in the academic field specified in the
petition. Such evidence shall consist of at least two of the following:
(A) Documentation of the alien's receipt of major prizes or awards
for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the
academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by
others about the alien's work in the academic field. Such material shall
include the title, date, and author of the material, and any necessary
translation;
(D) Evidence of the alien's participation, either individually or on
a panel, as the judge of the work of others in the same or an allied
academic field;
(E) Evidence of the alien's original scientific or scholarly
research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or
articles (in scholarly journals with international circulation) in the
academic field;
(ii) Evidence that the alien has at least three years of experience
in teaching and/or research in the academic field. Experience in
teaching or research while working on an advanced degree will only be
acceptable if the alien has acquired the degree, and if the teaching
duties were such that he or she had full responsibility for the class
taught or if the research conducted toward the degree has been
recognized within the academic field as outstanding. Evidence of
teaching and/or research experience shall be in the form of letter(s)
from current or former employer(s) and shall include the name, address,
and title of the writer, and a specific description of the duties
performed by the alien; and
(iii) An offer of employment from a prospective United States
employer. A labor certification is not required for this classification.
The offer of employment shall be in the form of a letter from:
(A) A United States university or institution of higher learning
offering the alien a tenured or tenure-track teaching position in the
alien's academic field;
(B) A United States university or institution of higher learning
offering 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:
[[Page 133]]
(A) One of two subsidiaries both of which are owned and controlled
by the same parent or individual;
(B) One of two legal entities owned and controlled by the same group
of individuals, each individual owning and controlling approximately the
same share or proportion of each entity; or
(C) In the case of a partnership that is organized in the United
States to provide accounting services, along with managerial and/or
consulting services, and markets its accounting services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting' services
shall be considered to be an affiliate of the United States partnership
if it markets its accounting services under the same internationally
recognized name under the agreement with the worldwide coordinating
organization of which the United States partnership is also a member.
Doing business means the regular, systematic, and continuous
provision of goods and/or services by a firm, corporation, or other
entity and does not include the mere presence of an agent or office.
Executive capacity means an assignment within an organization in
which the employee primarily:
(A) Directs the management of the organization or a major component
or function of the organization;
(B) Establishes the goals and policies of the organization,
component, or function;
(C) Exercises wide latitude in discretionary decisionmaking; and
(D) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
Managerial capacity means an assignment within an organization in
which the employee primarily:
(A) Manages the organization, or a department, subdivision,
function, or component of the organization;
(B) Supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an essential function
within the organization, or a department or subdivision of the
organization;
(C) If another employee or other employees are directly supervised,
has the authority to hire and fire or recommend those as well as other
personnel actions (such as promotion and leave authorization), or, if no
other employee is directly supervised, functions at a senior level
within the organizational hierarchy or with respect to the function
managed; and
(D) Exercises direction over the day-to-day operations of the
activity or function for which the employee has authority.
Multinational means that the qualifying entity, or its affiliate, or
subsidiary, conducts business in two or more countries, one of which is
the United States.
Subsidiary means a firm, corporation, or other legal entity of which
a parent owns, directly or indirectly, more than half of the entity and
controls the entity; or owns, directly or indirectly, half of the entity
and controls the entity; or owns, directly or indirectly, 50 percent of
a 50-50 joint venture and has equal control and veto power over the
entity; or owns, directly or indirectly, less than half of the entity,
but in fact controls the entity.
(3) Initial evidence--(i) Required evidence. A petition for a
multinational 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
[[Page 134]]
least one year in a managerial or executive capacity;
(C) The prospective employer in the United States is the same
employer or a subsidiary or affiliate of the firm or corporation or
other legal entity by which the alien was employed overseas; and
(D) The prospective United States employer has been doing business
for at least one year.
(ii) Appropriate additional evidence. In appropriate cases, the
director may request additional evidence.
(4) Determining managerial or exectuve capacities--(i) Supervisors
as managers. A first-line supervisor is not considered to be acting in a
managerial capacity merely by virtue of his or her supervisory duties
unless the employees supervised are professional.
(ii) Staffing levels. If staffing levels are used as a factor in
determining whether an individual is acting in a managerial or executive
capacity, the reasonable needs of the organization, component, or
function, in light of the overall purpose and stage of development of
the organization, component, or function, shall be taken into account.
An individual shall not be considered to be acting in a managerial or
executive capacity merely on the basis of the number of employees that
the individual supervises or has supervised or directs or has directed.
(5) Offer of employment. No labor certification is required for this
classification; however, the prospective employer in the United States
must furnish a job offer in the form of a statement which indicates that
the alien is to be employed in the United States in a managerial or
executive capacity. Such letter must clearly describe the duties to be
performed by the alien.
(k) Aliens who are members of the professions holding advanced
degrees or aliens of exceptional ability. (1) Any United States employer
may file a petition on Form I-140 for classification of an alien under
section 203(b)(2) of the Act as an alien who is a member of the
professions holding an advanced degree or an alien of exceptional
ability in the sciences, arts, or business. If an alien is claiming
exceptional ability in the sciences, arts, or business and is seeking an
exemption from the requirement of a job offer in the United States
pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone
in the alien's behalf, may be the petitioner.
(2) Definitions. As used in this section: Advanced degree means any
United States academic or professional degree or a foreign equivalent
degree above that of baccalaureate. A United States baccalaureate degree
or a foreign equivalent degree followed by at least five years of
progressive experience in the specialty shall be considered the
equivalent of a master's degree. If a doctoral degree is customarily
required by the specialty, the alien must have a United States doctorate
or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a
degree of expertise significantly above that ordinarily encountered in
the sciences, arts, or business.
Profession means one of the occupations listed in section 101(a)(32)
of the Act, as well as any occupation for which a United States
baccalaureate degree or its foreign equivalent is the minimum
requirement for entry into the occupation.
(3) Initial evidence. The petition must be accompanied by
documentation showing that the alien is a professional holding an
advanced degree or an alien of exceptional ability in the sciences, the
arts, or business.
(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:
[[Page 135]]
(A) An official academic record showing that the alien has a degree,
diploma, certificate, or similar award from a college, university,
school, or other institution of learning relating to the area of
exceptional ability;
(B) Evidence in the form of letter(s) from current or former
employer(s) showing that the alien has at least ten years of full-time
experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a
particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other
renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant
contributions to the industry or field by peers, governmental entities,
or professional or business organizations.
(iii) If the above standards do not readily apply to the
beneficiary's occupation, the petitioner may submit comparable evidence
to establish the beneficiary's eligibility.
(4) Labor certification or evidence that alien qualifies for Labor
Market Information Pilot Program--(i) General. Every petition under this
classification must be accompanied by an individual labor certification
from the Department of Labor, by an application for Schedule A
designation (if applicable), or by documentation to establish that the
alien qualifies for one of the shortage occupations in the Department of
Labor's Labor Market Information Pilot Program. To apply for Schedule A
designation or to establish that the alien's occupation is within the
Labor Market Information Program, a fully executed uncertified Form ETA-
750 in duplicate must accompany the petition. The job offer portion of
the individual labor certification, Schedule A application, or Pilot
Program application must demonstrate that the job requires a
professional holding an advanced degree or the equivalent or an alien of
exceptional ability.
(ii) Exemption from job offer. The director may exempt the
requirement of a job offer, and thus of a labor certification, for
aliens of exceptional ability in the sciences, arts, or business if
exemption would be in the national interest. To apply for the exemption,
the petitioner must submit Form ETA-750B, Statement of Qualifications of
Alien, in duplicate, as well as evidence to support the claim that such
exemption would be in the national interest.
(1) 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
[[Page 136]]
petition. The job offer portion of an individual labor certification,
Schedule A application, or Pilot Program application for a professional
must demonstrate that the job requires the minimum of a baccalaureate
degree.
(ii) Other documentation--(A) General. Any requirements of training
or experience for skilled workers, professionals, or other workers must
be supported by letters from trainers or employers giving the name,
address, and title of the trainer or employer, and a description of the
training received or the experience of the alien.
(B) Skilled workers. If the petition is for a skilled worker, the
petition must be accompanied by evidence that the alien meets the
educational, training or experience, and any other requirements of the
individual labor certification, meets the requirements for Schedule A
designation, or meets the requirements for the Labor Market Information
Pilot Program occupation designation. The minimum requirements for this
classification are at least two years of training or experience.
(C) Professionals. If the petition is for a professional, the
petition must be accompanied by evidence that the alien holds a United
States baccalaureate degree or a foreign equivalent degree and by
evidence that the alien is a member of the professions. Evidence of a
baccalaureate degree shall be in the form of an official college or
university record showing the date the baccalaureate degree was awarded
and the area of concentration of study. To show that the alien is a
member of the professions, the petitioner must submit evidence showing
that the minimum of a baccalaureate degree is required for entry into
the occupation.
(D) Other workers. If the petition is for an unskilled (other)
worker, it must be accompanied by evidence that the alien meets any
educational, training and experience, and other requirements of the
labor certification.
(4) Differentiating between skilled and other workers. The
determination of whether a worker is a skilled or other worker will be
based on the requirements of training and/or experience placed on the
job by the prospective employer, as certified by the Department of
Labor. In the case of a Schedule A occupation or a shortage occupation
within the Labor Market Pilot Program, the petitioner will be required
to establish to the director that the job is a skilled job, i.e., one
which requires at least two years of training and/or experience.
(m) Religious workers--(1) An alien, or any person in behalf of the
alien, may file an I-360 visa petition for classification under section
203(b)(4) of the Act as a section 101(a)(27)(C) special immigrant
religious worker. Such a petition may be filed by or for an alien, who
(either abroad or in the United States) for at least the two years
immediately preceding the filing of the petition has been a member of a
religious denomination which has a bona fide nonprofit religious
organization in the United States. The alien must be coming to the
United States solely for the purpose of carrying on the vocation of a
minister of that religious denomination, working for the organization at
the organization's request in a professional capacity in a religious
vocation or occupation for the organization or a bona fide organization
which is affiliated with the religious denomination and is exempt from
taxation as an organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 at the request of the organization. All
three types of religious workers must have been performing the vocation,
professional work, or other work continuously (either abroad or in the
United States) for at least the two-year period immediately preceding
the filing of the petition. Professional workers and other workers must
obtain permanent resident status through immigration or adjustment of
status on or before September 30, 1997, in order to immigrate under
section 203(b)(4) of the Act as section 101(a)(27)(C) special immigrant
religious workers.
(2) Definitions. As used in this section:
Bona fide nonprofit religious organization in the United States
means an organization exempt from taxation as described in section
501(c)(3) of the Internal Revenue Code of 1986 as it relates to
religious organizations, or one that has never sought such exemption but
establishes to the satisfaction of the
[[Page 137]]
Service that it would be eligible therefor if it had applied for tax
exempt status.
Bona fide organization which is affiliated with the religious
denomination means an organization which is closely associated with the
religious denomination and which is exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to
religious organizations.
Minister means an individual duly authorized by a recognized
religious denomination to conduct religious worship and to perform other
duties usually performed by authorized members of the clergy of that
religion. In all cases, there must be a reasonable connection between
the activities performed and the religious calling of the minister. The
term does not include a lay preacher not authorized to perform such
duties.
Professional capacity means an activity in a religious vocation or
occupation for which the minimum of a United States baccalaureate degree
or a foreign equivalent degree is required.
Religious denomination means a religious group or community of
believers having some form of ecclesiastical government, a creed or
statement of faith, some form of worship, a formal or informal code of
doctrine and discipline, religious services and ceremonies, established
places of religious worship, religious congregations, or comparable
indicia of a bona fide religious denomination. For the purposes of this
definition, an inter-denominational religious organization which is
exempt from taxation pursuant to section 501(c)(3) of the Internal
Revenue Code of 1986 will be treated as a religious denomination.
Religious occupation means an activity which relates to a
traditional religious function. Examples of individuals in religious
occupations include, but are not limited to, liturgical workers,
religious instructors, religious counselors, cantors, catechists,
workers in religious hospitals or religious health care facilities,
missionaries, religious translators, or religious broadcasters. This
group does not include janitors, maintenance workers, clerks, fund
raisers, or persons solely involved in the solicitation of donations.
Religious vocation means a calling to religious life evidenced by
the demonstration of commitment practiced in the religious denomination,
such as the taking of vows. Examples of individuals with a religious
vocation include, but are not limited to, nuns, monks, and religious
brothers and sisters.
(3) Initial evidence. Unless otherwise specified, each petition for
a religious worker must be accompanied by:
(i) Evidence that the organization qualifies as a nonprofit
organization in the form of either:
(A) Documentation showing that it is exempt from taxation in
accordance with section 501(c)(3) of the Internal Revenue Code of 1986
as it relates to religious organizations (in appropriate cases, evidence
of the organization's assets and methods of operation and the
organization's papers of incorporation under applicable state law may be
requested); or
(B) Such documentation as is required by the Internal Revenue
Service to establish eligibility for exemption under section 501(c)(3)
of the Internal Revenue Code of 1986 as it relates to religious
organizations; and
(ii) A letter from an authorized official of the religious
organization in the United States which (as applicable to the particular
alien) establishes:
(A) That, immediately prior to the filing of the petition, the alien
has the required two years of membership in the denomination and the
required two years of experience in the religious vocation, professional
religious work, or other religious work; and
(B) That, if the alien is a minister, he or she has authorization to
conduct religious worship and to perform other duties usually performed
by authorized members of the clergy, including a detailed description of
such authorized duties. In appropriate cases, the certificate of
ordination or authorization may be requested; or
(C) That, if the alien is a religious professional, he or she has at
least a United States baccalaureate or its foreign equivalent required
for entry into the religious profession. In all professional cases, an
official academic record showing that the alien has the required degree
must be submitted; or
[[Page 138]]
(D) That, if the alien is to work in another religious vocation or
occupation, he or she is qualified in the religious vocation or
occupation. Evidence of such qualifications may include, but need not be
limited to, evidence establishing that the alien is a nun, monk, or
religious brother, or that the type of work to be done relates to a
traditional religious function.
(iii) If the alien is to work in a non-ministerial and non-
professional capacity for a bona fide religious organization which is
affiliated with the religious denomination, the letter from the
authorized official must explain how the affiliation exists. A tax-
exempt certificate indicating that the affiliated organization is exempt
from taxation in accordance with section 501(c)(3) of the Internal
Revenue Code of 1986 as it relates to religious organizations is
required in this instance.
(iv) In appropriate cases, the director may request appropriate
additional evidence relating to the eligibility under section 203(b)(4)
of the Act of the religious organization, the alien, or the affiliated
organization.
(4) Job offer. The letter from the authorized official of the
religious organization in the United States must also state how the
alien will be solely carrying on the vocation of a minister (including
any terms of payment for services or other remuneration), or how the
alien will be paid or remunerated if the alien will work in a
professional religious capacity or in other religious work. The
documentation should clearly indicate that the alien will not be solely
dependent on supplemental employment or solicitation of funds for
support. In doubtful cases, additional evidence such as bank letters,
recent audits, church membership figures, and/or the number of
individuals currently receiving compensation may be requested.
(n) Closing action--(1) Approval. An approved employment-based
petition will be forwarded to the United States Consulate selected by
the petitioner and indicated on the petition. If a United States
Consulate is not designated, the petition will be forwarded to the
consulate having jurisdiction over the place of the alien's last
residence abroad. If the petition indicates that the alien will apply
for adjustment to permanent residence in the United States, the approved
petition will be retained by the Service for consideration with the
application for permanent resident (Form I-485).
(2) Denial. The denial of a petition for classification under
section 203(b)(1), 203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it
relates to special immigrants under section 101(a)(27)(C) of the Act)
shall be appealable to the Associate Commissioner for Examinations. The
petitioner shall be informed in plain language of the reasons for denial
and of his or her right to appeal.
(3) Validity of approved petitions. Unless revoked under section
203(e) or 205 of the Act, an employment-based petition is valid
indefinitely.
[56 FR 60905, Nov. 29, 1991, as amended at 59 FR 502, Jan. 5, 1994; 59
FR 27229, May 26, 1994; 60 FR 29753, June 6, 1995; 61 FR 33305, June 27,
1996]
Sec. 204.6 Petitions for employment creation aliens.
(a) General. A petition to classify an alien under section 203(b)(5)
of the Act must be filed on Form I-526, Immigrant Petition by Alien
Entrepreneur. The petition must be accompanied by the appropriate fee.
Before a petition is considered properly filed, the petition must be
signed by the petitioner, and the initial supporting documentation
required by this section must be attached. Legible photocopies of
supporting documents will ordinarily be acceptable for initial filing
and approval. However, at the discretion of the director, original
documents may be required.
(b) Jurisdiction. The petition must be filed with the Service Center
having jurisdiction over the area in which the new commercial enterprise
is or will be principally doing business.
(c) Eligibility to file. A petition for classification as an alien
entrepreneur may only be filed by any alien on his or her own behalf.
(d) Priority date. The priority date of a petition for
classification as an alien entrepreneur is the date the petition is
properly filed with the Service or, if filed prior to the effective date
of these regulations, the date the Form I-526
[[Page 139]]
was received at the appropriate Service Center.
(e) Definitions. As used in this section:
Capital means cash, equipment, inventory, other tangible property,
cash equivalents, and indebtedness secured by assets owned by the alien
entrepreneur, provided that the alien entrepreneur is personally and
primarily liable and that the assets of the new commercial enterprise
upon which the petition is based are not used to secure any of the
indebtedness. All capital shall be valued at fair market value in United
States dollars. Assets acquired, directly or indirectly, by unlawful
means (such as criminal activities) shall not be considered capital for
the purposes of section 203(b)(5) of the Act.
Commercial enterprise means any for-profit activity formed for the
ongoing conduct of lawful business including, but not limited to, a sole
proprietorship, partnership (whether limited or general), holding
company, joint venture, corporation, business trust, or other entity
which may be publicly or privately owned. This definition includes a
commercial enterprise consisting of a holding company and its wholly-
owned subsidiaries, provided that each such subsidiary is engaged in a
for-profit activity formed for the ongoing conduct of a lawful business.
This definition shall not include a noncommercial activity such as
owning and operating a personal residence.
Employee means an individual who provides services or labor for the
new commercial enterprise and who receives wages or other remuneration
directly from the new commercial enterprise. In the case of the
Immigrant Investor Pilot Program, ``employee'' also means an individual
who provides services or labor in a job which has been created
indirectly through investment in the new commercial enterprise. This
definition shall not include independent contractors.
Full-time employment means employment of a qualifying employee by
the new commercial enterprise in a position that requires a minimum of
35 working hours per week. In the case of the Immigrant Investor Pilot
Program, ``full-time employment'' also means employment of a qualifying
employee in a position that has been created indirectly through revenues
generated from increased exports resulting from the Pilot Program that
requires a minimum of 35 working hours per week. A job-sharing
arrangement whereby two or more qualifying employees share a full-time
position shall count as full-time employment provided the hourly
requirement per week is met. This definition shall not include
combinations of part-time positions even if, when combined, such
positions meet the hourly requirement per week.
High employment area means a part of a metropolitan statistical area
that at the time of investment:
(i) Is not a targeted employment area; and
(ii) Is an area with an unemployment rate significantly below the
national average unemployment rates.
Invest means to contribute capital. A contribution of capital in
exchange for a note, bond, convertible debt, obligation, or any other
debt arrangement between the alien entrepreneur and the new commercial
enterprise does not constitute a contribution of capital for the
purposes of this part.
New means established after November 29, 1990.
Qualifying employee means a United States citizen, a lawfully
admitted permanent resident, or other immigrant lawfully authorized to
be employed in 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.
[[Page 140]]
Targeted employment area means an area which, at the time of
investment, is a rural area or an area which has experienced
unemployment of at least 150 percent of the national average rate.
Troubled business means a business that has been in existence for at
least two years, has incurred a net loss for accounting purposes
(determined on the basis of generally accepted accounting principles)
during the twelve- or twenty-four month period prior to the priority
date on the alien entrepreneur's Form I-526, and the loss for such
period is at least equal to twenty percent of the troubled business's
net worth prior to such loss. For purposes of determining whether or not
the troubled business has been in existence for two years, successors in
interest to the troubled business will be deemed to have been in
existence for the same period of time as the business they succeeded.
(f) Required amounts of capital. (1) General. Unless otherwise
specified, the amount of capital necessary to make a qualifying
investment in the United States is one million United States dollars
($1,000,000).
(2) Targeted employment area. The amount of capital necessary to
make a qualifying investment in a targeted employment area within the
United States is five hundred thousand United States dollars ($500,000).
(3) High employment area. The amount of capital necessary to make a
qualifying investment in a high employment area within the United
States, as defined in section 203(b)(5)(C)(iii) of the Act, is one
million United States dollars ($1,000,000).
(g) Multiple investors--(1) General. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur by more than one investor,
provided each petitioning investor has invested or is actively in the
process of investing the required amount for the area in which the new
commercial enterprise is principally doing business, and provided each
individual investment results in the creation of at least ten full-time
positions for qualifying employees. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur even though there are several
owners of the enterprise, including persons who are not seeking
classification under section 203(b)(5) of the Act and non-natural
persons, both foreign and domestic, provided that the source(s) of all
capital invested is identified and all invested capital has been derived
by lawful means.
(2) Employment creation allocation. The total number of full-time
positions created for qualifying employees shall be allocated solely to
those alien entrepreneurs who have used the establishment of the new
commercial enterprise as the basis of a petition on Form I-526. No
allocation need be made among persons not seeking classification under
section 203(b)(5) of the Act or among non-natural persons, either
foreign or domestic. The Service shall recognize any reasonable
agreement made among the alien entrepreneurs in regard to the
identification and allocation of such qualifying positions.
(h) Establishment of a new commercial enterprise. The establishment
of a new commercial enterprise may consist of:
(1) The creation of an original business;
(2) The purchase of an existing business and simultaneous or
subsequent restructuring or reorganization such that a new commercial
enterprise results; or
(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).
[[Page 141]]
(i) State designation of a high unemployment area. The state
government of any state of the United States may designate a particular
geographic or political subdivision located within a metropolitan
statistical area or within a city or town having a population of 20,000
or more within such state as an area of high unemployment (at least 150
percent of the national average rate). Evidence of such designation,
including a description of the boundaries of the geographic or political
subdivision and the method or methods by which the unemployment
statistics were obtained, may be provided to a prospective alien
entrepreneur for submission with Form I-526. Before any such designation
is made, an official of the state must notify the Associate Commissioner
for Examinations of the agency, board, or other appropriate governmental
body of the state which shall be delegated the authority to certify that
the geographic or political subdivision is a high unemployment area.
(j) Initial evidence to accompany petition. A petition submitted for
classification as an alien entrepreneur must be accompanied by evidence
that the alien has invested or is actively in the process of investing
lawfully obtained capital in a new commercial enterprise in the United
States which will create full-time positions for not fewer than 10
qualifying employees. In the case of petitions submitted under the
Immigrant Investor Pilot Program, a petition must be accompanied by
evidence that the alien has invested, or is actively in the process of
investing, capital obtained through lawful means within a regional
center designated by the Service in accordance with paragraph (m)(4) of
this section. The petitioner may be required to submit information or
documentation that the Service deems appropriate in addition to that
listed below.
(1) To show that a new commercial enterprise has been established by
the petitioner in the United States, the petition must be accompanied
by:
(i) As applicable, articles of incorporation, certificate of merger
or consolidation, partnership agreement, certificate of limited
partnership, joint venture agreement, business trust agreement, or other
similar organizational document for the new commercial enterprise;
(ii) A certificate evidencing authority to do business in a state or
municipality or, if the form of the business does not require any such
certificate or the State or municipality does not issue such a
certificate, a statement to that effect; or
(iii) Evidence that, as of a date certain after November 29, 1990,
the required amount of capital for the area in which an enterprise is
located has been transferred to an existing business, and that the
investment has resulted in a substantial increase in the net worth or
number of employees of the business to which the capital was
transferred. This evidence must be in the form of stock purchase
agreements, investment agreements, certified financial reports, payroll
records, or any similar instruments, agreements, or documents evidencing
the investment in the commercial enterprise and the resulting
substantial change in the net worth, number of employees.
(2) To show that the petitioner has invested or is actively in the
process of investing the required amount of capital, the petition must
be accompanied by evidence that the petitioner has placed the required
amount of capital at risk for the purpose of generating a return on the
capital placed at risk. 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
[[Page 142]]
States Customs Service commercial entry documents, bills of lading, and
transit insurance policies containing ownership information and
sufficient information to identify the property and to indicate the fair
market value of such property;
(iv) Evidence of monies transferred or committed to be transferred
to the new commercial enterprise in exchange for shares of stock (voting
or nonvoting, common or preferred). Such stock may not include terms
requiring the new commercial enterprise to redeem it at the holder's
request; or
(v) Evidence of any loan or mortgage agreement, promissory note,
security agreement, or other evidence of borrowing which is secured by
assets of the petitioner, other than those of the new commercial
enterprise, and for which the petitioner is personally and primarily
liable.
(3) To show that the petitioner has invested, or is actively in the
process of investing, capital obtained through lawful means, the
petition must be accompanied, as applicable, by:
(i) Foreign business registration records;
(ii) Corporate, partnership (or any other entity in any form which
has filed in any country or subdivision thereof any return described in
this subpart), and personal tax returns including income, franchise,
property (whether real, personal, or intangible), or any other tax
returns of any kind filed within five years, with any taxing
jurisdiction in or outside the United States by or on behalf of the
petitioner;
(iii) Evidence identifying any other source(s) of capital; or
(iv) Certified copies of any judgments or evidence of all pending
governmental civil or criminal actions, governmental administrative
proceedings, and any private civil actions (pending or otherwise)
involving monetary judgments against the petitioner from any court in or
outside the United States within the past fifteen years.
(4) Job creation--(i) General. To show that a new commercial
enterprise will create not fewer than ten (10) full-time positions for
qualifying employees, the petition must be accompanied by:
(A) Documentation consisting of photocopies of relevant tax records,
Form I-9, or other similar documents for ten (10) qualifying employees,
if such employees have already been hired following the establishment of
the new commercial enterprise; or
(B) A copy of a comprehensive business plan showing that, due to the
nature and projected size of the new commercial enterprise, the need for
not fewer than ten (10) qualifying employees will result, including
approximate dates, within the next two years, and when such employees
will be hired.
(ii) Troubled business. To show that a new commercial enterprise
which has been established through a capital investment in a troubled
business meets the statutory employment creation requirement, the
petition must be accompanied by evidence that the number of existing
employees is being or will be maintained at no less than the pre-
investment level for a period of at least two years. Photocopies of tax
records, Forms I-9, or other relevant documents for the qualifying
employees and a comprehensive business plan shall be submitted in
support of the petition.
(iii) Immigrant Investor Pilot Program. To show that the new
commercial enterprise located within a regional center approved for
participation in the Immigrant Investor Pilot Program 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
[[Page 143]]
the new enterprise and a complete description of the position's duties;
(ii) Evidence that the petitioner is a corporate officer or a member
of the corporate board of directors; or
(iii) If the new enterprise is a partnership, either limited or
general, evidence that the petitioner is engaged in either direct
management or policy making activities. For purposes of this section, if
the petitioner is a limited partner and the limited partnership
agreement provides the petitioner with certain rights, powers, and
duties normally granted to limited partners under the Uniform Limited
Partnership Act, the petitioner will be considered sufficiently engaged
in the management of the new commercial enterprise.
(6) If applicable, to show that the new commercial enterprise has
created or will create employment in a targeted employment area, the
petition must be accompanied by:
(i) In the case of a rural area, evidence that the new commercial
enterprise is principally doing business within a civil jurisdiction not
located within any standard metropolitan statistical area as designated
by the Office of Management and Budget, or within any city or town
having a population of 20,000 or more as based on the most recent
decennial census of the United States; or
(ii) In the case of a high unemployment area:
(A) Evidence that the metropolitan statistical area, the specific
county within a metropolitan statistical area, or the county in which a
city or town with a population of 20,000 or more is located, in which
the new commercial enterprise is principally doing business has
experienced an average unemployment rate of 150 percent of the national
average rate; or
(B) A letter from an authorized body of the government of the state
in which the new commercial enterprise is located which certifies that
the geographic or political subdivision of the metropolitan statistical
area or of the city or town with a population of 20,000 or more in which
the enterprise is principally doing business has been designated a high
unemployment area. The letter must meet the requirements of 8 CFR
204.6(i).
(k) Decision. The petitioner will be notified of the decision, and,
if the petition is denied, of the reasons for the denial and of the
petitioner's right of appeal to the Associate Commissioner for
Examinations in accordance with the provisions of part 103 of this
chapter. The decision must specify whether or not the new commercial
enterprise is principally doing business within a targeted employment
area.
(l) Disposition of approved petition. The approved petition will be
forwarded to the United States consulate selected by the petitioner and
indicated on the petition. If a consulate has not been designated, the
petition will be forwarded to the consulate having jurisdiction over the
place of the petitioner's last residence abroad. If the petitioner is
eligible for adjustment of status to conditional permanent residence,
and if the petition indicates that the petitioner intends to apply for
such adjustment, the approved petition will be retained by the Service
for consideration in conjunction with the application for adjustment of
status.
(m) Immigrant Investor Pilot Program--(1) Scope. The Immigrant
Investor Pilot Program is established solely pursuant to the provisions
of section 610 of the Departments of Commerce, Justice, and State, the
Judiciary, and Related 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:
[[Page 144]]
(i) Clearly describes how the regional center focuses on a
geographical region of the United States, and how it will promote
economic growth through increased export sales, improved regional
productivity, job creation, and increased domestic capital investment;
(ii) Provides in verifiable detail how jobs will be created
indirectly through increased exports;
(iii) Provides a detailed statement regarding the amount and source
of capital which has been committed to the regional center, as well as a
description of the promotional efforts taken and planned by the sponsors
of the regional center;
(iv) Contains a detailed prediction regarding the manner in which
the regional center will have a positive impact on the regional or
national economy in general as reflected by such factors as increased
household earnings, greater demand for business services, utilities,
maintenance and repair, and construction both within and without the
regional center; and
(v) Is supported by economically or statistically valid forecasting
tools, including, but not limited to, feasibility studies, analyses of
foreign and domestic markets for the goods or services to be exported,
and/or multiplier tables.
(4) Submission of proposals to participate in the Immigrant Investor
Pilot Program. On August 24, 1993, the Service will accept proposals
from regional centers seeking approval to participate in the Immigrant
Investor Pilot Program. Regional centers that have been approved by the
Assistant Commissioner for Adjudications will be eligible to participate
in the Immigrant Investor Pilot Program.
(5) Decision to participate in the Immigrant Investor Pilot Program.
The Assistant Commissioner for Adjudications shall notify the regional
center of his or her decision on the request for approval to participate
in the Immigrant Investor Pilot Program, and, if the petition is denied,
of the reasons for the denial and of the regional center's right of
appeal to the Associate Commissioner for Examinations. Notification of
denial and appeal rights, and the procedure for appeal shall be the same
as those contained in 8 CFR 103.3.
(6) Termination of participation of regional centers. To ensure that
regional centers continue to meet the requirements of section 610(a) of
the Appropriations Act, the Assistant Commissioner for Adjudications
shall issue a notice of intent to terminate the participation of a
regional center in the pilot program upon a determination that the
regional center no longer serves the purpose of promoting economic
growth, including increased export sales, improved regional
productivity, job creation, and increased domestic capital investment.
The notice of intent to terminate shall be made upon notice to the
regional center and shall set forth the reasons for termination. The
regional center must be provided thirty days from receipt of the notice
of intent to terminate to offer evidence in opposition to the ground or
grounds alleged in the notice of intent to terminate. If the Assistant
Commissioner for Adjudications determines that the regional center's
participation in the Pilot Program should be terminated, the Assistant
Commissioner for Adjudications shall notify the regional center of the
decision and of the reasons for termination. The regional center may
appeal the decision within thirty days after the service of notice to
the Associate Commissioner for Examinations as provided in 8 CFR 103.3.
(7) Requirements for alien entrepreneurs. An alien seeking an
immigrant visa as an alien entrepreneur 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
[[Page 145]]
methodologies may include multiplier tables, feasibility studies,
analyses of foreign and domestic markets for the goods or services to be
exported, and other economically or statistically valid forecasting
devices which indicate the likelihood that the business will result in
increased employment.
(8) Time for submission of petitions for classification as an alien
entrepreneur under the Immigrant Investor Pilot Program. Commencing on
October 1, 1993, petitions will be accepted for filing and adjudicated
in accordance with the provisions of this section if the alien
entrepreneur has invested or is actively in the process of investing
within a regional center which has been approved by the Service for
participation in the Pilot Program.
(9) Effect of termination of approval of regional center to
participate in the Immigrant Investor Pilot Program. Upon termination of
approval of a regional center to participate in the Immigrant Investor
Pilot Program, the director shall send a formal written notice to any
alien within the regional center who has been granted lawful permanent
residence on a conditional basis under the Pilot Program, and who has
not yet removed the conditional basis of such lawful permanent
residence, of the termination of the alien's permanent resident status,
unless the alien can establish continued eligibility for alien
entrepreneur classification under section 203(b)(5) of the Act.
[56 FR 60910, Nov. 29, 1991, as amended at 57 FR 1860, Jan. 16, 1992; 58
FR 44608, 44609, Aug. 24, 1993]
Sec. 204.7 Preservation of benefits contained in savings clause of Immigration and Nationality Act Amendments of 1976.
In order to be considered eligible for the benefits of the savings
clause contained in section 9 of the Immigration and Nationality Act
Amendments of 1976, an alien must show that the facts established prior
to January 1, 1977 upon which the entitlement to such benefits was based
continue to exist.
[41 FR 55849, Dec. 23, 1976]
Sec. 204.8 Petitions for employees of certain United States businesses operating in Hong Kong.
(a) General. A petition to accord an alien status as an employee of
a United States business operating in Hong Kong pursuant to section 124
of the Immigration Act of 1990 shall be filed by the employer on Form I-
140, Immigrant Petition for Alien Worker. Since section 124 provides for
up to 12,000 additional visa numbers only in each of fiscal years 1991
through 1993, petitions for these employees will not be accepted after
September 30, 1993.
(b) Definitions. As used in this section:
Affiliate means one of two subsidiaries both of which are owned and
controlled by the same parent or individual or one of two legal entities
owned and controlled by the same group of individuals, each individual
owning and controlling approximately the same share or proportion of
each entity. Effective October 1, 1991, in the case of a partnership
that is organized in the United States to provide accounting services
along with managerial and consulting services and that markets its
accounting services under an internationally recognized name under an
agreement with a worldwide coordinating organization that is owned and
controlled by the member accounting firms, a partnership (or similar
organization) that is organized outside the United States to provide
accounting services shall be considered to be an affiliate of the United
States partnership if its markets its accounting services under the same
internationally recognized name under the agreement with the worldwide
coordinating organization of which the United States partnership is also
a member.
Executive capacity means an assignment within an organization in
which the employee primarily:
(i) Directs the management of the organization or a major component
or function of the organization;
(ii) Establishes the goals and policies of the organization,
component, or function;
(iii) Exercises wide latitude in discretionary decision-making; and
(iv) Receives only general supervision or direction from higher
level
[[Page 146]]
executives, the board of directors, or stockholders of the organization.
Managerial capacity means an assignment within an organization in
which the employee primarily:
(i) Manages the organization, or a department, subdivision,
function, or component of the organization;
(ii) Supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an essential function
within the organization, or a department or subdivision of the
organization;
(iii) Has the authority to hire and fire or recommend those as well
as other personnel actions (such as promotion and leave authorization)
if another employee or other employees are directly supervised, or, if
no other employee is directly supervised, functions at a senior level
within the organizational hierarchy or with respect to the function
managed; and
(iv) Exercises direction over the day-to-day operations of the
activity or function for which the employee has authority.
Officer means, with respect to a business entity, the chairman or
vice-chairman of the board of directors of the entity, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice-president, any assistant vice-president, any senior
trust officer, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or associate trust officer,
the controller, any assistant controller, or any other officer of the
entity customarily performing functions similar to those performed by
any of the foregoing officers.
Parent means a firm, corporation, or other legal entity which has
subsidiaries.
Specialized knowledge means, with respect to an organization, that
an alien has a special knowledge of the organization's product and its
application in international markets or has an advanced level of
knowledge of processes and procedures of the organization.
Subsidiary means a firm, corporation, or other legal entity of which
a parent owns, directly or indirectly, more than half of the entity and
controls the entity; or owns, directly or indirectly, 50 percent of a
50-50 joint venture and has equal control and veto power; or owns,
directly or indirectly, less than half the entity, but in fact controls
the entity.
Supervisor means any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, award, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or
effectively recommend such action, if in connection with the foregoing,
the exercise of such authority is not merely of a routine or clerical
nature, but requires the use of independent judgement.
United States business, as used in this section, means an entity or
organization created under the laws of the United States which has a
United States principal place of business and which is at least 50
percent owned by United States citizens or permanent residents.
(c) Jurisdiction. The petition must be filed at the Service Center
having jurisdiction over the corporate headquarters of the business in
the United States. There will be no concurrent filing of a petition with
an application for status as a permanent resident (Form I-485).
(d) Eligibility. The alien beneficiary must:
(1) Be a resident of Hong Kong who:
(i) Is employed in Hong Kong and has been employed in Hong Kong
during the 12 previous consecutive months; or
(ii) Is employed outside of Hong Kong during a temporary absence
(i.e., of limited duration) from Hong Kong at the request of the
employer and had been employed in Hong Kong for 12 consecutive months
prior to such absence(s); and
(2) Be employed as an officer or supervisor or in a capacity that is
managerial or executive or involves specialized knowledge, by a
qualifying business entity. A qualifying business entity is one which:
(i) Is owned and organized in the United States (or is the
subsidiary or affiliate of a business owned and organized in the United
States);
[[Page 147]]
(ii) Employs at least 100 employees in the United States and at
least 50 employees outside the United States (not necessarily all in
Hong Kong); and
(iii) Has a gross annual income of at least $50,000,000.
(3) Have an offer of employment in the United States from the United
States business entity as an officer or supervisor or in a capacity that
is managerial or executive, or involves specialized knowledge. The offer
of employment must:
(i) Be effective from the time of filing the petition through and
including the time of entry into the United States, and
(ii) Provide for salary and benefits comparable to the salary and
benefits provided to others with similar responsibilities and experience
within the same company.
(e) Determining managerial or executive capacities--(1) Supervisors
as managers. A first-line supervisor is not considered to be acting in a
managerial capacity merely by virtue of his or her supervisory duties of
the supervisor's supervisory duties unless the employees supervised are
professional.
(2) Staffing levels. If staffing levels are used as a factor in
determining whether an individual is acting in a managerial or executive
capacity, the reasonable needs of the organization, component, or
function in light of the overall purpose and stage of development of the
organization, component, or function shall be taken into account. An
individual shall not be considered to be acting in a managerial or
executive capacity merely on the basis of the number of employees that
the individual supervises or has supervised or directs or has directed.
(f) Evidence to accompany petition. A petition filed on Form I-140
shall be accompanied by:
(1) Form ETA-750B, Statement of Qualifications of Alien; and
(2) A letter from the employer attesting to the information
contained in paragraph (d) of this section. Since the alien's move to
the United States from Hong Kong does not need to take place
immediately, the employer's information on the job in the United States
will be determined by the circumstances of the individual case. If
immediate immigration is intended, a specific job description must be
included with the employer's attestation. If immigration will be
deferred, a simple commitment by the employer that a qualifying job will
be available in the United States will be acceptable. Prior to seeking
admission to the United States, a deferred visa applicant must present a
specific job description letter for redetermination of eligibility. Such
letter shall be presented to the visa-issuing consular post, or to the
Service office where the alien is applying for adjustment of status in
the United States.
(g) Closing action--(1) Approval. If the alien is residing in Hong
Kong, an approved petition will be forwarded for visa processing to the
United States Consulate at Hong Kong. Whether the alien is in Hong Kong
or is adjusting in the United States, the legend ``HONG KONG SEC. 124''
will be clearly printed in the block used for indicating preference at
the top of Form I-140.
(2) Denial. The denial of a petition filed under this provision
shall be appealable to the Associate Commissioner, Examinations.
Notification of denial and appeal rights, and the procedure for appeal
shall be the same as those contained in 8 CFR 103.3.
(3) Revocation. A petition approved under this provision shall be
automatically revoked for the same reasons provided in 8 CFR 205.1(c).
The procedure for revocation on notice shall be the procedure described
in 8 CFR 205.2. Termination of employment shall be grounds for automatic
revocation; however, a transfer within the same company to a different
division, section, subsidiary, or affiliate (regardless of geographical
location) will not be disqualifying.
[56 FR 23210, May 21, 1991, as amended at 57 FR 14792, 14793, Apr. 23,
1992]
Sec. 204.9 Special immigrant status for certain aliens who have served honorably (or are enlisted to serve) in the Armed Forces of the United States for at
least 12 years.
(a) Petition for Armed Forces special immigrant. An alien may not be
classified as an Armed Forces special immigrant unless the alien is the
beneficiary of an approved petition to classify such an
[[Page 148]]
alien as a special immigrant under section 101(a)(27)(K) of the Act. The
petition must be filed on Form I-360, Petition for Amerasian, Widow or
Special Immigrant.
(1) Who may file. An alien Armed Forces enlistee or veteran may file
the petition for Armed Forces special immigrant status in his or her own
behalf. The person filing the petition is not required to be a citizen
or lawful permanent resident of the United States.
(2) Where to file. The petition must be filed with the Service
Center having jurisdiction over the place of the alien's current or
intended place of residence in the United States, with the overseas
Service office having jurisdiction over the alien's residence abroad, or
in conjunction with 8 CFR 245.8.
(b) Eligibility. An alien is eligible for classification as a
special immigrant under section 101(a)(27)(K) of the Act if:
(1) The alien has served honorably on active duty in the Armed
Forces of the United States after October 15, 1978;
(2) The alien's original lawful enlistment was outside the United
States (under a treaty or agreement in effect October 1, 1991) for a
period or periods aggregating--
(i) Twelve years, and who, if separated from such service, was never
separated except under honorable conditions; or
(ii) Six years, in the case of an immigrant who is on active duty at
the time of seeking special immigrant status under this rule and who has
reenlisted to incur a total active duty service obligation of at least
12 years;
(3) The alien is a national of an independent state which maintains
a treaty or agreement allowing nationals of that state to enlist in the
United States Armed Forces each year; and
(4) The executive department under which the alien has served or is
serving has recommended the granting of special immigrant status to the
immigrant.
(c) Derivative beneficiaries. A spouse or child accompanying or
following to join a principal immigrant who has requested benefits under
this section may be accorded the same special immigrant classification
as the principal alien. This may occur whether or not the spouse or
child is named in the petition and without the approval of a separate
petition, but only if the executive department under which the immigrant
serves or served recommends the granting of special immigrant status to
the principal immigrant.
(1) The relationship of spouse and child as defined in section
101(b)(1) of the Act must have existed at the time the principal alien's
special immigrant application under section 101(a)(27)(K) of the Act was
approved. The spouse or child of an immigrant classified as a section
103(a)(27)(K) special immigrant is entitled to a derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.
(2) When a spouse or child of an alien granted special immigrant
status under section 101(a)(27)(K) of the Act is in the United States
but was not included in the principal alien's application, the spouse or
child shall file Form I-485, Application to Register Permanent Residence
or Adjust Status, with the director having jurisdiction over his or her
place of residence, regardless of the status of that spouse or child in
the United States. The application must be supported by evidence that
the principal alien has been granted special immigrant status under
section 101(a)(27)(K) of the Act.
(3) Revocation of derivative status. The termination of special
immigrant status for a person who was the principal applicant shall
result in termination of the special immigrant status of a spouse or
child whose status was based on the special immigrant application of the
principal.
(d) Documents which must be submitted in support of the petition.
(1) A petition to classify an immigrant as a special immigrant under
section 101(a)(27)(K) of the Act must be accompanied by the following:
(i) Certified proof of reenlistment (after 6 years of active duty
service), or certification of past active duty status of 12 years,
issued by the authorizing official of the executive department in which
the applicant serves or has served, which certifies that the applicant
has the required honorable active duty service and commitment. The
authorizing official need not be at a level
[[Page 149]]
above the ``local command''. The certification must be submitted with
Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant; and
(ii) Birth certificate of the applicant establishing that the
applicant is a national of an independent state which maintains a treaty
or agreement allowing nationals of that state to enlist in the United
States Armed Forces each year.
(2) Any documents submitted in support of the petition must meet the
evidentiary requirements as set forth in 8 CFR part 103.
(3) Submission of an original Form DD-214, Certificate of Release or
Discharge from Active Duty; Form G-325b, Biographic Information; and
Form N-426, Request for Certification of Military or Naval Service, is
not required for approval of a petition for special immigrant status.
(e) Decision. The petitioner will be notified of the director's
decision and, if the petition is denied, of the reasons for the denial.
If the petition is denied, the petitioner will also be notified of the
petitioner's right to appeal the decision to the Associate Commissioner
for Examinations in accordance with 8 CFR part 103.
(f) Revocation under section 205 of the Act. An alien who has been
granted special immigrant classification under section 101(a)(27)(K) of
the Act must meet the qualifications set forth in the Act at the time he
or she is admitted to the United States for lawful permanent residence.
If an Armed Forces special immigrant ceases to be a qualified enlistee
by failing to complete the required active duty service obligation for
reasons other than an honorable discharge prior to entering the United
States with an immigrant visa or approval of an application for
adjustment of status to that of an alien lawfully admitted for permanent
residence, the petition designating his or her classification as a
special immigrant is revoked automatically under the general provisions
of section 205 of the Act. The Service shall obtain a current Form DD-
214, Certificate of Release or Discharge from Active Duty, from the
appropriate executive department for verification of the alien's failure
to maintain eligibility for the classification under section
101(a)(27)(K) of the Act.
[57 FR 33861, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993]
Sec. 204.10 Petitions by, or for, certain scientists of the Commonwealth of Independent States or the Baltic states.
(a) General. A petition to classify an alien under section 203(b)(2)
of the Act as a scientist of the eligible independent states of the
former Soviet Union or the Baltic states must be filed on Form I-140,
Immigrant Petition for Alien Worker. The petition may be filed by the
alien, or anyone in the alien's behalf. The Service must approve a
petition filed on behalf of the alien on or before October 24, 1996, or
until 750 petitions have been approved on behalf of eligible scientists,
whichever is earliest.
(b) Jurisdiction. Form I-140 must be filed with the service center
having jurisdiction over the alien's place of intended residence in the
United States, unless specifically designated for local filing by the
Associate Commissioner for Examinations. To clarify that the petition is
for a Soviet scientist, the petitioner should check the block in part 2
of Form I-140 which indicates that the petition is for ``a member of the
professions holding an advanced degree or an alien of exceptional
ability'' and clearly print the words ``SOVIET SCIENTIST'' in an
available space in Part 2.
(c) Priority date. The priority date of any petition filed for this
classification shall be the date the completed, signed petition
(including all initial evidence and the correct fee) is properly filed
with the Service.
(d) Definitions. As used in this section:
Baltic states means the sovereign nations of Latvia, Lithuania, and
Estonia.
Eligible independent states and Baltic scientists means aliens:
(i) Who are nationals of any of the independent states of the former
Soviet Union or the Baltic states; and
(ii) Who are scientists or engineers who have expertise in a high-
technology field which is clearly applicable
[[Page 150]]
to the design, development, or production of ballistic missiles,
nuclear, biological, chemical, or other high-technology weapons of mass
destruction, or who are working on the design, development, and
production of ballistic missiles, nuclear, biological, chemical, or
other high-technology weapons of mass destruction.
Independent states of the former Soviet Union means the sovereign
nations of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and
Uzbekistan.
(e) Initial evidence. A petition for classification as a scientist
of the independent states of the former Soviet Union or the Baltic
states must be accompanied by:
(1) Evidence that the alien is a national of one of the independent
states of the former Soviet Union or one of the Baltic states. Such
evidence includes, but is not limited to, identifying page(s) from a
passport issued by the former Soviet Union, or by one of the independent
or Baltic states; and
(2) Evidence that the alien possesses exceptional ability in the
field. Such evidence shall include:
(i) Form ETA 750B, Statement of Qualifications of Alien and a
supplementary statement of relevant experience within the past ten
years; and
(ii) Written testimony that the alien has expertise in a field
described in paragraph (d) of this section, or that the alien is or has
been working on a high-technology defense project or projects in a field
described in paragraph (d) of this section, from either two recognized
national or international experts in the same field or from the head or
duly appointed designee of an agency of the Federal Government of the
United States; and
(iii) Corroborative evidence of the claimed expertise, including the
beneficiary's official Labor Record Book (Trudavaya Knizhka), any
significant awards and publications, and other comparable evidence, or
an explanation why the foregoing items cannot be submitted; or
(iv) In the case of a qualified scientist who establishes that he or
she is unable to submit the initial evidence prescribed by paragraphs
(e)(2) (ii) or (iii) of this section, a full explanation and statement
of the facts concerning his or her eligibility. This statement must be
sufficiently detailed so as to enable the Service to meaningfully
consult with other government agencies as provided in paragraph (g) of
this section.
(f) No offer of employment required. Neither an offer of employment
nor a labor certification is required for this classification.
(g) Consultation with other United States Government agencies. In
evaluating the claimed qualifications of applicants under this
provision, the Service may consult with other United States Government
agencies having expertise in defense matters including, but not limited
to, the Department of Defense, the Department of State, and the Central
Intelligence Agency. The Service may, in the exercise of discretion,
accept a favorable report from such agency as evidence in lieu of the
documentation prescribed in paragraphs (e)(2) (ii) and (iii) of this
section.
(h) Decision on and disposition of petition. If the beneficiary is
outside of the United States, or is in the United States but seeks to
apply for an immigrant visa abroad, the approved petition will be
forwarded by the service center to the Department of State's National
Visa Center. If the beneficiary is in the United States and seeks to
apply for adjustment of status, the approved petition will be retained
at the service center for consideration with the application for
adjustment of status. If the petition is denied, the petitioner will be
notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR part 103.
[58 FR 30701, May 27, 1993, as amended at 60 FR 54030, Oct. 19, 1995]
Sec. 204.11 Special immigrant status for certain aliens declared dependent on a juvenile court (special immigrant juvenile).
(a) Definitions.
Eligible for long-term foster care means that a determination has
been made by the juvenile court that family reunification is no longer a
viable option. A child who is eligible for long-term foster care will
normally be expected to
[[Page 151]]
remain in foster care until reaching the age of majority, unless the
child is adopted or placed in a guardianship situation. For the purposes
of establishing and maintaining eligibility for classification as a
special immigrant juvenile, a child who has been adopted or placed in
guardianship situation after having been found dependent upon a juvenile
court in the United States will continue to be considered to be eligible
for long-term foster care.
Juvenile court means a court located in the United States having
jurisdiction under State law to make judicial determinations about the
custody and care of juveniles.
(b) Petition for special immigrant juvenile. An alien may not be
classified as a special immigrant juvenile unless the alien is the
beneficiary of an approved petition to classify an alien as a special
immigrant under section 101(a)(27) of the Act. The petition must be
filed on Form I-360, Petition for Amerasian, Widow(er) or Special
Immigrant.
(1) Who may file. The alien, or any person acting on the alien's
behalf, may file the petition for special immigrant juvenile status. The
person filing the petition is not required to be a citizen or lawful
permanent resident of the United States.
(2) Where to file. The petition must be filed at the district office
of the Immigration and Naturalization Service having jurisdiction over
the alien's place of residence in the United States.
(c) Eligibility. An alien is eligible for classification as a
special immigrant under section 101(a)(27)(J) of the Act if the alien:
(1) Is under twenty-one years of age;
(2) Is unmarried;
(3) Has been declared dependent upon a juvenile court located in the
United States in accordance with state law governing such declarations
of dependency, while the alien was in the United States and under the
jurisdiction of the court;
(4) Has been deemed eligible by the juvenile court for long-term
foster care;
(5) Continues to be dependent upon the juvenile court and eligible
for long-term foster care, such declaration, dependency or eligibility
not having been vacated, terminated, or otherwise ended; and
(6) Has been the subject of judicial proceedings or administrative
proceedings authorized or recognized by the juvenile court in which it
has been determined that it would not be in the alien's best interest to
be returned to the country of nationality or last habitual residence of
the beneficiary or his or her parent or parents; or
(7) On November 29, 1990, met all the eligibility requirements for
special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of
this section, and for whom a petition for classification as a special
immigrant juvenile is filed on Form I-360 before June 1, 1994.
(d) Initial documents which must be submitted in support of the
petition. (1) Documentary evidence of the alien's age, in the form of a
birth certificate, passport, official foreign identity document issued
by a foreign government, such as a Cartilla or a Cedula, or other
document which in the discretion of the director establishes the
beneficiary's age; and
(2) One or more documents which include:
(i) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary to be dependent upon that court;
(ii) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary eligible for long-term foster care; and
(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,
[[Page 152]]
Examinations, in accordance with part 103 of this chapter.
[58 FR 42850, Aug. 12, 1993]
PART 205--REVOCATION OF APPROVAL OF PETITIONS--Table of Contents
Sec.
205.1 Automatic revocation.
205.2 Revocation on notice.
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, and
1186a.
Sec. 205.1 Automatic revocation.
(a) Reasons for automatic revocation. The approval of a petition or
self-petition made under section 204 of the Act and in accordance with
part 204 of this chapter is revoked as of the date of approval:
(1) If the Secretary of State shall terminate the registration of
the beneficiary pursuant to the provisions of section 203(e) of the Act
before October 1, 1991, or section 203(g) of the Act on or after October
1, 1994;
(2) If the filing fee and associated service charge are not paid
within 14 days of the notification to the remitter that his or her check
or other financial instrument used to pay the filing fee has been
returned as not payable; or
(3) If any of the following circumstances occur before the
beneficiary's or self-petitioner's journey to the United States
commences or, if the beneficiary or self-petitioner is an applicant for
adjustment of status to that of a permanent resident, before the
decision on his or her adjustment application becomes final:
(i) Immediate relative and family-sponsored petitions, other than
Amerasian petitions. (A) Upon written notice of withdrawal filed by the
petitioner or self-petitioner with any officer of the Service who is
authorized to grant or deny petitions.
(B) Upon the death of the beneficiary or the self-petitioner.
(C) Upon the death of the petitioner, unless the Attorney General in
his or her discretion determines that for humanitarian reasons
revocation would be inappropriate.
(D) Upon the legal termination of the marriage when a citizen or
lawful permanent resident of the United States has petitioned to accord
his or her spouse immediate relative or family-sponsored preference
immigrant classification under section 201(b) or section 203(a)(2) of
the Act. The approval of a spousal self-petition based on the
relationship to an abusive citizen or lawful permanent resident of the
United States filed under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii)
of the Act, however, will not be revoked solely because of the
termination of the marriage to the abuser.
(E) Upon the remarriage of the spouse of an abusive citizen or
lawful permanent resident of the United States when the spouse has self-
petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the
Act for immediate relative classification under section 201(b) of the
Act or for preference classification under section 203(a)(2) of the Act.
(F) Upon a child reaching the age of 21, when he or she has been
accorded immediate relative status under section 201(b) of the Act. A
petition filed on behalf of a child under section 204(a)(1)(A)(i) of the
Act or a self-petition filed by a child of an abusive United States
citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain
valid for the duration of the relationship to accord preference status
under section 203(a)(1) of the Act if the beneficiary remains unmarried,
or to accord preference status under section 203(a)(3) of the Act if he
or she marries.
(G) Upon the marriage of a child, when he or she has been accorded
immediate relative status under section 201(b) of the Act. A petition
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act or
a self-petition filed by a child of an abusive United States citizen
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid
for the duration of the relationship to accord preference status under
section 203(a)(3) of the Act if he or she marries.
(H) Upon the marriage of a person accorded preference status as a
son or daughter of a United States citizen under section 203(a)(1) of
the Act. A petition filed on behalf of the son or daughter, however,
will remain valid for the duration of the relationship to
[[Page 153]]
accord preference status under section 203(a)(3) of the Act.
(I) Upon the marriage of a person accorded status as a son or
daughter of a lawful permanent resident alien under section 203(a)(2) of
the Act.
(J) Upon legal termination of the petitioner's status as an alien
admitted for lawful permanent residence in the United States unless the
petitioner became a United States citizen. The provisions of 8 CFR
204.2(i)(3) shall apply if the petitioner became a United States
citizen.
(ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice
of withdrawal filed by the petitioner with the officer who approved the
petition.
(B) Upon the death of the beneficiary.
(C) Upon the death or bankruptcy of the sponsor who executed Form I-
361, Affidavit of Financial Support and Intent to Petition for Legal
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may
be filed in the beneficiary's behalf with the documentary evidence
relating to sponsorship and, in the case of a beneficiary under 18 years
of age, placement. If the new petition is approved, it will be given the
priority date of the previously approved petition.
(D) Upon the death or substitution of the petitioner if other than
the beneficiary or sponsor. However, if the petitioner dies or no longer
desires or is able to proceed with the petition, and another person 18
years of age or older, an emancipated minor, or a corporation
incorporated in the United States desires to be substituted for the
deceased or original petitioner, a written request may be submitted to
the Service or American consular office where the petition is located to
reinstate the petition and restore the original priority date.
(E) Upon the beneficiary's reaching the age of 21 when the
beneficiary has been accorded classification under section 201(b) of the
Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(1) of the Act if the beneficiary remains unmarried or
under section 203(a)(3) if the beneficiary marries.
(F) Upon the beneficiary's marriage when the beneficiary has been
accorded classification under section 201(b) or section 203(a)(1) of the
Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(3) of the Act.
(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
[[Page 154]]
she shall cause a notice of such revocation to be sent promptly to the
consular office having jurisdiction over the visa application and a copy
of such notice to be mailed to the petitioner's last known address.
[61 FR 13077, Mar. 26, 1996]
Sec. 205.2 Revocation on notice.
(a) General. Any Service officer authorized to approve a petition
under section 204 of the Act may revoke the approval of that petition
upon notice to the petitioner on any ground other than those specified
in Sec. 205.1 when the necessity for the revocation comes to the
attention of this Service.
(b) Notice of intent. Revocation of the approval of a petition of
self-petition under paragraph (a) of this section will be made only on
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support of
the petition or self-petition and in opposition to the grounds alleged
for revocation of the approval.
(c) Notification of revocation. If, upon reconsideration, the
approval previously granted is revoked, the director shall provide the
petitioner or the self-petitioner with a written notification of the
decision that explains the specific reasons for the revocation. The
director shall notify the consular officer having jurisdiction over the
visa application, if applicable, of the revocation of an approval.
(d) Appeals. The petitioner or self-petitioner may appeal the
decision to revoke the approval within 15 days after the service of
notice of the revocation. The appeal must be filed as provided in part 3
of this chapter, unless the Associate Commissioner for Examinations
exercises appellate jurisdiction over the revocation under part 103 of
this chapter. Appeals filed with the Associate Commissioner for
Examinations must meet the requirements of part 103 of this chapter.
[48 FR 19156, Apr. 28, 1983, as amended at 58 FR 42851, Aug. 12, 1993;
61 FR 13078, Mar. 26, 1996]
PART 207--ADMISSION OF REFUGEES--Table of Contents
Sec.
207.1 Eligibility.
207.2 Applicant processsing.
207.3 Inadmissible applicant.
207.4 Approved application.
207.5 Waiting lists and priority handling.
207.6 Control over approved refugee numbers.
207.7 Physical presence in the United States.
207.8 Termination of refugee status.
Authority: Secs. 101, 103, 201, 207, 209, and 212; (8 U.S.C. 1101,
1103, 1151, 1157, 1159, and 1182).
Source: 46 FR 45118, Sept. 10, 1981, unless otherwise noted.
Sec. 207.1 Eligibility.
(a) Presidential designation. Before the beginning of each fiscal
year the President determines (after appropriate consultation) the
number and allocation of refugees who are of special humanitarian
concern to the United States and who are to be admitted during the
succeeding twelve months. Any alien who believes he/she is a ``refugee''
as defined in section 101(a)(42) of the Act, and is included in a
refugee group of special humanitarian concern as designated by the
President, may apply for admission to the United States by filing Form
I-590 (Registration for Classification as Refugee) with the overseas
Immigration and Naturalization Service's officer in charge responsible
for the area where the applicant is located. In those areas too distant
from an officer in charge, making direct filing impracticable, the Form
I-590 may be filed preliminarily at a designated consular office.
(b) Firmly resettled. A refugee is considered to be ``firmly
resettled'' if he/she has been offered resident status, citizenship, or
some other type of permanent resettlement by a country other than the
United States and has travelled to and entered that country as a
consequence of his/her flight from persecution. Any applicant who has
become firmly resettled in a foreign country is not eligible for refugee
status under this chapter.
[[Page 155]]
(c) Not firmly resettled. Any applicant who claims not to be firmly
resettled in a foreign country must establish that the conditions of
his/her residence in that country are so restrictive as to deny
resettlement. In determining whether or not an applicant is firmly
resettled in a foreign country, the officer reviewing the matter shall
consider the conditions under which other residents of the country live:
(1) Whether permanent or temporary housing is available to the refugee
in the foreign country; (2) nature of employment available to the
refugee in the foreign country; and (3) other benefits offered or denied
to the refugee by the foreign country which are available to other
residents, such as (i) right to property ownership, (ii) travel
documentation, (iii) education, (iv) public welfare, and (v)
citizenship.
(d) Immediate relatives and special immigrants. Any applicant for
refugee status who qualifies as an immediate relative or as a special
immigrant shall not be processed as a refugee unless it is in the public
interest. The alien shall be advised to obtain an immediate relative or
special immigrant visa and shall be provided with the proper petition
forms to send to any prospective petitioners. An applicant who may be
eligible for classification under sections 203(a)(1), (2), (3), (4),
(5), (6), or (7) of the Act, and for whom a visa number is now
available, shall be advised of such eligibility but is not required to
apply.
(e) Spouse and children. The spouse of child (as defined in section
101(b)(1)(A), (B), (C), (D), or (E) of the Act) of any refugee who
qualifies for admission, shall if not otherwise entitled to admission
and if not a person described in the second sentence of section
101(a)(42) of the Act, be entitled to the same status as such refugee if
accompanying, or following to join such refugee. His/her entry shall be
charged against the numerical limitation under which the refugee's entry
is charged.
Sec. 207.2 Applicant processing.
(a) Forms. Each applicant who seeks admission as a refugee shall
submit an individual Form I-590 (Registration for Classification as
Refugee). Additionally, each applicant 14 years old or older must submit
completed forms G-325C (Biographical Information) and FD-258 (Applicant
Card).
(b) Hearing. Each applicant 14 years old or older shall appear in
person before an immigration officer for inquiry under oath to determine
his/her eligibility for admission as a refugee.
(c) Medical examination. Each applicant shall submit to a medical
examination as required by sections 221(d) and 234 of the Act.
(d) Sponsorship. Each applicant must be sponsored by a responsible
person or organization. Transportation for the applicant from his/her
present abode to the place of resettlement in the United States must be
guaranteed by the sponsor. The application for refugee status will not
be approved until the Service receives an acceptable sponsorship
agreement and guaranty of transportation in behalf of the applicant.
Sec. 207.3 Inadmissible applicant.
(a) Statutory exclusion. An applicant within the class of aliens
excluded from admission to the United States under paragraphs (27),
(29), (33), or so much of paragraph (23) as it relates to trafficking in
narcotics of section 212(a) of the Act, shall not be admitted as a
refugee under section 207 of the Act. However, an applicant seeking
refugee status under section 207 is exempt by statute from the
exclusionary provisions of paragraphs (14), (15), (20), (21), (25), and
(32) of section 212(a) of the Act and a waiver of exclusion is not
required.
(b) Waiver of exclusion. Except for the exclusionary and statutory
exemption provisions noted in Sec. 207.3(a) any other exclusionary
provisions of section 212(a) of the Act may be waived for humanitarian
purposes, to assure family unity, or when it is in the public interest.
This authority is delegated to officers in charge who shall initiate the
necessary investigations to establish the facts in each waiver
application pending before them. Form I-602 (Application by Refugee for
Waiver of Grounds of Excludability) may be filed with the officer in
charge before whom the applicant's Form I-590 is pending. The burden is
upon the applicant to show that the waiver should be granted based upon:
(1) Humanitarian purposes, (2) family unity, or (3) public interest.
[[Page 156]]
The applicant shall be notified in writing regarding the application for
waiver, including the reason for denial if the application is denied.
There is no appeal from a waiver denial under this chapter.
Sec. 207.4 Approved application.
Approval of Form I-590 by an officer in charge outside the United
States authorizes the district director of the port of entry in the
United States to admit the applicant conditionally as a refugee upon
arrival at the port within four months of the date the Form I-590 was
approved. There is no appeal from a denial of refugee status under this
chapter.
Sec. 207.5 Waiting lists and priority handling.
Waiting lists are maintained for each designated refugee group of
special humanitarian concern. Each applicant whose application is
accepted for filing by the Immigration and Naturalization Service shall
be registered as of the date of filing. The date of filing is the
priority date for purposes of case control. Refugees or groups of
refugees may be selected from these lists in a manner that will best
support the policies and interests of the United States. The Attorney
General may adopt appropriate criteria for selecting the refugees and
assignment of processing priorities for each designated group based upon
such considerations as: Reuniting families, close association with the
United States, compelling humanitarian concerns, and public interest
factors.
Sec. 207.6 Control over approved refugee numbers.
Current numerical accounting of approved refugees is maintained for
each special group designated by the President. As refugee status is
authorized for each applicant, the total count is reduced
correspondingly from the appropriate group so that information is
readily available to indicate how many refugee numbers remain available
for issuance.
Sec. 207.7 Physical presence in the United States.
For the purpose of adjustment of status under section 209(a)(1) of
the Act, the required one year physical presence of the applicant in the
United States is computed from the date the applicant entered the United
States as a refugee.
Sec. 207.8 Termination of refugee status.
The refugee status of any alien (and of the spouse or child of the
alien) admitted to the United States under section 207 of the Act shall
be terminated by any district director in whose district the alien is
found if the alien was not a refugee within the meaning of section
101(a)(42) of the Act at the time of admission. The district director
shall notify the alien in writing of the Service's intent to terminate
the alien's refugee status. The alien shall have 30 days from the date
notice is served upon him/her or, delivered to his/her last known
address, to present written or oral evidence to show why the alien's
refugee status should not be terminated. There is no appeal under this
chapter from the termination of refugee status by the district director.
Upon termination of refugee status, the district director shall process
the alien under sections 235, 236, and 237 of the Act.
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION--Table of Contents
Sec.
208.1 General.
208.2 Jurisdiction.
208.3 Form of application.
208.4 Filing the application.
208.5 Special duties toward aliens in custody of the Service.
208.6 Disclosure to third parties.
208.7 Employment authorization.
208.8 Limitations on travel outside the United States.
208.9 Interview and procedure.
208.10 Failure to appear.
208.11 Comments from the Department of State.
208.12 Reliance on information compiled by other sources.
208.13 Establishing refugee status; burden of proof.
[[Page 157]]
208.14 Approval, denial, or referral of application.
208.15 Definition of ``firm resettlement.''
208.16 Entitlement to withholding of deportation.
208.17 Decision.
208.18 Review of decisions and appeal.
208.19 Motion to reopen or reconsider.
208.20 Approval and employment authorization.
208.21 Admission of asylee's spouse and children.
208.22 Effect on deportation proceedings.
208.23 Restoration of status.
208.24 Revocation of asylum or withholding of deportation.
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1252 note, 1252b, 1253,
1282 and 1283; 31 U.S.C. 9701; and 8 CFR part 2.
Source: 55 FR 30680, July 27, 1990, unless otherwise noted.
Sec. 208.1 General.
(a) This part shall apply to all applications for asylum or
withholding of deportation, whether before an asylum officer or an
immigration judge, that are filed on or after January 4, 1995 or pending
as of January 4, 1995. No application for asylum or withholding of
deportation that has been filed with a District Director or Immigration
Judge prior to January 4, 1995, may be reopened or otherwise
reconsidered under the provisions of this part except by motion granted
in the exercise of discretion by the Board of Immigration Appeals, an
Immigration Judge or an Asylum Officer for proper cause shown. Motions
to reopen or reconsider must meet the requirements of 8 CFR 3.2, 3.8,
3.22, 103.5, and 242.22 where applicable. The provisions of this part
shall not affect the finality or validity of any decision made by
District Directors, Immigration Judges, or the Board of Immigration
Appeals in any asylum or withholding of deportation case prior to
January 4, 1995. The provisions of this part relating to a person
convicted of an aggravated felony, as defined in section 101(a)(43) of
the Act, 8 U.S.C. 1101(a)(43), shall apply to applications for asylum or
withholding of deportation that are filed on or after November 29, 1990.
(b) There shall be attached to the Office of Refugees, Asylum, and
Parole such number of employees as the Commissioner, upon recommendation
from the Assistant Commissioner, shall direct. These shall include a
corps of professional asylum officers who are to receive special
training in international human rights law, conditions in countries of
origin, and other relevant national and international refugee laws. The
Assistant Commissioner shall be further responsible for general
supervision and direction in the conduct of the asylum program,
including evaluation of the performance of the employees attached to the
Office.
(c) As an ongoing component of the training required by paragraph
(b) of this section, the Assistant Commissioner, Office of Refugees,
Asylum and Parole, shall coordinate with the Department of State, and in
cooperation with other appropriate sources, to compile and disseminate
to Asylum Officers information concerning the persecution of persons in
other countries on account of race, religion, nationality, membership in
a particular social group, or political opinion, as well as other
information relevant to asylum determinations, and shall maintain a
documentation center with information on human rights conditions.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62297, Dec. 5, 1994]
Sec. 208.2 Jurisdiction.
(a) Except as provided in paragraph (b) of this section, the Office
of Refugees, Asylum, and Parole shall have initial jurisdiction over
applications for asylum and withholding of deportation filed by an alien
physically present in the United States or seeking admission at a port
of entry. An application that is complete within the meaning of
Sec. 208.3(c)(5) shall be either adjudicated or referred by asylum
officers under this part in accordance with Sec. 208.14. With the
exception of cases involving crewmen, stowaways, or aliens temporarily
excluded under section 235(c) of the Act, 8 U.S.C. 1225(c), which are
within the jurisdiction of an asylum officer pursuant to Sec. 253.1(f)
of this chapter, and aliens classified pursuant to section 101(a)(15)(S)
of the Act, an asylum officer shall not decide whether an alien is
entitled to withholding of deportation under section 243(h) of the Act,
8 U.S.C. 1253(h). An application that is incomplete within the meaning
[[Page 158]]
of Sec. 208.3(c)(5) shall be returned to the applicant.
(b) Immigration Judges shall have exclusive jurisdiction over asylum
applications filed by an alien who has been served notice of referral to
exclusion proceedings under part 236 of this chapter, or served an order
to show cause under part 242 of this chapter, after a copy of the
charging document has been filed with the Immigration Court. The
immigration judge shall make a determination on such claims. In cases
where the adjudication of an application has been referred in accordance
with Sec. 208.14, that application shall be forwarded with the charging
document to the Immigration Court by the Asylum Office. As a matter of
discretion, the immigration judge may permit the applicant to amend the
application, but any delay caused by such a request shall extend the
period within which the applicant may not apply for employment
authorization in accordance with Sec. 208.7(a).
[55 FR 30680, July 27, 1990, as amended at 59 FR 62298, Dec. 5, 1994; 60
FR 34090, June 30, 1995; 60 FR 44264, Aug. 25, 1995]
Sec. 208.3 Form of application.
(a) An application for asylum or withholding of deportation shall be
made on Form I-589 (Application for Asylum and for Withholding of
Deportation) and shall be submitted, together with any additional
supporting material, in triplicate, meaning the original plus two
copies. The applicant's spouse and children as defined in section 101 of
the Act, 8 U.S.C. 1101(a)(35) and 1101(b)(1), may be included on the
application if they are in the United States. One additional copy of the
principal applicant's I-589 must be submitted for each dependent listed
on the principal's application. An application shall be accompanied by
one completed Form FD-258 (Fingerprint Card) for every individual
included on the application who is 14 years of age or older. Forms I-589
and FD-258 are available from the INS and from the Immigration Court.
The application for asylum or withholding of deportation also shall be
accompanied by a total of two photographs of each applicant and two
photographs of each dependent included on the application.
(b) An application for asylum shall be deemed to constitute at the
same time an application for withholding of deportation, pursuant to
Secs. 208.16, 236.3, and 242.17 of this chapter.
(c) The application (Form I-589) shall be filed under the following
conditions and shall have the following consequences, as shall be noted
in the instructions on the application:
(1) Information provided in completing the application may be used
as a basis for the institution of, or as evidence in, exclusion
proceedings in accordance with part 236 of this chapter or deportation
proceedings in accordance with part 242 of this chapter;
(2) Information provided in the application may be used to satisfy
the burden of proof of the INS in establishing the applicant's
deportability under part 242 of this chapter;
(3) Mailing to the address provided by the applicant on the
application or the last change of address form (INS Form AR-11), if any,
received by the INS shall constitute adequate service of all notices or
other documents, except a Notice to Alien Detained for Hearing by an
Immigration Judge (Form I-122), service of which is governed by
Sec. 235.6 of this chapter, and an Order to Show Cause (Form I-221),
service of which is governed by section 242B(a)(1) of the Act, 8 U.S.C.
1252b(a)(1);
(4) The applicant and anyone other than an immediate relative who
assists the applicant in preparing the application must sign the
application under penalty of perjury. The applicant's signature is
evidence that the applicant is aware of the contents of the application.
A person other than an immediate relative who assists the applicant in
preparing the application also must provide his or her full mailing
address;
(5) An application for asylum and for withholding of deportation
that does not include a response to each of the questions contained in
the Form I-589, that is unsigned, or that is unaccompanied by the
required materials specified in paragraph (a) of this section is
incomplete. An application that is incomplete shall be returned by mail
to the applicant within 30 days of the receipt of the application by the
INS. The filing of an incomplete application shall not commence the 150-
day period
[[Page 159]]
after which the applicant may file an application for employment
authorization in accordance with Sec. 208.7(a)(1). If an application has
not been mailed to the applicant within 30 days, it shall be deemed
complete; and
(6) Knowing placement of false information on the application may
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to civil
penalties under section 274C of the Act, 8 U.S.C. 1324c.
[55 FR 30680, July 27, 1990, as amended at 56 FR 50812, Oct. 9, 1991; 59
FR 62298, Dec. 5, 1994; 60 FR 34090, June 30, 1995]
Sec. 208.4 Filing the application.
If no prior application for asylum or withholding of deportation has
been filed, an applicant shall file any initial application according to
the following procedures:
(a) With the Service Center by mail. Except as provided in
paragraphs (b) and (c) of this section, applications for asylum or
withholding of deportation shall be filed directly by mail with the
Service Center servicing the Asylum Office with jurisdiction over the
place of the applicant's residence or, in the case of an alien without a
United States residence, the applicant's current lodging or the land
border port of entry through which the alien seeks admission to the
United States. The addresses of the Service Centers shall be made
available through the local INS Information Unit. Upon receipt of the
application, except in the case of an alien who has been convicted of an
aggravated felony, the Service Center shall forward a copy of the
application to the Department of State.
(b) With the District Director. In the cases of:
(1) Stowaways who are presented to the Service,
(2) Crewmen who affirmatively approach a Service officer in order to
file for asylum, and
(3) Other aliens seeking admission at a seaport or airport of entry,
applications for asylum or withholding of deportation shall be accepted
by the District Director having jurisdiction over the port of entry.
The District Director shall immediately forward the application to the
asylum office with jurisdiction over that port of entry.
(c) With the Immigration Judge. Initial applications for asylum or
withholding of deportation are to be filed with the Immigration Court in
the following circumstances (and shall be treated as provided in part
236 or 242 of this chapter):
(1) During exclusion or deportation proceedings. If exclusion or
deportation proceedings have been commenced against an alien pursuant to
part 236 or 242 of this chapter, an initial application for asylum or
withholding of deportation from that alien shall be filed thereafter
with the Immigration Court.
(2) After completion of exclusion or deportation proceedings. If
exclusion or deportation proceedings have been completed, an initial
application for asylum or withholding of deportation shall be filed with
the Immigration Court having jurisdiction over the prior proceeding in
conjunction with a motion to reopen pursuant to 8 CFR 3.8, 3.22 and
242.22 where applicable.
(3) Pursuant to appeal to the Board of Immigration Appeals. If
jurisdiction over the proceedings is vested in the Board of Immigration
Appeals under part 3 of this chapter, an initial application for asylum
or withholding of deportation shall be filed with the Immigration Court
having jurisdiction over the prior proceeding in conjunction with a
motion to remand or reopen pursuant to 8 CFR 3.2 and 3.8 where
applicable.
(4) Any motion to reopen or remand accompanied by an initial
application for asylum filed under paragraph (b) of this section must
reasonably explain the failure to request asylum prior to the completion
of the exclusion or deportation proceeding.
[55 FR 30680, July 27, 1990, as amended at 56 FR 50812, Oct. 9, 1991; 59
FR 62298, Dec. 5, 1994; 60 FR 34090, June 30, 1995]
Sec. 208.5 Special duties toward aliens in custody of the Service.
(a) When an alien in the custody of the Service requests asylum or
withholding of deportation or expresses fear of persecution or harm upon
return to his country of origin or to agents thereof, the Service shall
make available the appropriate application forms
[[Page 160]]
for asylum and withholding of deportation and shall provide the
applicant with a list, if available, of persons or private agencies that
can assist in preparation of the application.
(b) Where possible, expedited consideration shall be given to
applications of aliens detained under 8 CFR part 235 or 242. Except as
provided in paragraph (c) of this section, such alien shall not be
deported or excluded before a decision is rendered on his initial asylum
or withholding of deportation application.
(c) A motion to reopen or an order to remand accompanied by an
application for asylum or withholding of deportation pursuant to
Sec. 208.4(b) shall not stay execution of a final order of exclusion or
deportation unless such a stay is specifically granted by the Board or
the Immigration Judge having jurisdiction over the motion.
Sec. 208.6 Disclosure to third parties.
(a) An application for asylum or withholding of deportation shall
not be disclosed, except as permitted by this section, or at the
discretion of the Attorney General, without the written consent of the
applicant. Names and other identifying details shall be deleted from
copies of asylum or withholding of deportation decisions maintained in
public reading rooms under Sec. 103.9 of this chapter.
(b) The confidentiality of other records kept by the Service
(including G-325A forms) that indicate that a specific alien has applied
for asylum or withholding of deportation shall also be protected from
disclosure. The Service will coordinate with the Department of State to
ensure that the confidentiality of these records is maintained when they
are transmitted to State Department 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) Adjudication of asylum or withholding of deportation
applications;
(ii) The defense of any legal action arising from the adjudication
of or failure to adjudicate the asylum or withholding of deportation
application;
(iii) The defense of any legal action of which the asylum or
withholding of deportation application is a part; or
(iv) Any United States Government investigation concerning any
criminal or civil matter; or
(2) Any Federal, state, or local court in the United States
considering any legal action:
(i) Arising from the adjudication of or failure to adjudicate the
asylum or withholding of deportation application; or
(ii) Arising from the proceedings of which the asylum or withholding
of deportation application is a part.
Sec. 208.7 Employment authorization.
(a)(1) An applicant for asylum who has not been convicted of an
aggravated felony shall be eligible pursuant to Secs. 274a.12(c)(8) and
274a.13(a) of this chapter to submit an Application for Employment
Authorization (Form I-765). The application shall be submitted no
earlier than 150 days after the date on which a complete application for
asylum submitted in accordance with Secs. 208.3 and 208.4 of this part
has been received. If an application for asylum has been returned as
incomplete in accordance with Sec. 208.3(c)(5), the 150-day period will
commence upon receipt by the INS of a complete application for asylum.
An applicant whose application for asylum 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. After the expiration
of the 150-day period, the INS shall have 30 days from the date of
filing of an initial application for employment authorization to grant
or deny that application. If the INS fails to adjudicate the employment
application within that period, the alien shall be eligible for interim
employment authorization under this chapter. If an application for
asylum is denied by an immigration judge or an asylum officer within the
30-day period, but prior to a decision on the application for employment
authorization, the application for employment authorization shall be
denied.
[[Page 161]]
(2) An applicant who has been convicted of an aggravated felony
shall not be granted employment authorization. In cases where an
applicant has previously received employment authorization and his or
her application for asylum or withholding of deportation is denied
because the applicant has been convicted of an aggravated felony, the
employment authorization shall terminate as of the date of the denial.
(3) For purposes of this paragraph (a), the time periods within
which the alien may not apply for employment authorization and within
which the INS must respond to any such application shall begin when the
alien has filed a complete asylum application in accordance with
Secs. 208.3 and 208.4. Any delay requested or caused by the applicant
shall not be counted as part of these time periods. Such time periods
also shall be extended by the equivalent of the time between issuance of
a request for evidence under Sec. 103.2(b)(8) of this chapter and the
receipt of the applicant's response to such request.
(4) An applicant who fails without good cause to appear for a
scheduled interview before an asylum officer or a hearing before an
immigration judge shall not be granted employment authorization pursuant
to Sec. 274a.12(c)(8) of this chapter.
(5) The provisions of paragraphs (a) (1), (3), and (4) of this
section shall apply to persons who have filed an application for asylum
or withholding of deportation on or after January 4, 1995.
(b) Subject to the restrictions in paragraph (b)(3) of this section,
employment authorization shall be renewable, in increments to be
determined by the Commissioner, for the continuous period of time
necessary for the asylum officer or immigration judge to decide the
asylum application and, if necessary, for final adjudication of any
administrative or judicial review.
(1) If the asylum application is denied by the Asylum Officer, the
employment authorization shall terminate at the expiration of the
employment authorization document or sixty 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 upon judicial review of the asylum denial,
the employment authorization terminates upon the expiration of the
employment authorization document.
(3) If an application for asylum filed on or after November 29, 1990
is denied pursuant to Sec. 208.14(c)(4) or Sec. 208.16(c)(2)(ii) because
the applicant has been convicted of an aggravated felony, any employment
authorization previously issued under Sec. 208.7(a) shall automatically
terminate as of the date of the denial.
(c) In order for employment authorization to be renewed under this
section, the alien must provide the INS, in accordance with the
instructions on or attached to the employment authorization application,
with a Form I-765, with fee and proof that he has continued to pursue
his application for asylum before an immigration judge or sought
administrative or judicial review. Pursuit of an application for asylum,
for purposes of employment authorization is established by presenting to
the INS one of the following, depending on the stage of the alien's
immigration proceedings:
(1) If the alien's case is pending before the immigration judge, and
the alien wishes to pursue an application for asylum, a copy of the
asylum denial and the Order to Show Cause (Form I-221/I-221S) or Notice
to Applicant for Admission Detained for Hearing before Immigration Judge
(Form I-122) placing the alien in proceedings after asylum has been
denied;
(2) If the immigration judge has denied asylum a copy of the Notice
of Appeal (EOIR-26) date stamped by the Immigration Court 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 has dismissed the alien's appeal of the denial of
asylum, a copy of the petition for judicial review or for habeas corpus
pursuant to section 106 of the Immigration and Nationality Act, date
stamped by the appropriate court.
(d) In order for employment authorization to be renewed before its
expiration, applications for renewal must be received by the Service
ninety days
[[Page 162]]
prior to expiration of the employment authorization.
(e) Upon the denied applicant's request, the INS may grant further
employment authorization pursuant to 8 CFR 274a.12(c)(12).
[55 FR 30680, July 27, 1990, as amended at 58 FR 12148, Mar. 3, 1993; 59
FR 62299, Dec. 5, 1994; 60 FR 21974, 21975, May 4, 1995; 60 FR 34090,
June 30, 1995]
Sec. 208.8 Limitations on travel outside the United States.
An applicant who leaves the United States pursuant to advance parole
granted under 8 CFR 212.5(e) shall be presumed to have abandoned his
application under this section if he returns to the country of claimed
persecution unless the applicant is able to establish compelling reasons
for such return.
[59 FR 62299, Dec. 5, 1994]
Sec. 208.9 Interview and procedure.
(a) For each application for asylum or withholding of deportation
that is complete within the meaning of Sec. 208.3(c)(5) and that is
within the jurisdiction of the Office of Refugees, Asylum, and Parole,
an interview shall be conducted by an asylum officer, either at the time
of the application or at a later date to be determined by the Asylum
Office. Applications within the jurisdiction of an immigration judge are
to be adjudicated under the rules of procedure established by the
Executive Office for Immigration Review in parts 3, 236, and 242 of this
chapter.
(b) The asylum officer shall conduct the interview in a
nonadversarial manner and, 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 the form of relief sought. At the time of the interview,
the applicant must provide complete information regarding his or her
identity, including name, date and place of birth, and nationality, and
may be required to register this identity electronically or through any
other means designated by the Attorney General. The applicant may have
counsel or a representative present, may present witnesses, and may
submit affidavits of witnesses and other evidence.
(c) The asylum officer shall have authority to administer oaths,
verify the identity of the applicant (including through the use of
electronic means), verify the identity of any interpreter, present and
receive evidence, and question the applicant and any witnesses.
(d) Upon completion of the interview, the applicant or his
representative shall have an opportunity to make a statement or comment
on the evidence presented. The asylum officer, in his or her discretion,
may limit the length of such statement or comment and may require their
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. An applicant's failure to appear to receive and acknowledge
receipt of the decision shall be treated as delay caused by the
applicant for purposes of Sec. 208.7(a)(3) and shall extend the period
within which the applicant may not apply for employment authorization by
the number of days until the applicant does appear to receive and
acknowledge receipt of the decision or until the applicant appears
before an immigration judge in response to the issuance of a charging
document under Sec. 208.14(b).
(e) The asylum officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview. As a
matter of discretion, the asylum officer may grant the applicant a brief
extension of time following an interview during which the applicant may
submit additional evidence. Any such extension shall extend by
equivalent time the periods specified by Sec. 208.7 for the filing and
adjudication of employment authorization applications.
(f) The application, all supporting information provided by the
applicant, any comments submitted by the Department of State, or by the
Service, and any other information considered
[[Page 163]]
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 INS, a competent interpreter fluent
in both English and the applicant's native language. The interpreter
must be at least 18 years of age. Neither the applicant's attorney or
representative of record nor a witness testifying on the applicant's
behalf may serve as the applicant's interpreter. Failure without good
cause to comply with this paragraph may be considered a failure without
good cause to appear for the interview for purposes of Sec. 208.10.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62299, Dec. 5, 1994]
Sec. 208.10 Failure to appear.
The failure without good cause of an applicant to appear for a
scheduled interview under Sec. 208.9(a) may be deemed to constitute a
waiver of the right to an interview with an asylum officer or, in the
case of an alien crewman, stowaway, alien temporarily excludable under
section 235(c) of the Act, 8 U.S.C. 1225, or alien currently in lawful
immigration status, may be deemed to constitute an abandonment of the
application. Failure to appear shall be excused if the notice of the
interview was not mailed to the applicant's current address and such
address had been provided to the Office of Refugees, Asylum, and Parole
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. Such failure to appear may be excused for other serious
reasons in the discretion of the asylum officer.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62300, Dec. 5, 1994]
Sec. 208.11 Comments from the Department of State.
(a) At its option, the Department of State may provide detailed
country conditions information addressing the specific conditions
relevant to eligibility for refugee status according to the grounds
specified in section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42). Any
such information relied upon by an immigration judge in deciding a claim
for asylum or withholding of deportation shall be made part of the
record and the parties shall be provided an opportunity to review and
respond to such information prior to the issuance of a decision.
(b) At its option, the Department of State also may comment on an
application it receives pursuant to Sec. 208.4(a), Sec. 236.3, or
Sec. 242.17 of this chapter by providing:
(1) An assessment of the accuracy of the applicant's assertions
about conditions in his or her country of nationality or habitual
residence and his or her particular situation;
(2) Information about whether persons who are similarly situated to
the applicant are persecuted in his or her country of nationality or
habitual residence and the frequency of such persecution;
(3) Such other information as it deems relevant.
(c) Asylum officers and immigration judges may request specific
comments from the Department of State regarding individual cases or
types of claims under consideration, or such other information as they
deem appropriate. Any such comments shall be made part of the record.
Unless the comments are classified under Executive Order 12356 (3 CFR,
1982 Comp., p. 166), the applicant shall be provided an opportunity to
review and respond to such comments prior to the issuance of an adverse
decision.
[59 FR 62300, Dec. 5, 1994]
Sec. 208.12 Reliance on information compiled by other sources.
(a) In deciding applications for asylum or withholding of
deportation, the asylum officer may rely on material provided by the
Department of State, the Office of Refugees, Asylum, and Parole, the
district director having jurisdiction over the place of the applicant's
residence or the port of entry from which the applicant seeks admission
to the United States, or other credible sources, such as international
organizations, private voluntary agencies, or academic institutions.
[[Page 164]]
(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.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62300, Dec. 5, 1994]
Sec. 208.13 Establishing refugee status; burden of proof.
(a) The burden of proof is on the applicant for asylum to establish
that he is a refugee as defined in section 101(a)(42) of the Act. The
testimony of the applicant, if credible in light of general conditions
in the applicant's country of nationality or last habitual residence,
may be sufficient to sustain the burden of proof without corroboration.
(b) The applicant may qualify as a refugee either because he has
suffered actual past persecution or because he has a well-founded fear
of future persecution.
(1) Past persecution. An applicant shall be found to be a refugee on
the basis of past persecution if he can establish that he has suffered
persecution in the past in his country of nationality or last habitual
residence on account of race, religion, nationality, membership in a
particular social group, or political opinion, and that he is unable or
unwilling to return to or avail himself of the protection of that
country owing to such persecution.
(i) If it is determined that the applicant has established past
persecution, he shall be presumed also to have a well-founded fear of
persecution unless a preponderance of the evidence establishes that
since the time the persecution occurred conditions in the applicant's
country of nationality or last habitual residence have changed to such
an extent that the applicant no longer has a well-founded fear of being
persecuted if he were to return.
(ii) An application for asylum shall be denied if the applicant
establishes past persecution under this paragraph but is determined not
also to have a well-founded fear of future persecution under paragraph
(b)(2) of this section, unless it is determined that the applicant has
demonstrated compelling reasons for being unwilling to return to his
country of nationality or last habitual residence arising out of the
severity of the past persecution. If the applicant demonstrates such
compelling reasons, he may be granted asylum unless such a grant is
barred by paragraph (c) of this section or Sec. 208.14(d).
(2) Well-founded fear of persecution. An applicant shall be found to
have a well-founded fear of persecution if he can establish first, that
he has a fear of persecution in his country of nationality or last
habitual residence on account of race, religion, nationality, membership
in a particular social group, or political opinion, second, that there
is a reasonable possibility of actually suffering such persecution if he
were to return to that country, and third, that he is unable or
unwilling to return to or avail himself of the protection of that
country because of such fear.
(i) In evaluating whether the applicant has sustained his burden of
proving that he has a well-founded fear of persecution, the Asylum
Officer or Immigration Judge shall not require the applicant to provide
evidence that he would be singled out individually for persecution if:
(A) He establishes that there is a pattern or practice in his
country of nationality or last habitual residence of persecution of
groups of persons similarly situated to the applicant on account of
race, religion, nationality, membership in a particular social group, or
political opinion; and
(B) He establishes his own inclusion in and identification with such
group of persons such that his fear of persecution upon return is
reasonable.
(ii) The asylum officer or immigration judge shall give due
consideration to evidence that the government of the applicant's country
of nationality or last habitual residence persecutes its nationals or
residents if they leave the country without authorization or seek asylum
in another country.
(c) An applicant shall not qualify as a refugee if he 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. If the evidence indicates
that the applicant engaged in such conduct, he shall have the burden
[[Page 165]]
of proving by a preponderance of the evidence that he did not so act.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62300, Dec. 5, 1994]
Sec. 208.14 Approval, denial, or referral of application.
(a) 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 unless otherwise prohibited by paragraph (d) of
this section.
(b) (1) An asylum officer may grant asylum in the exercise of
discretion to an applicant who qualifies as a refugee under section
101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), unless otherwise prohibited
by paragraph (d) of this section.
(2) In the case of an alien (other than a crewman, stowaway, or
alien temporarily excluded under section 235(c) of the Act, 8 U.S.C.
1225(c)) who shall appear to be deportable under section 241 of the Act,
8 U.S.C. 1251, or excludable under section 212 of the Act, 8 U.S.C.
1182, the asylum officer shall either grant asylum or refer the
application to an immigration judge for adjudication in deportation or
exclusion proceedings commenced in accordance with part 236 or part 242
of this chapter. An asylum officer may refer such an application after
an interview conducted in accordance with Sec. 208.9 or if, in
accordance with Sec. 208.10, the applicant is deemed to have waived his
or her right to an interview.
(3) In the case of a crewman, stowaway, or alien temporarily
excluded under section 235(c) of the Act, 8 U.S.C. 1225(c), the asylum
officer may grant or deny asylum in accordance with the procedures set
forth in Sec. 253.1(f) of this chapter. In addition, where an
application filed by such a person is not granted, the asylum officer
shall issue a Notice of Intent to Deny to the applicant stating the
reasons why the application would be denied. The applicant shall be
given a period not less than 10 days to rebut the Notice of Intent to
Deny.
(4) In the case of a person other than described in paragraphs (b)
(2) and (3) of this section, the asylum officer may grant or deny
asylum.
(5) No application for asylum or withholding of deportation shall be
subject to denial under the authority contained in Sec. 103.2(b) of this
chapter.
(c) If the evidence indicates that one or more of the grounds for
denial of asylum enumerated in paragraph (d) of this section may apply,
the applicant shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply.
(d) Mandatory denials. An application for asylum shall be denied if:
(1) The alien, having been convicted by a final judgment of a
particularly serious crime in the United States, constitutes a danger to
the community;
(2) The applicant has been firmly resettled within the meaning of
Sec. 208.15;
(3) There are reasonable grounds for regarding the alien as a danger
to the security of the United States; or
(4) The alien has been convicted of an aggravated felony, as defined
in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43).
(e) Discretionary denials. An application from an alien may be
denied in the discretion of the Attorney General if the alien can and
will be deported or returned to a country through which the alien
traveled en route to the United States and in which the alien would not
face harm or persecution and would have access to a full and fair
procedure for determining his or her asylum claim in accordance with a
bilateral or multilateral arrangement with the United States governing
such matter.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62300, Dec. 5, 1994]
Sec. 208.15 Definition of ``firm resettlement.''
An alien is considered to be firmly resettled if, prior to arrival
in the United States, he entered into another nation with, or while in
that nation received, an offer of permanent resident status,
citizenship, or some other type of permanent resettlement unless he
establishes:
(a) That his entry into that nation was a necessary consequence of
his flight from persecution, that he remained in that nation only as
long as was necessary to arrange onward travel, and that he did not
establish significant ties in that nation; or
[[Page 166]]
(b) That the conditions of his residence in that nation were so
substantially and consciously restricted by the authority of the country
of refuge that he was not in fact resettled. In making his
determination, the Asylum Officer or Immigration Judge shall consider
the conditions under which other residents of the country live, the type
of housing made available to the refugee, whether permanent or
temporary, the types and extent of employment available to the refugee,
and the extent to which the refugee received permission to hold property
and to enjoy other rights and privileges, such as travel documentation
including a right of entry and/or reentry, education, public relief, or
naturalization, ordinarily available to others resident in the country.
Sec. 208.16 Entitlement to withholding of deportation.
(a) Consideration of application for withholding of deportation.
With the exception of cases that are within the jurisdiction of an
asylum officer pursuant to Sec. 253.1(f) of this chapter, and aliens
classified pursuant to section 101(a)(15)(S) of the Act, an asylum
officer shall not decide whether an alien is entitled to withholding of
deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). If the
application for asylum is granted, no decision on withholding of
deportation will be made unless and until the grant of asylum is later
revoked or terminated, and exclusion or deportation proceedings at which
a new request for withholding of deportation is made are commenced. In
such proceedings, an immigration judge may adjudicate both a renewed
asylum claim and a request for withholding of deportation simultaneously
whether or not asylum is granted.
(b) Eligibility for withholding of deportation; burden of proof. The
burden of proof is on the applicant for withholding of deportation to
establish that his life or freedom would be threatened in the proposed
country of deportation on account of race, religion, nationality,
membership in a particular social group, or political opinion. The
testimony of the applicant, if credible in light of general conditions
in the applicant's country of nationality or last habitual residence,
may be sufficient to sustain the burden of proof without corroboration.
The evidence shall be evaluated as follows:
(1) The applicant's life or freedom shall be found to be threatened
if it is more likely than not that he would be persecuted on account of
race, religion, nationality, membership in a particular social group, or
political opinion.
(2) If the applicant is determined to have suffered persecution in
the past such that his life or freedom was threatened in the proposed
country of deportation on account of race, religion, nationality,
membership in a particular social group, or political opinion, it shall
be presumed that his life or freedom would be threatened on return to
that country unless a preponderance of the evidence establishes that
conditions in the country have changed to such an extent that it is no
longer more likely than not that the applicant would be so persecuted
there.
(3) In evaluating whether the applicant has sustained the burden of
proving that his 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 would be singled out individually for such persecution if:
(i) He establishes that there is a pattern or practice in the
country of proposed deportation of persecution of groups of persons
similarly situated to the applicant on account of race, religion,
nationality, membership in a particular social group, or political
opinion; and
(ii) He establishes his own inclusion in and identification with
such group of persons such that it is more likely than not that his life
or freedom would be threatened upon return.
(4) In addition, the asylum officer or immigration judge shall give
due consideration to evidence that the life or freedom of nationals or
residents of the country of claimed persecution is threatened if they
leave the country without authorization or seek asylum in another
country.
(c) Approval or denial of application. The following standards shall
govern
[[Page 167]]
approval or denial of applications for withholding of deportation:
(1) Subject to paragraph (c)(2) of this section, an application for
withholding of deportation to a country of proposed deportation shall be
granted if the applicant's eligibility for withholding is established
pursuant to paragraph (b) of this section.
(2) An application for withholding of deportation shall be denied
if:
(i) The alien 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) The alien, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of the
United States. An alien who has been convicted of an aggravated felony
shall be considered to have committed a particularly serious crime and
to constitute a danger to the community of the United States;
(iii) There are serious reasons for considering that the alien has
committed a serious nonpolitical crime outside the United States prior
to arrival in the United States; or
(iv) There are reasonable grounds for regarding the alien as a
danger to the security of the United States.
(3) If the evidence indicates that one or more of the grounds for
denial of withholding of deportation enumerated in paragraph (c)(2) of
this section apply, the applicant shall have the burden of proving by a
preponderance of the evidence that such grounds do not apply.
(4) In the event that an applicant is denied asylum solely in the
exercise of discretion, and the applicant is subsequently granted
withholding of deportation under this section, thereby effectively
precluding admission of the applicant's spouse or minor children
following to join him, the denial of asylum shall be reconsidered.
Factors to be so considered will include the reasons for the denial and
reasonable alternatives available to the applicant such as reunification
with his spouse or minor children in a third country.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62301, Dec. 5, 1994; 60
FR 44264, Aug. 25, 1995]
Sec. 208.17 Decision.
The decision of an asylum officer to grant or to deny asylum or
withholding of deportation, or to refer an application in accordance
with Sec. 208.14(b), shall be communicated in writing to the applicant,
to the Assistant Commissioner, Refugees, Asylum, and Parole, and to the
district director having jurisdiction over the place of the applicant's
residence or over the port of entry from which the applicant sought
admission to the United States. A letter communicating denial of the
application shall state why asylum or withholding of deportation was
denied. The letter also shall contain an assessment of the applicant's
credibility, unless the application was denied pursuant to
Sec. 208.14(d)(4) or Sec. 208.16(c)(2)(ii).
Pursuant to Sec. 208.9(d), an applicant must appear in person to
receive and to acknowledge receipt of the decision.
[59 FR 62301, Dec. 5, 1994]
Sec. 208.18 Review of decisions and appeal.
(a) The Assistant Commissioner, Office of Refugees, Asylum, and
Parole, may review decisions by asylum officers. Parties shall have no
right of appeal to or right to appear before the Assistant Commissioner
in the course of such review.
(b) Except as provided in Sec. 253.1(f) of this chapter, there shall
be no appeal from a decision of an asylum officer. In a case referred to
an immigration judge in accordance with Sec. 208.14(b), the supervisory
asylum officer, pursuant to the authority set forth in Secs. 235.6(a)
and 242.1(a) of this chapter, shall issue respectively a Notice to
Applicant for Admission Detained for Hearing Before Immigration Judge
(Form I-122) or an Order to Show Cause (Form I-221).
(c) A denial of asylum or withholding of deportation may only be
reviewed by the Board of Immigration Appeals in conjunction with an
appeal taken under 8 CFR part 3.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62301, Dec. 5, 1994]
Sec. 208.19 Motion to reopen or reconsider.
(a) A proceeding in which asylum or withholding of deportation was
denied
[[Page 168]]
may be reopened or a decision from such a proceeding reconsidered for
proper cause upon motion pursuant to the requirements of 8 CFR 3.2,
3.23, 103.5, and 242.22 where applicable.
(b) A motion to reopen or reconsider shall be filed:
(1) With the District Director having jurisdiction over the location
at which the prior determination was made who shall forward the motion
immediately to an Asylum Officer; or
(2) With the Immigration Court having jurisdiction over the prior
proceeding.
[55 FR 30680, July 27, 1990, as amended at 60 FR 34090, June 30, 1995;
61 FR 18909, Apr. 29, 1996]
Sec. 208.20 Approval and employment authorization.
An alien granted asylum and eligible derivative family members are
authorized to be employed in the United States pursuant to
Sec. 274a.12(a)(5) of this chapter and if intending to be employed, must
apply to the INS for a document evidencing such authorization. The INS
shall issue such document within 30 days of the receipt of the
application therefor.
[59 FR 62301, Dec. 5, 1994]
Sec. 208.21 Admission of asylee's spouse and children.
(a) Eligibility. A spouse, as defined in section 101(a)(35) of the
Act, 8 U.S.C. 1101(a)(35), or child, as defined in section 101(b)(1)(A),
(B), (C), (D), (E), or (F) of the Act, 8 U.S.C. 1101(b)(1)(A), (B), (C),
(D), (E), or (F), also may be granted asylum if accompanying or
following to join the principal alien who was granted asylum, unless it
is determined that:
(1) The spouse or child ordered, incited, assisted, or otherwise
participated in the persecution of any persons on account of race,
religion, nationality, membership in a particular social group, or
political opinion;
(2) The spouse or child, having been convicted by a final judgment
of a particularly serious crime in the United States, constitutes a
danger to the community of the United States;
(3) The spouse or child has been convicted of an aggravated felony,
as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43); or
(4) There are reasonable grounds for regarding the spouse or child a
danger to the security of the United States.
(b) Relationship. The relationship of spouse and child as defined in
section 101(b)(1) of the Act must have existed at the time the principal
alien's asylum application was approved, except for children born to or
legally adopted by the principal alien and spouse after approval of the
principal alien's asylum application.
(c) Spouse or child in the United States. When a spouse or child of
an alien granted asylum is in the United States but was not included in
the principal alien's application, the principal alien may request
asylum for the spouse or child by filing Form I-730 with the District
Director having jurisdiction over his place of residence, regardless of
the status of that spouse or child in the United States.
(d) Spouse or child outside the United States. When a spouse or
child of an alien granted asylum is outside the United States, the
principal alien may request asylum for the spouse or child by filing
form I-730 with the District Director, setting forth the full name,
relationship, date and place of birth, and current location of each such
person. Upon approval of the request, the District Director shall notify
the Department of State, which will send an authorization cable to the
American Embassy or Consulate having jurisdiction over the area in which
the asylee's spouse or child is located.
(e) Denial. If the spouse or child is found to be ineligible for the
status accorded under section 208(c) of the Act, a written notice
explaining the basis for denial shall be forwarded to the principal
alien. No appeal shall lie from this decision.
(f) Burden of proof. To establish the claim of relationship of
spouse or child as defined in section 101(b)(1) of the Act, evidence
must be submitted with the request as set forth in part 204 of this
chapter. Where possible this will consist of the documents specified in
8 CFR 204.2(c)(2) and (c)(3). The burden of proof is on the principal
alien to establish by a preponderance of the evidence that any person on
whose behalf he is
[[Page 169]]
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.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62301, Dec. 5, 1994]
Sec. 208.22 Effect on deportation proceedings.
(a) An alien who has been granted asylum may not be excluded or
deported unless his asylum status is revoked pursuant to Sec. 208.24. An
alien in exclusion or deportation proceedings who is granted withholding
of deportation may not be deported to the country as to which his
deportation is ordered withheld unless withholding of deportation is
revoked pursuant to Sec. 208.24.
(b) When an alien's asylum status or withholding of deportation is
revoked under this chapter, he shall be placed in exclusion or
deportation proceedings. Exclusion or deportation proceedings may be
conducted concurrently with a revocation hearing scheduled under
Sec. 208.24.
Sec. 208.23 Restoration of status.
An alien who was maintaining his nonimmigrant status at the time of
filing an application for asylum or withholding of deportation may
continue or be restored to that status, if it has not expired,
notwithstanding the denial of asylum or withholding of deportation.
Sec. 208.24 Revocation of asylum or withholding of deportation.
(a) Revocation of asylum by the Assistant Commissioner, Office of
Refugees, Asylum, and Parole. Upon motion by the Assistant Commissioner
and following an interview by an asylum officer, the grant to an alien
of asylum made under the jurisdiction of an asylum officer or a district
director may be revoked if, by a preponderance of the evidence, the INS
establishes that:
(1) The alien no longer has a well-founded fear of persecution upon
return due to a change of conditions in the alien's country of
nationality or habitual residence;
(2) There is a showing of fraud in the alien's application such that
he was not eligible for asylum at the time it was granted; or
(3) The alien has committed any act that would have been grounds for
denial of asylum under Sec. 208.14(d).
(b) Revocation of withholding of deportation by the Assistant
Commissioner, Office of Refugees, Asylum, and Parole. Upon motion by the
Assistant Commissioner and following an interview by an asylum officer,
the grant to an alien of withholding of deportation made under the
jurisdiction of an asylum officer or a district director may be revoked
if, by a preponderance of the evidence, the INS establishes that:
(1) The alien is no longer entitled to withholding of deportation
due to a change of conditions in the country to which deportation was
withheld;
(2) There is a showing of fraud in the alien's application such that
he was not eligible for withholding of deportation at the time it was
granted;
(3) The alien has committed any other act that would have been
grounds for denial of withholding of deportation under
Sec. 208.16(c)(2).
(c) Notice to applicant. Upon motion by the Assistant Commissioner
to revoke asylum status or withholding of deportation, the alien shall
be given notice of intent to revoke, with the reason therefore, at least
thirty days before the interview by the asylum officer. The alien shall
be provided the opportunity to present evidence tending to show that he
or she is still eligible for asylum or withholding of deportation. If
the asylum officer determines that the alien is no longer eligible for
asylum or withholding of deportation, the alien shall be given written
notice that asylum status or withholding of deportation along with
employment authorization are revoked. Notwithstanding any provision of
this section, an alien granted asylum or withholding of deportation who
is subject to revocation because he or she has been convicted of an
aggravated felony is not entitled to an interview before an asylum
officer.
(d) Revocation of derivative status. The termination of asylum
status for a person who was the principal applicant
[[Page 170]]
shall result in termination of the asylum status of a spouse or child
whose status was based on the asylum application of the principal.
(e) Reassertion of asylum claim. A revocation of asylum or
withholding of deportation pursuant to paragraphs (a) or (b) of this
section shall not preclude an applicant from reasserting an asylum or
withholding of deportation claim in any subsequent exclusion or
deportation proceeding.
(f) Revocation of asylum or withholding of deportation by the
Executive Office for Immigration Review. An Immigration Judge or the
Board of Immigration Appeals may reopen a case pursuant to Sec. 3.2 or
Sec. 242.22 of this chapter for the purpose of revoking a grant of
asylum or withholding of deportation made under the exclusive
jurisdiction of an Immigration Judge. In such a reopened proceeding, the
Service must similarly establish by the appropriate standard of evidence
one or more of the grounds set forth in paragraphs (a) or (b) of this
section. Any revocation under this paragraph may occur in conjunction
with an exclusion or deportation proceeding.
[55 FR 30680, July 27, 1990, as amended at 59 FR 62301, Dec. 5, 1994]
PART 209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED ASYLUM--Table of Contents
Sec.
209.1 Admission for permanent residence after one year.
209.2 Adjustment of status of alien granted asylum.
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, and 1159; 31 U.S.C.
9701.
Sec. 209.1 Admission for permanent residence after one year.
(a) Eligibility. (1) Every alien in the United States as a refugee
under Sec. 207 of this chapter whose status has not been terminated, is
required to appear before an immigration officer one year after entry to
determine his/her admissibility under sections 235, 236, and 237 of the
Act. The applicant shall be examined under oath to determine
admissibility. If the applicant is found to be admissible, he/she shall
be inspected and admitted for lawful permanent residence as of the date
of the alien's arrival in the United States. If the applicant is
determined to be inadmissible, he/she shall be informed that he/she may
renew the request for admission to the United States as an immigrant in
exclusion proceedings under section 236 of the Act. The provisions of
this section shall provide the sole and exclusive procedure for
adjustment of status by a refugee admitted under section 207 of the Act,
whose application is based on his/her refugee status.
(2) Every alien processed by the Immigration and Naturalization
Service abroad and paroled into the United States as a refugee after
April 1, 1980, and before May 18, 1980 shall be considered as having
entered the United States as a refugee under section 207(a) of the Act.
(b) Processing Application. One year after arrival in the United
States, every refugee entrant shall be notified to appear for
examination before an immigration officer. Each applicant shall be
examined under oath to determine eligibility for permanent residence. If
the refugee entrant has been physically present in the United States for
at least one year, forms FD-258 (Applicant Card) and G-325A
(Biographical Information) will be processed. Unless there were medical
grounds for exclusion at the time of arrival, a United States Public
Health Service medical examination is not required. If the alien is
found admissible after inspection under section 209(a) of the Act, he/
she shall be processed for issuance of Form I-551 (Alien Registration
Receipt Card).
[46 FR 45119, Sept. 10, 1981]
Sec. 209.2 Adjustment of status of alien granted asylum.
The provisions of this section shall be the sole and exclusive
procedure for adjustment of status by an asylee admitted under section
208 of the Act whose application is based on his or her asylee status.
(a) Eligibility. (1) Except as provided in paragraph (a)(2) of this
section, the status of any alien who has been granted asylum in the
United States may be adjusted by the district director to that of an
alien lawfully admitted for
[[Page 171]]
permanent residence, provided the alien:
(i) Applies for such adjustment;
(ii) Has been physically present in the United States for at least
one year after having been granted asylum;
(iii) Continues to be a refugee within the meaning of section
101(a)(42) of the Act, or is the spouse or child of a refugee;
(iv) Has not been firmly resettled in any foreign country; and
(v) Is admissible to the United States as an immigrant under the Act
at the time of examination for adjustment without regard to paragraphs
(4), (5)(A), (5)(B), and (7)(A)(i) of section 212(a) of the Act, and
(vi) has a refugee number available under section 207(a) of the Act.
If the application for adjustment filed under this part exceeds the
refugee numbers available under section 207(a) of the Act for the fiscal
year, a waiting list will be established on a priority basis by the date
the application was properly filed.
(2) An alien, who was granted asylum in the United States prior to
November 29, 1990 (regardless of whether or not such asylum has been
terminated under section 208(b) of the Act), and is no longer a refugee
due to a change in circumstances in the foreign state where he or she
feared persecution, may also have his or her status adjusted by the
district director to that of an alien lawfully admitted for permanent
residence even if he or she is no longer able to demonstrate that he or
she continues to be a refugee within the meaning of section 10l(a)(42)
of the Act, or to be a spouse or child of such a refugee or to have been
physically present in the United States for at least one year after
being granted asylum, so long as he or she is able to meet the
requirements noted in paragraphs (a)(1)(i), (iv), and (v) of this
section. Such persons are exempt from the numerical limitations of
section 209(b) of the Act. However, the number of aliens who are natives
of any foreign state who may adjust status pursuant to this paragraph in
any fiscal year shall not exceed the difference between the per country
limitation established under section 202(a) of the Act and the number of
aliens who are chargeable to that foreign state in the fiscal year under
section 202 of the Act. Aliens who applied for adjustment of status
under section 209(b) of the Act before June 1, 1990, are also exempt
from its numerical limitation without any restrictions.
(b) Inadmissible Alien. An applicant who is inadmissible to the
United States under section 212(a) of the Act, may, under section 209(c)
of the Act, have the grounds of inadmissibility waived by the district
director (except for those grounds under paragraphs (27), (29), (33),
and so much of (23) as relates to trafficking in narcotics) for
humanitarian purposes, to assure family unity, or when it is otherwise
in the public interest. An application for the waiver may be filed on
Form I-602 (Application by Refugee for Waiver of Grounds of
Excludability) with the application for adjustment. An applicant for
adjustment who has had the status of an exchange alien nonimmigrant
under section 101(a)(15)(J) of the Act, and who is subject to the
foreign resident requirement of section 212(e) of the Act, shall be
eligible for adjustment without regard to the foreign residence
requirement.
(c) Application. An application for the benefits of section 209(b)
of the Act may be filed on Form I-485, with fee, with the district
director having jurisdiction over the applicant's place of residence. A
separate application must be filed by each alien, and if the alien is 14
years or older it must be accompanied by a completed Form G-325A
(Biographical Information) and Form FD-258 (Applicant Card). Except as
provided in paragraph (a)(2) of this section, the application must also
be supported by evidence that the applicant has been physically present
in the United States for at least one year. If an alien has been placed
in deportation or exclusion proceedings, the application can be filed
and considered only in proceedings under section 242 or 236 of the Act.
(d) Medical Examination. Upon acceptance of the application, the
applicant shall submit to an examination by a selected civil surgeon as
required by sections 221(d) and 234 of the Act. The report setting forth
the findings of the mental and physical condition of the
[[Page 172]]
applicant shall be incorporated into the record.
(e) Interview. Each applicant for adjustment of status under this
part shall be interviewed by an immigration officer. The interview may
be waived for a child under 14 years of age.
(f) Decision. The applicant shall be notified of the decision, and
if the application is denied, of the reasons for denial. No appeal shall
lie from the denial of an application by the district director but such
denial will be without prejudice to the alien's right to renew the
application in proceedings under parts 242 and 236 of this chapter. If
the application is approved, the district director shall record the
alien's admission for lawful permanent residence as of the date one year
before the date of the approval of the application, but not earlier than
the date of the approval for asylum in the case of an applicant approved
under paragraph (a)(2) of this section.
[46 FR 45119, Sept. 10, 1981, as amended at 56 FR 26898, June 12, 1991;
57 FR 42883, 42884, Sept. 17, 1992; 58 FR 12149, Mar. 3, 1993]
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 Alien Registration Receipt Card.
(c) Application period. The 18-month period during which an
application for adjustment of status to that of a temporary resident may
be accepted, begins on June 1, 1987, and ends on November 30, 1988.
(d) Complete application. A complete application consists of an
executed Form I-700, Application for Temporary Resident Status as a
Special Agricultural Worker, evidence of qualifying agricultural
employment and residence, a report of medical examination, and the
prescribed number of photographs. An application is not complete until
the required fee has been paid and recorded.
(e) Determination process. Determination process as used in this
part means reviewing and evaluating all information provided pursuant to
an application for the benefit sought and making a determination
thereon. If fraud, willful misrepresentation of a material fact, a false
writing or document, or any other activity prohibited by section
210(b)(7) of the Act is discovered during the determination process the
Service shall refer the case to a U.S. Attorney for possible
prosecution.
(f) Family unity. The term family unity as used in section
210(c)(2)(B)(i) of the Act means maintaining the family group without
deviation or change. The family group shall include the spouse,
unmarried minor children who are not members of some other household,
and parents who reside regularly in the household of the family group.
(g) Group 1. Special agricultural workers who have performed
qualifying agricultural employment in the United States for at least 90
man-days in the aggregate in each of the twelve-month periods ending on
May 1, 1984, 1985, and 1986, and who have resided in the United States
for six months in the aggregate in each of those twelve-month periods.
(h) Group 2. Special agricultural workers who during the twelve-
month period ending on May 1, 1986 have performed at least 90 man-days
in the aggregate of qualifying agricultural employment in the United
States.
(i) Legalization Office. Legalization offices are local offices of
the Immigration and Naturalization Service which
[[Page 173]]
accept and process applications for legalization or special agricultural
worker status, under the authority of the district directors in whose
districts such offices are located.
(j) Man-day. The term man-day means the performance during any day
of not less than one hour of qualifying agricultural employment for
wages paid. If employment records relating to an alien applicant show
only piece rate units completed, then any day in which piece rate work
was performed shall be counted as a man-day. Work for more than one
employer in a single day shall be counted as no more than one man-day
for the purposes of this part.
(k) Nonfrivolous application. A complete application will be
determined to be nonfrivolous at the time the applicant appears for an
interview at a legalization or overseas processing office if it
contains:
(1) Evidence or information which shows on its face that the
applicant is admissible to the United States or, if inadmissible, that
the applicable grounds of excludability may be waived under the
provisions of section 210(c)(2)(i) of the Act,
(2) Evidence or information which shows on its face that the
applicant performed at least 90 man-days of qualifying employment in
seasonal agricultural services during the twelve-month period from May
1, 1985 through May 1, 1986, and
(3) Documentation which establishes a reasonable inference of the
performance of the seasonal agricultural services claimed by the
applicant.
(l) Overseas processing office. Overseas processing offices are
offices outside the United States at which applications for adjustment
to temporary resident status as a special agricultural worker are
received, processed, referred to the Service for adjudication or denied.
The Secretary of State has designated for this purpose the United States
Embassy at Mexico City, and in all other countries the immigrant visa
issuing of office at which the alien, if an applicant for an immigrant
visa, would make such application. Consular officers assigned to such
offices are authorized to recommend approval of an application for
special agricultural worker status to the Service if the alien
establishes eligibility for approval and to deny such an application if
the alien fails to establish eligibility for approval or is found to
have committed fraud or misrepresented facts in the application process.
(m) Preliminary application. A preliminary application is defined as
a fully completed and signed application with fee and photographs which
contains specific information concerning the performance of qualifying
employment in the United States, and identifies documentary evidence
which the applicant intends to submit as proof of such employment. The
applicant must be otherwise admissible to the United States and must
establish to the satisfaction of the examining officer during an
interview that his or her claim to eligibility for special agriculture
worker status is credible.
(n) Public cash assistance. Public cash assistance means income or
needs-based monetary assistance. This includes but is not limited to
supplemental security income received by the alien or his immediate
family members through federal, state, or local programs designed to
meet subsistence levels. It does not include assistance in kind, such as
food stamps, public housing, or other non-cash benefits, nor does it
include work-related compensation or certain types of medical assistance
(Medicare, Medicaid, emergency treatment, services to pregnant women or
children under 18 years of age, or treatment in the interest of public
health).
(o) Qualified designated entity. A qualified designated entity is
any state, local, church, community, or voluntary agency, farm labor
organization, association of agricultural employers or individual
designated by the Service to assist aliens in the preparation of
applications for Legalization and/or Special Agricultural Worker status.
(p) Qualifying agricultural employment. Qualifying agricultural
employment means the performance of ``seasonal agricultural services''
described at section 210(h) of the Act as that term is defined in
regulations by the Secretary of Agriculture at 7 CFR part 1d.
[[Page 174]]
(q) Regional processing facility. Regional Processing Facilities are
Service offices established in each of the four Service regions to
adjudicate, under the authority of the Directors of the Regional
Processing Facilities, applications for adjustment of status under
sections 210 and 245a of the Act.
(r) Service. The Immigration and Naturalization Service (INS).
(s) Special agricultural worker. Any individual granted temporary
resident status in the Group 1 or Group 2 classification or permanent
resident status under section 210(a) of the Act.
[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989]
Sec. 210.2 Application for temporary resident status.
(a)(1) Application for temporary resident status. An alien
agricultural worker who believes that he or she is eligible for
adjustment of status under the provisions of Sec. 210.3 of this part may
file an application for such adjustment at a qualified designated
entity, at a legalization office, or at an overseas processing office
outside the United States. Such application must be filed within the
application period.
(2) Application for Group 1 status. An alien who believes that he or
she qualifies for Group 1 status as defined in Sec. 210.1(f) of this
part and who desires to apply for that classification must so endorse
his or her application at the time of filing. Applications not so
endorsed will be regarded as applications for Group 2 status as defined
in Sec. 210.1(g) of this part.
(3) Numerical limitations. The numerical limitations of sections 201
and 202 of the Act do not apply to the adjustment of aliens to lawful
temporary or permanent resident status under section 210 of the Act. No
more than 350,000 aliens may be granted temporary resident status in the
Group 1 classification. If more than 350,000 aliens are determined to be
eligible for Group 1 classification, the first 350,000 applicants (in
chronological order by date the application is filed at a legalization
or overseas processing office) whose applications are approved for Group
1 status shall be accorded that classification. Aliens admitted to the
United States under the transitional admission standard placed in effect
between July 1, 1987, and November 1, 1987, and under the preliminary
application standard at Sec. 210.2(c)(4) who claim eligibility for Group
1 classification shall be registered as applicants for that
classification on the date of submission to a legalization office of a
complete application as defined in Sec. 210.1(c) of this part. Other
applicants who may be eligible for Group 1 classification shall be
classified as Group 2 aliens. There is no limitation on the number of
aliens whose resident status may be adjusted from temporary to permanent
in Group 2 classification.
(b) Filing date of application--(1) General. The date the alien
submits an application to a qualified designated entity, legalization
office or overseas processing office shall be considered the filing date
of the application, provided that in the case of an application filed at
a qualified designated entity the alien has consented to have the entity
forward the application to a legalization office. Qualified designated
entities are required to forward completed applications to the
appropriate legalization office within 60 days after the applicant gives
consent for such forwarding.
(c) Filing of application--(1) General. The application must be
filed on Form I-700 at a qualified designated entity, at a legalization
office, at a designated port of entry, or at an overseas processing
office within the eighteen-month period beginning on June 1, 1987 and
ending on November 30, 1988.
(2) Applications in the United States. (i) The application must be
filed on Form I-700 with the required fee and, if the applicant is 14
years or older, the application must be accompanied by a completed Form
FD-258 (Fingerprint Card).
(ii) All fees for applications filed in the United States, other
than those within the provisions of Sec. 210.2(c)(4), must be submitted
in the exact amount in the form of a money order, cashier's check, or
bank check made payable to the Immigration and Naturalization Service.
No personal checks or currency will be accepted. Fees will not be waived
or refunded under any circumstances.
(iii) In the case of an application filed at a legalization office,
including
[[Page 175]]
an application received from a qualified designated entity, the district
director may, at his or her discretion, require filing either by mail or
in person, or may permit filing in either manner.
(iv) Each applicant, regardless of age, must appear at the
appropriate Service legalization office and must be fingerprinted for
the purpose of issuance of Form I-688A. Each applicant shall be
interviewed by an immigration officer, except that the interview may be
waived when it is impractical because of the health of the applicant.
(3) Filing at overseas processing offices. (i) The application must
be filed on Form I-700 and must include a completed State Department
Form OF-179 (Biographic Data for Visa Purposes).
(ii) Every applicant must appear at the appropriate overseas
processing office to be interviewed by a consular officer. The overseas
processing office will inform each applicant of the date and time of the
interview. At the time of the interview every applicant shall submit the
required fee.
(iii) All fees for applications submitted to an overseas processing
office shall be submitted in United States currency, or in the currency
of the country in which the overseas processing office is located. Fees
will not be waived or refunded under any circumstances.
(iv) An applicant at an overseas processing office whose application
is recommended for approval shall be provided with an entry document
attached to the applicant's file. Upon admission to the United States,
the applicant shall proceed to a legalization office for presentation or
completion of Form FD-258 (Fingerprint Card), presentation of the
applicant's file and issuance of the employment authorization Form I-
688A.
(4) Border processing. The Commissioner will designate specific
ports of entry located on the southern land border to accept and process
applications under this part. Ports of entry so designated will process
preliminary applications as defined at Sec. 210.1(l) under the authority
of the district directors in whose districts they are located. The ports
of entry at Calexico, California, Otay Mesa, California, and Laredo,
Texas have been designated to conduct preliminary application
processing. Designated ports of entry may be closed or added at the
discretion of the Commissioner.
(i) Admission standard. The applicant must present a fully completed
and signed Form I-700, Application for Temporary Resident Status with
the required fee and photographs at a designated port of entry. The
application must contain specific information concerning the performance
of qualifying employment in the United States and identify documentary
evidence which the applicant intends to submit as proof of such
employment. The applicant must establish to the satisfaction of the
examining officer during an interview that his or her claim to
eligibility for special agricultural worker classification is credible,
and that he or she is otherwise admissible to the United States under
the provisions of Sec. 210.3(e) of this part including, if required,
approval of an application for waiver of grounds of excludability.
(ii) Procedures. The fee for any application under this paragraph
including applications for waivers of grounds of excludability, must be
submitted in United States currency. Application fees shall not be
collected until the examining immigration officer has determined that
the applicant has presented a preliminary application and is admissible
to the United States including, if required, approval of an application
for waiver of grounds of excludability as provided in this paragraph.
Applicants at designated ports of entry must present proof of identity
in the form of a valid passport, a ``cartilla'' (Mexican military
service registration booklet), a Form 13 (``Forma trece''--Mexican lieu
passport identity document), or a certified copy of a birth certificate
accompanied by additional evidence of identity bearing a photograph and/
or fingerprint of the applicant. Upon a determination by an immigration
officer at a designated port of entry that an applicant has presented a
preliminary application, the applicant shall be admitted to the United
States as an applicant for special agricultural worker status. All
preliminary applicants shall be considered as prospective applicants for
the Group 2 classification. However, such applicants may later submit a
[[Page 176]]
complete application for either the Group 1 or Group 2 classification to
a legalization office. Preliminary applicants are not required to pay
the application fee a second time when submitting the complete
application to a legalization office.
(iii) Conditions of admission. Aliens who present a preliminary
application shall be admitted to the United States for a period of
ninety (90) days with authorization to accept employment, if they are
determined by an immigration officer to be admissible to the United
States. Such aliens are required, within that ninety-day period, to
submit evidence of eligibility which meets the provisions of Sec. 210.3
of this part; to complete Form FD-258 (Fingerprint Card); to obtain a
report of medical examination in accordance with Sec. 210.2(d) of this
part; and to submit to a legalization office a complete application as
defined at Sec. 210.1(c) of this part. The INS may, for good cause,
extend the ninety-day period and grant further authorization to accept
employment in the United States if an alien demonstrates he or she was
unable to perfect an application within the initial period. If an alien
described in this paragraph fails to submit a complete application to a
legalization office within ninety days or within such additional period
as may have been authorized, his or her application may be denied for
lack of prosecution, without prejudice.
(iv) Deportation is not stayed for an alien subject to deportation
and removal under the INA, notwithstanding a claim to eligibility for
SAW status, unless that alien has filed a nonfrivolous application.
(d) Medical examination. An applicant under this part must be
examined at no expense to the government by a designated civil surgeon
or, in the case of an applicant abroad, by a physician or clinic
designated to perform medical examinations of immigrant visa applicants.
The medical report setting forth the findings concerning the mental and
physical condition of the applicant shall be incorporated into the
record. Any applicant certified under paragraph (1), (2), (3), (4), or
(5) of section 212(a) of the Act may appeal to a Board of Medical
Officers of the U.S. Public Health Service as provided in section 234 of
the Act and part 235 of this chapter.
(e) Limitation on access to information and confidentiality. (1)
Except for consular officials engaged in the processing of applications
overseas and employees of a qualified designated entity where an
application is filed with that entity, no person other than a sworn
officer or employee of the Department of Justice or bureau or agency
thereof, or contract personnel employed by the Service to work in
connection with the legalization program, will be permitted to examine
individual applications.
(2) Files and records prepared by qualified designated entities
under this section are confidential. The Attorney General and the
Service shall not have access to these files and records without the
consent of the alien.
(3) All information furnished pursuant to an application for
temporary resident status under this part including documentary evidence
filed with the application shall be used only in the determination
process, including a determination under Sec. 210.4(d) of this part, or
to enforce the provisions of section 210(b)(7) of the Act, relating to
prosecutions for fraud and false statements made in connection with
applications, as provided in paragraph (e)(4) of this section.
(4) If a determination is made by the Service that the alien has, in
connection with his or her application, engaged in fraud or willful
misrepresentation or concealment of a material fact, knowingly provided
a false writing or document in making his or her application, knowingly
made a false statement or representation, or engaged in any other
activity prohibited by section 210(b)(7) of the Act, the Service shall
refer the matter to the U.S. Attorney for prosecution of the alien or
any person who created or supplied a false writing or document for use
in an application for adjustment of status under this part.
(f) Decision. The applicant shall be notified in writing of the
decision and, if the application is denied, of the reason(s) therefor.
An adverse decision under this part including an overseas application
may be appealed to the Associate Commissioner, Examinations
[[Page 177]]
(Administrative Appeals Unit) on Form I-694. The appeal with the
required fee shall be filed with the Regional Processing Facility in
accordance with the provisions of Sec. 103.3(a)(2) of this chapter. An
applicant for Group 1 status as defined in Sec. 210.1(f) of this part
who is determined to be ineligible for that status may be classified as
a temporary resident under Group 2 as defined in Sec. 210.1(g) of this
part if otherwise eligible for Group 2 status. In such a case the
applicant shall be notified of the decision to accord him or her Group 2
status and to deny Group 1 status. He or she is entitled to file an
appeal in accordance with the provisions of Sec. 103.3(a)(2) of this
chapter from that portion of the decision denying Group 1 status. In the
case of an applicant who is represented in the application process in
accordance with 8 CFR part 292, the applicant's representative shall
also receive notification of decision specified in this section.
(g) Motions. In accordance with the provisions of Sec. 103.5(b) of
this chapter, the director of a regional processing facility or a
consular officer at an overseas processing office may sua sponte reopen
any proceeding under this part under his or her jurisdiction and reverse
any adverse decision in such proceeding when appeal is taken under
Sec. 103.3(a)(2) of this part from such adverse decision; the Associate
Commissioner, Examinations, and the Chief of the Administrative Appeals
Unit may sua sponte reopen any proceeding conducted by that unit under
this part and reconsider any decision rendered in such proceeding. The
decision must be served on the appealing party within forty-five (45)
days of receipt of any briefs and/or new evidence, or upon expiration of
the time allowed for the submission of any briefs. Motions to reopen a
proceeding or reconsider a decision shall not be considered under this
part.
(h) Certifications. The regional processing facility director may,
in accordance with Sec. 103.4 of this chapter, certify a decision to the
Associate Commissioner, Examinations when the case involves an unusually
complex or novel question of law or fact. A consular officer assigned to
an overseas processing office is authorized to certify a decision in the
same manner and upon the same basis.
[53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990; 60
FR 21975, May 4, 1995]
Sec. 210.3 Eligibility.
(a) General. An alien who, during the twelve-month period ending on
May 1, 1986, has engaged in qualifying agricultural employment in the
United States for at least 90 man-days is eligible for status as an
alien lawfully admitted for temporary residence if otherwise admissible
under the provisions of section 210(c) of the Act and if he or she is
not ineligible under the provisions of paragraph (d) of this section.
(b) Proof of eligibility--(1) Burden of proof. An alien applying for
adjustment of status under this part has the burden of proving by a
preponderance of the evidence that he or she has worked the requisite
number of man-days, is admissible to the United States under the
provisions of section 210(c) of the Act, is otherwise eligible for
adjustment of status under this section and in the case of a Group 1
applicant, has resided in the United States for the requisite periods.
If the applicant cannot provide documentation which shows qualifying
employment for each of the requisite man-days, or in the case of a Group
1 applicant, which meets the residence requirement, the applicant may
meet his or her burden of proof by providing documentation sufficient to
establish the requisite employment or residence as a matter of just and
reasonable inference. The inference to be drawn from the documentation
provided shall depend on the extent of the documentation, its
credibility and amenability to verification as set forth in paragraphs
(b)(2) and (3) of this section. If an applicant establishes that he or
she has in fact performed the requisite qualifying agricultural
employment by producing sufficient evidence to show the extent of that
employment as a matter of just and reasonable inference, the burden then
shifts to the Service to disprove the applicant's evidence by showing
that the inference drawn from the evidence is not reasonable.
(2) Evidence. The sufficiency of all evidence produced by the
applicant will
[[Page 178]]
be judged according to its probative value and credibility. Original
documents will be given greater weight than copies. To meet his or her
burden of proof, an applicant must provide evidence of eligibility apart
from his or her own testimony. Analysis of evidence submitted will
include consideration of the fact that work performed by minors and
spouses is sometimes credited to a principal member of a family.
(3) Verification. Personal testimony by an applicant which is not
corroborated, in whole or in part, by other credible evidence (including
testimony of persons other than the applicant) will not serve to meet an
applicant's burden of proof. All evidence of identity, qualifying
employment, admissibility, and eligibility submitted by an applicant for
adjustment of status under this part will be subject to verification by
the Service. Failure by an applicant to release information protected by
the Privacy Act or related laws when such information is essential to
the proper adjudication of an application may result in denial of the
benefit sought. The Service may solicit from agricultural producers,
farm labor contractors, collective bargaining organizations and other
groups or organizations which maintain records of employment, lists of
workers against which evidence of qualifying employment can be checked.
If such corroborating evidence is not available and the evidence
provided is deemed insufficient, the application may be denied.
(4) Securing SAW employment records. When a SAW applicant alleges
that an employer or farm labor contractor refuses to provide him or her
with records relating to his or her employment and the applicant has
reason to believe such records exist, the Service shall attempt to
secure such records. However, prior to any attempt by the Service to
secure the employment records, the following conditions must be met: a
SAW application (Form I-700) must have been filed; an interview must
have been conducted; the applicant's testimony must support credibly his
or her claim; and, the Service must determine that the application
cannot be approved in the absence of the employer or farm labor
contractor records. Provided each of these conditions has been met, and
after unsuccessful attempts by the Service for voluntary compliance, the
District Directors shall utilize section 235 of the Immigration and
Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in
such cases where the employer or farm labor contractor refuses to
release the needed employment records.
(c) Documents. A complete application for adjustment of status must
be accompanied by proof of identity, evidence of qualifying employment,
evidence of residence and such evidence of admissibility or eligibility
as may be requested by the examining immigration officer in accordance
with requirements specified in this part. At the time of filing,
certified copies of documents may be submitted in lieu of originals.
However, at the time of the interview, wherever possible, the original
documents must be presented except for the following: Official
government records; employment or employment related records maintained
by employers, unions, or collective bargaining organizations; medical
records; school records maintained by a school or school board; or other
records maintained by a party other than the applicant. Copies of
records maintained by parties other than the applicant which are
submitted in evidence must be certified as true and correct by such
parties and must bear their seal or signature or the signature and title
of persons authorized to act in their behalf. If at the time of the
interview the return of original documents is desired by the applicant,
they must be accompanied by notarized copies or copies certified true
and correct by a qualified designated entity or by the alien's
representative in the format prescribed in Sec. 204.2(j)(1) or (2) of
this chapter. At the discretion of the district director or consular
officer, original documents, even if accompanied by certified copies,
may be temporarily retained for further examination.
(1) Proof of identity. Evidence to establish identity is listed
below in descending order of preference:
(i) Passport;
(ii) Birth certificate;
[[Page 179]]
(iii) Any national identity document from a foreign country bearing
a photo and/or fingerprint (e.g., ``cedula'', ``cartilla'', ``carte
d'identite,'' etc.);
(iv) Driver's license or similar document issued by a state if it
contains a photo;
(v) Baptismal record or marriage certificate;
(vi) Affidavits, or
(vii) Such other documentation which may establish the identity of
the applicant.
(2) Assumed names--(i) General. In cases where an applicant claims
to have met any of the eligibility criteria under an assumed name, the
applicant has the burden of proving that the applicant was in fact the
person who used that name.
(ii) Proof of common identity. The most persuasive evidence is a
document issued in the assumed name which identifies the applicant by
photograph, fingerprint or detailed physical description. Other evidence
which will be considered are affidavit(s) by a person or persons other
than the applicant, made under oath, which identify the affiant by name
and address and state the affiant's relationship to the applicant and
the basis of the affiant's knowledge of the applicant's use of the
assumed name. Affidavits accompanied by a photograph which has been
identified by the affiant as the individual known to the affiant under
the assumed name in question will carry greater weight. Other documents
showing the assumed name may serve to establish the common identity when
substantiated by corroborating detail.
(3) Proof of employment. The applicant may establish qualifying
employment through government employment records, or records maintained
by agricultural producers, farm labor contractors, collective bargaining
organizations and other groups or organizations which maintain records
of employment, or such other evidence as worker identification issued by
employers or collective bargaining organizations, union membership cards
or other union records such as dues receipts or records of the
applicant's involvement or that of his or her immediate family with
organizations providing services to farmworkers, or work records such as
pay stubs, piece work receipts, W-2 Forms or certification of the filing
of Federal income tax returns on IRS Form 6166, or state verification of
the filing of state income tax returns. Affidavits may be submitted
under oath, by agricultural producers, foremen, farm labor contractors,
union officials, fellow employees, or other persons with specific
knowledge of the applicant's employment. The affiant must be identified
by name and address; the name of the applicant and the relationship of
the affiant to the applicant must be stated; and the source of the
information in the affidavit (e.g. personal knowledge, reliance on
information provided by others, etc.) must be indicated. The affidavit
must also provide information regarding the crop and the type of work
performed by the applicant and the period during which such work was
performed. The affiant must provide a certified copy of corroborating
records or state the affiant's willingness to personally verify the
information provided. The weight and probative value of any affidavit
accepted will be determined on the basis of the substance of the
affidavit and any documents which may be affixed thereto which may
corroborate the information provided.
(4) Proof of residence. Evidence to establish residence in the
United States during the requisite period(s) includes: Employment
records as described in paragraph (c)(3) of this section; utility bills
(gas, electric, phone, etc.), receipts, or letters from companies
showing the dates during which the applicant received service; school
records (letters, report cards, etc.) from the schools that the
applicant or his or her children have attended in the United States
showing the name of school, name and, if available, address of student,
and periods of attendance, and hospital or medical records showing
similar information; attestations by churches, unions, or other
organizations to the applicant's residence by letter which: Identify
applicant by name, are signed by an official (whose title is shown),
show inclusive dates of membership, state the address where
[[Page 180]]
applicant resided during the membership period, include the seal of the
organization impressed on the letter, establish how the author knows the
applicant, and the origin of the information; and additional documents
that could show that the applicant was in the United States at a
specific time, such as: Money order receipts for money sent out of the
country; passport entries; birth certificates of children born in the
United States; bank books with dated transactions; letters of
correspondence between the applicant and another person or organization;
Social Security card; Selective Service card; automobile license
receipts, title, vehicle registration, etc.; deeds, mortgages, contracts
to which applicant has been a party; tax receipts; insurance policies,
receipts, or letters; and any other document that will show that
applicant was in the United States at a specific time. For Group 2
eligibility, evidence of performance of the required 90 man-days of
seasonal agricultural services shall constitute evidence of qualifying
residence.
(5) Proof of financial responsibility. Generally, the evidence of
employment submitted under paragraph (c)(3) of this section will serve
to demonstrate the alien's financial responsibility. If it appears that
the applicant may be inadmissible under section 212(a)(15) of the Act,
he or she may be required to submit documentation showing a history of
employment without reliance on public cash assistance for all periods of
residence in the United States.
(d) Ineligible classes. The following classes of aliens are
ineligible for temporary residence under this part:
(1) An alien who at any time was a nonimmigrant exchange visitor
under section 101(a)(15)(J) of the Act who is subject to the two-year
foreign residence requirement unless the alien has complied with that
requirement or the requirement has been waived pursuant to the
provisions of section 212(e) of the Act;
(2) An alien excludable under the provisions of section 212(a) of
the Act whose grounds of excludability may not be waived, pursuant to
section 210(c)(2)(B)(ii) of the Act;
(3) An alien who has been convicted of a felony, or three or more
misdemeanors.
(e) Exclusion grounds--(1) Grounds of exclusion not to be applied.
Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act
shall not apply to applicants applying for temporary resident status.
(2) Waiver of grounds for exclusion. Except as provided in paragraph
(e)(3) of this section, the Service may waive any other provision of
section 212(a) of the Act only in the case of individual aliens for
humanitarian purposes, to assure family unity, or when the granting of
such a waiver is in the public interest. If an alien is excludable on
grounds which may be waived as set forth in this paragraph, he or she
shall be advised of the procedures for applying for a waiver of grounds
of excludability on Form I-690. When an application for waiver of
grounds of excludability is submitted in conjunction with an application
for temporary residence under this section, it shall be accepted for
processing at the legalization office, overseas processing office, or
designated port of entry. If an application for waiver of grounds of
excludability is submitted after the alien's preliminary interview at
the legalization office it shall be forwarded to the appropriate
regional processing facility. All applications for waivers of grounds of
excludability must be accompanied by the correct fee in the exact
amount. All fees for applications filed in the United States other than
those within the provisions of Sec. 210.2(c)(4) must be in the form of a
money order, cashier's check, or bank check. No personal checks or
currency will be accepted. Fees for waiver applications filed at the
designated port of entry under the preliminary application standard must
be submitted in United States currency. Fees will not be waived or
refunded under any circumstances. Generally, an application for waiver
of grounds of excludability under this part submitted at a legalization
office or overseas processing office will be approved or denied by the
director of the regional processing facility in whose jurisdiction the
applicant's application for adjustment of status was filed. However, in
cases involving
[[Page 181]]
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 182]]
will be restricted to increments not exceeding 1 year, pending final
determination on the application for temporary resident status. If a
final determination has not been made prior to the expiration date on
the Employment Authorization Document (Form I-766, Form I-688A or Form
I-688B) that date may be extended upon return of the employment
authorization document by the applicant to the appropriate Service
office. Persons submitting applications who currently have work
authorization incident to status as defined in Sec. 274a.12(b) of this
chapter shall be granted work authorization by the Service effective on
the date the alien's prior work authorization expires. Permission to
travel abroad shall be granted in accordance with the Service's advance
parole provisions contained in Sec. 212.5(e) of this chapter.
(3) Employment and travel authorization upon grant of temporary
resident status. Upon the granting of an application for adjustment to
temporary resident status, the service center will forward a notice of
approval to the applicant at his or her last known address and to his or
her qualified designated entity or representative. The applicant may
appear at any Service office, and upon surrender of the previously
issued Employment Authorization Document, will be issued Form I-688,
Temporary Resident Card. An alien whose status is adjusted to that of a
lawful temporary resident under section 210 of the Act has the right to
reside in the United States, to travel abroad (including commuting from
a residence abroad), and to accept employment in the United States in
the same manner as aliens lawfully admitted to permanent residence.
(c) Ineligibility for immigration benefits. An alien whose status is
adjusted to that of a lawful temporary resident under section 210 of the
Act is not entitled to submit a petition pursuant to section 203(a)(2)
of the Act or to any other benefit or consideration accorded under the
Act to aliens lawfully admitted for permanent residence, except as
provided in paragraph (b)(3) of this section.
(d) Termination of temporary resident status--(1) General. The
temporary resident status of a special agricultural worker is terminated
automatically and without notice under section 210(a)(3) of the Act upon
entry of a final order of deportation by an immigration judge based on a
determination that the alien is deportable under section 241 of the Act.
(2) The status of an alien lawfully admitted for temporary residence
under section 210(a)(2) of the Act, may be terminated before the alien
becomes eligible for adjustment of status under Sec. 210.5 of this part,
upon the occurrence of any of the following:
(i) It is determined by a preponderance of the evidence that the
adjustment to temporary resident status was 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 183]]
be filed with the regional processing facility within thirty (30) days
after the service of the notice of termination. If no appeal is filed
within that period, the Forms I-94, I-688 or other official Service
document shall be deemed void, and must be surrendered without delay to
an immigration officer or to the issuing office of the Service.
(ii) Termination proceedings must be commenced before the alien
becomes eligible for adjustment of status under Sec. 210.5 of this part.
The timely commencement of termination proceedings will preclude the
alien from becoming a lawful permanent resident until a final
determination is made in the proceedings, including any appeal.
[53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990; 60
FR 21975, May 4, 1995; 61 FR 46536, Sept. 4, 1996]
Sec. 210.5 Adjustment to permanent resident status.
(a) Eligibility and date of adjustment to permanent resident status.
The status of an alien lawfully admitted to the United States for
temporary residence under section 210(a)(1) of the Act, if the alien has
otherwise maintained such status as required by the Act, shall be
adjusted to that of an alien lawfully admitted to the United States for
permanent residence as of the following dates:
(1) Group 1. Aliens determined to be eligible for Group 1
classification, whose adjustment to temporary residence occurred prior
to November 30, 1988, shall be adjusted to lawful permanent residence as
of December 1, 1989. Those aliens whose adjustment to temporary
residence occurred after November 30, 1988 shall be adjusted to lawful
permanent residence one year from the date of the adjustment to
temporary residence.
(2) Group 2. Aliens determined to be eligible for Group 2
classification whose adjustment to temporary residence occurred prior to
November 30, 1988, shall be adjusted to lawful permanent residence as of
December 1, 1990. Those aliens whose adjustment to temporary residence
occurred after November 30, 1988 shall be adjusted to lawful permanent
residence two years from the date of the adjustment to temporary
residence.
(b) ADIT processing--(1) General. To obtain proof of permanent
resident status an alien described in paragraph (a) of this section must
appear at a legalization or Service office designated for this purpose
for preparation of Form I-551, Alien Registration Receipt Card. Such
appearance may be prior to the date of adjustment, but only upon
invitation by the Service. Form I-551 shall be issued subsequent to the
date of adjustment.
(2) Upon appearance at a Service office for preparation of Form I-
551, an alien must present proof of identity, suitable ADIT photographs,
and a fingerprint and signature must be obtained from the alien on Form
I-89.
[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989]
PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS--Table of Contents
Sec.
211.1 Visas.
211.2 Passports.
211.3 Expiration of immigrant visas, reentry permits, refugee travel
document, and Form I-551.
211.4 Recording the entry of certain immigrant children admitted
without immigrant visas.
211.5 Alien commuters.
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257.
Sec. 211.1 Visas.
(a) General. A valid unexpired immigrant visa shall be presented by
each arriving immigrant alien applying for admission to the United
States for lawful permanent residence, except as immigrant alien who:
(1) Is a child born subsequent to the issuance of an immigrant visa to
his accompanying parent and applies for admission during the validity of
such a visa; or (2) 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 the child's application for admission to the
United States is made within 2 years of his birth, the child is
accompanied by his parent who is applying for readmission as a permanent
resident upon the first return of the parent to the United
[[Page 184]]
States after the birth of the child, and the accompanying parent is
found to be admissible to the United States.
(b)(1) Alien Registration Receipt Card (Form I-551)--(i) Alien not
travelling pursuant to government orders. An Alien Registration Receipt
Card may be presented in lieu of an immigrant visa by an immigrant alien
who is returning to an unrelinquished lawful permanent residence in the
United States, is returning prior to the second anniversary of the date
on which he or she obtained such residence if subject to the provisions
of section 216 or 216A of the Act, whichever is applicable, or within
six months of the date of filing a Petition to Remove the Conditions on
Residence (Form I-751) or a Petition by Entrepreneur to Remove
Conditions (Form I-829) pursuant to 8 CFR part 216, if the alien is in
possession of a Service-issued receipt for such filing, and:
(A) Is returning after a temporary absence abroad not exceeding one
year, or
(B) Is an alien crewman regularly serving abroad an aircraft or
vessel of American registry who is returning after a temporary absence
abroad in connection with his/her duties as a crewman.
(ii) Alien traveling pursuant to government orders. An Alien
Registration Receipt Card, including an expired Alien Registration
Receipt Card issued to a conditional resident may be presented in lieu
of an immigrant visa by an immigrant alien who is returning to an
unrelinquished lawful permanent residence in the United States and:
(A) Is a civilian employee of the United States government returning
from a foreign assignment pursuant to official orders; or
(B) Is a spouse or child of a civilian employee of the United States
government or member of the United States Armed Forces, provided that
the spouse or child resided abroad while the employee or serviceperson
was on overseas duty, and the spouse or child is preceding or
accompanying the employee or serviceperson, or is following to join the
employee or serviceperson within four months of his or her return to the
United States.
(2) Reentry permit. Any immigrant alien returning to an
unrelinquished lawful permanent residence in the United States after a
temporary absence abroad may present a valid unexpired reentry permit
duly issued to him/her in lieu of an immigrant visa. A refugee travel
document issued to a lawful permanent resident pursuant to part 223a of
this chapter shall be regarded as a reentry permit.
(3) Waiver of visas. An immigrant alien returning to an
unrelinquished lawful permanent residence in the United States after a
temporary absence abroad who satisfies the district director in charge
of the port of entry that there is good cause for his or her failure to
present an immigrant visa, Form I-551, or reentry permit may, upon
application on Form I-193, Application for Waiver of Passport and/or
Visa, be granted a waiver of that requirement. A resident alien who is
returning to an unrelinquished lawful permanent residence in the United
States after a temporary absence abroad not exceeding one year and who
cannot present Form I-551 because of its loss must file a Form I-90,
Application to Replace Alien Registration Card, in duplicate, with the
district director having jurisdiction over the port of entry who may in
his or her discretion grant or deny without appeal a waiver of the
required immigrant visa, reentry permit, or Form I-551. Filing the Form
I-90 in such a case will serve not only as an application for
replacement but also as an application for waiver of passport and visa,
without the obligation to file a separate Form I-193. An alien who is
granted a waiver through a filing of Form I-90 under this section shall,
after admission into the United States, comply with the requirements of
8 CFR 264.5.
(4) Private Law 98-53. A lawful permanent resident alien who
immediately preceding travel to the United States was employed by the
American University of Beirut, and seeks admission either to remain
temporarily in the United States and then resume employment with the
American University of Beirut, or to resume permanent residence in the
United States may present Form 551, Alien Registration Receipt Card, or
a boarding letter issued by a United States consular or immigration
officer in lieu of an immigrant visa.
[[Page 185]]
(c) Immigrants having occupational status defined in section
101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry
permit, or Form I-551 shall be invalid when presented by an alien who
has an occupational status under section 101(a)(15) (A), (E), or (G) of
the Act, unless he has previously submitted, or submits at the time he
applies for admission to the United States, the written waiver required
by section 247(b) of the Act and part 247 of this chapter.
(d) Returning temporary residents--(I-688). (1) Form I-688 may be
presented in lieu of an immigrant visa by an alien whose status has been
adjusted to that of a temporary resident under the provisions of
Sec. 210.1 of this chapter, such status not having changed, and who is
returning to an unrelinquished residence within one year after a
temporary absence abroad.
(2) Form I-688 may be presented in lieu of an immigrant visa by an
alien whose status has been adjusted to that of a temporary resident
under the provisions of Sec. 245a.2 of this chapter, such status not
having changed, and who is returning to an unrelinquished residence
within 30 days after a temporary absence abroad, provided that the
aggregate of all such absences abroad during the temporary residence
period has not exceeded 90 days.
[31 FR 13387, Oct. 15, 1966, as amended at 42 FR 19478, Apr. 14, 1977;
45 FR 30062, 30063, May 7, 1980; 45 FR 32657, May 19, 1980; 46 FR 25597,
May 8, 1981; 46 FR 37240, July 20, 1981; 50 FR 49921, Dec. 6, 1985; 52
FR 16193, May 1, 1987; 53 FR 30017, Aug. 10, 1988; 54 FR 30369, July 20,
1989; 58 FR 48778, Sept. 20, 1993; 59 FR 26950, May 23, 1994]
Sec. 211.2 Passports.
A passport valid for the bearer's entry into a foreign country at
least 60 days beyond the expiration date of this immigrant visa shall be
presented by each immigrant except an immigrant who: (a) 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, or (b) 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
the child's application for admission to the United States is made
within two years of his birth, the child is accompanied by his 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, or (c) is returning to an unrelinquished lawful permanent
residence in the United States after a temporary absence abroad, or (d)
is a stateless person or a person who because of his opposition to
Communism is unwilling or unable to obtain a passport from the country
of his nationality or is the accompanying spouse or unmarried son or
daughter of such immigrant, or (e) is a third-preference immigrant, or
(f) is a member of the Armed Forces of the United States, or (g)
satisfies the district director in charge of the port of entry that
there is good cause for failure to present the required document, in
which case an application for waiver shall be made on Form I-193.
[29 FR 10578, July 30, 1964, as amended at 30 FR 14776, Nov. 30, 1965]
Sec. 211.3 Expiration of immigrant visas, reentry permits, refugee travel document, and form I-551.
An immigrant visa, reentry permit, refugee travel document, or Form
I-551 shall be regarded as unexpired if the rightful holder embarked or
enplaned before the expiration of his immigrant visa, reentry permit, or
refugee travel document, or, with respect to Form I-551, before the
first anniversary of the date on which he departed from the United
States: Provided, That the vessel or aircraft on which he 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.
[29 FR 10578, July 30, 1964, as amended at 38 FR 8238, Mar. 30, 1973; 45
FR 32657, May 19, 1980; 58 FR 48778, Sept. 20, 1993]
[[Page 186]]
Sec. 211.4 Recording the entry of certain immigrant children admitted without immigrant visas.
When an immigrant alien who: (a) Is a child born subsequent to the
issuance of an immigrant visa to his accompanying parent; or (b) is a
child born during the temporary visit abroad of a mother who is a lawful
permanent resident, or a national, of the United States, is admitted to
the United States for lawful permanent residence without an immigrant
visa, the admission shall be recorded on Form I-181.
[32 FR 9625, July 4, 1967. Redesignated at 41 FR 55849, Dec. 23, 1976]
Sec. 211.5 Alien commuters.
(a) General. Notwithstanding any other provisions of this part, 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 place of employment in the
United States. Such commutation may be daily or seasonal for employment
which, on the whole, is regular and stable. At the time of each reentry
the commuter must present a valid Form I-551, or I-688 in lieu of an
immigrant visa and passport. An alien commuter engaged in seasonal work
will be presumed to have taken up residence in the United States if he
is present in this country for more than six 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 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 six
months shall be deemed to have lost his residence status,
notwithstanding temporary entries in the interim for other than
employment purposes, unless his employment in the United States was
interrupted for reasons beyond his control other than lack of a job
opportunity or he can demonstrate that he has worked ninety days in the
United States in the aggregate during the twelve-month period preceding
his application for admission into the United States. Upon loss of
status, Form I-551 or I-688 shall become invalid and shall be
surrendered to an immigration officer.
(c) Eligibility for benefits under the immigration and nationality
laws. Until he 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 own behalf or on behalf of his relatives other than as specified in
paragraph (a) of this section. When an alien commuter takes up residence
in the United States, he shall no longer be regarded as a commuter. He
may facilitate proof of having taken up such residence by notifying the
Service as soon as possible, preferably at the time of his first reentry
for that purpose. Application for issuance of a new alien registration
receipt card to show that he has taken up residence in the United States
shall be made on Form I-90.
[40 FR 34106, Aug. 14, 1975. Redesignated and amended at 41 FR 55849,
Dec. 23, 1976; 45 FR 32657, May 19, 1980; 46 FR 4858, Jan. 19, 1981; 52
FR 16193, May 1, 1987; 53 FR 18260, May 23, 1988; 54 FR 8184, Feb. 27,
1989; 58 FR 48778, Sept. 20, 1993]
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents
Sec.
212.1 Documentary requirements for nonimmigrants.
212.2 Consent to reapply for admission after deportation, removal or
departure at Government expense.
212.3 Application for the exercise of discretion under section 212(c).
212.4 Applications for the exercise of discretion under section
212(d)(1) and 212(d)(3).
212.5 Parole of aliens into the United States.
212.6 Nonresident alien border crossing cards.
212.7 Waiver of certain grounds of excludability.
212.8 Certification requirement of section 212(a)(14).
212.9 Applicability of section 212(a)(32) to certain derivative third
and sixth preference and nonpreference immigrants.
[[Page 187]]
212.10 Section 212(k) waiver.
212.11 Controlled substance convictions.
212.12 Parole determinations and revocations respecting Mariel Cubans.
212.13 Departmental parole determinations respecting certain Mariel
Cubans.
212.14 Parole determinations for alien witnesses and informants for
whom a law enforcement authority (``LEA'') will request S
classification.
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 1226,
1227, 1228, 1252; 8 CFR part 2.
Sec. 212.1 Documentary requirements for nonimmigrants.
A valid unexpired visa and an unexpired passport, valid for the
period set forth in section 212(a)(26) of the Act, shall be presented by
each arriving nonimmigrant alien except that the passport validity
period for an applicant for admission who is a member of a class
described in section 102 of the Act is not required to extend beyond the
date of his application for admission if so admitted, and except as
otherwise provided in the Act, this chapter, and for the following
classes:
(a) Canadian nationals, and aliens having a common nationality with
nationals of Canada or with British subjects in Bermuda, Bahamian
nationals or British subjects resident in Bahamas, Cayman Islands, and
Turks and Caicos Islands. A visa is not required of a Canadian national
in any case. A passport is not required of such national except after a
visit outside of the Western Hemisphere. A visa is not required of an
alien having a common nationality with Canadian nationals or with
British subjects in Bermuda, who has his or her residence in Canada or
Bermuda. A passport is not required of such alien except after a visit
outside of the Western Hemisphere. A visa and a passport are required of
a Bahamian national or a British subject who has his residence in the
Bahamas except that a visa is not required of such an alien who, prior
to or at the time of embarkation for the United States on a vessel or
aircraft, satisfied the examining U.S. immigration officer at the
Bahamas, that he is clearly and beyond a doubt entitled to admission in
all other respects. A visa is not required of a British subject who has
his residence in, and arrives directly from, the Cayman Islands or the
Turks and Caicos Islands and who presents a current certificate from the
Clerk of Court of the Cayman Islands or the Turks and Caicos Islands
indicating no criminal record.
(b) British, French, and Netherlands nationals, and nationals of
certain adjacent islands of the Caribbean which are independent
countries. A visa is not required of a British, French, or Netherlands
national--or of a national of Barbados, Grenada, Jamaica, or Trinidad
and Tobago, who has his residence in British, French, or Netherlands
territory located in the adjacent islands of the Caribbean area, or in
Barbados, Grenada, Jamaica, or Trinidad and Tobago, who: (1) Is
proceeding to the United States as an agricultural worker; or (2) is the
beneficiary of a valid, unexpired indefinite certification granted by
the Department of Labor for employment in the Virgin Islands of the
United States and is proceeding to the Virgin Islands of the United
States for such purpose, or is the spouse or child of such an alien
accompanying or following to join him. A visa is not required of a
national of the British Virgin Islands who has his residence in the
British Virgin Islands, and who is proceeding to the Virgin Islands of
the United States.
(c) Mexican nationals. A visa and a passport are not required of a
Mexican national who is in possession of a border crossing card on Form
I-186 or I-586 and is applying for admission as a temporary visitor for
business or pleasure from continguous territory; or is entering solely
for the purpose of applying for a Mexican passport or other official
Mexican document at a Mexican consular office on the United States side
of the border. A visa is not required of a Mexican national who is in
possession of a border crossing card and is applying for admission to
the United States as a temporary visitor for business or pleasure from
other than contiguous territory. A visa is not required of a Mexican
national who is a crewman employed on an aircraft belonging to a Mexican
company authorized to engage in commercial transportation into the
United States.
(c-1) Bearers of Mexican diplomatic or official passports. A visa
shall not be required by a Mexican national bearing a
[[Page 188]]
Mexican diplomatic or official passport who is a military or civilian
official of the Federal Government of Mexico entering the United States
for six months or less for a purpose other than on assignment as a
permanent employee to an office of the Mexican Federal Government in the
United States and the official's spouse or any of the official's
dependent family members under 19 years of age, bearing diplomatic or
official passports, who are in the actual company of such official at
the time of entry into the United States. This waiver does not apply to
the spouse or any of the official's family members classifiable under
section 101(a)(15) (F) or (M) of the Act.
(c-2) Aliens entering pursuant to International Boundary and Water
Commission Treaty. A visa and a passport are not required of an alien
employed either directly or indirectly on the construction, operation,
or maintenance of works in the United States undertaken in accordance
with the treaty concluded on February 3, 1944, between, the United
States and Mexico regarding the functions of the International Boundary
and Water Commission, and entering the United States temporarily in
connection with such employment.
(d) Citizens of the Freely Associated States, formerly Trust
Territory of the Pacific Islands. Citizens of the Republic of the
Marshall Islands and the Federated States of Micronesia may enter into,
lawfully engage in employment, and establish residence in the United
States and its territories and possessions without regard to paragraphs
(14), (20) and (26) of section 212(a) of the Act pursuant to the terms
of Pub. L. 99-239. Pending issuance by the aforementioned governments of
travel documents to eligible citizens, travel documents previously
issued by the Trust Territory of the Pacific Islands will continue to be
accepted for purposes of identification and to establish eligibility for
admission into the United States, its territories and possessions.
(e) Aliens entering Guam pursuant to section 14 of Pub. L. 99-396,
``Omnibus Territories Act.'' (1) A visa is not required of an alien who
is a citizen of a country enumerated in paragraph (e)(3) of this section
who:
(i) Is classifiable as a vistor for business or pleasure;
(ii) Is solely entering and staying on Guam for a period not to
exceed fifteen days;
(iii) Is in possession of a round-trip nonrefundable and
nontransferable transportation ticket bearing a confirmed departure date
not exceeding fifteen days from the date of admission to Guam;
(iv) Is in possession of a completed and signed Visa Waiver
Information Form (Form I-736);
(v) Waives any right to review or appeal the immigration officer's
determination of admissibility at the port of entry at Guam; and
(vi) Waives any right to contest any action for deportation, other
than on the basis of a request for asylum.
(2) An alien is eligible for the waiver provision if all of the
eligibility criteria in paragraph (e)(1) of this section have been met
prior to embarkation and the alien is a citizen of a country that:
(i) Has a visa refusal rate of 16.9% or less, or a country whose
visa refusal rate exceeds 16.9% and has an established preinspection or
preclearance program, pursuant to a bilateral agreement with the United
States under which its citizens traveling to Guam without a valid United
States visa are inspected by the Immigration and Naturalization Service
prior to departure from that country;
(ii) Is within geographical proximity to Guam, unless the country
has a substantial volume of nonimmigrant admissions to Guam as
determined by the Commissioner and extends reciprocal privileges to
citizens of the United States;
(iii) Is not designated by the Department of State as being of
special humanitarian concern; and
(iv) Poses no threat to the welfare, safety or security of the
United States, its territories, or commonwealths.
Any potential threats to the welfare, safety, or security of the United
States, its territories, or commonwealths will be dealt with on a
country by country basis, and a determination by the Commissioner of the
Immigration and Naturalization Service that a
[[Page 189]]
threat exists will result in the immediate deletion of that country from
the listing in paragraph (e)(3) of this section.
(3)(i) The following geographic areas meet the eligibility criteria
as stated in paragraph (e)(2) of this section: Australia, Brunei, Burma,
Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea,
Republic of Korea, Singapore, Solomon Islands, Taiwan (residents thereof
who begin their travel in Taiwan and who travel on direct flights from
Taiwan to Guam without an intermediate layover or stop except that the
flights may stop in a territory of the United States enroute), the
United Kingdom (including the citizens of the colony of Hong Kong),
Vanuatu, and Western Samoa. The provision that flights transporting
residents of Taiwan to Guam may stop at a territory of the United States
enroute may be rescinded whenever the number of inadmissible passengers
arriving in Guam who have transited a territory of the United States
enroute to Guam exceeds 20 percent of all the inadmissible passengers
arriving in Guam within any consecutive two-month period. Such
rescission will be published in the Federal Register.
(ii) For the purposes of this section, the term citizen of a country
as used in 8 CFR 212.1(e)(1) when applied to Taiwan refers only to
residents of Taiwan who are in possession of Taiwan National Identity
Cards and a valid Taiwan passport with a valid re-entry permit issued by
the Taiwan Ministry of Foreign Affairs. It does not refer to any other
holder of a Taiwan passport or a passport issued by the People's
Republic of China.
(4) Admission under this section renders an alien ineligible for:
(i) Adjustment of status to that of a temporary resident or, except
under the provisions of section 245(i) of the Act, to that of a lawful
permanent resident;
(ii) Change of nonimmigrant status; or
(iii) Extension of stay.
(5) A transportation line bringing any alien to Guam pursuant to
this section shall:
(i) Enter into a contract on Form I-760, made by the Commissioner of
the Immigration and Naturalization Service in behalf of the government;
(ii) Transport only an alien who is a citizen and in possession of a
valid passport of a country enumerated in paragraph (e)(3) of this
section;
(iii) Transport only an alien in possession of a round-trip,
nontransferable transportation ticket:
(A) Bearing a confirmed departure date not exceeding fifteen days
from the date of admission to Guam,
(B) Valid for a period of not less than one year,
(C) Nonrefundable except in the country in which issued or in the
country of the alien's nationality or residence,
(D) Issued by a carrier which has entered into an agreement
described in part (5)(i) of this section, and
(E) Which the carrier will unconditionally honor when presented for
return passage; and
(iv) Transport only an alien in possession of a completed and signed
Visa Waiver Information Form I-736.
(f) Direct transits--(1) Transit without visa. A passport and visa
are not required of an alien who is being transported in immediate and
continuous transit through the United States in accordance with the
terms of an agreement entered into between the transportation line and
the Service under the provisions of section 238(d) of the Act on Form I-
426 to insure such immediate and continuous transit through, and
departure from, the United States en route to a specifically designated
foreign country: Provided, That such alien is in possession of a travel
document or documents establishing his/her identity and nationality and
ability to enter some country other than the United States.
(2) Waiver of passport and visa. On the basis of reciprocity, the
waiver of passport and visa is available to a national of Albania,
Bulgaria, Czechoslovakia, Estonia, the German Democratic Republic,
Hungary, Latvia, Lithuania, Mongolian People's Republic, People's
Republic of China, Poland, Romania, or the Union of Soviet Socialist
Republics resident in one of said countries, only if he/she is
transiting the United States by aircraft of a transportation line
signatory to an agreement with the Service on Form I-426 on a direct
through
[[Page 190]]
flight which will depart directly to a foreign place from the port of
arrival.
(3) Unavailability to transit. This waiver of passport and visa
requirement is not available to an alien who is a citizen of
Afghanistan, Bangladesh, Cuba, India, Iran, Iraq, Libya, Pakistan, Sri
Lanka, or a national of a Republic of the former Socialist Federal
Republic of Yugoslavia (effective August 16, 1993) which includes
Bosnia, Croatia, Serbia, Montenegro, Slovenia, and Macedonia. This
waiver of passport and visa requirement is not available to an alien who
is a citizen or national of North Korea (Democratic People's Republic of
Korea) or Democratic Republic of Vietnam and is a resident of the said
countries.
(4) Foreign government officials in transit. If an alien is of the
class described in section 212(d)(8) of the Act, only a valid unexpired
visa and a travel document valid for entry into a foreign country for at
least 30 days from the date of admission to the United States are
required.
(g) Unforeseen emergency. A nonimmigrant seeking admission to the
United States must present an unexpired visa and a passport valid for
the amount of time set forth in section 212(a)(7)(B) of the Act, or a
valid border crossing identification card at the time of application for
admission, unless the nonimmigrant satisfies the requirements described
in one or more of the paragraphs (a) through (f) or (i) of this section.
Upon a nonimmigrant's application on Form I-193, a district director at
a port of entry may, in the exercise of his or her discretion, on a
case-by-case basis, waive the documentary requirements, if satisfied
that the nonimmigrant cannot present the required documents because of
an unforeseen emergency. The district director or the Deputy
Commissioner may at any time revoke a waiver previously authorized
pursuant to this paragraph and notify the nonimmigrant in writing to
that effect.
(h) Fiancees or fiances of U.S. citizens. Notwithstanding any of the
provisions of this part, an alien seeking admission as a fiancee or
fiance of a U.S. citizen pursuant to section 101(a)(15)(K) of the Act
shall be in possession of a nonimmigrant visa issued by an American
consular officer classifying the alien under that section.
(i) Visa Waiver Pilot Program. A visa is not required of any alien
who is eligible to apply for admission to the United States as a Visa
Waiver Pilot Program applicant pursuant to the provisions of section 217
of the Act and part 217 of this chapter if such alien is a national of a
country designated under the Visa Waiver Pilot Program, who seeks
admission to the United States for a period of 90 days or less as a
visitor for business or pleasure.
(j) Officers authorized to act upon recommendations of United States
consular officers for waiver of visa and passport requirements. All
district directors, the officers in charge are authorized to act upon
recommendations made by United States consular officers or by officers
of the Visa Office, Department of State, pursuant to the provisions of
22 CFR 41.7 for waiver of visa and passport requirements under the
provisions of section 212(d)(4)(A) of the Act. The District Director at
Washington, DC, has jurisdiction in such cases recommended to the
Service at the seat of Government level by the Department of State.
Neither an application nor fee are required if the concurrence in a
passport or visa waiver is requested by a U.S. consular officer or by an
officer of the Visa Office. The district director or the Deputy
Commissioner, may at any time revoke a waiver previously authorized
pursuant to this paragraph and notify the nonimmigrant alien in writing
to that effect.
(k) Cancellation of nonimmigrant visas by immigration officers. Upon
receipt of advice from the Department of State that a nonimmigrant visa
has been revoked or invalidated, and request by that Department for such
action, immigration officers shall place an appropriate endorsement
thereon.
(l) Treaty traders and investors. Notwithstanding any of the
provisions of this part, an alien seeking admission as a treaty trader
or investor under the provisions of Chapter 16 of the North American
Free Trade Agreement (NAFTA) pursuant to section 101(a)(15)(E) of the
Act, shall be in possession of a nonimmigrant visa issued by an American
consular officer
[[Page 191]]
classifying the alien under that section.
(m) Aliens in S classification. Notwithstanding any of the
provisions of this part, an alien seeking admission pursuant to section
101(a)(15)(S) of the Act must be in possession of appropriate documents
issued by a United States consular officer classifying the alien under
that section.
(Secs. 103, 104, 212 of the Immigration and Nationality Act, as amended
(8 U.S.C. 1103, 1104, 1132))
[26 FR 12066, Dec. 16, 1961]
Editorial Note: For Federal Register citations affecting Sec. 212.1,
see the List of CFR Sections Affected in the Finding Aids section in
this volume.
Sec. 212.2 Consent to reapply for admission after deportation, removal or departure at Government expense.
(a) Evidence. Any alien who has been deported or removed from the
United States is inadmissible to the United States unless the alien has
remained outside of the United States for five consecutive years since
the date of deportation or removal. If the alien has been convicted of
an aggravated felony, he or she must remain outside of the United States
for twenty consecutive years from the deportation date before he or she
is eligible to re-enter the United States. Any alien who has been
deported or removed from the United States and is applying for a visa,
admission to the United States, or adjustment of status, must present
proof that he or she has remained outside of the United States for the
time period required for re-entry after deportation or removal. The
examining consular or immigration officer must be satisfied that since
the alien's deportation or removal, the alien has remained outside the
United States for more than five consecutive years, or twenty
consecutive years in the case of an alien convicted of an aggravated
felony as defined in section 101(a)(43) of the Act. Any alien who does
not satisfactorily present proof of absence from the United States for
more than five consecutive years, or twenty consecutive years in the
case of an alien convicted of an aggravated felony, to the consular or
immigration officer, and any alien who is seeking to enter the United
States prior to the completion of the requisite five- or twenty-year
absence, must apply for permission to reapply for admission to the
United States as provided under this part. A temporary stay in the
United States under section 212(d)(3) of the Act does not interrupt the
five or twenty consecutive year absence requirement.
(b) Alien applying to consular officer for nonimmigrant visa or
nonresident alien border crossing card. (1) An alien who is applying to
a consular officer for a nonimmigrant visa or a nonresident alien border
crossing card, must request permission to reapply for admission to the
United States if five years, or twenty years if the alien's deportation
was based upon a conviction for an aggravated felony, have not elapsed
since the date of deportation or removal. This permission shall be
requested in the manner prescribed through the consular officer, and may
be granted only in accordance with sections 212(a)(17) and 212(d)(3)(A)
of the Act and Sec. 212.4 of this part. However, the alien may apply for
such permission by submitting Form I-212, Application for Permission to
Reapply for Admission into the United States after Deportation or
Removal, to the consular officer if that officer is willing to accept
the application, and recommends to the district director that the alien
be permitted to apply.
(2) The consular officer shall forward the Form I-212 to the
district director with jurisdiction over the place where the deportation
or removal proceedings were held.
(c) Special provisions for an applicant for nonimmigrant visa under
section 101(a)(15)(K) of the Act. (1) An applicant for a nonimmigrant
visa under section 101(a)(15)(K) must:
(i) Be the beneficiary of a valid visa petition approved by the
Service; and
(ii) File an application on Form I-212 with the consular officer for
permission to reapply for admission to the United States after
deportation or removal.
(2) The consular officer must forward the Form I-212 to the Service
office with jurisdiction over the area within which the consular officer
is located. If the alien is ineligible on grounds which, upon the
applicant's marriage to the United States citizen petitioner,
[[Page 192]]
may be waived under section 212 (g), (h), or (i) of the Act, the
consular officer must also forward a recommendation as to whether the
waiver should be granted.
(d) Applicant for immigrant visa. An applicant for an immigrant visa
who is not physically present in the United States and who requires
permission to reapply must file Form I-212 with the district director
having jurisdiction over the place where the deportation or removal
proceedings were held. If the applicant also requires a waiver under
section 212 (g), (h), or (i) of the Act, Form I-601, Application for
Waiver of Grounds of Excludability, must be filed simultaneously with
the Form I-212 with the American consul having jurisdiction over the
alien's place of residence. The consul must forward these forms to the
appropriate Service office abroad with jurisdiction over the area within
which the consul is located.
(e) Applicant for adjustment of status. An applicant for adjustment
of status under section 245 of the Act and part 245 of this chapter must
request permission to reapply for entry in conjunction with his or her
application for adjustment of status. This request is made by filing an
application for permission to reapply, Form I-212, with the district
director having jurisdiction over the place where the alien resides. If
the application under section 245 of the Act has been initiated,
renewed, or is pending in a proceeding before an immigration judge, the
district director must refer the Form I-212 to the immigration judge for
adjudication.
(f) Applicant for admission at port of entry. Within five years of
the deportation or removal, or twenty years in the case of an alien
convicted of an aggravated felony, an alien may request permission at a
port of entry to reapply for admission to the United States. The alien
shall file the Form I-212 with the district director having jurisdiction
over the port of entry.
(g) Other applicants. (1) Any applicant for permission to reapply
for admission under circumstances other than those described in
paragraphs (b) through (f) of this section must file Form I-212. This
form is filed with either:
(i) The district director having jurisdiction over the place where
the deportation or removal proceedings were held; or
(ii) The district director who exercised or is exercising
jurisdiction over the applicant's most recent proceeding.
(2) If the applicant is physically present in the United States but
is ineligible to apply for adjustment of status, he or she must file the
application with the district director having jurisdiction over his or
her place of residence.
(h) Decision. An applicant who has submitted a request for consent
to reapply for admission after deportation or removal must be notified
of the decision. If the application is denied, the applicant must be
notified of the reasons for the denial and of his or her right to appeal
as provided in part 103 of this chapter. Except in the case of an
applicant seeking to be granted advance permission to reapply for
admission prior to his or her departure from the United States, the
denial of the application shall be without prejudice to the renewal of
the application in the course of proceedings before an immigration judge
under section 242 of the Act and this chapter.
(i) Retroactive approval. (1) If the alien filed Form I-212 when
seeking admission at a port of entry, the approval of the Form I-212
shall be retroactive to either:
(i) The date on which the alien embarked or reembarked at a place
outside the United States; or
(ii) The date on which the alien attempted to be admitted from
foreign contiguous territory.
(2) If the alien filed Form I-212 in conjunction with an application
for adjustment of status under section 245 of the Act, the approval of
Form I-212 shall be retroactive to the date on which the alien embarked
or reembarked at a place outside the United States.
(j) Advance approval. An alien whose departure will execute an order
of deportation shall receive a conditional approval depending upon his
or her satisfactory departure. However, the grant of permission to
reapply does not waive inadmissibility under section 212(a) (16) or (17)
of the Act resulting
[[Page 193]]
from exclusion, deportation, or removal proceedings which are instituted
subsequent to the date permission to reapply is granted.
[56 FR 23212, May 21, 1991]
Sec. 212.3 Application for the exercise of discretion under section 212(c).
(a) Jurisdiction. An application for the exercise of discretion
under section 212(c) of the Act shall be submitted on Form I-191,
Application for Advance Permission to Return to Unrelinquished Domicile,
to:
(1) The district director having jurisdiction over the area in which
the applicant's intended or actual place of residence in the United
States is located; or
(2) The Immigration Court if the application is made in the course
of proceedings under sections 235, 236, or 242 of the Act.
(b) Filing of application. The application may be filed prior to, at
the time of, or at any time after the applicant's departure from or
arrival into the United States. All material facts and/or circumstances
which the applicant knows or believes apply to the grounds of
excludability or deportability must be described. The applicant must
also submit all available documentation relating to such grounds.
(c) Decision of the District Director. A district director may grant
or deny an application for advance permission to return to an
unrelinquished domicile under section 212(c) of the Act, in the exercise
of discretion, unless otherwise prohibited by paragraph (f) of this
section. The applicant shall be notified of the decision and, if the
application is denied, of the reason(s) for denial. No appeal shall lie
from denial of the application, but the application may be renewed
before an Immigration Judge as provided in paragraph (e) of this
section.
(d) Validity. Once an application is approved, that approval is
valid indefinitely. However, the approval covers only those specific
grounds of excludability or deportability that were described in the
application. An application who failed to describe any other grounds of
excludability or deportability, or failed to disclose material facts
existing at the time of the approval of the application, remains
excludable or deportable under the previously unidentified grounds. If
at a later date, the applicant becomes subject to exclusion or
deportation based upon these previously unidentified grounds or upon new
ground(s), a new application must be filed with the appropriate district
director.
(e) Filing or renewal of applications before an Immigration Judge.
(1) An application for the exercise of discretion under section 212(c)
of the Act may be renewed or submitted in proceedings before an
Immigration Judge under sections 235, 236, or 242 of the Act, and under
this chapter. Such application shall be adjudicated by the Immigration
Judge, without regard to whether the applicant previously has made
application to the district director.
(2) The Immigration Judge may grant or deny an application for
advance permission to return to an unrelinquished domicile under section
212(c) of the Act, in the exercise of discretion, unless otherwise
prohibited by paragraph (f) of this section.
(3) An alien otherwise entitled to appeal to the Board of
Immigration Appeals may appeal the denial by the Immigration Judge of
this application in accordance with the provisions of Sec. 3.36 of this
chapter.
(f) Limitations on discretion to grant an application under section
212(c) of the Act. A district director or Immigration Judge shall deny
an application for advance permission to enter under section 212(c) of
the Act if:
(1) The alien has not been lawfully admitted for permanent
residence;
(2) The alien has not maintained lawful domicile in the United
States, as either a lawful permanent resident or a lawful temporary
resident pursuant to section 245A or section 210 of the Act, for at
least seven consecutive years immediately preceding the filing of the
application;
(3) The alien is subject to exclusion from the United States under
paragraphs (3)(A), (3)(B), (3)(C), or (3)(E) of section 212(a) of the
Act;
(4) The alien has been convicted of an aggravated felony, as defined
by section 101(a)(43) of the Act, and has served a term of imprisonment
of at least five years for such conviction; or
[[Page 194]]
(5) The alien applies for relief under section 212(c) within five
years of the barring act as enumerated in one or more sections of
section 242B(e) (1) through (4) of the Act.
[56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61
FR 59825, Nov. 25, 1996]
Sec. 212.4 Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3).
(a) Applications under section 212(d)(3)(A)--(1) General. District
directors and officers in charge outside the United States in the
districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy are
authorized to act upon recommendations made by consular officers for the
exercise of discretion under section 212(d)(3)(A) of the Act. The
District Director, Washington, DC, has jurisdiction in such cases
recommended to the Service at the seat-of-government level by the
Department of State. When a consular officer or other State Department
official recommends that the benefits of section 212(d)(3)(A) of the Act
be accorded an alien, neither an application nor fee shall be required.
The recommendation shall specify:
(i) The reasons for inadmissibility and each section of law under
which the alien is inadmissible;
(ii) Each intended date of arrival;
(iii) The length of each proposed stay in the United States;
(iv) The purpose of each stay;
(v) The number of entries which the alien intends to make; and
(vi) The justification for exercising the authority contained in
section 212(d)(3) of the Act.
If the alien desires to make multiple entries and the consular officer
or other State Department official believes that the circumstances
justify the issuance of a visa valid for multiple entries rather than
for a specified number of entries, and recommends that the alien be
accorded an authorization valid for multiple entries, the information
required by items (ii) and (iii) shall be furnished only with respect to
the initial entry. Item (ii) does not apply to a bona fide crewman. The
consular officer or other State Department official shall be notified of
the decision on his recommendation. No appeal by the alien shall lie
from an adverse decision made by a Service officer on the recommendation
of a consular officer or other State Department official.
(2) Authority of consular officers to approve section 212(d)(3)(A)
recommendations pertaining to aliens inadmissible under section
212(a)(28)(C). In certain categories of visa cases defined by the
Secretary of State, United States consular officers assigned to visa-
issuing posts abroad may, on behalf of the Attorney General pursuant to
section 212(d)(3)(A) of the Act, approve a recommendation by another
consular officer that an alien be admitted temporarily despite visa
ineligibility solely because the alien is of the class of aliens defined
at section 212(a)(28)(C) of the Act, as a result of presumed or actual
membership in, or affiliation with, an organization described in that
section. Authorizations for temporary admission granted by consular
officers shall be subject to the terms specified in Sec. 212.4(c) of
this chapter. Any recommendation which is not clearly approvable shall,
and any recommendation may, be presented to the appropriate official of
the Immigration and Naturalization Service for a determination.
(b) Applications under section 212(d)(3)(B). An application for the
exercise of discretion under section 212(d)(3)(B) of the Act shall be
submitted on Form I-192 to the district director in charge of the
applicant's intended port of entry prior to the applicant's arrival in
the United States. (For Department of State procedure when a visa is
required, see 22 CFR 41.95 and paragraph (a) of this section.) If the
application is made because the applicant may be inadmissible due to
present or past membership in or affiliation with any Communist or other
totalitarian party or organization, there shall be attached to the
application a written statement of the history of the applicant's
membership or affiliation, including the period of such membership or
affiliation, whether the applicant held any office in the organization,
and whether his membership or affiliation was voluntary or involuntary.
If the applicant alleges that his membership or affiliation was
involuntary, the statement shall include the
[[Page 195]]
basis for that allegation. When the application is made because the
applicant may be inadmissible due to disease, mental or physical defect,
or disability of any kind, the application shall describe the disease,
defect, or disability. If the purpose of seeking admission to the United
States is for treatment, there shall be attached to the application
statements in writing to establish that satisfactory treatment cannot be
obtained outside the United States; that arrangements have been
completed for treatment, and where and from whom treatment will be
received; what financial arrangements for payment of expenses incurred
in connection with the treatment have been made, and that a bond will be
available if required. When the application is made because the
applicant may be inadmissible due to the conviction of one or more
crimes, the designation of each crime, the date and place of its
commission and of the conviction thereof, and the sentence or other
judgment of the court shall be stated in the application; in such a case
the application shall be supplemented by the official record of each
conviction, and any other documents relating to commutation of sentence,
parole, probation, or pardon. If the application is made at the time of
the applicant's arrival to the district director at a port of entry, the
applicant shall establish that he was not aware of the ground of
inadmissibility and that it could not have been ascertained by the
exercise of reasonable diligence, and he shall be in possession of a
passport and visa, if required, or have been granted a waiver thereof.
The applicant shall be notified of the decision and if the application
is denied of the reasons therefor and of his right to appeal to the
Board within 15 days after the mailing of the notification of decision
in accordance with the Provisions of part 3 of this chapter. If denied,
the denial shall be without prejudice to renewal of the application in
the course of proceedings before a special inquiry officer under
sections 235 and 236 of the Act and this chapter. When an appeal may not
be taken from a decision of a special inquiry officer excluding an alien
but the alien has applied for the exercise of discretion under section
212(d)(3)(B) of the Act, the alien may appeal to the Board from a denial
of such application in accordance with the provisions of Sec. 236.5(b)
of this chapter.
(c) Terms of authorization. Each authorization under section
212(d)(3) (A) or (B) of the Act shall specify:
(1) Each section of law under which the alien is inadmissible;
(2) The intended date of each arrival;
(3) The length of each stay authorized in the United States;
(4) The purpose of each stay;
(5) The number of entries for which the authorization is valid;
(6) The dates on or between which each application for admission at
ports of entry in the United States is valid; and
(7) The justification for exercising the authority contained in
section 212(d)(3) of the Act. If the consular officer has recommended
under section 212(d)(3)(A), or an applicant under section 212(d)(3)(B)
seeks, the issuance of an authorization valid for multiple entries
rather than for a specified number of entries, and it is determined that
the circumstances justify the issuance of the authorization valid for
mutiple entries, the information required by items (2) and (3) shall be
specified only with respect to the initial entry. Item (2) does not
apply to a bona fide crewman. Authorizations granted to crewmen may be
valid for a maximum period of 2 years for application for admission at
U.S. ports of entry and may be valid for multiple entries. An
authorization issued in conjunction with an application for a
nonresident alien border crossing card shall be valid for a period not
to exceed the validity of such card for applications for admission at
U.S. ports of entry and shall be valid for multiple entries. A multiple
entry authorization for a person other than a crewman or applicant for a
border crossing card may be made valid for a maximum period of 1 year
for applications for admission at U.S. ports of entry, except that a
period in excess of 1 year may be permitted on the recommendation of the
Department of State. A single entry authorization to apply for admission
at a U.S. port of entry shall not be valid for more than 6 months from
the date the authorization is issued. All admissions pursuant
[[Page 196]]
to section 212(d)(3) of the Act shall be subject to the terms and
conditions set forth in the authorization. The period for which the
alien's admission is authorized pursuant to item (3) shall not exceed
the period justified, subject to the limitations specified in part 214
of this chapter for each class of nonimmigrants. Each authorization
shall specify that it is subject to revocation at any time. Unless the
alien applies for admission during the period of validity of the
authorization, a new authorization is required. An authorization may not
be revalidated.
(d) Admission of groups inadmissible under section 212(a)(28) for
attendance at international conferences. When the Secretary of State
recommends that a group of nonimmigrant aliens and their accompanying
family members be admitted to attend international conferences
notwithstanding their inadmissibility under section 212(a)(28) of the
Act, the Deputy Commissioner, may enter an order pursuant to the
authority contained in section 212(d)(3)(A) of the Act specifying the
terms and conditions of their admission and stay.
(e) Inadmissibility under section 212(a)(1). Pursuant to the
authority contained in section 212(d)(3) of the Act, the temporary
admission of a nonimmigrant visitor is authorized notwithstanding
inadmissibility under section 212(a)(1) of the Act, if such alien is
accompanied by a member of his/her family, or a guardian who will be
responsible for him/her during the period of admission authorized.
(f) Action upon alien's arrival. Upon admitting an alien who has
been granted the benefits of section 212(d)(3)(A) of the Act, the
immigration officer shall be guided by the conditions and limitations
imposed in the authorization and noted by the consular officer in the
alien's passport. When admitting any alien who has been granted the
benefits of section 212(d)(3)(B) of the Act, the Immigration officer
shall note on the arrival-departure record, Form I-94, or crewman's
landing permit, Form I-95, issued to the alien, the conditions and
limitations imposed in the authorization.
(g) Authorizations issued to crewmen without limitation as to period
of validity. When a crewman who has a valid section 212(d)(3)
authorization without any time limitation comes to the attention of the
Service, his travel document shall be endorsed to show that the validity
of his section 212(d)(3) authorization expires as of a date six months
thereafter, and any previously-issued Form I-184 shall be lifted and
Form I-95 shall be issued in its place and similarly endorsed.
(h) Revocation. The Deputy Commissioner or the district director may
at any time revoke a waiver previously authorized under section
212(d)(3) of the Act and shall notify the nonimmigrant in writing to
that effect.
(i) Alien witnesses and informants--(1) Waivers under section
212(d)(1) of the Act. Upon the application of a federal or state law
enforcement authority (``LEA''), which shall include a state or federal
court or United States Attorney's Office, pursuant to the filing of Form
I-854, Inter-Agency Alien Witness and Informant Record, for nonimmigrant
classification described in section 101(a)(15)(S) of the Act, the
Commissioner shall determine whether a ground of exclusion exists with
respect to the alien for whom classification is sought and, if so,
whether it is in the national interest to exercise the discretion to
waive the ground of excludability, other than section 212(a)(3)(E) of
the Act. The Commissioner may at any time revoke a waiver previously
authorized under section 212(d)(1) of the Act. In the event the
Commissioner decides to revoke a previously authorized waiver for an S
nonimmigrant, the Assistant Attorney General, Criminal Division, and the
relevant LEA shall be notified in writing to that effect. The Assistant
Attorney General, Criminal Division, shall concur in or object to the
decision. Unless the Assistant Attorney General, Criminal Division,
objects within 7 days, he or she shall be deemed to have concurred in
the decision. In the event of an objection by the Assistant Attorney
General, Criminal Division, the matter will be expeditiously referred to
the Deputy Attorney General for a final resolution. In no circumstances
shall the alien or the relevant LEA have a right of appeal from any
decision to revoke.
[[Page 197]]
(2) Grounds of removal. Nothing shall prohibit the Service from
removing from the United States an alien classified pursuant to section
101(a)(15)(S) of the Act for conduct committed after the alien has been
admitted to the United States as an S nonimmigrant, or after the alien's
change to S classification, or for conduct or a condition undisclosed to
the Attorney General prior to the alien's admission in, or change to, S
classification, unless such conduct or condition is waived prior to
admission and classification. In the event the Commissioner decides to
remove an S nonimmigrant from the United States, the Assistant Attorney
General, Criminal Division, and the relevant LEA shall be notified in
writing to that effect. The Assistant Attorney General, Criminal
Division, shall concur in or object to that decision. Unless the
Assistant Attorney General, Criminal Division, objects within 7 days, he
or she shall be deemed to have concurred in the decision. In the event
of an objection by the Assistant Attorney General, Criminal Division,
the matter will be expeditiously referred to the Deputy Attorney General
for a final resolution. In no circumstances shall the alien or the
relevant LEA have a right of appeal from any decision to remove.
[29 FR 15252, Nov. 13, 1964, as amended at 30 FR 12330, Sept. 28, 1965;
31 FR 10413, Aug. 3, 1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb.
17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470, July 21, 1975; 51 FR
32295, Sept. 10, 1986; 53 FR 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25,
1995; 60 FR 52248, Oct. 5, 1995]
Sec. 212.5 Parole of aliens into the United States.
(a) In determining whether or not aliens who have been or are
detained in accordance with Sec. 235.3 (b) or (c) will be paroled out of
detention, the district director should consider the following:
(1) The parole of aliens who have serious medical conditions in
which continued detention would not be appropriate would generally be
justified by ``emergent reasons'';
(2) The parole of aliens within the following groups would generally
come within the category of aliens for whom the granting of the parole
exception would be ``strictly in the public interest'', provided that
the aliens present neither a security risk nor a risk of absconding:
(i) Women who have been medically certified as pregnant;
(ii) Aliens who are defined as juveniles in 8 CFR 242.24. The
district director shall follow the guidelines set forth in
Sec. 242.24(b) in determining under what conditions a juvenile should be
paroled from detention.
(iii) Aliens who have close family relatives in the United States
(parent, spouse, children, or siblings who are United States citizens or
lawful permanent resident aliens) who are eligible to file, and have
filed, a visa petition on behalf of the detainee;
(iv) Aliens who will be witnesses in proceedings being, or to be,
conducted by judicial, administrative, or legislative bodies in the
United States;
(v) Aliens whose continued detention is not in the public interest
as determined by the district director.
(3) Aliens subject to prosecution in the United States who are
needed for the purposes of such prosecution may be paroled to the
custody of the appropriate responsible agency or prosecuting authority.
(b) In the cases of all other arriving aliens except those detained
under Sec. 235.3(b) or (c), and paragraph (a) of this section, the
district director in charge of a port of entry may, prior to examination
by an immigration officer, or subsequent to such examination and pending
a final determination of inadmissibility in accordance with sections 235
and 236 of the Act and this chapter, or after a finding of
inadmissibility has been made, parole into the United States temporarily
in accordance with section 212(d)(5) of the Act any such alien applicant
for admission at such port of entry under such terms and conditions,
including those set forth in paragraph (c) of this section, as he may
deem appropriate; however, an alien who arrives at a port of entry and
applies for parole into the United States for the sole purpose of
seeking adjustment of status under section 245A of the Act, without
benefit of advance authorization as described in paragraph (e)(2) of
this section shall be denied parole and detained for exclusion in
accordance with the provisions
[[Page 198]]
of paragraph (b) or (c) of Sec. 235.3 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 exclusion under paragraph (b) or (c) of Sec. 235.3 of
this chapter, unless the alien has been recommended for approval of such
application for adjustment by a consular officer at an Overseas
Processing Office.
(c) Conditions. In any case where an alien is paroled under
paragraph (a) or (b) of this section, the district director may require
reaonable assurances that the alien will appear at all hearings and/or
depart the United States when required to do so. Not all factors listed
need be present for parole to be exercised. The district director 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, and a bond may be exacted on Form I-352
in such amount as the district director may deem appropriate;
(2) Community ties such as close relatives with known addresses; and
(3) Agreement to reasonable conditions (such as periodic reporting
of whereabouts).
(d) Termination of parole--(1) Automatic. Parole shall be
automatically terminated without written notice (i) upon the departure
from the United States of the alien, or, (ii) if not departed, at the
expiration of the time for which parole was authorized, and in the
latter case the alien shall be processed in accordance with paragraph
(d)(2) of this section except that no written notice shall be required.
(2)(i) On notice. In cases not covered by paragraph (d)(1) of this
section, upon accomplishment of the purpose for which parole was
authorized or when in the opinion of the district director in charge of
the area in which the alien is located neither emergency nor public
interest 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 which he or she had at the
time of parole. Any further inspection or hearing shall be conducted
under section 235 or 236 of the Act and this chapter, or any order of
exclusion and deportation previously entered shall be executed. If the
exclusion order cannot be executed by deportation within a reasonable
time, the alien shall again be released on parole unless in the opinion
of the district director the public interest requires that the alien be
continued in custody.
(ii) An alien who is granted parole into the United States after
enactment of the Immigration Reform and Control Act of 1986 for other
than the specific purpose of applying for adjustment of status under
section 245A of the Act shall not be permitted to avail him or herself
of the privilege of adjustment thereunder. Failure to abide by this
provision through making such an application will subject the alien to
termination of parole status and institution of proceedings under
sections 235 and 236 of the Act without the written notice of
termination required by Sec. 212.5(d)(2)(i) of this chapter.
(e) Advance authorization. When parole is authorized for an alien
who will travel to the United States without a visa, the alien shall be
issued Form I-512.
(f) Parole for certain Cuban nationals. Notwithstanding any other
provision respecting parole, the determination whether to release on
parole, or to revoke the parole of, a native of Cuba who last came to
the United States between April 15, 1980, and October 20, 1980, shall be
governed by the terms of Secs. 212.12 and 212.13.
(g) Effect of parole of Cuban and Haitian nationals. (1) Except as
provided in paragraph (g)(2) of this section, any national of Cuba or
Haiti who was paroled into the United States on or after October 10,
1980, shall be considered to have been paroled in the special status for
nationals of Cuba or Haiti, referred to in section 501(e)(1) of the
Refugee Education Assistance Act of 1980, Public Law 96-422, as amended
(8 U.S.C. 1522 note).
(2) A national of Cuba or Haiti shall not be considered to have been
paroled in the special status for nationals of Cuba or Haiti, referred
to in section
[[Page 199]]
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]
Sec. 212.6 Nonresident alien border crossing cards.
(a) Use--(1) Nonresident alien Canadian border crossing card, Form
I-185. Any Canadian citizen or British subject residing in Canada may
use Form I-185 for entry at a United States port of entry.
(2) Mexican border crossing card, Form I-186 or I-586. The rightful
holder of a nonresident alien Mexican border crossing card, Form I-186
or I-586, may be admitted under Sec. 235.1(f) and (g) of this title if
found otherwise admissible. However, any alien seeking entry as a
visitor for business or pleasure must also present a valid passport and
shall be issued Form I-94 if the alien is applying for admission from:
(i) A country other than Mexico or Canada, or
(ii) Canada if the alien has been in a country other than the United
States or Canada since leaving Mexico.
(b) Application. A citizen of Canada or a British subject residing
in Canada must apply on Form I-175 for a nonresident alien border
crossing card, supporting his/her application with evidence of Canadian
or British citizenship, residence in Canada, and two photographs, size
1\1/2\'' x 1\1/2\''. Form I-175 must be submitted to an immigration
officer at a Canadian border port of entry. A citizen of Mexico must
apply on Form I-190 for a nonresident alien border crossing card,
supporting his application with evidence of Mexican citizenship and
residence, a valid unexpired passport or a valid Mexican Form 13, and
one color photograph with a white background. The photograph must be
glossy, unretouched and not mounted. Dimension of the facial image must
be approximately one inch from chin to top of hair, and the applicant
must be shown in \3/4\ frontal view showing right side of face with
right ear visible. Form I-190 must be submitted to an immigration
officer at a Mexican border port of entry or to an American consular
officer in Mexico, other than one assigned to a consulate situated
adjacent to the border between Mexico and the United States; however,
Form FS-257 may be used in lieu of Form I-190 when the application is
made to an American consular officer. If the application is submitted to
an immigration officer, each applicant, regardless of age, must appear
in person for an interview concerning eligibility for a nonresident
alien border crossing card. If the application is submitted to a
consular officer, each applicant, except a child under fourteen years of
age, must appear in person for the interview. If the application is
denied, the applicant shall be given a notice of denial with the reasons
on Form I-180. There is no appeal from the denial but the denial is
without prejudice to a subsequent application for a visa or for
admission to the United States.
(c) Validity. Notwithstanding any expiration dates which may appear
thereon, Forms I-185, I-186, and I-586, are valid until revoked or
voided.
(d) Voidance--(1) At port of entry. Forms I-185, I-186 and I-586 may
be declared void by a supervisory immigration officer at a port of
entry. If the card is declared void, the applicant shall be advised in
writing that he/she may request a hearing before an immigration judge to
determine his/her admissibility in accordance with part 236 of this
chapter and may be represented at this hearing by an attorney of his/her
own choice at no expense to the Government. He/she shall also be advised
of the availability of free legal services programs qualified under part
292a of this chapter and organizations recognized under Sec. 292.2 of
this chapter, located in the district where the exclusion hearing is to
be held. If the applicant requests a hearing, Forms I-185, I-186 and I-
586 shall be held at the port of
[[Page 200]]
entry for presentation to the immigration judge. If the applicant
chooses not to have a hearing, the card shall be voided. The alien to
whom the form was issued shall be notified of the action taken and the
reasons therefore by means of form I-180 delivered in person or, if such
action is not possible, by mailing the Form I-180 to the last known
address.
(2) Within the United States. If the holder of a Form I-185, I-186
or I-586 is placed under deportation proceedings, no action to void the
card shall be taken pending the outcome of the hearing. If the alien is
ordered deported or granted voluntary departure, the card shall be
voided by an immigration officer. In the case of an alien holder of a
Form I-185, I-186 or I-586 who is granted voluntary departure without a
hearing, the card may be declared void by an immigration officer who is
authorized to issue an Order to Show Cause or to grant voluntary
departure.
(3) In Mexico or Canada. Forms I-185, I-186 or I-586 may be declared
void by a consular officer in Mexico or Canada if the card was issued in
one of those countries.
(4) Grounds. Grounds for voidance of a Form I-185, I-186 or I-586
shall be that the holder has violated the immigration laws; that he/she
is inadmissible to the United States; or that he/she has abandoned his/
her residence in the country upon which the card was granted.
(e) Replacement. If a nonresident alien border crossing card has
been lost, stolen, mutilated, or destroyed, the person to show the card
was issued may apply for a new card as provided for in this section. A
fee as prescribed in Sec. 103.7(b)(1) of this chapter must be submitted
at time of application for the replacement card. The holder of a Form I-
185, I-186, or I-586 which is in poor condition because of improper
production may be issued a new form without submitting fee or
application upon surrendering the original card.
(f) Previous removal or deportation; waiver of inadmissibility.
Pursuant to the authority contained in section 212 (d)(3) of the Act,
the temporary admission of an alien who is inadmissible under paragraph
(16) or (17) of section 212(a) of the Act is authorized if such alien is
in possession of a Mexican Nonresident Alien Border Crossing Card and he
establishes that he is otherwise admissible as a nonimmigrant visitor or
student except for his removal or deportation prior to November 1, 1956,
because of entry without inspection or lack of required documents.
[30 FR 10184, Aug. 17, 1965, as amended at 34 FR 129, Jan. 4, 1969; 35
FR 3065, Feb. 17, 1970; 37 FR 7584, Apr. 18, 1972; 37 FR 8061, Apr. 25,
1972; 45 FR 11114, Feb. 20, 1980; 46 FR 25082, May 5, 1981; 48 FR 35349,
Aug. 4, 1983; 60 FR 40068, Aug. 7, 1995]
Sec. 212.7 Waiver of certain grounds of excludability.
(a) Section 212(h) or (i)--(1) Filing procedure--(i) Immigrant visa
or fiance(e) nonimmigrant visa applicant. An applicant for an immigrant
visa or ``K'' nonimmigrant visa who is excludable and seeks a waiver
under section 212(h) or (i) of the Act shall file an application on Form
I-601 at the consular office considering the visa application. Upon
determining that the alien is admissible except for the grounds for
which a waiver is sought, the consular officer shall transmit the Form
I-601 to the Service for decision.
(ii) Adjustment of status applicant. An applicant for adjustment of
status who is excludable and seeks a waiver under section 212(h) or (i)
of the Act shall file an application on Form I-601 with the director or
immigration judge considering the application for adjustment of status.
(2) Termination of application for lack of prosecution. An applicant
may withdraw the application at any time prior to the final decision,
whereupon the case will be closed and the consulate notified. If the
applicant fails to prosecute the application within a reasonable time
either before or after interview the applicant shall be notified that if
he or she fails to prosecute the application within 30 days the case
will be closed subject to being reopened at the applicant's request. If
no action has been taken within the 30-day period immediately
thereafter, the case will be closed and the appropriate consul notified.
(3) Decision. If the application is approved the director shall
complete Form I-607 for inclusion in the alien's
[[Page 201]]
file and shall notify the alien of the decision. If the application is
denied the applicant shall be notified of the decision, of the reasons
therefor, and of the right to appeal in accordance with part 103 of this
chapter.
(4) Validity. A waiver granted under section 212(h) or section
212(i) of the Act shall apply only to those grounds of excludability and
to those crimes, events or incidents specified in the application for
waiver. Once granted, the waiver shall be valid indefinitely, even if
the recipient of the waiver later abandons or otherwise loses lawful
permanent resident status, except that any waiver which is granted to an
alien who obtains lawful permanent residence on a conditional basis
under section 216 of the Act shall automatically terminate concurrently
with the termination of such residence pursuant to the provisions of
section 216. Separate notification of the termination of the waiver is
not required when an alien is notified of the termination of residence
under section 216 of the Act, and no appeal shall lie from the decision
to terminate the waiver on this basis. However, if the respondent is
found not to be deportable in a deportation proceeding based on the
termination, the waiver shall again become effective. Nothing in this
subsection shall preclude the director from reconsidering a decision to
approve a waiver if the decision is determined to have been made in
error.
(b) Section 212(g) (tuberculosis and certain mental conditions)--(1)
General. Any alien who is ineligible for a visa and is excluded from
admission into the United States under section 212(a) (1), (3), or (6)
of the Act may file an Application for Waiver of Grounds of
Excludability (Form I-601) under section 212(g) of the Act at an office
designated in paragraph (2). The family member specified in section
212(g) of the Act may file the waiver for the applicant if the applicant
is incompetent to file the waiver personally.
(2) Locations for filing Form I-601. Form I-601 may be filed at any
one of the following offices:
(i) The American consulate where the application for a visa is being
considered if the alien is outside the United States;
(ii) The Service office having jurisdiction over the port of entry
where the alien is applying for admission into the United States; or
(iii) The Service office having jurisdiction over the alien if the
alien is in the United States.
(3) Section 212(a)(6) (tuberculosis). If the alien is excludable
under section 212(a)(6) of the Act because of tuberculosis, he shall
execute Statement A on the reverse of page 1 of Form I-601. In addition,
he or his sponsor in the United States is responsible for having
Statement B executed by the physician or health facility which has
agreed to supply treatment or observation; and, if required, Statement C
shall be executed by the appropriate local or State health officer.
(4) Section 212(a) (1) or (3) (certain mental conditions)--(i)
Arrangements for submission of medical report. If the alien is
excludable under section 212(a) (1) or (3) (because of mental
retardation or because of a past history of mental illness) he or his
sponsoring family member shall submit an executed Form I-601 to the
consular or Service office with a statement that arrangements have been
made for the submission to that office of a medical report. The medical
report shall contain a complete medical history of the alien, including
details of any hospitalization or institutional care or treatment for
any physical or mental condition; findings as to the current physical
condition of the alien, including reports of chest X-ray examination and
of serologic test for syphilis if the alien is 15 years of age or over,
and other pertinent diagnostic tests; and findings as to the current
mental condition of the alien, with information as to prognosis and life
expectancy and with a report of a psychiatric examination conducted by a
psychiatrist who shall, in case of mental retardation, also provide an
evaluation of the alien's intelligence. For an alien with a past history
of mental illness, the medical report shall also contain available
information on which the U.S. Public Health Service can base a finding
as to whether the alien has been free of such mental illness for a
period of time sufficient in the light of such history to demonstrate
recovery. Upon receipt of the
[[Page 202]]
medical report, the consular or Service office shall refer it to the
U.S. Public Health Service for review.
(ii) Submission of statement. Upon being notified that the medical
report has been reviewed by the U.S. Public Health Service and
determined to be acceptable, the alien or the alien's sponsoring family
member shall submit a statement to the consular or Service office. The
statement must be from a clinic, hospital, institution, specialized
facility, or specialist in the United States approved by the U.S. Public
Health Service. The alien or alien's sponsor may be referred to the
mental retardation or mental health agency of the state of proposed
residence for guidance in selecting a post-arrival medical examining
authority who will complete the evaluation and provide an evaluation
report to the Centers for Disease Control. The statement must specify
the name and address of the specialized facility, or specialist, and
must affirm that:
(A) The specified facility or specialist agrees to evaluate the
alien's mental status and prepare a complete report of the findings of
such evaluation.
(B) The alien, the alien's sponsoring family member, or another
responsible person has made complete financial arrangements for payment
of any charges that may be incurred after arrival for studies, care,
training and service;
(C) The Director, Division of Quarantine, Center for Prevention
Services, Centers for Disease Control, Atlanta, GA. 30333 shall be
furnished:
(1) The report evaluating the alien's mental status within 30 days
after the alien's arrival; and
(2) Prompt notification of the alien's failure to report to the
facility or specialist within 30 days after being notified by the U.S.
Public Health Service that the alien has arrived in the United States.
(D) The alien shall be in an outpatient, inpatient, study, or other
specified status as determined by the responsible local physcian or
specialist during the initial evaluation.
(5) Assurances: Bonds. In all cases under paragraph (b) of this
section the alien or his or her sponsoring family member shall also
submit an assurance that the alien will comply with any special travel
requirements as may be specified by the U.S. Public Health Service and
that, upon the admission of the alien into the United States, he or she
will proceed directly to the facility or specialist specified for the
initial evaluation, and will submit to such further examinations or
treatment as may be required, whether in an outpatient, inpatient, or
other status. The alien, his or her sponsoring family member, or other
responsible person shall provide such assurances or bond as may be
required to assure that the necessary expenses of the alien will be met
and that he or she will not become a public charge. For procedures
relating to cancellation or breaching of bonds, see part 103 of this
chapter.
(c) Section 212(e). (1) An alien who was admitted to the United
States as an exchange visitor, or who acquired that status after
admission, is subject to the foreign residence requirement of section
212(e) of the Act if his or her participation in an exchange program was
financed in whole or in part, directly or indirectly, by a United States
government agency or by the government of the country of his or her
nationality or last foreign residence.
(2) An alien is also subject to the foreign residence requirement of
section 212(e) of the Act if at the time of admission to the United
States as an exchange visitor or at the time of acquisition of exchange
visitor status after admission to the United States, the alien was a
national or lawful permanent resident of a country which the Director of
the United States Information Agency had designated, through public
notice in the Federal Register, as clearly requiring the services of
persons engaged in the field of specialized knowledge or skill in which
the alien was to engage in his or her exchange visitor program.
(3) An alien is also subject to the foreign residence requirement of
section 212(e) of the Act if he or she was admitted to the United States
as an exchange visitor on or after January 10, 1977 to receive graduate
medical education or training, or following admission, acquired such
status on or after that date for that purpose. However, an exchange
visitor already participating in an exchange program of graduate
[[Page 203]]
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 Form I-612. The alien's
spouse and minor children, if also subject to the foreign residence
requirement, may be included in the application, provided the spouse has
not been a participant in an exchange program.
(6) Each application based upon a claim to exceptional hardship must
be accompanied by the certificate of marriage between the applicant and
his or her spouse and proof of legal termination of all previous
marriages of the applicant and spouse; the birth certificate of any
child who is a United States citizen or lawful permanent resident alien,
if the application is based upon a claim of exceptional hardship to a
child, and evidence of the United States citizenship of the applicant's
spouse or child, when the application is based upon a claim of
exceptional hardship to a spouse or child who is a citizen of the United
States.
(7) Evidence of United States citizenship and of status as a lawful
permanent resident shall be in the form provided in part 204 of this
chapter. An application based upon exceptional hardship shall be
supported by a statement, dated and signed by the applicant, giving a
detailed explanation of the basis for his or her belief that his or her
compliance with the foreign residence requirement of section 212(e) of
the Act, as amended, would impose exceptional hardship upon his or her
spouse or child who is a citizen of the United States or a lawful
permanent resident thereof. The statement shall include all pertinent
information concerning the incomes and savings of the applicant and
spouse. If exceptional hardship is claimed upon medical grounds, the
applicant shall submit a medical certificate from a qualified physician
setting forth in terms understandable to a layman the nature and effect
of the illness and prognosis as to the period of time the spouse or
child will require care or treatment.
(8) An application based upon the applicant's belief that he or she
cannot return to the country of his or her nationality or last residence
because the applicant would be subject to persecution on account of
race, religion, or political opinion, must be supported by a statement,
dated and signed by the applicant, setting forth in detail why the
applicant believes he or she would be subject to persecution.
(9) Waivers under Pub. L. 103-416 based on a request by a State
Department of Public Health (or equivalent). In accordance with section
220 of Pub. L. 103-416, an alien admitted to the United States as a
nonimmigrant under section 101(a)(15)(J) of the Act, or who acquired
status under section 101(a)(15)(J) of the Act after admission to the
United States, to participate in an exchange program of graduate medical
education or training (as of January 9, 1977), may apply for a waiver of
the 2-year home country residence and physical presence requirement (the
``2-year requirement'') under section 212(e)(iii) of the Act based on a
request by a State Department of Pubic Health, or its equivalent. To
initiate the application for a waiver under Pub. L. 103-416, the
Department of Public Health, or its equivalent, or the State in which
the foreign medical graduate seeks to practice medicine, must request
the Director of USIA to recommend a waiver to the Service. The waiver
may be granted only if the Director of USIA provides the Service with a
favorable
[[Page 204]]
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(k) of the Act. 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, 1996, to pursue graduate medical education or training in the United
States.
(B) They have entered into a bona fide, full-time employment
contract for 3 years to practice medicine at a health care facility
located in an area or areas designated by the Secretary of Health and
Human Services as having a shortage of health care professionals (``HHS-
designated shortage area'');
(C) They agree to commence employment within 90 days of receipt of
the waiver under this section and agree to practice medicine for 3 years
at the facility named in the waiver application and only in HHS-
designated shortage areas. The health care facility named in the waiver
application may be operated by:
(1) An agency of the Government of the United States or of the State
in which it is located; or
(2) A charitable, educational, or other not-for-profit organization;
or
(3) Private medical practitioners.
(D) The Department of Public Health, or its equivalent, in the State
where the health care facility is located has requested the Director,
USIA, to recommend the waiver, and the Director, USIA, submits a
favorable waiver recommendation to the Service; and
(E) Approval of the waiver will not cause the number of waivers
granted pursuant to Pub. L. 103-416 and this section to foreign medical
graduates who will practice medicine in the same state to exceed 20
during the current fiscal year.
(ii) Decision on waivers under Pub. L. 103-416 and notification to
the alien--(A) Approval. If the Director of USIA submits a favorable
waiver recommendation on behalf of a foreign medical graduate pursuant
to Pub. L. 103-416, and the Service grants the waiver, the alien shall
be notified of the approval on Form I-797 (or I-797A or I-797B, as
appropriate). The approval notice shall clearly state the terms and
conditions imposed on the waiver, and the Service's records shall be
noted accordingly.
(B) Denial. If the Director of USIA issues a favorable waiver
recommendation under Pub. L. 103-416 and the Service denies the waiver,
the alien shall be notified of the decision and of the right to appeal
under 8 CFR part 103. However, no appeal shall lie where the basis for
denial is that the number of waivers granted to the State in which the
foreign medical graduate will be employed would exceed 20 for that
fiscal year.
(iii) Conditions. The foreign medical graduate must agree to
commence employment for the health care facility specified in the waiver
application within 90 days of receipt of the waiver under Pub. L. 103-
416. The foreign medical graduate may only fulfill the requisite 3-year
employment contract as an H-1B nonimmigrant. A foreign medical graduate
who receives a waiver under Pub. L. 103-416 based on a request by a
State Department of Public Health (or equivalent), and changes his or
her nonimmigrant classification from J-1 to H-1B, may not apply for
permanent residence or for any other change of nonimmigrant
classification unless he or she has fulfilled the 3-year employment
contract with the health care facility and in the specified HHS-
[[Page 205]]
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(k) 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(k)(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 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(k) of the Act and the implementing regulations in this
section. If the foreign medical graduate subsequently applies for and
receives H-1B status, he or she must also comply with the terms and
conditions of that nonimmigrant status. Such compliance shall also
include notifying the Service of any material change in the terms and
conditions of the H-1B employment, by filing either an amended or a new
H-1B petition, as required, under Secs. 214.2(h)(2)(i)(D),
214.2(h)(2)(i)(E), and 214.2(h)(11) of this chapter.
(A) Amended H-1B petitions. The health care facility named in the
waiver application and H-1B petition shall file an amended H-1B
petition, as required under Sec. 214.2(h)(2)(i)(E) of this chapter, if
there are any material changes in the terms and conditions of the
beneficiary's employment or eligibility as specified in the waiver
application filed under Pub. L. 103-416 and in the subsequent H-1B
petition. In such a case, an amended H-1B petition shall be accompanied
by evidence that the alien will continue practicing medicine with the
original employer in an HHS-designated shortage area.
(B) New H-1B petitions. A health care facility seeking to employ a
foreign medical graduate who has been granted a waiver under Pub. L.
103-416 (prior to the time the alien has completed his or her 3-year
contract with the facility named in the waiver application and original
H-1B petition), shall file a new H-1B petition with the Service, as
required under Secs. 214.2(h)(2)(i) (D) and (E) of this chapter.
Although a new waiver application need not be filed, the new H-1B
petition shall be accompanied by the documentary evidence generally
[[Page 206]]
required under Sec. 214.2(h) of this chapter, and the following
additional documents:
(1) A copy of Form I-797 (and/or I-797A and I-797B) relating to the
waiver and nonimmigrant H status granted under Pub. L. 103-416;
(2) An explanation from the foreign medical graduate, with
supporting evidence, establishing that extenuating circumstances
necessitate a change in employment;
(3) An employment contract establishing that the foreign medical
graduate will practice medicine at the health care facility named in the
new H-1B petition for the balance of the required 3-year period; and
(4) Evidence that the geographic area or areas of intended
employment indicated in the new H-1B petition are in HHS-designated
shortage areas.
(C) Review of amended and new H-1B petitions for foreign medical
graduates granted waivers under Pub. L. 103-416 and who seek to have
early termination of employment excused due to extenuating
circumstances--(1) Amended H-1B petitions. The waiver granted under Pub.
L. 103-416 may be affirmed, and the amended H-1B petition may be
approved, if the petitioning health care facility establishes that the
foreign medical graduate otherwise remains eligible for H-1B
classification and that he or she will continue practicing medicine in
an HHS-designated shortage area.
(2) New H-1B petitions. The Service shall review a new H-1B petition
filed on behalf of a foreign medical graduate who has not yet fulfilled
the required 3-year period of employment with the health care facility
named in the waiver application and in the original H-1B petition to
determine whether extenuating circumstances exist which warrant a change
in employment, and whether the waiver granted under Pub. L. 103-416
should be affirmed. In conducting such a review, the Service shall
determine whether the foreign medical graduate will continue practicing
medicine in an HHS-designated shortage area, and whether the new H-1B
petitioner and the foreign medical graduate have satisfied the remaining
H-1B eligibility criteria described under section 101(a)(15)(H) of the
Act and Sec. 214.2(h) of this chapter. If these criteria have been
satisfied, the waiver granted to the foreign medical graduate under Pub.
L. 103-416 may be affirmed, and the new H1-B petition may be approved in
the exercise of discretion, thereby permitting the foreign medical
graduate to serve the balance of the requisite 3-year employment period
at the health care facility named in the new H-1B petition.
(D) Failure to notify the Service of any material changes in
employment. Foreign medical graduates who have been granted a waiver of
the 2-year requirement and who have obtained H-1B status under Pub. L.
103-416 but fail to: Properly notify the Service of any material change
in the terms and conditions of their H-1B employment, by having their
employer file an amended or a new H-1B petition in accordance with this
section and Sec. 214.2(h) of this chapter; or establish continued
eligibility for the waiver and H-1B status, shall (together with their
dependents) again become subject to the 2-year requirement. Such foreign
medical graduates and their accompanying H-4 dependents also become
subject to deportation under section 241(a)(1)(C)(i) of the Act.
(10) The applicant and his or her spouse may be interviewed by an
immigration officer in connection with the application and consultation
may be had with the Director, United States Information Agency and the
sponsor of any exchange program in which the applicant has been a
participant.
(11) The applicant shall be notified of the decision, and if the
application is denied, of the reasons therefor and of the right of
appeal in accordance with the provisions of part 103 of this chapter.
However, no appeal shall lie from the denial of an application for lack
of a favorable recommendation from the Secretary of State. When an
interested United States Government agency requests a waiver of the two-
year foreign-residence requirement and the Director, United States
Information Agency had made a favorable recommendation, the interested
agency shall be notified of the decision on its request and, if the
request is denied, of the reasons thereof, and of the right of appeal.
If the foreign country of the
[[Page 207]]
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.
(Secs. 103, 203, 212 of the Immigration and Nationality Act, as amended
by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8 U.S.C.
1103, 1153, 1182)
[29 FR 12584, Sept. 4, 1964, 29 FR 13242; Sept. 24, 1964, as amended at
30 FR 14776, Nov. 30, 1965; 32 FR 2500, Feb. 7, 1967; 37 FR 22725, Oct.
31, 1972; 46 FR 45327, Sept. 11, 1981; 47 FR 44235, Oct. 7, 1982; 48 FR
20684, May 9, 1983; 48 FR 23159, May 24, 1983; 48 FR 30610, July 5,
1983; 49 FR 48530, Dec. 13, 1984; 53 FR 30017, Aug. 10, 1988; 60 FR
26681, May 18, 1995; 60 FR 27598, May 24, 1995]
Sec. 212.8 Certification requirement of section 212(a)(14).
(a) General. The certification requirement of section 212(a)(14) of
the Act applies to aliens seeking admission to the United States or
adjustment of status under section 245 of the Act for the purpose of
performing skilled or unskilled labor, who are preference immigrants as
described in section 203(a) (3) or (6) of the Act, or who are
nonpreference immigrants as described in section 203(a)(8). The
certification requirement shall not be applicable to a nonpreference
applicant for admission to the United States or to a nonpreference
applicant for adjustment of status under section 245 who establishes
that he will not perform skilled or unskilled labor. A native of the
Western Hemisphere who established a priority date with a consular
officer prior to January 1, 1977 and who was found to be entitled to an
exemption from the labor certification requirement of section 212(a)(14)
of the Act under the law in effect prior to January 1, 1977 as the
parent, spouse or child of a United States citizen or lawful permanent
resident alien shall continue to be exempt from that requirement for so
long as the relationship upon which the exemption is based continues to
exist.
(b) Aliens not required to obtain labor certifications. The
following persons are not considered to be within the purview of section
212(a)(14) of the Act and do not require a labor certification: (1) A
member of the Armed Forces of the United States; (2) a spouse or child
accompanying or following to join his spouse or parent who either has a
labor certification or is a nondependent alien who does not require such
a certification; (3) a female alien who intends to marry a citizen or
alien lawful permanent resident of the United States, who establishes
satisfactorily that she does not intend to seek employment in the United
States and whose fiance has guaranteed her support; (4) an alien who
establishes on Form I-526 that he has invested, or is actively in the
process of investing, capital totaling at least $40,000 in an enterprise
in the United States of which he will be a principal manager and that
the enterprise will employ a person or persons in the United States of
which he will be a principal manager and that the enterprise will employ
a person or persons in the United States who are United States citizens
or aliens lawfully admitted for permnanent residence, exclusive of the
alien, his spouse and children. A copy of a document submitted in
support of Form I-526 may be accepted though unaccompanied by the
original, if the copy bears a certification by an attorney, typed or
rubber-stamped in the language set forth in Sec. 204.2(j) of this
chapter. However, the original document shall be submitted,
[[Page 208]]
if submittal is requested by the Service.
[31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended at
34 FR 5326, Mar. 18, 1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566,
Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR 44990, Oct. 13, 1982;
48 FR 19157, Apr. 28, 1983]
Sec. 212.9 Applicability of section 212(a)(32) to certain derivative third and sixth preference and nonpreference immigrants.
A derivative beneficiary who is the spouse or child of a qualified
third or sixth preference or nonpreference immigrant and who is also a
graduate of a medical school as defined by section 101(a)(41) of the Act
is not considered to be an alien who is coming to the United States
principally to perform services as a member of the medical profession.
Therefore, a derivative third or sixth preference or nonpreference
immigrant under section 203(a)(8) of the Act, who is also a graduate of
a medical school, is eligible for an immigrant visa or for adjustment of
status under section 245 of the Act, whether or not such derivative
immigrant has passed Parts I and II of the National Board of Medical
Examiners Examination or equivalent examination.
(Secs. 103, 203(a)(8), and 212(a)(32), 8 U.S.C 1103, 1153(a)(8), and
1182(a)(32))
[45 FR 63836, Sept. 26, 1980]
Sec. 212.10 Section 212(k) waiver.
Any applicant for admission who is in possession of an immigrant
visa, and who is excludable under sections 212(a)(14), (20), or (21) of
the Act, may apply to the district director at the port of entry for a
waiver under section 212(k) of the Act. If the application for waiver is
denied by the district director, the application may be renewed in
exclusion proceedings before an immigration judge as provided in part
236 of this chapter.
(Secs. 103, 203, 212 of the Immigration and Nationality Act, as amended
by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8 U.S.C.
1103, 1153, 1182)
[47 FR 44236, Oct. 7, 1982]
Sec. 212.11 Controlled substance convictions.
In determining the admissibility of an alien who has been convicted
of a violation of any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance, the term
controlled substance as used in section 212(a)(23) of the Act, shall
mean the same as that referenced in the Controlled Substances Act, 21
U.S.C. 801, et seq., and shall include any substance contained in
Schedules I through V of 21 CFR 1308.1, T3et seq. For the purposes of
this section, the term controlled substance includes controlled
substance analogues as defined in 21 U.S.C. 802(23) and 813.
[53 FR 9282, Mar. 22, 1988]
Sec. 212.12 Parole determinations and revocations respecting Mariel Cubans.
(a) Scope. This section applies to any native of Cuba who last came
to the United States between April 15, 1980, and October 20, 1980
(hereinafter referred to as Mariel Cuban) and who is being detained by
the Immigration and Naturalization Service (hereinafter referred to as
the Service) pending his or her exclusion hearing, or pending his or her
return to Cuba or to another country. It covers Mariel Cubans who have
never been paroled as well as those Mariel Cubans whose previous parole
has been revoked by the Service. It also applies to any Mariel Cuban,
detained under the authority of the Immigration and Nationality Act in
any facility, who has not been approved for release or who is currently
awaiting movement to a Service or Bureau Of Prisons (BOP) facility. In
addition, it covers the revocation of parole for those Mariel Cubans who
have been released on parole at any time.
(b) Parole authority and decision. Except as provided in
Sec. 212.13, the authority to grant parole under section 212(d)(5) of
the Act to a detained Mariel Cuban shall be exercised by the
Commissioner, acting through the Associate Commissioner for Enforcement,
as follows:
(1) Parole decisions. The Associate Commissioner for Enforcement
may, in the exercise of discretion, grant parole
[[Page 209]]
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 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
[[Page 210]]
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).
(e) Withdrawal of parole approval. The Associate Commissioner for
Enforcement may, in his or her discretion, withdraw approval for parole
of any detainee prior to release when, in his or her opinion, the
conduct of the detainee, or any other circumstance, indicates that
parole would no longer be appropriate.
(f) Sponsorship. No detainee may be released on parole until
suitable sponsorship or placement has been found for the detainee. The
paroled detainee must abide by the parole conditions specified by the
Service in relation to his sponsorship or placement. The following
sponsorships and placements are suitable:
(1) Placement by the Public Health Service in an approved halfway
house or mental health project;
(2) Placement by the Community Relations Service in an approved
halfway house or community project; and
(3) Placement with a close relative such as a parent, spouse, child,
or sibling who is a lawful permanent resident or a citizen of the United
States.
(g) Timing of reviews. The timing of review shall be in accordance
with the following guidelines.
(1) Parole revocation cases. The Director shall schedule the review
process in the case of a new or returning detainee whose previous
immigration parole has been revoked. The review process will commence
with a scheduling of a file review, which will ordinarily be expected to
occur within approximately three months after parole is revoked. In the
case of a Mariel Cuban who is in the custody of the Service, the Cuban
Review Plan Director may, in his or her discretion, suspend or postpone
the parole review process if such detainee's prompt deportation is
practicable and proper.
(2) Continued detention cases. A subsequent review shall be
commenced for any detainee within one year of a refusal to grant parole
under either Sec. 212.12(b) or Sec. 212.13, whichever is later, unless a
shorter interval is specified by the Director.
(3) Discretionary reviews. The Cuban Review Plan Director, in his
discretion, may schedule a review of a detainee at any time when the
Director deems such a review to be warranted.
(h) Revocation of parole. The Associate Commissioner for Enforcement
shall have authority, in the exercise of discretion, to revoke parole in
respect to Mariel Cubans. A district director may also revoke parole
when, in the district director's opinion, revocation is in the public
interest and circumstances do not reasonably permit referral of the case
to the Associate Commissioner. Parole may be revoked in the exercise of
discretion when, in the opinion of the revoking official:
(1) The purposes of parole have been served;
(2) The Mariel Cuban violates any condition of parole;
(3) It is appropriate to enforce an order of exclusion or to
commence proceedings against a Mariel Cuban; or
(4) The period of parole has expired without being renewed.
[52 FR 48802, Dec. 28, 1987, as amended at 59 FR 13870, Mar. 24, 1994]
[[Page 211]]
Sec. 212.13 Departmental parole determinations respecting certain Mariel Cubans.
(a) Scope. This section, establishing a Departmental Release Review
Program, applies to all excludable Mariel Cubans who on the effective
date of this regulation are detained by virtue of the Attorney General's
authority under the Immigration and Nationality Act and whose parole has
been denied after the exhaustion of the procedures set forth in
Sec. 212.12. This Departmental Release Review Program shall be under the
general supervision of the Associate Attorney General, who shall
administer the Program and establish such additional procedures as may
be required.
(b) Single review. Each detainee described in paragraph (a) above
shall be entitled to only one review before a Departmental Panel. Should
a detainee denied parole under this section subsequently receive further
review pursuant to Sec. 212.12 or any successor parole review plan of
the Service, such detainee shall not be entitled to a second review
before a Departmental Panel.
(c) Departmental panels. The Associate Attorney General shall
establish panels which will be comprised of three persons from within
the Department of Justice, one of whom must be an attorney, and one of
whom must be a representative of the Community Relations Service. The
Immigration and Naturalization Service shall not be represented on the
panels. These panels shall consider the cases of those Mariel Cubans
whose parole has previously been denied pursuant to the provisions set
forth in Sec. 212.12.
(d) Parole authority. Each Departmental Panel shall be vested with
the full discretion of the Attorney General under section 212(d)(5) of
the Act to grant parole for emergent reasons or for reasons deemed
strictly in the public interest.
(e) Notification and submission. Prior to the submission by the
Service of a case to a Departmental Panel, the detainee shall receive
notification from the Service that he is about to receive Departmental
Panel consideration. Such notification shall inform the detainee that he
may submit a written statement to a Departmental Panel, within 30 days
from the date of service of the notification, setting forth any factors
he deems relevant to the parole consideration and he may, at no expense
to the government, have his representative or counsel assist in the
preparation of this written statement.
(f) Interviews. A Departmental Panel may designate one of its
members to interview the detainee and report in writing to the full
Panel whenever in its sole discretion it deems such action appropriate.
(g) Panel decisions. The written decision of a Departmental Panel
will be based on a review of the record created during the review by the
Service pursuant to Sec. 212.12, the written submission, if any, from
the detainee, and the information obtained from any Panel interview of
the detainee. Except as provided in paragraph (i) of this section, all
written decisions of a Departmental Panel will be final and subject to
no further review.
(h) Sponsorship. No detainee may be released on parole until
suitable sponsorship or placement has been found for the detainee. The
paroled detainee must abide by the parole conditions specified by the
Service in relation to his sponsorship or placement. The following
sponsorships and placements are suitable:
(1) Placement by the Public Health Service in an approved halfway
house or mental health project;
(2) Placement by the Community Relations Service in an approved
halfway house or community project; and
(3) Placement with a close relative such as a parent, spouse, child,
or sibling who is a lawful permanent resident or a citizen of the United
States.
(i) Withdrawal of parole approval. A Departmental Panel may, in its
discretion, withdraw its approval for parole of any detainee prior to
release when, in its opinion, the conduct of the detainee, or any other
circumstance, indicates that parole would no longer be appropriate.
(j) Parole revocations. Parole granted under this section may be
revoked pursuant to Sec. 212.12.
[52 FR 48804, Dec. 28, 1987]
[[Page 212]]
Sec. 212.14 Parole determinations for alien witnesses and informants for whom a law enforcement authority (``LEA'') will request S classification.
(a) Parole authority. Parole authorization under section 212(d)(5)
of the Act for aliens whom LEAs seek to bring to the United States as
witnesses or informants in criminal/counter terrorism matters and to
apply for S classification shall be exercised as follows:
(1) Grounds of eligibility. The Commissioner may, in the exercise of
discretion, grant parole to an alien (and the alien's family members)
needed for law enforcement purposes provided that a state or federal
LEA:
(i) Establishes its intention to file, within 30 days after the
alien's arrival in the United States, a completed Form I-854, Inter-
Agency Alien Witness and Informant Record, with the Assistant Attorney
General, Criminal Division, Department of Justice, in accordance with
the instructions on or attached to the form, which will include the
names of qualified family members for whom parole is sought;
(ii) Specifies the particular operational reasons and basis for the
request, and agrees to assume responsibility for the alien during the
period of the alien's temporary stay in the United States, including
maintaining control and supervision of the alien and the alien's
whereabouts and activities, and further specifies any other terms and
conditions specified by the Service during the period for which the
parole is authorized;
(iii) Agrees to advise the Service of the alien's failure to report
quarterly any criminal conduct by the alien, or any other activity or
behavior on the alien's part that may constitute a ground of
excludability or deportability;
(iv) Assumes responsibility for ensuring the alien's departure on
the date of termination of the authorized parole (unless the alien has
been admitted in S nonimmigrant classification pursuant to the terms of
paragraph (a)(2) of this section), provides any and all assistance
needed by the Service, if necessary, to ensure departure, and verifies
departure in a manner acceptable to the Service;
(v) Provide LEA seat-of-government certification that parole of the
alien is essential to an investigation or prosecution, is in the
national interest, and is requested pursuant to the terms and authority
of section 212(d)(5) of the Act;
(vi) Agrees that no promises may be, have been, or will be made by
the LEA to the alien that the alien will or may:
(A) Remain in the United States in parole status or any other
nonimmigrant classification;
(B) Adjust status to that of lawful permanent resident; or
(C) Otherwise attempt to remain beyond the authorized parole. The
alien (and any family member of the alien who is 18 years of age or
older) shall sign a statement acknowledging an awareness that parole
only authorizes a temporary stay in the United States and does not
convey the benefits of S nonimmigrant classification, any other
nonimmigrant classification, or any entitlement to further benefits
under the Act; and
(vii) Provides, in the case of a request for the release of an alien
from Service custody, certification that the alien is eligible for
parole pursuant to Sec. 235.3 of this chapter.
(2) Authorization. (i) Upon approval of the request for parole, the
Commissioner shall notify the Assistant Attorney General, Criminal
Division, of the approval.
(ii) Upon notification of approval of a request for parole, the LEA
will advise the Commissioner of the date, time, and place of the arrival
of the alien. The Commissioner will coordinate the arrival of the alien
in parole status with the port director prior to the time of arrival.
(iii) Parole will be authorized for a period of thirty (30) days to
commence upon the alien's arrival in the United States in order for the
LEA to submit a completed Form I-854 to the Assistant Attorney General,
Criminal Division. Upon the submission to the Assistant Attorney General
of the Form I-854 requesting S classification, the period of parole will
be automatically extended while the request is being reviewed. The
Assistant Attorney General, Criminal Division, will notify the
[[Page 213]]
Commissioner of the submission of a Form I-854.
(b) Termination of parole--(1) General. The Commissioner may
terminate parole for any alien (including a member of the alien's
family) in parole status under this section where termination is in the
public interest. A district director may also terminate parole when, in
the district director's opinion, termination is in the public interest
and circumstances do not reasonably permit referral of the case to the
Commissioner. In such a case, the Commissioner shall be notified
immediately. In the event the Commissioner, or in the appropriate case,
a district director, decides to terminate the parole of a alien witness
or informant authorized under the terms of this paragraph, the Assistant
Attorney General, Criminal Division, and the relevant LEA shall be
notified in writing to that effect. The Assistant Attorney General,
Criminal Division, shall concur in or object to that decision. Unless
the Assistant Attorney General, Criminal Division, objects within 7
days, he or she shall be deemed to have concurred in the decision. In
the event of an objection by the Assistant Attorney General, Criminal
Division, the matter will be expeditiously referred to the Deputy
Attorney General for a final resolution. In no circumstances shall the
alien or the relevant LEA have a right of appeal from any decision to
terminate parole.
(2) Termination of parole and admission in S classification. When an
LEA has filed a request for an alien in authorized parole status to be
admitted in S nonimmigrant classification and that request has been
approved by the Commissioner pursuant to the procedures outlines in 8
CFR 214.2(t), the Commissioner may, in the exercise of discretion:
(i) Terminate the alien's parole status;
(ii) Determine eligibility for waivers; and
(iii) Admit the alien in S nonimmigrant classification pursuant to
the terms and conditions of section 101(a)(15(S) of the Act and 8 CFR
214.2(t).
(c) Departure. If the alien's parole has been terminated and the
alien has been ordered excluded from the United States, the LEA shall
ensure departure from the United States and so inform the district
director in whose jurisdiction the alien has last resided. The district
director, if necessary, shall oversee the alien's departure from the
United States and, in any event, shall notify the Commissioner of the
alien's departure. The Commissioner shall be notified in writing of the
failure of any alien authorized parole under this paragraph to depart in
accordance with an order of exclusion and deportation entered after
parole authorized under this paragraph has been terminated.
(d) Failure to comply with procedures. Any failure to adhere to the
parole procedures contained in this section shall immediately be brought
to the attention of the Commissioner, who will notify the Attorney
General.
[60 FR 44265, Aug. 25, 1995]
PART 213--ADMISSION OF ALIENS ON GIVING BOND OR CASH DEPOSIT--Table of Contents
Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103.
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
[[Page 214]]
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 part 103 of this chapter.
[29 FR 10579, July 30, 1964, as amended at 32 FR 9626, July 4, 1967]
PART 214--NONIMMIGRANT CLASSES--Table of Contents
Sec.
214.1 Requirements for admission, extension, and maintenance of status.
214.2 Special requirements for admission, extension, and maintenance of
status.
214.3 Petitions for approval of schools.
214.4 Withdrawal of school approval.
214.5 Libyan and third country nationals acting on behalf of Libyan
entities.
214.6 Canadian and Mexican citizens seeking temporary entry to engage
in business activities at a professional level.
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 1281,
1282; 8 CFR part 2.
Sec. 214.1 Requirements for admission, extension, and maintenance of status.
(a) General. (1) Nonimmigrant classes. For the purpose of
administering the nonimmigrant provisions of the Act, the following
administrative subclassifications of nonimmigrant classifications as
defined in section 101(a)(15) of the Act are established:
(i) Section 101(a)(15)(B) is divided into (B)(i) for visitors for
business and (B)(ii) for visitors for pleasure;
(ii) Section 101(a)(15)(C) is divided into (C)(i) for aliens who are
not diplomats and are in transit through the United States; (C)(ii) for
aliens in transit to and from the United Nations Headquarters District;
and (C)(iii) for alien diplomats in transit through the United States;
(iii) Section 101(a)(15)(H) is divided to create an (H)(iv)
subclassification for the spouse and children of a nonimmigrant
classified under section 101(a)(15) (H) (i), (ii), or (iii);
(iv) Section 101(a)(15)(J) is divided into (J)(i) for principal
aliens and (J)(ii) for such alien's spouse and children;
(v) Section 101(a)(15)(K) is divided into (K)(i) for the fiance(e)
and (K)(ii) for the fiance(e)'s children; and
(vi) Section 101(a)(15)(L) is divided into (L)(i) for principal
aliens and (L)(ii) for such alien's spouse and children.
(2) Classification designations. For the purpose of this chapter the
following nonimmigrant designations are established. The designation in
the second column may be used to refer to the appropriate nonimmigrant
classification.
------------------------------------------------------------------------
Section Designation
------------------------------------------------------------------------
101(a)(15)(A)(i)......................... A-1.
101(a)(15)(A)(ii)........................ A-2.
101(a)(15)(A)(iii)....................... A-3.
101(a)(15)(B)(i)......................... B-1.
101(a)(15)(B)(ii)........................ B-2.
101(a)(15)(C)(i)......................... C-1.
101(a)(15)(C)(ii)........................ C-2.
101(a)(15)(C)(iii)....................... C-3.
101(a)(15)(D)(i)......................... D-1.
101(a)(15)(D)(ii)........................ D-2.
101(a)(15)(E)(i)......................... E-1.
101(a)(15)(E)(ii)........................ E-2.
101(a)(15)(F)(i)......................... F-1.
101(a)(15)(F)(ii)........................ F-2.
101(a)(15)(G)(i)......................... G-1.
101(a)(15)(G)(ii)........................ G-2.
101(a)(15)(G)(iii)....................... G-3.
101(a)(15)(G)(iv)........................ G-4.
101(a)(15)(g)(v)......................... G-5.
101(a)(15)(H)(i)(A)...................... H-1A.
101(a)(15)(H)(i)(B)...................... H-1B.
101(a)(15)(H)(ii)(A)..................... H-2A.
101(a)(15)(H)(ii)(B)..................... H-2B.
101(a)(15)(H)(iii)....................... H-3.
101(a)(15)(H)(iv)........................ H-4.
101(a)(15)(I)............................ I.
101(a)(15)(J)(i)......................... J-1.
101(a)(15)(J)(ii)........................ J-2.
101(a)(15)(K)(i)......................... K-1.
101(a)(15)(K)(ii)........................ K-2.
101(a)(15)(L)(i)......................... L-1.
101(a)(15)(L)(ii)........................ L-2.
101(a)(15)(M)(i)......................... M-1.
101(a)(15)(M)(ii)........................ M-2.
101(a)(15)(N)(i)......................... N-8.
101(a)(15)(N)(ii)........................ N-9.
101(a)(15)(O)(i)......................... O-1.
101(a)(15)(O)(ii)........................ O-2.
101(a)(15)(O)(iii)....................... O-3.
101(a)(15)(P)(i)......................... P-1.
101(a)(15)(P)(ii)........................ P-2.
101(a)(15)(P)(iii)....................... P-3.
101(a)(15)(P)(iv)........................ P-4.
101(a)(15)(Q)............................ Q.
101(a)(15)(R)(i)......................... R-1.
101(a)(15)(R)(ii)........................ R-2.
101(a)(15)(S)(i)......................... S-5.
101(a)(15)(S)(ii)........................ S-6.
101(a)(15)(S) qualified family members... S-7.
Cdn FTA, Professional.................... TC.
NAFTA, Principal......................... TN.
NAFTA, Dependent......................... TD.
Visa Waiver, Business.................... WB.
Visa Waiver, Tourist..................... WT.
------------------------------------------------------------------------
[[Page 215]]
(3) General requirements. Every nonimmigrant alien who applies for
admission to, or an extension of stay in, the United States, shall
establish that he or she is admissible to the United States, or that any
ground of inadmissibility has been waived under section 212(d)(3) of the
Act. Upon application for admission, the alien shall present a valid
passport and valid visa unless either or both documents have been
waived. However, an alien applying for extension of stay shall present a
passport only if requested to do so by the Service. The passport of an
alien applying for admission shall be valid for a minimum of six months
from the expiration date of the contemplated period of stay, unless
otherwise provided in this chapter, and the alien shall agree to abide
by the terms and conditions of his or her admission. The passport of an
alien applying for extension of stay shall be valid at the time of
application for extension, unless otherwise provided in this chapter,
and the alien shall agree to maintain the validity of his or her
passport and to abide by all the terms and conditions of his extension.
The alien shall also agree to depart the United States at the expiration
of his or her authorized period of admission or extension, or upon
abandonment of his or her authorized nonimmigrant status. At the time a
nonimmigrant alien applies for admission or extension of stay he or she
shall post a bond on Form I-352 in the sum of not less than $500, to
insure the maintenance of his or her nonimmigrant status and departure
from the United States, if required to do so by the director,
immigration judge, or Board of Immigration Appeals.
(b) Readmission of nonimmigrants under section 101(a)(15) (F), (J),
or (M) to complete unexpired periods of previous admission or extension
of stay--(1) Section 101(a)(15)(F). The inspecting immigration officer
shall readmit for duration of status as defined in
Sec. 214.2(f)(5)(iii), any nonimmigrant alien whose nonimmigrant visa is
considered automatically revalidated pursuant to 22 CFR 41.125(f) and
who is applying for readmission under section 101(a)(15)(F) of the Act,
if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United
States not exceeding thirty days solely in contiguous territory or
adjacent islands;
(iii) Is in possession of a valid passport unless exempt from the
requirement for presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien
who presents, an Arrival-Departure Record, Form I-94, issued to the
alien in connection with the previous admission or stay, the alien's
Form I-20 ID copy, and either:
(A) A properly endorsed page 4 of Form I-20A-B if there has been no
substantive change in the information on the student's most recent Form
I-20A since the form was initially issued; or
(B) A new Form I-20A-B if there has been any substantive change in
the information on the student's most recent Form I-20A since the form
was initially issued.
(2) Section 101(a)(15)(J). The inspecting immigration officer shall
readmit for the unexpired period of stay authorized prior to the alien's
departure, any nonimmigrant alien whose nonimmigrant visa is considered
automatically revalidated pursuant to 22 CFR 41.125(f) and who is
applying for readmission under section 101(a)(15)(J) of the Act, if the
alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United
States not exceeding thirty days solely in contiguous territory or
adjacent islands;
(iii) Is in possession of a valid passport unless exempt from the
requirement for the presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien
who presents, Form I-94 issued to the alien in connection with the
previous admission or stay or copy three of the last Form IAP-66 issued
to the alien. Form I-94 or Form IAP-66 must show the unexpired period of
the alien's stay endorsed by the Service.
(3) Section 101(a)(15)(M). The inspecting immigration officer shall
readmit for the unexpired period of stay authorized prior to the alien's
departure, any
[[Page 216]]
nonimmigrant alien whose nonimmigrant visa is considered automatically
revalidated pursuant to 22 CFR 41.125(f) and who is applying for
readmission under section 101(a)(15)(M) of the Act, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence not exceeding
thirty days solely in contiguous territory;
(iii) Is in possession of a valid passport unless exempt from the
requirement for presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien
who presents, Form I-94 issued to the alien in connection with the
previous admission or stay, the alien's Form I-20 ID copy, and a
properly endorsed page 4 of Form I-20M-N.
(c) Extensions of stay--(1) Filing on Form I-129. An employer
seeking the services of an E-1, E-2, H-1A, H-1B, H-2A, H-2B, H-3, L-1,
O-1, O-2, P-1, P-2, P-3, Q, R-1, or TC nonimmigrant beyond the period
previously granted, must petition for an extension of stay on Form I-
129. The petition must be filed with the fee required in Sec. 103.7 of
this chapter, and the initial evidence specified in Sec. 214.2, and on
the petition form. Dependents holding derivative status may be included
in the petition if it is for only one worker and the form version
specifically provides for their inclusion. In all other cases dependents
of the worker should file on Form I-539.
(2) Filing on Form I-539. Any other nonimmigrant alien, except an
alien in F or J status who has been granted duration of status, who
seeks to extend his or her stay beyond the currently authorized period
of admission, must apply for an extension of stay on Form I-539 with the
fee required in Sec. 103.7 of this chapter together with any initial
evidence specified in the applicable provisions of Sec. 214.2, and on
the application form. More than one person may be included in an
application where the co-applicants are all members of a single family
group and either all hold the same nonimmigrant status or one holds a
nonimmigrant status and the other co-applicants are his or her spouse
and/or children who hold derivative nonimmigrant status based on his or
her status. Extensions granted to members of a family group must be for
the same period of time. The shortest period granted to any member of
the family shall be granted to all members of the family.
(3) Ineligible for extension of stay. A nonimmigrant in any of the
following classes is ineligible for an extension of stay:
(i) B-1 or B-2 where admission was pursuant to the Visa Waiver Pilot
Program;
(ii) C-1, C-2, C-3;
(iii) D-1, D-2;
(iv) K-1, K-2;
(v) Any nonimmigrant admitted for duration of status, other than as
provided in Sec. 214.2(f)(7); or
(vi) Any nonimmigrant who is classified pursuant to section
101(a)(15)(S) of the Act beyond a total of 3 years.
(4) Timely filing and maintenance of status. An extension of stay
may not be approved for an applicant who failed to maintain the
previously accorded status or where such status expired before the
application or petition was filed, except that failure to file before
the period of previously authorized status expired may be excused in the
discretion of the Service and without separate application, with any
extension granted from the date the previously authorized stay expired,
where it is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the
control of the applicant or petitioner, and the Service finds the delay
commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant
status;
(iii) The alien remains a bona fide nonimmigrant; and
(iv) The alien is not the subject of deportation proceedings under 8
CFR part 242.
(5) Decision in Form I-129 or I-539 extension proceedings. Where an
applicant or petitioner demonstrates eligibility for a requested
extension, it may be granted at the discretion of the Service. There is
no appeal from the denial of an application for extension of stay filed
on Form I-129 or I-539.
(d) Termination of status. Within the period of initial admission or
extension of stay, the nonimmigrant status of an
[[Page 217]]
alien shall be terminated by the revocation of a waiver authorized on
his or her behalf under section 212(d) (3) or (4) of the Act; by the
introduction of a private bill to confer permanent resident status on
such alien; or, pursuant to notification in the Federal Register, on the
basis of national security, diplomatic, or public safety reasons.
(e) Employment. A nonimmigrant in the United States in a class
defined in section 101(a)(15)(B) of the Act as a temporary visitor for
pleasure, or section 101(a)(15)(C) of the Act as an alien in transit
through this country, may not engage in any employment. Any other
nonimmigrant in the United States may not engage in any employment
unless he has been accorded a nonimmigrant classification which
authorizes employment or he has been granted permission to engage in
employment in accordance with the provisions of this chapter. A
nonimmigrant who is permitted to engage in employment may engage only in
such employment as has been authorized. Any unauthorized employment by a
nonimmigrant constitutes a failure to maintain status within the meaning
of section 241(a)(1)(C)(i) of the Act.
(f) False information. A condition of a nonimmigrant's admission and
continued stay in the United States is the full and truthful disclosure
of all information requested by the Service. Willful failure by a
nonimmigrant to provide full and truthful information requested by the
Service (regardless of whether or not the information requested was
material) constitutes a failure to maintain nonimmigrant status under
section 241(a)(1)(C)(i) of the Act.
(g) Criminal activity. A condition of a nonimmigrant's admission and
continued stay in the United States is obedience to all laws of United
States jurisdictions which prohibit the commission of crimes of violence
and for which a sentence of more than one year imprisonment may be
imposed. A nonimmigrant's conviction in a jurisdiction in the United
States for a crime of violence for which a sentence of more than one
year imprisonment may be imposed (regardless of whether such sentence is
in fact imposed) constitutes a failure to maintain status under section
241(a)(1)(C)(i) of the Act.
[26 FR 12067, Dec. 16, 1961, as amended at 36 FR 8048, Apr. 29, 1971; 37
FR 14288, June 19, 1972; 43 FR 12674, Mar. 27, 1978; 44 FR 65727, Nov.
14, 1979; 48 FR 14582, Apr. 5, 1983; 48 FR 20685, May 9, 1983; 48 FR
30350, July 1, 1983; 52 FR 45446, Nov. 30, 1987; 56 FR 38333, Aug. 13,
1991; 59 FR 1463, Jan. 11, 1994; 60 FR 44266, Aug. 25, 1995; 60 FR
52248, Oct. 5, 1995]
Sec. 214.2 Special requirements for admission, extension, and maintenance of status.
The general requirements in Sec. 214.1 are modified for the
following nonimmigrant classes:
(a) Foreign government officials--(1) General. The determination by
a consular officer prior to admission and the recognition by the
Secretary of State subsequent to admission is evidence of the proper
classification of a nonimmigrant under section 101(a)(15)(A) of the Act.
An alien who has a nonimmigrant status under section 101(a)(15)(A)(i) or
(ii) of the Act is to be admitted for the duration of the period for
which the alien continues to be recognized by the Secretary of State as
being entitled to that status. An alien defined in section
(101)(a)(15)(A)(iii) of the Act is to be admitted for an initial period
of not more than three years, and may be granted extensions of temporary
stay in increments of not more than two years. In addition, the
application for extension of temporary stay must be accompanied by a
statement signed by the employing official stating that he/she intends
to continue to employ the applicant and describing the type of work the
applicant will perform.
(2) Definition of A-1 or A-2 dependent. For purposes of employment
in the United States, the term dependent of an A-1 or A-2 principal
alien, as used in Sec. 214.2(a), means any of the following immediate
members of the family habitually residing in the same household as the
principal alien who is an officer or employee assigned to a diplomatic
or consular office in the United States:
(i) Spouse;
(ii) Unmarried children under the age of 21;
(iii) Unmarried sons or daughters under the age of 23 who are in
full-time
[[Page 218]]
attendance as students at post-secondary educational institutions;
(iv) Unmarried sons or daughters under the age of 25 who are in
full-time attendance as students at post-secondary educational
institutions if a formal bilateral employment agreement permitting their
employment in the United States was signed prior to November 21, 1988,
and such bilateral employment agreement does not specify 23 as the
maximum age for employment of such sons and daughters. The Office of
Protocol of the Department of State shall maintain a listing of foreign
states with which the United States has such bilateral employment
agreements;
(v) Unmarried sons or daughters who are physically or mentally
disabled to the extent that they cannot adequately care for themselves
or cannot establish, maintain or re-establish their own households. The
Department of State or the Service may require certification(s) as it
deems sufficient to document such mental or physical disability.
(3) Applicability of a formal bilateral agreement or an informal de
facto arrangement for A-1 or A-2 dependents. The applicability of a
formal bilateral agreement shall be based on the foreign state which
employs the principal alien and not on the nationality of the principal
alien or dependent. The applicability of an informal de facto
arrangement shall be based on the foreign state which employs the
principal alien, but under a de facto arrangement the principal alien
also must be a national of the foreign state which employs him/her in
the United States.
(4) Income tax, Social Security liability; non-applicability of
certain immunities. Dependents who are granted employment authorization
under this section are responsible for payment of all federal, state and
local income, employment and related taxes and Social Security
contributions on any remuneration received. In addition, immunity from
civil or administrative jurisdiction in accordance with Article 37 of
the Vienna Convention on Diplomatic Relations or other international
agreements does not apply to these dependents with respect to matters
arising out of their employment.
(5) Dependent employment pursuant to formal bilateral employment
agreements and informal de facto reciprocal arrangements. (i) The Office
of Protocol shall maintain a listing of foreign states which have
entered into formal bilateral employment agreements. Dependents of an A-
1 or A-2 principal alien assigned to official duty in the United States
may accept or continue in unrestricted employment based on such formal
bilateral agreements upon favorable recommendation by the Department of
State and issuance of employment authorization documentation by the
Service in accordance with 8 CFR part 274a. The application procedures
are set forth in paragraph (a)(6) of this section.
(ii) For purposes of this section, an informal de facto reciprocal
arrangement exists when the Department of State determines that a
foreign state allows appropriate employment on the local economy for
dependents of certain United States officials assigned to duty in that
foreign state. The Office of Protocol shall maintain a listing of
countries with which such reciprocity exists. Dependents of an A-1 or A-
2 principal alien assigned to official duty in the United States may be
authorized to accept or continue in employment based upon informal de
facto arrangements upon favorable recommendation by the Department of
State and issuance of employment authorization by the Service in
accordance with 8 CFR part 274a. Additionally, the procedures set forth
in paragraph (a)(6) of this section must be complied with, and the
following conditions must be met:
(A) Both the principal alien and the dependent desiring employment
are maintaining A-1 or A-2 status as appropriate;
(B) The principal's assignment in the United States is expected to
last more than six months;
(C) Employment of a similar nature for dependents of United States
Government officials assigned to official duty in the foreign state
employing the principal alien is not prohibited by that foreign state's
government;
(D) The proposed employment is not in an occupation listed in the
Department of Labor Schedule B (20 CFR part 656), or otherwise
determined by the
[[Page 219]]
Department of Labor to be one for which there is an oversupply of
qualified U.S. workers in the area of proposed employment. This Schedule
B restriction does not apply to a dependent son or daughter who is a
full-time student if the employment is part-time, consisting of not more
than 20 hours per week, and/or if it is temporary employment of not more
than 12 weeks during school holiday periods; and
(E) The proposed employment is not contrary to the interest of the
United States. Employment contrary to the interest of the United States
includes, but is not limited to, the employment of A-1 or A-2
dependents: who have criminal records; who have violated United States
immigration laws or regulations, or visa laws or regulations; who have
worked illegally in the United States; and/or who cannot establish that
they have paid taxes and social security on income from current or
previous United States employment.
(6) Application procedures. The following procedures are applicable
to dependent employment applications under bilateral agreements and de
facto arrangements:
(i) The dependent must submit a completed Form I-566 to the
Department of State through the office, mission, or organization which
employs his/her principal alien. A dependent applying under paragraph
(a)(2)(iii) or (iv) of this section must submit a certified statement
from the post-secondary educational institution confirming that he/she
is pursuing studies on a full-time basis. A dependent applying under
paragraph (a)(2)(v) of this section must submit medical certification
regarding his/her condition. The certification should identify the
dependent and the certifying physician and give the physician's phone
number; identify the condition, describe the symptoms and provide a
prognosis; and certify that the dependent is unable to maintain a home
of his or her own. Additionally, a dependent applying under the terms of
a de facto arrangement must attach a statement from the prospective
employer which includes the dependent's name; a description of the
position offered and the duties to be performed; the salary offered; and
verification that the dependent possesses the qualifications for the
position.
(ii) The Department of State reviews and verifies the information
provided, makes its determination, and endorses the Form I-566.
(iii) If the Department of State's endorsement is favorable, the
dependent may apply to the Service. A dependent whose principal alien is
stationed at a post in Washington, DC, or New York City shall apply to
the District Director, Washington, DC, or New York City, respectively. A
dependent whose principal alien is stationed elsewhere shall apply to
the District Director, Washington, DC, unless the Service, through the
Department of State, directs the dependent to apply to the district
director having jurisdiction over his or her place of residence.
Directors of the regional service centers may have concurrent
adjudicative authority for applications filed within their respective
regions. When applying to the Service, the dependent must present his or
her Form I-566 with a favorable endorsement from the Department of State
and any additional documentation as may be required by the Attorney
General.
(7) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
section shall be granted in increments of not more than three years
each.
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this section.
(9) Dependents or family members of principal aliens classified A-3.
A dependent or family member of a principal alien classified A-3 may not
be employed in the United States under this section.
(10) Unauthorized employment. An alien classified under section
101(a)(15)(A) of the Act who is not a principal alien and who engages in
employment outside the scope of, or in a manner contrary to this
section, may be considered in violation of section 241(a)(1)(C)(i) of
the Act. An alien who is classified under section 101(a)(15)(A) of the
Act who is a principal alien and who engages in employment outside the
scope of his/her official position
[[Page 220]]
may be considered in violation of section 241(a)(1)(C)(i) of the Act.
(b) Visitors--(1) General. any B-1 visitor for business or B-2
visitor for pleasure may be admitted for not more than one year and may
be granted extensions of temporary stay in increments of not more than
six months each, except that alien members of a religious denomination
coming temporarily and solely to do missionary work in behalf of a
religious denomination may be granted extensions of not more than one
year each, provided that such work does not involve the selling of
articles or the solicitation or acceptance of donations. Those B-1 and
B-2 visitors admitted pursuant to the waiver provided at Sec. 212.1(e)
of this chapter may be admitted to and stay on Guam for period not to
exceed fifteen days and are not eligible for extensions of stay.
(2) Minimum six month admissions. Any B-2 visitor who is found
otherwise admissible and is issued a Form I-94, will be admitted for a
minimum period of six months, regardless of whether less time is
requested, provided, that any required passport is valid as specified in
section 212(a)(26) of the Act. Exceptions to the minimum six month
admission may be made only in individual cases upon the specific
approval of the district director for good cause.
(3) Visa Waiver Pilot Program. Special requirements for admission
and maintenance of status for visitors admitted to the United States
under the Visa Waiver Pilot Program are set forth in section 217 of the
Act and part 217 of this chapter.
(4) Admission of aliens pursuant to the North American Fee Trade
Agreement (NAFTA). A citizen of Canada or Mexico seeking temporary entry
for purposes set forth in paragraph (b)(4)(i) of this section, who
otherwise meets existing requirements under section 101(a)(15)(B) of the
Act, including but not limited to requirements regarding the source of
remuneration, shall be admitted upon presentation of proof of such
citizenship in the case of Canadian applicants, and valid entry
documents such as a passport and visa or Mexican Border Crossing Card
(Form I-186 or I-586) in the case of Mexican applicants, a description
of the purpose of entry, and evidence demonstrating that he or she is
engaged in one of the occupations or professions set forth in paragraph
(b)(4)(i) of this section. Existing requirements, with respect to
Canada, are those requirements which were in effect at the time of entry
into force of the CFTA and, with respect to Mexico, are those
requirements which are in effect at the time of entry into force of the
NAFTA. Additionally, nothing shall preclude the admission of a citizen
of Mexico or Canada who meets the requirements of paragraph (b)(4)(ii)
of this section.
(i) Occupations and professions set forth in Appendix 1603.A.1 to
Annex 1603 of the NAFTA--(A) Research and design. Technical scientific
and statistical researchers conducting independent research or research
for an enterprise located in the territory of another Party.
(B) Growth, manufacture and production (1) Harvester owner
supervising a harvesting crew admitted under applicable law. (Applies
only to harvesting of agricultural crops: Grain, fiber, fruit and
vegetables.)
(2) Purchasing and production management personnel conducting
commercial transactions for an enterprise located in the territory of
another Party.
(C) Marketing. (1) Market researchers and analyst conducting
independent research or analysis, or research or analysis for an
enterprise located in the territory of another Party.
(2) Trade fair and promotional personnel attending a trade
convention.
(D) Sales. (1) Sales representatives and agents taking orders or
negotiating contracts for goods or services for an enterprise located in
the territory of another Party but not delivering goods or providing
services.
(2) Buyers purchasing for an enterprise located in the territory of
another Party.
(E) Distribution. (1) Transportation operators transporting goods or
passengers to the United States from the territory of another Party or
loading and transporting goods or passengers from the United States to
the territory of another Party, with no unloading in the United States,
to the territory of another Party. (These operators may make deliveries
in the United States if all goods or passengers to be delivered
[[Page 221]]
were loaded in the territory of another Party. Furthermore, they may
load from locations in the United States if all goods or passengers to
be loaded will be delivered in the territory of another Party. Purely
domestic service or solicitation, in competition with the United States
operators, is not permitted.)
(2) Customs brokers performing brokerage duties associated with the
export of goods from the United States to or through Canada.
(F) After-sales service. Installers, repair and maintenance
personnel, and supervisors, possessing specialized knowledge essential
to the seller's contractual obligation, performing services or training
workers to perform services, pursuant to a warranty or other service
contract incidental to the sale of commercial or industrial equipment or
machinery, including computer software, purchased from an enterprise
located outside the United States, during the life of the warranty or
service agreement. (For the purposes of this provision, the commercial
or industrial equipment or machinery, including computer software, must
have been manufactured outside the United States.)
(G) General service. (1) Professionals engaging in a business
activity at a professional level in a profession set out in Appendix
1603.D.1 to Annex 1603 of the NAFTA, but receiving no salary or other
remuneration from a United States source (other than an expense
allowance or other reimbursement for expenses incidental to the
temporary stay) and otherwise satisfying the requirements of Section A
to Annex 1063 of the NAFTA.
(2) Management and supervisory personnel engaging in commercial
transactions for an enterprise located in the territory of another
Party.
(3) Financial services personnel (insurers, bankers or investment
brokers) engaging in commercial transactions for an enterprise located
in the territory of another Party.
(4) Public relations and advertising personnel consulting with
business associates, or attending or participating in conventions.
(5) Tourism personnel (tour and travel agents, tour guides or tour
operators) attending or participating in conventions or conducting a
tour that has begun in the territory of another Party. (The tour may
begin in the United States; but must terminate in foreign territory, and
a significant portion of the tour must be conducted in foreign
territory. In such a case, an operator may enter the United States with
an empty conveyance and a tour guide may enter on his or her own and
join the conveyance.)
(6) Tour bus operators entering the United States:
(i) With a group of passengers on a bus tour that has begun in, and
will return to, the territory of another Party.
(ii) To meet a group of passengers on a bus tour that will end, and
the predominant portion of which will take place, in the territory of
another Party.
(iii) With a group of passengers on a bus tour to be unloaded in the
United States and returning with no passengers or reloading with the
group for transportation to the territory of another Party.
(7) Translators or interpreters performing services as employees of
an enterprise located in the territory of another Party.
(ii) Occupations and professions not listed in Appendix 1603.A.1 to
Annex 1603 of the NAFTA. Nothing in this paragraph shall preclude a
business person engaged in an occupation or profession other than those
listed in Appendix 1603.A.1 to Annex 1603 of the NAFTA from temporary
entry under section 101(a)(15)(B) of the Act, if such person otherwise
meets the existing requirements for admission as prescribed by the
Attorney General.
(5) Construction workers not admissible. Aliens seeking to enter the
country to perform building or construction work, whether on-site or in-
plant, are not eligible for classification or admission as B-1
nonimmigrants under section 101(a)(15)(B) of the Act. However, alien
nonimmigrants otherwise qualified as B-1 nonimmigrants may be issued
visas and may enter for the purpose of supervision or training of others
engaged in building or construction work, but not for the purpose of
actually performing any such building or construction work themselves.
[[Page 222]]
(c) Transits--(1) Without visas. An applicant for admission under
the transit without visa privilege must establish that he is admissable
under the immigration laws; that he has confirmed and onward
reservations to at least the next country beyond the United States, and
that he will continue his journey on the same line or a connecting line
within 8 hours after his arrival; however, if there is no scheduled
transportation within that 8-hour period, continuation of the journey
thereafter on the first available transport will be satisfactory.
Transfers from the equipment on which an applicant arrives to other
equipment of the same or a connecting line shall be limited to 2 in
number, with the last transport departing foreign (but not necessarily
nonstop foreign), and the total period of waiting time for connecting
transportation shall not exceed 8 hours except as provided above.
Notwithstanding the foregoing, an applicant, if seeking to join a vessel
in the United States as a crewman, shall be in possession of a valid
``D'' visa and a letter from the owner or agent of the vessel he seeks
to join, shall proceed directly to the vessel on the first available
transportation and upon joining the vessel shall remain aboard at all
times until it departs from the United States. Except for transit from
one part of foreign contiguous territory to another part of the same
territory, application for direct transit without a visa must be made at
one of the following ports of entry: Agana, Guam, Anchorage, AK,
Atlanta, GA, Baltimore, MD, Bangor, ME, Boston, MA, Brownsville, TX,
Buffalo, NY, Charlotte, NC, Charlotte Amalie, VI, Chicago, IL,
Christiansted, VI, Dallas, TX, Daytona, FL, Denver, CO, Detroit, MI,
Fairbanks, AK, Hartford, CT, Honolulu, HI, Houston, TX, Los Angeles, CA,
Memphis, TN, Miami, FL, Newark, NJ, New Orleans, LA, New York, NY,
Niagara Falls, NY, Norfolk, VA, Oakland, CA, Orlando, FL, Philadelphia,
PA, Pittsburgh, PA, Ponce, PR, Port Everglades FL, Portland, OR, San
Antonio, TX, San Diego, CA, Sanford, FL, San Francisco, CA, San Juan,
PR, Seattle, WA, St. Paul, MN, Tampa, FL, Washington, DC. The privilege
of transit without a visa may be authorized only under the conditions
that the transportation line, without the prior consent of the Service,
will not refund the ticket which was presented to the Service as
evidence of the alien's confirmed and onward reservations; that the
alien will not apply for extension of temporary stay or for adjustment
of status under section 245 of the Act, and that until his departure
from the United States responsibility for his continuous actual custody
will lie with the transportation line which brought him to the United
States unless at the direction of the district director he is in the
custody of this Service or other custody approved by the Commissioner.
(2) United Nations Headquarters District. An alien of the class
defined in section 101(a)(15)(C) of the Act, whose visa is limited to
transit to and from the United Nations Headquarters District, if
otherwise admissible, shall be admitted on the additional conditions
that he proceed directly to the immediate vicinity of the United Nations
Headquarters District, and remain there continuously, departing
therefrom only if required in connection with his departure from the
United States, and that he have a document establishing his ability to
enter some country other than the United States following his sojourn in
the United Nations Headquarters District. The immediate vicinity of the
United Nations Headquarters District is that area lying within a twenty-
five mile radius of Columbus Circle, New York, NY.
(3) Others. The period of admission of an alien admitted under
section 101(a)(15)(C) of the Act shall not exceed 29 days.
(d) Crewmen. (1) The provisions of parts 251, 252, 253, and 258 of
this chapter shall govern the landing of crewmen as nonimmigrants of the
class defined in section 101(a)(15)(D) of the Act. An alien in this
status may be employed only in a crewman capacity on the vessel or
aircraft of arrival, or on a vessel or aircraft of the same
transportation company, and may not be employed in connection with
domestic flights or movements of a vessel or aircraft. However,
nonimmigrant crewmen may perform crewmember duties through stopovers on
an international flight for any United States carrier
[[Page 223]]
where such flight uses a single aircraft and has an origination or
destination point outside the United States.
(2) Denial of crewman status in the case of certain labor disputes
(D nonimmigrants). (i) An alien shall be denied D crewman status as
described in section 101(a)(15)(D) of the Act if:
(A) The alien intends to land for the purpose of performing service
on a vessel of the United States (as defined in 46 U.S.C. 2101(46)) or
an aircraft of an air carrier (as defined in section 101(3) of the
Federal Aviation Act of 1958); and
(B) A labor dispute consisting of a strike or lockout exists in the
bargaining unit of the employer in which the alien intends to perform
such service; and
(C) The alien is not already an employee of the company (as
described in paragraph (d)(2)(iv) of this section).
(ii) Refusal to land. Any alien (except a qualified current employee
as described in paragraph (d)(2)(iv) of this section) who the examining
immigration officer determines has arrived in the United States for the
purpose of performing service on board a vessel or an aircraft of the
United States when a strike or lockout is under way in the bargaining
unit of the employer, shall be refused a conditional landing permit
under section 252 of the Act.
(iii) Ineligibility for parole. An alien described in paragraph
(d)(2)(i) of this section may not be paroled into the United States
under section 212(d)(5) of the Act for the purpose of performing
crewmember duties unless the Attorney General determines that the parole
of such alien is necessary to protect the national security of the
United States. This paragraph does not prohibit the granting of parole
for other purposes, such as medical emergencies.
(iv) Qualified current employees. (A) Paragraphs (d)(2)(i),
(d)(2)(ii), and (d)(2)(iii) of this section do not apply to an alien who
is already an employee of the owner or operator of the vessel or air
carrier and who at the time of inspection presents true copies of
employer work records which satisfy the examining immigration officer
that the alien:
(1) Has been an employee of such employer for a period of not less
than one year preceding the date that a strike or lawful lockout
commenced;
(2) Has served as a qualified crewman for such employer at least
once in three different months during the 12-month period preceding the
date that the strike or lockout commenced; and
(3) Shall continue to provide the same crewman services that he or
she previously provided to the employer.
(B) An alien crewman who qualifies as a current employee under this
paragraph remains subject to the restrictions on his or her employment
in the United States contained in paragraph (d)(1) of this section.
(v) Strike or lockout determination. These provisions will take
effect if the Attorney General, through the Commissioner of the
Immigration and Naturalization Service or his or her designee, after
consultation with the National Mediation Board, determines that a
strike, lockout, or labor dispute involving a work stoppage is in
progress in the bargaining unit of the employer for whom the alien
intends to perform such service.
(e) Traders and Investors--(1) General. An alien defined in section
101(a)(15)(E) of the Act may be admitted for an initial period of not
more than one year and may be granted extensions of temporary stay in
increments of not more than two years. A trader or investor and his or
her spouse or child who accompanied or followed to join the trader or
investor, who acquired nonimmigrant status on or after December 24, 1952
under section 101(a)(15)(E) (i) or (ii) of the Act shall submit to the
district director having jurisdiction over the alien's place of
residence properly executed Forms I-539 and I-126 to apply for an
extension of the period of his or her temporary admission. A trader or
investor may change from one employer to another after a written request
for permission to do so has been approved by the district director
having jurisdiction over the alien's residence. The request must be
supported by evidence that the requester would still be classifiable as
a trader or investor in the new employment. After the request is
granted, Service officers shall make a notation on the reverse of
[[Page 224]]
the alien's Form I-94 reading ``Employment by (name of new employer)
authorized'', followed by the date of the authorization. Any
unauthorized change to a new employer will constitute a failure to
maintain status within the meaning of section 241 (a)(1)(C)(i) of the
Act.
(2) Definition of the term trade. The term trade, as used in this
section, means the exchange, purchase, or sale of goods and/or services.
Goods are tangible commodities or merchandise having intrinsic value.
Services are economic activities whose outputs are other than tangible
goods. Such service activities include, but are not limited to, banking,
insurance, transportation, communications and data processing,
advertising, accounting, design and engineering, management consulting,
tourism, and technology transfer.
(3) Denial of treaty trader or investor status to citizens of Canada
or Mexico in the case of certain labor disputes. A citizen of Canada or
Mexico may be denied E treaty trader or investor status as described in
section 101(a)(15)(E) of the Act and section B of Annex 1603 of the
NAFTA if:
(i) The Secretary of Labor certifies to or otherwise informs the
Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress at the place where the alien is or
intends to be employed; and
(ii) Temporary entry of that alien may affect adversely either:
(A) The settlement of any labor dispute that is in progress at the
place or intended place of employment, or
(B) The employment of any person who is involved in such dispute.
(f) Students in colleges, universities, seminaries, conservatories,
academic high schools, elementary schools, other academic institutions,
and in language training programs--(1) Admission of student--(i)
Eligibility for admission. A nonimmigrant student and his or her
accompanying spouse and minor children may be admitted into the United
States in F-1 and F-2 classifications for duration of status under
section 101(a)(15)(F)(i) of the Act, if the student:
(A) Presents a properly completed Form I-20 A-B/I-20 ID, Certificate
of Eligibility for Nonimmigrant (F-1) Student Status, which is issued by
a school approved by the Service for attendance by foreign students;
(B) Has documentary evidence of financial support in the amount
indicated on the Form I-20 A-B/I-20 ID; and
(C) For students seeking initial admission only, intends to attend
the school specified in the student's visa except where the student is
exempt from the requirement for a visa, in which case the student must
intend to attend the school indicated on the Form I-20 A-B/I-20 ID.
(ii) Disposition of Form I-20 A-B/I-20 ID. Form I-20 A-B/I-20 ID
contains two copies, the I-20 School Copy and the I-20 ID (Student)
Copy. For purposes of clarity, the entire Form I-20 A-B/I-20 ID shall be
referred to as Form I-20 A-B and the I-20 ID (Student) Copy shall be
referred to as the I-20 ID. When an F-1 student applies for admission
with a complete Form I-20 A-B, the inspecting officer shall:
(A) Transcribe the student's admission number from Form I-94 onto
his or her Form I-20 A-B (for students seeking initial admission only);
(B) Endorse all copies of the Form I-20 A-B;
(C) Return the I-20 ID to the student; and
(D) Forward the I-20 School Copy to the Service's processing center
for data entry. (The school copy of Form I-20 A-B will be sent back to
the school as a notice of the student's admission after data entry.)
(2) I-20 ID. An F-1 student is expected to safekeep the initial I-20
ID bearing the admission number and any subsequent copies which have
been issued to him or her. Should the student lose his or her current I-
20 ID, a replacement copy bearing the same information as the lost copy,
including any endorsement for employment and notations, may be issued by
the designated school official (DSO) as defined in 8 CFR 214.3(l)(1)(i).
(3) Spouse and minor children following to join student. The spouse
and minor children following to join an F-1 student are eligible for
admission to the United States if the F-1 student is, or will be within
sixty days, enrolled in a full course of study or, if the student is
[[Page 225]]
engaged in approved practical training following completion of studies.
The eligible spouse and minor children of an F-1 student may be admitted
in F-2 status if they present the F-1 student's current I-20 ID with
proper endorsement by the DSO. A new Form I-20 A-B is required where
there has been any substantive change in the information on the
student's current I-20 ID.
(4) Temporary absence. An F-1 student returning to the United States
from a temporary absence of five months or less may be readmitted for
attendance at a Service-approved educational institution, if the student
presents:
(i) A current I-20 ID properly endorsed by the DSO for reentry if
there is no substantive change on the most recent I-20 ID; or
(ii) A new Form I-20 A-B if there has been any substantive change in
the information on the student's most recent I-20 ID, such as in the
case of a student who has changed the major area of study, who intends
to transfer to another Service-approved institution, or who has advanced
to a higher level of study.
(5) Duration of status--(i) General. Duration of status is defined
as the time during which an F-1 student is pursuing a full course of
study at an educational institution approved by the Service for
attendance by foreign students, or engaging in authorized practical
training following completion of studies, plus sixty days to prepare for
departure from the United States. The student is considered to be
maintaining status if he or she is making normal progress toward
completing a course of study.
(ii) Change in educational levels. An F-1 student who continues from
one educational level to another is considered to be maintaining status,
provided that the transition to the new educational level is
accomplished according to transfer procedures outlined in paragraph
(f)(8) of this section.
(iii) Annual vacation. An F-1 student at an academic institution is
considered to be in status during the annual (or summer) vacation if the
student is eligible and intends to register for the next term. A student
attending a school on a quarter or trimester calendar who takes only one
vacation a year during any one of the quarters or trimesters instead of
during the summer is considered to be in status during that vacation, if
the student has completed the equivalent of an academic year prior to
taking the vacation.
(iv) Illness or medical conditions. A student who is compelled by
illness or other medical conditions to interrupt or reduce a full course
of study is considered to be in status during the illness or other
medical condition. The student must resume a full course of study upon
recovery.
(6) Full course of study--(i) General. Successful completion of the
full course of study must lead to the attainment of a specific
educational or professional objective. A ``full course of study'' as
required by section 101(a)(15)(F)(i) of the Act means:
(A) Postgraduate study or postdoctoral study at a college or
university, or undergraduate or postgraduate study at a conservatory or
religious seminary, certified by a DSO as a full course of study;
(B) Undergraduate study at a college or university, certified by a
school official to consist of at least twelve semester or quarter hours
of instruction per academic term in those institutions using standard
semester, trimester, or quarter hour systems, where all undergraduate
students who are enrolled for a minimum of twelve semester or quarter
hours are charged full-time tuition or are considered full-time for
other administrative purposes, or its equivalent (as determined by the
district director in the school approval process), except when the
student needs a lesser course load to complete the course of study
during the current term;
(C) Study in a postsecondary language, liberal arts, fine arts, or
other non-vocational program at a school which confers upon its
graduates recognized associate or other degrees or has established that
its credits have been and are accepted unconditionally by at least three
institutions of higher learning which are either: (1) A school (or
school system) owned and operated as a public educational institution by
the United States or a State or political
[[Page 226]]
subdivision thereof; or (2) a school accredited by a nationally
recognized accrediting body; and which has been certified by a
designated school official to consist of at least twelve clock hours of
instruction a week, or its equivalent as determined by the district
director in the school approval process;
(D) Study in any other language, liberal arts, fine arts, or other
nonvocational training program, certified by a designated school
official to consist of at least eighteen clock hours of attendance a
week if the dominant part of the course of study consists of classroom
instruction, or to consist of at least twenty-two clock hours a week if
the dominant part of the course of study consists of laboratory work; or
(E) Study in a primary school or academic high school curriculum
certified by a designated school official to consist of class attendance
for not less than the minimum number of hours a week prescribed by the
school for normal progress towards graduation.
(ii) Institution of higher learning. For purposes of this paragraph,
a college or university is an institution of higher learning which
awards recognized associate, bachelor's, master's, doctorate, or
professional degrees. Schools which devote themselves exclusively or
primarily to vocational, business, or language instruction are not
included in the category of colleges or universities. Vocational or
business schools which are classifiable as M-1 schools are provided for
by regulations under 8 CFR 214.2(m).
(iii) Reduced course load. The designated school official may advise
an F-1 student to engage in less than a full course of study due to
initial difficulties with the English language or reading requirements,
unfamiliarity with American teaching methods, or improper course level
placement. An F-1 student authorized to reduce course load by the DSO in
accordance with the provisions of this paragraph is considered to be
maintaining status. On-campus employment pursuant to the terms of a
scholarship, fellowship, or assistantship is deemed to be part of the
academic program of a student otherwise taking a full course of study.
(7) Extension of stay--(i) General. An F-1 student is admitted for
duration of status. The student is not required to apply for extension
of stay as long as the student is maintaining status and making normal
progress toward completing his or her educational objective. An F-1
student who is unable to complete a full course of study in a timely
manner must apply, in a 30-day period before the completion date on the
Form I-20 A-B, to the DSO for a program extension pursuant to paragraph
(f)(7)(iii) of this section.
(ii) Completion date on Form I-20 A-B. When determining the program
completion date on Form I-20 A-B, the DSO should make a reasonable
estimate based on the time an average foreign student would need to
complete a similar program in the same discipline. A grace period of no
more than one year may be added onto the DSO's estimate.
(iii) Program extension for students in lawful status. An F-1
student who is unable to meet the program completion date on the Form I-
20 A-B may be granted a program extension by the school, if the DSO
certifies on a Form I-538 that the student has continually maintained
status and that the delays are caused by compelling academic or medical
reasons, such as changes of major or research topics, unexpected
research problems, or documented illnesses. Delays caused by academic
probation or suspension are not acceptable reasons for program
extension. The DSO must notify the Service within 30 days of any
approved program extensions by forwarding to the Service data processing
center a certification on Form I-538 and the top page of a new Form I-20
A-B showing a new program completion date.
(iv) Failure to complete the educational program in a timely manner.
An F-1 student who is unable to complete the educational program within
the time period written on the Form I-20 A-B and who is ineligible for
program extension pursuant to paragraph (f)(7)(iii) of this section is
considered to be out of status. Under these circumstances, the student
must apply for reinstatement under the Provisions of paragraph (f)(16)
of this section.
(8) School transfer--(i) Eligibility. An F-1 student who is
maintaining status
[[Page 227]]
may transfer to another Service-approved school by following the
notification procedure prescribed in paragraph (f)(8)(ii) of this
section. An F-1 student who was not pursuing a full course of study at
the school he or she was last authorized to attend is ineligible for
school-transfer and must apply for reinstatement under the provisions of
paragraph (f)(16) of this section.
(ii) Transfer procedure. To transfer schools, an F-1 student must
first notify the school he or she is attending of the intent to
transfer, then obtain a Form I-20 A-B, issued in accordance with the
provisions of 8 CFR 214.3(k), from the school to which he or she intends
to transfer. The transfer will be effected only if the F-1 student
completes the Student Certification portion of the Form I-20 A-B and
returns the form to a designated school official on campus within 15
days of beginning attendance at the new school.
(iii) Notification. Upon receipt of the student's Form I-20 A-B, the
DSO must:
(A) Note ``transfer completed on (date)'' on the student's I-20 ID
in the space provided for the DSO's remarks, thereby acknowledging the
student's attendance;
(B) Return the I-20 ID to the student;
(C) Submit the I-20 School copy to the Service's Data Processing
Center within 30 days of receipt from the student; and
(D) Forward a photocopy of the Form I-20 A-B School Copy to the
school from which the student transferred.
(9) Employment--(i) On-campus employment. On-campus employment must
either be performed on the school's premises, (including on-location
commercial firms which provide services for students on campus, such as
the school bookstore or cafeteria), or at an off-campus location which
is educationally affiliated with the school. Employment with on-site
commercial firms, such as a construction company building a school
building, which do not provide direct student services is not deemed on-
campus employment for the purposes of this paragraph. In the case of
off-campus locations, the educational affiliation must be associated
with the school's established curriculum or related to contractually
funded research projects at the post-graduate level. In any event, the
employment must be an integral part of the student's educational
program. Employment authorized under this paragraph must not exceed
twenty hours a week while school is in session. An F-1 student may,
however, work on campus full-time when school is not in session or
during the annual vacation. A student who has been issued a Form I-20 A-
B to begin a new program in accordance with the provision of 8 CFR
214.3(k) and who intends to enroll for the next regular academic year,
term, or session at the institution which issued the Form I-20 A-B may
continue on-campus employment incident to status. Otherwise, an F-1
student may not engage in on-campus employment after completing a course
of study, except employment for practical training as authorized under
paragraph (f)(10) of this section. An F-I student may engage in any on-
campus employment authorized under this paragraph which will not
displace United States residents.
(ii) Off-campus work authorization--(A) General. An F-1 student may
be authorized to work off-campus on a part-time basis in accordance with
paragraph (f)(9)(ii) (B) or (C) of this section after having been in F-1
status for one full academic year provided that the student is in good
academic standing as determined by the DSO. Part-time off-campus
employment authorized under this section is limited to no more than
twenty hours a week when school is in session. A student who is granted
off-campus employment authorization may work full-time during holidays
or school vacation. The employment authorization is automatically
terminated whenever the student fails to maintain status.
(B) Wage-and-labor attestation requirement. Except as provided under
paragraphs (f)(9)(ii)(C) and (f)(9)(iii) of this section, a student may
be authorized to accept off-campus employment only if the prospective
employer has filed a labor-and-wage attestation pursuant to 20 CFR part
655, subparts J and K (requiring the employer to attest to the fact that
it has actively recruited domestic labor for at least 60 days for the
[[Page 228]]
position and will accord the student worker the same wages and working
conditions as domestic workers similarly employed.)
(C) Severe economic hardship. If other employment opportunities are
not available or are otherwise insufficient, an eligible F-1 student may
request off-campus employment work authorization based upon severe
economic hardship caused by unforeseen circumstances beyond the
student's control. These circumstances may include loss of financial aid
or on-campus employment without fault on the part of the student,
substantial fluctuations in the value of currency or exchange rate,
inordinate increases in tuition and/or living costs, unexpected changes
in the financial condition of the student's source of support, medical
bills, or other substantial and unexpected expenses.
(D) Procedure for off-campus employment authorization. The student
must submit the application to the DSO on Form I-538, Certification by
Designated School Official. The DSO may recommend the student work off-
campus for one year intervals by certifying on the Form I-538 that:
(1) The student has been in F-1 status for one full academic year;
(2) The student is in good standing as a student and is carrying a
full course of study as defined in paragraph (f)(6) of this section;
(3) The student has demonstrated that acceptance of employment will
not interfere with the student's carrying a full course of study; and
(4) Either: (i) The prospective employer has submitted a labor-and-
wage attestation pursuant to paragraph (f)(9)(ii)(B) of this section, or
(ii) The student has demonstrated that the employment is necessary
to avoid severe economic hardship due to unforeseen circumstances beyond
the student's control pursuant to paragraph (f)(9)(ii)(C) of this
section, and has demonstrated that employment under paragraph (f)(9)(i)
and (f)(9)(ii)(B) of this section is unavailable or otherwise
insufficient to meet the needs that have arisen as a result of the
unforeseen circumstances.
(E) Wage-and-Labor attestation application to the DSO. An eligible
F-1 student may make a request for off-campus employment authorization
to the DSO on Form I-538 after the employer has filed the labor-and-wage
attestation. By certifying on Form I-538 that the student is eligible
for off-campus employment, and endorsing the student's I-20 ID, the DSO
may authorize off-campus employment in one year intervals for the
duration of a valid attestation as determined by the Secretary of Labor.
The endorsement on the student's I-20 ID should read ``part-time
employment with (name of employer) at (location) authorized from (date)
to (date).'' Off-campus employment authorized by the DSO under this
provision is incident to the student's status pursuant to 8 CFR
274a.12(b)(6)(ii) and employer-specific and, therefore, exempt from the
EAD requirement. The DSO must notify the Service of each off-campus
employment authorization by forwarding to the Service data processing
center the completed Form I-538. The DSO shall return to the student the
endorsed I-20 ID.
(F) Severe economic hardship application--(1) The applicant should
submit to the Service Form I-20 ID, Form I-538, and Form I-765 along
with the fee required by 8 CFR 103.7(b)(1), and any other supporting
materials such as affidavits which further detail the unforeseen
circumstances that require the student to seek employment authorization
and the unavailability or insufficiency of employment under paragraphs
(f)(9)(i) and (f)(9)(ii)(B) of this section. The requirement with
respect to paragraph (f)(9)(ii)(B) of this section is satisfied if the
DSO certifies on Form I-538 that the student and the DSO are not aware
of available employment in the area through the Pilot Off-Campus
Employment Program. In areas where there are such Pilot program
opportunities, this requirement is satisfied if the DSO certifies on
Form I-538 that employment under the Pilot program is insufficient to
meet the student's needs. The student must apply for the employment
authorization on Form I-765 with the Service office having jurisdiction
over his or her place of residence.
(2) The Service shall adjudicate the application for work
authorization
[[Page 229]]
based upon severe economic hardship on the basis of Form I-20 ID, Form
I-538, and Form I-765, and any additional supporting materials. If
employment is authorized, the adjudicating officer shall issue an EAD.
The Service director shall notify the student of the decision, and, if
the application is denied, of the reason or reasons for the denial. No
appeal shall lie from a decision to deny a request for employment
authorization under this section. The employment authorization may be
granted in one year intervals up to the expected date of completion of
the student's current course of study. A student has permission to
engage in off-campus employment only if the student receives the EAD
endorsed to that effect. Off-campus employment authorization may be
renewed by the Service only if the student is maintaining status and
good academic standing. The employment authorization is automatically
terminated whenever the student fails to maintain status.
(iii) Internship with an international organization. A bona fide F-1
student who has been offered employment by a recognized international
organization within the meaning of the International Organization
Immunities Act (59 Stat. 669) must apply for employment authorization,
in person, to the Service office having jurisdiction over his or her
place of residence. A student seeking employment authorization under
this provision is required to present a written certification from the
international organization that the proposed employment is within the
scope of the organization's sponsorship, an I-20 ID endorsed for reentry
by the DSO within the last 30 days, and a completed Form I-765,
Application for Employment Authorization, with the fee required in 8 CFR
103.7(b)(1).
(10) Practical training. Practical training is available to F-1
students who have been lawfully enrolled on a full-time basis in a
Service-approved college, university, conservatory, or seminary for at
least nine consecutive months. Students in English language training
programs are ineligible for practical training. An eligible F-1 student
may request employment authorization for practical training in a
position which is directly related to his or her major area of study.
There are two types of practical training available:
(i) Curricular practical training programs. An F-1 student may be
authorized, by the DSO, to participate in a curricular practical
training program which is an integral part of an established curriculum.
Curricular practical training is defined to be alternate work/study,
internship, cooperative education, or any other type of required
internship or practicum which is offered by sponsoring employers through
cooperative agreements with the school. Students who have received one
year or more of full-time curricular practical training are ineligible
for post-completion practical training. Exceptions to the nine-month in
status requirement are provided for students enrolled in graduate
studies which require immediate participation in curricular practical
training. A request for authorization for curricular practical training
must be made to the DSO on Form I-538. Upon approving the request for
authorization, the DSO shall:
(A) Certify the Form I-538 and send the form to the Service's data
processing center;
(B) Endorse the student's I-20 ID with ``full-time (or part-time)
curricular practical training authorized for (employer) at (location)
from (date) to (date)''; and
(C) Sign and date the I-20 ID before returning it to the student. A
student may begin curricular practical training only after receiving his
or her I-20 ID with the DSO endorsement.
(ii) Optional practical training--(A) General. An F-1 student may
apply to the Service for authorization for temporary employment for
practical training directly related to the student's major area of
study. Temporary employment for practical training may be authorized:
(1) During the student's annual vacation and at other times when
school is not in session if the student is currently enrolled and
eligible, and intends, to register for the next term or session;
(2) While school is in session, provided that practical training
does not exceed twenty hours a week while school is in session;
[[Page 230]]
(3) After completion of all course requirements for the degree
(excluding thesis or equivalent), if the student is in a bachelor's
master's, or doctoral degree program; or
(4) After completion of the course of study. A student must complete
all practical training within a 14 month period following the completion
of study.
(B) Termination of practical training. Authorization to engage in
practical training employment is automatically terminated when the
student transfers to another school.
(C) Request for authorization for practical training. A request for
authorization to accept practical training must be made to the
designated school official (DSO) of the school the student is authorized
to attend on Form I-538, accompanied by his or her current Form I-20 ID.
(D) Action of the DSO. In making a recommendation for practical
training, a designated school official must:
(1) Certify on Form I-538 that the proposed employment is directly
related to the student's major area of study and commensurate with the
student's educational level;
(2) Endorse and date the student's Form I-20 ID to show that
practical training in the student's major field of study is recommended
``full-time (or part-time) from (date) to (date)''; and
(3) Return to the student the Form I-20 ID and send to the Service
data processing center the school certification on Form I-538.
(11) Employment authorization. The total periods of authorization
for optional practical training under paragraph (f)(10) of this section
shall not exceed a maximum of twelve months. Part-time practical
training, 20 hours per week or less, shall be deducted from the
available practical training at one-half the full-time rate. As required
by the regulations at 8 CFR part 274a, an F-1 student seeking practical
training (excluding curricular practical training) under paragraph
(f)(10) of this section may not accept employment until he or she has
been issued an Employment Authorization Document (EAD) by the Service.
An F-1 student must apply to the INS for the EAD by filing the Form 1-
765. The application for employment authorization must include the
following documents:
(i) A completed Form I-765, with the fee required by
Sec. 103.7(b)(1); and
(ii) A DSO's recommendation for practical training on I-20 ID.
(12) Decision on application for employment authorization. The
Service shall adjudicate the Form I-765 and issue an EAD on the basis of
the DSO's recommendation unless the student is found otherwise
ineligible. The Service shall notify the applicant of the decision and,
if the application is denied, of the reason or reasons for the denial.
The applicant may not appeal the decision.
(13) Temporary absence from the United States of F-1 student granted
employment authorization. (i) A student returning from a temporary trip
abroad with an unexpired off-campus employment authorization on his or
her I-20 ID may resume employment only if the student is readmitted to
attend the same school which granted the employment authorization.
(ii) An F-1 student who has an unexpired EAD issued for post-
completion practical training and who is otherwise admissible may return
to the United States to resume employment after a period of temporary
absence. The EAD must be used in combination with an I-20 ID endorsed
for reentry by the DSO within the last six months.
(14) Effect of strike or other labor dispute. Any employment
authorization, whether or not part of an academic program, is
automatically suspended upon certification by the Secretary of Labor or
the Secretary's designee to the Commissioner of the Immigration and
Naturalization Service or the Commissioner's designee, that a strike or
other labor dispute involving a work stoppage of workers is in progress
in the occupation at the place of employment. As used in this paragraph,
``place of employment'' means the facility or facilities where a labor
dispute exists. The employer is prohibited from transferring F-1
students working at other facilities to the facility where the work
stoppage is occurring.
(15) Spouse and children of F-1 student. The F-1 spouse and children
of an F-1 student may not accept employment.
[[Page 231]]
(16) Reinstatement to student status--(i) General. The Service may
consider reinstating an F-1 student who makes a request for
reinstatement on Form I-539, Application to Extend Time of Temporary
Stay, accompanied by a properly completed Form I-20 A-B from the school
the student is attending or intends to attend, if the student:
(A) Establishes to the satisfaction of the Service that the
violation of status resulted from circumstances beyond the student's
control or that failure to receive reinstatement to lawful F-1 status
would result in extreme hardship to the student;
(B) Is currently pursuing, or intending to pursue, a full course of
study at the school which issued the Form I-20 A-B;
(C) Has not engaged in unauthorized employment; and
(D) Is not deportable on any ground other than section 241(a)(1)(B)
or (C)(i) of the Act.
(ii) Decision. If the Service reinstates the student, the Service
shall endorse the Form I-20 A-B to indicate that the student has been
reinstated, return the I-20 ID to the student, and forward the school
copy of the form to the Service's processing center for data entry. If
the Service does not reinstate the student, the student may not appeal
that decision.
(g) Representatives to international organizations--(1) General. The
determination by a consular officer prior to admission and the
recognition by the Secretary of State subsequent to admission is
evidence of the proper classification of a nonimmigrant under section
101(a)(15)(G) of the Act. An alien who has a nonimmigrant status under
section 101(a)(15)(G) (i), (ii), (iii) or (iv) of the Act is to be
admitted for the duration of the period for which the alien continues to
be recognized by the Secretary of State as being entitled to that
status. An alien defined in section (101)(a)(15)(G)(v) of the Act is to
be admitted for an initial period of not more than three years, and may
be granted extensions of temporary stay in increments of not more than
two years. In addition, the application for extension of temporary stay
must be accompanied by a statement signed by the employing official
stating that he or she intends to continue to employ the applicant and
describing the type of work the applicant will perform.
(2) Definition of G-1, G-3, or G-4 dependent. For purposes of
employment in the United States, the term dependent of a G-1, G-3, or G-
4 principal alien, as used in Sec. 214.2(g), means any of the following
immediate members of the family habitually residing in the same
household as the principal alien who is an officer or employee assigned
to a mission, to an international organization, or is employed by an
international organization in the United States:
(i) Spouse;
(ii) Unmarried children under the age of 21;
(iii) Unmarried sons or daughters under the age of 23 who are in
full-time attendance as students at post-secondary educational
institutions;
(iv) Unmarried sons or daughters under the age of 25 who are in
full-time attendance as students at post-secondary educational
institutions if a formal bilateral employment agreement permitting their
employment in the United States was signed prior to November 21, 1988,
and such bilateral employment agreement does not specify 23 as the
maximum age for employment of such sons and daughters. The Office of
Protocol of the Department of State shall maintain a listing of foreign
states which the United States has such bilateral employment agreements.
The provisions of this paragraph apply only to G-1 and G-3 dependents
under certain bilateral agreements and are not applicable to G-4
dependents; and
(v) Unmarried sons or daughters who are physically or mentally
disabled to the extent that they cannot adequately care for themselves
or cannot establish, maintain, or re-establish their own households. The
Department of State or the Service may require certification(s) as it
deems sufficient to document such mental or physical disability.
(3) Applicability of a formal bilateral agreement or an informal de
facto arrangement for G-1 and G-3 dependents. The applicability of a
formal bilateral agreement shall be based on the foreign state which
employs the principal alien
[[Page 232]]
and not on the nationality of the principal alien or dependent. The
applicability of an informal de facto arrangement shall be based on the
foreign state which employs the principal alien, but under a de facto
arrangement the principal alien also must be a national of the foreign
state which employs him or her in the United States.
(4) Income tax, Social Security liability; non-applicability of
certain immunities. Dependents who are granted employment authorization
under this section are responsible for payment of all federal, state and
local income, employment and related taxes and Social Security
contributions on any remuneration received. In addition, immunity from
civil or administrative jurisdiction in accordance with Article 37 of
the Vienna Convention on Diplomatic Relations or other international
agreements does not apply to these dependents with respect to matters
arising out of their employment.
(5) G-1 and G-3 dependent employment pursuant to formal bilateral
employment agreements and informal de facto reciprocal arrangements, and
G-4 dependent employment. (i) The Office of Protocol shall maintain a
listing of foreign states which have entered into formal bilateral
employment agreements. Dependents of a G-1 or G-3 principal alien
assigned to official duty in the United States may accept or continue in
unrestricted employment based on such formal bilateral agreements, if
the applicable agreement includes persons in G-1 or G-3 visa status,
upon favorable recommendation by the Department of State and issuance of
employment authorization documentation by the Service in accordance with
8 CFR part 274a. The application procedures are set forth in paragrpah
(g)(6) of this section.
(ii) For purposes of this section, an informal de facto reciprocal
arrangement exists when the Department of State determines that a
foreign state allows appropriate employment on the local economy for
dependents of certain United States officials assigned to duty in that
foreign state. The Office of Protocol shall maintain a listing of
countries with which such reciprocity exists. Dependents of a G-1 or G-3
principal alien assigned to official duty in the United States may be
authorized to accept or continue in employment based upon informal de
facto arrangements, and dependents of a G-4 principal alien assigned to
official duty in the United States may be authorized to accept or
continue in employment upon favorable recommendation by the Department
of State and issuance of employment authorization by the Service in
accordance with 8 CFR part 274a. Additionally, the procedures set forth
in paragraph (g)(6) of this section must be complied with, and the
following conditions must be met:
(A) Both the principal alien and the dependent desiring employment
are maintaining G-1, G-3, or G-4 status as appropriate;
(B) The principal's assignment in the United States is expected to
last more than six months;
(C) Employment of a similar nature for dependents of United States
Government officials assigned to official duty in the foreign state
employing the principal alien is not prohibited by that foreign
government. The provisions of this paragraph apply only to G-1 and G-3
dependents;
(D) The proposed employment is not in an occupation listed in the
Department of Labor Schedule B (20 CFR part 656), or otherwise
determined by the Department of Labor to be one for which there is an
oversupply of qualified U.S. workers in the area of proposed employment.
This Schedule B restriction does not apply to a dependent son or
daughter who is a full-time student if the employment is part-time,
consisting of not more than 20 hours per week, and/or if it is temporary
employment of not more than 12 weeks during school holiday periods; and
(E) The proposed employment is not contrary to the interest of the
United States. Employment contrary to the interest of the United States
includes, but is not limited to, the employment of G-1, G-3, or G-4
dependents: who have criminal records; who have violated United States
immigration laws or regulations, or visa laws or regulations; who have
worked illegally in the United States; and/or who cannot establish that
they have paid taxes and social security on income from current or
previous United States employment.
[[Page 233]]
Additionally, the Department of State may determine a G-4 dependent's
employment is contrary to the interest of the United States when the
principal alien's country of nationality has one or more components of
an international organization or international organizations within its
borders and does not allow the employment of dependents of United States
citizens employed by such component(s) or organization(s).
(6) Application procedures. The following procedures are applicable
to G-1 and G-3 dependent employment applications under bilateral
agreements and de facto arrangements, as well as to G-4 dependent
employment applications:
(i) The dependent must submit a completed Form I-566 to the
Department of State through the office, mission, or organization which
employs his or her principal alien. If the principal is assigned to or
employed by the United Nations, the Form I-566 must be submitted to the
U.S. Mission to the United Nations. All other applications must be
submitted to the Office of Protocol of the Department of State. A
dependent applying under paragraph (g)(2) (iii) or (iv) of this section
must submit a certified statement from the post-secondary educational
institution confirming that he or she is pursuing studies on a full-time
basis. A dependent applying under paragraph (g)(2)(v) of this section
must submit medical certification regarding his or her condition. The
certification should identify the dependent and the certifying physician
and give the physician's phone number; identify the condition, describe
the symptoms and provide a prognosis; certify that the dependent is
unable to establish, re-establish, and maintain a home or his or her
own. Additionally, a G-1 or G-3 dependent applying under the terms of a
de facto arrangement or a G-4 dependent must attach a statement from the
prospective employer which includes the dependent's name; a description
of the position offered and the duties to be performed; the salary
offered; and verification that the dependent possesses the
qualifications for the position.
(ii) The Department of State reviews and verifies the information
provided, makes its determination, and endorses the Form I-566.
(iii) If the Department of State's endorsement is favorable, the
dependent may apply to the Service. A dependent whose principal alien is
stationed at a post in Washington, DC, or New York City shall apply to
the District Director, Washington, DC, or New York City, respectively. A
dependent whose principal alien is stationed elsewhere shall apply to
the District Director, Washington, DC, unless the Service, through the
Department of State, directs the dependent to apply to the district
director having jurisdiction over his or her place of residence.
Directors of the regional service centers may have concurrent
adjudicative authority for applications filed within their respective
regions. When applying to the Service, the dependent must present his or
her Form I-566 with a favorable endorsement from the Department of State
and any additional documentation as may be required by the Attorney
General.
(7) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
section shall be granted in increments of not more than three years
each.
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this section.
(9) Dependents or family members of principal aliens classified G-2
or G-5. A dependent or family member of a principal alien classified G-2
or G-5 may not be employed in the United States under this section.
(10) Unauthorized employment. An alien classified under section
101(a)(15)(G) of the Act who is not a principal alien and who engages in
employment outside the scope of, or in a manner contrary to this
section, may be considered in violation of section 241(a)(1)(C)(i) of
the Act. An alien who is classified under section 101(a)(15)(G) of the
Act who is a principal alien and who engages in employment outside the
scope of his/her official position may be considered in violation of
section 241(a)(1)(C)(i) of the Act.
[[Page 234]]
(11) Special provision. As of February 16, 1990 no new employment
authorization will be granted and no pre-existing employment
authorization will be extended for a G-1 dependent absent an appropriate
bilateral agreement or de facto arrangement. However, a G-1 dependent
who has been granted employment authorization by the Department of State
prior to the effective date of this section and who meets the definition
of dependent under Sec. 214.2(g)(2) (i), (ii), (iii) or (v) of this part
but is not covered by the terms of a bilateral agreement or de facto
arrangement may be allowed to continue in employment until whichever of
the following occurs first:
(i) The employment authorization by the Department of State expires;
or
(ii) He or she no longer qualifies as a dependent as that term is
defined in this section; or
(iii) March 19, 1990.
(h) Temporary employees--(1) Admission of temporary employees--(i)
General. Under section 101(a)(15)(H) of the Act, an alien may be
authorized to come to the United States temporarily to perform services
or labor for, or to receive training from, an employer, if petitioned
for by that employer. Under this nonimmigrant category, the alien may be
classified as follows: under section 101(a)(15)(H)(i)(a) of the Act as a
registered nurse; under section 101(a)(15)(H)(i)(b) of the Act as an
alien who is coming to perform services in a specialty occupation,
services relating to a Department of Defense (DOD) cooperative research
and development project or coproduction project, or services as a
fashion model who is of distinguished merit and ability; under section
101(a)(15)(H)(ii)(a) of the Act as an alien who is coming to perform
agricultural labor or services of a temporary or seasonal nature; under
section 101(a)(15)(H)(ii)(b) of the Act as an alien coming to perform
other temporary services or labor; or under section 101(a)(15)(H)(iii)
of the Act as an alien who is coming as a trainee or as a participant in
a special education exchange visitor program. These classifications are
called H-1A, H-1B, H-2A, H-2B, and H-3, respectively. The employer must
file a petition with the Service for review of the services or training
and for determination of the alien's eligibility for classification as a
temporary employee or trainee, before the alien may apply for a visa or
seek admission to the United States. This paragraph sets forth the
standards and procedures applicable to these classifications.
(ii) Description of classifications. (A) An H-1A classification
applies to an alien who is coming temporarily to the United States to
perform services as a registered nurse, meets the requirements of
section 212(m)(1) of the Act, and will perform services at a facility
for which the Secretary of Labor has determined and certified to the
Attorney General that an unexpired attestation is on file and in effect
under section 212(m)(2) of the Act.
(B) An H-1B classification applies to an alien who is coming
temporarily to the United States:
(1) To perform services in a specialty occupation (except registered
nurses, agricultural workers, and aliens described in section 101(a)
(15) (O) and (P) of the Act) described in section 214(i)(1) of the Act,
that meets the requirements of section 214(i)(2) of the Act, and for
whom the Secretary of Labor has determined and certified to the Attorney
General that the prospective employer has filed a labor condition
application under section 212(n)(1) of the Act;
(2) To perform services of an exceptional nature requiring
exceptional merit and ability relating to a cooperative research and
development project or a coproduction project provided for under a
Government-to-Government agreement administered by the Secretary of
Defense;
(3) To perform services as a fashion model of distinguished merit
and ability and for whom the Secretary of Labor has determined and
certified to the Attorney General that the prospective employer has
filed a labor condition application under section 212(n)(1) of the Act.
(C) An H-2A classification applies to an alien who is coming
temporarily to the United States to perform agricultural work of a
temporary or seasonal nature.
(D) An H-2B classification applies to an alien who is coming
temporarily to
[[Page 235]]
the United States to perform nonagricultural work of a temporary or
seasonal nature, if unemployed persons capable of performing such
service or labor cannot be found in this country. This classification
does not apply to graduates of medical schools coming to the United
States to perform services as members of the medical profession. The
temporary or permanent nature of the services or labor to be performed
must be determined by the service. This classification requires a
temporary labor certification issued by the Secretary of Labor or the
Governor of Guam, or a notice from one of these individuals that such a
certification cannot be made, prior to the filing of a petition with the
Service.
(E) An H-3 classification applies to an alien who is coming
temporarily to the United States:
(1) As a trainee, other than to receive graduate medical education
or training, or training provided primarily at or by an academic or
vocational institution, or
(2) As a participant in a special education exchange visitor program
which provides for practical training and experience in the education of
children with physical, mental, or emotional disabilities.
(2) Petitions--(i) Filing of petitions--(A) General. A United States
employer seeking to classify an alien as an H-1A, H-1B, H-2A, H-2B, or
H-3 temporary employee shall file a petition on Form I-129, Petition for
Nonimmigrant Worker, only with the Service Center which has jurisdiction
in the area where the alien will perform services or receive training,
even in emergent situations, except as provided in this section.
Petitions in Guam and the Virgin Islands, and petitions involving
special filing situations as determined by Service Headquarters, shall
be filed with the local Service Office or a designated Service Office.
The petitioner may submit a legible photocopy of a document in support
of the visa petition in lieu of the original document. However, the
original document shall be submitted if requested by the Service.
(B) Service or training in more than one location. A petition which
requires services to be performed or training to be received in more
than one location must include an itinerary with the dates and locations
of the services or training and must be filed with the Service office
which has jurisdiction over I-129H petitions in the area where the
petitioner is located. The address which the petitioner specifies as its
location on the I-129H petition shall be where the petitioner is located
for purposes of this paragraph.
(C) Services or training for more than one employer. If the
beneficiary will perform nonagricultural services for, or receive
training from, more than one employer, each employer must file a
separate petition with the Service Center that has jurisdiction over the
area where the alien will perform services or receive training, unless
an established agent files the petition.
(D) Change of employers. If the alien is in the United States and
decides to change employers, the new employer must file a petition on
Form I-129 requesting classification and extension of the alien's stay
in the United States. If the new petition is approved, the extension of
stay may be granted for the validity of the approved petition. The
validity of the petition and the alien's extension of stay shall conform
to the limits on the alien's temporary stay that are prescribed in
paragraph (h)(13) of this section. The alien is not authorized to begin
the new employment until the petition is approved.
(E) Amended or new petition. The petitioner shall file an amended or
new petition, with fee, with the Service Center where the original
petition was filed to reflect any material changes in the terms and
conditions of employment or training or the beneficiary's eligibility as
specified in the original approved petition. An amended or new H-1A, H-
1B, H-2A, or H-2B petition must be accompanied by a current or new
Department of Labor determination. In the case of an H-1B petition, this
requirement includes a new labor condition application.
(F) Agents as petitioners. An established United States agent may
file a petition in cases involving workers who traditionally are self-
employed or use agents to arrange short-term employment in their behalf
with numerous employers, and in cases where a
[[Page 236]]
foreign employer authorizes the agent to act in its behalf. A petition
filed by a agent is subject to the following conditions:
(1) A person or company in business as an agent may file the H
petition involving multiple employers as the representative of both the
employers and the beneficiary(ies) if the supporting documentation
includes a complete itinerary of services or engagements. The itinerary
shall specify the dates of each service or engagement, the names and
addresses of the actual employers, and the names and addresses of the
establishments, venues, or locations where the services will be
performed. In questionable cases, a contract between the employers and
the beneficiary(ies) may be required. The burden is on the agent to
explain the terms and conditions of the employment and to provide any
required documentation.
(2) An agent performing the function of an employer must guarantee
the wage offered and the other terms and conditions of employment by
contractural agreement with the beneficiary(ies). The agent/employer
must also provide an itinerary of definite employment and information on
any other services planned for the period of time requested.
(ii) Multiple beneficiaries. More than one beneficiary may be
included in an H-2A, H-2B, or H-3 petition if the beneficiaries will be
performing the same service, or receiving the same training, for the
same period of time, and in the same location.
(iii) Named beneficiaries. Nonagricultural petitions must include
the names of beneficiaries and other required information at the time of
filing. Under the H-2B classification, exceptions may be granted in
emergent situations involving multiple beneficiaries at the discretion
of the director, and in special filing situations as determined by the
Service's Headquarters. If all of the beneficiaries covered by an H-2A
or H-2B labor certification have not been identified at the time a
petition is filed, multiple petitions naming subsequent beneficiaries
may be filed at different times with a copy of the same labor
certification. Each petition must reference all previously filed
petitions for that labor certification.
(iv) Substitution of beneficiaries. Beneficiaries may be substituted
in and H-2B petitions that are approved for a group, or H-2B petitions
that are approved for unnamed beneficiaries, or approved H-2B petitions
where the job offered to the alien(s) does not require any education,
training, and/or experience. To request a substitution, the petitioner
shall, by letter and a copy of the petition's approval notice, notify
the consular office at which the alien will apply for a visa or the port
of entry where the alien will apply for admission. Where evidence of the
qualifications of beneficiaries is required in petitions for unnamed
beneficiaries, the petitioner shall also submit such evidence to the
consular office or port of entry prior to issuance of a visa or
admission.
(v) H-2A Petitions. Special criteria for admission, extension, and
maintenance of status apply to H-2A petitions and are specified in
paragraph (h)(5) of this section. The other provisions of Sec. 214.2(h)
apply to H-2A only to the extent that they do not conflict with the
special agricultural provisions in paragraph (h)(5) of this section.
(3) Petition for registered nurse (H-1A)--(i) General. (A) For
purposes of H-1A classification, the term ``registered nurse'' includes
a foreign nurse who is or will be licensed or authorized by the State
Board of Nursing to engage in professional nurse practice in the state
of intended employment.
(B) A United States employer which provides health care services is
referred to as a ``facility,'' and may file an H-1A petition for an
alien nurse to perform the services of a registered nurse. A
``facility'' must also meet the Department of Labor's requirements as
defined in 29 CFR part 504.''.
(C) The position must involve nursing practice and require licensure
or other authorization to practice as a registered nurse from the State
Board of Nursing in the state of intended employment.
(D) A petition, application for change of status, or application for
extension of stay for an H-1A nurse may be adjudicated only at the
appropriate INS service center.
[[Page 237]]
(ii) Definition of registered nurse. For purposes of H-1A
classification, ``registered nurse'' shall mean a person who is or will
be authorized by a State Board of Nursing to engage in registered nurse
practice in a state or U.S. territory or possession, and who is or will
be practicing at a facility which provides health care services.
(iii) Beneficiary requirements. An H-1A petition for a nurse shall
be accompanied by evidence that the nurse:
(A) Has obtained a full and unrestricted license to practice nursing
in the country where the alien obtained nursing education, or has
received nursing education in the United States or Canada;
(B) Has passed the examination given by the Commission on Graduates
of Foreign Nursing Schools (CGFNS), or has obtained a full and
unrestricted (permanent) license to practice as a registered nurse in
the state of intended employment, or has obtained a full and
unrestricted (permanent) license in any state or territory of the United
States and received temporary authorization to practice as a registered
nurse in the state of intended employment; and
(C) Is fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse to
be employed) governing the place of intended employment to practice as a
registered nurse immediately upon admission to the United States, and is
authorized under such laws to be employed by the employer. For purposes
of this paragraph, the temporary or interim licensing may be obtained
immediately after the alien enters the United States.
(iv) Petitioner requirements. The petitioning facility shall submit
the following with an H-1A petition:
(A) A current copy of the Department of Labor's (DOL) notice of
acceptance of the filing of its attestation on Form ETA 9029,
(B) A statement that it will comply with the terms of its current
attestation, and any attestations accepted by DOL for the duration of
the alien's authorized period of stay,
(C) A statement describing any limitations which the laws of the
state or jurisdiction of intended employment place on the nurse's
services,
(D) A statement that notice of the filing of the petition has been
provided by the employer to the bargaining representative of the
registered nurses at the facility or, where there is no such bargaining
representative, notice of the filing has been provided to registered
nurses employed at the facility through posting in conspicuous
locations. A copy of the notice provided shall be submitted with the
petitions, and
(v) Licensure requirements. (A) A nurse who is granted H-1A
classification based on passage of the CGFNS examination must, upon
admission to the United States, be able to obtain temporary licensure or
other temporary authorization to practice as a registered nurse from the
State Board of Nursing in the state of intended employment. A petition
for such a nurse shall be approved initially for a period not to exceed
one year.
(B) After admission to the United States, an H-1A nurse who does not
hold a permanent state license must take and pass the examination for
state licensure as a registered nurse within six months from the date of
his or her initial admission to the United States. After this six-month
period of time, the nurse must be granted permanent state licensure in
order to maintain his or her eligibility for H-1A classification in the
state of employment or any other state or territory of the United
States.
(C) A nurse shall automatically lose his or her eligibility for H-1A
classification if he or she is no longer performing the duties of a
registered professional nurse. Such a nurse is not authorized to remain
in employment unless he or she otherwise receives authorization from the
Service.
(D) A nurse may be granted H-1A classification based on passage of
the CGFNS examination only until he or she has been admitted to the
United States, and has had an opportunity to take the state licensure
examination for registered nurses.
(vi) Other requirements. (A) If the Secretary of Labor notifies the
Service that a facility which employs nurses
[[Page 238]]
has failed to meet a condition in its attestation, or that there was a
misrepresentation of a material fact in the attestation, the Service
shall not approve petitions for or extend the stay of nurses to be
employed by the facility for a period of one year from the date of
receipt of such notice.
(B) If the facility's attestation expires, or is suspended or
invalidated by DOL, the Service will not suspend or revoke the
facility's approved petitions for nurses, if the facility has agreed to
comply with the terms of the attestation under which the nurses were
admitted or subsequent attestations accepted by DOL for the duration of
the nurses' authorized stay.
(4) Petition for alien to perform services in a specialty
occupation, services relating to a DOD cooperative research and
development project or coproduction project, or services of
distinguished merit and ability in the ield of fashion modeling (H-1B)--
(i)(A) Types of H-1B classification. An H-1B classification may be
granted to an alien who:
(1) Will perform services in a specialty occupation which requires
theoretical and practical application of a body of highly specialized
knowledge and attainment of a baccalaureate or higher degree or its
equivalent as a minimum requirement for entry into the occupation in the
United States, and who is qualified to perform services in the specialty
occupation because he or she has attained a baccalaureate or higher
degree or its equivalent in the specialty occupation;
(2) Based on reciprocity, will perform services of an exceptional
nature requiring exceptional merit and ability relating to a DOD
cooperative research and development project or a coproduction project
provided for under a Government-to-Government agreement administered by
the Secretary of Defense;
(3) Will perform services in the field of fashion modeling and who
is of distinguished merit and ability.
(B) General requirements for petitions involving a specialty
occupation. (1) Before filing a petition for H-1B classification in a
specialty occupation, the petitioner shall obtain a certification from
the Department of Labor that it has filed a labor condition application
in the occupational specialty in which the alien(s) will be employed.
(2) Certification by the Department of Labor of a labor condition
application in an occupational classification does not constitute a
determination by that agency that the occupation in question is a
specialty occupation. The director shall determine if the application
involves a specialty occupation as defined in section 214(i)(1) of the
Act. The director shall also determine whether the particular alien for
whom H-1B classification is sought qualifies to perform services in the
specialty occupation as prescribed in section 214(i)(2) of the Act.
(3) If all of the beneficiaries covered by an H-1B labor condition
application have not been identified at the time a petition is filed,
petitions for newly identified beneficiaries may be filed at any time
during the validity of the labor condition application using photocopies
of the same application. Each petition must refer by file number to all
previously approved petitions for that labor condition application.
(4) When petitions have been approved for the total number of
workers specified in the labor condition application, substitution of
aliens against previously approved openings shall not be made. A new
labor condition application shall be required.
(5) If the Secretary of Labor notifies the Service that the
petitioning employer has failed to meet a condition of paragraph (B) of
section 212(n)(1) of the Act, has substantially failed to meet a
condition of paragraphs (C) or (D) of section 212(n)(1) of the Act, has
willfully failed to meet a condition of paragraph (A) of section
212(n)(1) of the Act, or has misrepresented any material fact in the
application, the Service shall not approve petitions filed with respect
to that employer under section 204 or 214(c) of the Act for a period of
at least one year from the date of receipt of such notice.
(6) If the employer's labor condition application is suspended or
invalidated by the Department of Labor, the Service will not suspend or
revoke the employer's approved petitions for aliens already employed in
specialty occupations if the employer has certified to the Department of
Labor that it will
[[Page 239]]
comply with the terms of the labor condition application for the
duration of the authorized stay of aliens it employs.
(C) General requirements for petitions involving an alien of
distinguished merit and ability in the field of fashion modeling. H-1B
classification may be granted to an alien who is of distinguished merit
and ability in the field of fashion modeling. An alien of distinguished
merit and ability in the field of fashion modeling is one who is
prominent in the field of fashion modeling. The alien must also be
coming to the United States to perform services which require a fashion
model of prominence.
(ii) Definitions.
Prominence means a high level of achievement in the field of fashion
modeling evidenced by a degree of skill and recognition substantially
above that ordinarily encountered to the extent that a person described
as prominent is renowned, leading, or well-known in the field of fashion
modeling.
Regonized authority means a person or an organization with expertise
in a particular field, special skills or knowledge in that field, and
the expertise to render the type of opinion requested. Such an opinion
must state:
(1) The writer's qualifications as an expert;
(2) The writer's experience giving such opinions, citing specific
instances where past opinions have been accepted as authoritative and by
whom;
(3) How the conclusions were reached; and
(4) The basis for the conclusions supported by copies or citations
of any research material used.
Specialty occupation means an occupation which requires theoretical
and practical application of a body of highly specialized knowledge in
fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine
and health, education, business specialties, accounting, law, theology,
and the arts, and which requires the attainment of a bachelor's degree
or higher in a specific specialty, or its equivalent, as a minimum for
entry into the occupation in the United States.
United States employer means a person, firm, corporation,
contractor, or other association, or organization in the United States
which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees
under this part, as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.
(iii) Criteria for H-1B petitions involving a specialty occupation--
(A) Standards for specialty occupation position. To qualify as a
specialty occupation, the position must meet one of the following
criteria:
(1) A baccalaureate or higher degree or its equivalent is normally
the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel
positions among similar organizations or, in the alternative, an
employer may show that its particular position is so complex or unique
that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for
the position; or
(4) The nature of the specific duties are so specialized and complex
that knowledge required to perform the duties is usually associated with
the attainment of a baccalaureate or higher degree.
(B) Petitioner requirements. The petitioner shall submit the
following with an H-1B petition involving a specialty occupation:
(1) A certification from the Secretary of Labor that the petitioner
has filed a labor condition application with the Secretary,
(2) A statement that it will comply with the terms of the labor
condition application for the duration of the alien's authorized period
of stay,
(3) Evidence that the alien qualifies to perform services in the
specialty occupation as described in paragraph (h)(4)(iii)(A) of this
section, and
(C) Beneficiary qualifications. To qualify to perform services in a
specialty
[[Page 240]]
occupation, the alien must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by
the specialty occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United
States baccalaureate or higher degree required by the specialty
occupation from an accredited college or university;
(3) Hold an unrestricted State license, registration or
certification which authorizes him or her to fully practice the
specialty occupation and be immediately engaged in that specialty in the
state of intended employment; or
(4) Have education, specialized training, and/or progressively
responsible experience that is equivalent to completion of a United
States baccalaureate or higher degree in the specialty occupation, and
have recognition of expertise in the specialty through progressively
responsible positions directly related to the specialty.
(D) Equivalence to completion of a college degree. For purposes of
paragraph (h)(4)(iii)(C)(4) of this section, equivalence to completion
of a United States baccalaureate or higher degree shall mean achievement
of a level of knowledge, competence, and practice in the specialty
occupation that has been determined to be equal to that of an individual
who has a baccalaureate or higher degree in the specialty and shall be
determined by one or more of the following:
(1) An evaluation from an official who has authority to grant
college-level credit for training and/or experience in the specialty at
an accredited college or university which has a program for granting
such credit based on an individual's training and/or work experience;
(2) The results of recognized college-level equivalency examinations
or special credit programs, such as the College Level Examination
Program (CLEP), or Program on Noncollegiate Sponsored Instruction
(PONSI);
(3) An evaluation of education by a reliable credentials evaluation
service which specializes in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-
recognized professional association or society for the specialty that is
known to grant certification or registration to persons in the
occupational specialty who have achieved a certain level of competence
in the specialty;
(5) A determination by the Service that the equivalent of the degree
required by the specialty occupation has been acquired through a
combination of education, specialized training, and/or work experience
in areas related to the specialty and that the alien has achieved
recognition of expertise in the specialty occupation as a result of such
training and experience. For purposes of determining equivalency to a
baccalaureate degree in the specialty, three years of specialized
training and/or work experience must be demonstrated for each year of
college-level training the alien lacks. For equivalence to an advanced
(or Masters) degree, the alien must have a baccalaureate degree followed
by at least five years of experience in the specialty. If required by a
specialty, the alien must hold a Doctorate degree or its foreign
equivalent. It must be clearly demonstrated that the alien's training
and/or work experience included the theoretical and practical
application of specialized knowledge required by the specialty
occupation; that the alien's experience was gained while working with
peers, supervisors, or subordinates who have a degree or its equivalent
in the specialty occupation; and that the alien has recognition of
expertise in the specialty evidenced by at least one type of
documentation such as:
(i) Recognition of expertise in the specialty occupation by at least
two recognized authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association
or society in the specialty occupation;
(iii) Published material by or about the alien in professional
publications, trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation
in a foreign country; or
[[Page 241]]
(v) Achievements which a recognized authority has determined to be
significant contributions to the field of the specialty occupation.
(E) Liability for transportation costs. The employer will be liable
for the reasonable costs of return transportation of the alien abroad if
the alien is dismissed from employment by the employer before the end of
the period of authorized admission pursuant to section 214(c)(5) of the
Act. If the beneficiary voluntarily terminates his or her employment
prior to the expiration of the validity of the petition, the alien has
not been dismissed. If the beneficiary believes that the employer has
not complied with this provision, the beneficiary shall advise the
Service Center which adjudicated the petition in writing. The complaint
will be retained in the file relating to the petition. Within the
context of this paragraph, the term ``abroad'' refers to the alien's
last place of foreign residence. This provision applies to any employer
whose offer of employment became the basis for an alien obtaining or
continuing H-1B status.
(iv) General documentary requirements for H-1B classification in a
specialty occupation. An H-1B petition involving a specialty occupation
shall be accompanied by:
(A) Documentation, certifications, affidavits, declarations,
degrees, diplomas, writings, reviews, or any other required evidence
sufficient to establish that the beneficiary is qualified to perform
services in a specialty occupation as described in paragraph (h)(4)(i)
of this section and that the services the beneficiary is to perform are
in a specialty occupation. The evidence shall conform to the following:
(1) School records, diplomas, degrees, affidavits, declarations,
contracts, and similar documentation submitted must reflect periods of
attendance, courses of study, and similar pertinent data, be executed by
the person in charge of the records of the educational or other
institution, firm, or establishment where education or training was
acquired.
(2) Affidavits or declarations made under penalty of perjury
submitted by present or former employers or recognized authorities
certifying as to the recognition and expertise of the beneficiary shall
specifically describe the beneficiary's recognition and ability in
factual terms and must set forth the expertise of the affiant and the
manner in which the affiant acquired such information.
(B) Copies of any written contracts between the petitioner and
beneficiary, or a summary of the terms of the oral agreement under which
the beneficiary will be employed, if there is no written contract.
(v) Licensure for H classification--(A) General. If an occupation
requires a state or local license for an individual to fully perform the
duties of the occupation, an alien (except an H-1A nurse) seeking H
classification in that occupation must have that license prior to
approval of the petition to be found qualified to enter the United
States and immediately engage in employment in the occupation.
(B) Temporary licensure. If a temporary license is available and the
alien is allowed to perform the duties of the occupation without a
permanent license, the director shall examine the nature of the duties,
the level at which the duties are performed, the degree of supervision
received, and any limitations placed on the alien. If an analysis of the
facts demonstrates that the alien under supervision is authorized to
fully perform the duties of the occupation, H classification may be
granted.
(C) Duties without licensure. In certain occupations which generally
require licensure, a state may allow an individual to fully practice the
occupation under the supervision of licensed senior or supervisory
personnel in that occupation. In such cases, the director shall examine
the nature of the duties and the level at which they are performed. If
the facts demonstrate that the alien under supervision could fully
perform the duties of the occupation, H classification may be granted.
(D) H-1A nurses. For purposes of licensure, H-1A nurses must provide
the evidence required in paragraph (h)(3)(iii) of this section.
(E) Limitation on approval of petition. Where licensure is required
in any occupation, including registered nursing, the H petition may only
be approved for a period of one year or for the period that the
temporary license is
[[Page 242]]
valid, whichever is longer, unless the alien already has a permanent
license to practice the occupation. An alien who is accorded H
classification in an occupation which requires licensure may not be
granted an extension of stay or accorded a new H classification after
the one year unless he or she has obtained a permanent license in the
state of intended employment or continues to hold a temporary license
valid in the same state for the period of the requested extension.
(vi) Criteria and documentary requirements for H-1B petitions
involving DOD cooperative research and development projects or
coproduction projects--(A) General. (1) For purposes of H-1B
classification, services of an exceptional nature relating to DOD
cooperative research and development projects or coproduction projects
shall be those services which require a baccalaureate or higher degree,
or its equivalent, to perform the duties. The existence of this special
program does not preclude the DOD from utilizing the regular H-1B
provisions provided the required guidelines are met.
(2) The requirements relating to a labor condition application from
the Department of Labor shall not apply to petitions involving DOD
cooperative research and development projects or coproduction projects.
(B) Petitioner requirements. (1) The petition must be accompanied by
a verification letter from the DOD project manager for the particular
project stating that the alien will be working on a cooperative research
and development project or a coproduction project under a reciprocal
Government-to-Government agreement administered by DOD. Details about
the specific project are not required.
(2) The petitioner shall provide a general description of the
alien's duties on the particular project and indicate the actual dates
of the alien's employment on the project.
(3) The petitioner shall submit a statement indicating the names of
aliens currently employed on the project in the United States and their
dates of employment. The petitioner shall also indicate the names of
aliens whose employment on the project ended within the past year.
(C) Beneficiary requirement. The petition shall be accompanied by
evidence that the beneficiary has a baccalaureate or higher degree or
its equivalent in the occupational field in which he or she will be
performing services in accordance with paragraph (h)(4)(iii)(C) and/or
(h)(4)(iii)(D) of this section.
(vii) Criteria and documentary requirements for H-1B petitions for
aliens of distinguished merit and ability in the field of fashion
modeling--(A) General. Prominence in the field of fashion modeling may
be established in the case of an individual fashion model. The work
which a prominent alien is coming to perform in the United States must
require the services of a prominent alien. A petition for an H-1B alien
of distinguished merit and ability in the field of fashion modeling
shall be accompanied by:
(1) Documentation, certifications, affidavits, writings, reviews, or
any other required evidence sufficient to establish that the beneficiary
is a fashion model of distinguished merit and ability. Affidavits
submitted by present or former employers or recognized experts
certifying to the recognition and distinguished ability of the
beneficiary shall specifically describe the beneficiary's recognition
and ability in factual terms and must set forth the expertise of the
affiant and the manner in which the affiant acquired such information.
(2) Copies of any written contracts between the petitioner and
beneficiary, or a summary of the terms of the oral agreement under which
the beneficiary will be employed, if there is no written contract.
(B) Petitioner's requirements. To establish that a position requires
prominence, the petitioner must establish that the position meets one of
the following criteria:
(1) The services to be performed involve events or productions which
have a distinguished reputation;
(2) The services are to be performed for an organization or
establishment that has a distinguished reputation for, or record of,
employing prominent persons.
(C) Beneficiary's requirements. A petitioner may establish that a
beneficiary is a fashion model of distinguished
[[Page 243]]
merit and ability by the submission of two of the following forms of
documentation showing that the alien:
(1) Has achieved national or international recognition and acclaim
for outstanding achievement in his or her field as evidenced by reviews
in major newspapers, trade journals, magazines, or other published
material;
(2) Has performed and will perform services as a fashion model for
employers with a distinguished reputation;
(3) Has received recognition for significant achievements from
organizations, critics, fashion houses, modeling agencies, or other
recognized experts in the field; or
(4) Commands a high salary or other substantial remuneration for
services evidenced by contracts or other reliable evidence.
(viii) Criteria and documentary requirements for H-1B petitions for
physicians--(A) Beneficiary's requirements. An H-1B petition for a
physician shall be accompanied by evidence that the physician:
(1) Has a license or other authorization required by the state of
intended employment to practice medicine, or is exempt by law therefrom,
if the physician will perform direct patient care and the state requires
the license or authorization, and
(2) Has a full and unrestricted license to practice medicine in a
foreign state or has graduated from a medical school in the United
States or in a foreign state.
(B) Petitioner's requirements. The petitioner must establish that
the alien physician:
(1) Is coming to the United States primarily to teach or conduct
research, or both, at or for a public or nonprofit private educational
or research institution or agency, and that no patient care will be
performed, except that which is incidental to the physician's teaching
or research; or
(2) The alien has passed the Federation Licensing Examination (or an
equivalent examination as determined by the Secretary of Health and
Human Services) or is a graduate of a United States medical school; and
(i) Has competency in oral and written English which shall be
demonstrated by the passage of the English language proficiency test
given by the Educational Commission for Foreign Medical Graduates; or
(ii) Is a graduate of a school of medicine accredited by a body or
bodies approved for that purpose by the Secretary of Education.
(C) Exception for physicians of national or international renown. A
physician who is a graduate of a medical school in a foreign state and
who is of national or international renown in the field of medicine is
exempt from the requirements of paragraph (h)(4)(viii)(B) of this
section.
(5) Petition for alien to perform agricultural labor or services of
a temporary or seasonal nature (H-2A)--(i) Filing a petition--(A)
General. An H-2A petition must be filed on Form I-129. The petition must
be filed with a single valid temporary agricultural labor certification.
However, if a certification is denied, domestic labor subsequently fails
to appear at the worksite, and the Department of Labor denies an appeal
under section 216(e)(2) of the Act, the written denial of appeal shall
be considered a certification for this purpose if filed with evidence
which establishes that qualified domestic labor is unavailable. An H-2A
petition may be filed by either the employer listed on the
certification, the employer's agent, or the association of United States
agricultural producers named as a joint employer on the certification.
(B) Multiple beneficiaries. The total number of beneficiaries of a
petition or series of petitions based on the same certification may not
exceed the number of workers indicated on that document. A single
petition can include more than one beneficiary if the total number does
not exceed the number of positions indicated on the relating
certification, and all beneficiaries will obtain a visa at the same
consulate or are not required to have a visa and will apply for
admission at the same port of entry.
(C) Unnamed beneficiaries. The sole beneficiary of an H-2A petition
must be named in the petition. In a petition for multiple beneficiaries,
each must be named unless he or she is not named in the certification
and is outside the United States. Unnamed beneficiaries must be shown on
the petition by total number.
[[Page 244]]
(D) Evidence. An H-2A petitioner must show that the proposed
employment qualifies as a basis for H-2A status, and that any named
beneficiary qualifies for that employment. A petition will be
automatically denied if filed without the certification evidence
required in paragraph (h)(5)(i)(A) of this section and, for each named
beneficiary, the initial evidence required in paragraph (h)(5)(v) of
this section.
(E) Special filing requirements. Where a certification shows joint
employers, a petition must be filed with an attachment showing that each
employer has agreed to the conditions of H-2A eligibility. A petition
filed by an agent must be filed with an attachment in which the employer
has authorized the agent to act on its behalf, has assumed full
responsibility for all representations made by the agent on its behalf,
and has agreed to the conditions of H-2A eligibility.
(ii) Effect of the labor certification process. The temporary
agricultural labor certification process determines whether employment
is as an agricultural worker, whether it is open to U.S. workers, if
qualified U.S. workers are available, the adverse impact of employment
of a qualified alien, and whether employment conditions, including
housing, meet applicable requirements. In petition proceedings a
petitioner must establish that the employment and beneficiary meet the
requirements of paragraph (h)(5) of this section. In a petition filed
with a certification denial, the petitioner must also overcome the
Department of Labor's findings regarding the availability of qualified
domestic labor.
(iii) Ability and intent to meet a job offer--(A) Eligibility
requirements. An H-2A petitioner must establish that each beneficiary
will be employed in accordance with the terms and conditions of the
certification, which includes that the principal duties to be performed
are those on the certification, with other duties minor and incidental.
(B) Intent and prior compliance. Requisite intent cannot be
established for two years after an employer or joint employer, or a
parent, subsidiary or affiliate thereof, is found to have violated
section 274(a) of the Act or to have employed an H-2A worker in a
position other than that described in the relating petition.
(C) Initial evidence. Representations required for the purpose of
labor certification are initial evidence of intent.
(iv) Temporary and seasonal employment--(A) Eligibility
requirements. An H-2A petitioner must establish that the employment
proposed in the certification is of a temporary or seasonal nature.
Employment is of a seasonal nature where it is tied to a certain time of
year by an event or pattern, such as a short annual growing cycle or a
specific aspect of a longer cycle, and requires labor levels far above
those necessary for ongoing operations. Employment is of a temporary
nature where the employer's need to fill the position with a temporary
worker will, except in extraordinary circumstances, last no longer than
one year.
(B) Effect of Department of Labor findings. In temporary
agricultural labor certification proceedings the Department of Labor
separately tests whether employment qualifies as temporary or seasonal.
Its finding that employment qualifies is normally sufficient for the
purpose of an H-2A petition, However, notwithstanding that finding,
employment will be found not to be temporary or seasonal where an
application for permanent labor certification has been filed for the
same alien, or for another alien to be employed in the same position, by
the same employer or by its parent, subsidiary or affiliate. This can
only be overcome by the petitioner's demonstration that there will be at
least a six month interruption of employment in the United States after
H-2A status ends. Also, eligibility will not be found, notwithstanding
the issuance of a temporary agricultural labor certification, where
there is substantial evidence that the employment is not temporary or
seasonal.
(v) The beneficiary's qualifications--(A) Eligibility requirements.
An H-2A petitioner must establish that any named beneficiary met the
stated minimum requirements and was fully able to perform the stated
duties when the application for certification was filed. It must be
established at time of application for an H-2A visa, or for admission if
a visa is not required, that any unnamed beneficiary either met these
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requirements when the certification was applied for or passed any
certified aptitude test at any time prior to visa issuance, or prior to
admission if a visa is not required.
(B) Initial evidence of employment/job training. A petition must be
filed with evidence that at the required time the beneficiary met the
certification's minimum employment and job training requirements.
Initial evidence must be in the form of the past employer's detailed
statement or actual employment documents, such as company payroll or tax
records. Alternately, a petitioner must show that such evidence cannot
be obtained, and submit affidavits from people who worked with the
beneficiary that demonstrate the claimed employment.
(C) Initial evidence of education and other training. A petition
must be filed with evidence that at the required time each beneficiary
met the certification's minimum post-secondary education and other
formal training requirements. Initial evidence must be in the form of
documents, issued by the relevant institution or organization, that show
periods of attendance, majors and degrees or certificates accorded.
(vi) Petition agreements--(A) Consent and liabilities. In filing an
H-2A petition, a petitioner and each employer consents to allow access
to the site where the labor is being performed for the purpose of
determining compliance with H-2A requirements. The petitioner further
agrees to notify the Service in the manner specified within twenty-four
hours if an H-2A worker absconds or if the authorized employment ends
more than five days before the relating certification document expires,
and to pay liquidated damages of ten dollars for each instance where it
cannot demonstrate compliance with this notification requirement. The
petitioner also agrees to pay liquidated damages of two hundred dollars
for each instance where is cannot demonstrate that its H-2A worker
either departed the United States or obtained authorized status based on
another petition during the period of admission or within five days of
early termination, whichever comes first.
(B) Process. Where evidence indicates noncompliance under paragraph
(h)(5)(vi)(A) of this section, the petitioner shall be given written
notice and given ten days to reply. If it does not demonstrate
compliance, it shall be given written notice of the assessment of
liquidated damages.
(C) Failure to pay liquidated damages. If liquidated damages are not
paid within ten days of assessment, an H-2A petition may not be
processed for that petitioner or any joint employer shown on the
petition until such damages are paid.
(vii) Validity. An approved H-2A petition is valid through the
expiration of the relating certification for the purpose of allowing a
beneficiary to seek issuance of an H-2A nonimmigrant visa, admission or
an extension of stay for the purpose of engaging in the specific
certified employment.
(viii) Admission--(A) Effect of violation of status. An alien may
not be accorded H-2A status who the Service finds to have violated the
conditions of H-2A status within the prior five years. H-2A status is
violated by remaining beyond the specific period of authorized stay or
by engaging in unauthorized employment.
(B) Period of admission. Notwithstanding paragraph (h)(13) of this
section, and except as provided in paragraph (h)(5)(ix)(C) of this
section, an alien admissible as an H-2A shall be admitted for the period
of the approved petition plus a period of up to one week before the
beginning of the approved period for the purpose of travel to the
worksite, and a period following the expiration of the H-2A petition
equal to the validity period of the petition, but not more than ten
days, for the purpose of departure or extension based on a subsequent
offer of employment. However, this extended admission period does not
affect the beneficiary's employment authorization. Such authorization
only applies to the specific employment indicated in the relating
petition, for the specific period of time indicated.
(C) Limits on an individual's stay. An alien's stay as an H-2A is
limited by the term of an approved petition. An alien may remain longer
to engage in other qualifying temporary agricultural employment by
obtaining an extension of stay. However, an individual
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who has held H-2A status for a total of three years may not again be
granted H-2A status, or other nonimmigrant status based on agricultural
activities, until such time as he or she remains outside the United
States for an uninterrupted period of six months. An absence can
interrupt the accumulation of time spent as an H-2A. If the accumulated
stay is eighteen months or less, an absence is interruptive if it lasts
for at least three months. If more than eighteen months stay has been
accumulated, an absence is interruptive if it lasts for at least one-
sixth the accumulated stay. Eligibility under this subparagraph will be
determined in admission, change of status or extension proceedings. An
alien found eligible for a shorter period of H-2A status than that
indicated by the petition due to the application of this subparagraph
shall only be admitted for that abbreviated period.
(ix) Substitution of beneficiaries after admission. An H-2A petition
may be filed to replace H-2A workers whose employment was terminated
early. The petition must be filed with a copy of the certification
document, a copy of the approval notice covering the workers for which
replacements are sought, and other evidence required by paragraph
(h)(5)(i)(D) of this section. It must also be filed with a statement
giving each terminated worker's name, date and country of birth,
termination date, and evidence the worker has departed the United
States. A petition for a replacement may not be approved where the
requirements of paragraph (h)(5)(vi) of this section have not been met.
A petition for replacements does not constitute the notice that an H-2A
worker has absconded or has ended authorized employment more than five
days before the relating certification expires.
(x) Extensions without labor certification. A single H-2A petition
may be extended without a certification if it is based on approval of
the alien's application for extension of stay for a continuation of the
employment authorized by the approval of a previous H-2A petition filed
with a certification (but not a certification extension granted under 20
CFR 655.106(c)(3)), and the proposed continuation of employment will
last no longer than the previously authorized employment and also will
not last longer than two weeks.
(6) Petition for alien to perform temporary nonagricultural services
or labor (H-2B)--(i) General. An H-2B nonagricultural temporary worker
is an alien who is coming temporarily to the United States to perform
temporary services or labor, is not displacing United States workers
capable of performing such services or labor, and whose employment is
not adversely affecting the wages and working conditions of United
States workers.
(ii) Temporary services or labor--(A) Definition. Temporary services
or labor under the H-2B classification refers to any job in which the
petitioner's need for the duties to be performed by the employee(s) is
temporary, whether or not the underlying job can be described as
permanent or temporary.
(B) Nature of petitioner's need. As a general rule, the period of
the petitioner's need must be a year or less, although there may be
extraordinary circumstances where the temporary services or labor might
last longer than one year. The petitioner's need for the services or
labor shall be a one-time occurrence, a seasonal need, a peakload need,
or an intermittent need:
(1) One-time occurence. The petitioner must establish that it has
not employed workers to perform the services or labor in the past and
that it will not need workers to perform the services or labor in the
future, or that it has an employment situation that is otherwise
permanent, but a temporary event of short duration has created the need
for a temporary worker.
(2) Seasonal need. The petitioner must establish that the services
or labor is traditionally tied to a season of the year by an event or
pattern and is of a recurring nature. The petitioner shall specify the
period(s) of time during each year in which it does not need the
services or labor. The employment is not seasonal if the period during
which the services or labor is not needed is unpredictable or subject to
change or is considered a vacation period for the petitioner's permanent
employees.
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(3) Peakload need. The petitoner must establish that it regularly
employs permanent workers to perform the services or labor at the place
of employment and that it needs to supplement its permanent staff at the
place of employment on a temporary basis due to a seasonal or short-term
demand and that the temporary additions to staff will not become a part
of the petitioner's regular operation.
(4) Intermittent need. The petitioner must establish that it has not
employed permanent or full-time workers to perform the services or
labor, but occasionally or intermittently needs temporary workers to
perform services or labor for short periods.
(iii) Procedures. (A) Prior to filing a petition with the director
to classify an alien as an H-2B worker, the petitioner shall apply for a
temporary labor certification with the Secretary of Labor for all areas
of the United States, except the Territory of Guam. In the Territory of
Guam, the petitioning employer shall apply for a temporary labor
certification with the Governor of Guam. The labor certification shall
be advice to the director on whether or not United States workers
capable of performing the temporary services or labor are available and
whether or not the alien's employment will adversely affect the wages
and working conditions of similarly employed United States workers.
(B) An H-2B petitioner shall be a United States employer, or the
authorized representative of a foreign employer having a location in the
United States. The petitioning employer shall consider available U.S.
workers for the temporary services or labor, and shall offer terms and
conditions of employment which are consistent with the nature of the
occupation, activity, and industry in the United States.
(C) The petitioner may not file an H-2B petition unless the United
States petitioner has applied for a labor certification with the
Secretary of Labor or the Governor of Guam within the time limits
prescribed or accepted by each, and has obtained a labor certification
determination as required by paragraph (h)(6)(iv) or (h)(6)(v) of this
section.
(D) The Secretary of Labor and the Governor of Guam shall separately
establish procedures for administering the temporary labor certification
program under his or her jurisdiction.
(E) After obtaining a determination from the Secretary of Labor or
the Governor of Guam, as appropriate, the petitioner shall file a
petition on I-129, accompanied by the labor certification determination
and supporting documents, with the director having jurisdiction in the
area of intended employment.
(iv) Labor certifications, except Guam--(A) Secretary of Labor's
determination. An H-2B petition for temporary employment in the United
States, except for temporary employment on Guam, shall be accompanied by
a labor certification determination that is either:
(1) A certification from the Secretary of Labor stating that
qualified workers in the United States are not available and that the
alien's employment will not adversely affect wages and working
conditions of similary employed United States workers; or
(2) A notice detailing the reasons why such certification cannot be
made. Such notice shall address the availability of U.S. workers in the
occupation and the prevailing wages and working conditions of U.S.
workers in the occupation.
(B) Validity of the labor certification. The Secretary of Labor may
issue a temporary labor certification for a period of up to one year.
(C) U.S. Virgin Islands. Temporary labor certifications filed under
section 101(a)(15)(H)(ii)(b) of the Act for employment in the United
States Virgin Islands may be approved only for entertainers and athletes
and only for periods not to exceed 45 days.
(D) Attachment to petition. If the petitioner receives a notice from
the Secretary of Labor that certification cannot be made, a petition
containing countervailing evidence may be filed with the director. The
evidence must show that qualified workers in the United States are not
available, and that the terms and conditions of employment are
consistent with the nature of the occupation, activity, and industry in
the United States. All such
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evidence submitted will be considered in adjudicating the petition.
(E) Countervailing evidence. The countervailing evidence presented
by the petitioner shall be in writing and shall address availability of
U.S. workers, the prevailing wage rate for the occupation of the United
States, and each of the reasons why the Secretary of Labor could not
grant a labor certification. The petitioner may also submit other
appropriate information in support of the petition. The director, at his
or her discretion, may require additional supporting evidence.
(v) Labor certification for Guam--(A) Governor of Guam's
determination. An H-2B petition for temporary employment on Guam shall
be accompanied by a labor certification determination that is either:
(1) A certification from the Governor of Guam stating that qualified
workers in the United States are not available to perform the required
services, and that the alien's employment will not adversely affect the
wages and working conditions of United States resident workers who are
similarly employed on Guam; or
(2) A notice detailing the reasons why such certification cannot be
made. Such notice shall address the availability of U.S. workers in the
occupation and/or the prevailing wages and working conditions of U.S.
workers in the occupation.
(B) Validity of labor certification. The Governor of Guam may issue
a temporary labor certification for a period up to one year.
(C) Attachments to petition. If the employer receives a notice from
the Governor of Guam that certification cannot be made, a petition
containing countervailing evidence may be filed with the director. The
evidence must show that qualified workers in the United States are not
available, and that the terms and conditions of employment are
consistent with the nature of the occupation, activity, and industry in
the United States. All such evidence submitted will be considered in
adjudicating the petition.
(D) Countervailing evidence. The countervailing evidence presented
by the petitioner shall be in writing and shall address availability of
United States workers, the prevailing wage rate, and each of the reasons
why the Governor of Guam could not make the required certification. The
petitioner may also provide any other appropriate information in support
of the petition. The director, at his or her discretion, may require
additional supporting evidence.
(E) Criteria for Guam labor certifications. The Governor of Guam
shall, in consultation with the Service, establish systematic methods
for determining the prevailing wage rates and working conditions for
individual occupations on Guam and for making determinations as to
availability of qualified United States residents.
(1) Prevailing wage and working conditions. The system to determine
wages and working conditions must provide for consideration of wage
rates and employment conditions for occupations in both the private and
public sectors, in Guam and/or in the United States (as defined in
section 101(a)(38) of the Act), and may not consider wages and working
conditions outside of the United States. If the system includes
utilitzation of advisory opinions and consultations, the opinions must
be provided by officially sanctioned groups which reflect a balance of
the interests of the private and public sectors, government, unions and
management.
(2) Availability of United States workers. The system for
determining availability of qualified United States workers must require
the prospective employer to:
(i) Advertise the availability of the position for a minimum of
three consecutive days in the newspaper with the largest daily
circulation on Guam;
(ii) Place a job offer with an appropriate agency of the Territorial
Government which operates as a job referral service at least 30 days in
advance of the need for the services to commence, except that for
applications from the armed forces of the United States and those in the
entertainment industry, the 30-day period may be reduced by the Governor
to 10 days;
(iii) Conduct appropriate recruitment in other areas of the United
and its territories if sufficient qualified United States construction
workers are not available on Guam to fill a job. The
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Governor of Guam may require a job order to be placed more than 30 days
in advance of need to accommodate such recruitment;
(iv) Report to the appropriate agency the names of all United States
resident workers who applied for the position, indicating those hired
and the job-related reasons for not hiring;
(v) Offer all special considerations, such as housing and
transportation expenses, to all United States resident workers who
applied for the position, indicating those hired and the job-related
reasons for not hiring;
(vi) Meet the prevailing wage rates and working conditions
determined under the wages and working conditions system by the
Governor; and
(vii) Agree to meet all Federal and Territorial requirements
relating to employment, such as nondiscrimination, occupational safety,
and minimum wage requirements.
(F) Approval and publication of employment systems on Guam--(1)
Systems. The Commissioner of Immigration and Naturalization must approve
the system to determine prevailing wages and working conditions and the
system to determine availability of United States resident workers and
any future modifications of the systems prior to implementation. If the
Commissioner, in consultation with the Secretary of Labor, finds that
the systems or modified systems meet the requirements of this section,
the Commissioner shall publish them as a notice in the Federal Register
and the Governor shall publish them as a public record in Guam.
(2) Approval of construction wage rates. The Commissioner must
approve specific wage data and rates used for construction occupations
on Guam prior to implementation of new rates. The Governor shall submit
new wage survey data and proposed rates to the Commissioner for approval
at least eight weeks before authority to use existing rates expires.
Surveys shall be conducted at least every two years, unless the
Commissioner prescribes a lesser period.
(G) Reporting. The Governor shall provide the Commissioner
statistical data on temporary labor certification workload and
determinations. This information shall be submitted quarterly no later
than 30 days after the quarter ends.
(H) Invalidation of temporary labor certification issued by the
Governor of Guam--(1) General. A temporary labor certification issued by
the Governor of Guam may be invalidated by a director if it is
determined by the director or a court of law that the certification
request involved fraud or willful misrepresentation. A temporary labor
certification may also be invalidated if the director determines that
the certification involved gross error.
(2) Notice of intent to invalidate. If the director intends to
invalidate a temporary labor certification, a notice of intent shall be
served upon the employer, detailing the reasons for the intended
invalidation. The employer shall have 30 days in which to file a written
response in rebuttal to the notice of intent. The director shall
consider all evidence submitted upon rebuttal in reaching a decision.
(3) Appeal of invalidation. An employer may appeal the invalidation
of a temporary labor certification in accordance with part 103 of this
chapter.
(vi) Evidence for H-2B petitions. An H-2B petition shall be
accompanied by:
(A) Labor certification or notice. A temporary labor certification
or a notice that certification cannot be made, issued by the Secretary
of Labor or the Governor of Guam, as appropriate;
(B) Countervailing evidence. Evidence to rebut the Secretary of
Labor's or the Governor of Guam's notice that certification cannot be
made, if appropriate;
(C) Alien's qualifications. Documentation that the alien qualifies
for the job offer as specified in the application for labor
certification, except in petitions where the labor certification
application requires no education, training, experience, or special
requirements of the beneficiary; and
(D) Statement of need. A statement describing in detail the
temporary situation or conditions which make it necessary to bring the
alien to the United States and whether the need is a one-time
occurrence, seasonal, peakload, or intermittent. If the need is
seasonal,
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peakload, or intermittent, the statement shall indicate whether the
situation or conditions are expected to be recurrent.
(E) Liability for transportation costs. The employer will be liable
for the reasonable costs of return transportation of the alien abroad,
if the alien is dismissed from employment for any reason by the employer
before the end of the period of authorized admission pursuant to section
214(c)(5) of the Act. If the beneficiary voluntarily terminates his or
her employment prior to the expiration of the validity of the petition,
the alien has not been dismissed. If the beneficiary believes that the
employer has not complied with this provision, the beneficiary shall
advise the Service Center which adjudicated the petition in writing. The
complaint will be retained in the file relating to the petition. Within
the context of this paragraph, the term ``abroad'' means the alien's
last place of foreign residence. This provision applies to any employer
whose offer of employment became the basis for the alien obtaining or
continuing H-2B status.
(7) Petition for alien trainee or participant in a special education
exchange visitor program (H-3)--(i) Alien trainee. The H-3 trainee is a
nonimmigrant who seeks to enter the United States at the invitation of
an organization or individual for the purpose of receiving training in
any field of endeavor, such as agriculture, commerce, communications,
finance, government, transportation, or the professions, as well as
training in a purely industrial establishment. This category shall not
apply to physicians, who are statutorily ineligible to use H-3
classification in order to receive any type of graduate medical
education or training.
(A) Externs. A hospital approved by the American Medical Association
or the American Osteopathic Association for either an internship or
residency program may petition to classify as an H-3 trainee a medical
student attending a medical school abroad, if the alien will engage in
employment as an extern during his/her medical school vacation.
(B) Nurses. A petitioner may seek H-3 classification for a nurse who
is not H-1 if it can be established that there is a genuine need for the
nurse to receive a brief period of training that is unavailable in the
alien's native country and such training is designed to benefit the
nurse and the overseas employer upon the nurse's return to the country
of origin, if:
(1) The beneficiary has obtained a full and unrestricted license to
practice professional nursing in the country where the beneficiary
obtained a nursing education, or such education was obtained in the
United States or Canada; and
(2) The petitioner provides a statement certifying that the
beneficiary is fully qualified under the laws governing the place where
the training will be received to engage in such training, and that under
those laws the petitioner is authorized to give the beneficiary the
desired training.
(ii) Evidence required for petition involving alien trainee--(A)
Conditions. The petitioner is required to demonstrate that:
(1) The proposed training is not available in the alien's own
country;
(2) The beneficiary will not be placed in a position which is in the
normal operation of the business and in which citizens and resident
workers are regularly employed;
(3) The beneficiary will not engage in productive employment unless
such employment is incidental and necessary to the training; and
(4) The training will benefit the beneficiary in pursuing a career
outside the United States.
(B) Description of training program. Each petition for a trainee
must include a statement which:
(1) Describes the type of training and supervision to be given, and
the structure of the training program;
(2) Sets forth the proportion of time that will be devoted to
productive employment;
(3) Shows the number of hours that will be spent, respectively, in
classroom instruction and in on-the-job training;
(4) Describes the career abroad for which the training will prepare
the alien;
(5) Indicates the reasons why such training cannot be obtained in
the alien's country and why it is necessary
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for the alien to be trained in the United States; and
(6) Indicates the source of any remuneration received by the trainee
and any benefit which will accrue to the petitioner for providing the
training.
(iii) Restrictions on training program for alien trainee. A training
program may not be approved which:
(A) Deals in generalities with no fixed schedule, objectives, or
means of evaluation;
(B) Is incompatible with the nature of the petitioner's business or
enterprise;
(C) Is on behalf of a beneficiary who already possesses substantial
training and expertise in the proposed field of training;
(D) Is in a field in which it is unlikely that the knowledge or
skill will be used outside the United States;
(E) Will result in productive employment beyond that which is
incidental and necessary to the training;
(F) Is designed to recruit and train aliens for the ultimate
staffing of domestic operations in the United States;
(G) Does not establish that the petitioner has the physical plant
and sufficiently trained manpower to provide the training specified; or
(H) Is designed to extend the total allowable period of practical
training previously authorized a nonimmigrant student.
(iv) Petition for participant in a special education exchange
visitor program--(A) General Requirements. (1) The H-3 participant in a
special education training program must be coming to the United States
to participate in a structured program which provides for practical
training and experience in the education of children with physical,
mental, or emotional disabilities.
(2) The petition must be filed by a facility which has
professionally trained staff and a structured program for providing
education to children with disabilities, and for providing training and
hands-on experience to participants in the special education exchange
visitor program.
(3) The requirements in this section for alien trainees shall not
apply to petitions for participants in a special education exchange
visitor program.
(B) Evidence. An H-3 petition for a participant in a special
education exchange visitor program shall be accompanied by:
(1) A description of the training program and the facility's
professional staff and details of the alien's participation in the
training program (any custodial care of children must be incidental to
the training), and
(2) Evidence that the alien participant is nearing completion of a
baccalaureate or higher degree in special education, or already holds
such a degree, or has extensive prior training and experience in
teaching children with physical, mental, or emotional disabilities.
(8) Numerical limits--(i) Limits on affected categories. During each
fiscal year, the total number of aliens who can be provided nonimmigrant
classification is limited as follows:
(A) Aliens classified as H1-B nonimmigrants, excluding those
involved in DOD research and development projects or coproduction
projects, may not exceed 65,000.
(B) Aliens classified as H-1B nonimmigrants to work for DOD research
and development projects or coproduction projects may not exceed 100 at
any time.
(C) Aliens classified as H-2B nonimmigrants may not exceed 66,000.
(D) Aliens classified as H-3 nonimmigrant participants in a special
education exchange visitor program may not exceed 50.
(ii) Procedures. (A) Each alien issued a visa or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Act shall
be counted for purposes of the numerical limit. Requests for petition
extension or extension of an alien's stay shall not be counted for the
purpose of the numerical limit. The spouse and children of principal
aliens classified as H-4 nonimmigrants shall not be counted against the
numerical limit.
(B) Numbers will be assigned temporarily to each alien (or job
opening(s) for aliens in petitions with unnamed beneficiaries) included
in a new petition in the order that petitions are
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filed. If a petition is denied, the number(s) originally assigned to the
petition shall be returned to the system which maintains and assigns
numbers.
(C) For purposes of assigning numbers to aliens on petitions filed
in Guam and the Virgin Islands, Service Headquarters Adjudications shall
assign numbers to these locations from the central system which controls
and assigns numbers to petitions filed in other locations of the United
States.
(D) When an approved petition is not used because the
beneficiary(ies) does not apply for admission to the United States, the
petitioner shall notify the Service Center Director who approved the
petition that the number(s) has not been used. The petition shall be
revoked pursuant to paragraph (h)(11)(ii) of this section and the unused
number(s) shall be returned to the system which maintains and assigns
numbers.
(E) If the total numbers available in a fiscal year are used, new
petitions and the accompanying fee shall be rejected and returned with a
notice that numbers are unavailable for the particular nonimmigrant
classification until the beginning of the next fiscal year.
(9) Approval and validity of petition--(i) Approval. The director
shall consider all the evidence submitted and such other evidence as he
or she may independently require to assist his or her adjudication. The
director shall notify the petitioner of the approval of the petition on
Form I-797, Notice of Action. The approval shall be as follows:
(A) The approval notice shall include the beneficiary's(ies')
name(s) and classification and the petition's period of validity. A
petition for more than one beneficiary and/or multiple services may be
approved in whole or in part. The approval notice shall cover only those
beneficiaries approved for classification under section 101(a)(15)(H) of
the Act.
(B) The petition may not be filed or approved earlier than six
months before the date of actual need for the beneficiary's services or
training.
(ii) Recording the validity of petitions. Procedures for recording
the validity period of petitions are:
(A) If a new H petition is approved before the date the petitioner
indicates that the services or training will begin, the approved
petition and approval notice shall show the actual dates requested by
the petitioner as the validity period, not to exceed the limits
specified by paragraph (h)(9)(iii) of this section or other Service
policy.
(B) If a new H petition is approved after the date the petitioner
indicates that the services or training will begin, the approved
petition and approval notice shall show a validity period commencing
with the date of approval and ending with the date requested by the
petitioner, as long as that date does not exceed either the limits
specified by paragraph (h)(9)(iii) of this section or other Service
policy.
(C) If the period of services or training requested by the
petitioner exceeds the limit specified in paragraph (h)(9)(iii) of this
section, the petition shall be approved only up to the limit specified
in that paragraph.
(iii) Validity. The initial approval period of an H petition shall
conform to the limits prescribed as follows:
(A) H-1A petition. An approved petition for an alien classified
under section 101(a)(15)(H)(i)(a) of the Act shall be valid for a period
of up to three years.
(B)(1) H-1B petition in a specialty occupation. An approved petition
classified under section 101(a)(15)(H)(i)(b) of the Act for an alien in
a specialty occupation shall be valid for a period of up to three years
but may not exceed the validity period of the labor condition
application.
(2) H-1B petition involving a DOD research and development or
coproduction project. An approved petition classified under section
101(a)(15)(H)(i)(b) of the Act for an alien involved in a DOD research
and development project or a coproduction project shall be valid for a
period of up to five years.
(3) H-1B petition involving an alien of distinguished merit and
ability in the field of fashion modeling. An approved petition
classified under section 101(a)(15)(H)(i)(b) of the Act for an alien of
distinguished merit and ability in the field of fashion modeling shall
be valid for a period of up to three years.
(C) H-2B petition--(1) Labor certification attached. If a
certification by the Secretary of Labor or the Governor of
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Guam is attached to a petition to accord an alien a classification under
section 101(a)(15)(H)(ii)(B) of the Act, the approval of the petition
shall be valid for a period of up to one year.
(2) Notice that certification cannot be made attached--(i)
Countervailing evidence. If a petition is submitted containing a notice
from the Secretary of Labor or the Governor of Guam that certification
cannot be made, and is not accompanied by countervailing evidence, the
petitioner shall be informed that he or she may submit the
countervailing evidence in accordance with paragraphs (h)(6)(iii)(E) and
(h)(6)(iv)(D) of this section.
(ii) Approval. In any case where the director decides that approval
of the H-2B petition is warranted despite the issuance of a notice by
the Secretary of Labor or the Governor of Guam that certification cannot
be made, the approval shall be certified by the Director to the
Commissioner pursuant to 8 CFR 103.4. In emergent situations, the
certification may be presented by telephone to the Chief of the
Administrative Appeals Unit, Central Office. If approved, the petition
is valid for the period of established need not to exceed one year.
There is no appeal from a decision which has been certified to the
Commissioner.
(D)(1) H-3 petition for alien trainee. An approved petition for an
alien trainee classified under section 101(a)(15)(H)(iii) of the Act
shall be valid for a period of up to two years.
(2) H-3 petition for alien participant in a special education
training program. An approved petition for an alien classified under
section 101(a)(15)(H)(iii) of the Act as a participant in a special
education exchange visitor program shall be valid for a period of up to
18 months.
(iv) Spouse and dependents. The spouse and unmarried minor children
of the beneficiary are entitled to H nonimmigrant classification,
subject to the same period of admission and limitations as the
beneficiary, if they are accompanying or following to join the
beneficiary in the United States. Neither the spouse nor a child of the
beneficiary may accept employment unless he or she is the beneficiary of
an approved petition filed in his or her behalf and has been granted a
nonimmigrant classification authorizing his or her employment.
(10) Denial of petition--(i) Multiple beneficiaries. A petition for
multiple beneficiaries may be denied in whole or in part.
(ii) Notice of intent to deny. When an adverse decision is proposed
on the basis of derogatory inform U.S. ation of which the petitioner is
unaware, the director shall notify the petitioner of the intent to deny
the petition and the basis for the denial. The petitioner may inspect
and rebut the evidence and will be granted a period of 30 days from the
date of the notice in which to do so. All relevant rebuttal material
will be considered in making a final decision.
(iii) Notice of denial. The petitioner shall be notified of the
reasons for the denial, and of his or her right to appeal the denial of
the petition under 8 CFR part 103. There is no appeal from a decision to
deny an extension of stay to the alien.
(11) Revocation of approval of petition--(i) General. (A) The
petitioner shall immediately notify the Service of any changes in the
terms and conditions of employment of a beneficiary which may affect
eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of
this section. An amended petition on Form I-129 should be filed when the
petitioner continues to employ the beneficiary. If the petitioner no
longer employs the beneficiary, the petitioner shall send a letter
explaining the change(s) to the director who approved the petition.
(B) The director may revoke a petition at any time, even after the
expiration of the petition.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the petitioner goes out of business or files a
written withdrawal of the petition.
(iii) Revocation on notice--(A) Grounds for revocation. The director
shall send to the petitioner a notice of intent to revoke the petition
in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition, or if the
[[Page 254]]
beneficiary is no longer receiving training as specified in the
petition; or
(2) The statement of facts contained in the petition was not true
and correct; or
(3) The petitioner violated terms and conditions of the approved
petition; or
(4) The petitioner violated requirements of section 101(a)(15)(H) of
the Act or paragraph (h) of this section; or
(5) The approval of the petition violated pargraph (h) of this
section or involved gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of receipt of the notice. The
director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If the petition is
revoked in part, the remainder of the petition shall remain approved and
a revised approval notice shall be sent to the petitioner with the
revocation notice.
(12) Appeal of a denial or a revocation of a petition--(i) Denial. A
petition denied in whole or in part may be appealed under part 103 of
this chapter.
(ii) Revocation. A petition that has been revoked on notice in whole
or in part may be appealed under part 103 of this chapter. Automatic
revocations may not be appealed.
(13) Admission--(i) General. (A) A beneficiary shall be admitted to
the United States for the validity period of the petition, plus a period
of up to 10 days before the validity period begins and 10 days after the
validity period ends. The beneficiary may not work except during the
validity period of the petition.
(B) When an alien in an H classification has spent the maximum
allowable period of stay in the United States, a new petition under
sections 101(a)(15) (H) or (L) of the Act may not be approved unless
that alien has resided and been physically present outside the United
States, except for brief trips for business or pleasure, for the time
limit imposed on the particular H classification. Brief trips to the
United States for business or pleasure during the required time abroad
are not interruptive, but do not count towards fulfillment of the
required time abroad. The petitioner shall provide information about the
alien's employment, place of residence, and the dates and purposes of
any trips to the United States during the period that the alien was
required to spend time abroad.
(ii) H-1A limitation on admission. An H-1A alien who has spent five,
or in certain extraordinary circumstances, six years in the United
States under section 101(a)(15)(H) of the Act may not seek extension,
change status, or be readmitted to the United States under section
101(a)(15)(H) of the Act unless the alien has resided and been
physically present outside the United States, except for brief trips for
pleasure or business, for the immediate prior year.
(iii) H-1B limitation on admission. (A) Alien in a specialty
occupation or an alien of distinguished merit and ability in the field
of fashion modeling. An H-1B alien in a specialty occupation or an alien
of distinguished merit and ability who has spent six years in the United
States under section 101(a)(15)(H) and/or (L) of the Act may not seek
extension, change status, or be readmitted to the United States under
section 101(a)(15) (H) or (L) of the Act unless the alien has resided
and been physically present outside the United States, except for brief
trips for business or pleasure, for the immediate prior year.
(B) Alien involved in a DOD research and development or coproduction
project. An H-1B alien involved in a DOD research and development or
coproduction project who has spent 10 years in the United States under
section 101(a)(15) (H) and/or (L) of the Act may not seek extension,
change status, or be readmitted to the United States under section
101(a)(15) (H) or (L) of the Act to perform services involving a DOD
research and development project or coproduction project. A new petition
or change of status under section 101(a)(15) (H) or (L) of the Act may
not be approved for such an alien unless the alien has resided and been
physically present outside the United States, except for brief trips for
business or pleasure, for the immediate prior year.
[[Page 255]]
(iv) H-2B and H-3 limitation on admission. An H-2B alien who has
spent 3 years in the United States under section 101(a)(15)(H) and/or
(L) of the Act; an H-3 alien participant in a special education program
who has spent 18 months in the United States under section 101(a)(15)(H)
and/or (L) of the Act; and an H-3 alien trainee who has spent 24 months
in the United States under section 101(a)(15)(H) and/or (L) of the Act
may not seek extension, change status, or be readmitted to the United
States under section 101(a)(15)(H) and/or (L) of the Act unless the
alien has resided and been physically present outside the United States
for the immediate prior 6 months.
(v) Exceptions. The limitations in paragraph (h)(13)(ii) through
(h)(13)(iv) of this section shall not apply to H-1A, H-1B, H-2B, and H-3
aliens who did not reside continually in the United States and whose
employment in the United States was seasonal or intermittent or was for
an aggregate of six months or less per year. In addition, the
limitations shall not apply to aliens who reside abroad and regularly
commute to the United States to engage in part-time employment. To
qualify for this exception, the petitioner and the alien must provide
clear and convincing proof that the alien qualifies for such an
exception. Such proof shall consist of evidence such as arrival and
departure records, copies of tax returns, and records of employment
abroad.
(14) Extension of visa petition validity. The petitioner shall file
a request for a petition extension on Form I-129 to extend the validity
of the original petition under section 101(a)(15)(H) of the Act.
Supporting evidence is not required unless requested by the director. A
request for a petition extension may be filed only if the validity of
the original petition has not expired.
(15) Extension of stay--(i) General. The petitioner shall apply for
extension of an alien's stay in the United States by filing a petition
extension on Form I-129 accompanied by the documents described for the
particular classification in paragraph (h)(15)(ii) of this section. The
petitioner must also request a petition extension. The dates of
extension shall be the same for the petition and the beneficiary's
extension of stay. The beneficiary must be physically present in the
United States at the time of the filing of the extension of stay. Even
though the requests to extend the petition and the alien's stay are
combined on the petition, the director shall make a separate
determination on each. If the alien is required to leave the United
States for business or personal reasons while the extension requests are
pending, the petitioner may request the director to cable notification
of approval of the petition extension to the consular office abroad
where the alien will apply for a visa. When the total period of stay in
an H classification has been reached, no further extensions may be
granted.
(ii) Extension periods--(A) H-1A extension of stay. An extension of
stay may be authorized for a period of up to two years for a beneficiary
of an H-1A petition. The alien's total period of stay may not exceed
five years, except in extraordinary circumstances. An H-1A alien who has
been in the United States for a period of five years in such status may
receive a one-year extension of stay if it is established by the
petitioner that extraordinary circumstances exist which warrant such an
extension. Extraordinary circumstances shall exist when the director
finds that termination of the alien's services will impose extreme
hardship on the petitioner's business operation or that the alien's
services are required in the national welfare, safety, or security
interests of the United States. Each request for an extension of stay
for the beneficiary of an H-1A petition must be accompanied by a current
copy of the Department of Labor's notice of acceptance of the
petitioner's attestation on Form ETA 9029. A request for an extension of
stay filed in behalf of an alien who initially entered the United States
on the basis of a temporary license must be accompanied by evidence that
the alien has remained in a valid H-1A status since his or her initial
entry into the United States.
(B) H-1B extension of stay--(1) Alien in a specialty occupation or
an alien of distinguished merit and ability in the field of fashion
modeling. An extension of stay may be authorized for a period of up to
three years for a beneficiary of an H-1B
[[Page 256]]
petition in a specialty occupation or an alien of distinguished merit
and ability. The alien's total period of stay may not exceed six years.
The request for extension must be accompanied by either a new or a
photocopy of the prior certification from the Department of Labor that
the petitioner continues to have on file a labor condition application
valid for the period of time requested for the occupation.
(2) Alien in a DOD research and development or coproduction project.
An extension of stay may be authorized for a period up to five years for
the beneficiary of an H-1B petition involving a DOD research and
development project or coproduction project. The total period of stay
may not exceed 10 years.
(C) H-2A or H-2B extension of stay. An extension of stay for the
beneficiary of an H-2A or H-2B petition may be authorized for the
validity of the labor certification or for a period of up to one year,
except as provided for in paragraph (h)(5)(x) of this section. The
alien's total period of stay as an H-2A or H-2B worker may not exceed
three years, except that in the Virgin Islands, the alien's total period
of stay may not exceed 45 days.
(D) H-3 extension of stay. An extension of stay may be authorized
for the length of the training program for a total period of stay as an
H-3 trainee not to exceed two years, or for a total period of stay as a
participant in a special education training program not to exceed 18
months.
(16) Effect of approval of a permanent labor certification or filing
of a preference petition on H classification--(i) H-1A or H-1B
classification. The approval of a permanent labor certification or the
filing of a preference petition for an alien shall not be a basis for
denying an H-1A or H-1B petition or a request to extend such a petition,
or the alien's admission, change of status, or extension of stay. The
alien may legitimately come to the United States for a temporary period
as an H-1A or H-1B nonimmigrant and depart voluntarily at the end of his
or her authorized stay and, at the same time, lawfully seek to become a
permanent resident of the United States.
(ii) H-2A, H-2B, and H-3 classification. The approval of a permanent
labor certification, or the filing of a preference petition for an alien
currently employed by or in a training position with the same
petitioner, shall be a reason, by itself, to deny the alien's extension
of stay.
(17) Effect of a strike--(i) If the Secretary of Labor certifies to
the Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation and at the place
where the beneficiary is to be employed or trained, and that the
employment of training of the beneficiary would adversely affect the
wages and working conditions of U.S. citizens and lawful resident
workers:
(A) A petition to classify an alien as a nonimmigrant as defined in
section 101(a)(15)(H) of the Act shall be denied.
(B) If a petition has already been approved, but the alien has not
yet entered the United States, or has entered the United States but has
not commenced the employment, the approval of the petition is
automatically suspended, and the application for admission on the basis
of the petition shall be denied.
(ii) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (h)(17)(i), the Commissioner shall not
deny a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and is participating in a strike or
other labor dispute involving a work stoppage of workers, whether or not
such strike or other labor dispute has been certified by the Department
of Labor, the alien shall not be deemed to be failing to maintain his or
her status solely on account of past, present, or future participation
in a strike or other labor dispute involving a work stoppage of workers,
but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act, and regulations promulgated in the
same manner as all other H nonimmigrants;
(B) The status and authorized period of stay of such an alien is not
modified
[[Page 257]]
or extended in any way by virtue of his or her participation in a strike
or other labor dispute involving a work stoppage of workers; and
(C) Although participation by an H nonimmigrant alien in a strike or
other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, any alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(18) Use of approval notice, Form I-797. The Service shall notify
the petitioner on Form I-797 whenever a visa petition, an extension of a
visa petition, or an alien's extension of stay is approved under the H
classification. The beneficiary of an H petition who does not require a
nonimmigrant visa may present a copy of the approval notice at a port of
entry to facilitate entry into the United States. A beneficiary who is
required to present a visa for admission and whose visa will have
expired before the date of his or her intended return may use a copy of
Form I-797 to apply for a new or revalidated visa during the validity
period of the petition. The copy of Form I-797 shall be retained by the
beneficiary and presented during the validity of the petition when
reentering the United States to resume the same employment with the same
petitioner.
(i) Representatives of information media. The admission of an alien
of the class defined in section 101(a)(15)(I) of the Act constitutes an
agreement by the alien not to change the information medium or his or
her employer until he or she obtains permission to do so from the
district director having jurisdiction over his or her residence. An
alien classified as an information media nonimmigrant (I) may be
authorized admission for the duration of employment.
(j) Exchange aliens--(1) General. (i) Exchange alien means a
nonimmigrant admitted under section 101(a)(15)(J) of the Act or who
acquired such status, or who acquired exchange-visitor status under the
United States Information and Education Exchange Act. Any exchange alien
coming to the United States as a participant in a program designated
under section 101(a)(15)(J) of the Act and accompanying spouse and minor
children shall not be admitted without submitting a completely executed
Form IAP-66. The spouse and minor children following to join the
participant shall not be admitted without a copy of current Form IAP-66
endorsed by the program sponsor indicating the expiration of stay date
as shown on Form I-94. Any alien seeking to change nonimmigrant status
to exchange visitor status shall file Form I-506 and attach a valid Form
IAP-66.
(ii) Admission. The initial admission of an exchange alien, spouse,
and children may not exceed the period specified on Form IAP-66, plus a
period of 30 days for the purpose of travel. Regulations of the United
States Information Agency published at 22 CFR 514.23 give general
limitations on the length of stay of the various classes of exchange
visitors. A spouse or child (J-2) may not be admitted for longer than
the principal exchange alien (J-1).
(iii) Readmission. An exchange alien may be readmitted to the United
States for the remainder of the time authorized on Form I-94, without
presenting Form IAP-66, if the alien is returning from a visit solely to
foreign contiguous territory or adjacent islands after an absence of
less than 30 days and if the original Form I-94 is presented. All other
exchange aliens must present a valid Form IAP-66. An original Form IAP-
66 or copy three (the pink copy) of a previously issued form presented
by an exchange alien returning from a temporary absence shall be
retained by the exchange alien for re-entries during the balance of the
alien's stay.
(iv) Extensions of Stay. If an exchange alien requires an extension
beyond the initial admission period, the alien shall apply by submitting
a new Form IAP-66 which indicates the date to which the alien's program
is extended. The extension may not exceed the period specified on Form
IAP-66, plus a period of 30 days for the purpose of travel. Extensions
of stay for the alien's spouse and children require, as an attachment to
Form IAP-66, Form I-94 for each dependent, and a list containing the
names of the applicants, dates and places of birth, passport numbers,
issuing countries, and expiration dates. An
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accompanying spouse or child may not be granted an extension of stay for
longer than the principal exchange alien.
(v) Employment. (A) The accompanying spouse and minor children of a
J-1 exchange visitor may accept employment only with authorization by
the Immigration and Naturalization Service. A request for employment
authorization must be made on Form I-765, Application for Employment
Authorization, with fee, as required by the Service, to the district
director having jurisdiction over the J-1 exchange visitor's temporary
residence in the United States. Income from the spouse's or dependent's
employment may be used to support the family's customary recreational
and cultural activities and related travel, among other things.
Employment will not be authorized if this income is needed to support
the J-1 principal alien.
(B) J-2 employment may be authorized for the duration of the J-1
principal alien's authorized stay as indicated on Form I-94 or a period
of four years, whichever is shorter. The employment authorization is
valid only if the J-1 is maintaining status. Where a J-2 spouse or
dependent child has filed a timely application for extension of stay,
only upon approval of the request for extension of stay may he or she
apply for a renewal of the employment authorization on a Form I-765 with
the required fee.
(2) Special reporting requirement. Each exchange alien
participating in a program of graduate medical education or training
shall file Form I-644 (Supplementary Statement for Graduate Medical
Trainees) annually with the Service attesting to the conditions as
specified on the form. The exchange alien shall also submit Form I-644
as an attachment to a completed Form IAP-66 when applying for an
extension of stay.
(3) Alien in cancelled programs. When the approval of an exchange
visitor program is withdrawn by the Director of the United States
Information Agency, the district director shall send a notice of the
withdrawal to each participant in the program and a copy of each such
notice shall be sent to the program sponsor. If the exchange visitor is
currently engaged in activities authorized by the cancelled program, the
participant is authorized to remain in the United States to engage in
those activities until expiration of the period of stay previously
authorized. The district director shall notify participants in cancelled
programs that permission to remain in the United States as an exchange
visitor, or extension of stay may be obtained if the participant is
accepted in another approved program and a Form IAP-66, executed by the
new program sponsor, is submitted. In this case, a release from the
sponsor of the cancelled program will not be required.
(4) Eligibility requirements for section 101(a)(15)(J)
classification for aliens desiring to participate in programs under
which they will receive graduate medical education or training--(i)
Requirements. Any alien coming to the United States as an exchange
visitor to participate in a program under which the alien will receive
graduate medical education or training, or any alien seeking to change
nonimmigrant status to that of an exchange visitor on Form I-506 for
that purpose, must have passed parts of I and II of the National Board
of Medical Examiners Examination (or an equivalent examination as
determined by the Secretary of Health and Human Services), and must be
competent in oral and written English, and shall submit a completely
executed and valid Form IAP-66.
(ii) Exemptions. From January 10, 1978 until December 31, 1983, any
alien who has come to or seeks to come to the United States as an
exchange visitor to participate in an accredited program of graduate
medical education or training, or any alien who seeks to change
nonimmigrant status for that purpose, may be admitted to participate in
such program without regard to the requirements stated in subparagraphs
(A) and (B)(ii)(I) of section 212(j)(1) of the Act if a substantial
disruption in the health services provided by such program would result
from not permitting the alien to participate in the program: Provided
that the exemption will not increase the total number of aliens then
participating in such programs to a level greater than that
participating on January 10, 1978.
[[Page 259]]
(k) Fiancees and fiances of United States citizens--(1) Petition and
supporting documents. To be classified as a fiance or fiancee as defined
in section 101(a)(15)(K) of the Act, an alien must be the beneficiary of
an approved visa petition filed on Form I-129F. The petition with
supporting documents shall be filed by the petitioner with the director
having administrative jurisdiction over the place where the petitioner
is residing in the United States. A copy of a document submitted in
support of a visa petition filed pursuant to section 214(d) of the Act
and this paragraph may be accepted, though unaccompanied by the
original, if the copy bears a certification by an attorney, typed or
rubber-stamped, in the language set forth in Sec. 204.2(j) of this
chapter. However, the original document shall be submitted if requested
by the Service.
(2) Requirement that petitioner and beneficiary have met. The
petitioner shall establish to the satisfaction of the director that the
petitioner and beneficiary have met in person within the two years
immediately preceding the filing of the petition. As a matter of
discretion, the director may exempt the petitioner from this requirement
only if it is established that compliance would result in extreme
hardship to the petitioner or that compliance would violate strict and
long-established customs of the beneficiary's foreign culture or social
practice, as where marriages are traditionally arranged by the parents
of the contracting parties and the prospective bride and groom are
prohibited from meeting subsequent to the arrangement and prior to the
wedding day. In addition to establishing that the required meeting would
be a violation of custom or practice, the petitioner must also establish
that any and all other aspects of the traditional arrangements have been
or will be met in accordance with the custom or practice. Failure to
establish that the petitioner and beneficiary have met within the
required period or that compliance with the requirement should be waived
shall result in the denial of the petition. Such denial shall be without
prejudice to the filing of a new petition once the petitioner and
beneficiary have met in person.
(3) Children of beneficiary. Without the approval of a separate
petition on his or her behalf, a child of the beneficiary (as defined in
section 101(b)(1)(A), (B), (C), (D), or (E) of the Act) may be accorded
the same nonimmigrant classification as the beneficiary if accompanying
or following to join him or her.
(4) Notification. The petitioner shall be notified of the decision
and, if the petition is denied, of the reasons therefor and of the right
to appeal in accordance with the provisions of part 103 of this chapter.
(5) Validity. The approval of a petition under this paragraph shall
be valid for a period of four months. A petition which has expired due
to the passage of time may be revalidated by a director or a consular
officer for a period of four months from the date of revalidation upon a
finding that the petitioner and beneficiary are free to marry and intend
to marry each other within 90 days of the beneficiary's entry into the
United States. The approval of any petition is automatically terminated
when the petitioner dies or files a written withdrawal of the petition
before the beneficiary arrives in the United States.
(6) Adjustment of status from nonimmigrant to immigrant--(i)
Nonimmigrant visa issued prior to November 10, 1986. If the beneficiary
contracts a valid marriage with the petitioner within 90 days of his or
her admission to the United States pursuant to a valid K-1 visa issued
prior to November 10, 1986, and the beneficiary and his or her minor
children are otherwise admissible, the director shall record their
lawful admission for permanent residence as of the date of their filing
of an application for adjustment of status to lawful permanent resident
(Form I-485). Such residence shall be granted under section 214(d) of
the Act as in effect prior to November 10, 1986 and shall not be subject
to the conditions of section 216 of the Act.
(ii) Nonimmigrant visa issued on or after November 10, 1986. Upon
contracting a valid marriage to the petitioner within 90 days of his or
her admission as a nonimmigrant pursuant to a valid K visa issued on or
after November 10, 1986, the beneficiary and his or her
[[Page 260]]
minor children may apply for adjustment of status to lawful permanent
resident under section 245 of the Act. Upon approval of the application
the director shall record their lawful admission for permanent residence
in accordance with that section and subject to the conditions prescribed
in section 216 of the Act.
(l) Intracompany transferees--(1) Admission of intracompany
transferees--(i) General. Under section 101(a)(15)(L) of the Act, an
alien who within the preceding three years has been employed abroad for
one continuous year by a qualifying organization may be admitted
temporarily to the United States to be employed by a parent, branch,
affiliate, or subsidiary of that employer in a managerial or executive
capacity, or in a position requiring specialized knowledge. An alien
transferred to the United States under this nonimmigrant classification
is referred to as an intracompany transferee and the organization which
seeks the classification of an alien as an intracompany transferee is
referred to as the petitioner. The Service has responsibility for
determining whether the alien is eligible for admission and whether the
petitioner is a qualifying organization. These regulations set forth the
standards applicable to these classifications. They also set forth
procedures for admission of intracompany transferees and appeal of
adverse decisions. Certain petitioners seeking the classification of
aliens as intracompany transferees may file blanket petitions with the
Service. Under the blanket petition process, the Service is responsible
for determining whether the petitioner and its parent, branches,
affiliates, or subsidiaries specified are qualifying organizations. The
Department of State or, in certain cases, the Service is responsible for
determining the classification of the alien.
(ii) Definitions--(A) Intracompany transferee means an alien who,
within three years preceding the time of his or her application for
admission into the United States, has been employed abroad continuously
for one year by a firm or corporation or other legal entity or parent,
branch, affiliate, or subsidiary thereof, and who seeks to enter the
United States temporarily in order to render his or her services to a
branch of the same employer or a parent, affiliate, or subsidiary
thereof in a capacity that is managerial, executive, or involves
specialized knowledge. Periods spent in the United States in lawful
status for a branch of the same employer or a parent, affiliate, or
subsidiary thereof and brief trips to the United States for business or
pleasure shall not be interruptive of the one year of continuous
employment abroad but such periods shall not be counted toward
fulfillment of that requirement.
(B) Managerial capacity means an assignment within an organization
in which the employee primarily:
(1) Manages the organization, or a department, subdivision,
function, or component of the organization;
(2) 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;
(3) Has the authority to hire and fire or recommend those as well as
other personnel actions (such as promotion and leave authorization) if
another employee or other employees are directly supervised; if no other
employee is directly supervised, functions at a senior level within the
organizational hierarchy or with respect to the function managed; and
(4) Exercises discretion over the day-to-day operations of the
activity or function for which the employee has authority. A first-line
supervisor is not considered to be acting in a managerial capacity
merely by virtue of the supervisor's supervisory duties unless the
employees supervised are professional.
(C) Executive capacity means an assignment within an organization in
which the employee primarily:
(1) Directs the management of the organization or a major component
or function of the organization;
(2) Establishes the goals and policies of the organization,
component, or function;
(3) Exercises wide latitude in discretionary decision-making; and
(4) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
[[Page 261]]
(D) Specialized knowledge means special knowledge possessed by an
individual of the petitioning organization's product, service, research,
equipment, techniques, management, or other interests and its
application in international markets, or an advanced level of knowledge
or expertise in the organization's processes and procedures.
(E) Specialized knowledge professional means an individual who has
specialized knowledge as defined in paragraph (l)(1)(ii)(D) of this
section and is a member of the professions as defined in section
101(a)(32) of the Immigration and Nationality Act.
(F) New office means an organization which has been doing business
in the United States through a parent, branch, affiliate, or subsidiary
for less than one year.
(G) Qualifying organization means a United States or foreign firm,
corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in
the definitions of a parent, branch, affiliate or subsidiary specified
in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is
not required) as an employer in the United States and in at least one
other country directly or through a parent, branch, affiliate, or
subsidiary for the duration of the alien's stay in the United States as
an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the
Act.
(H) Doing business means the regular, systematic, and continuous
provision of goods and/or services by a qualifying organization and does
not include the mere presence of an agent or office of the qualifying
organization in the United States and abroad.
(I) Parent means a firm, corporation, or other legal entity which
has subsidiaries.
(J) Branch means an operating division or office of the same
organization housed in a different location.
(K) 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.
(L) Affiliate means (1) One of two subsidiaries both of which are
owned and controlled by the same parent or individual, or
(2) 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
(3) 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 that markets its accounting services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting services shall
be considered to be an affiliate of the United States partnership if 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.
(M) Director means a Service Center director with delegated
authority at 8 CFR 103.1.
(2) Filing of petitions--(i) Except as provided in paragraph
(l)(2)(ii) and (l)(17) of this section, a petitioner seeking to classify
an alien as an intracompany transferee shall file a petition on Form I-
129, Petition for Nonimmigrant Worker, only at the Service Center which
has jurisdiction over the area where the alien will be employed, even in
emergent situations. The petitioner shall advise the Service whether it
has filed a petition for the same beneficiary with another office, and
certify that it will not file a petition for the same beneficiary with
another office, unless the circumstances and conditions in the initial
petition have
[[Page 262]]
changed. Failure to make a full disclosure of previous petitions filed
may result in a denial of the petition.
(ii) A United States petitioner which meets the requirements of
paragraph (l)(4) of this section and seeks continuing approval of itself
and its parent, branches, specified subsidiaries and affiliates as
qualifying organizations and, later, classification under section
101(a)(15)(L) of multiple numbers of aliens employed by itself, its
parent, or those branches, subsidiaries, or affiliates may file a
blanket petition on Form I-129 with the director having jurisdiction
over the area where the petitioner is located. The blanket petition
shall be adjudicated and maintained at the appropriate Service Center.
Approved blanket petition files shall be maintained indefinitely by that
Service Center. The petitioner shall be the single representative for
the qualifying organizations with which the Service will deal regarding
the blanket petition.
(3) Evidence for individual petitions. An individual petition filed
on Form I-129 shall be accompanied by:
(i) Evidence that the petitioner and the organization which employed
or will employ the alien are qualifying organizations as defined in
paragraph (l)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive,
managerial, or specialized knowledge capacity, including a detailed
description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of
full-time employment abroad with a qualifying organization within the
three years preceding the filing of the petition.
(iv) Evidence that the alien's prior year of employment abroad was
in a position that was managerial, executive, or involved specialized
knowledge and that the alien's prior education, training, and employment
qualifies him/her to perform the intended services in the United States;
however, the work in the United States need not be the same work which
the alien performed abroad.
(v) If the petition indicates that the beneficiary is coming to the
United States as a manager or executive to open or to be employed in a
new office in the United States, the petitioner shall submit evidence
that:
(A) Sufficient physical premises to house the new office have been
secured;
(B) The beneficiary has been employed for one continuous year in the
three year period preceding the filing of the petition in an executive
or managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the
approval of the petition, will support an executive or managerial
position as defined in paragraphs (l)(1)(ii) (B) or (C) of this section,
supported by information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and to
commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
(vi) If the petition indicates that the beneficiary is coming to the
United States in a specialized knowledge capacity to open or to be
employed in a new office, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been
secured;
(B) The business entity in the United States is or will be a
qualifying organization as defined in paragraph (l)(1)(ii)(G) of this
section; and
(C) The petitioner has the financial ability to remunerate the
beneficiary and to commence doing business in the United States.
(vii) If the beneficiary is an owner or major stockholder of the
company, the petition must be accompanied by evidence that the
beneficiary's services are to be used for a temporary period and
evidence that the beneficiary will be transferred to an assignment
abroad upon the completion of the temporary services in the United
States.
(viii) Such other evidence as the director, in his or her
discretion, may deem necessary.
[[Page 263]]
(4) Blanket petitions--(i) A petitioner which meets the following
requirements may file a blanket petition seeking continuing approval of
itself and some or all of its parent, branches, subsidiaries, and
affiliates as qualifying organizations if:
(A) The petitioner and each of those entities are engaged in
commercial trade or services;
(B) The petitioner has an office in the United States that has been
doing business for one year or more;
(C) The petitioner has three or more domestic and foreign branches,
subsidiaries, or affiliates; and
(D) The petitioner and the other qualifying organizations have
obtained approval of petitions for at least ten ``L'' managers,
executives, or specialized knowledge professionals during the previous
12 months; or have U.S. subsidiaries or affiliates with combined annual
sales of at least $25 million; or have a United States work force of at
least 1,000 employees.
(ii) Managers, executives, and specialized knowledge professionals
employed by firms, corporations, or other entities which have been found
to be qualifying organizations pursuant to an approved blanket petition
may be classified as intracompany transferees and admitted to the United
States as provided in paragraphs (l) (5) and (11) of this section.
(iii) When applying for a blanket petition, the petitioner shall
include in the blanket petition all of its branches, subsidiaries, and
affiliates which plan to seek to transfer aliens to the United States
under the blanket petition. An individual petition may be filed by the
petitioner or organizations in lieu of using the blanket petition
procedure. However, the petitioner and other qualifying organizations
may not seek L classification for the same alien under both procedures,
unless a consular officer first denies eligibility. Whenever a
petitioner which has blanket L approval files an individual petition to
seek L classification for a manager, executive, or specialized knowledge
professional, the petitioner shall advise the Service that it has
blanket L approval and certify that the beneficiary has not and will not
apply to a consular officer for L classification under the approved
blanket petition.
(iv) Evidence. A blanket petition filed on Form I-129 shall be
accompanied by:
(A) Evidence that the petitioner meets the requirements of paragraph
(l)(4)(i) of this section.
(B) Evidence that all entities for which approval is sought are
qualifying organizations as defined in subparagraph (l)(1)(ii)(G) of
this section.
(C) Such other evidence as the director, in his or her discretion,
deems necessary in a particular case.
(5) Certification and admission procedures for beneficiaries under
blanket petition.
(i) Jurisdiction. United States consular officers shall have
authority to determine eligibility of individual beneficiaries outside
the United States seeking L classification under blanket petitions,
except for visa-exempt nonimmigrants. An application for a visa-exempt
nonimmigrant seeking L classification under a blanket petition or by an
alien in the United States applying for change of status to L
classification under a blanket petition shall be filed with the Service
office at which the blanket petition was filed.
(ii) Procedures. (A) When one qualifying organization listed in an
approved blanket petition wishes to transfer an alien outside the United
States to a qualifying organization in the United States and the alien
requires a visa to enter the United States, that organization shall
complete Form I-129S, Certificate of Eligibility for Intracompany
Transferee under a Blanket Petition, in an original and three copies.
The qualifying organization shall retain one copy for its records and
send the original and two copies to the alien. A copy of the approved
Form I-797 must be attached to the original and each copy of Form I-
129S.
(B) After receipt of Form I-797 and Form I-129S, a qualified
employee who is being transferred to the United States may use these
documents to apply for visa issuance with the consular officer within
six months of the date on Form I-129S.
(C) When the alien is a visa-exempt nonimmigrant seeking L
classification under a blanket petition, or when the alien is in the
United States and is
[[Page 264]]
seeking a change of status from another nonimmigrant classification to L
classification under a blanket petition, the petitioner shall submit
Form I-129S, Certificate of Eligibility, and a copy of the approval
notice, Form I-797, to the Service Center with which the blanket
petition was filed.
(D) The consular or Service officer shall determine whether the
position in which the alien will be employed in the United States is
with an organization named in the approved petition and whether the
specific job is for a manager, executive, or specialized knowledge
professional. The consular or Service officer shall determine further
whether the alien's immediate prior year of continuous employment abroad
was with an organization named in the petition and was in a position as
manager, executive, or specialized knowledge professional.
(E) Consular officers may grant ``L'' classification only in clearly
approvable applications. If the consular officer determines that the
alien is eligible for L classification, the consular officer may issue a
nonimmigrant visa, noting the visa classification ``Blanket L-1'' for
the principal alien and ``Blanket L-2'' for any accompanying or
following to join spouse and children. The consular officer shall also
endorse all copies of the alien's Form I-129S with the blanket L-1 visa
classification and return the original and one copy to the alien. When
the alien is inspected for entry into the United States, both copies of
the Form I-129S shall be stamped to show a validity period not to exceed
three years and the second copy collected and sent to the appropriate
Regional Service Center for control purposes. Service officers who
determine eligibility of aliens for L-1 classification under blanket
petitions shall endorse both copies of Form I-129S with the blanket L-1
classification and the validity period not to exceed three years and
retain the second copy for Service records.
(F) If the consular officer determines that the alien is ineligible
for L classification under a blanket petition, the consular officer's
decision shall be final. The consular officer shall record the reasons
for the denial on Form I-129S, retain one copy, return the original of
I-129S to the Service office which approved the blanket petition, and
provide a copy to the alien. In such a case, an individual petition may
be filed for the alien with the director having jurisdiction over the
area of intended employment; the petition shall state the reason the
alien was denied L classification and specify the consular office which
made the determination and the date of the determination.
(G) An alien admitted under an approved blanket petition may be
reassigned to any organization listed in the approved petition without
referral to the Service during his/her authorized stay if the alien will
be performing virtually the same job duties. If the alien will be
performing different job duties, the petitioner shall complete a new
Certificate of Eligibility and send it for approval to the director who
approved the blanket petition.
(6) Copies of supporting documents. The petitioner may submit a
legible photocopy of a document in support of the visa petition, in lieu
of the original document. However, the original document shall be
submitted if requested by the Service.
(7) Approval of petition--(i) General. The director shall notify the
petitioner of the approval of an individual or a blanket petition within
30 days after the date a completed petition has been filed. If
additional information is required from the petitioner, the 30 day
processing period shall begin again upon receipt of the information.
Only the Director of a Service Center may approve individual and blanket
L petitions. The original Form I-797 received from the Service with
respect to an approved individual or blanket petition may be duplicated
by the petitioner for the beneficiary's use as described in paragraph
(l)(13) of this section.
(A) Individual petition--(1) Form I-797 shall include the
beneficiary's name and classification and the petition's period of
validity.
(2) An individual petition approved under this paragraph shall be
valid for the period of established need for the beneficiary's services,
not to exceed three years, except where the beneficiary is coming to the
United States to open or to be employed in a new office.
[[Page 265]]
(3) If the beneficiary is coming to the United States to open or be
employed in a new office, the petition may be approved for a period not
to exceed one year, after which the petitioner shall demonstrate as
required by paragraph (l)(14)(ii) of this section that it is doing
business as defined in paragraph (l) (1)(ii)(H) of this section to
extend the validity of the petition.
(B) Blanket petition--(1) Form I-797 shall identify the approved
organizations included in the petition and the petition's period of
validity.
(2) A blanket petition approved under this paragraph shall be valid
initially for a period of three years and may be extended indefinitely
thereafter if the qualifying organizations have complied with these
regulations.
(3) A blanket petition may be approved in whole or in part and shall
cover only qualifying organizations.
(C) Amendments. The petitioner shall file an amended petition, with
fee, at the Service Center where the original petition was filed to
reflect changes in approved relationships, additional qualifying
organizations under a blanket petition, change in capacity of employment
(i.e., from a specialized knowledge position to a managerial position),
or any information which would affect the beneficiary's eligibility
under section 101(a)(15)(L) of the Act.
(ii) Spouse and dependents. The spouse and unmarried minor children
of the beneficiary are entitled to L nonimmigrant classification,
subject to the same period of admission and limits as the beneficiary,
if the spouse and unmarried minor children are accompanying or following
to join the beneficiary in the United States. Neither the spouse nor any
child may accept employment unless he or she has been granted employment
authorization.
(8) Denial of petition--(i) Notice of intent to deny. When an
adverse decision is proposed on the basis of evidence not submitted by
the petitioner, the director shall notify the petitioner of his or her
intent to deny the petition and the basis for the denial. The petitioner
may inspect and rebut the evidence and will be granted a period of 30
days from the date of the notice in which to do so. All relevant
rebuttal material will be considered in making a final decision.
(ii) Individual petition. If an individual is denied, the petitioner
shall be notified within 30 days after the date a completed petition has
been filed of the denial, the reasons for the denial, and the right to
appeal the denial.
(iii) Blanket petition. If a blanket petition is denied in whole or
in part, the petitioner shall be notified within 30 days after the date
a completed petition has been filed of the denial, the reasons for the
denial, and the right to appeal the denial. If the petition is denied in
part, the Service Center issuing the denial shall forward to the
petitioner, along with the denial, a Form I-797 listing those
organizations which were found to quality. If the decision to deny is
reversed on appeal, a new Form I-797 shall be sent to the petitioner to
reflect the changes made as a result of the appeal.
(9) Revocation of approval of individual and blanket petitions--(i)
General. The director may revoke a petition at any time, even after the
expiration of the petition.
(ii) Automatic revocation. The approval of any individual or blanket
petition is automatically revoked if the petitioner withdraws the
petition or the petitioner fails to request indefinite validity of a
blanket petition.
(iii) Revocation on notice. (A) The director shall send to the
petitioner a notice of intent to revoke the petition in relevant part if
he/she finds that:
(1) One or more entities are no longer qualifying organizations;
(2) The alien is no longer eligible under section 101(a)(15)(L) of
the Act;
(3) A qualifying organization(s) violated requirements of section
101(a)(15)(L) and these regulations;
(4) The statement of facts contained in the petition was not true
and correct; or
(5) Approval of the petition involved gross error; or
(6) None of the qualifying organizations in a blanket petition have
used the blanket petition procedure for three consecutive years.
(B) The notice of intent to revoke shall contain a detailed
statement of the grounds for the revocation and the time period allowed
for the petitioner's
[[Page 266]]
rebuttal. Upon receipt of this notice, the petitioner may submit
evidence in rebuttal within 30 days of the notice. The director shall
consider all relevant evidence presented in deciding whether to revoke
the petition in whole or in part. If a blanket petition is revoked in
part, the remainder of the petition shall remain approved, and a revised
Form I-797 shall be sent to the petitioner with the revocation notice.
(iv) Status of beneficiaries. If an individual petition is revoked,
the beneficiary shall be required to leave the United States, unless the
beneficiary has obtained other work authorization from the Service. If a
blanket petition is revoked and the petitioner and beneficiaries already
in the United States are otherwise eligible for L classification, the
director shall extend the blanket petition for a period necessary to
support the stay of those blanket L beneficiaries. The approval notice,
Form I-171C, shall include only the names of qualifying organizations
and covered beneficiaries. No new beneficiaries may be classified or
admitted under this limited extension.
(10) Appeal of denial or revocation of individual or blanket
petition--(i) A petition denied in whole or in part may be appealed
under 8 CFR part 103. Since the determination on the Certificate of
Eligibility, Form I-129S, is part of the petition process, a denial or
revocation of approval of an I-129S is appealable in the same manner as
the petition.
(ii) A petition that has been revoked on notice in whole or in part
may be appealed under part 103 of this chapter. Automatic revocations
may not be appealed.
(11) Admission. A beneficiary may apply for admission to the United
States only while the individual or blanket petition is valid. The
beneficiary of an individual petition shall not be admitted for a date
past the validity period of the petition. The beneficiary of a blanket
petition may be admitted for three years even though the initial
validity period of the blanket petition may expire before the end of the
three-year period. If the blanket petition will expire while the alien
is in the United States, the burden is on the petitioner to file for
indefinite validity of the blanket petition or to file an individual
petition in the alien's behalf to support the alien's status in the
United States. The admission period for any alien under section
101(a)(15)(L) shall not exceed three years unless an extension of stay
is granted pursuant to paragraph (l)(15) of this section.
(12) L-1 limitation on period of stay--(i) Limits. An alien who has
spent five years in the United States in a specialized knowledge
capacity or seven years in the United States in a managerial or
executive capacity under section 101(a)(15) (L) and/or (H) of the Act
may not be readmitted to the United States under section 101(a)(15) (L)
or (H) of the Act unless the alien has resided and been physically
present outside the United States, except for brief visits for business
or pleasure, for the immediate prior year. Such visits do not interrupt
the one year abroad, but do not count towards fulfillment of that
requirement. In view of this restriction, a new individual petition may
not be approved for an alien who has spent the maximum time period in
the United States under section 101(a)(15) (L) and/or (H) of the Act,
unless the alien has resided and been physically present outside the
United States, except for brief visits for business or pleasure, for the
immediate prior year. The petitioner shall provide information about the
alien's employment, place of residence, and the dates and purpose of any
trips to the United States for the previous year. A consular or Service
officer may not grant L classification under a blanket petition to an
alien who has spent five years in the United States as a professional
with specialized knowledge or seven years in the United States as a
manager or executive, unless the alien has met the requirements
contained in this paragraph.
(ii) Exceptions. The limitations of paragraph (l)(12)(i) of this
section shall not apply to aliens who do not reside continually in the
United States and whose employment in the United States is seasonal,
intermittent, or consists of an aggregate of six months or less per
year. In addition, the limitations will not apply to aliens who reside
abroad and regularly commute to the United States to engage in part-time
employment. The petitioner and
[[Page 267]]
the alien must provide clear and convincing proof that the alien
qualifies for an exception. Clear and convincing proof shall consist of
evidence such as arrival and departure records, copies of tax returns,
and records of employment abroad.
(13) Beneficiary's use of Form I-797 and Form I-129S--(i)
Beneficiary of an individual petition. The beneficiary of an individual
petition who does not require a nonimmigrant visa may present a copy of
Form I-797 at a port of entry to facilitate entry into the United
States. The copy of Form I-797 shall be retained by the beneficiary and
presented during the validity of the petition (provided that the
beneficiary is entering or reentering the United States) for entry and
reentry to resume the same employment with the same petitioner (within
the validity period of the petition) and to apply for an extension of
stay. A beneficiary who is required to present a visa for admission and
whose visa will have expired before the date of his or her intended
return may use an original Form I-797 to apply for a new or revalidated
visa during the validity period of the petition and to apply for an
extension of stay.
(ii) Beneficiary of a blanket petition. Each alien seeking L
classification and admission under a blanket petition shall present a
copy of Form I-797 and a Form I-129S from the petitioner which
identifies the position and organization from which the employee is
transferring, the new organization and position to which the employee is
destined, a description of the employee's actual duties for both the new
and former positions, and the positions, dates, and locations of
previous L stays in the United States. A current copy of Form I-797 and
Form I-129S should be retained by the beneficiary and used for leaving
and reentering the United States to resume employment with a qualifying
organization during his/her authorized period of stay, for applying for
a new or revalidated visa, and for applying for readmission at a port of
entry. The alien may be readmitted even though reassigned to a different
organization named on the Form I-797 than the one shown on Form I-129S
if the job duties are virtually the same.
(14) Extension of visa petition validity--(i) Individual petition.
The petitioner shall file a petition extension on Form I-129 to extend
an individual petition under section 101(a)(15)(L) of the Act. Except in
those petitions involving new offices, supporting documentation is not
required, unless requested by the director. A petition extension may be
filed only if the validity of the original petition has not expired.
(ii) New offices. A visa petition under section 101(a)(15)(L) which
involved the opening of a new office may be extended by filing a new
Form I-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still
qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this
section;
(B) Evidence that the United States entity has been doing business
as defined in paragraph (l)(1)(ii)(H) of this section for the previous
year;
(C) A statement of the duties performed by the beneficiary for the
previous year and the duties the beneficiary will perform under the
extended petition;
(D) A statement describing the staffing of the new operation,
including the number of employees and types of positions held
accompanied by evidence of wages paid to employees when the beneficiary
will be employed in a managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
(iii) Blanket petitions--(A) Extension procedure. A blanket petition
may only be extended indefinitely by filing a new Form I-129 with a copy
of the previous approval notice and a report of admissions during the
preceding three years. The report of admissions shall include a list of
the aliens admitted under the blanket petition during the preceding
three years, including positions held during that period, the employing
entity, and the dates of initial admission and final departure of each
alien. The petitioner shall state whether it still meets the criteria
for filing a blanket petition and shall document any changes in approved
relationships and additional qualifying organizations.
(B) Other conditions. If the petitioner in an approved blanket
petition fails to
[[Page 268]]
request indefinite validity or if indefinite validity is denied, the
petitioner and its other qualifying organizations shall seek L
classification by filing individual petitions until another three years
have expired; after which the petitioner may seek approval of a new
blanket petition.
(15) Extension of stay. (i) In individual petitions, the petitioner
must apply for the petition extension and the alien's extension of stay
concurrently on Form I-129. When the alien is a beneficiary under a
blanket petition, a new certificate of eligibility, accompanied by a
copy of the previous approved certificate of eligibility, shall be filed
by the petitioner to request an extension of the alien's stay. The
petitioner must also request a petition extension. The dates of
extension shall be the same for the petition and the beneficiary's
extension of stay. The beneficiary must be physically present in the
United States at the time the extension of stay is filed. Even though
the requests to extend the visa petition and the alien's stay are
combined on the petition, the director shall make a separate
determination on each. If the alien is required to leave the United
States for business or personal reasons while the extension requests are
pending, the petitioner may request the director to cable notification
of approval of the petition extension to the consular office abroad
where the alien will apply for a visa.
(ii) An extension of stay may be authorized in increments of up to
two years for beneficiaries of individual and blanket petitions. The
total period of stay may not exceed five years for aliens employed in a
specialized knowledge capacity. The total period of stay for an alien
employed in a managerial or executive capacity may not exceed seven
years. No further extensions may be granted. When an alien was initially
admitted to the United States in a specialized knowledge capacity and is
later promoted to a managerial or executive position, he or she must
have been employed in the managerial or executive position for at least
six months to be eligible for the total period of stay of seven years.
The change to managerial or executive capacity must have been approved
by the Service in an amended, new, or extended petition at the time that
the change occurred.
(16) Effect of approval of a permanent labor certification or filing
of a preference petition on L-1 classification. The approval of a
permanent labor certification or the filing of a preference petition for
an alien shall not be a basis for denying an L petition, a request to
extend an L petition, or the alien's application for admission, change
of status, or extension of stay. The alien may legitimately come to the
United States as a nonimmigrant under the L classification and depart
voluntarily at the end of his or her authorized stay, and at the same
time, lawfully seek to become a permanent resident of the United States.
(17) Filing of individual petitions and certifications under blanket
petitions for citizens of Canada under the North American Free Trade
Agreement (NAFTA). (i) Individual petitions. Except as provided in
paragraph (1)(2)(ii) of this section (filing of blanket petitions), a
United States or foreign employer seeking to classify a citizen of
Canada as an intracompany transferee may file an individual petition in
duplicate on Form I-129 in conjunction with an application for admission
of the citizen of Canada. Such filing may be made with an immigration
officer at a Class A port of entry located on the United States-Canada
land border or at a United States pre-clearance/pre-flight station in
Canada. The petitioning employer need not appear, but Form I-129 must
bear the authorized signature of the petitioner.
(ii) Certification of eligibility for intracompany transferree under
the blanket petition. An immigration officer at a location identified in
paragraph (1)(17)(i) of this section may determine eligibility of
individual citizens of Canada seeking L classification under approved
blanket petitions. At these locations, such citizens of Canada shall
present the original and two copies of Form I-129S, Intracompany
Transferee Certificate of Eligibility, prepared by the approved
organization, as well as three copies of Form I-797, Notice of Approval
of Nonimmigrant Visa Petition.
(iii) Nothing in this section shall preclude or discourage the
advance filing
[[Page 269]]
of petitions and certificates of eligibility in accordance with
paragraph (l)(2) of this section.
(iv) Deficient or deniable petitions or certificates of eligibility.
If a petition or certificate of eligibility submitted concurrently with
an application for admission is lacking necessary supporting
documentation or is otherwise deficient, the inspecting immigration
officer shall return it to the applicant for admission in order to
obtain the necessary documentation from the petitioner or for the
deficiency to be overcome. The fee to file the petition will be remitted
at such time as the documentary or other deficiency is overcome. If the
petition or certificate of eligibility is clearly deniable, the
immigration officer will accept the petition (with fee) and the
petitioner shall be notified of the denial, the reasons for denial, and
the right of appeal. If a formal denial order cannot be issued by the
port of entry, the petition with a recommendation for denial shall be
forwarded to the appropriate Service Center for final action. For the
purposes of this provision, the appropriate Service Center will be the
one within the same Service region as the location where the application
for admission is made.
(v) Spouse and dependent minor children accompanying or following to
join. (A) The Canadian citizen spouse and Canadian citizen unmarried
minor children of a Canadian citizen admitted under this paragraph shall
be entitled to the same nonimmigrant classification and same length of
stay subject to the same limits as the principal alien. They shall not
be required to present visas, and they shall be admitted under the
classification symbol L-2.
(B) A non-Canadian citizen spouse or non-Canadian citizen unmarried
minor child shall be entitled to the same nonimmigrant classification
and the same length of stay subject to the same limits as the principal,
but shall be required to present a visa upon application for admission
as an L-2 unless otherwise exempt under Sec. 212.1 of this chapter.
(C) The spouse and dependent minor children shall not accept
employment in the United States unless otherwise authorized under the
Act.
(18) Denial of intracompany transferee status to citizens of Canada
or Mexico in the case of certain labor disputes. (i) If the Secretary of
Labor certifies to or otherwise informs the Commissioner that a strike
or other labor dispute involving a work stoppage of workers is in
progress where the beneficiary is to be employed, and the temporary
entry of the beneficiary may affect adversely the settlement of such
labor dispute or the employment of any person who is involved in such
dispute, a petition to classify a citizen of Mexico or Canada as an L-1
intracompany transferee may be denied. If a petition has already been
approved, but the alien has not yet entered the United States, or has
entered the United States but not yet commenced employment, the approval
of the petition may be suspended, and an application for admission on
the basis of the petition may be denied.
(ii) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (l)(18)(i) of this section, or the
Service has not otherwise been informed by the Secretary that such a
strike or labor dispute is in progress, the Commissioner shall not deny
a petition or suspend an approved petition.
(iii) If the alien has already commended employment in the United
States under an approved petition and is participating in a strike or
other labor dispute involving a work stoppage of workers, whether or not
such strike or other labor dispute has been certified by the Department
of Labor, the alien shall not be deemed to be failing to maintain his or
her status solely on account of past, present, or future participation
in a strike or other labor dispute involving a work stoppage of workers,
but is subject to the following terms and conditions.
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act, and regulations promulgated in the
same manner as all other L nonimmigrants;
(B) The status and authorized period of stay of such an alien is not
modified or extended in any way by virtue of his or her participation in
a strike or other
[[Page 270]]
labor dispute involving work stoppage of workers; and
(C) Although participation by an L nonimmigrant alien in a strike or
other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, any alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(m) Students in established vocational or other recognized
nonacademic institutions, other than in language training programs--(1)
Admission of student--(i) Eligibility for admission. Except as provided
in paragraph (m)(4) of this section, an alien seeking admission to the
United States under section 101(a)(15)(M)(i) of the Act (as an M-1
student) and the student's accompanying M-2 spouse and minor children,
if applicable, are not eligible for admission unless--
(A) The student presents a Certificate of Eligibility for
Nonimmigrant (M-1) Student Status, Form I-20M-N, properly and completely
filled out by the student and by the designated official of the school
to which the student is destined and the documentary evidence of the
student's financial ability required by that form; and
(B) It is established that the student is destined to and intends to
attend the school specified in the student's visa unless the student is
exempt from the requirement for presentation of a visa.
(ii) Disposition of Form I-20M-N. When a student is admitted to the
United States, the inspecting officer shall forward Form I-20M-N to the
Service's processing center. The processing center shall forward Form I-
20N to the school which issued the form to notify the school of the
student's admission.
(2) Form I-20 ID copy. The first time an M-1 student comes into
contact with the Service for any reason, the student must present to the
Service a Form I-20M-N properly and completely filled out by the student
and by the designated official of the school the student is attending or
intends to attend. The student will be issued a Form I-20 ID copy with
his or her admission number. The student must have the Form I-20 ID copy
with him or her at all times. If the student loses the Form I-20 ID
copy, the student must request a new Form I-20 ID copy on Form I-102
from the Service office having jurisdiction over the school the student
was last authorized to attend.
(3) Spouse and minor children following to join student. The M-2
spouse and minor children following to join an M-1 student are not
eligible for admission to the United States unless they present, as
evidence that the student is or will, within sixty days, be enrolled in
a full course of study or is engaged in approved practical training,
either--
(i) A properly endorsed page 4 of Form I-20M-N if there has been no
substantive change in the information on the student's most recent Form
I-20M since the form was initially issued; or
(ii) A new Form I-20M-N if there has been any substantive change in
the information on the student's most recent Form I-20M since the form
was initially issued.
(4) Temporary absence--(i) General. An M-1 student returning to the
United States from a temporary absence to attend the school which the
student was previously authorized to attend must present either--
(A) A properly endorsed page 4 of Form I-20M-N if there has been no
substantive change in the information on the student's most recent Form
I-20M since the form was initially issued; or
(B) A new Form I-20M-N if there has been any substantive change in
the information on the student's most recent Form I-20M since the form
was initially issued.
(ii) Student who transferred between schools. If an M-1 student has
been authorized to transfer between schools and is returning to the
United States from a temporary absence in order to attend the school to
which transfer was authorized as indicated on the student's Form I-20 ID
copy, the name of the school to which the student is destined does not
need to be specified in the student's visa.
(5) Period of stay. An alien admitted to the United States as an M-1
student is to be admitted for the period of time necessary to complete
the course of study indicated on Form I-20M plus thirty days within
which to depart from the United States or for one year, whichever is
less. An alien granted a
[[Page 271]]
change of nonimmigrant classification to that of an M-1 student is to be
given an extension of stay for the period of time necessary to complete
the course of study indicated on Form I-20M plus thirty days within
which to depart from the United States or for one year, whichever is
less.
(6) Conversion to M-1 status of students in established vocational
or other recognized nonacademic institutions, other than in language
training programs, who were F-1 students prior to June 1, 1982. A
student in an established vocational or other recognized nonacademic
institution, other than in a language training program, who is in status
as an F-1 student under section 101(a)(15)(F)(i) of the Act in effect
prior to June 1, 1982 and the student's F-2 spouse and children, if
applicable, are--
(i) Automatically converted to M-1 and M-2 status respectively; and
(ii) Limited to the authorized period of stay shown on their Forms
I-94 plus thirty days within which to depart from the United States or
to an authorized period of stay which expires one year from August 1,
1983, whichever is less.
(7) Period of stay of student already in M-1 status. A student in an
established vocational or other recognized nonacademic institution,
other than in a language training program, who is already in M-1 status
and the student's M-2 spouse and children, if applicable, are limited to
the authorized period of stay shown on their Forms I-94 plus thirty days
within which to depart from the United States or to an authorized period
of stay which expires one year from August 1, 1983, whichever is less.
(8) Issuance of new I-94. A nonimmigrant whose status is affected by
paragraph (m)(6) or (m)(7) of this section need not present Form I-94 to
the Service. Either paragraph constitutes official notification to a
student whose status is affected by it of that status. The Service will
issue a new Form I-94 to an alien whose status is affected by either
paragraph when that alien comes into contact with the Service.
(9) Full course of study. Successful completion of the course of
study must lead to the attainment of a specific educational or
vocational objective. A ``full course of study'' as required by section
101(a)(15)(M)(i) of the Act means--
(i) Study at a community college or junior college, certified by a
school official to consist of at least twelve semester or quarter hours
of instruction per academic term in those institutions using standard
semester, trimester, or quarter-hour systems, where all students
enrolled for a minimum of twelve semester or quarter hours are charged
full-time tuition or considered full-time for other administrative
purposes, or its equivalent (as determined by the district director)
except when the student needs a lesser course load to complete the
course of study during the current term;
(ii) Study at a postsecondary vocational or business school, other
than in a language training program except as provided in
Sec. 214.3(a)(2)(iv), which confers upon its graduates recognized
associate or other degrees or has established that its credits have been
and are accepted unconditionally by at least three institutions of
higher learning which are either: (1) A school (or school system) owned
and operated as a public educational institution by the United States or
a State or political subdivision thereof; or (2) a school accredited by
a nationally recognized accrediting body; and which has been certified
by a designated school official to consist of at least twelve hours of
instruction a week, or its equivalent as determined by the district
director;
(iii) Study in a vocational or other nonacademic curriculum, other
than in a language training program except as provided in
Sec. 214.3(a)(2)(iv), certified by a designated school official to
consist of at least eighteen clock hours of attendance a week if the
dominant part of the course of study consists of classroom instruction,
or at least twenty-two clock hours a week if the dominant part of the
course of study consists of shop or laboratory work; or
(iv) Study in a vocational or other nonacademic high school
curriculum, certified by a designated school official to consist of
class attendance for not less than the minimum number of hours a week
prescribed by the school for normal progress towards graduation.
[[Page 272]]
(10) Extension of stay--(i) Eligibility. An M-1 student may be
granted an extension of stay if it is established that the student--
(A) Is a bona fide nonimmigrant currently maintaining student
status; and
(B) Is able to, and in good faith intends to, continue to maintain
that status for the period for which the extension is granted.
(ii) Application. An M-1 student must apply for an extension of stay
on Form I-538. A student's M-2 spouse and children desiring an extension
of stay must be included in the application. A student's M-2 spouse or
children are not eligible for an extension of stay unless the student is
granted an extension of stay. The student must submit the application to
the Service office having jurisdiction over the school the student was
last authorized to attend at least fifteen days but not more than sixty
days before the expiration of the student's currently authorized stay.
The application must also be accompanied by the student's Form I-20 ID
copy and the Forms I-94 of the student's spouse and children, if
applicable.
(iii) Period of stay. If an application for extension of stay is
granted, the student and the student's spouse and children, if
applicable, are to be given an extension of stay for the period of time
necessary to complete the course of study plus thirty days within which
to depart from the United States or for one year, whichever is less. An
M-1 student who has been compelled by illness to interrupt or reduce a
course of study may be granted an extension of stay without being
required to change nonimmigrant classification provided that it is
established that the student will pursue a full course of study upon
recovery from the illness.
(11) School transfer--(i) Eligibility. An M-1 student may not
transfer to another school after six months from the date the student is
first admitted as, or changes nonimmigrant classification to that of, an
M-1 student unless the student is unable to remain at the school to
which the student was initially admitted due to circumstances beyond the
student's control. An M-1 student may be otherwise eligible to transfer
to another school if the student--
(A) Is a bona fide nonimmigrant;
(B) Has been pursuing a full course of study at the school the
student was last authorized to attend;
(C) Intends to pursue a full course of study at the school to which
the student intends to transfer; and
(D) Is financially able to attend the school to which the student
intends to transfer.
(ii) Procedure. An M-1 student must apply for permission to transfer
between schools on Form I-538 accompanied by the student's Form I-20 ID
copy and the Forms I-94 of the student's spouse and children, if
applicable. The Form I-538 must also be accompanied by Form I-20M-N
properly and completely filled out by the student and by the designated
official of the school which the student wishes to attend. The student
must submit the application for school transfer to the Service office
having jurisdiction over the school the student was last authorized to
attend. Sixty days after having filed an application for school
transfer, an M-1 student may effect the transfer subject to approval or
denial of the application. An M-1 student who transfers without
complying with this regulation or whose application is denied after
transfer pursuant to this regulation is considered to be out of status.
If the application is approved, the approval of the transfer will be
retroactive to the date of filing the application, and the student will
be granted an extension of stay for the period of time necessary to
complete the course of study indicated on Form I-20M plus thirty days
within which to depart from the United States or for one year, whichever
is less. The adjudicating officer must endorse the name of the school to
which transfer is authorized on the student's Form I-20 ID copy. The
officer must also endorse Form I-20N to indicate that a school transfer
has been authorized and forward it with Form I-20M to the Service's
processing center for file updating. The processing center shall forward
Form I-20N to the school to which the transfer has been authorized to
notify the school of the action taken.
(iii) Student who has not been pursuing a full course of study. If
an M-1 student who has not been pursuing a full course
[[Page 273]]
of study at the school the student was last authorized to attend desires
to attend a different school, the student must apply for reinstatement
to student status under paragraph (m)(16) of this section.
(12) Change in educational objective. An M-1 student may not change
educational objective.
(13) Employment. Except as provided in paragraph (m)(14) of this
section, M-1 students may not accept employment. A student already in M-
1 status on August 1, 1983 or a student converted to M-1 status under
paragraph (m)(6) of this section who was authorized off-campus
employment under the regulations previously in effect, however, may
continue to work until the date of expiration of the previously
authorized period of employment. The M-2 spouse and children of an M-1
student may not accept employment.
(14) Practical training--(i) When practical training may be
authorized. Temporary employment for practical training may be
authorized only after completion of the student's course of study.
(ii) Application. An M-1 student must apply for permission to accept
employment for practical training on Form I-765, with the fee required
by 8 CFR 103.7(b)(1), accompanied by his or her I-20 ID endorsed for
practical training by the DSO. The application must be submitted prior
to the expiration of the student's authorized period of stay and not
more than sixty days before nor more than thirty days after completion
of the course of study. The designated school official must certify on
Form I-538 that--
(A) The proposed employment is recommended for the purpose of
practical training;
(B) The proposed employment is related to the student's course of
study; and
(C) Upon the designated school official's information and belief,
employment comparable to the proposed employment is not available to the
student in the country of the student's foreign residence.
(iii) Duration of practical training. When the student is authorized
to engage in employment for practical training, he or she will be issued
an employment authorization document. The M-1 student may not begin
employment until he or she has been issued an employment authorization
document by the Service. One month of employment authorization will be
granted for each four months of full-time study that the M-1 student has
completed. However, an M-1 student may not engage in more than six
months of practical training in the aggregate. The student will not be
granted employment authorization if he or she cannot complete the
requested practical training within six months.
(iv) Temporary absence of M-1 student granted practical training. An
M-1 student who has been granted permission to accept employment for
practical training and who temporarily departs from the United States,
may be readmitted for the remainder of the authorized period indicated
on the student's Form I-20 ID copy. The student must be returning to the
United States to perform the authorized practical training. A student
may not be readmitted to begin practical training which was not
authorized prior to the student's departure from the United States.
(v) Effect of strike or other labor dispute. Authorization for all
employment for practical training is automatically suspended upon
certification by the Secretary of Labor or the Secretary's designee to
the Commissioner of Immigration and Naturalization or the Commissioner's
designee that a strike or other labor dispute involving a work stoppage
of workers is in progress in the occupation at the place of employment.
As used in this paragraph, ``place of employment'' means wherever the
employer or joint employer does business.
(15) Decision on application for extension, permission to transfer
to another school, or permission to accept employment for practical
training. The Service shall notify the applicant of the decision and, if
the application is denied, of the reason(s) for the denial. The
applicant may not appeal the decision.
(16) Reinstatement to student status--(i) General. A district
director may consider reinstating to M-1 student status an alien who was
admitted to the United States as, or whose status was
[[Page 274]]
changed to that of, an M-1 student and who has overstayed the authorized
period of stay or who has otherwise violated the conditions of his or
her status only if--
(A) The student establishes to the satisfaction of the district
director that the violation of status resulted from circumstances beyond
the student's control or that failure to receive reinstatement to lawful
M-1 status would result in extreme hardship to the student;
(B) The student makes a written request for reinstatement
accompanied by a properly completed Form I-20M-N from the school the
student is attending or intends to attend and the student's Form I-20 ID
copy;
(C) The student is currently pursuing, or intending to pursue, a
full course of study at the school which issued the Form I-20M-N;
(D) The student has not been employed without authorization; and
(E) The student is not deportable on any ground other than section
241(a)(1) (B), (C), or (D) of the Act.
(ii) Decision. If the district director reinstates the student, the
district director shall endorse Form I-20N and the student's Form I-20
ID copy to indicate that the student has been reinstated, return the
Form I-20 ID copy to the student, and forward Form I-20N with Form I-20M
to the Service's processing center for file updating. The processing
center shall forward Form I-20N to the school which the student is
attending or intends to attend to notify the school of the student's
reinstatement. If the district director does not reinstate the student,
the student may not appeal that decision.
(17) School code suffix on Form I-20M-N. Each school system, other
than a secondary school system approved prior to August 1, 1983 for
attendance by M-1 students must assign permanent consecutive numbers to
all schools within its system. The number of the school within the
system which an M-1 student is attending or intends to attend must be
added as a three-digit suffix following a decimal point after the school
file number on Form I-20M-N (e.g. .001). If an M-1 student is attending
or intends to attend a secondary school in a school system or a school
which is not part of a school system, a suffix consisting of a decimal
point followed by three zeros must be added after the school file number
on Form I-20M-N. The Service will assign school code suffixes to those
schools it approves beginning August 1, 1983. No Form I-20M-N will be
accepted after August 1, 1983 without the appropriate three-digit
suffix.
(n) Certain parents and children of section 101(a)(27)(I) special
immigrants--(1) Parent of special immigrant. Upon application, a parent
of a child accorded special immigrant status under section
101(a)(27)(I)(i) of the Act may be granted status under section
101(a)(15)(N)(i) of the Act as long as the permanent resident child
through whom eligibility is derived remains a child as defined in
section 101(b)(1) of the Act.
(2) Child of section 101(a)(27)(I) special immigrants and section
101(a)(15)(N)(i) nonimmigrants. Children of parents granted nonimmigrant
status under section 101(a)(15)(N)(i) of the Act, or of parents who have
been granted special immigrant status under section 101(a)(27)(I) (ii),
(iii) or (iv) of the Act may be granted status under section
101(a)(15)(N)(ii) of the Act for such time as each remains a child as
defined in section 101(b)(1) of the Act.
(3) Admission and extension of stay. A nonimmigrant granted (N)
status shall be admitted for not to exceed three years with extensions
in increments up to but not to exceed three years. Status as an (N)
nonimmigrant shall terminate on the date the child described in
paragraph (n)(1) or (n)(2) of this section no longer qualifies as a
child as defined in section 101(b)(1) of the Act.
(4) Employment. A nonimmigrant admitted in or granted (N) status is
authorized employment incident to (N) status without restrictions as to
location or type of employment.
(o) Aliens of extraordinary ability or achievement--(1)
Classifications--(i) General. Under section 101(a)(15)(O) of the Act, a
qualified alien may be authorized to come to the United States to
perform services relating to an event or events if petitioned for by an
employer. Under this nonimmigrant category, the alien may be classified
under section 101(a)(15)(O)(i) of the Act
[[Page 275]]
as an alien who has extraordinary ability in the sciences, arts,
education, business, or athletics, or who has a demonstrated record of
extraordinary achievement in the motion picture or television industry.
Under section 101(a)(15)(O)(ii) of the Act, an alien having a residence
in a foreign country which he or she has no intention of abandoning may
be classified as an accompanying alien who is coming to assist in the
artistic or athletic performance of an alien admitted under section
101(a)(15)(O)(i) of the Act. The spouse or child of an alien described
in section 101(a)(15)(O)(i) or (ii) of the Act who is accompanying or
following to join the alien is entitled to classification pursuant to
section 101(a)(15)(O)(iii) of the Act. These classifications are called
the O-1, O-2, and O-3 categories, respectively. The petitioner must file
a petition with the Service for a determination of the alien's
eligibility for O-1 or O-2 classification before the alien may apply for
a visa or seek admission to the United States. This paragraph sets forth
the standards and procedures applicable to these classifications.
(ii) Description of classifications. (A) An O-1 classification
applies to:
(1) An individual alien who has extraordinary ability in the
sciences, arts, education, business, or athletics which has been
demonstrated by sustained national or international acclaim and who is
coming temporarily to the United States to continue work in the area of
extraordinary ability; or
(2) An alien who has a demonstrated record of extraordinary
achievement in motion picture and/or television productions and who is
coming temporarily to the United States to continue work in the area of
extraordinary achievement.
(B) An O-2 classification applies to an accompanying alien who is
coming temporarily to the United States solely to assist in the artistic
or athletic performance by an O-1. The O-2 alien must:
(1) Be an integral part of the actual performances or events and
posses critical skills and experience with the O-1 alien that are not of
a general nature and which are not possessed by others; or
(2) In the case of a motion picture or television production, have
skills and experience with the O-1 alien which are not of a general
nature and which are critical, either based on a pre-existing and
longstanding working relationship or, if in connection with a specific
production only, because significant production (including pre- and
post-production) will take place both inside and outside the United
States and the continuing participation of the alien is essential to the
successful completion of the production.
(2) Filing of petitions--(i) General. A petitioner seeking to
classify an alien as an O-1 or O-2 shall file a petition on Form I-129,
Petition for Nonimmigrant Worker, only with the Service Center which has
jurisdiction in the area where the alien will work. The petition may not
be filed more than six months before the actual need for the alien's
services. An O-1 or O-2 petition will be adjudicated at the appropriate
Service Center, even in emergent situations. Only one beneficiary may be
included on an O-1 petition. The O-2 aliens must be filed for on a
separate petition from the O-1 alien. An O-1 or O-2 petition may be
filed by a U.S. employer, a foreign employer, or an established U.S.
agent. An O alien may not petition for himself or herself.
(ii) Evidence required to accompany a petition. Petitions for O
aliens shall be accompanied by the following:
(A) The evidence specified in the particular section for the
classification;
(B) Copies of any written contracts between the petitioner and the
alien beneficiary or, if there is no written contract, a summary of the
terms of the oral agreement under which the alien will be employed;
(C) An explanation of the nature of the events or activities, the
beginning and ending dates for the events or activities, and a copy of
any itinerary for the events or activities; and
(D) A written advisory opinion(s) from the appropriate consulting
entity or entities.
(iii) Form of documentation. The evidence submitted with an O
petition shall conform to the following:
(A) Affidavits, contracts, awards, and similar documentation must
reflect the nature of the alien's achievement
[[Page 276]]
and be executed by an officer or responsible person employed by the
institution, firm, establishment, or organization where the work was
performed.
(B) Affidavits written by present or former employers or recognized
experts certifying to the recognition and extraordinary ability, or in
the case of a motion picture or television production, the extraordinary
achievement of the alien, shall specifically describe the alien's
recognition and ability or achievement in factual terms and set forth
the expertise of the affiant and the manner in which the affiant
acquired such information.
(C) A legible photocopy of a document in support of the petition may
be submitted in lieu of the original. However, the original document
shall be submitted if requested by the Director.
(iv) Other filing situations--(A) Services in more than one
location. A petition which requires the alien to work in more than one
location must include an itinerary with the dates and locations of work
and must be filed with the Service Center which has jurisdiction in the
area where the petitioner is located. The address which the petitioner
specifies as its location on the petition shall be where the petitioner
is located for purposes of this paragraph. If the petitioner is a
foreign employer with no United States location, the petition shall be
filed with the Service Center having jurisdiction over the area where
the work will begin.
(B) Services for more than one employer. If the beneficiary will
work concurrently for more than one employer within the same time
period, each employer must file a separate petition with the Service
Center that has jurisdiction over the area where the alien will perform
services, unless an established agent files the petition.
(C) Change of employer. If an O-1 or O-2 alien in the United States
seeks to change employers, the new employer must file a petition and a
request to extend the alien's stay with the Service Center having
jurisdiction over the new place of employment. An O-2 alien may change
employers only in conjunction with a change of employers by the
principal O-1 alien. If the O-1 or O-2 petition was filed by an agent,
an amended petition must be filed with evidence relating to the new
employer and a request for an extension of stay.
(D) Amended petition. The petitioner shall file an amended petition
on Form I-129, with fee, with the Service Center where the original
petition was filed to reflect any material changes in the terms and
conditions of employment or the beneficiary's eligibility as specified
in the original approved petition. In the case of a petition filed for
an artist or entertainer, a petitioner may add additional performances
or engagements during the validity period of the petition without filing
an amended petition, provided the additional performances or engagements
require an alien of O-1 caliber.
(E) Agents as petitioners. An established United States agent may
file a petition in cases involving an alien who is traditionally self-
employed or uses agents to arrange short-term employment in his or her
behalf with numerous employers, and in cases where a foreign employer
authorizes the agent to act in its behalf. A petition filed by an agent
is subject to the following conditions:
(1) A person or company in business as an agent may file the
petition involving multiple employers as the representative of both the
employers and the beneficiary, if the supporting documentation includes
a complete itinerary of the event or events. The itinerary must specify
the dates of each service or engagement, the names and addresses of the
actual employers, and the names and addresses of the establishments,
venues, or locations where the services will be performed. A contract
between the employers and the beneficiary is required. The burden is on
the agent to explain the terms and conditions of the employment and to
provide any required documentation.
(2) An agent performing the function of an employer must provide the
contractual agreement between the agent and the beneficiary which
specifies the wage offered and the other terms and conditions of
employment of the beneficiary.
(F) Multiple beneficiaries. More than one O-2 accompanying alien may
be included on a petition if they are assisting the same O-1 alien for
the same events or performances, during the
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same period of time, and in the same location.
(3) Petition for alien of extraordinary ability or achievement (O-
1)--(i) General. Extraordinary ability in the sciences, arts, education,
business, or athletics, or extraordinary achievement in the case of an
alien in the motion picture or television industry, must be established
for an individual alien. An O-1 petition must be accompanied by evidence
that the work which the alien is coming to the United States to continue
is in the area of extraordinary ability, and that the alien meets the
criteria in paragraph (o)(3)(iii) or (iv) of this section.
(ii) Definitions. As used in this paragraph, the term:
Arts includes any field of creative activity or endeavor such as,
but not limited to, fine arts, visual arts, culinary arts, and
performing arts. Aliens engaged in the field of arts include not only
the principal creators and performers but other essential persons such
as, but not limited to, directors, set designers, lighting designers,
sound designers, choreographers, choreologists, conductors,
orchestrators, coaches, arrangers, musical supervisors, costume
designers, makeup artists, flight masters, stage technicians, and animal
trainers.
Event means an activity such as, but not limited to, a scientific
project, conference, convention, lecture series, tour, exhibit, business
project, academic year, or engagement. Such activity may include short
vacations, promotional appearances, and stopovers which are incidental
and/or related to the event. A group of related activities may also be
considered to be an event. In the case of an O-1 athlete, the event
could be the alien's contract.
Extraordinary ability in the field of arts means distinction.
Distinction means a high level of achievement in the field of arts
evidenced by a degree of skill and recognition substantially above that
ordinarily encountered to the extent that a person described as
prominent is renowned, leading, or well-known in the field of arts.
Extraordinary ability in the field of science, education, business,
or athletics means a level of expertise indicating that the person is
one of the small percentage who have arisen to the very top of the field
of endeavor.
Extraordinary achievement with respect to motion picture and
television productions, as commonly defined in the industry, means a
very high level of accomplishment in the motion picture or television
industry evidenced by a degree of skill and recognition significantly
above that ordinarily encountered to the extent that the person is
recognized as outstanding, notable, or leading in the motion picture or
television field.
Peer group means a group or organization which is comprised of
practitioners of the alien's occupation. If there is a collective
bargaining representative of an employer's employees in the occupational
classification for which the alien is being sought, such a
representative may be considered the appropriate peer group for purposes
of consultation.
(iii) Evidentiary criteria for an O-1 alien of extraordinary ability
in the fields of science, education, business, or athletics. An alien of
extraordinary ability in the fields of science, education, business, or
athletics must demonstrate sustained national or international acclaim
and recognition for achievements in the field of expertise by providing
evidence of:
(A) Receipt of a major, internationally recognized award, such as
the Nobel Prize; or
(B) At least three of the following forms of documentation:
(1) Documentation of the alien's receipt of nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;
(2) 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;
(3) Published material in professional or major trade publications
or major media about the alien, relating to the alien's work in the
field for which classification is sought, which shall include the title,
date, and author of such published material, and any necessary
translation;
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(4) Evidence of the alien's participation on a panel, or
individually, as a judge of the work of others in the same or in an
allied field of specialization to that for which classification is
sought;
(5) Evidence of the alien's original scientific, scholarly, or
business-related contributions of major significance in the field;
(6) Evidence of the alien's authorship of scholarly articles in the
field, in professional journals, or other major media;
(7) Evidence that the alien has been employed in a critical or
essential capacity for organizations and establishments that have a
distinguished reputation;
(8) Evidence that the alien has either commanded a high salary or
will command a high salary or other remuneration for services, evidenced
by contracts or other reliable evidence.
(C) If the criteria in paragraph (o)(3)(iii) of this section do not
readily apply to the beneficiary's occupation, the petitioner may submit
comparable evidence in order to establish the beneficiary's eligibility.
(iv) Evidentiary criteria for an O-1 alien of extraordinary ability
in the arts. To qualify as an alien of extraordinary ability in the
field of arts, the alien must be recognized as being prominent in his or
her field of endeavor as demonstrated by the following:
(A) Evidence that the alien has been nominated for, or has been the
recipient of, significant national or international awards or prizes in
the particular field such as an Academy Award, an Emmy, a Grammy, or a
Director's Guild Award; or
(B) At least three of the following forms of documentation:
(1) Evidence that the alien has performed, and will perform,
services as a lead or starring participant in productions or events
which have a distinguished reputation as evidenced by critical reviews,
advertisements, publicity releases, publications contracts, or
endorsements;
(2) Evidence that the alien has achieved national or international
recognition for achievements evidenced by critical reviews or other
published materials by or about the individual in major newspapers,
trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a
lead, starring, or critical role for organizations and establishments
that have a distinguished reputation evidenced by articles in
newspapers, trade journals, publications, or testimonials;
(4) Evidence that the alien has a record of major commercial or
critically acclaimed successes as evidenced by such indicators as title,
rating, standing in the field, box office receipts, motion pictures or
television ratings, and other occupational achievements reported in
trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for
achievements from organizations, critics, government agencies, or other
recognized experts in the field in which the alien is engaged. Such
testimonials must be in a form which clearly indicates the author's
authority, expertise, and knowledge of the alien's achievements; or
(6) Evidence that the alien has either commanded a high salary or
will command a high salary or other substantial remuneration for
services in relation to others in the field, as evidenced by contracts
or other reliable evidence; or
(C) If the criteria in paragraph (o)(3)(iv) of this section do not
readily apply to the beneficiary's occupation, the petitioner may submit
comparable evidence in order to establish the beneficiary's eligibility.
(v) Evidentiary criteria for an alien of extraordinary achievement
in the motion picture or television industry. To qualify as an alien of
extraordinary achievement in the motion picture or television industry,
the alien must be recognized as having a demonstrated record of
extraordinary achievement as evidenced by the following:
(A) Evidence that the alien has been nominated for, or has been the
recipient of, significant national or international awards or prizes in
the particular field such as an Academy Award, an Emmy, a Grammy, or a
Director's Guild Award; or
[[Page 279]]
(B) At least three of the following forms of documentation:
(1) Evidence that the alien has performed, and will perform,
services as a lead or starring participant in productions or events
which have a distinguished reputation as evidenced by critical reviews,
advertisements, publicity releases, publications contracts, or
endorsements;
(2) Evidence that the alien has achieved national or international
recognition for achievements evidenced by critical reviews or other
published materials by or about the individual in major newspapers,
trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a
lead, starring, or critical role for organizations and establishments
that have a distinguished reputation evidenced by articles in
newspapers, trade journals, publications, or testimonials;
(4) Evidence that the alien has a record of major commercial or
critically acclaimed successes as evidenced by such indicators as title,
rating, standing in the field, box office receipts, motion picture or
television ratings, and other occupational achievements reported in
trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for
achievements from organizations, critics, government agencies, or other
recognized experts in the field in which the alien is engaged. Such
testimonials must be in a form which clearly indicates the author's
authority, expertise, and knowledge of the alien's achievements; or
(6) Evidence that the alien has either commanded a high salary or
will command a high salary or other substantial remuneration for
services in relation to other in the field, as evidenced by contracts or
other reliable evidence.
(4) Petition for an O-2 accompanying alien--(i) General. An O-2
accompanying alien provides essential support to an O-1 artist or
athlete. Such aliens may not accompany O-1 aliens in the fields of
science, business, or education. Although the O-2 alien must obtain his
or her own classification, this classification does not entitle him or
her to work separate and apart from the O-1 alien to whom he or she
provides support. An O-2 alien must be petitioned for in conjunction
with the services of the O-1 alien.
(ii) Evidentiary criteria for qualifying as an O-2 accompanying
alien--(A) Alien accompanying an O-1 artist or athlete of extraordinary
ability. To qualify as an O-2 accompanying alien, the alien must be
coming to the United States to assist in the performance of the O-1
alien, be an integral part of the actual performance, and have critical
skills and experience with the O-1 alien which are not of a general
nature and which are not possessed by a U.S. worker.
(B) Alien accompanying an O-1 alien of extraordinary achievement. To
qualify as an O-2 alien accompanying and O-1 alien involved in a motion
picture or television production, the alien must have skills and
experience with the O-1 alien which are not of a general nature and
which are critical based on a pre-existing longstanding working
relationship or, with respect to the specific production, because
significant production (including pre- and post-production work) will
take place both inside and outside the United States and the continuing
participation of the alien is essential to the successful completion of
the production.
(C) The evidence shall establish the current essentiality, critical
skills, and experience of the O-2 alien with the O-1 alien and that the
alien has substantial experience performing the critical skills and
essential support services for the O-1 alien. In the case of a specific
motion picture or television production, the evidence shall establish
that significant production has taken place outside the United States,
and will take place inside the United States, and that the continuing
participation of the alien is essential to the successful completion of
the production.
(5) Consultation--(i) General. (A) Consultation with an appropriate
U.S. peer group (which could include a person or persons with expertise
in the field), labor and/or management organization regarding the nature
of the work to be done and the alien's qualifications is mandatory
before a petition for an O-1 or O-2 classification can be approved.
[[Page 280]]
(B) Except as provided in paragraph (o)(5)(i)(E) of this section,
evidence of consultation shall be in the form of a written advisory
opinion from a peer group (which could include a person or persons with
expertise in the field), labor and/or management organization with
expertise in the specific field involved.
(C) Except as provided in paragraph (o)(5)(i)(E) of this section,
the petitioner shall obtain a written advisory opinion from a peer group
(which could include a person or persons with expertise in the field),
labor, and/or management organization with expertise in the specific
field involved. The advisory opinion shall be submitted along with the
petition when the petition is filed. If the advisory opinion is not
favorable to the petitioner, the advisory opinion must set forth a
specific statement of facts which supports the conclusion reached in the
opinion. Advisory opinions must be submitted in writing and must be
signed by an authorized official of the group or organization.
(D) Except as provided in paragraph (o)(5)(i)(E) and (G) of this
section, written evidence of consultation shall be included in the
record in every approved O petition. Consultations are advisory and are
not binding on the Service.
(E) In a case where the alien will be employed in the field of arts,
entertainment, or athletics, and the Service has determined that a
petition merits expeditious handling, the Service shall contact the
appropriate labor and/or management organization and request an advisory
opinion if one is not submitted by the petitioner. The labor and/or
management organization shall have 24 hours to respond to the Service's
request. The Service shall adjudicate the petition after receipt of the
response from the consulting organization. The labor and/or management
organization shall then furnish the Service with a written advisory
opinion within 5 days of the initiating request. If the labor and/or
management organization fails to respond within 24 hours, the Service
shall render a decision on the petition without the advisory opinion.
(F) In a routine processing case where the petition is accompanied
by a written opinion from a peer group, but the peer group is not a
labor organization, the Director will forward a copy of the petition and
all supporting documentation to the national office of the appropriate
labor organization within 5 days of receipt of the petition. If there is
a collective bargaining representative of an employer's employees in the
occupational classification for which the alien is being sought, that
representative shall be the appropriate labor organization for purposes
of this section. The labor organization will then have 15 days from
receipt of the petition and supporting documents to submit to the
Service a written advisory opinion, comment, or letter of no objection.
Once the 15-day period has expired, the Director shall adjudicate the
petition in no more than 14 days. The Director may shorten this time in
his or her discretion for emergency reasons, if no unreasonable burden
would be imposed on any participant in the process. If the labor
organization does not respond within 15 days, the Director will render a
decision on the record without the advisory opinion.
(G) In those cases where it is established by the petitioner that an
appropriate peer group, including a labor organization, does not exist,
the Service shall render a decision on the evidence of record.
(ii) Consultation requirements for an O-1 alien for extraordinary
ability--(A) Content. Consultation with a peer group in the area of the
alien's ability (which may include a labor organization), or a person or
persons with expertise in the area of the alien's ability, is required
in an O-1 petition for an alien of extraordinary ability. If the
advisory opinion is not favorable to the petitioner, the advisory
opinion must set forth a specific statement of facts which supports the
conclusion reached in the opinion. If the advisory opinion is favorable
to the petitioner, it should describe the alien's ability and
achievements in the field of endeavor, describe the nature of the duties
to be performed, and state whether the position requires the services of
an alien of extraordinary ability. A consulting organization may also
submit a letter of
[[Page 281]]
no objection in lieu of the above if it has no objection to the approval
of the petition.
(B) Waiver of consultation of certain aliens of extraordinary
ability in the field of arts. Consultation for an alien of extraordinary
ability in the field of arts shall be waived by the Director in those
instances where the alien seeks readmission to the United States to
perform similar services within 2 years of the date of a previous
consultation. The director shall, within 5 days of granting the waiver,
forward a copy of the petition and supporting documentation to the
national office of an appropriate labor organization. Petitioners
desiring to avail themselves of the waiver should submit a copy of the
prior consultation with the petition and advise the Director of the
waiver request.
(iii) Consultation requirements for an O-1 alien of extraordinary
achievement. In the case of an alien of extraordinary achievement who
will be working on a motion picture or television production,
consultation shall be made with the appropriate union representing the
alien's occupational peers and a management organization in the area of
the alien's ability. If an advisory opinion is not favorable to the
petitioner, the advisory opinion must set forth a specific statement of
facts which supports the conclusion reached in the opinion. If the
advisory opinion is favorable to the petitioner, the written advisory
opinion from the labor and management organizations should describe the
alien's achievements in the motion picture or television field and state
whether the position requires the services of an alien of extraordinary
achievement. If a consulting organization has no objection to the
approval of the petition, the organization may submit a letter of no
objection in lieu of the above.
(iv) Consultation requirements for an O-2 accompanying alien.
Consultation with a labor organization with expertise in the skill area
involved is required for an O-2 alien accompanying an O-1 alien of
extraordinary ability. In the case of an O-2 alien seeking entry for a
motion picture or television production, consultation with a labor
organization and a management organization in the area of the alien's
ability is required. If an advisory opinion is not favorable to the
petitioner, the advisory opinion must set forth a specific statement of
facts which supports the conclusion reached in the opinion. If the
advisory opinion is favorable to the petitioner, the opinion provided by
the labor and/or management organization should describe the alien's
essentiality to, and working relationship with, the O-1 artist or
athlete and state whether there are available U.S. workers who can
perform the support services. If the alien will accompany an O-1 alien
involved in a motion picture or television production, the advisory
opinion should address the alien's skills and experience wit the O-1
alien and whether the alien has a pre-existing longstanding working
relationship with the O-1 alien, or whether significant production will
take place in the United States and abroad and if the continuing
participation of the alien is essential to the successful completion of
the production. A consulting organization may also submit a letter of no
objection in lieu of the above if it has no objection to the approval of
the petition.
(v) Organizations agreeing to provide advisory opinions. The Service
will list in its Operations Instructions for O classification those peer
groups, labor organizations, and/or management organizations which have
agreed to provide advisory opinions to the Service and/or petitioners.
The list will not be an exclusive or exhaustive list. The Service and
petitioners may use other sources, such as publications, to identify
appropriate peer groups, labor organizations, and management
organizations. Additionally, the Service will list in its Operations
Instructions those occupations or fields of endeavor where the
nonexistence of an appropriate consulting entity has been verified.
(6) Approval and validity of petition--(1) Approval. The Director
shall consider all of the evidence submitted and such other evidence as
may be independently required to assist in the adjudication. The
Director shall notify the petitioner of the approval of the petition on
Form I-797, Notice of Action. The approval notice shall include the
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alien beneficiary name, the classification, and the petition's period of
validity.
(ii) Recording the validity of petitions. Procedures for recording
the validity period of petitions are as follows;
(A) If a new O petition is approved before the date the petitioner
indicates the services will begin, the approved petition and approval
notice shall show the actual dates requested by the petitioner, not to
exceed the limit specified by paragraph (o)(6)(iii) of this section or
other Service policy.
(B) If a new 0 petition is approved after the date the petitioner
indicates the services will begin, the approved petition and approval
notice shall generally show a validity period commencing with the date
of approval and ending with the date requested by the petitioner, not to
exceed the limit specified by paragraph (o)(6)(iii) of this section or
other Service policy.
(C) If the period of services requested by the petitioner exceeds
the limit specified in paragraph (o)(6)(iii) of this section, the
petition shall be approved only up to the limit specified in that
paragraph.
(iii) Validity--(A) O-1 petition. An approved petition for an alien
classified under section 101(a)(15)(O)(i) of the Act shall be valid for
a period of time determined by the Director to be necessary to
accomplish the event or activity, not to exceed 3 years.
(B) O-2 petition. An approved petition for an alien classified under
section 101(a)(15)(O)(ii) of the Act shall be valid for a period of time
determined to be necessary to assist the O-1 alien to accomplish the
event or activity, not to exceed 3 years.
(iv) Spouse and dependents. The spouse and unmarried minor children
of the O-1 or O-2 alien beneficiary are entitled to O-3 nonimmigrant
classification, subject to the same period of admission and limitations
as the alien beneficiary, if they are accompanying or following to join
the alien beneficiary in the United States. Neither the spouse nor a
child of the alien beneficiary may accept employment unless he or she
has been granted employment authorization.
(7) Denial of petition--(i) Notice of intent to deny. When an
adverse decision is proposed on the basis of derogatory information of
which the petitioner is unaware, the Director shall notify the
petitioner of the intent to deny the petition and the basis for the
denial. The petitioner may inspect and rebut the evidence and will be
granted a period of 30 days from the date of the notice in which to do
so. All relevant rebuttal material will be considered in making a final
decision.
(ii) Notice of denial. The petitioner shall be notified of the
decision, the reasons for the denial, and the right to appeal the denial
under 8 CFR part 103.
(8) Revocation of approval of petition--(i) General. (A) The
petitioner shall immediately notify the Service of any changes in the
terms and conditions of employment of a beneficiary which may affect
eligibility under section 101(a)(15)(O) of the Act and paragraph (o) of
this section. An amended petition should be filed when the petitioner
continues to employ the beneficiary. If the petitioner no longer employs
the beneficiary, the petitioner shall send a letter explaining the
change(s) to the Director who approved the petition.
(B) The Director may revoke a petition at any time, even after the
validity of the petition has expired.
(ii) Automatic revocation. The approval of an unexpired petition is
automatically revoked if the petitioner, or the named employer in a
petition filed by an agent, goes out of business, files a written
withdrawal of the petition, or notifies the Service that the beneficiary
is no longer employed by the petitioner.
(iii) Revocation on notice--(A) Grounds for revocation. The Director
shall send to the petitioner a notice of intent to revoke the petition
in relevant part if is determined that:
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition;
(2) The statement of facts contained in the petition was not true
and correct;
(3) The petitioner violated the terms or conditions of the approved
petition;
(4) The petitioner violated the requirements of section
101(a)(15)(O) of the Act or paragraph (o) of this section; or
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(5) The approval of the petition violated paragraph (o) of this
section or involved gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of the date of the notice.
The Director shall consider all relevant evidence presented in deciding
whether to revoke the petition.
(9) Appeal of a denial or a revocation of a petition--(i) Denial. A
denied petition may be appealed under 8 CFR part 103.
(ii) Revocation. A petition that has been revoked on notice may be
appealed under 8 CFR part 103. Automatic revocations may not be
appealed.
(10) Admission. A beneficiary may be admitted to the United States
for the validity period of the petition, plus a period of up to 10 days
before the validity period begins and 10 days after the validity period
ends. The beneficiary may only engage in employment during the validity
period of the petition.
(11) Extention of visa petition validity. The petitioner shall file
a request to extend the validity of the original petition under section
101(a)(15)(O) of the Act on Form I-129, Petition for a Nonimmigrant
Worker, in order to continue or complete the same activities or events
specified in the original petition. Supporting documents are not
required unless requested by the Director. A petition extension may be
filed only if the validity of the original petition has not expired.
(12) Extension of stay--(i) Extension procedure. The petitioner
shall request extension of the alien's stay to continue or complete the
same event or activity by filing Form I-129, accompanied by a statement
explaining the reasons for the extension. The petitioner must also
request a petition extension. The dates of extension shall be the same
for the petition and the beneficiary's extension of stay. The alien
beneficiary must be physically present in the United States at the time
of filing of the extension of stay. Even though the request to extend
the petition and the alien's stay are combined on the petition, the
Director shall make a separate determination on each. If the alien
leaves the United States for business or personal reasons while the
extension requests are pending, the petitioner may request the Director
to cable notification of approval of the petition extension to the
consular office abroad where the alien will apply for a visa.
(ii) Extension period. An extension of stay may be authorized in
increments of up to 1 year for an O-1 or O-2 beneficiary to continue or
complete the same event or activity for which he or she was admitted
plus an additional 10 days to allow the beneficiary to get his or her
personal affairs in order.
(iii) Denial of an extension of stay. The denial of the request for
the alien's extension of temporary stay may not be appealed.
(13) Effect of approval of a permanent labor certification or filing
of a preference petition on O classification. The approval of a
permanent labor certification or the filing of a preference petition for
an alien shall not be a basis for denying an O-1 petition, a request to
extend such a petition, or the alien's application for admission, change
of status, or extension of stay. The alien may legitimately come to the
United States for a temporary period as an O-1 nonimmigrant and depart
voluntarily at the end of his or her authorized stay and, at the same
time, lawfully seek to become a permanent resident of the United States.
(14) Effect of a strike. (i) If the Secretary of Labor certifies to
the Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation at the place where
the beneficiary is to be employed, and that the employment of the
beneficiary would adversely affect the wages and working conditions of
U.S. citizens and lawful resident workers:
(A) A petition to classify an alien as a nonimmigrant as defined in
section 101(a)(15)(O) of the Act shall be denied; or
(B) If a petition has been approved, but the alien has not yet
entered the United States, or has entered the United States but has not
commenced employment, the approval of the petition
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is automatically suspended, and the application for admission on the
basis of the petition shall be denied.
(ii) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (o)(14)(i) of this section, the
Commissioner shall not deny a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and is participating in a strike or
labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been certified by the Secretary of
Labor, the alien shall not be deemed to be failing to maintain his or
her status solely on account of past, present, or future participation
in a strike or other labor dispute involving a work stoppage of workers
but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act and regulations promulgated
thereunder in the same manner as are all other O nonimmigrants;
(B) The status and authorized period of stay of such an alien is not
modified or extended in any way by virtue of his or her participation in
a strike or other labor dispute involving a work stoppage of workers;
and
(C) Although participation by an O nonimmigrant alien in a strike or
other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, and alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(15) Use of approval notice, Form I-797. The Service shall notify
the petitioner of Form I-797 whenever a visa petition or an extension of
a visa petition is approved under the O classification. The beneficiary
of an O petition who does not require a nonimmigrant visa may present a
copy of the approval notice at a Port-of-Entry to facilitate entry into
the United States. A beneficiary who is required to present a visa for
admission, and who visa will have expired before the date of his or her
intended return, may use Form I-797 to apply for a new or revalidated
visa during the validity period of the petition. A copy of Form I-797
shall be retained by the beneficiary and presented during the validity
of the petition when reentering the United States to resume the same
employment with the same petitioner.
(16) Return transportation requirement. In the case of an alien who
enters the United States under section 101(a)(15(O) of the Act and whose
employment terminates for reasons other than voluntary resignation, the
employer whose offer of employment formed the basis of such nonimmigrant
status and the petitioner are jointly and severally liable for the
reasonable cost of return transportation of the alien abroad. For the
purposes of this paragraph, the term ``abroad'' means the alien's last
place of residence prior to his or her entry into the United States.
(p) Artists, athletes, and entertainers--(1) Classifications--(i)
General. Under section 101(a)(15)(P) of the Act, an alien having a
residence in a foreign country which he or she has not intention or
abandoning may be authorized to come to the United States temporarily to
perform services for an employer or a sponsor. Under the nonimmigrant
category, the alien may be classified under section 101(a)(15)(P)(i) of
the Act as an alien who is coming to the United States to perform
services as an internationally recognized athlete, individually or as
part of a group or team, or member of an internationally recognized
entertainment group; under section 101(a)(15)(P)(ii) of the Act, who is
coming to perform as an artist or entertainer under a reciprocal
exchange program; under section 101(a)(15)(P)(iii) of the Act, as an
alien who is coming solely to perform, teach, or coach under a program
that is culturally unique; or under section 101(a)(15)(P)(iv) of the
Act, as the spouse or child of an alien described in section
101(a)(15)(P) (i), (ii), or (iii) of the Act who is accompanying or
following to join the alien. These classifications are called P-1, P-2,
P-3, and P-4 respectively. The employer or sponsor must file a petition
with the Service
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for review of the services to be performed and for determination of the
alien's eligibility for P-1, P-2, or P-3 classification before the alien
may apply for a visa or seek admission to the United States. This
paragraph sets forth the standards and procedures applicable to these
classifications.
(ii) Description of classification--(A) A P-1 classification applies
to an alien who is coming temporarily to the United States:
(1) To perform at specific athletic competition as an athlete,
individually or as part of a group or team, at an internationally
recognized level or performance, or
(2) To perform with, or as an integral and essential part of the
performance of, and entertainment group that has been recognized
internationally as being outstanding in the discipline for a sustained
and substantial period of time, and who has had a sustained and
substantial relationship with the group (ordinarily for at least 1 year)
and provides functions integral to the performance of the group.
(B) A P-2 classification applies to an alien who is coming
temporarily to the United States to perform as an artist or entertainer,
individually or as part of a group, or to perform as an integral part of
the performance of such a group, and who seeks to perform under a
reciprocal exchange program which is between an organization or
organizations in the United States and an organization or organizations
in one or more foreign states, and which provides for the temporary
exchange of artists and entertainers, or groups of artists and
entertainers.
(C) A P-3 classification applies to an alien artist or entertainer
who is coming temporarily to the United States, either individually or
as part of a group, or as an integral part of the performance of the
group, to perform, teach, or coach under a commercial or noncommercial
program that is culturally unique.
(2) Filing of petitions--(i) General. A P-1 petition for an athlete
or entertainment group shall be filed by a U.S. employer or sponsoring
organization, a foreign employer, or an established U.S. agent. A P-2
petition for an artist or entertainer in a reciprocal exchange program
shall be filed by the U.S. labor organization which negotiated the
reciprocal exchange agreement, the sponsoring organization, or an emp-
loyer in the United States. A P-3 petition for an artist or entertainer
in a culturally unique program shall be filed by the sponsoring
organization or an employer in the United States. Essential support
personnel may not be included on the petition filed for the principal
alien(s). These aliens require a separate petition. The petitioner shall
file a P petition on Form I-129, Petition for Nonimmigrant Worker, with
the Service Center which has jurisdiction in the area where the alien
will work. The petition may not be filed more than 6 months before the
actual need for the alien's services. A P-1, P-2, or P-3 petition shall
be adjudicated at the appropriate Service Center, even in emergent
situations.
(ii) Evidence required to accompany a petition for a P nonimmigrant.
Petitions for P nonimmigrant aliens shall be accompanied by the
following:
(A) The evidence specified in the specific section of this part for
the classification;
(B) Copies of any written contracts between the petitioner and the
alien beneficiary or, if there is no written contract, a summary of the
terms of the oral agreement under which the alien(s) will be employed;
(C) An explanation of the nature of the events or activities, the
beginning and ending dates for the events or activities, and a copy of
any itinerary for the events or activities; and
(D) A written consultation from a labor organization.
(iii) Form of documentation. The evidence submitted with an P
petition should conform to the following:
(A) Affidavits, contracts, awards, and similar documentation must
reflect the nature of the alien's achievement and be executed by an
officer or responsible person employed by the institution,
establishment, or organization where the work has performed.
(B) Affidavits written by present or former employers or recognized
experts certifying to the recognition and extraordinary ability, or, in
the case of a motion picture or television production, the extraordinary
achievement of
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the alien, which shall specifically describe the alien's recognition and
ability or achievement in factual terms. The affidavit must also set
forth the expertise of the affiant and the manner in which the affiant
acquired such information.
(C) A legible copy of a document in support of the petition may be
submitted in lieu of the original. However, the original document shall
be submitted if requested by the Director.
(iv) Other filing situations--(A) Services in more than one
location. A petition which requires the alien to work in more than one
location (e.g., a tour) must include an itinerary with the dates and
locations of the performances and must be filed with the Service Center
which has jurisdiction in the area where the petitioner is located. The
address which the petitioner specifies as its location on the petition
shall be where the petitioner is located for purposes of this paragraph
(p). If the petitioner is a foreign employer with no United States
location, the petition shall be filed with the Service Center that has
jurisdiction over the area where the employment will begin.
(B) Services for more than one employer. If the beneficiary(ies)
will work for more than one employer within the same time period, each
employer must file a separate petition with the Service Center that has
jurisdiction over the area where the alien will perform the services,
unless an established agent files the petition pursuant to paragraph
(p)(2)(iv) of this section.
(C) Change of employer. If a P-1, P-2, or P-3 alien in the United
States seeks to change employers or sponsors, the new employer or
sponsor must file both a petition and a request to extend the alien's
stay in the United States. If the petition was initially filed by an
agent, an amended petition must be filed with information relating to
the new employer and with a request for an extension of stay.
(D) Amended petition. The petitioner shall file an amended petition,
with fee, with the Service Center where the original petition was filed
to reflect any material changes in the terms and conditions of
employment or the beneficiary's eligibility as specified in the original
approved petition. A petitioner may add additional similar or comparable
performances, engagements, or competitions during the validity period of
the petition without filing an amended petition.
(E) Agents as petitioners. An established U.S. agent may file a
petition in cases involving workers who traditionally are self-employed
or use agents to arrange short-term employment on their behalf with
numerous employers, and in cases where a foreign employer authorizes the
agent to act in its behalf. A petition filed by an agent is subject to
the following conditions:
(1) A person or company in business as an agent may file the P
petition involving multiple employers as the representative of both the
employers and the beneficiary(ies) if the supporting documentation
includes a complete itinerary of services or engagements. The itinerary
shall specify the dates of each service or engagement, the names and
addresses of the actual employers, and the names and addresses of the
establishments, venues, or locations where the services will be
performed. In questionable cases, a contract between the employer(s) and
the beneficiary(ies) may be required. The burden is on the agent to
explain the terms and conditions of the employment and to provide any
required documentation.
(2) An agent performing the function of an employer must specify the
wage offered and the other terms and conditions of employment by
contractual agreement with the beneficiary(ies). The agent/employer must
also provide an itinerary of definite employment and information on any
other services planned for the period of time requested.
(F) Multiple beneficiaries. More than one beneficiary may be
included in a P petition if they are members of a group seeking
classification based on the reputation of the group as an entity, or if
they will provide essential support to P-1, P-2, or P-3 beneficiaries
performing in the same location and in the same occupation.
(G) Named beneficiaries. Petitions for P classification must include
the names of beneficiaries and other required information at the time of
filing.
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(H) Substitution of beneficiaries. Beneficiaries may be substituted
for P-1, P-2, and P-3 petitions for groups. To request substitution, the
petitioner shall submit a letter requesting such substitution, along
with a copy of the petitioner's approval notice, to the consular office
at which the alien will apply for a visa or the Port-of-Entry where the
alien will apply for admission. Essential support personnel may not be
substituted at consular offices or at Ports-of-Entry.
(3) Definitions. As used in this paragraph, the term:
Arts includes fields of creative activity or endeavor such as, but
not limited to, fine arts, visual arts, and performing arts.
Competition, event, or performance means an activity such as an
athletic competition, athletic season, tournament, tour, exhibit,
project, entertainment event, or engagement. Such activity could include
short vacations, promotional appearances for the petitioning employer
relating to the competition, event, or performance, and stopovers which
are incidental and/or related to the activity. An athletic competition
or entertainment event could include an entire season of performances A
group of related activities will also be considered an event. In the
case of a P-2 petition, the event may be the duration of the reciprocal
exchange agreement. In the case of a P-1 athlete, the event may be the
duration of the alien's contract.
Contract means the written agreement between the petitioner and the
beneficiary(ies) that explains the terms and conditions of employment.
The contract shall describe the services to be performed, and specify
the wages, hours of work, working conditions, and any fringe benefits.
Culturally unique means a style of artistic expression, methodology,
or medium which is unique to a particular country, nation, society,
class, ethnicity, religion, tribe, or other group of persons.
Essential support alien means a highly skilled, essential person
determined by the Director to be an integral part of the performance of
a P-1, P-2, or P-3 alien because he or she performs support services
which cannot be readily performed by a United States worker and which
are essential to the successful performance of services by the P-1, P-2,
alien. Such alien must have appropriate qualifications to perform the
services, critical knowledge of the specific services to be performed,
and experience in providing such support to the P-1, P-2, or P-3 alien.
Group means two or more persons established as one entity or unit to
perform or to provide a service.
Internationally recognized means having a high level of achievement
in a field evidenced by a degree of skill and recognition substantially
above that ordinarily encountered, to the extent that such achievement
is renowned, leading, or well-known in more than one country.
Member of a group means a person who is actually performing the
entertainment services.
Sponsor means an established organization in the United States which
will not directly employ a P-1, P-2, or P-3 alien but will assume
responsibility for the accuracy of the terms and conditions specified in
the petition.
Team means two or more persons organized to perform together as a
competitive unit in a competitive event.
(4) Petition for an internationally recognized athlete or member of
an internationally recognized entertainment group (P-1)--(i) Types of
classification--(A) P-1 classification as an athlete in an individual
capacity. A P-1 classification may be granted to an alien who is an
internationally recognized athlete based on his or her own reputation
and achievements as an individual. The alien must be coming to the
United States to perform services which require an internationally
recognized athlete.
(B) P-1 classification as a member of an entertainment group or an
athletic team. An entertainment group or athletic team consists of two
or more persons who function as a unit. The entertainment group or
athletic team as a unit must be internationally recognized as
outstanding in the discipline and must be coming to perform services
which require an internationally recognized entertainment group or
athletic team. A person who is a member of an internationally recognized
entertainment group or athletic team may be granted
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P-1 classification based on that relationship, but may not perform
services separate and apart from the entertainment group or athletic
team. An entertainment group must have been established for a minimum of
1 year, and 75 percent of the members of the group must have been
performing entertainment services for the group for a minimum of 1 year.
(ii) Criteria and documentary requirements for P-1 athletes--(A)
General. A P-1 athlete must have an internationally recognized
reputation as an international athlete or he or she must be a member of
a foreign team that is internationally recognized. The athlete or team
must be coming to the United States to participate in an athletic
competition which has a distinguished reputation and which requires
participation of an athlete or athletic team that has an international
reputation.
(B) Evidentiary requirements for an internationally recognized
athlete or athletic team. A petition for an athletic team must be
accompanied by evidence that the team as a unit has achieved
international recognition in the sport. Each member of the team is
accorded P-1 classification based on the international reputation of the
team. A petition for an athlete who will compete individually or as a
member of a U.S. team must be accompanied by evidence that the athlete
has achieved international recognition in the sport based on his or her
reputation. A petition for a P-1 athlete or athletic team shall include:
(1) A tendered contract with a major United States sports league or
team, or a tendered contract in an individual sport commensurate with
international recognition in that sport, if such contracts are normally
executed in the sport, and
(2) Documentation of at least two of the following:
(i) Evidence of having participated to a significant extent in a
prior season with a major United States sports league;
(ii) Evidence of having participated in international competition
with a national team;
(iii) Evidence of having participated to a significant extent in a
prior season for a U.S. college or university in intercollegiate
competition;
(iv) A written statement from an official of the governing body of
the sport which details how the alien or team is internationally
recognized;
(v) A written statement from a member of the sports media or a
recognized expert in the sport which details how the alien or team is
internationally recognized;
(vi) Evidence that the individual or team is ranked if the sport has
international rankings; or
(vii) Evidence that the alien or team has received a significant
honor or award in the sport.
(iii) Criteria and documentary requirements for members of an
internationally recognized entertainment group--(A) General. A P-1
classification shall be accorded to an entertainment group to perform as
a unit based on the international reputation of the group. Individual
entertainers shall not be accorded P-1 classification to perform
separate and apart from a group. Except as provided in paragraph
(p)(4)(iii)(C)(2) of this section, it must be established that the group
has been internationally recognized as outstanding in the discipline for
a sustained and substantial period of time. Seventy-five percent of the
members of the group must have had a sustained and substantial
relationship with the group for at least 1 year and must provide
functions integral to the group's performance.
(B) Evidentiary criteria for members of internationally recognized
entertainment groups. A petition for P-1 classification for the members
of an entertainment group shall be accompanied by:
(1) Evidence that the group has been established and performing
regularly for a period of at least 1 year;
(2) A statement from the petitioner listing each member of the group
and the exact dates for which each member has been employed on a regular
basis by the group; and
(3) Evidence that the group has been internationally recognized in
the discipline for a sustained and substantial period of time. This may
be demonstrated by the submission of evidence of the group's nomination
or receipt of significant international
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awards or prices for outstanding achievement in its field or by three of
the following different types of documentation:
(i) Evidence that the group has performed, and will perform, as a
starring or leading entertainment group in productions or events which
have a distinguished reputation as evidenced by critical reviews,
advertisements, publicity releases, publications, contracts, or
endorsements;
(ii) Evidence that the group has achieved international recognition
and acclaim for outstanding achievement in its field as evidenced by
reviews in major newspapers, trade journals, magazines, or other
published material;
(iii) Evidence that the group has performed, and will perform,
services as a leading or starring group for organizations and
establishments that have a distinguished reputation evidenced by
articles in newspapers, trade journals, publications, or testimonials;
(iv) Evidence that the group has a record of major commercial or
critically acclaimed successes, as evidenced by such indicators as
ratings; standing in the field; box office receipts; record, cassette,
or video sales; and other achievements in the field as reported in trade
journals, major newspapers, or other publications;
(v) Evidence that the group has achieved significant recognition for
achievements from organizations, critics, government agencies, or other
recognized experts in the field. Such testimonials must be in a form
that clearly indicates the author's authority, expertise, and knowledge
of the alien's achievements; or
(vi) Evidence that the group has either commanded a high salary or
will command a high salary or other substantial remuneration for
services comparable to other similarly situated in the field as
evidenced by contracts or other reliable evidence.
(C) Special provisions for certain entertainment groups--(1) Alien
circus personnel. The 1-year group membership requirement and the
international recognition requirement are not applicable to alien circus
personnel who perform as part of a circus or circus group, or who
constitute an integral and essential part of the performance of such
circus or circus group, provided that the alien or aliens are coming to
join a circus that has been recognized nationally as outstanding for a
sustained and substantial period of time or as part of such a circus.
(2) Certain nationally known entertainment groups. The Director may
waive the international recognition requirement in the case of an
entertainment group which has been recognized nationally as being
outstanding in its discipline for a sustained and substantial period of
time in consideration of special circumstances. An example of a special
circumstances would be when an entertainment group may find it difficult
to demonstrate recognition in more than one country due to such factors
as limited access to news media or consequences of geography.
(3) Waiver of 1-year relationship in exigent circumstances. The
Director may waive the 1-year relationship requirement for an alien who,
because of illness or unanticipated and exigent circumstances, replaces
an essential member of a P-1 entertainment group or an alien who
augments the group by performing a critical role. The Department of
State is hereby delegated the authority to waive the 1-year relationship
requirement in the case of consular substitutions involving P-1
entertainment groups.
(iv) P-1 classification as an essential support alien--(A) General.
An essential support alien as defined in paragraph (p)(3) of this
section may be granted P-1 classification based on a support
relationship with an individual P-1 athlete, P-1 athletic team, or a P-1
entertainment group.
(B) Evidentiary criteria for a P-1 essential support petition. A
petition for P-1 essential support personnel must be accompanied by:
(1) A consultation from a labor organization with expertise in the
area of the alien's skill;
(2) A statement describing the alien(s) prior essentiality, critical
skills, and experience with the principal alien(s); and
(3) A copy of the written contract or a summary of the terms of the
oral agreement between the alien(s) and the employer.
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(5) Petition for an artist or entertainer under a reciprocal
exchange program (P-2)--(i) General. (A) A P-2 classification shall be
accorded to artists or entertainers, individually or as a group, who
will be performing under a reciprocal exchange program which is between
an organization or organizations in the United States, which may include
a management organization, and an organization or organizations in one
or more foreign states and which provides for the temporary exchange of
artists and entertainers, or groups of artists and entertainers.
(B) The exchange of artists or entertainers shall be similar in
terms of caliber of artists or entertainers, terms and conditions of
employment, such as length of employment, and numbers of artists or
entertainers involved in the exchange. However, this requirement does
not preclude an individual for group exchange.
(C) An alien who is an essential support person as defined in
paragraph (p)(3) of this section may be accorded P-2 classification
based on a support relationship to a P-2 artist or entertainer under a
reciprocal exchange program.
(ii) Evidentiary requirements for petition involving a reciprocal
exchange program. A petition for P-2 classification shall be accompanied
by:
(A) A copy of the formal reciprocal exchange agreement between the
U.S. organization or organizations which sponsor the aliens and an
organization or organizations in a foreign country which will receive
the U.S. artist or entertainers;
(B) A statement from the sponsoring organization describing the
reciprocal exchange of U.S. artists or entertainers as it relates to the
specific petition for which P-2 classification is being sought;
(C) Evidence that an appropriate labor organization in the United
States was involved in negotiating, or has concurred with, the
reciprocal exchange of U.S. and foreign artists or entertainers; and
(D) Evidence that the aliens for whom P-2 classification is being
sought and the U.S. artists or entertainers subject to the reciprocal
exchange agreement are artists or entertainers with comparable skills,
and that the terms and conditions of employment are similar.
(iii) P-2 classification as an essential support alien--(A) General.
An essential support alien as defined in paragraph (p)(3) of this
section may be granted P-2 classification based on a support
relationship with a P-2 entertainer or P-2 entertainment group.
(B) Evidentiary criteria for a P-2 essential support petition. A
petition for P-2 essential support personnel must be accompanied by:
(1) A consultation from a labor organization with expertise in the
area of the alien's skill;
(2) A statement describing the alien(s) prior essentiality, critical
skills, and experience with the principal alien(s); and
(3) A copy of the written contract or a summary of the terms of the
oral agreement between the alien(s) and the employer.
(6) Petition for an artist or entertainer under a culturally unique
program--(i) General. (A) A P-3 classification may be accorded to
artists or entertainers, individually or as a group, coming to the
United States for the purpose of developing, interpreting, representing,
coaching, or teaching a unique or traditional ethnic, folk, cultural,
musical, theatrical, or artistic performance or presentation.
(B) The artist or entertainer must be coming to the United States to
participate in a cultural event or events which will further the
understanding or development of his or her art form. The program may be
of a commercial or noncommercial nature.
(ii) Evidentiary criteria for a petition involving a culturally
unique program. A petition for P-3 classification shall be accompanied
by:
(A) Affidavits, testimonials, or letters from recognized experts
attesting to the authenticity of the alien's or the group's skills in
performing, presenting, coaching, or teaching the unique or traditional
art form and giving the credentials of the expert, including the basis
of his or her knowledge of the alien's or group's skill, or
(B) Documentation that the performance of the alien or group is
culturally
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unique, as evidence by reviews in newspapers, journals, or other
published materials; and
(C) Evidence that all of the performances or presentations will be
culturally unique events.
(iii) P-3 classification as an essential support alien--(A) General.
An essential support alien as defined in paragraph (p)(3) of this
section may be granted P-3 classification based on a support
relationship with a P-3 entertainer or P-3 entertainment group.
(B) Evidentiary criteria for a P-3 essential support petition. A
petition for P-3 essential support personnel must be accompanied by:
(1) A consultation from a labor organization with expertise in the
area of the alien's skill;
(2) A statement describing the alien(s) prior essentiality, critical
skills and experience with the principal alien(s); and
(3) A copy of the written contract or a summary of the terms of the
oral agreement between the alien(s) and the employer.
(7) Consultation--(i) General. (A) Consultation with an appropriate
labor organization regarding the nature of the work to be done and the
alien's qualifications is mandatory before a petition for P-1, P-2, or
P-3 classification can be approved.
(B) Except as provided in paragraph (p)(7)(i)(E) of this section,
evidence of consultation shall be a written advisory opinion from an
appropriate labor organization.
(C) Except as provided in paragraph (p)(7)(i)(E) of this section,
the petitioner shall obtain a written advisory opinion from an
appropriate labor organization. The advisory opinion shall be submitted
along with the petition when the petition is filed. If the advisory
opinion is not favorable to the petitioner, the advisory opinion must
set forth a specific statement of facts which support the conclusion
reached in the opinion. Advisory opinions must be submitted in writing
and signed by an authorized official of the organization.
(D) Except as provided in paragraph (p)(7)(i) (E) and (F) of this
section, written evidence of consultation shall be included in the
record of every approved petition. Consultations are advisory and are
not binding on the Service.
(E) In a case where the Service has determined that a petition
merits expeditious handling, the Service shall contact the labor
organization and request an advisory opinion if one is not submitted by
the petitioner. The labor organization shall have 24 hours to respond to
the Service's request. The Service shall adjudicate the petition after
receipt of the response from the labor organization. The labor
organization shall then furnish the Service with a written advisory
opinion within 5 working days of the request. If the labor organization
fails to respond within 24 hours, the Service shall render a decision on
the petition without the advisory opinion.
(F) In those cases where it is established by the petitioner that an
appropriate labor organization does not exist, the Service shall render
a decision on the evidence of record.
(ii) Consultation requirements for P-1 athletes and entertainment
groups. Consultation with a labor organization that has expertise in the
area of the alien's sport or entertainment field is required in the case
of a P-1 petition. If the advisory opinion is not favorable to the
petitioner, the advisory opinion must set forth a specific statement of
facts which support the conclusion reached in the opinion. If the
advisory opinion provided by the labor organization is favorable to the
petitioner it should evaluate and/or describe the alien's or group's
ability and achievements in the field of endeavor, comment on whether
the alien or group is internationally recognized for achievements, and
state whether the services the alien or group is coming to perform are
appropriate for an internationally recognized athlete or entertainment
group. In lieu of the above, a labor organization may submit a letter of
no objection if it has no objection to the approval of the petition.
(iii) Consultation requirements for P-1 circus personnel. The
advisory opinion provided by the labor organization should comment on
whether the circus which will employ the alien has national recognition
as well as any other
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aspect of the beneficiary's or beneficiaries' qualifications which the
labor organization deems appropriate. If the advisory opinion is not
favorable to the petitioner, it must set forth a specific statement of
facts which support the conclusion reached in the opinion. In lieu of
the above, a labor organization may submit a letter of no objection if
it has no objection to the approval of the petition.
(iv) Consultation requirements for P-2 alien in a reciprocal
exchange program. In P-2 petitions where an artist or entertainer is
coming to the United States under a reciprocal exchange program,
consultation with the appropriate labor organization is required to
verify the existence of a viable exchange program. The advisory opinion
from the labor organization shall comment on the bona fides of the
reciprocal exchange program and specify whether the exchange meets the
requirements of paragraph (p)(5) of this section. If the advisory
opinion is not favorable to the petitioner, it must also set forth a
specific statement of facts which support the conclusion reached in the
opinion.
(v) Consultation requirements for P-3 in a culturally unique
program. Consultation with an appropriate labor organization is required
for P-3 petitions involving aliens in culturally unique programs. If the
advisory opinion is favorable to the petitioner, it should evaluate the
cultural uniqueness of the alien's skills, state whether the events are
cultural in nature, and state whether the event or activity is
appropriate for P-3 classification. If the advisory opinion is not
favorable to the petitioner, it must also set forth a specific statement
of facts which support the conclusion reached in the opinion. In lieu of
the above, a labor organization may submit a letter of no objection if
it has no objection to the approval of the petition.
(vi) Consultation requirements for essential support aliens. Written
consultation on petitions for P-1, P-2, or P-3 essential support aliens
must be made with a labor organization with expertise in the skill area
involved. If the advisory opinion provided by the labor organization is
favorable to the petitioner, it must evaluate the alien's essentiality
to and working relationship with the artist or entertainer, and state
whether United States workers are available who can perform the support
services. If the advisory opinion is not favorable to the petitioner, it
must also set forth a specific statement of facts which support the
conclusion reached in the opinion. A labor organization may submit a
letter of no objection if it has no objection to the approval of the
petition.
(vii) Labor organizations agreeing to provide consultations. The
Service shall list in its Operations Instructions for P classification
those organizations which have agreed to provide advisory opinions to
the Service and/or petitioners. The list will not be an exclusive or
exhaustive list. The Service and petitioners may use other sources, such
as publications, to identify appropriate labor organizations. The
Service will also list in its Operations Instructions those occupations
or fields of endeavor where it has been determined by the Service that
no appropriate labor organization exists.
(8) Approval and validity of petition--(i) Approval. The Director
shall consider all the evidence submitted and such other evidence as he
or she may independently require to assist in his or her adjudication.
The Director shall notify the petitioner of the approval of the petition
on Form I-797, Notice of Action. The approval notice shall include the
alien beneficiary's name and classification and the petition's period of
validity.
(ii) Recording the validity of petitions. Procedures for recording
the validity period of petitions are:
(A) If a new P petition is approved before the date the petitioner
indicates the services will begin, the approved petition and approval
notice shall show the actual dates requested by the petitioner as the
validity period, not to exceed the limit specified in paragraph
(p)(8)(iii) of this section or other Service policy.
(B) If a new P petition is approved after the date the petitioner
indicates the services will begin, the approved
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petition and approval notice shall generally show a validity period
commencing with the date of approval and ending with the date requested
by the petitioner, not to exceed the limit specified in paragraph
(p)(8)(iii) of this section or other Service policy.
(C) If the period of services requested by the petitioner exceeds
the limit specified in paragraph (p)(8)(iii) of this section, the
petition shall be approved only up to the limit specified in that
paragraph.
(iii) Validity. The approval period of a P petition shall conform to
the limits prescribed as follows:
(A) P-1 petition for athletes. An approved petition for an
individual athlete classified under section 101(a)(15)(P)(i) of the Act
shall be valid for a period up to 5 years. An approved petition for an
athletic team classified under section 101(a)(15)(P)(i) of the Act shall
be valid for a period of time determined by the Director to complete the
competition or event for which the alien team is being admitted, not to
exceed 1 year.
(B) P-1 petition for an entertainment group. An approved petition
for an entertainment group classified under section 101(a)(15)(P)(i) of
the Act shall be valid for a period of time determined by the Director
to be necessary to complete the performance or event for which the group
is being admitted, not to exceed 1 year.
(C) P-2 and P-3 petitions for artists or entertainers. An approved
petition for an artist or entertainer under section 101(a)(15)(P)(ii) or
(iii) of the Act shall be valid for a period of time determined by the
Director to be necessary to complete the event, activity, or performance
for which the P-2 or P-3 alien is admitted, not to exceed 1 year.
(D) Spouse and dependents. The spouse and unmarried minor children
of a P-1, P-2, or P-3 alien beneficiary are entitled to P-4 nonimmigrant
classification, subject to the same period of admission and limitations
as the alien beneficiary, if they are accompanying or following to join
the alien beneficiary in the United States. Neither the spouse nor a
child of the alien beneficiary may accept employment unless he or she
has been granted employment authorization.
(E) Essential support aliens. Petitions for essential support
personnel to P-1, P-2, and P-3 aliens shall be valid for a period of
time determined by the Director to be necessary to complete the event,
activity, or performance for which the P-1, P-2, or P-3 alien is
admitted, not to exceed 1 year.
(9) Denial of petition--(i) Notice of intent to deny. When an
adverse decision is proposed on the basis of derogatory information of
which the petitioner is unaware, the Director shall notify the
petitioner of the intent to deny the petition and the basis for the
denial. The petitioner may inspect and rebut the evidence and will be
granted a period of 30 days from the date of the notice in which to do
so. All relevant rebuttal material will be considered in making a final
decision.
(ii) Notice of denial. The petitioner shall be notified of the
decision, the reasons for the denial, and the right to appeal the denial
under 8 CFR part 103. There is no appeal from a decision to deny an
extension of stay to the alien or a change of nonimmigrant status.
(10) Revocation of approval of petition--(i) General. (A) The
petitioner shall immediately notify the Service of any changes in the
terms and conditions of employment of a beneficiary which may affect
eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of
this section. An amended petition should be filed when the petitioner
continues to employ the beneficiary. If the petitioner no longer employs
the beneficiary, the petitioner shall send a letter explaining the
change(s) to the Director who approved the petition.
(B) The Director may revoke a petition at any time, even after the
validity of the petition has expired.
(ii) Automatic revocation. The approval of an unexpired petition is
automatically revoked if the petitioner, or the employer in a petition
filed by an agent, goes out of business, files a written withdrawal of
the petition, or notifies the Service that the beneficiary is no longer
employed by the petitioner.
(iii) Revocation on notice--(A) Grounds for revocation. The Director
shall send to the petitioner a notice of intent to revoke the petition
in relevant part if he or she finds that:
[[Page 294]]
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition;
(2) The statement of facts contained in the petition were not true
and correct;
(3) The petitioner violated the terms or conditions of the approved
petition;
(4) The petitioner violated requirements of section 101(a)(15)(P) of
the Act or paragraph (p) of this section; or
(5) The approval of the petition violated paragraph (p) of this
section or involved gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of the date of the notice.
The Director shall consider all relevant evidence presented in deciding
whether to revoke the petition.
(11) Appeal of a denial or a revocation of a petition--(i) Denial. A
denied petition may be appealed under 8 CFR part 103.
(ii) Revocation. A petition that has been revoked on notice may be
appealed under 8 CFR part 103. Automatic revocations may not be
appealed.
(12) Admission. A beneficiary may be admitted to the United States
for the validity period of the petition, plus a period of up to 10 days
before the validity period begins and 10 days after the validity period
ends. The beneficiary may not work except during the validity period of
the petition.
(13) Extension of visa petition validity. The petitioner shall file
a request to extend the validity of the original petition under section
101(a)(15)(P) of the Act on Form I-129 in order to continue or complete
the same activity or event specified in the original petition.
Supporting documents are not required unless requested by the Director.
A petition extension may be filed only if the validity of the original
petition has not expired.
(14) Extension of stay--(i) Extension procedure. The petitioner
shall request extension of the alien's stay to continue or complete the
same event or activity by filing Form I-129, accompanied by a statement
explaining the reasons for the extension. The petitioner must also
request a petition extension. The extension dates shall be the same for
the petition and the beneficiary's stay. The beneficiary must be
physically present in the United States at the time the extension of
stay is filed. Even though the requests to extend the petition and the
alien's stay are combined on the petition, the Director shall make a
separate determination on each. If the alien leaves the United States
for business or personal reasons while the extension requests are
pending, the petitioner may request the Director to cable notification
of approval of the petition extension to the consular office abroad
where the alien will apply for a visa.
(ii) Extension periods--(A) P-1 individual athlete. An extension of
stay for a P-1 individual athlete and his or her essential support
personnel may be authorized for a period up to 5 years for a total
period of stay not to exceed 10 years.
(B) Other P-1, P-2, and P-3 aliens. An extension of stay may be
authorized in increments of 1 year for P-1 athletic teams, entertainment
groups, aliens in reciprocal exchange programs, aliens in culturally
unique programs, and their essential support personnel to continue or
complete the same event or activity for which they were admitted.
(15) Effect of approval of a permanent labor certification or filing
of a preference petition on P classification. The approval of a
permanent labor certification or the filing of a preference petition for
an alien shall not be a basis for denying a P petition, a request to
extend such a petition, or the alien's admission, change of status, or
extension of stay. The alien may legitimately come to the United States
for a temporary period as a P nonimmigrant and depart voluntarily at the
end of his or her authorized stay and, at the same time, lawfully seek
to become a permanent resident of the United States. This provision does
not include essential support personnel.
(16) Effect of a strike--(i) If the Secretary of Labor certifies to
the Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation at the place where
the beneficiary
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is to be employed, and that the employment of the beneficiary would
adversely affect the wages and working conditions of U.S. citizens and
lawful resident workers:
(A) A petition to classify an alien as a nonimmigrant as defined in
section 101(a)(15)(P) of the Act shall be denied; or
(B) If a petition has been approved, but the alien has not yet
entered the United States, or has entered the United States but has not
commenced employment, the approval of the petition is automatically
suspended, and the application for admission of the basis of the
petition shall be denied.
(ii) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (p)(16)(i) of this section, the
Commissioner shall not deny a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and is participating in a strike or
labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been certified by the Secretary of
Labor, the alien shall not be deemed to be failing to maintain his or
her status solely on account of past, present, or future participation
in a strike or other labor dispute involving a work stoppage of workers
but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act and regulations promulgated
thereunder in the same manner as all other P nonimmigrant aliens;
(B) The status and authorized period of stay of such an alien is not
modified or extended in any way by virtue of his or her participation in
a strike or other labor dispute involving a work stoppage of workers;
and
(C) Although participation by a P nonimmigrant alien in a strike or
other labor dispute involving a work stoppages of workers will not
constitute a ground for deportation, an alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired, will be subject to deportation.
(17) Use of approval of notice, Form I-797. The Service has notify
the petitioner on Form I-797 whenever a visa petition or an extension of
a visa petition is approved under the P classification. The beneficiary
of a P petition who does not require a nonimmigrant visa may present a
copy of the approved notice at a Port-of-Entry to facilitate entry into
the United States. A beneficiary who is required to present a visa for
admission, and whose visa expired before the date of his or her intended
return, may use Form I-797 to apply for a new or revalidated visa during
the validity period of the petition. The copy of Form I-797 shall be
retained by the beneficiary and present during the validity of the
petition when reentering the United States to resume the same employment
with the same petitioner.
(18) Return transportation requirement. In the case of an alien who
enters the United States under section 101(a)(15)(P) of the Act and
whose employment terminates for reasons other than voluntary
resignation, the employer whose offer of employment formed the basis of
suh nonimmigrant status and the petitioner are jointly and severally
liable for the reasonable cost of return transporation of the alien
abroad. For the purposes of this paragraph, the term ``abroad'' means
the alien's last place of residence prior to his or her entry into the
United States.
(q) International cultural exchange visitor--(1) Definitions. As
used in this section:
Country of nationality means the country of which the participant
was a national at the time of the petition seeking international
cultural exchange visitor status for him or her.
Doing business means the regular, systematic, and continuous
provision of goods and/or services (including lectures, seminars and
other types of cultural programs) by a qualified employer which has
employees, and does not include the mere presence of an agent or office
of the qualifying employer.
[[Page 296]]
Duration of program means the time in which a qualified employer is
conducting an approved cultural exchange program in the manner as
established by the employer's petition for program approval, provided
that the period of time does not exceed 15 months.
International cultural exchange visitor or cultural visitor means an
alien who has a residence in a foreign country which he or she has no
intention of abandoning, and who is coming temporarily to the United
States to take part in an international cultural exchange program
approved by the Attorney General.
Petitioner means the employer or its designated agent who has been
employed by the qualified employer on a permanent basis in an executive
or managerial capacity. The designated agent must be a United States
citizen, an alien lawfully admitted for permanent residence, or an alien
provided temporary residence status under sections 210 or 245A of the
Act.
Qualified employer means a United States or foreign firm,
corporation, non-profit organization, or other legal entity (including
its U.S. branches, subsidiaries, affiliates, and franchises) which
administers an international cultural exchange program designated by the
Attorney General in accordance with the provisions of section
101(a)(15)(Q) of the Act.
(2) Admission of cultural visitor--(i) General. A nonimmigrant alien
may be authorized to enter the United States as a participant in an
international cultural exchange program approved by the Attorney General
for the purpose of providing practical training, employment, and the
sharing of the history, culture, and traditions of the country of the
alien's nationality. The period of admission is the duration of the
approved international cultural exchange program or fifteen (15) months,
whichever is shorter. A nonimmigrant alien admitted under this provision
is classifiable as a cultural visitor in Q status.
(ii) Limitation on admission. Any alien who has been admitted into
the United States as a cultural visitor under section 101(a)(15)(Q) of
the Act shall not be readmittted in Q status unless the alien has
resided and been physically present outside the United States for the
immediate prior year. Brief trips to the United States for pleasure or
business during the immediate prior year do not break the continuity of
the one-year foreign residency.
(3) International cultural exchange program--(i) General. A United
States employer shall petition the Attorney General on Form I-129,
Petition for a Nonimmigrant Worker, for approval of an international
cultural exchange program which is designed to provide an opportunity
for the American public to learn about foreign cultures. The United
States employer must simultaneously petition on the same Form I-129 for
the authorization for one or more individually identified nonimmigrant
aliens to be admitted in Q status. These aliens are to be admitted to
engage in employment or training of which the essential element is the
sharing with the American public, or a segment of the public sharing a
common cultural interest, of the culture of the alien's country of
nationality. The cultural visitor's eligibility for admission will be
considered only if the international cultural exchange program is
approved.
(ii) Program validity. Each petition for an international cultural
exchange program will be approved for the duration of the program, which
may not exceed 15 months, plus 30 days to allow time for the
participants to make travel arrangements. Subsequent to the approval of
the initial petition, a new petition must be filed each time the
qualified employer wishes to bring in additional cultural visitors. A
qualified employer may replace or substitute a participant named on a
previously approved petition for the remainder of the program in
accordance with paragraph (q)(6) of this section. The replacement or
substituting alien may be admitted in Q status until the expiration date
of the approved petition.
(iii) Requirements for program approval. An international cultural
exchange program must meet all of the following requirements:
(A) Accessibility to the public. The international cultural exchange
program must take place in a school, museum, business or other
establishment
[[Page 297]]
where the American public, or a segment of the public sharing a common
cultural interest, is exposed to aspects of a foreign culture as part of
a structured program. Activities that take place in a private home or an
isolated business setting to which the American public, or a segment of
the public sharing a common cultural interest, does not have direct
access do not qualify.
(B) Cultural component. The international cultural exchange program
must have a cultural component which is an essential and integral part
of the cultural visitor's employment or training. The cultural component
must be designed, on the whole, to exhibit or explain the attitude,
customs, history, heritage, philosophy, or traditions of the cultural
visitor's country of nationality. A cultural component may include
structured instructional activities such as seminars, courses, lecture
series, or language camps.
(C) Work component. The cultural visitor's employment or training in
the United States may not be independent of the cultural component of
the international cultural exchange program. The work component must
serve as the vehicle to achieve the objectives of the cultural
component. The sharing of the culture of the cultural visitor's country
of nationality must result from his or her employment or training with
the qualified employer in the United States.
(iv) Requirements for cultural visitors. To be eligible for cultural
visitor status, an alien must be a bona fide nonimmigrant who:
(A) Is at least 18 years of age at the time the petition is filed;
(B) Is qualified to perform the service or labor or receive the type
of training stated in the petition;
(C) Has the ability to communicate effectively about the cultural
attributes of his or her country of nationality to the American public;
and
(D) Has resided and been physically present outside of the United
States for the immediate prior year, if he or she was previously
admitted as a cultural visitor.
(4) Supporting documentation--(i) Documentation by the employer. To
establish eligibility as a qualified employer, the petitioner must
submit with the completed Form I-129 appropriate evidence that the
employer:
(A) Maintains an established international cultural exchange program
in accordance with the requirements set forth in paragraph (q)(3) of
this section;
(B) Has designated a qualified employee as a representative who will
be responsible for administering the international cultural exchange
program and who will serve as liaison with the Immigration and
Naturalization Service;
(C) Is actively doing business in the United States;
(D) Will offer the alien(s) wages and working conditions comparable
to those accorded local domestic workers similarly employed; and
(E) Has the financial ability to remunerate the participant(s).
(ii) Certification by petitioner. (A) The petitioner must give the
date of birth, country of nationality, level of education, position
title, and a brief job description for each cultural visitor included in
the petition. The petitioner must verify and certify that the
prospective participants are qualified to perform the service or labor,
or receive the type of training, described in the petition.
(B) The petitioner must report the cultural visitors' wages and
certify that such cultural exchange visitors are offered wages and
working conditions comparable to those accorded to local domestic
workers similarly employed.
(iii) Supporting documentation as prescribed in paragraphs (q)(4)(i)
and (q)(4)(ii) of this section must accompany a petition filed on Form
I-129 in all cases except where the employer files multiple petitions in
the same calendar year. When petitioning to repeat a previously approved
cultural exchange program, a copy of the initial program approval notice
may be submitted in lieu of the documentation required under paragraph
(q)(4)(i) of this section. The Service will request additional
documentation only when clarification is needed.
(5) Filing of petitions--(i) General. A United States employer
seeking to bring in cultural visitors must file a petition on Form I-
129, Petition for a
[[Page 298]]
Nonimmigrant Worker, with the applicable fee, along with appropriate
documentation. The petition and accompanying documentation should be
filed with either the service center having jurisdiction over the
employer's headquarters or the service center having jurisdiction over
the area where the cultural visitors will perform services or labor or
will receive training. A new petition on Form I-129, with the applicable
fee, must be filed with the appropriate service center each time a
qualified employer wants to bring in additional cultural visitors. Each
person named on an approved petition will be admitted only for the
duration of the approved program. Replacement or substitution may be
made for any person named on an approved petition as provided in
paragraph (q)(6) of this section, but only for the remainder of the
approved program.
(ii) Petition for multiple participants. The petitioner may include
more than one participant on the petition. The petitioner shall include
the name, date of birth, nationality, and other identifying information
required on the petition for each participant. The petitioner must also
indicate the United States consulate at which each participant will
apply for a Q visa. For participants who are visa-exempt under 8 CFR
212.1(a), the petitioner must indicate the port of entry at which each
participant will apply for admission to the United States.
(iii) Service, labor, or training in more than one location. A
petition which requires the cultural visitor to engage in employment or
training (with the same employer) in more than one location must include
an itinerary with the dates and locations of the services, labor, or
training.
(iv) Services, labor, or training for more than one employer. If the
cultural visitor will perform services or labor for, or receive training
from, more than one employer, each employer must file a separate
petition with the service center having jurisdiction over the area where
the alien will perform services or labor, or receive training. The
cultural visitor may work part-time for multiple employers provided that
each employer has an approved petition for the alien.
(v) Change of employers. If a cultural visitor is in the United
States under section 101(a)(15)(Q) of the Act and decides to change
employers, the new employer must file a petition. However, the total
period of time the cultural visitor may stay in the United States
remains limited to fifteen (15) months.
(6) Substitution or replacement of participants. The petitioner may
substitute for or replace a person named on a previously approved
petition for the remainder of the program without filing a new Form I-
129. The substituting cultural visitor must meet the qualification
requirements prescribed in paragraph (q)(3)(iv) of this section. To
request substitution or replacement, the petitioner shall, by letter,
notify the consular office at which the alien will apply for a visa or,
in the case of visa-exempt aliens, the Service office at the port of
entry where the alien will apply for admission. A copy of the petition's
approval notice must be included with the letter. The petitioner must
state the date of birth, country of nationality, level of education, and
position title of each prospective cultural visitor and must certify
that each is qualified to perform the service or labor or receive the
type of training described in the approved petition. The petitioner must
also indicate each cultural visitor's wages and certify that the
cultural visitor is offered wages and working conditions comparable to
those accorded to local domestic workers in accordance with paragraph
(q)(11)(ii) of this section.
(7) Approval of petition--(i) The director shall consider all the
evidence submitted and request other evidence as he or she may deem
necessary.
(ii) The director shall notify the petitioner and the appropriate
United States consulate(s) of the approval of a petition. For
participants who are visa-exempt under 8 CFR 212.1(a), the director
shall give notice of the approval to the director of the port of entry
at which each such participant will apply for admission to the United
States. The notice of approval shall include the name of the cultural
visitors, their classification, and the petition's period of validity.
(iii) An approved petition for an alien classified under section
101(a)(15)(Q) of
[[Page 299]]
the Act is valid for the length of the approved program or fifteen (15)
months, whichever is shorter.
(iv) A petition shall not be approved for an alien who has an
aggregate of fifteen (15) months in the United States under section
101(a)(15)(Q) of the Act, unless the alien has resided and been
physically present outside the United States for the immediate prior
year.
(8) Denial of the petition--(i) Notice of denial. The petitioner
shall be notified of the denial of a petition, the reasons for the
denial, and the right to appeal the denial under part 103 of this
chapter.
(ii) Multiple participants. A petition for multiple cultural
visitors may be denied in whole or in part.
(9) Revocation of approval of petition--(i) General. The petitioner
shall immediately notify the appropriate Service center of any changes
in the employment of a participant which would affect eligibility under
paragraph (q) of this section.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the qualifying employer goes out of business,
files a written withdrawal of the petition, or terminates the approved
international cultural exchange program prior to its expiration date.
(iii) Revocation on notice. The director shall send the petitioner a
notice of intent to revoke the petition in whole or in part if he or she
finds that:
(A) The cultural visitor is no longer employed by the petitioner in
the capacity specified in the petition, or if the cultural visitor is no
longer receiving training as specified in the petition;
(B) The statement of facts contained in the petition was not true
and correct;
(C) The petitioner violated the terms and conditions of the approved
petition; or
(D) The Service approved the petition in error.
(iv) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
period of time allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of receipt of the notice. The
director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If the petition is
revoked in part, the remainder of the petition shall remain approved and
a revised approval notice shall be sent to the petitioner with the
revocation notice.
(v) Appeal of a revocation of a petition. Revocation with notice of
a petition in whole or in part may be appealed to the Associate
Commissioner for Examinations under part 103 of this chapter. Automatic
revocation may not be appealed.
(10) Extension of stay. An alien's total period of stay in the
United States under section 101(a)(15)(Q) of the Act cannot exceed
fifteen (15) months. The authorized stay of a cultural visitor may be
extended within the 15-month limit if he or she is the beneficiary of a
new petition filed in accordance with paragraph (q)(3) of this section.
The new petition, if filed by the same employer, should include a copy
of the previous petition's approval notice and a letter from the
petitioner indicating any terms and conditions of the previous petition
that have changed.
(11) Employment provisions--(i) General. An alien classified under
section 101(a)(15)(Q) of the Act may be employed only by the qualified
employer through which the alien attained Q nonimmigrant status. An
alien in this class is not required to apply for an employment
authorization document. Employment outside the specific program violates
the terms of the alien's Q nonimmigrant status within the meaning of
section 241(a)(1)(C)(i) of the Act.
(ii) Wages and working conditions. The wages and working conditions
of a cultural visitor must be comparable to those accorded to domestic
workers similarly employed in the geographical area of the alien's
employment. The employer must certify on the petition that such
conditions are met as in accordance with paragraph (q)(4)(iii)(B) of
this section.
(r) Religious workers--(1) General. Under section 101(a)(15)(R) of
the Act, an alien who, for at least the two (2) years immediately
preceding the time of application for admission, has been a
[[Page 300]]
member of a religious denomination having a bona fide nonprofit
religious organization in the United States, may be admitted temporarily
to the United States to carry on the activities of a religious worker
for a period not to exceed five (5) years. The alien must be coming to
the United States for one of the following purposes: solely to carry on
the vocation of a minister of the religious denomination; to work for
the religious organization at the request of the organization in a
professional capacity; or to work for the organization, or a bona fide
organization which is affiliated with the religious denomination, at the
request of the organization in a religious vocation or occupation.
(2) Definitions. As used in this section:
Bona fide nonprofit religious organization in the United States
means an organization exempt from taxation as described in section
501(c)(3) of the Internal Revenue Code of 1986 as it relates to
religious organizations, or one that has never sought such exemption but
establishes to the satisfaction of the Service that it would be eligible
therefor if it had applied for tax exempt status.
Bona fide organization which is affiliated with the religious
denomination means an organization which is both closely associated with
the religious denomination and exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to
religious organizations.
Minister means an individual duly authorized by a recognized
religious denomination to conduct religious worship and to perform other
duties usually performed by authorized members of the clergy of that
religion. In all cases, there must be a reasonable connection between
the activities performed and the religious calling of the minister. The
term does not include a lay preacher not authorized to perform such
duties.
Professional capacity means an activity in a religious vocation or
occupation for which the minimum of a United States baccalaureate degree
or a foreign equivalent degree is required.
Religious denomination means a religious group or community of
believers having some form of ecclesiastical government, a creed or
statement of faith, some form of worship, a formal or informal code of
doctrine and discipline, religious services and ceremonies, established
places of religious worship, and religious congregations, or comparable
indicia of a bona fide religious denomination. For the purposes of this
definition, an interdenominational religious organization which is
exempt from taxation pursuant to section 501(c)(3) of the Internal
Revenue Code of 1986 will be treated as a religious denomination.
Religious occupation means an activity which relates to a
traditional religious function. Examples of persons in religious
occupations include, but are not limited to, liturgical workers,
religious instructors, religious conselors, cantors, catechists, workers
in religious hospitals or religious health care facilities,
missionaries, religious translators, or religious broadcasters. This
group does not include janitors, maintenance workers, clerks, fund
raisers, or persons involved solely in the solicitation of donations.
Religious vocation means a calling to religious life evidenced by
the demonstration of commitment practiced in the religious denomination,
such as the taking of vows. Examples of persons with a religious
vocation include, but are not limited to, nuns, monks, and religious
brothers and sisters.
(3) Initial evidence. An alien seeking classification as a
nonimmigrant religious worker shall present to a United States consular
officer, or, if visa exempt, to an immigration officer at a United
States port of entry, documentation which establishes to the
satisfaction of the consular or immigration officer that the alien will
be providing services to a bona fide nonprofit religious organization in
the United States or to an affiliated religious organization as defined
in paragraph (r)(2) of this section, and that the alien meets the
criteria to perform such services. If the alien is in the United States
in another valid nonimmigrant classification and desires to change
nonimmigrant status to classification as a nonimmigrant religious
worker, this documentation should be presented with an application for
change of status (Form I-129, Petition for a
[[Page 301]]
Nonimmigrant Worker). The documentation shall consist of:
(i) Evidence that the organization qualifies as a non-profit
organization, in the form of either:
(A) Documentation showing that it is exempt from taxation in
accordance with section 501(c)(3) of the Internal Revenue Code of 1986
as it relates to religious organizations (in appropriate cases, evidence
of the organization's assets and methods of operation and the
organization's papers of incorporation under applicable State law may be
requested); or
(B) Such documentation as is required by the Internal Revenue
Service to establish eligibility for exemption under section 501(c)(3)
of the Internal Revenue Code of 1986 as it relates to religious
organizations; and
(ii) A letter from an authorized official of the specific
organizational unit of the religious organization which will be
employing the alien or engaging the alien's services in the United
States. If the alien is to be employed, this letter should come from the
organizational unit that will maintain the alien's Form I-9, Employment
Eligibility Verification, that is, the organizational unit that is
either paying the alien a salary or otherwise remunerating the alien in
exchange for services rendered. This letter must establish:
(A) That, if the alien's religious membership was maintained, in
whole or in part, outside the United States, the foreign and United
States religious organizations belong to the same religious
denomination;
(B) That, immediately prior to the application for the nonimmigrant
visa or application for admission to the United States, the alien has
the required two (2) years of membership in the religious denomination;
(C) As appropriate:
(1) That, if the alien is a minister, he or she is authorized to
conduct religious worship for that denomination and to perform other
duties usually performed by authorized members of the clergy of that
denomination, including a detailed description of those duties;
(2) That, if the alien is a religious professional, he or she has at
least a United States baccalaureate degree or its foreign equivalent and
that at least such a degree is required for entry into the religious
profession; or
(3) That, if the alien is to work in another religious vocation or
occupation, he or she is qualified in the religious vocation or
occupation. Evidence of such qualifications may include, but need not be
limited to, evidence establishing that the alien is a monk, nun, or
religious brother or that the type of work to be done relates to a
traditional religious function;
(D) The arrangements made, if any, for remuneration for services to
be rendered by the alien, including the amount and source of any salary,
a description of any other types of remuneration to be received
(including housing, food, clothing, and any other benefits to which a
monetary value may be affixed), and a statement whether such
remuneration shall be in exchange for services rendered;
(E) The name and location of the specific organizational unit of the
religious organization for which the alien will be providing services
within the United States; and
(F) If the alien is to work in a non-ministerial and nonprofessional
capacity for a bona fide organization which is affiliated with a
religious denomination, the existence of the affiliation; and
(iii) Any appropriate additional evidence which the examining
officer may request relating to the religious organization, the alien,
or the affiliated organization. Such additional documentation may
include, but need not be limited to, diplomas, degrees, financial
statements, or certificates of ordination. No prior petition, labor
certification, or prior approval shall be required.
(4) Initial admission. The initial admission of a religious worker,
spouse, and unmarried children under twenty-one years of age shall not
exceed three (3) years. A Form I-94, Arrival-Departure Record, shall be
provided to every alien who qualifies for admission as an R
nonimmigrant. The Form I-94 for the religious worker shall be endorsed
with the name and location of the specific organizational unit of the
religious organization for which the alien will be providing services
within the United
[[Page 302]]
States. The admission symbol for the religious worker shall be R-1; the
admission symbol for the worker's spouse and childen shall be R-2.
(5) Extension of stay. The organizational unit of the religious
organization employing the nonimmigrant religious worker admitted under
this section shall use Form I-129, Petition for a Nonimmigrant Worker,
along with the appropriate fee, to extend the stay of the worker. The
petition shall be filed at the Service Center having jurisdiction over
the place of employment. An extension may be authorized for a period of
up to two (2) years. The worker's total period of stay may not exceed
five (5) years. The petition must be accompanied by a letter from an
authorized official of the organizational unit confirming the worker's
continuing eligibility for classification as an R-1 nonimmigrant.
(6) Change of employers. A different or additional organizational
unit of the religious denomination seeking to employ or engage the
services of a religious worker admitted under this section shall file
Form I-129 with the appropriate fee. The petition shall be filed with
the Service Center having jurisdiction over the place of employment. The
petition must be accompanied by evidence establishing that the alien
will continue to qualify as a religious worker under this section. Any
unauthorized change to a new religious organizational unit will
constitute a failure to maintain status within the meaning of section
241(a)(1)(C)(i) of the Act.
(7) Limitation on stay. An alien who has spent five (5) years in the
United States under section 101(a)(15)(R) of the Act may not be
readmitted to the United States under the R visa classification unless
the alien has resided and been physically present outside the United
States for the immediate prior year, except for brief visits for
business or pleasure. Such visits do not end the period during which an
alien is considered to have resided and been physically present outside
the United States, but time spent during such visits does not count
toward the requirement of this paragraph.
(8) Spouse and children. The religious worker's spouse and unmarried
children under twenty-one years of age are entitled to the same
nonimmigrant classification and length of stay as the religious worker,
if the religious worker will be employed and residing primarily in the
United States, and if the spouse and unmarried minor children are
accompanying or following to join the religious worker in the United
States. Neither the spouse nor any child may accept employment while in
the United States in R-2 nonimmigrant status.
(s) NATO aliens--(1) General. Aliens classified as NATO-1 through
NATO-4 are members of the armed forces of a country signatory to Article
III of the Status of Forces Agreement (NATO). They are normally exempt
from inspection under 8 CFR 235.1(c). Aliens classified as NATO-5 or -6
are civilian employees of the armed forces of a NATO member and may be
authorized admission for the duration of employment and assignment with
the NATO member in the United States. Aliens classified as NATO-7 who
are employed by NATO-1 through NATO-4 aliens may be admitted for
duration of status; if employed by NATO-5 or -6 aliens, admission may be
authorized for not more than two years.
(2) Extensions of Stay. Any alien classified as a NATO-7 as the
employee of a NATO-5 or -6 may be granted extensions of stay in
increments of not more than one year.
(3) Employment. The dependents of an alien classified NATO-1 through
NATO-7 may request authorization for employment if the state of their
nationality has a reciprocal employment agreement with the Department of
State. The names of the foreign states which have reciprocal employment
agreements are available from the Department of State, Office of
Consular Affairs, and the District Offices of the Service.
(t) Alien witnesses and informants--(1) Alien witness or informant
in criminal matter. An alien may be classified as an S-5 alien witness
or informant under the provisions of section 101(a)(15)(S)(i) of the Act
if, in the exercise of discretion pursuant to an application on Form I-
854 by an interested federal or state law enforcement authority
[[Page 303]]
(``LEA''), it is determined by the Commissioner that the alien:
(i) Possesses critical reliable information concerning a criminal
organization or enterprise;
(ii) Is willing to supply, or has supplied, such information to
federal or state LEA; and
(iii) Is essential to the success of an authorized criminal
investigation or the successful prosecution of an individual involved in
the criminal organization or enterprise.
(2) Alien witness or informant in counterterrorism matter. An alien
may be classified as an S-6 alien counterterrorism witness or informant
under the provisions of section 101(a)(15)(S)(ii) of the Act if it is
determined by the Secretary of State and the Commissioner acting
jointly, in the exercise of their discretion, pursuant to an application
on Form I-854 by an interested federal LEA, that the alien:
(i) Possesses critical reliable information concerning a terrorist
organization, enterprise, or operation;
(ii) Is willing to supply or has supplied such information to a
federal LEA;
(iii) Is in danger or has been placed in danger as a result of
providing such information; and
(iv) Is eligible to receive a reward under section 36(a) of the
State Department Basic Authorities Act of 1956, 22 U.S.C. 2708(a).
(3) Spouse, married and unmarried sons and daughters, and parents of
alien witness or informant in criminal or counterterrorism matter. An
alien spouse, married or unmarried son or daughter, or parent of an
alien witness or informant may be granted derivative S classification
(S-7) when accompanying, or following to join, the alien witness or
informant if, in the exercise of discretion by, with respect to
paragraph (t)(1) of this section, the Commissioner, or, with respect to
paragraph (t)(2) of this section, the Secretary of State and the
Commissioner acting jointly, consider it to be appropriate. A
nonimmigrant in such derivative S-7 classification shall be subject to
the same period of admission, limitations, and restrictions as the alien
witness or informant and must be identified by the requesting LEA on the
application Form I-854 in order to qualify for S nonimmigrant
classification. Family members not identified on the Form I-854
application will not be eligible for S nonimmigrant classification.
(4) Request for S nonimmigrant classification. An application on
Form I-854, requesting S nonimmigrant classification for a witness or
informant, may only be filed by a federal or state LEA (which shall
include a federal or state court or a United States Attorney's Office)
directly in need of the information to be provided by the alien witness
or informant. The completed application is filed with the Assistant
Attorney General, Criminal Division, Department of Justice, who will
forward only properly certified applications that fall within the
numerical limitation to the Commissioner, Immigration and Naturalization
Service, for approval, pursuant to the following process.
(i) Filing request. For an alien to qualify for status as an S
nonimmigrant, S nonimmigrant classification must be requested by an LEA.
The LEA shall recommend an alien for S nonimmigrant classification by:
Completing Form I-854, with all necessary endorsements and attachments,
in accordance with the instructions on, or attached to, that form, and
agreeing, as a condition of status, that no promises may be, have been,
or will be made by the LEA that the alien will or may remain in the
United States in S or any other nonimmigrant classification or parole,
adjust status to that of lawful permanent resident, or otherwise attempt
to remain beyond a 3-year period other than by the means authorized by
section 101(a)(15)(S) of the Act. The alien, including any derivative
beneficiary who is 18 years or older, shall sign a statement, that is
part of or affixed to Form I-854, acknowledging awareness that he or she
is restricted by the terms of S nonimmigrant classification to the
specific terms of section 101(a)(15)(S) of the Act as the exclusive
means by which he or she may remain permanently in the United States.
(A) District director referral. Any district director or Service
officer who receives a request by an alien, an eligible
[[Page 304]]
LEA, or other entity seeking S nonimmigrant classification shall advise
the requestor of the process and the requirements for applying for S
nonimmigrant classification. Eligible LEAs seeking S nonimmigrant
classification shall be referred to the Commissioner.
(B) United States Attorney certification. The United States Attorney
with jurisdiction over a prosecution or investigation that forms the
basis for a request for S nonimmigrant classification must certify and
endorse the application on Form I-854 and agree that no promises may be,
have been, or will be made that the alien will or may remain in the
United States in S or any other nonimmigrant classification or parole,
adjust status to lawful permanent resident, or attempt to remain beyond
the authorized period of admission.
(C) LEA certification. LEA certifications on Form I-854 must be made
at the seat-of-government level, if federal, or the highest level of the
state LEA involved in the matter. With respect to the alien for whom S
nonimmigrant classification is sought, the LEA shall provide evidence in
the form of attachments establishing the nature of the alien's
cooperation with the government, the need for the alien's presence in
the United States, all conduct or conditions which may constitute a
ground or grounds of excludability, and all factors and considerations
warranting a favorable exercise of discretionary waiver authority by the
Attorney General on the alien's behalf. The attachments submitted with a
request for S nonimmigrant classification may be in the form of
affidavits, statements, memoranda, or similar documentation. The LEA
shall review Form I-854 for accuracy and ensure the alien understands
the certifications made on Form I-854.
(D) Filing procedure. Upon completion of Form I-854, the LEA shall
forward the form and all required attachments to the Assistant Attorney
General, Criminal Division, United States Department of Justice, at the
address listed on the form.
(ii) Assistant Attorney General, Criminal Division review--(A)
Review of information. Upon receipt of a complete application for S
nonimmigrant classification on Form I-854, with all required
attachments, the Assistant Attorney General, Criminal Division, shall
ensure that all information relating to the basis of the application,
the need for the witness or informant, and grounds of excludability
under section 212 of the Act has been provided to the Service on Form I-
854, and shall consider the negative and favorable factors warranting an
exercise of discretion on the alien's behalf. No application may be
acted on by the Assistant Attorney General unless the eligible LEA
making the request has proceeded in accordance with the instructions on,
or attached to, Form I-854 and agreed to all provisions therein.
(B) Advisory panel. Where necessary according to procedures
established by the Assistant Attorney General, Criminal Division, an
advisory panel, composed of representatives of the Service, Marshals
Service, Federal Bureau of Investigation, Drug Enforcement
Administration, Criminal Division, and the Department of State, and
those representatives of other LEAs, including state and federal courts
designated by the Attorney General, will review the completed
application and submit a recommendation to the Assistant Attorney
General, Criminal Division, regarding requests for S nonimmigrant
classification. The function of this advisory panel is to prioritize
cases in light of the numerical limitation in order to determine which
cases will be forwarded to the Commissioner.
(C) Assistant Attorney General certification. The certification of
the Assistant Attorney General, Criminal Division, to the Commissioner
recommending approval of the application for S nonimmigrant
classification shall contain the following:
(1) All information and attachments that may constitute, or relate
to, a ground or grounds of excludability under section 212(a) of the
Act;
(2) Each section of law under which the alien appears to be
inadmissible;
(3) The reasons that waiver(s) of inadmissibility are considered to
be justifiable and in the national interest;
(4) A detailed statement that the alien is eligible for S
nonimmigrant classification, explaining the nature of
[[Page 305]]
the alien's cooperation with the government and the government's need
for the alien's presence in the United States;
(5) The intended date of arrival;
(6) The length of the proposed stay in the United States;
(7) The purpose of the proposed stay; and
(8) A statement that the application falls within the statutorily
specified numerical limitation.
(D) Submission of certified requests for S nonimmigrant
classification to Service. (1) The Assistant Attorney General, Criminal
Division, shall forward to the Commissioner only qualified applications
for S-5 nonimmigrant classification that have been certified in
accordance with the provisions of this paragraph and that fall within
the annual numerical limitation.
(2) The Assistant Attorney General Criminal Division, shall forward
to the Commissioner applications for S-6 nonimmigrant classification
that have been certified in accordance with the provisions of this
paragraph, certified by the Secretary of State or eligibility for S-6
classification, and that fall within the annual numerical limitation.
(5) Decision on application. (i) The Attorney General's authority to
waive grounds of excludability pursuant to section 212 of the Act is
delegated to the Commissioner and shall be exercised with regard to S
nonimmigrant classification only upon the certification of the Assistant
Attorney General, Criminal Division. Such certification is nonreviewable
as to the matter's significance, importance, and/or worthwhileness to
law enforcement. The Commissioner shall make the final decision to
approve or deny a request for S nonimmigrant classification certified by
the Assistant Attorney General, Criminal Division.
(ii) Decision to approve application. Upon approval of the
application on Form I-854, the Commissioner shall notify the Assistant
Attorney General, Criminal Division, the Secretary of State, and Service
officers as appropriate. Admission shall be authorized for a period not
to exceed 3 years.
(iii) Decision to deny application. In the event the Commissioner
decides to deny an application for S nonimmigrant classification on Form
I-854, 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 deny.
(6) Submission of requests for S nonimmigrant visa classification to
Secretary of State. No request for S nonimmigrant visa classification
may be presented to the Secretary of State unless it is approved and
forwarded by the Commissioner.
(7) Conditions of status. An alien witness or informant is
responsible for certifying and fulfilling the terms and conditions
specified on Form I-854 as a condition of status. The LEA that assumes
responsibility for the S nonimmigrant must:
(i) Ensure that the alien:
(A) Reports quarterly to the LEA on his or her whereabouts and
activities, and as otherwise specified on Form I-854 or pursuant to the
terms of his or her S nonimmigrant classification;
(B) Notifies the LEA of any change of home or work address and phone
numbers or any travel plans;
(C) Abides by the law and all specified terms, limitations, or
restrictions on the visa, Form I-854, or any waivers pursuant to
classification; and
(D) Cooperates with the responsible LEA in accordance with the terms
of his or her classification and any restrictions on Form I-854;
(ii) Provide the Assistant Attorney General, Criminal Division, with
the name of the control agent on an ongoing basis and provide a
quarterly report indicating the whereabouts, activities, and any other
control information required on Form I-854 or by the Assistant Attorney
General;
[[Page 306]]
(iii) Report immediately to the Service any failure on the alien's
part to:
(A) Report quarterly;
(B) Cooperate with the LEA;
(C) Comply with the terms and conditions of the specific S
nonimmigrant classification; or
(D) Refrain from criminal activity that may render the alien
deportable, which information shall also be forwarded to the Assistant
Attorney General, Criminal Division; and
(iv) Report annually to the Assistant Attorney General, Criminal
Division, on whether the alien's S nonimmigrant classification and
cooperation resulted in either:
(A) A successful criminal prosecution or investigation or the
failure to produce a successful resolution of the matter; or
(B) The prevention or frustration of terrorist acts or the failure
to prevent such acts.
(v) Assist the alien in his or her application to the Service for
employment authorization.
(8) Annual report. The Assistant Attorney General, Criminal
Division, in consultation with the Commissioner, shall compile the
statutorily mandated annual report to the Committee on the Judiciary of
the House of Representatives and the Committee on the Judiciary of the
Senate.
(9) Admission. The responsible LEA will coordinate the admission of
an alien in S nonimmigrant classification with the Commissioner as to
the date, time, place, and manner of the alien's arrival.
(10) Employment. An alien classified under section 101(a)(15)(S) of
the Act may apply for employment authorization by filing Form I-765,
Application for Employment Authorization, with fee, in accordance with
the instructions on, or attached to, that form pursuant to
Sec. 274a.12(c)(21) of this chapter.
(11) Failure to maintain status. An alien classified under section
101(a)(15)(S) of the Act shall abide by all the terms and conditions of
his or her S nonimmigrant classification imposed by the Attorney
General. If the terms and conditions of S nonimmigrant classification
will not be or have not been met, or have been violated, the alien is
convicted of any criminal offense punishable by a term of imprisonment
of 1 year or more, is otherwise rendered deportable, or it is otherwise
appropriate or in the public interest to do so, the Commissioner shall
proceed to deport an alien pursuant to the terms of 8 CFR 242.26. In the
event the Commissioner decides to deport an alien witness or informant
in S nonimmigrant classification, 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 deport.
(12) Change of classification. (i) An alien in S nonimmigrant
classification is prohibited from changing to any other nonimmigrant
classification.
(ii) An LEA may request that any alien lawfully admitted to the
United States and maintaining status in accordance with the provisions
of Sec. 248.1 of this chapter, except for those aliens enumerated in 8
CFR 248.2, have his or her nonimmigrant classification changed to that
of an alien classified pursuant to section 101(a)(15)(S) of the Act as
set forth in 8 CFR 248.3(h).
(Title VI of the Health Professions Educational Assistance Act of 1976
(Pub. L. 94-484; 90 Stat. 2303); secs. 103 and 214, Immigration and
Nationality Act (8 U.S.C. 1103 and 1184))
[38 FR 35425, Dec. 28, 1973]
Editorial Note: For Federal Register citations affecting Sec. 214.2,
see the List of CFR Sections Affected in the Finding Aids section in
this volume.
Sec. 214.3 Petitions for approval of schools.
(a) Filing petition--(1) General. A school or school system seeking
approval for attendance by nonimmigrant students under sections
101(a)(15)(F)(i) or 101 (a)(15)(M)(i) of the Act, or both,
[[Page 307]]
shall file a petition on Form I-17 with the district director having
jurisdiction over the place in which the school or school system is
located. Separate petitions are required for different schools in the
same school system located within the jurisdiction of different district
directors. A petition by a school system must specifically identify by
name and address those schools included in the petition. The petition
must also state whether the school or school system is seeking approval
for attendance of nonimmigrant students under section 101(a)(15)(F)(i)
or 101(a)(15)(M)(i) of the Act or both.
(2) Approval for F-1 or M-1 classification, or both--(i) F-1
classification. The following schools may be approved for attendance by
nonimmigrant students under section 101(a)(15)(F)(i) of the Act:
(A) A college or university, i.e., an institution of higher learning
which awards recognized bachelor's, master's doctor's or professional
degrees.
(B) A community college or junior college which provides instruction
in the liberal arts or in the professions and which awards recognized
associate degrees.
(C) A seminary.
(D) A conservatory.
(E) An academic high school.
(F) An elementary school.
(G) An institution which provides language training, instruction in
the liberal arts or fine arts, instruction in the professions, or
instruction or training in more than one of these disciplines.
(ii) M-1 classification. The following schools are considered to be
vocational or nonacademic institutions and may be approved for
attendance by nonimmigrant students under section 101(a)(15)(M)(i) of
the Act:
(A) A community college or junior college which provides vocational
or technical training and which awards recognized associate degrees.
(B) A vocational high school.
(C) A school which provides vocational or nonacademic training other
than language training.
(iii) Both F-1 and M-1 classification. A school may be approved for
attendance by nonimmigrant students under both sections 101(a)(15)(F)(i)
and 101(a)(15)(M)(i) of the Act if it has both instruction in the
liberal arts, fine arts, language, religion, or the professions and
vocational or technical training. In that case, a student whose primary
intent is to pursue studies in liberal arts, fine arts, language,
religion, or the professions at the school is classified as a
nonimmigrant under section 101(a)(15)(F)(i) of the Act. A student whose
primary intent is to pursue vocational or technical training at the
school is classified as a nonimmigrant under section 101(a)(15)(M)(i) of
the Act.
(iv) English language training for a vocational student. A student
whose primary intent is to pursue vocational or technical training who
takes English language training at the same school solely for the
purpose of being able to understand the vocational or technical course
of study is classified as a nonimmigrant under section 101(a)(15)(M)(i)
of the Act.
(b) Supporting documents. Pursuant to sections 101(a)(15) (F) and
(M) of the Immigration and Nationality Act, the Service has consulted
with the Department of Education and determined that petitioning
institutions must submit certain supporting documents as follows. A
petitioning school or school system owned and operated as a public
educational institution or system by the United States or a State or a
political subdivision thereof shall submit a certification to that
effect signed by the appropriate public official who shall certify that
he or she is authorized to do so. A petitioning private or parochial
elementary or secondary school system shall submit a certification
signed by the appropriate public official who shall certify that he or
she is authorized to do so to the effect that it meets the requirements
of the State or local public educational system. Any other petitioning
school shall submit a certification by the appropriate licensing,
approving, or accrediting official who shall certify that he or she is
authorized to do so to the effect that it is licensed, approved, or
accredited. In lieu of such certification a school which offers courses
recognized by a State-approving agency as appropriate for study for
veterans under the provisions of 38 U.S.C. 3675 and 3676 may submit a
statement of recognition signed
[[Page 308]]
by the appropriate official of the State approving agency who shall
certify that he or she is authorized to do so. A charter shall not be
considered a license, approval, or accreditation. A school catalogue, if
one is issued, shall also be submitted with each petition. If not
included in the catalogue, or if a catalogue is not issued, the school
shall furnish a written statement containing information concerning the
size of its physical plant, nature of its facilities for study and
training, educational, vocational or professional qualifications of the
teaching staff, salaries of the teachers, attendance and scholastic
grading policy, amount and character of supervisory and consultative
services available to students and trainees, and finances (including a
certified copy of the accountant's last statement of school's net worth,
income, and expenses). Neither a catalogue nor such a written statement
need be included with a petition submitted by:
(1) A school or school system owned and operated as a public
educational institution or system by the United States or a State or a
political subdivision thereof;
(2) A school accredited by a nationally recognized accrediting body;
or
(3) A secondary school operated by or as part of a school so
accredited.
(c) Other evidence. The Service has also consulted with the
Department of Education regarding the following types of institutions
and determined that they must submit additional evidence. If the
petitioner is a vocational, business, or language school, or American
institution of research recognized as such by the Attorney General, it
must submit evidence that its courses of study are accepted as
fulfilling the requirements for the attainment of an educational,
professional, or vocational objective, and are not avocational or
recreational in character. If the petitioner is an institution of higher
education and is not within the category described in paragraph (b) (1)
or (2) of this section, it must submit evidence that it confers upon its
graduates recognized bachelor, master, doctor, professional, or divinity
degrees, or if it does not confer such degrees that its credits have
been and are accepted unconditionally by at least three such
institutions of higher learning. If the petitioner is an elementary or
secondary school and is not within the category described in paragraph
(b) (1) or (3) of this section, it must submit evidence that attendance
at the petitioning institution satisfies the compulsory attendance
requirements of the State in which it is located and that the
petitioning school qualifies graduates for acceptance by schools of a
higher educational level within the category described in paragraph (b)
(1), (2), or (3) of this section.
(d) Interview of petitioner. An authorized representative of the
petitioner shall appear in person before an immigration officer prior to
the adjudication of the petition to be interviewed under oath concerning
the eligibility of the school for approval. An interview may be waived
at the discretion of the district director.
(e) Approval of petition--(1) Eligibility. To be eligible for
approval, the petitioner must establish that--
(i) It is a bona fide school;
(ii) It is an established institution of learning or other
recognized place of study;
(iii) It possesses the necessary facilities, personnel, and finances
to conduct instruction in recognized courses; and
(iv) It is, in fact, engaged in in-struction in those courses.
(2) General. Upon approval of a petition, the district director
shall notify the petitioner. An approved school is required to report
immediately to the district director having jurisdication over the
school any material modification to its name, address or curriculum for
a determination of continued eligibility for approval. The approval of a
school is valid as long as the school operates in the manner represented
in the petition. The approval is valid only for the type of program and
student specified in the approval notice. The approval may be withdrawn
in accordance with the provisions of Sec. 214.4.
(f) Denial of petition. If the petition is denied, the petitioner
shall be notified of the reasons therefor and of his right to appeal in
accordance with the provisions of part 103 of this chapter.
[[Page 309]]
(g) Recordkeeping and reporting requirements--(1) Recordkeeping
requirements. An approved school must keep records containing certain
specific information and documents relating to each F-1 or M-1 student
to whom it has issued a Form I-20A or I-20M while the student is
attenidng the school and until the school notifies the Service, in
accordance with the requirements of paragraph (g)(2) of this section,
that the student is not pursuing a full course of study. The school must
keep a record of having complied with the reporting requirements for at
least one year. If a student who is out of status is restored to status,
the school the student is attending is responsible for maintaining these
records following receipt of notification from the Service that the
student has been restored to status. The designated school official must
make the information and documents required by this paragraph available
to and furnish them to any Service officer upon request. The information
and documents which the school must keep on each student are as follows:
(i) Name.
(ii) Date and place of birth.
(iii) Country of citizenship.
(iv) Address.
(v) Status, i.e., full-time or part-time.
(vi) Date of commencement of studies.
(vii) Degree program and field of study.
(viii) Whether the student has been certified for practical
training, and the beginning and end dates of certification.
(ix) Termination date and reason, if known.
(x) The documents referred to in paragraph (k) of this section.
(xi) The number of credits completed each semester.
(xii) A photocopy of the student's I-20 ID Copy.
A Service officer may request any or all of the above data on any
individual student or class of students upon notice. This notice will be
in writing if requested by the school. The school will have three work
days to respond to any request for information concerning an individual
student, and ten work days to respond to any request for information
concerning a class of students. If the Service requests information on a
student who is being held in custody, the school will respond orally on
the same day the request for information is made, and the Service will
provide a written notification that the request was made after the fact,
if the school so desires. The Service will first attempt to gain
information concerning a class of students from the Service's record
system.
(2) Reporting requirements. At intervals specified by the Service
but not more frequently than once a term or session, the Service's
processing center shall send each school (to the address given on Form
I-17 as that to which the list should be sent) a list of all F-1 and M-1
students who, according to Service records, are attending that school. A
designated school official at the school must note on the list whether
or not each student on the list is pursuing a full course of study and
give, in addition to the above information, the names and current
addresses of all F-1 or M-1 students, or both, not listed, attending the
school and other information specified by the Service as necessary to
identify the students and to determine their immigration status. The
designated school official must comply with the request, sign the list,
state his or her title, and return the list to the Service's processing
center within sixty days of the date of the request.
(h) Review of school approvals. The district director may
periodically review the approval of a school in his or her jurisdiction
for compliance with the reporting requirements of paragraph (g)(2) of
this section and for continued eligibility for approval pursuant to
paragraph (e) of this section. The district director shall also, upon
receipt of notification, evaluate any changes made to the name, address,
or curriculum of an approved school to determine if the changes have
affected the school's eligibility for approval. The district director
may require the school under review to furnish a currently executed Form
I-17 without fee, along with supporting documents, as a petition for
continuation of school approval when there is a question about
[[Page 310]]
whether the school still meets the eligibility requirements. If upon
completion of the review, the district director finds that the approval
should not be continued, he or she shall institute withdrawal
proceedings in accordance with Sec. 214.4(b).
(i) Administration of student regulations by the Immigration and
Naturalization Service. District directors in the field shall be
responsible for conducting periodic reviews on the campuses under the
jurisdiction of their offices to determine whether students are
complying with Service regulations including keeping their passports
valid for a period of six months at all times when required. Service
officers shall take appropriate action regarding violations of the
regulations.
(j) Advertising. In any advertisement, catalogue, brochure,
pamphlet, literature, or other material hereafter printed or reprinted
by or for an approved school, any statement which may appear in such
material concerning approval for attendance by nonimmigrant students
shall be limited solely to the following: This school is authorized
under Federal law to enroll nonimmigrant alien students.
(k) Issuance of Certificate of Eligibility. A designated official of
a school that has been approved for attendance by nonimmigrant students
must certify Form I-20A or I-20M, but only after page 1 has been
completed in full. A Form I-20A-B or I-20M-N issued by an approved
school system must state which school within the system the student will
attend. The form must be issued in the United States. Only a designated
official shall issue a Certificate of Eligibility, Form I-20A-B or I-
20M-N, to a prospective student and only after the following conditions
are met:
(1) The prospective student has made a written application to the
school.
(2) The written application, the student's transcripts or other
records of courses taken, proof of financial responsibility for the
student, and other supporting documents have been received, reviewed,
and evaluated at the school's location in the United States.
(3) The appropriate school authority has determined that the
prospective student's qualifications meet all standards for admission.
(4) The official responsible for admission at the school has
accepted the prospective student for enrollment in a full course of
study.
(l) Designated official--(1) Meaning of term ``designated
official''. As used in Secs. 214.1(b), 214.2(f), 214.2(m), 214.4 and
this section, a ``designated official'' or ``designated school
official'' means a regularly employed member of the school
administration whose office is located at the school and whose
compensation does not come from commissions for recruitment of foreign
students. An individual whose principal obligation to the school is to
recruit foreign students for compensation does not qualify as a
designated official. The president, owner, or head of a school or school
system must designate a designated official. The designated official may
not delegate this designation to any other person. Each school or
institution may have up to five designated officials at any one time. In
a multi-campus institution, each campus may have up to five designated
officials at any one time. In an elementary or secondary school system,
however, the entire school system is limited to five designated
officials at any one time.
(2) Name, title, and sample signature. Petitions for school approval
must include the names, titles, and sample signatures of designated
officials. An approved school must report to the Service office having
jurisdiction over it any changes in designated officials and furnish the
name, title, and sample signature of the new designated official within
thirty days of each change.
(3) Statement of designated official. A petition for school approval
must include a statement by each designated official certifying that the
official has read the Service regulations relating to nonimmigrant
students, namely Secs. 214.1(b), 214.2(f), and 214.2(m); the Service
regulations relating to change of nonimmigrant classification for
students, namely Secs. 248.1(c), 248.1(d), 248.3(b), and 248.3(d); the
Service regulations relating to school approval, namely this section and
the regulations relating to withdrawal of school approval namely,
Sec. 214.4; and affirming the official's intent to comply with these
regulations. An approved school
[[Page 311]]
must also submit to the Service office having jurisdiction over it such
a statement from any new designated official within thirty days of each
change in designated official.
[30 FR 919, Jan. 29, 1965]
Editorial Note: For Federal Register citations affecting Sec. 214.3,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Sec. 214.4 Withdrawal of school approval.
(a) General--(1) Withdrawal on notice. If a school's approval is
withdrawn on notice as provided in paragraphs (b), (c), (d), (e), (f),
(g), (h), (i) (j), and (k) of this section, the school is not eligible
to file another petition for school approval until at least one year
after the effective date of the withdrawal. The approval by the Service,
pursuant to sections 101(a)(15)(F)(i) or 101(a)(15)(M)(i) or both, of
the Act, of a petition by a school or school system for the attendance
of nonimmigrant students will be withdrawn on notice if the school or
school system is no longer entitled to the approval for any valid and
substantive reason including, but not limited to, the following:
(i) Failure to comply with Sec. 214.3(g)(1) without a subpoena.
(ii) Failure to comply with Sec. 214.3(g)(2).
(iii) Failure of a designated school official to notify the Service
of the attendance of an F-1 transfer student as required by
Sec. 214.2(f)(8)(ii).
(iv) Willful issuance by a designated official of a false statement
or certification in connection with a school transfer or an application
for employment or practical training.
(v) Any conduct on the part of a designated official which does not
comply with the regulations.
(vi) The designation as a designated official of an individual who
does not meet the requirements of Sec. 214.3(l)(1).
(vii) Failure to provide the Service with the names, titles, and
sample signatures of designated officials as required by
Sec. 214.3(l)(2).
(viii) Failure to submit statements of designated officials as
required by Sec. 214.3(l)(3).
(ix) Issuance of Forms I-20A or I-20M to students without receipt of
proof that the students have met scholastic, language or financial
requirements.
(x) Issuance of Forms I-20A or I-20M to aliens who will not be
enrolled in or carry full courses of study as defined in
Secs. 214.2(f)(6) or 214.2(m)(9).
(xi) Failure to operate as a bona fide institution of learning.
(xii) Failure to employ qualified professional personnel.
(xiii) Failure to limit its advertising in the manner prescribed in
Sec. 214.3(j).
(xiv) Failure to maintain proper facilities for instruction.
(xv) Failure to maintain accreditation or licensing necessary to
qualify graduates as represented in the petition.
(xvi) Failure to maintain the physical plant, curriculum, and
teaching staff in the manner represented in the petition for school
approval.
(xvii) Failure to comply with the procedures for issuance of Forms
1-20A or 1-20M as set forth in Sec. 214.3(k).
(xviii) Failure of a designated school official to notify the
Service of material changes to the school's name, address, or curriculum
as required by Sec. 214.3(e)(2).
(2) Automatic withdrawal. If an approved school terminates its
operations, approval will be automatically withdrawn as of the date of
termination of the operations. If an approved school changes ownership,
approval will be automatically withdrawn sixty days after the change of
ownership unless the school files a new petition for school approval
within sixty days of that change of ownership. The district director
must review the petition to determine whether the school still meets the
eligibility requirements of Sec. 214.3(e). If, upon completion of the
review, the district director finds that the approval should not be
continued, the district director shall institute withdrawal proceedings
in accordance with paragraph (b) of this section. Automatic withdrawal
of a school's approval is without prejudice to consideration of a new
petition for school approval.
(b) Notice. Whenever a district director has reason to believe that
an approved school or school system in his/
[[Page 312]]
her district is no longer entitled to approval, a proceeding shall be
commenced by service upon its designated official a notice of intention
to withdraw the approval. The notice shall inform the designated
official of the school or school system of the grounds upon which it is
intended to withdraw its approval. The notice shall also inform the
school or school system that it may, within 30 days of the date of
service of the notice, submit written representations under oath
supported by documentary evidence setting forth reasons why the approval
should not be withdrawn and that the school or school system may, at the
time of filing the answer, request in writing an interview before the
district director in support of the written answer.
(c) Assistance of counsel. The school or school system shall also be
informed in the notice of intent to withdraw approval that it may be
assisted or represented by counsel of its choice qualified under part
292 of this chapter, at no expense to the Government, in preparation of
its answer or in connection with the interview.
(d) Allegations admitted or no answer filed. If the school or school
system admits all of the allegations in the notice of intent to withdraw
approval, or if the school or school system fails to file an answer
within the 30-day period, the district director shall withdraw the
approval previously granted and he/she shall notify the designated
school official of the decision. No appeal shall lie from the district
director's decision if all allegations are admitted or no answer is
filed within the 30-day period.
(e) Allegations denied. If the school or school system denies the
allegations in the notice of intent to withdraw approval, then the
school or school system shall, in its answer, provide all information or
evidence on which the answer is based.
(f) Interview requested. (1) If in its answer to the notice of
intent to withdraw approval the school or school system requests an
interview, the school or school system shall be given notice of the date
set for the interview.
(2) A summary of the information provided by the school or school
system at the interview shall be prepared and included in the record. In
the discretion of the district director, the interview may be recorded.
(g) Decision. The decision of the district director shall be in
writing and shall include a discussion of the evidence and findings as
to withdrawal. The decision shall contain an order either withdrawing
approval or granting continued approval. The written decision shall be
served upon the school or school system, together with the notice of the
right to appeal pursuant to part 103 of this chapter.
(h) Appeal. Any appeal shall be taken within 15 days after the
service of the written decision. The reasons for the appeal shall be
stated in the notice of appeal, Form I-290B, and supported by a
statement or brief specifically setting forth the grounds for contesting
the withdrawal of the approval.
[37 FR 17463, Aug. 29, 1972, as amended at 48 FR 14592, Apr. 5, 1983; 48
FR 19867, May 3, 1983; 48 FR 22131, May 17, 1983; 49 FR 41015, Oct. 19,
1984; 50 FR 9991, Mar. 13, 1985; 54 FR 19544, May 8, 1989; 55 FR 41988,
Oct. 17, 1990]
Sec. 214.5 Libyan and third country nationals acting on behalf of Libyan entities.
(a) Notwithstanding any other provision of this title, the
nonimmigrant status of any Libyan national, or of any other foreign
national acting on behalf of a Libyan entity, who is engaging in
aviation maintenance, flight operations, or nuclear-related studies or
training is terminated.
(b) Notwithstanding any other provision of this chapter, the
following benefits will not be available to any Libyan national or any
other foreign national acting on behalf of a Libyan entity where the
purpose is to engage in, or seek to obtain aviation maintenance, flight
operations or nuclear-related studies or training:
(1) Application for school transfer.
(2) Application for extension of stay.
(3) Employment authorization or practical training.
(4) Request for reinstatement of student status.
(5) Application for change of nonimmigrant status.
(Secs. 103, 212, 214, 248; 8 U.S.C. 1103, 1182, 1184, 1258)
[48 FR 10297, Mar. 3, 1983]
[[Page 313]]
Sec. 214.6 Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level.
(a) General. Under section 214(e) of the Act, a citizen of Canada or
Mexico who seeks temporary entry as a business person to engage in
business activities at a professional level may be admitted to the
United States in accordance with the North American Free Trade Agreement
(NAFTA).
(b) Definitions. As used in this section the terms:
Business activities at a professional level means those undertakings
which require that, for successful completion, the individual has at
least a baccalaureate degree or appropriate credentials demonstrating
status as a professional.
Business person, as defined in the NAFTA, means a citizen of Canada
or Mexico who is engaged in the trade of goods, the provision of
services, or the conduct of investment activities.
Engage in business activities at a professional level means the
performance of prearranged business activities for a United States
entity, including an individual. It does not authorize the establishment
of a business or practice in the United States in which the professional
will be self-employed.
Temporary entry, as defined in the NAFTA, means entry without the
intent to establish permanent residence.
(c) Appendix 1603.D.1 to Annex 1603 of the NAFTA. Pursuant to the
NAFTA, an applicant seeking admission under this section shall
demonstrate business activity at a professional level in one of the
professions set forth in Appendix 1603.D.1 to Annex 1603. The
professions in Appendix 1603.D.1 and the minimum requirements for
qualification for each are as follows: \1\
Appendix 1603.D.1 (Annotated)
--Accountant--Baccalaureate or Licenciatura Degree; or C.P.A., C.A.,
C.G.A., or C.M.A.
---------------------------------------------------------------------------
\1\ A business person seeking temporary employment under this
Appendix may also perform training functions relating to the profession,
including conducting seminars.
---------------------------------------------------------------------------
--Architect--Baccalaureate or Licenciatura Degree; or state/provincial
license.\2\
---------------------------------------------------------------------------
\2\ The terms ``state/provincial license'' and ``state/provincial/
federal license'' mean any document issued by a state, provincial, or
federal government, as the case may be, or under its authority, but not
by a local government, that permits a person to engage in a regulated
activity or profession.
---------------------------------------------------------------------------
--Computer Systems Analyst--Baccalaureate or Licenciatura Degree; or
Post-Secondary Diploma \3\ or Post Secondary Certificate \4\
and three years' experience.
---------------------------------------------------------------------------
\3\ ``Post Secondary Diploma'' means a credential issued, on
completion of two or more years of post secondary education, by an
accredited academic institution in Canada or the United States.
\4\ ``Post Secondary Certificate'' means a certificate issued, on
completion of two or more years of post secondary education at an
academic institution, by the federal government of Mexico or a state
government in Mexico, an academic institution recognized by the federal
government or a state government, or an academic institution created by
federal or state law.
---------------------------------------------------------------------------
--Disaster relief insurance claims adjuster (claims adjuster employed by
an insurance company located in the territory of a Party, or
an independent claims adjuster)--Baccalaureate or Licenciatura
Degree and successful completion of training in the
appropriate areas of insurance adjustment pertaining to
disaster relief claims; or three years experience in claims
adjustment and successful completion of training in the
appropriate areas of insurance adjustment pertaining to
disaster relief claims.
--Economist--Baccalaureate or Licenciatura Degree.
--Engineer--Baccalaureate or Licenciatura Degree; or state/provincial
license.
--Forester--Baccalaureate or Licenciatura Degree; or state/provincial
license.
--Graphic Designer--Baccalaureate or Licenciatura Degree; or Post-
Secondary Diploma or Post-Secondary Certificate and three
years experience.
--Hotel Manager--Baccalaureate or Licenciatura Degree in hotel/
restaurant management; or Post-Secondary Diploma or Post
Secondary Certificate in hotel/restaurant management and three
years experience in hotel/restaurant management.
--Industrial Designer--Baccalaureate or Licenciatura Degree; or Post-
Secondary Diploma or Post Secondary Certificate, and three
years experience.
--Interior Designer--Baccalaureate or Licenciatura Degree or Post-
Secondary Diploma or Post-Secondary Certificate, and three
years experience.
[[Page 314]]
--Land Surveyor--Baccalaureate or Licenciatura Degree or state/
provincial/federal license.
--Landscape Architect--Baccalaureate or Licenciatura Degree.
--Lawyer (including Notary in the province of Quebec)--L.L.B., J.D.,
L.L.L., B.C.L., or Licenciatura degree (five years); or
membership in a state/provincial bar.
--Librarian--M.L.S., or B.L.S. (for which another Baccalaureate or
Licenciatura Degree was a prerequisite).
--Management Consultant--Baccalaureate or Licenciatura Degree; or
equivalent professional experience as established by statement
or professional credential attesting to five years experience
as a management consultant, or five years experience in a
field of specialty related to the consulting agreement.
--Mathematician (including Statistician)--Baccalaureate or Licenciatura
Degree.
--Range Manager/Range Conservationist--Baccalaureate or Licenciatura
Degree.
--Research Assistant (working in a post-secondary educational
institution)--Baccalaureate or Licenciatura Degree.
--Scientific Technician/Technologist \5\--Possession of (a) theoretical
knowledge of any of the following disciplines: agricultural
sciences, astronomy, biology, chemistry, engineering,
forestry, geology, geophysics, meteorology, or physics; and
(b) the ability to solve practical problems in any of those
disciplines, or the ability to apply principles of any of
those disciplines to basic or applied research.
---------------------------------------------------------------------------
\5\ A business person in this category must be seeking temporary
entry for work in direct support of professionals in agricultural
sciences, astronomy, biology, chemistry, engineering, forestry, geology,
geophysics, meteorology or physics.
---------------------------------------------------------------------------
--Social Worker--Baccalaureate or Licenciatura Degree.
--Sylviculturist (including Forestry Specialist)--Baccalaureate or
Licenciatura Degree.
--Technical Publications Writer--Baccalaureate or Licenciatura Degree,
or Post-Secondary Diploma or Post-Secondary Certificate, and
three years experience.
--Urban Planner (including Geographer)--Baccalaureate or Licenciatura
Degree.
--Vocational Counselor--Baccalaureate or Licenciatura Degree.
Medical/Allied Professionals
--Dentist--D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia
Dental or state/provincial license.
--Dietitian--Baccalaureate or Licenciatura Degree; or state/
provincial license.
--Medical Laboratory Technologist (Canada)/Medical Technologist
(Mexico and the United States) \6\--Baccalaureate or Licenciatura
Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and
three years experience.
---------------------------------------------------------------------------
\6\ A business person in this category must be seeking temporary
entry to perform in a laboratory chemical, biological, hematological,
immunologic, microscopic or bacteriological tests and analyses for
diagnosis, treatment, or prevention of diseases.
---------------------------------------------------------------------------
--Nutritionist--Baccalaureate or Licenciatura Degree.
--Occupational Therapist--Baccalaureate or Licenciatura Degree; or
state/provincial license.
--Pharmacist--Baccalaureate or Licenciatura Degree; or state/
provincial license.
--Physician (teaching or research only)--M.D. Doctor en Medicina; or
state/provincial license.
--Physiotherapist/Physical Therapist--Baccalaureate or Licenciatura
Degree; or state/provincial license.
--Psychologist--state/provincial license; or Licenciatura Degree.
--Recreational Therapist-Baccalaureate or Licenciatura Degree.
--Registered nurse--state/provincial license or Licenciatura Degree.
--Veterinarian--D.V.M., D.M.V., or Doctor en Veterinaria; or state/
provincial license.
--SCIENTIST
--Agriculturist (including Agronomist)--Baccalaureate or
Licenciatura Degree.
--Animal Breeder--Baccalaureate or Licenciatura Degree.
--Animal Scientist--Baccalaureate or Licenciatura Degree.
--Apiculturist--Baccalaureate or Licenciatura Degree.
--Astronomer--Baccalaureate or Licenciatura Degree.
--Biochemist--Baccalaureate or Licenciatura Degree.
--Biologist--Baccalaureate or Licenciatura Degree.
--Chemist--Baccalaureate or Licenciatura Degree.
--Dairy Scientist--Baccalaureate or Licenciatura Degree.
--Entomologist--Baccalaureate or Licenciatura Degree.
--Epidemiologist--Baccalaureate or Licenciatura Degree.
--Geneticist--Baccalaureate or Licenciatura Degree.
--Geochemist--Baccalaureate or Licenciatura Degree.
--Geologist--Baccalaureate or Licenciatura Degree.
[[Page 315]]
--Geophysicist (including Oceanographer in Mexico and the United
States)--Baccalaureate or Licenciatura Degree.
--Horticulturist--Baccalaureate or Licenciatura Degree.
--Meteorologist--Baccalaureate or Licenciatura Degree.
--Pharmacologist--Baccalaureate or Licenciatura Degree.
--Physicist (including Oceanographer in Canada--Baccalaureate or
Licenciatura Degree.
--Plant Breeder--Baccalaureate or Licenciatura Degree.
--Poultry Scientist--Baccalaureate or Licenciatura Degree.
--Soil Scientist--Baccalaureate or Licenciatura Degree.
--Zoologist--Baccalaureate or Licenciatura Degree.
--TEACHER
--College--Baccalaureate or Licenciatura Degree.
--Seminary--Baccalaureate or Licenciatura Degree.
--University--Baccalaureate or Licenciatura Degree.
(d) Classification of citizens of Mexico as TN professionals under
the NAFTA--(1) General. A United States employer seeking to classify a
citizen of Mexico as a TN professional temporary employee shall file a
petition on Form I-129, Petition for Nonimmigrant Worker, with the
Northern Service Center, even in emergent circumstances. The petitioner
may submit a legible photocopy of a document in support of the visa
petition in lieu of the original document. The original document shall
be submitted if requested by the Service.
(2) Supporting documents. A petition in behalf of a citizen of
Mexico seeking classification as a TN professional shall be accompanied
by:
(i) A certification from the Secretary of Labor that the petitioner
has filed the appropriate documentation with the Secretary in accordance
with section (D)(5)(b) of Annex 1603 of the NAFTA.
(ii) Evidence that the beneficiary meets the minimum education
requirements or alternative credentials requirements of Appendix
1603.D.1 of Annex 1603 of the NAFTA as set forth in Sec. 214.6(c). This
documentation may consist of licenses, degrees, diplomas, certificates,
or evidence of membership in professional organizations. Degrees,
diplomas, or certificates received by the beneficiary from an
educational institution not located within Mexico, Canada, or the United
States must be accompanied by an evaluation by a reliable credentials
evaluation service which specializes in evaluating foreign educational
credentials. Evidence of experience should consist of letters from
former employers or, if formerly self-employed, business records
attesting to such self-employment; and
(iii) A statement from the prospective employer in the United States
specifically stating the Appendix 1603.D.1 profession in which the
beneficiary will be engaging and a full description of the nature of the
duties which the beneficiary will be performing. The statement must set
forth licensure requirements for the state or locality of intended
employment or, if no license is required, the non-existence of such
requirements for the professional activity to be engaged in.
(iv) Licensure for TN classification--(A) General. If the profession
requires a state or local license for an individual to fully perform the
duties of that profession, the beneficiary for whom TN classification is
sought must have that license prior to approval of the petition and
evidence of such licensing must accompany the petition.
(B) Temporary licensure. If a temporary license is available and the
beneficiary would be allowed to perform the duties of the profession
without a permanent license, the director shall examine the nature of
the duties, the level at which the duties are performed, the degree of
supervision received, and any limitations which would be placed upon the
beneficiary. If an analysis of the facts demonstrates that the
beneficiary, although under supervision, would be fully authorized to
perform the duties of the profession, TN classification may be granted.
(C) Duties without licensure. In certain professions which generally
require licensure, a state may allow an individual to fully practice a
profession under the supervision of licensed senior or supervisory
personnel in that profession. In such cases, the director shall examine
the nature of the duties and the level at which they are to be
performed. If the facts demonstrate that the beneficiary, although under
supervision, would fully perform the duties
[[Page 316]]
of the profession, TN classification may be granted.
(D) Registered nurses. The prospective employer must submit evidence
that the beneficiary has been granted a permanent state license, a
temporary state license or other temporary authorization issued by a
State Board of Nursing authorizing the beneficiary to work as a
registered or graduate nurse in the state of intended employment in the
United States.
(3) Approval and validity of petition-- (i) Approval. The director
shall notify the petitioner of the approval of the petition on Form I-
797, Notice of Action. The approval notice shall include the
beneficiary's name, classification, Appendix 1603.D.1 profession, and
the petition's period of validity.
(ii) Recording the validity of petitions. Procedures for recording
the validity period of petitions are:
(A) If the petition is approved before the date the petitioner
indicates that employment will begin, the approved petition and approval
notice shall show the actual dates requested by the petitioner as the
validity period, not to exceed the limits specified by paragraph
(d)(3)(iii) of this section.
(B) If the petition is approved after the date the petitioner
indicates employment will begin, the approved petition and approval
notice shall show a validity period commencing with the date of approval
and ending with the date requested by the petitioner, as long as that
date does not exceed the limits specified by paragraph (d)(3)(iii) of
this section.
(C) If the period of employment requested by the petitioner exceeds
the limit specified in paragraph (d)(3)(iii) of this section, the
petition shall be approved only up to the limit specified in that
paragraph.
(iii) Validity. An approved petition classifying a citizen of Mexico
as a TN nonimmigrant shall be valid for a period of up to one year.
(4) Denial of petition--(i) Notice of intent to deny. When an
adverse decision is proposed on the basis of derogatory information of
which the petitioner is unaware, the director shall notify the
petitioner of the intent to deny the petition and the basis for the
denial. The petitioner may inspect and rebut the evidence and will be
granted a period of thirty days in which to do so. All relevant rebuttal
material will be considered in making a final decision.
(ii) Notice of denial. The petitioner shall be notified of the
decision, the reasons for the denial, and the right to appeal the denial
under part 103 of this chapter.
(5) Revocation of approval of petition--(i) General. (A) The
petitioner shall immediately notify the Service of any changes in the
terms and conditions of employment of a beneficiary which may effect
eligibility under section 214(e) of the Act or Sec. 214.6. An amended
petition should be filed when the petitioner continues to employ the
beneficiary. If the petitioner no longer employs the beneficiary, the
petitioner shall send a letter explaining the change(s) to the director
who approved the petition.
(B) The director may revoke a petition at any time, even after the
validity of the petition has expired.
(ii) Automatic revocation. The approval of an unexpired petition is
automatically revoked if the petitioner goes out of business, files a
written withdrawal of the petition, or notifies the Service that the
beneficiary is no longer employed by the petitioner.
(iii) Revocation on notice--(A) Grounds for revocation. The director
shall send to the petitioner a notice of intent to revoke the petition
in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition;
(2) The statement of facts contained in the petition were not true
and correct;
(3) The petitioner violated the terms or conditions of the approved
petition;
(4) The petitioner violated requirements of section 214(e) of the
Act or Sec. 214.6; or
(5) The approval of the petition violated Sec. 214.6 or involved
gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within thirty days of the date of the
notice. The director shall consider all
[[Page 317]]
relevant evidence presented in deciding whether to revoke the petition.
(6) Appeal of a denial or revocation of a petition--(i) Denial. A
denied petition may be appealed under part 103 of this chapter.
(ii) Revocation. A petition that has been revoked on notice may be
appealed under part 103 of this chapter. Automatic revocations may not
be appealed.
(7) Numerical limit--(i) Limit on number of petitions to be approved
in behalf of citizens of Mexico. Beginning on the date of entry into
force of the NAFTA, not more than 5,500 citizens of Mexico can be
classified as TN nonimmigrants annually.
(ii) Procedures. (A) Each citizen of Mexico issued a visa or
otherwise provided TN nonimmigrant status under section 214(e) of the
Act shall be counted for purposes of the numerical limit. Requests for
petition extension or extension of the alien's stay and submissions of
amended petitions shall not be counted for purposes of the numerical
limit. The spouse and children of principal aliens classified as TD
nonimmigrants shall not be counted against the numerical limit.
(B) Numbers will be assigned temporarily to each Mexican citizen in
whose behalf a petition for TN classification has been filed. If a
petition is denied, the number originally assigned to the petition shall
be returned to the system which maintains and assigns numbers.
(C) When an approved petition is not used because the beneficiary
does not apply for admission to the United States, the petitioner shall
notify the service center director who approved the petition that the
number has not been used. The petition shall be revoked pursuant to
paragraph (d)(5)(ii) of this section and the unused number shall be
returned to the system which maintains and assigns numbers.
(D) If the total annual limit has been reached prior to the end of
the year, new petitions and the accompanying fee shall be rejected and
returned with a notice stating that numbers are unavailable for Mexican
citizen TN nonimmigrants and the date when numbers will again become
available.
(e) Classification of citizens of Canada as TN professionals under
the NAFTA--(1) General. Under section 214(e) of the Act, a citizen of
Canada who seeks temporary entry as a business person to engage in
business activities at a professional level may be admitted to the
United States in accordance with the NAFTA.
(2) Application for admission. A citizen of Canada seeking admission
under this section shall make application for admission with an
immigration officer at a United States Class A port of entry, at a
United States airport handling international traffic, or at a United
States pre-clearance/pre-flight station. No prior petition, labor
certification, or prior approval shall be required.
(3) Evidence. A visa shall not be required of a Canadian citizen
seeking admission as a TN nonimmigrant under section 214(e) of the Act.
Upon application for admission at a United States port of entry, an
applicant under this section shall present the following:
(i) Proof of Canadian citizenship. Unless travelling from outside
the Western hemisphere, no passport shall be required; however, an
applicant for admission must establish Canadian citizenship.
(ii) Documentation demonstrating engagement in business activities
at a professional level and demonstrating professional qualifications.
The applicant must present documentation sufficient to satisfy the
immigration officer at the time of application for admission, that the
applicant is seeking entry to the United States to engage in business
activities for a United States employer(s) or entity(ies) at a
professional level, and that the applicant meets the criteria to perform
at such a professional level. This documentation may be in the form of a
letter from the prospective employer(s) in the United States or from the
foreign employer, in the case of a Canadian citizen seeking entry to
provide prearranged services to a United States entity, and may be
required to be supported by licenses, diplomas, degrees, certificates,
or membership in a professional organization. Degrees, diplomas, or
certificates received by the applicant from an educational institution
not located within Canada, Mexico, or the United States
[[Page 318]]
must be accompanied by an evaluation by a reliable credentials
evaluation service which specializes in evaluating foreign educational
credentials. The documentation shall fully affirm:
(A) The Appendix 1603.D.1 profession of the applicant;
(B) A description of the professional activities, including a brief
summary of daily job duties, if appropriate, which the applicant will
engage in for the United States employer/entity;
(C) The anticipated length of stay;
(D) The educational qualifications or appropriate credentials which
demonstrate that the Canadian citizen has professional level status;
(E) The arrangements for remuneration for services to be rendered;
and
(F) If required by state or local law, that the Canadian citizen
complies with all applicable laws and/or licensing requirements for the
professional activity in which they will be engaged.
(f) Procedures for admission--(1) Canadian citizens. A Canadian
citizen who qualifies for admission under this section shall be provided
confirming documentation (Service Form I-94) and shall be admitted under
the classification symbol TN for a period not to exceed one year. Form
I-94 shall bear the legend ``multiple entry''. The fee prescribed under
Sec. 103.7(b) of this chapter shall be remitted upon admission to the
United States pursuant to the terms and conditions of the NAFTA. Upon
remittance of the prescribed fee, the Canadian citizen applicant shall
be provided a Service receipt (Form G-211, Form G-711, or Form I-797).
(2) Mexican citizens. The Mexican citizen beneficiary of an approved
Form I-129 granting classification as a TN professional shall be
admitted to the United States for the validity period of the approved
petition upon presentation of a valid TN visa issued by a United States
consular officer and a copy of the United States employer's statement as
described in paragraph (d)(2)(iii) of this section. The Mexican citizen
shall be provided Form I-94 bearing the legend ``multiple entry''.
(g) Readmission--(1) Canadian citizens. A Canadian citizen in this
classification may be readmitted to the United States for the remainder
of the period authorized on Form I-94, without presentation of the
letter or supporting documentation described in paragraph (e)(3) of this
section, and without remittance of the prescribed fee, provided that the
original intended professional activities and employer(s) have not
changed. If the Canadian citizen seeking readmission to the United
States is no longer in possession of a valid, unexpired Form I-94, and
the period of initial admission has not lapsed, he or she shall present
alternate evidence in order to be readmitted in TN status. This
alternate evidence may include, but is not limited to, a Service fee
receipt for admission as a TN or a previously issued admission stamp as
TN in a passport, and a confirming letter from the United States
employer(s). A new Form I-94 shall be issued at the time of readmission
bearing the legend ``multiple entry''.
(2) Mexican citizens. A Mexican citizen in this classification may
be readmitted for the remainder of the period of time authorized on Form
I-94 provided that the original intended professional activities and
employer(s) have not changed. If the Mexican citizen seeking readmission
to the United States is no longer in possession of a valid, unexpired
Form I-94, he or she may be readmitted upon presentation of a valid TN
visa and evidence of a previous admission. A new Form I-94 shall be
issued at the time of readmission bearing the legend ``multiple entry''.
(h) Extension of stay--(1) Mexican citizen. The United States
employer shall apply for extension of the Mexican citizen's stay in the
United States by filing Form I-129 with the Northern Service Center. The
applicant must also request a petition extension. The request for
extension must be accompanied by either a new or a photocopy of the
prior certification on Form ETA 9029, in the case of a registered nurse,
or Form ETA 9035, in all other cases, that the petitioner continues to
have on file with the Department of Labor for the period of time
requested. The dates of extension shall be the same for the petition and
the beneficiary's extension of stay. The beneficiary must be physically
present in the United States at the time of the filing of the extension
of stay. Even though the requests to extend the petition and the alien's
stay
[[Page 319]]
are combined on the petition, the director shall make a separate
determination on each. If the citizen of Mexico is required to leave the
United States for business or personal reasons during the pendency of
the extension request, the petitioner may request the director to cable
notification of the approval of the petition to the consular office
abroad where the beneficiary will apply for a visa. An extension of stay
may be authorized for up to one year. There is no specific limit on the
total period of time a citizen of Mexico may remain in TN status.
(2) Canadian citizen--(i) Filing at the service center. The United
States employer of a Canadian citizen in TN status or United States
entity, in the case of a Canadian citizen in TN status who has a foreign
employer, may request an extension of stay by filing Form I-129 with the
prescribed fee, with the Northern Service Center. The beneficiary must
be physically present in the United States at the time of the filing of
the extension of stay. If the alien is required to leave the United
States for business or personal reasons while the extension request is
pending, the petitioner may request the director to cable notification
of approval of the application to the port of entry where the Canadian
citizen will apply for admission to the United States. An extension of
stay may be authorized for up to one year. There is no specific limit on
the total period of time a citizen of Canada may remain in TN status.
(ii) Readmission at the border. Nothing in paragraph (h)(2)(i) of
this section shall preclude a citizen of Canada who has previously been
in the United States in TN status from applying for admission for a
period of time which extends beyond the date of his or her original term
of admission at any United States port of entry. The application for
admission shall be supported by a new letter from the United States
employer or the foreign employer, in the case of a Canadian citizen who
is providing prearranged services to a United States entity, which meets
the requirements of paragraph (e)(3)(ii) of this section. The fee
prescribed under Sec. 103.7(b) of this chapter shall be remitted upon
admission to the United States pursuant to the terms and conditions of
the NAFTA.
(i) Request for change or addition of United States employer(s)--(1)
Mexican citizen. A citizen of Mexico admitted under this paragraph who
seeks to change or add a United States employer must have the new
employer file a Form I-129 petition with appropriate supporting
documentation, including a letter from the new employer describing the
services to be performed, the time needed to render such services, and
the terms for remuneration for services and evidence of required filing
with the Secretary of Labor. Employment with a different or with an
additional employer is not authorized prior to Service approval of the
petition.
(2) Canadian citizen--(i) Filing at the service center. A citizen of
Canada admitted under this paragraph who seeks to change or add a United
States employer during this period of admission must have the new
employer file a Form I-129 petition with appropriate supporting
documentation, including a letter from the new employer describing the
services to be performed, the time needed to render such services, and
the terms for remuneration for services. Employment with a different or
with an additional employer is not authorized prior to Service approval
of the petition.
(ii) Readmission at the border. Nothing in paragraph (i)(2)(i) of
this section precludes a citizen of Canada from applying for readmission
to the United States for the purpose of presenting documentation from a
different or additional United States or foreign employer. Such
documentation shall meet the requirements prescribed in paragraph
(e)(3)(ii) of this section. The fee prescribed under Sec. 103.7(b) of
this chapter shall be remitted upon admission to the United States
pursuant to the terms and conditions of the NAFTA.
(3) No action shall be required on the part of a Canadian or Mexican
citizen who is transferred to another location by the United States
employer to perform the same services. Such an acceptable transfer would
be to a branch or office of the employer. In the case of a transfer to a
separately incorporated
[[Page 320]]
subsidiary or affiliate, the requirements of paragraphs (i) (1) and (2)
of this section would apply.
(j) Spouse and unmarried minor children accompanying or following to
join. (1) The spouse of unmarried minor child of a citizen of Canada or
Mexico admitted in TN nonimmigrant status shall be required to present a
valid, unexpired nonimmigrant TD visa unless otherwise exempt under
Sec. 212.1 of this chapter.
(2) The spouse and dependent minor children shall be issued
confirming documentation (Form I-94) bearing the legend ``multiple
entry''. There shall be no fee required for admission of the spouse and
dependent minor children.
(3) The spouse and dependent minor children shall not accept
employment in the United States unless otherwise authorized under the
Act.
(k) Effect of a strike. If the Secretary of Labor certifies to or
otherwise informs the Commissioner that a strike or other labor dispute
involving a work stoppage of workers is in progress, and the temporary
entry of a citizen of Mexico or Canada in TN nonimmigrant status may
affect adversely the settlement of any labor dispute or the employment
of any person who is involved in such dispute:
(1) The United States may refuse to issue an immigration document
authorizing entry or employment to such alien.
(2) A Form I-129 seeking to classify a citizen of Mexico as a TN
nonimmigrant may be denied. If a petition has already been approved, but
the alien has not yet entered the United States, or has entered the
United States but not yet commenced employment, the approval of the
petition may be suspended.
(3) If the alien has already commenced employment in the United
States and is participating in a strike or other labor dispute involving
a work stoppage of workers, whether or not such strike or other labor
dispute has been certified by the Department of Labor, or whether the
Service has been otherwise informed that such a strike or labor dispute
is in progress, the alien shall not be deemed to be failing to maintain
his or her status solely on account of past, present, or future
participation in a strike or other labor dispute involving a work
stoppage of workers, but is subject to the following terms and
conditions:
(i) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act and regulations promulgated in the
same manner as all other TN nonimmigrants;
(ii) The status and authorized period of stay of such an alien is
not modified or extended in any way by virtue of his or her
participation in a strike or other labor dispute involving a work
stoppage of workers; and
(iii) Although participation by a TN nonimmigrant alien in a strike
or other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, any alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(4) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (k)(1) of this section, or the Service
has not otherwise been informed by the Secretary that such a strike or
labor dispute is in progress, the Commissioner shall not deny a
petition, suspend an approved petition, or deny entry to an applicant
for TN status.
(l) Transition for Canadian Citizen Professionals in TC
classification and their B-2 spouses and/or unmarried minor children--
(1) Canadian citizen professionals in TC Classification--(i) General.
Canadian citizen professionals in TC classification as of the effective
date of the NAFTA Implementation Act (January 1, 1994) will
automatically be deemed to be in valid TN classification. Such persons
may be readmitted to the United States in TN classification for the
remainder of the period authorized on their Form I-94, without
presentation of the letter or supporting documentation described in
paragraph (e)(3) of this section, and without remittance of the
prescribed fee, provided that the original intended professional
activities and employer(s) have not changed. Properly filed applications
for extension of stay in TC classification which are pending on January
1, 1994 will be
[[Page 321]]
deemed to be, and adjudicated as if they were applications for extension
to stay in TN classification.
(ii) Procedure for Canadian citizens admitted in TC classification
in possession of Form I-94 indicating admission in TC classification. At
the time of readmission, such professionals shall be required to
surrender their old Form I-94 indicating admission in TC classification.
Upon surrender of the old Form I-94, such professional will be issued a
new Form I-94 bearing the legend ``multiple entry'' and indicating that
he or she has been readmitted in TN classification.
(iii) Procedure for Canadian citizen admitted in TC classification
who are no longer in possession of Form I-94 indicating admission in TC
classification. If the Canadian citizen seeking readmission to the
United States is no longer in possession of an unexpired Form I-94, and
the period of initial admission has not lapsed, he or she shall present
alternate evidence described in paragraph (g)(1) of this section in
order to be readmitted in TN status. A Canadian professional seeking to
extend his or her stay beyond the period indicated on the new Form I-94
shall be required to comply with the requirements of paragraph (h)(2) of
this section, including remittance of the fee prescribed under
Sec. 103.7 of this chapter.
(iv) Nonapplicability of this section to self-employed professionals
in TC nonimmigrant classification. The provisions in paragraphs (l)(1)
(i), (ii), and (iii) of this section shall not apply to professionals in
TC nonimmigrant classification who are self-employed in this country on
January 1, 1994. Effective January 1, 1994, such professionals are not
authorized to engage in self-employment in this country, and may not be
admitted in TN or readmitted in TC classification.
(2) Spouses and/or unmarried minor children of Canadian citizen
professionals in TC classification--(i) General. Effective January 1,
1994, the nonimmigrant classification of a spouse and/or unmarried minor
child of a Canadian citizen professional in TC classification will
automatically be converted from B-2 to TD nonimmigrant classification.
Effective January 1, 1994, the spouse and/or unmarried minor child of a
Canadian citizen professional whose TC status has been automatically
converted to TN, or the spouse and/or unmarried minor child of such
professional whose status has been changed to TN pursuant to paragraph
(1) of this section, who is seeking admission or readmission to this
country, may be readmitted in TD classification for the remainder of the
period authorized on their Form I-94, without presentation of the letter
or supporting documentation described in paragraph (e)(3) of this
section, and without remittance of the prescribed fee, provided that the
original intended professional activities and employer(s) of the
Canadian citizen professional have not changed. Properly filed
applications for extension of stay in B-2 classification as the spouse
and/or unmarried minor children of a Canadian citizen professional in TC
classification which are pending on January 1, 1994 will be deemed to
be, and adjudicated as if they were applications for extension of stay
in TD classification.
(ii) Procedure for spouses and/or unmarried minor children of
Canadian citizens admitted in TC classification who are in possession of
Form I-94 indicating admission in B-2 classification. Upon surrender of
the Form I-94 indicating that the alien has been admitted as the B-2
spouse or unmarried minor child of a TC alien valid for ``multiple
entry,'' such alien shall be issued a new Form I-94 indicating that the
alien has been readmitted in TD classification. The new Form I-94 shall
bear the legend ``multiple entry.''
(iii) Procedure for spouses and/or unmarried minor children of
Canadian citizens admitted in TC classification who are no longer in
possession of Form I-94 indicating admission in B-2 classification. If
the Canadian citizen seeking readmission to the United States is no
longer in possession of an unexpired Form I-94, and the period of
initial admission has not lapsed, he or she shall present alternate
evidence described in paragraph (g)(1) of this section in order to be
admitted in TN status. Spouses and/or children of Canadian citizen
professionals seeking to extend their stay beyond the period indicated
on the new Form I-94 shall be required to comply with the requirements
of paragraph
[[Page 322]]
(h)(2) of this section, including remittance of the fee prescribed under
Sec. 103.7 of this chapter.
(iv) Nonapplicability of this section to spouses and/or unmarried
minor children of self-employed professionals admitted in TC
nonimmigrant classification. Paragraphs (l)(2) (i), (ii), and (iii) of
this section shall not apply to the spouses and/or unmarried minor
children of Canadian citizen professionals in TC nonimmigrant
classification who are self-employed in this country on January 1, 1994.
Effective January 1, 1994, such persons are not eligible for TD
classification.
[58 FR 69212, Dec. 30, 1993]
PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES--Table of Contents
Sec.
215.1 Definitions.
215.2 Authority of departure-control officer to prevent alien's
departure from the United States.
215.3 Alien whose departure is deemed prejudicial to the interests of
the United States.
215.4 Procedure in case of alien prevented from departing from the
United States.
215.5 Hearing procedure before special inquiry officer.
215.6 Departure from the Canal Zone, the Trust Territory of the Pacific
Islands, or outlying possessions of the United States.
215.7 Instructions from the Administrator required in certain cases.
Authority: Sec. 104, 66 Stat. 174, Proc. 3004, 18 FR 489; 8 U.S.C.
1104, 3 CFR, 1953 Supp. Interpret or apply sec. 215, 66 Stat. 190; (8
U.S.C. 1185).
Source: 45 FR 65516, Oct. 3, 1980, unless otherwise noted.
Sec. 215.1 Definitions.
For the purpose of this part:
(a) The term alien means any person who is not a citizen or national
of the United States.
(b) The term Commissioner means the Commissioner of Immigration and
Naturalization.
(c) The term regional commissioner means an officer of the
Immigration and Naturalization Service duly appointed or designated as a
regional commissioner, or an officer who has been designated to act as a
regional commissioner.
(d) The term district director means an officer of the Immigration
and Naturalization Service duly appointed or designated as a district
director, or an officer who has been designated to act as a district
director.
(e) The term United States means the several States, the District of
Columbia, the Canal Zone, Puerto Rico, the Virgin Islands, Guam,
American Samoa, Swains Island, the Trust Territory of the Pacific
Islands, and all other territory and waters, continental and insular,
subject to the jurisdiction of the United States.
(f) The term continental United States means the District of
Columbia and the several States, except Alaska and Hawaii.
(g) The term geographical part of the United States means: (1) The
continental United States, (2) Alaska, (3) Hawaii, (4) Puerto Rico, (5)
the Virgin Islands, (6) Guam, (7) the Canal Zone, (8) American Samoa,
(9) Swains Island, or (10) the Trust Teritory of the Pacific Islands.
(h) The term depart from the United States means depart by land,
water, or air: (1) From the United States for any foreign place, or (2)
from one geographical part of the United States for a separate
geographical part of the United States: Provided, That a trip or journey
upon a public ferry, passenger vessel sailing coastwise on a fixed
schedule, excursion vessel, or aircraft, having both termini in the
continental United States or in any one of the other geographical parts
of the United States and not touching any territory or waters under the
jurisdiction or control of a foreign power, shall not be deemed a
departure from the United States.
(i) The term departure-control officer means any immigration officer
as defined in the regulations of the Immigration and Naturalization
Service who is designated to supervise the departure of aliens, or any
officer or employee of the United States designated by the Governor of
the Canal Zone, the High Commissioner of the Trust Territory of the
Pacific Islands, or the governor of an outlying possession of the
[[Page 323]]
United States, to supervise the departure of aliens.
(j) The term port of departure means a port in the continental
United States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands,
designated as a port of entry by the Attorney General or by the
Commissioner, or in exceptional circumstances such other place as the
departure-control officer may, in his discretion, designate in an
individual case, or a port in American Samoa, Swains Island, the Canal
Zone, or the Trust Territory of the Pacific Islands, designated as a
port of entry by the chief executive officer thereof.
(k) The term special inquiry officer shall have the meaning ascribed
thereto in section 101(b)(4) of the Immigration and Nationality Act.
Sec. 215.2 Authority of departure-control officer to prevent alien's departure from the United States.
(a) No alien shall depart, or attempt to depart, from the United
States if his departure would be prejudicial to the interests of the
United States under the provisions of Sec. 215.3. Any departure-control
officer who knows or has reason to believe that the case of an alien in
the United States comes within the provisions of Sec. 215.3 shall
temporarily prevent the departure of such alien from the United States
and shall serve him with a written temporary order directing him not to
depart, or attempt to depart, from the United States until notified of
the revocation of the order.
(b) The written order temporarily preventing an alien, other than an
enemy alien, from departing from the United States shall become final 15
days after the date of service thereof upon the alien, unless prior
thereto the alien requests a hearing as hereinafter provided. At such
time as the alien is served with an order temporarily preventing his
departure from the United States, he shall be notified in writing
concerning the provisions of this paragraph, and shall be advised of his
right to request a hearing if entitled thereto under Sec. 215.4. In the
case of an enemy alien, the written order preventing departure shall
become final on the date of its service upon the alien.
(c) Any alien who seeks to depart from the United States may be
required, in the discretion of the departure-control officer, to be
examined under oath and to submit for official inspection all documents,
articles, and other property in his possession which are being removed
from the United States upon, or in connection with, the alien's
departure. The departure-control officer may permit certain other
persons, including officials of the Department of State and
interpreters, to participate in such examination or inspection and may
exclude from presence at such examination or inspection any person whose
presence would not further the objectives of such examination or
inspection. The departure-control officer shall temporarily prevent the
departure of any alien who refuses to submit to such examination or
inspection, and may, if necessary to the enforcement of this
requirement, take possession of the alien's passport or other travel
document.
Sec. 215.3 Alien whose departure is deemed prejudicial to the interests of the United States.
The departure from the United States of any alien within one or more
of the following categories shall be deemed prejudicial to the interests
of the United States.
(a) Any alien who is in possession of, and who is believed likely to
disclose to unauthorized persons, information concerning the plans,
preparation, equipment, or establishments for the national defense and
security of the United States.
(b) Any alien who seeks to depart from the United States to engage
in, or who is likely to engage in, activities of any kind designed to
obstruct, impede, retard, delay or counteract the effectiveness of the
national defense of the United States or the measures adopted by the
United States or the United Nations for the defense of any other
country.
(c) Any alien who seeks to depart from the United States to engage
in, or who is likely to engage in, activities which would obstruct,
impede, retard, delay, or counteract the effectiveness of any plans made
or action taken by any country cooperating with the United States in
measures adopted to promote the peace, defense, or safety of
[[Page 324]]
the United States or such other country.
(d) Any alien who seeks to depart from the United States for the
purpose of organizing, directing, or participating in any rebellion,
insurrection, or violent uprising in or against the United States or a
country allied with the United States, or of waging war against the
United States or its allies, or of destroying, or depriving the United
States of sources of supplies or materials vital to the national defense
of the United States, or to the effectiveness of the measures adopted by
the United States for its defense, or for the defense of any other
country allied with the United States.
(e) Any alien who is subject to registration for training and
service in the Armed Forces of the United States and who fails to
present a Registration Certificate (SSS Form No. 2) showing that he has
complied with his obligation to register under the Universal Military
Training and Service Act, as amended.
(f) Any alien who is a fugitive from justice on account of an
offense punishable in the United States.
(g) Any alien who is needed in the United States as a witness in, or
as a party to, any criminal case under investigation or pending in a
court in the United States: Provided, That any alien who is a witness
in, or a party to, any criminal case pending in any criminal court
proceeding may be permitted to depart from the United States with the
consent of the appropriate prosecuting authority, unless such alien is
otherwise prohibited from departing under the provisions of this part.
(h) Any alien who is needed in the United States in connection with
any investigation or proceeding being, or soon to be, conducted by any
official executive, legislative, or judicial agency in the United States
or by any governmental committee, board, bureau, commission, or body in
the United States, whether national, state, or local.
(i) Any alien whose technical or scientific training and knowledge
might be utilized by an enemy or a potential enemy of the United States
to undermine and defeat the military and defensive operations of the
United States or of any nation cooperating with the United States in the
interests of collective security.
(j) Any alien, where doubt exists whether such alien is departing or
seeking to depart from the United States voluntarily except an alien who
is departing or seeking to depart subject to an order issued in
extradition, exclusion, or deportation proceedings.
(k) Any alien whose case does not fall within any of the categories
described in paragraphs (a) to (j), inclusive, of this section, but
which involves circumstances of a similar character rendering the
alien's departure prejudicial to the interests of the United States.
Sec. 215.4 Procedure in case of alien prevented from departing from the United States.
(a) Any alien, other than an enemy alien, whose departure has been
temporarily prevented under the provisions of Sec. 215.2, may, within 15
days of the service upon him of the written order temporarily preventing
his departure, request a hearing before a special inquiry officer. The
alien's request for a hearing shall be made in writing and shall be
addressed to the district director having administrative jurisdiction
over the alien's place of residence. If the alien's request for a
hearing is timely made, the district director shall schedule a hearing
before a special inquiry officer, and notice of such hearing shall be
given to the alien. The notice of hearing shall, as specifically as
security considerations permit, inform the alien of the nature of the
case against him, shall fix the time and place of the hearing, and shall
inform the alien of his right to be represented, at no expense to the
Government, by counsel of his own choosing.
(b) Every alien for whom a hearing has been scheduled under
paragraph (a) of this section shall be entitled: (1) To appear in person
before the special inquiry officer, (2) to be represented by counsel of
his own choice, (3) to have the opportunity to be heard and to present
evidence, (4) to cross-examine the witnesses who appear at the hearing,
except that if, in the course of the examination, it appears that
further examination may divulge information of a confidential or
security nature, the special inquiry officer may, in his
[[Page 325]]
discretion, preclude further examination of the witness with respect to
such matters, (5) to examine any evidence in possession of the
Government which is to be considered in the disposition of the case,
provided that such evidence is not of a confidential or security nature
the disclosure of which would be prejudicial to the interests of the
United States, (6) to have the time and opportunity to produce evidence
and witnesses on his own behalf, and (7) to reasonable continuances,
upon request, for good cause shown.
(c) Any special inquiry officer who is assigned to conduct the
hearing provided for in this section shall have the authority to: (1)
Administer oaths and affirmations, (2) present and receive evidence, (3)
interrogate, examine, and cross examine under oath or affirmation both
the alien and witnesses, (4) rule upon all objections to the
introduction of evidence or motions made during the course of the
hearing, (5) take or cause depositions to be taken, (6) issue subpoenas,
and (7) take any further action consistent with applicable provisions of
law, Executive orders, proclamations, and regulations.
Sec. 215.5 Hearing procedure before special inquiry officer.
(a) The hearing before the special inquiry officer shall be
conducted in accordance with the following procedure:
(1) The special inquiry officer shall advise the alien of the rights
and privileges accorded him under the provisions of Sec. 215.4.
(2) The special inquiry officer shall enter of record: (i) A copy of
the order served upon the alien temporarily preventing his departure
from the United States, and (ii) a copy of the notice of hearing
furnished the alien.
(3) The alien shall be interrogated by the special inquiry officer
as to the matters considered pertinent to the proceeding, with
opportunity reserved to the alien to testify thereafter in his own
behalf, if he so chooses.
(4) The special inquiry officer shall present on behalf of the
Government such evidence, including the testimony of witnesses and the
certificates or written statements of Government officials or other
persons, as may be necessary and available. In the event such
certificates or statements are received in evidence, the alien may
request and, in the discretion of the special inquiry officer, be given
an opportunity to interrogate such officials or persons, by deposition
or otherwise, at a time and place and in a manner fixed by the special
inquiry officer: Provided, That when in the judgment of the special
inquiry officer any evidence relative to the disposition of the case is
of a confidential or security nature the disclosure of which would be
prejudicial to the interests of the United States, such evidence shall
not be presented at the hearing but shall be taken into consideration in
arriving at a decision in the case.
(5) The alien may present such additional evidence, including the
testimony of witnesses, as is pertinent and available.
(b) A complete verbatim transcript of the hearing, except statements
made off the record shall be recorded. The alien shall be entitled, upon
request, to the loan of a copy of the transcript, without cost, subject
to reasonable conditions governing its use.
(c) Following the completion of the hearing, the special inquiry
officer shall make and render a recommended decision in the case, which
shall be governed by and based upon the evidence presented at the
hearing and any evidence of a confidential or security nature which the
Government may have in its possession. The decision of the special
inquiry officer shall recommend: (1) That the temporary order preventing
the departure of the alien from the United States be made final, or (2)
that the temporary order preventing the departure of the alien from the
United States be revoked. This recommended decision of the special
inquiry officer shall be made in writing and shall set forth the
officer's reasons for such decision. The alien concerned shall at his
request be furnished a copy of the recommended decision of the special
inquiry officer, and shall be allowed a reasonable time, not to exceed
10 days, in which to submit representations with respect thereto in
writing.
(d) As soon as practicable after the completion of the hearing and
the rendering of a decision by the special inquiry officer, the district
director shall
[[Page 326]]
forward the entire record of the case, including the recommended
decision of the special inquiry officer and any written representations
submitted by the alien, to the regional commissioner having jurisdiction
over his district. After reviewing the record, the regional commissioner
shall render a decision in the case, which shall be based upon the
evidence in the record and on any evidence or information of a
confidential or security nature which he deems pertinent. Whenever any
decision is based in whole or in part on confidential or security
information not included in the record, the decision shall state that
such information was considered. A copy of the regional commissioner's
decision shall be furnished the alien, or his attorney or
representative. No administrative appeal shall lie from the regional
commissioner's decision.
(e) Notwithstanding any other provision of this part, the
Administrator of the Bureau of Security and Consular Affairs referred to
in section 104(b) of the Immigration and Nationality Act, or such other
officers of the Department of State as he may designate, after
consultation with the Commissioner, or such other officers of the
Immigration and Naturalization Service as he may designate, may at any
time permit the departure of an individual alien or of a group of aliens
from the United States if he determines that such action would be in the
national interest. If the Administrator specifically requests the
Commissioner to prevent the departure of a particular alien or of a
group of aliens, the Commissioner shall not permit the departure of such
alien or aliens until he has consulted with the Administrator.
(f) In any case arising under Secs. 215.1 to 215.7, the
Administrator shall, at his request, be kept advised, in as much detail
as he may indicate is necessary, of the facts and of any action taken or
proposed.
Sec. 215.6 Departure from the Canal Zone, the Trust Territory of the Pacific Islands, or outlying possessions of the United States.
(a) In addition to the restrictions and prohibitions imposed by the
provisions of this part upon the departure of aliens from the United
States, any alien who seeks to depart from the Canal Zone, the Trust
Territory of the Pacific Islands, or an outlying possession of the
United States shall comply with such other restrictions and prohibitions
as may be imposed by regulations prescribed, with the concurrence of the
Administrator of the Bureau of Security and Consular Affairs and the
Commissioner, by the Governor of the Canal Zone, the High Commissioner
of the Trust Territory of the Pacific Islands, or by the governor of an
outlying possession of the United States, respectively. No alien shall
be prevented from departing from such zone, territory, or possession
without first being accorded a hearing as provided in Secs. 215.4 and
215.5.
(b) The Governor of the Canal Zone, the High Commissioner of the
Trust Territory of the Pacific Islands, or the governor of any outlying
possession of the United States shall have the authority to designate
any employee or class of employees of the United States as hearing
officers for the purpose of conducting the hearing referred to in
paragraph (a) of this section. The hearing officer so designated shall
exercise the same powers, duties, and functions as are conferred upon
special inquiry officers under the provisions of this part. The chief
executive officer of such zone, territory, or possession shall, in lieu
of the regional commissioner, review the recommended decision of the
hearing officer, and shall render a decision in any case referred to
him, basing it on evidence in the record and on any evidence or
information of a confidential or a security nature which he deems
pertinent.
Sec. 215.7 Instructions from the Administrator required in certain cases.
In the absence of appropriate instructions from the Administrator of
the Bureau of Security and Consular Affairs, departure-control officers
shall not exercise the authority conferred by Sec. 215.2 in the case of
any alien who seeks to depart from the United States in the status of a
nonimmigrant under section 101(a)(15) (A) or (G) of the Immigration and
Nationality Act, or in the status of a nonimmigrant under
[[Page 327]]
section 11(3), 11(4), or 11(5) of the Agreement between the United
Nations and the United States of America regarding the Headquarters of
the United Nations (61 Stat. 756): Provided, That in cases of extreme
urgency, where the national security so requires, a departure-control
officer may preliminarily exercise the authority conferred by Sec. 215.2
pending the outcome of consultation with the Administrator, which shall
be undertaken immediately. In all cases arising under this section, the
decision of the Administrator shall be controlling: Provided, That any
decision to prevent the departure of an alien shall be based upon a
hearing and record as prescribed in this part.
PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS--Table of Contents
Sec.
216.1 Definition of conditional permanent resident.
216.2 Notification requirements.
216.3 Termination of conditional resident status.
216.4 Joint petition to remove conditional basis of lawful permanent
resident status for alien spouse.
216.5 Waiver of requirement to file joint petition to remove conditions
by alien spouse.
216.6 Petition by entrepreneur to remove conditional basis of lawful
permanent resident status.
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8 CFR
part 2.
Source: 53 FR 30018, Aug. 10, 1988, unless otherwise noted.
Sec. 216.1 Definition of conditional permanent resident.
A conditional permanent resident is an alien who has been lawfully
admitted for permanent residence within the meaning of section
101(a)(20) of the Act, except that a conditional permanent resident is
also subject to the conditions and responsibilities set forth in section
216 or 216A of the Act, whichever is applicable, and part 216 of this
chapter. Unless otherwise specified, the rights, privileges,
responsibilities and duties which apply to all other lawful permanent
residents apply equally to conditional permanent residents, including
but not limited to the right to apply for naturalization (if otherwise
eligible), the right to file petitions on behalf of qualifying
relatives, the privilege of residing permanently in the United States as
an immigrant in accordance with the immigration laws, such status not
having changed; the duty to register with the Selective Service System,
when required; and the responsibility for complying with all laws and
regulations of the United States. All references within this chapter to
lawful permanent residents apply equally to conditional permanent
residents, unless otherwise specified. The conditions of section 216 of
the Act shall not apply to lawful permanent resident status based on a
self-petitioning relationship 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 or
based on eligibility as the derivative child of a self-petitioning
spouse under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act,
regardless of the date on which the marriage to the abusive citizen or
lawful permanent resident occurred.
[53 FR 30018, Aug. 10, 1988, as amended at 59 FR 26590, May 23, 1994; 61
FR 13079, Mar. 26, 1996]
Sec. 216.2 Notification requirements.
(a) When alien acquires status of conditional permanent resident. At
the time an alien acquires conditional permanent residence through
admission to the United States with an immigrant visa or adjustment of
status under section 245 of the Act, the Service shall notify the alien
of the conditional basis of the alien's status, of the requirement that
the alien apply for removal of the conditions within the ninety days
immediately preceding the second anniversary of the alien's having been
granted such status, and that failure to apply for removal of the
conditions will result in automatic termination of the alien's lawful
status in the United States.
(b) When alien is required to apply for removal of the conditional
basis of lawful permanent resident status. Approximately 90 days before
the second anniversary of the date on which the alien obtained
conditional permanent residence, the Service should notify the alien a
second time of the requirement
[[Page 328]]
that the alien and the petitioning spouse or alien entrepreneur must
file a petition to remove the conditional basis of the alien's lawful
permanent residence. Such notification shall be mailed to the alien's
last known address.
(c) Effect of failure to provide notification. Failure of the
Service to provide notification as required by either paragraph (a) or
(b) of this section does not relieve the alien and the petitioning
spouse, or alien entrepreneur of the requirement to file a petition to
remove conditions within the 90 days immediately preceding the second
anniversary of the date on which the alien obtained permanent residence.
[53 FR 30018, Aug. 10, 1988, as amended at 59 FR 26590, May 23, 1994]
Sec. 216.3 Termination of conditional resident status.
(a) During the two-year conditional period. The director shall send
a formal written notice to the conditional permanent resident of the
termination of the alien's conditional permanent resident status if the
director determines that any of the conditions set forth in section
216(b)(1) or 216A(b)(1) of the Act, whichever is applicable, are true,
or it becomes known to the government that an alien entrepreneur who was
admitted pursuant to section 203(b)(5) of the Act obtained his or her
investment capital through other than legal means (such as through the
sale of illegal drugs). If the Service issues a Notice of Intent to
Terminate an alien's conditional resident status, the director shall not
adjudicate Form I-751 or Form I-829 until it has been determined that
the alien's status shall not be terminated. During this time, the alien
shall continue to be a lawful conditional permanent resident with all
the rights, privileges, and responsibilities provided to persons
possessing such status. Prior to issuing the Notice of Termination, the
director shall provide the alien with an opportunity to review and rebut
the evidence upon which the decision is to be based, in accordance with
Sec. 103.2(b)(2) of this chapter. The termination of status, and all of
the rights and privileges concomitant thereto (including authorization
to accept or continue in employment in this country), shall take effect
as of the date of such determination by the director, although the alien
may request a review of such determination in deportation proceedings.
In addition to the notice of termination, the director shall issue an
order to show cause why the alien should not be deported from the United
States, in accordance with part 242 of this chapter. During the ensuing
deportation proceedings, the alien may submit evidence to rebut the
determination of the director. The burden of proof shall be on the
Service to establish, by a preponderance of the evidence, that one or
more of the conditions in section 216(b)(1) or 216A(b)(1) of the Act,
whichever is applicable, are true, or that an alien entrepreneur who was
admitted pursuant to section 203(b)(5) of the Act obtained his or her
investment capital through other than legal means (such as through the
sale of illegal drugs).
(b) Determination of fraud after two years. If, subsequent to the
removal of the conditional basis of an alien's permanent resident
status, the director determines that an alien spouse obtained permanent
resident status through a marriage which was entered into for the
purpose of evading the immigration laws or an alien entrepreneur
obtained permanent resident status through a commercial enterprise which
was improper under section 216A(b)(1) of the Act, the director may
institute rescission proceedings pursuant to section 246 of the Act (if
otherwise appropriate) or deportation proceedings under section 242 of
the Act.
[59 FR 26590, May 23, 1994]
Sec. 216.4 Joint petition to remove conditional basis of lawful permanent resident status for alien spouse.
(a) Filing the petition--(1) General procedures. Within the 90-day
period immediately preceding the second anniversary of the date on which
the alien obtained permanent residence, the alien and the alien's spouse
who filed the original immigrant visa petition or fiance/fiancee
petition through which the alien obtained permanent residence must file
a Petition to Remove the Conditions on Residence (Form I-751) with the
Service. The petition shall be filed within this time period regardless
[[Page 329]]
of the amount of physical presence which the alien has accumulated in
the United States. Before Form I-751 may be considered as properly
filed, it must be accompanied by the fee required under Sec. 103.7(b) of
this chapter and by documentation as described in paragraph (a)(5) of
this section, and it must be properly signed by the alien and the
alien's spouse. If the joint petition cannot be filed due to the
termination of the marriage through annulment, divorce, or the death of
the petitioning spouse, or if the petitioning spouse refuses to join in
the filing of the petition, the conditional permanent resident may apply
for a waiver of the requirement to file the joint petition in accordance
with the provisions of Sec. 216.5 of this part. Upon receipt of a
properly filed Form I-751, the alien's conditional permanent resident
status shall be extended automatically, if necessary, until such time as
the director has adjudicated the petition.
(2) Dependent children. Dependent children of a conditional
permanent resident who acquired conditional permanent resident status
concurrently with the parent may be included in the joint petition filed
by the parent and the parent's petitioning spouse. A child shall be
deemed to have acquired conditional residence status concurrently with
the parent if the child's residence was acquired on the same date or
within 90 days thereafter. Children who cannot be included in a joint
petition filed by the parent and parent's petitioning spouse due to the
child's not having acquired conditional resident status concurrently
with the parent, the death of the parent, or other reasons may file a
separate Petition to Remove the Conditions on Residence (Form I-751).
(3) Jurisdiction. Form I-751 shall be filed with the director of the
regional service center having jurisdiction over the alien's place of
residence.
(4) Physical presence at time of filing. A petition may be filed
regardless of whether the alien is physically present in the United
States. However, if the alien is outside the United States at the time
of filing, he or she must return to the United States, with his or her
spouse and dependent children, to comply with the interview requirements
contained in the Act. Furthermore, if the documentation submitted in
support of the petition includes affidavits of third parties having
knowledge of the bona fides of the marital relationship, the petitioner
must arrange for the affiants to be present at the interview, at no
expense to the government. Once the petition has been properly filed,
the alien may travel outside the United States and return if in
possession of documentation as set forth in Sec. 211.1(b)(1) of this
chapter, provided the alien and the petitioning spouse comply with the
interview requirements described in Sec. 216.4(b). An alien who is not
physically present in the United States during the filing period but
subsequently applies for admission to the United States shall be
processed in accordance with Sec. 235.11 of this chapter.
(5) Documentation. Form I-751 shall be accompanied by evidence that
the marriage was not entered into for the purpose of evading the
immigration laws of the United States. Such evidence may include:
(i) Documentation showing joint ownership of property;
(ii) Lease showing joint tenancy of a common residence;
(iii) Documentation showing commingling of financial resources;
(iv) Birth certificates of children born to the marriage;
(v) Affidavits of third parties having knowledge of the bona fides
of the marital relationship, or
(vi) Other documentation establishing that the marriage was not
entered into in order to evade the immigration laws of the United
States.
(6) Termination of status for failure to file petition. Failure to
properly file Form I-751 within the 90-day period immediately preceding
the second anniversary of the date on which the alien obtained lawful
permanent residence on a conditional basis shall result in the automatic
termination of the alien's permanent residence status and the initiation
of proceedings to remove the alien from the United States. In such
proceedings the burden shall be on the alien to establish that he or she
complied with the requirement to file the joint petition within the
designated period. Form I-751 may be filed
[[Page 330]]
after the expiration of the 90-day period only if the alien establishes
to the satisfaction of the director, in writing, that there was good
cause for the failure to file Form I-751 within the required time
period. If the joint petition is filed prior to the jurisdiction vesting
with the immigration judge in deportation proceedings and the director
excuses the late filing and approves the petition, he or she shall
restore the alien's permanent residence status, remove the conditional
basis of such status and cancel any outstanding order to show cause in
accordance with Sec. 242.7 of this chapter. If the joint petition is not
filed until after jurisdiction vests with the immigration judge, the
immigration judge may terminate the matter upon joint motion by the
alien and the Service.
(b) Interview--(1) Authority to waive interview. The director of the
regional service center shall review the Form I-751 filed by the alien
and the alien's spouse to determine whether to waive the interview
required by the Act. If satisfied that the marriage was not for the
purpose of evading the immigration laws, the regional service center
director may waive the interview and approve the petition. If not so
satisfied, then the regional service center director shall forward the
petition to the district director having jurisdiction over the place of
the alien's residence so that an interview of both the alien and the
alien's spouse may be conducted. The director must either waive the
requirement for an interview and adjudicate the petition or arrange for
an interview within 90 days of the date on which the petition was
properly filed.
(2) Location of interview. Unless waived, an interview on the Form
I-751 shall be conducted by an immigration examiner or other officer so
designated by the district director at the district office, files
control office or suboffice having jurisdiction over the residence of
the joint petitioners.
(3) Termination of status for failure to appear for interview. If
the conditional resident alien and/or the petitioning spouse fail to
appear for an interview in connection with the joint petition required
by section 216(c) of the Act, the alien's permanent residence status
will be automatically terminated as of the second anniversary of the
date on which the alien obtained permanent residence. The alien shall be
provided with written notification of the termination and the reasons
therefor, and an order to show cause shall be issued placing the alien
under deportation proceedings. The alien may seek review of the decision
to terminate his or her status in such proceedings, but the burden shall
be on the alien to establish compliance with the interview requirements.
If the alien submits a written request that the interview be rescheduled
or that the interview be waived, and the director determines that there
is good cause for granting the request, the interview may be rescheduled
or waived, as appropriate. If the interview is rescheduled at the
request of the petitioners, the Service shall not be required to conduct
the interview within the 90-day period following the filing of the
petition.
(c) Adjudication of petition. The director shall adjudicate the
petition within 90 days of the date of the interview, unless the
interview is waived in accordance with paragraph (b)(1) of this section.
In adjudicating the petition the director shall determine whether--
(1) The qualifying marriage was entered into in accordance with the
laws of the place where the marriage took place;
(2) The qualifying marriage has been judicially annulled or
terminated, other than through the death of a spouse;
(3) The qualifying marriage was entered into for the purpose of
procuring permanent residence status for the alien; or
(4) A fee or other consideration was given (other than a fee or
other consideration to an attorney for assistance in preparation of a
lawful petition) in connection with the filing of the petition through
which the alien obtained conditional permanent residence.
If derogatory information is determined regarding any of these
issues, the director shall offer the petitioners the opportunity to
rebut such information. If the petitioners fail to overcome such
derogatory information the director may deny the joint petition,
terminate the alien's permanent residence
[[Page 331]]
and issue an order to show cause to initiate deportation proceedings. If
derogatory information not relating to any of these issues is determined
during the course of the interview, such information shall be forwarded
to the investigations unit for appropriate action. If no unresolved
derogatory information is determined relating to these issues, the
petition shall be aproved and the conditional basis of the alien's
permanent residence status removed, regardless of any action taken or
contemplated regarding other possible grounds for deportation.
(d) Decision--(1) Approval. If the director approves the joint
petition he or she shall provide written notice of the decision to the
alien and shall require the alien to report to the appropriate office of
the Service for processing for a new Alien Registration Receipt Card (if
necessary), at which time the alien shall surrender any Alien
Registration Receipt Card previously issued.
(2) Denial. If the director denies the joint petition, he or she
shall provide written notice to the alien of the decision and the
reason(s) therefor and shall issue an order to show cause why the alien
should not be deported from the United States. The alien's lawful
permanent resident status shall be terminated as of the date of the
director's written decision. The alien shall also be instructed to
surrender any Alien Registration Receipt Card previously issued by the
Service. No appeal shall lie from the decision of the director; however,
the alien may seek review of the decision in deportation proceedings. In
such proceedings the burden of proof shall be on the Service to
establish, by a preponderance of the evidence, that the facts and
information set forth by the petitioners are not true and that the
petition was properly denied.
[53 FR 30018, Aug. 10, 1988, as amended at 54 FR 30369, July 20, 1989;
59 FR 26590, May 23, 1994]
Sec. 216.5 Waiver of requirement to file joint petition to remove conditions by alien spouse.
(a) General. A conditional resident alien who is unable to meet the
requirements under section 216 of the Act for a joint petition for
removal of the conditional basis of his or her permanent resident status
may file a Petition to Remove the Conditions on Residence (Form I-751),
if the alien requests a waiver, was not at fault in failing to meet the
filing requirement, and the conditional resident alien is able to
establish that:
(1) Deportation from the United States would result in extreme
hardship;
(2) The marriage upon which his or her status was based was entered
into in good faith by the conditional resident alien, but the marriage
was terminated other than by death, and the conditional resident was not
at fault in failing to file a timely petition; or
(3) The qualifying marriage was entered into in good faith by the
conditional resident but during the marriage the alien spouse or child
was battered by or subjected to extreme cruelty committed by the citizen
or permanent resident spouse or parent.
(b) Fee. Form I-751 shall be accompanied by the appropriate fee
required under Sec. 103.7(b) of this Chapter.
(c) Jurisdiction. Form I-751 shall be filed with the regional
service center director having jurisdiction over the alien's place of
residence.
(d) Interview. The regional service center director may refer the
application to the appropriate district, files control office or
suboffice and require that the alien appear for an interview in
connection with the application for a waiver. The director shall deny
the application and initiate deportation proceedings if the alien fails
to appear for the interview as required, unless the alien establishes
good cause for such failure and the interview is rescheduled.
(e) Adjudication of waiver application--(1) Application based on
claim of hardship. In considering an application for a waiver based upon
an alien's claim that extreme hardship would result from the alien's
deportation from the United States, the director shall take into account
only those factors which arose subsequent to the alien's entry as a
conditional permanent resident. The director shall bear in mind that any
deportation from the United States is likely to result in a certain
degree of hardship, and that only in those cases
[[Page 332]]
where the hardship is extreme should the application for a waiver be
granted. The burden of establishing that extreme hardship exists rests
solely with the applicant.
(2) Application for waiver based upon the alien's claim that the
marriage was entered into in good faith. In considering whether an alien
entered into a qualifying marriage in good faith, the director shall
consider evidence relating to the amount of commitment by both parties
to the marital relationship. Such evidence may include--
(i) Documentation relating to the degree to which the financial
assets and liabilities of the parties were combined;
(ii) Documentation concerning the length of time during which the
parties cohabited after the marriage and after the alien obtained
permanent residence;
(iii) Birth certificates of children born to the marriage; and
(iv) Other evidence deemed pertinent by the director.
(3) Application for waiver based on alien's claim of having been
battered or subjected to extreme mental cruelty. A conditional resident
who entered into the qualifying marriage in good faith, and who was
battered or was the subject of extreme cruelty or whose child was
battered by or was the subject of extreme cruelty perpetrated by the
United States citizen or permanent resident spouse during the marriage,
may request a waiver of the joint filing requirement. The conditional
resident parent of a battered or abused child may apply for the waiver
regardless of the child's citizenship or immigration status.
(i) 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.
(ii) A conditional resident or former conditional resident who has
not departed the United States after termination of resident status or
under an order of deportation may apply for the waiver. The conditional
resident may apply for the waiver regardless of his or her present
marital status. The conditional resident may still be residing with the
citizen or permanent resident spouse, or may be divorced or separated.
(iii) Evidence of physical abuse may include, but is not limited to,
expert testimony in the form of reports and affidavits from police,
judges, medical personnel, school officials and social service agency
personnel. The Service must be satisfied with the credibility of the
sources of documentation submitted in support of the application.
(iv) The Service is not in a position to evaluate testimony
regarding a claim of extreme mental cruelty provided by unlicensed or
untrained individuals. Therefore, all waiver applications based upon
claims of extreme mental cruelty must be supported by the evaluation of
a professional recognized by the Service as an expert in the field. An
evaluation which was obtained in the course of the divorce proceedings
may be submitted if it was provided by a professional recognized by the
Service as an expert in the field.
(v) The evaluation must contain the professional's full name,
professional address and license number. It must also identify the
licensing, certifying, or registering authority. The Service retains the
right to verify the professional's license.
(vi) The Service's decision on extreme mental cruelty waivers will
be based upon the evaluation of the recognized professional. The Service
reserves the right to request additional evaluations from expert
witnesses chosen by the Service. Requests for additional evaluations
must be authorized by the Assistant Regional Commissioner for
Adjudications.
(vii) Licensed clinical social workers, psychologists, and
psychiatrists are professionals recognized by the Service for the
purpose of this section. A clinical social worker who is not licensed
only because the state in which he or she practices does not provide for
licensing will be considered a licensed professional recognized by the
Service
[[Page 333]]
if he or she is included in the Register of Clinical Social Workers
published by the National Association of Social Workers or is certified
by the American Board of Examiners in Clinical Social Work.
(viii) As directed by the statute, the information contained in the
application and supporting documents shall not be released without a
court order or the written consent of the applicant; or, in the case of
a child, the written consent of the parent or legal guardian who filed
the waiver application on the child's behalf. Information may be
released only to the applicant, his or her authorized representative, an
officer of the Department of Justice, or any federal or State law
enforcement agency. Any information provided under this part may be used
for the purposes of enforcement of the Act or in any criminal
proceeding.
(f) Decision. The director shall provide the alien with written
notice of the decision on the application for waiver. If the decision is
adverse, the director shall advise the alien of the reasons therefor,
notify the alien of the termination of his or her permanent residence
status, instruct the alien to surrender any Alien Registration Receipt
Card issued by the Service and issue an order to show cause placing the
alien under deportation proceedings. No appeal shall lie from the
decision of the director; however, the alien may seek review of such
decision in deportation proceedings.
[53 FR 30018, Aug. 10, 1988, as amended at 56 FR 22637, May 16, 1991; 59
FR 26591, May 23, 1994]
Sec. 216.6 Petition by entrepreneur to remove conditional basis of lawful permanent resident status.
(a) Filing the petition--(1) General procedures. A petition to
remove the conditional basis of the permanent resident status of an
alien accorded conditional permanent residence pursuant to section
203(b)(5) of the Act must be filed by the alien entrepreneur on Form I-
829, Petition by Entrepreneur to Remove Conditions. The alien
entrepreneur must file Form I-829 within the 90-day period preceding the
second anniversary of his or her admission to the United States as a
conditional permanent resident. Before Form I-829 may be considered as
properly filed, it must be accompanied by the fee required under
Sec. 103.7(b)(1) of this chapter, and by documentation as described in
paragraph (a)(4) of this section, and it must be properly signed by the
alien. Upon receipt of a properly filed Form I-829, the alien's
conditional permanent resident status shall be extended automatically,
if necessary, until such time as the director has adjudicated the
petition. The entrepreneur's spouse and children should be included in
the petition to remove conditions. Children who have reached the age of
twenty-one or who have married during the period of conditional
permanent residence and the former spouse of an entrepreneur, who was
divorced from the entrepreneur during the period of conditional
permanent residence, may be included in the alien entrepreneur's
petition or may file a separate petition.
(2) Jurisdiction. Form I-829 must be filed with the regional service
center having jurisdiction over the location of the alien entrepreneur's
commercial enterprise in the United States.
(3) Physical presence at time of filing. A petition may be filed
regardless of whether the alien is physically present in the United
States. However, if the alien is outside the United States at the time
of filing, he or she must return to the United States, with his or her
spouse and children, if necessary, to comply with the interview
requirements contained in the Act. Once the petition has been properly
filed, the alien may travel outside the United States and return if in
possession of documentation as set forth in Sec. 211.1(b)(1) of this
chapter, provided the alien complies with the interview requirements
described in paragraph (b) of this section. An alien who is not
physically present in the United States during the filing period but
subsequently applies for admission to the United States shall be
processed in accordance with Sec. 235.11 of this chapter.
(4) Documentation. The petition for removal of conditions must be
accompanied by the following evidence:
(i) Evidence that a commercial enterprise was established by the
alien. Such evidence may include, but is not limited to, Federal income
tax returns;
[[Page 334]]
(ii) Evidence that the alien invested or was actively in the process
of investing the requisite capital. Such evidence may include, but is
not limited to, an audited financial statement or other probative
evidence; and
(iii) Evidence that the alien sustained the actions described in
paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the period
of the alien's residence in the United States. The alien will be
considered to have sustained the actions required for removal of
conditions if he or she has, in good faith, substantially met the
capital investment requirement of the statute and continuously
maintained his or her capital investment over the two years of
conditional residence. Such evidence may include, but is not limited to,
bank statements, invoices, receipts, contracts, business licenses,
Federal or State income tax returns, and Federal or State quarterly tax
statements.
(iv) Evidence that the alien created or can be expected to create
within a reasonable time ten full-time jobs for qualifying employees. In
the case of a ``troubled business'' as defined in 8 CFR 204.6(j)(4)(ii),
the alien entrepreneur must submit evidence that the commercial
enterprise maintained the number of existing employees at no less than
the pre-investment level for the period following his or her admission
as a conditional permanent resident. Such evidence may include payroll
records, relevant tax documents, and Forms I-9.
(5) Termination of status for failure to file petition. Failure to
properly file Form I-829 within the 90-day period immediately preceding
the second anniversary of the date on which the alien obtained lawful
permanent residence on a conditional basis shall result in the automatic
termination of the alien's permanent resident status and the initiation
of deportation proceedings. The director shall send a written notice of
termination and an order to show cause to an alien entrepreneur who
fails to timely file a petition for removal of conditions. No appeal
shall lie from this decision; however, the alien may request a review of
the determination during deportation proceedings. In deportation
proceedings, the burden of proof shall rest with the alien to show by a
preponderance of the evidence that he or she complied with the
requirement to file the petition within the designated period. The
director may deem the petition to have been filed prior to the second
anniversary of the alien's obtaining conditional permanent resident
status and accept and consider a late petition if the alien demonstrates
to the director's satisfaction that failure to file a timely petition
was for good cause and due to extenuating circumstances. If the late
petition is filed prior to jurisdiction vesting with the immigration
judge in deportation proceedings and the director excuses the late
filing and approves the petition, he or she shall restore the alien's
permanent resident status, remove the conditional basis of such status,
and cancel any outstanding order to show cause in accordance with
Sec. 242.7 of this chapter. If the petition is not filed until after
jurisdiction vests with the immigration judge, the immigration judge may
terminate the matter upon joint motion by the alien and the Service.
(6) Death of entrepreneur and effect on spouse and children. If an
entrepreneur dies during the prescribed two-year period of conditional
permanent residence, the spouse and children of the entrepreneur will be
eligible for removal of conditions if it can be demonstrated that the
conditions set forth in paragraph (a)(4) of this section have been met.
(b) Petition review--(1) Authority to waive interview. The director
of the service center shall review the Form I-829 and the supporting
documents to determine whether to waive the interview required by the
Act. If satisfied that the requirements set forth in paragraph (c)(1) of
this section have been met, the service center director may waive the
interview and approve the petition. If not so satisfied, then the
service center director shall forward the petition to the district
director having jurisdiction over the location of the alien
entrepreneur's commercial enterprise in the United States so that an
interview of the alien entrepreneur may be conducted. The director must
either waive the requirement
[[Page 335]]
for an interview and adjudicate the petition or arrange for an interview
within 90 days of the date on which the petition was properly filed.
(2) Location of interview. Unless waived, an interview relating to
the Form I-829 shall be conducted by an immigration examiner or other
officer so designated by the district director at the district office
that has jurisdiction over the location of the alien entrepreneur's
commercial enterprise in the United States.
(3) Termination of status for failure to appear for interview. If
the alien fails to appear for an interview in connection with the
petition when requested by the Service, the alien's permanent resident
status will be automatically terminated as of the second anniversary of
the date on which the alien obtained permanent residence. The alien will
be provided with written notification of the termination and the reasons
therefore, and an order to show cause shall be issued placing the alien
under deportation proceedings. The alien may seek review of the decision
to terminate his or her status in such proceedings, but the burden shall
be on the alien to establish by a preponderance of the evidence that he
or she complied with the interview requirements. If the alien has failed
to appear for a scheduled interview, he or she may submit a written
request to the district director asking that the interview be
rescheduled or that the interview be waived. That request should explain
his or her failure to appear for the scheduled interview, and if a
request for waiver of the interview, the reasons such waiver should be
granted. If the district director determines that there is good cause
for granting the request, the interview may be rescheduled or waived, as
appropriate. If the district director waives the interview, he or she
shall restore the alien's conditional permanent resident status, cancel
any outstanding order to show cause in accordance with Sec. 242.7 of
this chapter, and proceed to adjudicate the alien's petition. If the
district director reschedules that alien's interview, he or she shall
restore the alien's conditional permanent resident status, and cancel
any outstanding order to show cause in accordance with Sec. 242.7 of
this chapter. If the interview is rescheduled at the request of the
alien, the Service shall not be required to conduct the interview within
the 90-day period following the filing of the petition.
(c) Adjudication of petition. (1) The decision on the petition shall
be made within 90 days of the date of filing or within 90 days of the
interview, whichever is later. In adjudicating the petition, the
director shall determine whether:
(i) A commercial enterprise was established by the alien;
(ii) The alien invested or was actively in the process of investing
the requisite capital; and
(iii) The alien sustained the actions described in paragraphs
(c)(1)(i) and (c)(1)(ii) of this section throughout the period of the
alien's residence in the United States. The alien will be considered to
have sustained the actions required for removal of conditions if he or
she has, in good faith, substantially met the capital investment
requirement of the statute and continuously maintained his or her
capital investment over the two years of conditional residence.
(iv) The alien created or can be expected to create within a
reasonable period of time ten full-time jobs to qualifying employees. In
the case of a ``troubled business'' as defined in 8 CFR 204.6(j)(4)(ii),
the alien maintained the number of existing employees at no less than
the pre-investment level for the previous two years.
(2) If derogatory information is determined regarding any of these
issues or it becomes known to the government that the entrepreneur
obtained his or her investment funds through other than legal means
(such as through the sale of illegal drugs), the director shall offer
the alien entrepreneur the opportunity to rebut such information. If the
alien entrepreneur fails to overcome such derogatory information or
evidence the investment funds were obtained through other than legal
means, the director may deny the petition, terminate the alien's
permanent resident status, and issue an order to show cause. If
derogatory information not
[[Page 336]]
relating to any of these issues is determined during the course of the
interview, such information shall be forwarded to the investigations
unit for appropriate action. If no unresolved derogatory information is
determined relating to these issues, the petition shall be approved and
the conditional basis of the alien's permanent resident status removed,
regardless of any action taken or contemplated regarding other possible
grounds for deportation.
(d) Decision--(1) Approval. If, after initial review or after the
interview, the director approves the petition, he or she will remove the
conditional basis of the alien's permanent resident status as of the
second anniversary of the alien's entry as a conditional permanent
resident. He or she shall provide written notice of the decision to the
alien and shall require the alien to report to the appropriate district
office for processing for a new Alien Registration Receipt Card, Form I-
551, at which time the alien shall surrender any Alien Registration
Receipt Card previously issued.
(2) Denial. If, after initial review or after the interview, the
director denies the petition, he or she shall provide written notice to
the alien of the decision and the reason(s) therefor, and shall issue an
order to show cause why the alien should not be deported from the United
States. The alien's lawful permanent resident status and that of his or
her spouse and any children shall be terminated as of the date of the
director's written decision. The alien shall also be instructed to
surrender any Alien Registration Receipt Card previously issued by the
Service. No appeal shall lie from this decision; however, the alien may
seek review of the decision in deportation proceedings. In deportation
proceedings, the burden shall rest with the Service to establish by a
preponderance of the evidence that the facts and information in the
alien's petition for removal of conditions are not true and that the
petition was properly denied.
[59 FR 26591, May 23, 1994]
PART 217--VISA WAIVER PILOT PROGRAM--Table of Contents
Sec.
217.1 Scope.
217.2 Eligibility.
217.3 Maintenance of status.
217.4 Excludability and deportability.
217.5 Designated countries.
217.6 Carrier agreements.
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
Source: 53 FR 24901, June 30, 1988, unless otherwise noted.
Sec. 217.1 Scope.
The Visa Waiver Pilot Program is established solely pursuant to the
provisions of section 217 of the Act and subject to all conditions and
restrictions stipulated in that section, including those relating to the
length of the program and the number of countries which may be
designated as Visa Waiver Pilot Program countries.
Sec. 217.2 Eligibility.
(a) General. Notwithstanding the provisions of section
212(a)(7)(B)(i)(II) of the Act, a nonimmigrant visa may be waived for an
alien who is a national of a country enumerated in Sec. 217.5 of this
part regardless of place of residence or point of embarkation who:
(1) Is classifiable as a visitor as defined in section 101(a)(15)(B)
of the Act;
(2) Seeks admission to the United States for a period not to exceed
ninety days;
(3) Is in possession of a valid passport issued by a designated
country;
(4) Is in possession of a completed and signed Form I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form;
(5) Waives any right otherwise provided in the Act to administrative
or judicial review or appeal of an immigration officer's determination
as to his or her admissibility other than on the basis of an application
for asylum in the United States as provided in section 208 of the Act;
and
(6) Waives any right to contest any action for deportation, other
than on the basis of an application for asylum in the United States as
provided in section 208 of the Act.
[[Page 337]]
(b) Applicants arriving by air or sea. (1) Applicants must be in
possession of a return trip ticket which will transport the traveler out
of the United States to any other foreign port or place as long as the
trip does not terminate in contiguous territory or an adjacent island;
or will transport the traveler to contiguous territory or an adjacent
island, if the traveler is a resident of the country of destination. A
return trip ticket includes any of the following:
(i) A round trip, non-transferable transportation ticket which is
valid for a period of not less than one year;
(ii) Airline employee passes indicating return passage;
(iii) Individual vouchers;
(iv) Group vouchers for charter flights only; or
(v) Military travel orders which include military dependents for
return to duty stations outside the United States on United States
military flights.
(2) Applicants must arrive in the United States on a carrier which
has entered into an agreement as provided in Sec. 217.6 of this part.
(c) Applicants arriving at land border Ports-of-Entry. Any applicant
arriving at a land border Port-of-Entry must provide evidence to the
immigration officer of financial solvency and a domicile abroad to which
the applicant intends to return. An applicant arriving at a land border
Port-of-Entry will be charged a fee as prescribed in Sec. 103.7(b)(1) of
this chapter for issuance of Form I-94W, nonimmigrant Visa Waiver
Arrival/Departure Form.
(d) Aliens in transit. An alien who is in transit through the United
States is eligible to apply for admission under the Visa Waiver Pilot
Program, provided the applicant meets the eligibility criteria set forth
in this section.
[53 FR 24901, June 30, 1988, as amended at 53 FR 50160, Dec. 13, 1988;
56 FR 32953, July 18, 1991; 60 FR 40068, Aug. 7, 1995]
Sec. 217.3 Maintenance of status.
(a) Eligibility for immigration benefits. An alien admitted to the
United States under this part may be admitted as a visitor for business
or pleasure for a period not to exceed ninety days. An alien admitted
under this part must maintain his or her status as a visitor as defined
in section 101(a)(15)(B) of the Act and must not engage in activities in
the United States which are inconsistent with that status. An alien
admitted under this part is not eligible for extension of his or her
authorized period of temporary stay in the United States; is not
eligible for adjustment of his or her status to that of an alien
lawfully admitted for permanent residence pursuant to section 245 of the
Act, other than as an immediate relative as defined in section 201(b) of
the Act or under the provisions of section 245(i) of the Act; and is not
eligible for change of nonimmigrant status pursuant to section 248 of
the Act.
(b) Satisfactory departure. If an emergency prevents an alien
admitted under this part from departing from the United States within
his or her period of authorized stay, the district director 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
thirty days. If departure is accomplished during this period, the alien
is to be regarded as having satisfactorily accomplished the visit
without overstaying the allotted time.
(c) Readmission after departure to contiguous territory or adjacent
island. An alien admitted to the United States under this part may be
readmitted to the United States in the status of a Visa Waiver Pilot
Program visitor after a departure to foreign contiguous territory or
adjacent island provided that:
(1) His or her authorized period of temporary stay has not expired,
(2) He or she intends to depart the United States prior to the
expiration of his or her authorized period of temporary stay,
(3) He or she presents a valid, unexpired passport which reflects
admission to the United States as a Visa Waiver Pilot Program visitor,
and
(4) He or she continues to meet all criteria set forth in
Sec. 217.2(a) of this part with the exception of arrival on a signatory
carrier.
(d) Adjacent islands. The term adjacent islands means Anguilla,
Antigua, Aruba, Bahamas, Barbados, Barbuda, Bermuda, Bonaire, British
Virgin Islands, Cayman Islands, Cuba, Curacao, Dominica, the Dominican
Republic,
[[Page 338]]
Grenada, Guadeloupe, Haiti, Jamaica, Marie-Galante, Martinique,
Miquelon, Montserrat, Saba, Saint-Barthelemy, Saint Christopher, Saint
Eustatius, Saint Kitts-Nevis, Saint Lucia, Saint Maarten, Saint Martin,
Saint Pierre, Saint Vincent and Grenadines, Trinidad and Tobago, Turks
and Caicos Islands, and other British, French and Netherlands territory
or possession bordering on the Caribbean Sea.
An alien who applies for admission under the provisions of this section
may be admitted to the United States only for the remainder of the
authorized period of temporary stay which he or she was granted upon
arrival in the United States in accordance with the provisions of
Sec. 217.2(a) of this part. A Visa Waiver Pilot Program visitor who
applies for admission under the provisions of this section is subject to
exclusion from the United States pursuant to section 212 of the Act and
this part. Departure from and readmission to the United States of an
alien under this subsection does not relieve any obligations and
responsibilities of the carrier which initially transported such alien
to the United States for admission under the provisions of this part.
[53 FR 24901, June 30, 1988, as amended at 53 FR 50160, Dec. 13, 1988;
59 FR 51095, Oct. 7, 1994]
Sec. 217.4 Excludability and deportability.
(a) Consent to apply for admission. Aliens who have been deported
from the United States require the consent of the Attorney General to
apply for admission to the United States pursuant to section 212(a)(17)
of the Act and may not be admitted to the United States under the
provisions of this part notwithstanding the fact that the required
consent of the Attorney General may have been secured. Such aliens must
secure a visa in order to be admitted to the United States as
nonimmigrants.
(b) Determinations of excludability and inadmissibility. (1) An
alien who applies for admission under the provisions of section 217 of
the Act, who is determined by an immigration officer not to be eligible
for admission under that section or to be excludable from the United
States under one or more of the grounds of excludability 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 the United States and removed. Such
refusal and removal shall be made at the level of the port director or
officer-in-charge, or an officer acting in that capacity, and 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 under section
217 of the Act, who applies for asylum in the United States must be
referred to an immigration judge for further inquiry.
(2) 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 Attorney General
enumerated in section 212(d) of the Act.
(c) Determination of deportability. An alien who has been admitted
to the United States under the provisions of section 217 of the Act and
of this part who is determined by an immigration officer to be
deportable from the United States under one or more of the deportation
grounds listed in section 241 of the Act shall be removed from the
United States to his or her country of nationality or last residence.
Such removal for deportation shall be determined by the district
director who has jurisdiction over the place where the alien is found,
and shall be effected without referral of the alien to an immigration
judge for a determination of deportability, except that an alien
admitted as a Visa Waiver Pilot Program visitor who applies for asylum
in the United States must be referred to an immigration judge for a
determination of deportability.
(d)(1) Removal of excludable and deportable aliens who arrived by
air or sea. The carrier which transported to the United States an alien
who is to be removed pursuant to this section will be notified
immediately of the determination to remove such alien by means of Form
I-259, Notice to Detain, Deport,
[[Page 339]]
Remove, or Present Aliens. Removal from the United States 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 the United States
as required in Sec. 217.2(b)(1) of this part. Such removal shall be on
the first available means of transportation to the alien's point of
embarkation to the United States. Nothing in this part absolves the
carrier of the responsibility to remove any excludable or deportable
alien at carrier expense, as provided in Sec. 217.6 (b) of this part.
(2) Removal of excludable and deportable aliens who arrived at land
border ports of entry. Removal under this section will be by the first
available means of transportation deemed appropriate by the district
director.
[53 FR 24901, June 30, 1988, as amended at 56 FR 32953, July 18, 1991]
Sec. 217.5 Designated countries.
(a)(1) Visa Waiver Pilot Program countries. United Kingdom
(effective July 1, 1988); Japan (effective December 15, 1988); France
and Switzerland (effective July 1, 1989); Germany and Sweden (effective
July 15, 1989); Italy and the Netherlands (effective July 29, 1989);
Andorra, Austria, Belgium, Denmark, Finland, Iceland, Liechtenstein,
Luxembourg, Monaco, New Zealand, Norway, San Marino, and Spain
(effective October 1, 1991); Brunei (effective July 29, 1993); Argentina
(effective July 8, 1996); and Australia (effective July 29, 1996) have
been designated as Visa Waiver Pilot Program countries based on the
criteria set forth at sections 217(a)(2)(A) and 217(c) of the Act.
(2) Visa Waiver Pilot Program countries with Probationary Status.
Effective April 1, 1995, until September 30, 1998 or the expiration of
the Visa Waiver Pilot Program, whichever comes first, Ireland has been
designated as a Visa Waiver Pilot Program country with Probationary
Status in accordance with section 217(g) of the Act.
(b) Definitions. For the purposes of this part the term national of
a Visa Waiver Pilot Program country as used in section 217(a)(2) of the
Act when applied to the United Kingdom refers only to British citizens
who have the unrestricted right of permanent abode in the United Kingdom
(England, Scotland, Wales, Northern Ireland, Channel Islands, and the
Isle of Man); it does not refer to British overseas citizens, British
dependent territories citizens, or citizens of British Commonwealth
countries.
[53 FR 24901, June 30, 1988, as amended at 56 FR 46716, Sept. 13, 1991;
58 FR 40581, July 29, 1993; 60 FR 15856, Mar. 28, 1995; 61 FR 35600,
July 8, 1996; 61 FR 39273, July 29, 1996; 61 FR 41684, Aug. 9, 1996]
Sec. 217.6 Carrier agreements.
(a) General. The carrier agreements referred to in section 217(e) of
the Act shall be made by the Commissioner on behalf of the Attorney
General and shall be on Form I-775, Visa Waiver Pilot Program Agreement.
The term ``carrier'' as used in this part refers to the owner,
charterer, lessee or authorized agent of any commercial vessel or
commercial aircraft engaged in transporting passengers to the United
States from a foreign place.
(b) Agreement provisions. (1) To be authorized to transport an alien
to the United States pursuant to section 217 of the Act and this part, a
carrier must enter into an agreement on Form I-775 to transport as an
applicant for admission under section 217 of the Act and this part, only
an alien who:
(i) Is a national of and in possession of a valid passport issued by
a country listed in Sec. 217.5 of this part;
(ii) Is in possession of a completed and signed Form I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form, prior to inspection;
(iii) Seeks admission into the United States for 90 days or less;
(iv) Is in possession of round trip, non-transferable passage that
is valid for one year, issued by a carrier signatory on Form I-775, or
by authorized agents who are subcontractors to such a carrier, and
guaranteeing transportation from the United States;
(v) Agrees that the return portion of such passage may be used to
effect removal from the United States based on a finding of
excludability or deportability under Sec. 217.4 of this part;
(vi) Appears otherwise admissible.
(2) The carrier further agrees to:
(i) Submit to the Immigration and Naturalization Service the Form I-
94W
[[Page 340]]
as required by Sec. 231 of this chapter and section 217(e)(1)(B) of the
Act;
(ii) Remove from the United States any alien transported by the
carrier to the United States for admission under the Visa Waiver Pilot
Program, in the event that the alien is determined by an immigration
officer at the port of entry to be inadmissible or is determined to have
remained unlawfully beyond the 90-day period of admission under the
program;
(iii) Reimburse within 30 days of notice (not pay as a penalty) the
Immigration and Naturalization Service of any and all expenses incurred
in the transportation (from the point of arrival in the United States)
of any alien found inadmissible or deportable under this program;
(iv) Retain the responsibilities and obligations enumerated in this
part should the alien under the Visa Waiver Pilot Program depart
temporarily for a visit to foreign contiguous territory during the
period of authorized stay in the United States;
(v) Transport an alien found inadmissible to the United States or
deportable from the United States after admission under the Visa Waiver
Pilot Program, by accepting as full payment for return passage the
return portion of the transportation ticket as required in
Sec. 217.6(b)(1)(v) from the original port of arrival in the United
States to point of embarkation.
(vi) Ensure that the form I-94W is completed and signed by the alien
prior to inspection.
(3) For the purposes of this part, a period of validity of one year
need not be reflected on the ticket itself, provided that the carrier
agrees that it will honor the return portion of the ticket at any time,
as provided in Sec. 217.6(b)(2)(v) of this part. In addition, for the
purposes of this part, a roundtrip ticket in possession of an applicant
for admission under the Visa Waiver Pilot Program will be considered
qualifying in every respect, as long as the arrival in the United States
under the pilot program is on a participating carrier.
(c) Termination of agreements. The Commissioner, in behalf of the
Attorney General, may terminate any carrier agreement under this part
with five days notice to a carrier for the carrier's failure to meet the
terms of such agreement. As a matter of discretion, the Commissioner may
notify a carrier of the existence of a basis for termination of a
carrier agreement under this part and allow the carrier a period not to
exceed fifteen days within which the carrier may bring itself into
compliance with the terms of the carrier agreement. The agreement shall
be subject to cancellation by either party for any reason upon fifteen
days' written notice to the other party.
[53 FR 24901, June 30, 1988, as amended at 56 FR 32954, July 18, 1991]
PART 221--ADMISSION OF VISITORS OR STUDENTS--Table of Contents
Authority: Secs. 101, 103, 221, 66 Stat. 166, 173, 191; 8 U.S.C.
1101, 1103, 1201.
Sec. 221.1 Admission under bond.
The district director having jurisdiction over the intended place of
residence of an alien may accept a bond on behalf of an alien defined in
section 101(a)(15)(B) or (F) of the Act prior to the issuance of a visa
to the alien or upon receipt of a request directly from a U.S. consular
officer or upon presentation by an interested person of a notification
from the consular officer requiring such a bond; such a bond also may be
accepted by the district director with jurisdiction over the port of
entry or preinspection station where inspection of the alien takes
place. Upon acceptance of such a bond, the district director shall
notify the United States consular officer who requested the bond, giving
the date and place of acceptance and amount of the bond. All bonds given
as a condition of admission of an alien under section 221(g) of the Act
shall be executed on Form I-352. For procedures relating to bond riders,
acceptable sureties, cancellation, or breaching of bonds, see part 103
of this chapter.
[32 FR 9626, July 4, 1967, as amended at 34 FR 1008, Jan. 23, 1969]
[[Page 341]]
PART 223--REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE PAROLE DOCUMENTS--Table of Contents
Sec.
223.1 Purpose of documents.
223.2 Processing.
223.3 Validity and effect on admissibility.
Authority: 8 U.S.C. 1103, 1181, 1182, 1186a, 1203, 1225, 1226, 1227,
1251; Protocol Relating to the Status of Refugees, November 1, 1968, 19
U.S.T. 6223 (TIAS 6577).
Source: 59 FR 1464, Jan. 11, 1994, unless otherwise noted.
Sec. 223.1 Purpose of documents.
(a) Reentry permit. A reentry permit allows a permanent resident to
apply for admission to the United States upon return from abroad during
the period of the permit's validity without the necessity of obtaining a
returning resident visa.
(b) Refugee travel document. A refugee travel document is issued
pursuant to this part and article 28 of the United Nations Convention of
July 28, 1951, for the purpose of travel. A person who holds refugee
status pursuant to section 207 of the Act, or asylee status pursuant to
section 208 of the Act, must have a refugee travel document to return to
the United States after temporary travel abroad unless he or she is in
possession of a valid advance parole document.
Sec. 223.2 Processing.
(a) General. An application for a reentry permit, refugee travel
document, or advance parole document must be filed on Form I-131, with
the fee required in Sec. 103.7 of this chapter and with the initial
evidence required on the application form.
(b) Eligibility. (1) Reentry permit. Except as otherwise provided in
this section, an application may be approved if filed by a person who is
in the United States at the time of application and is a lawful
permanent resident or conditional permanent resident.
(2) Refugee travel document. Except as otherwise provided in this
section, an application may be approved if filed by a person who is in
the United States at the time of application, and either holds valid
refugee status under section 207 of the Act, valid asylee status under
section 208 of the Act, or is a permanent resident and received such
status as a direct result of his or her asylee or refugee status.
(c) Ineligibility--(1) Prior document still valid. An application
for a reentry permit or refugee travel document shall be denied if the
applicant was previously issued a reentry permit or refugee travel
document which is still valid, unless it was returned to the Service or
it is demonstrated that it was lost.
(2) Extended absences. A reentry permit issued to a person who,
since becoming a permanent resident, or during the last 5 years,
whichever is less, has been outside the United States for more than 4
years in the aggregate, shall be limited to a validity of one year,
except that a permit with a validity of two years may be issued to:
(i) A permanent resident as defined in 8 CFR 211.1(b)(1)(ii) or
211.1(b)(4);
(ii) A permanent resident employed by a public international
organization of which the United States is a member by treaty or
statute, and his or her permanent resident spouse and children; or
(iii) A permanent resident who is a professional athlete who
regularly competes in the United States and worldwide.
(3) Permanent resident entitled to nonimmigrant diplomatic or treaty
status. A permanent resident entitled to nonimmigrant status under
section 101(a)(15) (A), (E), or (G) of the Act because of occupational
status may only be issued a reentry permit if the applicant executes and
submits with the application, or has previously executed and submitted,
a written waiver on Form I-508 required by section 247(b) of the Act and
part 247 of this chapter and, if applicable, Form I-508F (election as to
tax exemption under the Convention between the United States and the
French Republic) required by part 247 of this chapter.
(d) Effect of travel before a decision is made. Departure from the
United States before a decision is made on an application for a reentry
permit or refugee travel document shall not affect the application.
(e) Processing. Approval of an application is solely at the
discretion of the
[[Page 342]]
Service. If the application is approved, the requested document shall be
issued as provided in this part.
(f) Issuance. A reentry permit or refugee travel document may be
sent in care of a United States Consulate or an overseas office of the
Service if the applicant so requests at the time of filing. Issuance of
a reentry permit or refugee travel document to a person in exclusion or
deportation proceedings shall not affect those proceedings.
(g) Appeal. Denial of an application for a reentry permit or refugee
travel document may be appealed to the Service's Administrative Appeals
Unit.
Sec. 223.3 Validity and effect on admissibility.
(a) Validity--(1) Reentry permit. Except as provided in
Sec. 223.2(c)(2), a reentry permit issued to a permanent resident shall
be valid for 2 years from the date of issuance. A reentry permit issued
to a conditional permanent resident shall be valid for 2 years from the
date of issuance, or to the date the conditional permanent resident must
apply for removal of the conditions on his or her status, whichever
comes first.
(2) Refugee travel document. A refugee travel document shall be
valid for 1 year, or to the date the refugee or asylee status expires,
whichever comes first.
(b) Invalidation. A document issued under this part is invalid if
obtained through material false representation or concealment, or if the
person is ordered excluded or deported. A refugee travel document is
also invalid if the United Nations Convention of July 28, 1951, ceases
to apply or does not apply to the person as provided in Article 1C, D,
E, or F of the convention.
(c) Extension. A reentry permit or refugee travel document may not
be extended.
(d) Effect on admissibility--(1) Reentry permit. A permanent
resident or conditional permanent resident in possession of a valid
reentry permit who is otherwise admissible shall not be deemed to have
abandoned status based solely on the duration of an absence or absences
while the permit is valid.
(2) Refugee travel document--(i) General. Every alien returning to
the United States who presents a valid unexpired refugee travel document
shall be permitted to come physically within the territory of the United
States to receive consideration of his or her application for admission
in conformity with paragraphs (d)(2)(ii) and (d)(2)(iii) of this
section.
(ii) Inspection and immigration status. Upon arrival, an alien who
presents a valid unexpired refugee travel document shall be examined as
to his or her admissibility under the Act. An alien shall be accorded
the immigration status endorsed in his or her refugee travel document
unless he or she is no longer eligible therefor, or he or she applies
for and is found eligible for some other immigration status.
(iii) Exclusion. If an alien who presents a valid unexpired refugee
travel document appears to the examining immigration officer to be
excludable as provided in Sec. 236.5(c) of this chapter, he or she shall
be referred for proceedings under section 236 and 237 of the Act.
Section 235(c) of the Act shall not be applicable.
PART 231--ARRIVAL-DEPARTURE MANIFESTS AND LISTS; SUPPORTING DOCUMENTS--Table of Contents
Sec.
231.1 Arrival manifest for passengers.
231.2 Departure manifest for passengers.
231.3 Exemptions for private vessels and aircraft.
Authority: Secs. 101, 103, 212, 231, 238, 239, 66 Stat. 166, 173,
182, 195, 202, 203; 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229.
Sec. 231.1 Arrival manifest for passengers.
(a) Requirement for manifest. The master, captain, or agent of every
vessel or aircraft arriving in the United States from a foreign place or
outlying possession of the United States shall present an arrival
manifest to the immigration officer at the port of entry. The manifest
must be in the form of a separate Arrival/Departure Record, Form I-94,
prepared on board for each passenger except: United States citizens,
lawful permanent resident aliens of the United States, and immigrants to
the United States. In addition, a properly completed Aircraft/Vessel
Report, Form I-
[[Page 343]]
92, must be submitted for each arriving aircraft or vessel which is
transporting passengers. Manifests are not required by vessels or
aircraft arriving directly from Canada on a trip originating in that
country or arriving in the Virgin Islands of the United States directly
from a trip originating in the British Virgin Islands.
(b) In-Transit Passengers. An Arrival/Departure Record, Form I-94,
is not required for an arriving, through-flight passenger at a United
States port provided:
(1) The passenger will depart directly to a foreign place or
outlying possession of the United States on the same flight;
(2) The number of through-flight passengers is noted on the
Aircraft/Vessel Report, Form I-92, for the flight;
(3) The flight is inspected at a port of entry designated in
paragraph 214.2(c) of this chapter;
(4) The carrier is signatory to an Immediate and Continuous Transit
Agreement, Form I-426; and
(5) All through-flight passengers remain on board the aircraft or in
a separate area under the direction and control of the Service during
the ground time.
(c) Progressive Clearance. Inspection of arriving passengers may be
deferred at the request of the carrier to an onward port of debarkation.
Authorization for this progressive clearance may be granted by the
Regional Commissioner when both the initial port of entry and the onward
port are within the same regional jurisdiction, but when the initial
port of entry and onward port are located within different regions,
requests for progressive clearance must be authorized by the Assistant
Commissioner for Inspections. When progressive clearance is requested,
the carrier shall present Form I-92 in duplicate at the initial port of
entry. The original Form I-92 will be processed at the initial port of
entry, and the duplicate noted and returned to the carrier for
presentation at the onward port of debarkation.
(d) Preparation of Arrival/Departure Record, Form I-94. Air and sea
carriers shall be responsible to ensure that a properly completed Form
I-94 is presented to the immigration inspector at the port of entry for
each arriving passenger except those passengers who do not require a
Form I-94 under paragraph (a) of this section. The following classes of
aliens are not required to complete the departure portion of the Form I-
94 if they are entering the U.S. for business or pleasure under section
101(a)(15)(B) of the Act, and intend to remain in the United States for
less than six months;
(1) Citizens of Canada or British dependent territories citizens,
Bermuda, and
(2) Residents of Canada or Bermuda having common nationality with
Canadian nationals or British dependent territories citizens, Bermuda.
[48 FR 21548, May 13, 1983, as amended at 48 FR 36093, Aug. 9, 1983; 48
FR 40209, Sept. 6, 1983]
Sec. 231.2 Departure manifest for passengers.
The master, captain, or agent of every vessel or aircraft departing
from the United States for a foreign place or outlying possession of the
United States shall present a departure manifest to the immigration
officer at the port of departure. The manifest must be in the form of a
properly completed departure portion of Form I-94, Arrival/Departure
Record, for each person on board except for United States citizens, and
lawful permanent resident aliens of the United States. No manifest is
required for a vessel or aircraft departing on a trip directly for and
terminating in Canada, or departing from the United States Virgin
Islands driectly to the British Virgin Islands on a trip terminating in
the British Virgin Islands. Whenever possible, the departure Form I-94
used shall be the same form given the alien at the time of arrival in
the United States. Carriers shall endorse the Form I-94 with the
departure information on the reverse of the form. Additionally, a
properly completed Aircraft/Vessel Report, Form I-92, must be completed
for each departing aircraft and each departing vessel which is
transporting passengers. Submission of Forms I-94 and I-92 to the
immigration officer shall normally be accomplished within 48 hours of
the departure, exclusive of Saturdays, Sundays, and legal holidays.
Failure to submit departure
[[Page 344]]
manifests within this time period shall be regarded as failure to comply
with section 231(d) of the Act, unless prior authorization for delayed
delivery of the departure manifest is obtained from the district
director. A nonimmigrant alien departing on an aircraft proceeding
directly to Canada on a flight terminating in that country should
surrender any Form I-94 in his/her possession to the airline agent at
the port of departure. Aircraft manifests should not include I-94 forms
for in-transit passengers referred to in paragraph (b) of Sec. 231.1.
[48 FR 21548, May 13, 1983]